Valdez and Frazier (Costs)
[2016] FamCAFC 247
•30 November 2016
FAMILY COURT OF AUSTRALIA
| VALDEZ & FRAZIER (COSTS) | [2016] FamCAFC 247 |
| FAMILY LAW – APPLICATION IN AN APPEAL – where the respondent mother sought an order against the husband for her party and party costs of and incidental to two applications in an appeal filed by the father which were dismissed by the Full Court – where the reasons for judgment previously delivered by the Full Court containing the reasons for dismissal of the subject application demonstrate no merit – where it was held exceptional circumstances need not exist for there to be circumstances justifying an order for costs – whether the limited financial circumstances of both parties justified an order for costs – where it was held no party is entitled to litigate with immunity from costs – where the father was wholly unsuccessful in the applications in an appeal – where the circumstances justify the making of an order in favour of the mother for costs. |
| Family Law Act 1975 (Cth) |
| Frazier & Valdez [2016] FamCAFC 163 Housing Commission ofNew South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Isbester v Knox City Council (2015) 255 CLR 135 Penfold v Penfold (1980) 144 CLR 311 Valdez v Frazier [2016] HCASL 189 Valdez & Frazier (No. 3) [2015] FamCAFC 205 |
Valdez & Frazier (No. 2) [2016] FamCAFC 55
Valdez & Frazier [2016] FamCAFC 54
Valdez & Frazier (No. 3) [2016] FamCAFC 126
| APPELLANT: | Mr Valdez |
| RESPONDENT: | Ms Frazier |
| FILE NUMBER: | SYC | 2226 | of | 2013 |
| APPEAL NUMBERS: | EA | 111 | of | 2014 | |
| EA | 114 | of | 2014 | ||
| DATE DELIVERED: | 30 November 2016 | ||||
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Strickland & Kent JJ |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 July 2014 24 July 2014 |
| LOWER COURT MNC: | [2014] FCCA 1917 [2014] FCCA 1918 [2014] FCCA 1639 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Longworth |
| SOLICITOR FOR THE RESPONDENT: | Swaab Attorneys |
Orders
The appellant father pay the respondent mother her party and party costs of and incidental to:
(a) The appellant’s Application in an Appeal filed on 27 July 2015 (save in respect of order (6) sought in that application dealt with by orders made by Strickland J on 28 October 2015); and
(b) The appellant’s Application in an Appeal filed on 16 February 2016; and
(c) This application for costs;
such costs to be assessed if not agreed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazier (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 111 of 2014; EA 114 of 2014
File Number: SYC 2226 of 2013
| Mr Valdez |
Appellant
And
| Ms Frazier |
Respondent
REASONS FOR JUDGMENT
Ms Frazier (“the mother”) applies for orders that Mr Valdez (“the father”) pay her party and party costs of and incidental to two applications in an appeal filed by the father on 27 July 2015 and 16 February 2016 respectively. The mother’s application for costs falls to be determined by us, constituting the Full Court, pursuant to s 28(4)(a) of the Family Law Act 1975 (Cth) (“the Act”) consequent upon Finn J’s retirement.
Included in orders made by the Full Court (Finn, Strickland and Kent JJ) on 15 April 2016 dismissing, inter alia, appeals of the father against parenting orders made in the Federal Circuit Court of Australia are the following orders:
a)Order (7) dismissing the balance of the father’s application in an appeal filed on 27 July 2015 (order (6) sought in that application seeking Strickland J’s recusal from hearing the father’s appeals having been dismissed on 28 October 2015 for the reasons then delivered by his Honour (Valdez & Frazier (No. 3) [2015] FamCAFC 205));
b)Order (8) dismissing the father’s application in an appeal filed on 16 February 2016;
c)Orders (9) to (11) providing for a timetable for the parties to file and serve submissions with respect to costs of the subject applications.
Order (9) of the orders made on 15 April 2016 provides for the mother to file and serve any written submissions she seeks to file in support of any application by her for costs of and incidental to those dismissed applications, in circumstances where the mother was the respondent to them. This the mother did on 5 May 2016.
Order (10) provides for the father to file and serve any submissions in writing in response within fourteen (14) days of his receipt of the mother’s submissions. However, on 10 May 2016 the father filed in the High Court of Australia, inter alia, an application for special leave to appeal the judgment of the Full Court of 15 April 2016 and the father sought a stay of the subject order pending the outcome of his High Court proceedings.
Thus, on 18 July 2016, for reasons then delivered (Valdez & Frazier (No. 3) [2016] FamCAFC 126) orders were made by us, constituting the Full Court, for, inter alia, order (10) to be stayed pending the High Court’s determination of the father’s application for special leave.
On 30 August 2016 the High Court of Australia dismissed the father’s applications for special leave to appeal (Valdez v Frazier [2016] HCASL 189).
On 27 September 2016 the father filed his written submissions pursuant to order (10). Notably, the father’s submissions are not confined to, as ordered, submissions in reply to those of the mother in respect of the costs of the subject applications. The father’s submissions repeat many of his criticisms of the trial judge and the “Family Court” and/or its judges agitated by him in his unsuccessful appeals. The father also seeks to revisit matters, including costs issues, already conclusively determined. For example, the costs orders made by the Full Court on 15 April 2016 in respect of his unsuccessful appeals are the subject of much of the father’s written submissions.
We do not consider it necessary or desirable, let alone legitimate, to indulge the father by, yet again, engaging with any of his submissions directed to such matters, as these have already been conclusively dealt with in the judgments delivered on 15 April 2016 by, respectively, Strickland J dismissing the father’s application that Strickland J be disqualified (Valdez & Frazier (No. 2) [2016] FamCAFC 55) and the judgment of the Full Court delivered on 15 April 2016 (Valdez & Frazier [2016] FamCAFC 54).
Order (11) of the orders made by the Full Court on 15 April 2016 made provision for the mother to file submissions in reply to those of the father. On 24 October 2016 the mother’s legal representatives formally advised the Appeals Registrar on her behalf that the mother did not intend to file any further submissions in reply to those of the father.
Application in an Appeal filed on 27 July 2015
The content of this application, and its disposition by the Full Court, are dealt with at [42] to [69] of the reasons for judgment delivered by the Full Court on 15 April 2016. We adopt, without here restating them in full, those reasons.
It suffices for us to note that by this application the father sought, inter alia, leave to re-open the hearing of his appeals to re-agitate claims of bias on the part of the trial judge and Strickland J by reference to the then recently delivered judgment of the High Court in Isbester v Knox City Council (2015) 255 CLR 135. As is recorded in the application, the father sought to adduce into evidence before the Full Court a variety of documents related to a number of hearings that had taken place in the Federal Circuit Court prior to the final judgment being delivered in the parenting proceedings.
The application resulted in the Full Court having to make orders (on 29 October 2015) for the filing of submissions by each party, which occurred.
As is referred to at [55] of the reasons for judgment of the Full Court of 15 April 2016, the father’s written submissions filed in consequence of the 28 October 2015 orders included the entirely inappropriate attempt by the father to add to the orders sought in the application. Moreover, as is referred to at [56] the orders sought were not orders that the Full Court could make.
As is referred to at [58] the father sought to agitate a claim of bias against Ryan J in circumstances where there was no appeal against the orders previously made by Ryan J; and by his submissions (rather than any application) the father sought to agitate a further claim of bias as against Strickland J.
For the reasons delivered on 15 April 2016 the father’s application was characterised as entirely misguided (see [62] to [64]); and the father’s allegation that the trial judge “deliberately lied” was found to be scandalous and patently wrong (at [65]). The father’s application was dismissed.
Application in an Appeal filed on 16 February 2016
The content of this application, and its disposition by the Full Court, are dealt with at [70] to [80] of the reasons for judgment delivered by the Full Court on 15 April 2016. Again we adopt, without here restating them in full, those reasons.
As appears from those reasons, much of this application was a restatement of the orders sought in the 27 July 2015 application, aside from the order sought to adduce as further evidence in the appeals some seven items or articles of psychological literature which the father sought to rely upon to challenge the expertise of the single expert at trial, Dr B.
The articles were found (at [78]) to be irrelevant to the issues the trial judge had to determine and did not demonstrate appellable error on the part of the trial judge. The balance of the material sought to be advanced by the father was found to not satisfy the requirements for receipt by the Full Court of further evidence (at [79]) and the father’s application was dismissed.
It bears repeating that the father’s application to the High Court of Australia for special leave to appeal from the judgment of the Full Court was dismissed.
Discretion to order costs
What is often referred to as the “ordinary rule” that each party to proceedings under the Act shall bear that party’s own costs derives from s 117(1) of the Act which provides:
Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
Section 117(2) and (2A) provide:
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Because subsection (1) of s 117 is expressly “subject to”, inter alia, subsection (2), the ordinary rule as referred to is no more than that in proceedings under the Act costs do not automatically follow the event or outcome, as is commonly the general rule in other civil litigation.
It is well settled that it is not necessary for there to exist “exceptional” circumstances for there to be circumstances justifying an order as to costs within the meaning of s 117(2), and the discretion conferred by s 117 of the Act to order costs is a wide discretion (Penfold v Penfold (1980) 144 CLR 311).
With respect to s 117(2A), the father’s written submissions, particularly where assertions are made about previously determined costs orders (including the order of the Full Court on 15 April 2016 that the father pay the mother’s costs of and incidental to his unsuccessful appeals) assume, wrongly, that the need for the Court to “have regard to” the factors identified in the subsection means that the Court must specifically traverse and detail each such factor. However, as is observed in the oft-cited judgment of Mahoney JA in Housing Commission ofNew South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378, it is not necessary for a discretionary judgment to detail each factor found to be relevant, or irrelevant, to the exercise of discretion.
Resolution
At [232] to [234] of the reasons of the Full Court delivered on 15 April 2016, there is contained a summary of the respective financial circumstances of each party as was submitted on the hearing of the appeals.
It is a matter of record that further and more recent exposition of the financial circumstances of each party is contained in the reasons for judgment of the Full Court delivered on 16 August 2016 with respect to the mother’s application for security for costs concerning further appeals filed by the father (Frazier & Valdez [2016] FamCAFC 163).
No party is entitled to litigate with immunity from costs and particularly so when the respondent to that litigation, put to expense by it, is of limited means. We consider that the nature of the subject applications and the feature that they were entirely unsuccessful, renders the mother’s limited financial circumstances an important factor in favour of her application. Conversely, the father’s limited financial means ought not, in the circumstances, provide him with immunity from a costs order.
That the father was wholly unsuccessful in these applications, having regard also to the nature of them as already referred to is, in all the circumstances, a further significant factor in favour of the mother’s application.
Whilst the father annexes to his submissions what are described as a series of offers, it is not only the fact of offers being made, but the terms of any such offer which fall for consideration under s 117(2A)(f) of the Act. Having regard to the terms of each of these respective offers the father relies upon, we fail to see how it could possibly be concluded that the terms of any offer can be characterised as sufficiently certain, and encompassing of the issues, such that it would have been to the mother’s advantage to accept such an offer as compared with the outcome of litigation. Property proceedings are yet to be determined in the Federal Circuit Court and likewise any offer made by the father in that respect will be considered in that context if and when costs of the property proceedings fall for determination.
We are satisfied that there are circumstances that justify the making of an order in favour of the mother as to costs of the subject applications as well as this application for costs, and we consider that orders for the father to meet such costs of the mother is the just outcome.
We will therefore order that the father pay the mother her party and party costs of and incidental to the father’s applications in an appeal filed on 27 July 2015 (save in respect of that part of the application dealt with by the orders made by Strickland J on 28 October 2015) and 16 February 2016, such costs to be assessed if not agreed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland & Kent JJ) delivered on 30 November 2016.
Associate:
Date: 30 November 2016
0
8
2