WALLIS & BEST
[2014] FamCAFC 164
FAMILY COURT OF AUSTRALIA
| WALLIS & BEST | [2014] FamCAFC 164 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the father seeks to appeal orders for costs – where the mother and the ICL oppose the appeal – where the grounds of appeal have no merit – appeal dismissed. FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the mother and the ICL sought orders for costs in the event that the appeal was unsuccessful – where the father opposed any such order – where the appeal has been wholly unsuccessful – where impecuniosity is no bar to an order for costs being made where the circumstances otherwise justify it – costs ordered against the father. |
| Family Law Act 1975 (Cth) – s 117(2A) |
| Gronow & Gronow (1979) 144 CLR 513 |
Stefani & Zollo (No. 2) [2011] FamCAFC 238
| APPELLANT: | Mr Wallis |
| RESPONDENT: | Ms Best |
| INDEPENDENT CHILDREN’S LAWYER: | David Lewis |
| FILE NUMBER: | LNC | 611 | of | 2009 |
| APPEAL NUMBER: | SOA | 23 | of | 2013 |
| DATE DELIVERED: | 5 September 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide by video-link to Launceston |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 17 December 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 March 2013 |
| LOWER COURT MNC: | [2013] FCCA 237 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kitto |
| SOLICITOR FOR THE APPELLANT: | James C Kitto Barrister & Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Welch |
| SOLICITOR FOR THE RESPONDENT: | McVeity & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Lewis |
Orders
Pursuant to the slip rule, the orders made by Federal Magistrate Roberts (as his Honour then was) on 26 March 2013 be amended to include the following order:
That the oral application for costs made by [Mr Wallis] be dismissed.
The appeal be dismissed.
The father pay the costs of the mother and of the Independent Children’s Lawyer of and incidental to the appeal, but not including the costs of the mother of and incidental to the application in an appeal filed by the mother on 11 November 2013, such costs to be as assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wallis & Best 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 ADELAIDE |
Appeal Number: SOA 23 of 2013
File Number: LNC 611 of 2009
| Mr Wallis |
Appellant
And
| Ms Best |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 23 April 2013, Mr Wallis (“the father”) appeals orders made by Federal Magistrate Roberts (as his Honour then was) on
26 March 2013.
The appeal is opposed by Ms Best (“the mother”) and the Independent Children’s Lawyer (“the ICL”).
The orders appealed provide for the father to pay the costs of the mother, and of the ICL, of and incidental to the hearing conducted by his Honour on
26 March 2013, fixed respectively in the amounts of $3,238 and $1,910, with such costs to be paid within six months of 26 March 2013.
There was also before his Honour an oral application by the father that the mother and the ICL pay his costs. That application was clearly rejected by
his Honour, but his Honour omitted to formally make an order dismissing the application. In his appeal the father challenges his Honour’s rejection of his application for costs, given that the order he seeks in the appeal is that the mother and the ICL pay his costs of and incidental to the hearing before
his Honour on 26 March 2013.
Thus, I propose to make an order pursuant to the slip rule amending
his Honour’s orders to include an order dismissing the father’s application for costs (see Stefani & Zollo (No. 2) [2011] FamCAFC 238). The appeal can then proceed against that order as well.
I note that although his Honour was a Federal Magistrate at the time he made the orders appealed against, in his Honour’s reasons for judgment delivered on the same date his Honour is described as “Judge Roberts” and his court as the “Federal Circuit Court of Australia”. I assume that that is because his Honour published the reasons for judgment after the name of the Federal Magistrates Court of Australia was changed to the Federal Circuit Court of Australia and his Honour became a judge of that court on 12 April 2013. Nothing of course turns on this in relation to the appeal itself.
Brief Factual Background
The mother was born in 1971 and is 43 years of age.
The father was born in 1973 and is 41 years of age.
The mother says the parties commenced cohabitation in May 2004, and they separated in April 2009.
There is one child of the relationship namely, A, born in 2001. The child lives with the mother.
The mother is employed.
The father is unemployed and is a health care card holder.
Parenting orders were made by consent on 23 November 2010, but since then the dispute between the parties has been ongoing with many applications filed.
The course of proceedings before the court
In order to fully appreciate the bases of the respective applications for costs made by the parties, it is necessary to outline the course of the proceedings immediately prior to the hearing on 26 March 2013.
On 20 December 2012 the matter was set down for a three day hearing commencing on 26 March 2013. However, on 18 February 2013, the father’s solicitor sent a letter by email to the mother’s solicitor, advising that the father was not able to continue the proceedings due to his “financial situation”, and setting out a settlement proposal.
It is unclear whether the mother’s solicitor initially responded to the settlement proposal, but in any event, on 5 March 2013 the letter of 18 February 2013 was provided to the ICL by the father’s solicitor, and the ICL then arranged for the matter to be mentioned before his Honour on 13 March 2013.
At the hearing on 13 March 2013 the following exchange occurred between his Honour, Mr Lewis, the ICL, and Mr Kitto, the father’s solicitor:
HIS HONOUR: All right. Now, perhaps someone might like to tell me why you’ve asked for this matter to be mentioned.
MR LEWIS: Well, it was – David Lewis here, your Honour. I asked that it be mentioned because it’s a matter that has been set down for three days commencing on 26 March. It is a matter that was going to require three days because there are a number of expert witnesses involved but I asked for it to be brought on for mention before your Honour because on – at the same time I asked it to be brought on I received some notification from both parties that would indicate that this matter either won’t proceed or will only proceed for perhaps at most half a day. I’ve asked it be brought on before your Honour because I had reserved Mr [M] to come down to Launceston on that day and he has had to put aside appointments and also your Honour had three days in the list tied up.
HIS HONOUR: All right. Well, is that the case? Start with Mr Kitto. He’s here at the bar table. Is that the case that it’s not going to take up three days?
MR KITTO: That’s so, your Honour. We’ve actually indicated to the other side that we weren’t going to really assume I suppose the response that was filed with the court and that we were more or less agreeing really with what was proposed by the ICL in his document dated 4 December last year, a document that was handed, I think, to me on the day and it’s a case outline that the ICL prepared and I believe it has been filed with the court although it doesn’t have a stamp on it, or the copy I have doesn’t have a stamp on it. In other words, there wouldn’t be any challenge to the 9/5 block time as it currently is, that the holiday periods would be shared equally, that the other arrangements would remain in place. The only request was that the restraints be removed as suggested by the ICL in his document at paragraph 19 on page 2 of the case outline.
So we wrote to them on 18 February, that’s McVeety and Associates and sent a copy to the ICL on 5 March after a discussion by telephone with the ICL and it was – we wrote early, your Honour, so that in effect the court time could be freed up and not wasted on a three-day hearing when we weren’t really challenging, I suppose, the arrangements that are currently in place which is significant.
HIS HONOUR: I mean, my understanding, and I’m not trying to complicate issues, I’m just trying to get a handle on it, so to speak. My understanding of the matter was that it really went away for a bit of tweaking of the orders and I think I used that word in my decision quite a few times because counsel had used the words that the orders needed tweaking. There was some confusion about the holidays, as I recall, that both parties seemed to agree that the orders weren’t right and that they needed to be – there needed to be some sort of adjustments. If everybody has got the view that it’s not going to take three days, and you’re not going to require Mr [M] to come here, well I think he needs to be told that reasonably quickly, doesn’t he?
MR LEWIS: Yes, your Honour. Your Honour, could I indicate that it’s my intention to distribute draft orders among the parties. I’m hoping that at least by 26 March that if there are any issues that remain they’re very discrete issues. For example, I don’t take any part in this, but there might be a question as to costs or something of that nature but I believe from the correspondence that I’ve received that the matter can be substantively resolved.
HIS HONOUR: Well, look, I will let it hold its place but I think, Mr Lewis, you should tell your expert witnesses they can stand down, so to speak - - -
MR LEWIS: Thank you, your Honour. Can I - - -
HIS HONOUR: - - - and they needn’t be here.
(Transcript 26.3.2013, page 2, lines 28-47, page 3, lines 1-38)
Later that same day the mother’s solicitor sent proposed Minutes of Order to the father’s solicitor and the ICL. Those Minutes provided for the maintenance of the restraining orders that the father wanted removed.
Thereafter, until 25 March 2013 the ICL was not told anything by the father’s solicitor as to the father’s response to the orders proposed by the mother. It also seems that apart from the mother’s solicitor on 20 March 2013 confirming with the father’s solicitor the mother’s position in relation to the orders sought, there was no communication between the father’s solicitor and the mother’s solicitor as to those orders.
On 25 March 2013 the father’s solicitor apparently informed the ICL that the father did not agree with the orders proposed by the mother to the extent that they provided for the restraints to remain. The ICL then responded by email putting his view that the restraints should remain.
That then was the state of play when the hearing was called on by his Honour on 26 March 2013. His Honour was informed of the issues in dispute and
his Honour then enquired whether it was “generally agreed that it will be arguments just on the papers?” There was then an exchange between bench and bar as to that issue, with each party indicating that they wished to present further material to the court. That material apparently related to at least one of the restraints which the father sought to be removed. In any event, it was eventually agreed that the further material could be handed up by consent, and thus it seemed that the hearing could proceed on the papers.
Significantly though, at that point the father’s solicitor indicated to his Honour that “the premise for aborting the trial” had fallen away, given that as he put it, the ICL had altered his position from agreeing in December 2012 in a case outline document that the restraints should go, to requiring that they remain. However, his Honour continued to hear submissions from both solicitors and the ICL as to the restraints, and identified the documents that were relied upon by each party in relation to the dispute about the same.
The hearing then reached a point where the solicitor for the father sought to introduce a document from “a new expert”, seemingly in response to the opinions expressed in the expert reports already before the court. This was objected to and his Honour then asked the following legitimate question of the father’s solicitor:
HIS HONOUR: I suppose it comes down to this, Mr Kitto, does your client want a trial? Does he want to be heard? Does he want to get into the witness box, have the mother in the witness box over orders 13, 14, 15 and a mobile telephone?
(Transcript, 26.3.2013, page 30, lines 26-28)
Eventually the father’s solicitor responded by saying that there was never any agreement on his client’s part that the hearing would proceed on the papers, that the basis for aborting the trial, namely that the dispute in relation to the restraints was thought to be resolved, was no longer the case, and there must be a trial with cross-examination.
That stance taken by the father’s solicitor led to the matter being adjourned for a two day hearing, and the parties making their respective applications for costs thrown away.
Reasons for Judgment delivered on 26 March 2013
His Honour commenced his reasons for judgment by setting out the amount of costs sought by the mother, by the ICL and by the father. The ICL sought costs fixed in the sum of $2,080, but subsequently amended this amount to $1,910, noting that the previous amount sought was incorrect and the total grant of legal aid was in fact $1,910. The mother sought costs as provided for in Schedule 1 of the Federal Circuit Court Rules 2001 (Cth), in the sum of $3,238. The father sought costs against the ICL in the sum of $1,910 and against the mother in the sum of $2,692.
His Honour first found that as a result of the father’s conduct there should be no costs awarded in his favour. At [7] his Honour found that the hearing had “been a bit of a dog’s breakfast” and that had “come about primarily because the father’s position appears to have been a bit of a moving feast”.
His Honour then addressed the sequence of events not only on the day of the hearing, but also in the lead up to the mention on 13 March 2013, and what was said on that day.
His Honour then said this:
14.… Basically we have wasted a half day and, as I see it, all of that is laid fairly and squarely at the feet of the father. It is not the mother who has wasted the half day. It is not the ICL who has wasted the half day. So in that respect, it falls fairly and squarely into that part of section 117(2A) that refers to “conduct”.
His Honour then gave consideration to the financial circumstances of the parties, observing that neither party was in a financial position to afford lawyers, albeit they both had legal representation.
At [16] his Honour found that the ICL was funded by Legal Aid but that was not a “shield against an order for costs” either in favour of an ICL or a litigant who may be in receipt of legal aid funds, given how far the legal aid budget must be spread and when “wasted on one person, it means [funds] are not available for someone else”.
His Honour (at [17]) found that impecuniosity was not a bar to an order for costs, although it may be a factor in whether or not costs are “collected”.
His Honour then concluded as follows:
18.In my view, orders should be made because this afternoon has been a total waste of time and, as I have said, it has been a dog’s breakfast as well. That is mainly because the father’s position seems to have been changing – either changing because he has changed his mind about what cross-examination was needed or changing because it was not articulated by this counsel in any opposition to half a day listing. It was not articulated back on 13 March 2013 that he did or did not want to cross-examine, so I am of the view that the primary cause of the wasted half day is laid fairly and squarely at the feet of the father.
Grounds of Appeal
The grounds of appeal as set out in the Notice of Appeal filed on 23 April 2013 are as follows:
1.That his Honour erred in concluding that the Father was somehow at fault as a substantial factor in making the said Orders; and
2.That his Honour erred in placing either little or no weight on the fact that the Father is not working and is currently a Health Care Card Holder and therefore has limited or no financial capacity to pay such a costs Order;
3.That his Honour erred in placing either little or no weight on the fact that the Mother is working and does have financial capacity to pay a costs Order;
4.That his Honour erred in placing either little or no weight on the Father’s attempt to resolve the proceedings without the need for a Trial, by writing to the Parties’ Legal Representatives in or about February/March 2013 and by relying upon the Independent Child’s [sic] Lawyer Case Outline filed with the Court on or about the
5th December, 2012, and by suggesting that the proceedings be resolved, inter alia, on the basis of the proposed Orders suggested by the Independent’s [sic] Child’s [sic] Lawyer at paragraph 19 of his aforementioned Case Outline;5.That his Honour erred in all the circumstances in concluding that it was just to make a costs Order against the Father and not the other way around;
6.In the alternative, that his Honour erred in all the circumstances given the evidence available to the Court, in departing from the usual position regarding costs in favour of the Mother, that is, that each party shall bear his or her own costs.
Order Sought
The father seeks the following order in his Notice of Appeal filed 23 April 2013:
1.That [MS BEST] (“the Mother”) and David N Lewis (“the Independent Child’s [sic] Lawyer) (LEGAL AID COMMISSION OF TASMANIA) is to pay the costs of [MR WALLIS] of and incidental to the Hearing conducted on the 26th March, 2013 before his Honour Federal Magistrate [sic] Roberts of the Federal Magistrates [sic] Court of Australia fixed in the sum of $3,238.00 or such other sum as the Court sees fit to be apportioned between the said Mother and the said Independent Child’s [sic] Lawyer as the Court sees fit.
Discussion
In his written summary of argument the solicitor for the father failed to address the grounds of appeal. Instead, his submissions were general in nature and were directed to the relevant factors to be taken into account in determining an application for costs. The solicitor for the mother, and the ICL, did though specifically address the grounds of appeal and I will do likewise.
It is convenient to address Grounds 1 and 4 together, as well as Grounds 2 and 3. Grounds 5 and 6 are not proper grounds of appeal. They comprise general assertions, or conclusions, that do not identify how it is that the trial judge is said to have erred such as to require appellate interference. Thus I do not propose to say anything further about these “grounds of appeal”.
Grounds 1 and 4
Plainly the issue here is whether his Honour erred in finding that the hearing time was wasted because of the father’s conduct. The father submits in effect that it was the ICL’s fault and not his. That of course begs the question on what possible basis could the father have succeeded in obtaining an order for costs against the mother. In my view, no basis has been demonstrated, and thus there can be no error by the trial judge in dismissing the father’s application for costs against the mother.
During his oral submissions the father’s solicitor initially suggested that the conduct of the father, as found by his Honour, could not be relied on by his Honour because it was not conduct within s 117(2A)(c) of the Family Law Act 1975 (Cth) (“the Act”). There are two difficulties with this submission. First, it was not the subject of a ground of appeal, and secondly, although it would seem from his reasons that his Honour was referring to paragraph (c), the father’s solicitor ultimately agreed that in any event it was conduct which could clearly be caught by paragraph (g). Thus, I do not need to say anything further about this issue.
In relation to the conduct of the father, the sequence of events commenced with the father’s solicitor’s letter of 18 February 2013, but of course that was not motivated by any concession that the orders sought by the mother were those that should be made, but purely because of the father’s financial circumstances.
Importantly, the father’s solicitor did not send that letter to the ICL until the ICL requested it, and it was the ICL who then arranged the mention before
his Honour on 13 March 2013. The failure to send the letter to the ICL appears somewhat strange given that the father says he was relying on what the ICL put in his outline of case document filed in December 2012, in proposing that the restraints be removed.
In any event, on 13 March 2013 the father’s solicitor clearly indicated to
his Honour that the issues in dispute had narrowed, and that there was no need for a three day hearing any longer.
Further, as the ICL pointed out, there was no dissent by the father’s solicitor to his Honour saying that the ICL could cancel the expert witnesses, and the father’s solicitor agreed to the matter being listed for half a day on 26 March 2013. I observe that there was also no indication from the father’s solicitor that he would want to introduce new evidence, and/or cross-examine any party or witness, and I find that it was reasonable for his Honour to assume that that hearing would proceed on the papers.
Immediately thereafter the father’s solicitor was put on notice by the mother’s solicitor that there was still a dispute as to whether the existing restraints were to remain or not. Despite this, there is no evidence, and indeed it is not suggested, that the father’s solicitor at any time prior to 26 March 2013 indicated to the court, or to the wife’s solicitor, or to the ICL, that more than half a day would be required, that new evidence would be presented, and there would be a need for cross-examination.
The father’s solicitor complains that it was only on 25 March 2013 that the ICL indicated that the restraints should remain, unlike the position he put in his case outline. The father’s solicitor suggests that this had the effect of aborting the premise on which the hearing on 26 March 2013 had been set, and inevitably leading to the need for a lengthy trial with cross-examination.
However, what that submission overlooks is that the mother was not agreeing to the removal of the restraints, and there was thus no certainty that even if the ICL had continued to support the father’s position, that that would have been the outcome.
Further, nothing whatsoever was said by the father’s solicitor at the commencement of the hearing on 26 March 2013 to the effect that, because of the ICL’s position, the hearing could not proceed. Indeed, the initial exchanges between bench and bar were all made on the basis that the hearing could proceed that day.
Although his Honour’s enquiry as to whether it was agreed that the hearing would take place on the papers was not directly answered by the father’s solicitor, the apparent impediment to that, namely the need to present further material, was resolved, and there was no suggestion that the hearing could not then proceed on the papers. In fact, I find that it was disingenuous for the father’s solicitor to say to his Honour when it became apparent that there needed to be a trial, that there had never been any agreement for the hearing to proceed on the papers.
There can be no question that the cause of the hearing time being wasted was the father’s change of position during that hearing. As I have found, it certainly was not the fault of the mother, and in my view it was not the fault of the ICL. Apart from what I have said above about this, as the ICL pointed out, he was perfectly entitled to change his position from that set out in his case outline of December 2012. Indeed, what also appeared in that outline was the rider that “[a]ll of the above is submitted subject to the evidence. There is no easy answer to this matter.” In other words, as the matter progressed the ICL would continually revisit his position, and he provided his final recommendation in his email of 25 February 2013.
There is no merit in Grounds 1 and 4, and plainly there is also no basis for the father to have obtained an order for costs against the ICL or against the mother.
Grounds 2 and 3
These are both weight challenges. In other words, it is not suggested that
his Honour has exercised his broad discretion by reference to erroneous facts, or that he had regard to extraneous or irrelevant facts or circumstances, or failed to have regard to relevant facts or circumstances. And no error of principle has been demonstrated. Instead, what is in effect suggested is that the decision exceeded “the generous ambit within which reasonable disagreement is possible” (Norbis v Norbis (1986) 161 CLR 513, per Brennan J at 540), and is plainly wrong.
In Gronow & Gronow (1979) 144 CLR 513, Stephen J said this at 519-520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Here, the father has not demonstrated that his Honour was “plainly wrong, his decision being no proper exercise of his judicial discretion”. His Honour was well aware of the circumstances of both parties and it is apparent from his reasons that he took them into account appropriately in making the orders for costs. His Honour was perfectly correct in proceeding on the basis that impecuniosity is no bar to making an order for costs where there are sufficient other circumstances that justify such an order. Here, the conduct of the father clearly justified the orders for costs.
There is no merit in these grounds of appeal.
Conclusion
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
Costs
At the conclusion of the hearing I sought submissions as to costs depending on the result of the appeal.
If the appeal was unsuccessful then the mother and the ICL sought orders for costs. In that event the father opposed those orders being made, and proposed that there be no order as to costs.
The appeal has been wholly unsuccessful and thus there should be orders for costs as sought. The father’s impecuniosity is no bar to there being such orders where the circumstances otherwise justify it.
There needs to be one rider though to an order that the father pay the costs of the mother of and incidental to the appeal. Strictly, that would entitle the mother to have her costs of any interlocutory proceedings, but that should not be the case here. On 11 November 2013 the mother brought an application seeking an order that the father provide security for the costs of the appeal. That application was heard and determined on 16 December 2013, and it was dismissed. As to the costs of that application, the father’s solicitor sought an order that they be costs in the cause, and that order was made. That order would enable the mother, as the successful party in the appeal, to have her costs of that interlocutory application. However, given the result of that application, that would be inappropriate. Thus, I will frame the order for costs to exclude the costs of and incidental to that application.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
5 September 2014.
Associate:
Date: 5 September 2014
0
3
0