VALE & VALE
[2017] FamCAFC 36
•1 March 2017
FAMILY COURT OF AUSTRALIA
| VALE & VALE | [2017] FamCAFC 36 |
| FAMILY LAW – APPLICATION IN AN APPEAL – extension of time – where the applicant mother sought to file a Notice of Appeal out of time – where the orders sought to be appealed dismissed an application for transfer to the Sydney Registry – where the final hearing had already taken place in the Brisbane – application dismissed. FAMILY LAW – COSTS – where impecuniosity is not necessarily an answer to a claim for costs – where an order for costs against the applicant was appropriate in the circumstances. |
| Family Law Act 1975 (Cth), ss 94, 94(2D)(e) Family Law Rules 2004 (Cth), r 1.14 Family Law Regulations 1984 (Cth), reg 15A |
| Adam P Brown Male Fashions Proprietary Limited v Philip Morris Inc. and Anor (1981) 148 CLR 170 Bant & Clayton [2014] FamCAFC 108 Chong & Chong [2016] FamCAFC 211 Décor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397 Gallo v Dawson (1990) 93 ALR 479 Joshua & Joshua (1997) FLC 92-767 Lenova & Lenova (Costs) [2011] FamCAFC 141 Manotis & Manotis and Ors (No 2) [2016] FamCAFC 232 Niemann v Electronics Industries Ltd [1978] VR 431 Rutherford & Rutherford (1991) FLC 92-255 Samsung Electronics Co Ltd v Apple Inc. (2011) 217 FCR 238 Tormsen & Tormsen (1993) FLC 92-392 |
| APPLICANT: | Ms Vale |
| RESPONDENT: | Mr Vale |
| INDEPENDENT CHILDREN’S LAWYER |
| FILE NUMBER: | NA | 81 | of | 2016 |
| APPEAL NUMBER: | SYC | 7455 | of | 2012 |
| DATE DELIVERED: | 1 March 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 1 March 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 July 2016 |
| LOWER COURT MNC: | [2016] FamCA 586 |
REPRESENTATION
| FOR THE APPLICANT: | By telephone on her own behalf |
| SOLICITOR FOR THE RESPONDENT: | Mr Ulbrick |
| THE INDEPENDENT CHILDREN’S LAWYER: | Ms Bint |
Orders
The application in an Appeal filed on 3 November 2016 is dismissed.
The mother pay to the father his costs of and incidental to the application in the appeal fixed in the sum of $500, such sum to be paid within 30 days of the date of these orders.
As between the mother and the independent children’s lawyer, each party bear their own costs.
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 Vale & Vale 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 81 of 2016
File Number: SYC 7455 of 2012
| Ms Vale |
Applicant
And
| Mr Vale |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT[1]
[1]As indicated at the delivery of these reasons, citations and references have been included in these settled reasons.
On 3 November 2016 the mother filed an application in an appeal seeking an extension of time within which to appeal orders made by Hogan J on 18 July 2016.
On that date, her Honour made orders and delivered reasons with respect to an oral application made by the mother as “part of a number of interlocutory applications listed for determination” before her. Her Honour ordered that the application “for a transfer of the proceedings” to Sydney be dismissed.
The mother’s application to extend time can be heard and determined by a single Judge of the Appeal Division (s 94(2D)(e)). The power to extend time is given by rr 1.14(1) to (3) of the Family Law Rules 2004 (Cth) (“the Rules”).
The “decree” sought to be appealed is an “interlocutory decree” and requires leave to appeal (s 94 of the Family Law Act 1975(Cth); Reg 15A Family Law Regulations 1984 (Cth)).
For the reasons which follow the application should be dismissed.
The mother’s application is to be determined by principles which have been traversed in many decisions of the Full Court. Recent examples include Bant & Clayton [2014] FamCAFC 108, per May J; Chong & Chong [2016] FamCAFC 211, per Strickland J and Manotis & Manotis and Ors (No 2) [2016] FamCAFC 232, per Thackray J. The decisions of the Full Court reference, in particular, the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479.
The failure to establish particular factors informing the discretion is not a bar to its exercise; the fettering of the wide discretion given to the court to remedy genuine injustice wreaked by strict adherence to the rules being undesirable and not warranted by any legislative direction (Tormsen & Tormsen (1993) FLC 92-392).
In the earlier decision of Joshua & Joshua (1997) FLC 92-767, at 84,440, the Full Court said, again citing McHugh J in Gallo v Dawson:
… the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise; and the desirability, in the public interest, that there be finality to litigation …
The trial of the proceedings which the mother sought to have transferred to Sydney has occurred. It commenced before Hogan J on 14 November 2016. The mother was given leave to appear by video from Newcastle. She appeared via that method on the first day of the trial. The mother did not appear for the second day of the trial. The trial concluded and judgment is reserved.
The mother, who represented herself and appeared by telephone before me, appeared to suggest that there were other applications yet to be determined in respect of which the issue of transfer of venue remained live – that is, that her Honour’s order, and the subsequent trial proceedings before her Honour, did not embrace the entirety of “the proceedings” referred to in her Honour’s order.
The father’s solicitor (who also appeared by telephone) and the independent children’s lawyer, Ms Bint, who appeared in person out of courtesy to the court, each confirmed that all existing applications filed by the mother were heard by Hogan J in the proceedings earlier referred to. Despite a direction made by the Appeals Registrar on 23 January 2017, the mother failed to file any written submissions in respect of this application. Thus, nothing filed by her addresses this issue. In that respect, the mother also refers to apparently multiple other proceedings in, it seems, different jurisdictions.
The question the subject of her Honour’s order and the mooted appeal is otiose; the trial has been heard and it has been heard in Brisbane.
The mother needs leave to appeal. Nothing to which she has taken the court nor any oral submission made by her suggests that she has suffered any substantial injustice in respect of the order sought to be challenged. The order deals with a matter of practice and procedure and does not determine the substantive rights of the parties. (See Adam P Brown Male Fashions Proprietary Limited v Philip Morris Inc. and Anor (1981) 148 CLR 170; Rutherford & Rutherford (1991) FLC 92-255; Niemann v Electronics Industries Ltd [1978] VR 431; Décor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397; Samsung Electronics Co Ltd v Apple Inc. (2011) 217 FCR 238.)
The mother has not established that she will suffer injustice if the application is dismissed with the consequence that her appeal cannot proceed.
Costs
The father makes an application for costs in the sum of approximately $1,400. In oral submissions his solicitor outlined the work said to be involved in meeting this application (which he has calculated as six hours at $240 per hour). I assume that to be a reference to Item 108 of Schedule 3 to the Rules which prescribes a rate of $237.70 per hour for work reasonably spent by a solicitor.
The father relies upon the mother being wholly unsuccessful in her application. He has been put to the cost of meeting an unmeritorious application in respect of an appeal that is otiose. The court was not advised of any offers made in respect of the application (see Lenova & Lenova (Costs) [2011] FamCAFC 141 at [11]).
The mother says she is in receipt of Centrelink benefit and has no property of substance and only a nominal amount in the bank. Impecuniosity is not necessarily an answer to a claim for costs – if it was, appellants (relevantly) could litigate with both impunity and immunity (See Lenova (above) at [12]).
Taking all of the circumstances into account I consider that there are circumstances which justify an order for costs.
A perusal of the appeal file reveals a response and affidavit being filed on behalf of the respondent (and application by him to appear by telephone). The response, understandably, simply seeks dismissal; the affidavit, again understandably, consists of 12 short paragraphs. No document itemising the claimed scale costs was sought to be submitted.
In my view it is appropriate to fix the father’s costs at $500.
No order for costs is sought by the ICL.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 1 March 2017.
Associate:
Date: 8 March 2017
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