Valdez and Frazier
[2015] FamCAFC 7
•29 January 2015
FAMILY COURT OF AUSTRALIA
| VALDEZ & FRAZIER | [2015] FamCAFC 7 |
| FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the applicant sought to discharge, stay or quantify the amount of costs he is required to pay pursuant to costs order – Where the effect of the application is to appeal against previous order – Where the primary application is incompetent – Where there existed no circumstance which would warrant varying the order – Application dismissed. |
| Valdez & Frazier (No 2) [2014] FamCAFC 150 White & White (2014) FLC 93-615 |
| APPLICANT: | MrValdez |
| RESPONDENT: | Ms Frazier |
| FILE NUMBER: | SYC | 2226 | of | 2013 |
| APPEAL NUMBER: | EA | 68 | of | 2014 |
| DATE DELIVERED: | 29 January 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | In the Appellate Jurisdiction of the Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 August 2014 |
| LOWER COURT MNC: | [2014] FamCAFC 150 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Valdez in Person |
| SOLICITOR FOR THE RESPONDENT: | Swaab Attorneys |
Orders
That the application in an appeal filed on 3 November 2014 be dismissed.
That the applicant pay the respondent’s costs of and incidental to his application in an appeal filed on 3 November 2014 within one month of the quantum of those costs being agreed or assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazier has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 68 of 2014
File Number: SYC 2226 of 2013
| Mr Valdez |
Applicant
And
| Ms Frazier |
Respondent
REASONS FOR JUDGMENT
This is an application in an appeal filed on 3 November 2014 by Mr Valdez (“the applicant”) variously seeking to discharge, stay or quantify the amount of costs he is required to pay pursuant to order 3 dated 18 August 2014. By that order, the applicant was ordered to pay the mother’s costs of and incidental to his applications in an appeal filed on 8 July 2014 and 11 June 2014. Those costs are to be paid within one month of agreement as to quantum or assessment.
By her response filed 26 November 2014, Ms Frazier (“the respondent”) seeks that the application be dismissed and the applicant pay her costs of the application.
Application was made by the applicant for this application to be dealt with in the absence of the parties. Orders to that effect were made on
17 November 2014 with the respondent given the opportunity to request that the application be determined in open court. No such request was made, as a consequence of which, this application will be determined having regard to the various documents filed in the application and written submissions filed in accordance with the orders dated 17 November 2014. So that it is clear, the further written submissions submitted by the respondent on 17 December 2014 have not been admitted as material in the case.
The orders sought by the applicant
The orders sought by the applicant are set out below:
1.That Order 3 of 18 August 2014 is vacated and no cost order is made.
2.In the event order 1, above, is not granted: That Order 3 of 18 August 2014 be stayed until the Applicant’s appeal of these orders to the High Court (SYC248/2014), is decided.
3.In the event order 1, above, is not granted: That Order 3 of 18 August 2014 be clarified to refer to party/party costs and the specific non-negotiable amount of $1.00.
So as to give the orders sought context, it is necessary to set out the orders dated 18 August 2014. They are as follows:
(1)That the father’s Application in an Appeal filed on 8 July 2014 be dismissed.
(2)That the father’s Application in an Appeal filed on 11 June 2014 be dismissed.
(3)That the father pay the mother’s costs of and incidental to his Applications in an Appeal filed on 11 June 2014 and 8 July 2014 within one month of those being agreed or assessed.
Proposed order 1 is, in effect, an attempt to appeal against the order there referred to. In this respect, the application is incompetent.
Even if it were not, in White & White (2014) FLC 93-615, the Full Court considered the circumstances under which a party may seek to vary or discharge an order for costs once the order is perfected. For the reasons given by their Honours, at [9]-[13], I am satisfied that I would not, in this application, have power to make order 1 as sought by the applicant.
By proposed order 2, the applicant seeks that a stay of order 3 dated 18 August 2014 be granted pending determination of his application for a grant of special leave to appeal to the High Court. As accords with usual practice, reasons for judgment having been given in that matter, the Registrar of the High Court circulated the outcome of the application to the courts concerned. The application for special leave referred to in proposed order 2 was dismissed by the High Court on 11 December 2014. The application for proposed order 2 must therefore fail.
In relation to proposed order 3, there is no dispute that the order for costs made on 18 August 2014 is an order for party/party costs. There is, therefore, no judiciable issue which would require clarification by the insertion of the words “party/party costs” into the order and that machinery amendment will not be made.
The application that the court quantifies the costs payable by the applicant at $1.00, to his knowledge, is manifestly absurd and frivolous. The process for assessment is in place and the quantification of costs must be determined in accordance with order 3 of 18 August 2014. This is not a matter for this court’s appellate jurisdiction.
Although the applicant was aware that in the event he was unsuccessful the respondent sought an order for costs against him, other than to reject the respondent’s claim that he seeks to financially drain her and his claim that his actions have at all times been motivated by a desire to prioritise the parties’ son’s welfare, nothing more relevant was said by him about why the respondent’s costs application should be dismissed.
In previous reasons for judgment I have published in the proceedings between these parties, I have set out the law concerning costs which, in the interests of brevity, need not be restated. Suffice to say, that for the same reasons I gave in Valdez & Frazier (No 2) [2014] FamCAFC 150 published on 18 August 2014 it is proper that the father pay the mother’s costs of this application within one month of agreement as to quantum or assessment.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 29 January 2015.
Associate:
Date: 29 January 2015