VW & J

[2005] FamCA 1005

[2005] FamCA 1005

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT BRISBANE  Appeal Nos. NA 55 of 2003

and NA 10 of 2004

File No. TVF 471 of 2002

BETWEEN:

VW

Appellant Husband

-and -

J

Respondent Wife

REASONS FOR JUDGMENT

IN RELATION TO THE COSTS OF THE APPEAL AND THE CROSS-APPEAL

CORAM:  Finn, May and Guest JJ
DATE OF JUDGMENT:  25 October 2005

WRITTEN SUBMISSIONS FILED BY:    

Mr Arnold of Counsel (instructed by V.A.J Byrne & Co) on behalf of the appellant husband on 17 September 2004.

Mr Barry, Solicitor (of Kenny & Partners) on behalf of the respondent on 16 September 2004.

Ms Madden, Solicitor (of J M Madden & Associate) as the children’s representative on 22 March 2005.

APPEAL SUMMARY

MATTER:  VW and J
APPEAL NUMBERS:  NA 55 of 2003 and NA 10 of 2004
  (TVF 471 of 2002) 
CORAM:  Finn, May and Guest JJ
DATE OF WRITTEN SUBMISSIONS:        16 and 17 September 2004, 22 March 2005
DATE OF JUDGMENT:  25 October 2005

CATCHWORDS:                FAMILY LAW – Appeal against parenting orders and cross-appeal against property settlement orders both allowed by Full Court – Both parenting and property matters remitted for re-hearing – COSTS OF APPEAL – Application by appellant husband for an order against the children’s representative in relation to his costs of the successful appeal against parenting orders – COSTS CERTIFICATES under the Federal Proceedings (Costs) Act 1981 – Whether parties to a successful appeal in relation to parenting orders and a successful cross-appeal in relation to property settlement orders are entitled to separate costs certificates in relation to the appeal and also in relation to the cross-appeal.

Legislation cited:

Family Law Act 1975 (Cth): s 75(2), s 117

Federal Proceedings (Costs) Act 1981 (Cth): s 6, s 8, s 9

Caselaw cited:

Re P (a Child): Separate Representative (1993) FLC 92-376

Application for costs order against the children’s representative in relation to the successful appeal against the parenting orders dismissed.

A certificate granted to each party in respect of the costs of the appeal (but not of the cross-appeal); a certificate granted to each party in respect of the re-hearing. 

Introduction

1. On 25 August 2004, this Full Court made orders allowing an appeal by the husband against parenting orders made by O’Reilly J on 11 September 2003 and also allowing a cross-appeal by the wife against property settlement orders made by her Honour on that date.  We also made orders remitting both the parenting and property settlement matters for re-hearing, and we gave directions for the filing of written submissions in relation to the costs of the appeal and the cross-appeal. 

The husband’s appeal against the parenting orders

1. The parenting orders which O’Reilly J made on 11 September 2003 and which were the subject of the husband’s appeal were to the effect that the children should continue to reside with the wife and have defined contact with the husband.

2. In our judgment delivered on 25 August 2004, we held that O’Reilly J had erred by attaching insufficient weight to the wishes of one of the children and that therefore the appeal would have to be allowed, with the parenting orders made by her Honour being set aside and the parenting matter being remitted for re-hearing.

The wife’s cross-appeal against the property settlement orders

1. The property settlement orders made by her Honour were based on an agreed net value of the parties’ assets of $215,680, and also an agreement that the parties’ contributions ought to be regarded as equal. O’Reilly J determined that the appropriate adjustment to be made on account of the factors contained in s 75(2) of the Family Law Act 1975 (“the Act”) was an adjustment of 10% in the husband’s favour. The overall result was therefore a division of property in the proportions of 60-40% in the husband’s favour.

2. In our judgment of 25 August 2004, we concluded that in making a 10% adjustment in the husband’s favour on account of the s 75(2) matters her Honour had erred in attaching the weight she had to the disparity in the parties’ incomes and to the possibility of any future change in the residence of the children.

3. Accordingly, we also allowed the cross-appeal and set aside the property settlement orders.  We ordered that that matter also be remitted for re-hearing. 

The directions for written submissions in relation to the costs of the appeal and the cross-appeal

1. Given the agreement of all Counsel at the conclusion of the hearing of the appeal and cross-appeal, that the issue of the costs of the appeal and cross-appeal should be the subject of further written submissions, we said as follows at the conclusion of our judgment of 25 August 2004:

   49.It was agreed with Counsel at the conclusion of the hearing of the appeal and the cross appeal that the costs of the appeal and cross appeal should be the subject of written submissions after the delivery of our substantive judgment. 

   50.Accordingly, we will make directions for such submissions.  We would, however, remind both parties and also the children’s representative that this is a case in which applications could be made for certificates under the Federal Proceedings (Costs) Act 1981.

2. We therefore made directions for the filing of such submissions in our orders of 25 August 2004 in the following terms:

   (4)(a)That each party including the children’s representative be at liberty to file and serve any written submissions in relation to the costs of the appeal and the costs of the cross appeal within 28 days of the date hereof.

   (b)That each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.

   (c)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

The time taken for the filing of the written submissions in relation to costs

1. Written submissions in relation to costs were filed on behalf of the respondent wife on 16 September 2004 and on behalf of the appellant husband on 17 September 2004. 

2. Neither the written submissions filed on behalf of the husband nor those filed on behalf of the wife contained the endorsement as to the date of service of such submissions on the other parties as required by our directions.  This was a particularly significant omission in the case of the husband’s submissions given that he sought in his submissions that the children’s representative should be ordered to pay his costs of the appeal against the parenting orders.

3. When no submissions had been received from the children’s representative responding to the husband’s application for costs by 18 February 2005, the Appeal Registrar wrote to the legal representatives of all parties seeking confirmation that the husband and the wife had in fact served their submissions on the children’s representative and seeking written advice as to whether any party, including the children’s representative, proposed to respond to any submissions filed by any other party.

4. On 22 March 2005 written submissions were received from the children’s representative responding to the husband’s application for costs.  Again, there was no endorsement as to service on the other parties included on those submissions from the children’s representative.

5. On 6 April 2005 the Appeal Registrar was in a position (apparently as a result of further enquiries that she had had to make of the legal representatives of all parties) to advise the Full Court that no party intended to file any further submissions. 

The wife’s position in relation to the costs of the appeal and the cross-appeal

1. The short submissions made by the wife were to the following effect:

   ·that the husband was successful in relation to his appeal against the parenting orders, as was the wife in relation to her cross-appeal against the property settlement orders;

   ·that there was nothing in the conduct of the parties or otherwise in the circumstances of this case which would justify a departure from the general rule that each party should bear their own costs; and

   ·that the wife seeks a certificate (presumably in relation to the re-trial as well as in relation to the appeal/cross-appeal) under the Federal Proceedings (Costs) Act 1981.

2. We would say at this point that as between the husband and the wife, we consider that the appropriate outcome is as set out in the submissions of the wife, that is, that there should be no order for costs and that the husband and the wife should each receive a certificate in respect of the costs of the appeal and a certificate in respect of the costs of the re-trial. 

The husband’s position in relation to the costs of his successful appeal against the parenting orders

1. For his part, the husband submitted that so far as his successful appeal against the parenting orders was concerned, there is nothing in this case which, as between the husband and wife, would suggest a departure from the primary rule in s 117(1) of the Act being that each party bears his or her own costs.

2. However, it was submitted on behalf of the husband – and this would appear to be his primary submission in relation to the costs of the appeal – that the children’s representative should bear the costs incurred by him in relation to his successful appeal.   In support of this claim, reliance was placed on behalf of the husband on the following passage (although conceded to be obiter) in Re P (a Child): Separate Representative (1993) FLC 92-376 at 79,904:

   In the light of the views which we have previously expressed relating to the right of a Separate Representative to seek orders and/or to appeal, we consider that a Separate Representative should be treated as or analogous to a “party” to these proceedings for this purpose.

   In any event, the power of this Court to make an order about costs is not confined to a party to the proceedings. The Court has power to make an order against a non-party in the circumstances illustrated in such cases as Aiden Shipping Co. Ltd v Interbulk Ltd (1986) 1 AC 965, Bent v Gough (1992) 36 FCR 204, Knight v F.P. Special Assets Ltd. (1992) 174 C.L.R. 178, and Burns Philp & Co. Ltd. v Bhagat (1993) VR 203. The views of the Full Court of this Court in Collins and Collins (1985) FLC ¶91-603 esp. at pp 79,878 and 79,886 to the contrary no longer represent the law.

   …

   In any proposed exercise of either such power for or against a Separate Representative, careful consideration would need to be given to the circumstances of that case and in particular that the Separate Representative is appointed by order of the Court to represent the interests of the child or children in question and thus has special responsibilities and duties and occupies a special position in the proceedings, and the almost invariable practice that a Separate Representative is appointed to act through the Legal Aid Commission of the relevant State or Territory. In that latter regard, it may be necessary to consider whether the Separate Representative has an appropriate indemnity from the Legal Aid Commission, and whether the costs order should be against the relevant Commission rather than the Separate Representative personally. If consideration were being given to that latter course notice would need to be given to the Commission: as to which see generally Collins and the Victorian Legal Aid Commission (1984) FLC ¶91-508; Collins and Collins (1985) FLC ¶91-603. Consideration would also need to be given to the public role of Legal Aid Commissions in supporting litigation by indigent persons and the circumstance that the legal aid legislation of some, but not all, of the States and Territories contain provisions for at least a limited liability for costs by the Commission in certain circumstances.

3. It was submitted on behalf of the husband that the following applicable principles are to be drawn from these statements by the Full Court:

   ·s.117(2) of the Family Law Act gives power to the court to award costs against a non party;

   ·the power under s.117(2) of the Family Law Act is [a] wide and general power to make an order as to costs;

   ·a children’s representative should be treated as or as analogous to a party to these proceedings for the purpose of costs;

   ·the role of the children’s representative is a special one and therefore consideration must be given to the circumstances of the case;

   ·consideration must be given as to whether the representative has an appropriate indemnity from the Legal Aid Office. 

4. Further submissions were then made seeking, apparently in light of such principles, to establish a justification for an order, which was conceded to be “extraordinary” (see paragraph 8(j) of the husband’s submissions) that the children’s representative pay the husband’s costs of his successful appeal. 

5. The gravamen of those submissions was, as we apprehended it, that the children’s representative had been responsible for leading the trial Judge into the errors which we found in our substantive judgment had been made by her.  Specific matters raised in, or relied upon, in these submissions included the following:

   ·the determinative issue in the trial, given the evidence about each parent’s parenting ability and the relationship of the children to their parents, was children’s wishes;

   ·her Honour’s decision was not to give effect to or place a very limited weight on the children’s wishes;

   ·the Full Court found that, “we therefore have great difficulty understanding how against the background of Dr J’s evidence, her Honour could have accepted the submissions of the children’s representative and lessened the weight which he gave to [A’s] wishes on the basis of alleged pressure from the husband”;

   ·the Full Court found that her Honour had erred in taking into consideration the child A’s Autistic Spectrum Disorder (ASD) condition in concluding that less weight should be given to his wishes;

   ·the evidence led by the children’s representative was wholly unsupportive of and contradicted the submissions made by her;

   ·it was impossible to understand how the submissions as to the weight to be attached to the children’s wishes came to be made by the children’s representative; and

   ·the husband has been put to considerable hardship and expense because of the submissions made by the children’s representative and the acceptance of those submissions by the Court. 

6. In the alternative, it was submitted on behalf of the husband that, if costs were not awarded in his favour against the children’s representative, then costs certificates should be granted, notwithstanding that the amount payable under the certificates would not be sufficient to meet the husband’s costs in relation to the appeal and the re-hearing.

The submissions of the children’s representative

1. In her written submissions the children’s representative opposed the husband’s application for a costs order against her, and made her own application for costs certificates both in relation to the appeal and as we understood her submissions, the re-hearing of the parenting proceedings.

2. In her submissions in opposition to the husband’s application for a costs order, the children’s representative sought to rely in part on the outcome of the re-trial which has now been held.  We do not consider that that is a matter relevant to the application by the husband for the payment of the costs of the appeal against orders made in the original trial, and we therefore do not have regard to those parts of the submissions of the children’s representative which relate to, or rely on, the outcome of the re-trial.

3. The relevant parts of the written submissions by the children’s representative which we do consider have relevance to the issue which we have to decide, include the following: 

   9.The children’s representative in the preparation and hearing of this matter has acted, in what was believed to be the best interests of the children.  The children’s representative considered that this was a situation where the older child’s wishes were irreconcilable with his best interests.  The submissions made by the child’s representative at the end of the hearing of the Trial was based upon evidence that had been produced in the Trial or evidence in the form of reports or evidence given verbally by the parties at the Trial.

   10.The stated position of the Mother and Father at the first final hearing of the matter that the older child’s Autistic Spectrum Disorder was not relevant to the proceedings was not the position accepted by the Children’s Representative.  The children’s representative considered that the relevance of the child’s disability upon the child’s capacity to express a wish was an important and proper issue to be canvassed.  It is submitted that such a position is reasonable in all the circumstances.

   …

   14.There are sound public policy reasons for not ordering costs against a children’s representative except in disciplinary or case management contexts.  (And there can be no criticism made of the children’s representative on either of these grounds.)  The children’s representative must have an unfettered discretion.  In Bennett and Bennett (1991) FLC 92-191 the court noted that the role of a separate representative is similar to that of counsel assisting a royal commission in that “…his or her duty is to act impartially but if thought appropriate to make submissions suggestion the adoption by the court of a particular course of action, if he or she considers that the adoption of such a course is in the best interests of the child.”

Discussion and conclusion in relation to the husband’s application against the children’s representative  

1. It must be recognised at the outset of this discussion, as indeed was acknowledged in paragraph 8(j) of the submissions on behalf of the husband, that it would be an “extraordinary step” to order that the children’s representative pay the husband’s costs of his successful appeal.  In this regard we agree with what was said in paragraph 14 of the submissions of the children’s representative (which we quoted above) concerning the public policy considerations involved in an application such as that made by the husband, and the need for a child’s representative to have an unfettered discretion to make submissions considered to be in the subject child’s best interests.

2. In our judgment of 25 August 2004 we set out at length (in paragraph 15) the written submissions to the trial Judge of Counsel for the children’s representative in relation to the wishes of the children and to the opinions of the psychologist, Dr J.  We also set out at considerable length (in paragraph 16 to 19) the trial Judge’s discussion of the evidence of Dr J and of the children’s wishes as well as her ultimate conclusions regarding the living arrangements for the children.  We need not set out again in this judgment any of that material.  We need only say that that material reveals that the submissions made to her Honour by the children’s representative were detailed and considered; in no way do they appear to have been made without regard to the children’s best interests as the children’s representative saw those interests.

3. Furthermore the material in question also reveals that, while the trial Judge did pay significant regard to the submissions made by the children’s representative, the ultimate decision reached by her Honour was clearly her own decision reached, as she said in paragraph 133 of her judgment with “some hesitation”, having regard to the range of matters set out in paragraphs 133 to 142 of her judgment (see paragraph 19 of our judgment of 25 August 2004).

4. It is true that we said in paragraph 24 of our judgment of 25 August 2004, that we had “great difficulty in understanding how, against the background of Dr [J’s] evidence, her Honour could have accepted the submissions of the children’s representative and lessened the weight which she gave to the child A’s wishes on the basis of alleged pressure from the husband.”  But that somewhat critical comment must be read as being directed to her Honour’s reasoning and exercise of discretion, not to the manner in which the children’s representative conducted her case before her Honour.  As we said above, the submissions of the children’s representative at trial were detailed and considered and made with regard to the children’s best interests as the children’s representative perceived them. 

1. Overall nothing has been put on behalf of the husband such as would persuade us that the circumstances of this case would justify the making of an order that the children’s representative should bear the husband’s costs of his successful appeal.  Having reached this conclusion, it is unnecessary for us to consider any issue relating to any possible indemnity from the Queensland Legal Aid Authority to the children’s representative.  Accordingly, we will dismiss the husband’s application for a costs order against the children’s representative.

Conclusion in relation to the costs of the appeal and the re-trial of the parenting issues

1. In relation to the appeal against the parenting orders we consider it appropriate that each party (including the children’s representative) should bear his or her own costs. 

2. Given that that appeal succeeded on what can be regarded as a matter of law, it is appropriate that each party (including the children’s representative) receive a costs certificate both in respect of the appeal and also in respect of the re-trial.

Conclusion in relation to the costs of the cross-appeal

1. As to the wife’s successful cross-appeal against the property settlement orders, neither the husband nor the wife seeks any order against the other.

2. It appears from the final paragraph of the submissions on behalf of the husband that not only does he seek a costs certificate as the appellant in the appeal against the parenting orders under s 9 of the relevant Act, but that he also seeks a certificate under s 6 of that Act as the respondent in the cross-appeal against the property settlement orders.

3. It has never been the practice of this Full Court, as we understand it, to grant more than one certificate to any party in respect of the costs of an appeal and a cross-appeal (heard at the same time by the Full Court) even when the appeal is directed to different orders than the orders to which the cross-appeal is directed, and when the appellant in the appeal is the respondent in the cross-appeal. 

4. We see no reason to depart from that practice in this case where both the parenting issues and the property settlement issues were the subject of the one trial before the trial Judge, one judgment and one set of orders by her Honour, and where both the appeal and the cross-appeal were heard at the same time by the Full Court and were the subject of one judgment by the Full Court. 

5. Thus, we will only grant the husband a costs certificate under s 9 as the successful appellant in the appeal and the wife a certificate under s 6 as the respondent to that appeal. We understood the wife to only seek a certificate as a respondent to the appeal.

6. Both the husband and the wife will each receive a certificate in respect of the new trial. 

Proposed orders

1. That the husband’s application that the children’s representative pay the costs of the appeal against the parenting orders made on 11 September 2003 (“the appeal”) be dismissed.

2. That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.

3. That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.

4. That the Court grants to the children’s representative a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the children’s representative in respect of the costs incurred by the children’s representative in relation to the appeal.

5. That the Court grants to each party (including the children’s representative) a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by the orders made by this Full Court on 25 August 2004.

I certify that the preceding 37 paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate