Whister and Swan (No 2)
[2013] FamCAFC 135
•3 September 2013
FAMILY COURT OF AUSTRALIA
| WHISTER & SWAN (NO. 2) | [2013] FamCAFC 135 |
| FAMILY LAW – APPEAL – COSTS – Where respondent had earlier made an unsuccessful application to summarily dismiss appeal – Costs reserved – Application premature – No order as to costs. FAMILY LAW – COSTS – APPLICATION FOR COSTS OF ABANDONED APPEAL – Respondent seeks costs of appeal generally and costs of application – Where directions and orders were made requiring appellant to file an amended notice of appeal and appeal hearing expedited – Where appellant failed to file amended notice of appeal – Where appellant failed to file appeal books within time – Where respondent made offer – Where appellant sought to significantly alter offer – Appellant ordered to pay respondent’s costs of appeal and of costs application to be assessed . |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Whister |
| RESPONDENT: | Ms Swan |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid (Qld) |
| FILE NUMBER: | BRC | 20 | of | 2009 |
| APPEAL NUMBER: | NA | 3 | of | 2013 |
| DATE DELIVERED:: | 3 September 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 3 September 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 December 2012 |
| LOWER COURT MNC: | [2012] FamCA 1074 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Odyssey Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Bell |
Orders
The appellant father pay the respondent mother’s costs of the appeal to be assessed including the costs of today.
There be no order as to costs of the application filed 15 April 2013.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whister & Swan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 3 of 2013
File Number: BRC 20 of 2009
| Mr Whister |
Appellant
And
| Ms Swan |
Respondent
REASONS FOR JUDGMENT
By application filed 9 August 2013 the respondent to a now abandoned appeal, the mother, asks that the appellant pay her costs including those incurred at a previous hearing, the costs of this application and generally in response to the appeal.
The application is brought relying on r 22.53(2)(b) of the Family Law Rules 2004 (Cth) (“the Rules”).
BACKGROUND
The appellant filed a Notice of Appeal on 16 January 2013 against parenting orders made on 19 December 2012. On 25 March 2012 the mother and her lawyers attended a directions hearing before the Registrar as did the Independent Children’s Lawyer. The appellant appeared by telephone. The standard procedure was followed including the Registrar explaining particularly to the appellant, who was unrepresented, what was required of him and the effect of his failing to file documents on time. Directions were made as to the filing of the appeal books and submissions.
On 15 April 2013 the respondent’s solicitor filed an application seeking that the appeal be dismissed. The application was heard on 29 May 2013 and dismissed for reasons given on that occasion.
At the time of hearing the application for dismissal, the appeal books were not due to be filed until 12 July 2013 and summaries of argument not due to be filed until August and September 2013.
The orders made on 29 May 2013 included that the appellant file an amended Notice of Appeal by 12 July 2013, that the respondent file their summary of argument by 19 August 2013 and the ICL by 6 September 2013. This timetable was with a view to the appeal being heard in the September sittings in Brisbane. There was some urgency because the orders appealed allowed the mother to move the parties’ young child from Brisbane to Western Australia.
The Independent Children’s Lawyer opposed the respondent’s application for dismissal of the appeal. The appellant indicated that he genuinely wished to pursue the appeal. The costs of the application were reserved.
The appellant failed to file the appeal books on time, being 12 July 2013, thus his appeal is deemed to be abandoned. The appellant never filed an amended Notice of Appeal.
the application
In the affidavit of the respondent’s solicitor the history of the conduct of the appeal is explained. Apart from events to be discussed further this is not controversial.
On 1 July 2013 the appellant sent an email to the solicitors for the respondent indicating that he was “considering withdrawing my appeal”. For technical reasons this email was not received by the respondent’s solicitor until 8 or 9 July 2013.
On 11 July 2013 the solicitor sent the appellant an Offer of Settlement which was later rejected.
The offer provided that [Exhibit A]:
Our client is agreeable to your discontinuing your appeal in which case she would seek no Orders for Costs on the following basis:
1.You file and serve on us your Notice of Discontinuance no later than 4:00pm 12 July 2013 (a Notice of Discontinuance can ordinarily be filed using the Commonwealth Courts electronic portal avoiding the need to physically attend the Registry); and
2.You consent to the current Interim Orders made by Judge O’Reilly becoming Final Orders and execute Minutes of Consent (which we enclose in terms of those Orders) and provide us with a signed copy thereof no later than 4:00pm 12 July 2013.
If you do the above things our client will not seek costs against you if you discontinue your Appeal.
(original emphasis)
The appellant in his affidavit maintains that he informed the solicitors:
3.…several weeks before the appeal books were due that I was prepared to withdraw the Appeal if no costs were sort [sic]. It took many weeks for a response from the other side to be received back. Some 24hrs prior to the Appeal Books being due.
It now seems clear from the correspondence that this assertion is not correct as to the timing.
Further in his affidavit the appellant said:
4.I received a response from the other side stating they were satisfied with this provided I signed off on the current interim orders and discharged the ICL.
This is also not correct.
The reply by the appellant was sent on 12 July 2013 at 10.38. In relation to this the appellant said in his affidavit:
5.I replied within hours with some very minor alterations to the orders presented to me and an additional clasue [sic] with reference to time each parent would spend with [the child] if eithers [sic] living arrangements changed to a point where [the child] was in close proximity to both parents.
Exhibit B is an email which has attached a letter dated 11July 2013 to Odyssey Lawyers. The letter is as follows:
Could I request that you present to your client the attached proposal and seek a response?...
If you (sic) client is not prepared to agree to the attached and we are not able to come to an agreement then as you are aware the timeline for the appeal expires on 12th July 2013. This date will pass and I will be filling (sic) an application in a case requesting several things including an updated Family Report and also I will not agree to release the Independent Children’s Lawyer as there is a deal of information that would be required during this process. I stress this is not my preferred option which is why I commenced communication on the 1st July 2013 with a view to finalise this matter.
Orders proposed by the appellant were attached which mirrored those that had been sent to him by the solicitors for the respondent with the exception of orders 8(b), (c) and 9 where there were what could be described as minor alterations.
However, the appellant also included new orders 24 to 26 as follows:
24.[The child] is to remain living in [Western Australia] unless consent is agreed upon in writing by both the mother and father.
25.In the event that [the child] and the Father reside in the same area the Father spend time and communicate with the child as all parties agree but failing agreement;
a. [The child] is to spend from Wednesday after school till (sic) Tuesday before school each week with the father.
b. School holidays are to be shared equally commencing the Friday end of term and finishing the Monday the start of the preceding term. Each parent will have the child for the first week of the holidays on an alternative basis. Pupil Free days are to be shared equally on an alternate basis.
c. When the child is in the mother’s care the father shall be able to Phone/Skype contact between 6pm – 7pm each 2nd night WA time.
d. Text initiated by the child or father on [a mobile phone number].
26.When the child spends (sic) with the father he permit her to make such reasonable communication with the mother as the child may wish to initiate, and permit the child to receive communications from the mother on each 2nd night on which the child is spending time with him, between 6pm and 7pm WA time.
In my view it could hardly be said that they were minor alterations.
The ICL informed the court that she had no submissions as to costs between the appellant and the respondent and did not seek costs on behalf of the Independent Children’s Lawyer.
Costs
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that “each party to proceedings under this Act shall bear his or her own costs”. That provision is qualified by the following subsection that “If in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in so doing the court may…make such orders as to costs…as the court considers just. Section 117(2A) of the Act provides guidance as to the matters that the court might have regard to. In this case the relevant matters are:
(a)the financial circumstances of each of the parties to the proceedings;
…
(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 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.
In this application there are costs sought in relation to the appeal generally and the application of the respondent to which reference has been made seeking that the appeal be dismissed. It is necessary to deal with those applications discretely.
As to the application filed on 15 April 2013, that the appeal be dismissed, that application was unsuccessful for the reasons given on that occasion. The application was premature. Although it can now be seen that the appellant has not continued with his appeal there is no doubt at the time he filed the Notice of Appeal it was genuine and that prior to his making the decision not to file his books of appeal he had expected to pursue the appeal. The better course for the respondent would have been to wait for the filing of the books of appeal and possibly the submissions and then seek that the appeal be dismissed based on its lack of merit. In the circumstances of this case, particularly that it is a children's matter, I would not order that the respondent have the costs of that application.
As to the costs of the appeal generally and the costs of this application it is my view that the appellant should pay those costs. First, it is apparent that the appellant has put the respondent to significant cost in attending to the appeal including the occasion where it was necessary to attend at the directions hearing. It was not until the last moment that the appellant failed to file the amended Notice of Appeal and the appeal books. The appellant could have filed a Notice of Discontinuance but did not do so despite being provided with the form from the solicitor for the respondent. In addition, any attempts to resolve the matter had failed. The appellant could have accepted the offer of the respondent which would have incurred no costs, instead he sought to significantly alter the orders. It may be that the matter ultimately will be resolved between the parties but so far as the appeal is concerned, significant costs have been incurred by the respondent.
The other matter that is relevant is the parties financial circumstances. I accept that the appellant has no property although his income of some $80,000 per year as salary is not insignificant. He has apparently some liabilities which have caused him to request his superannuation fund to release monies. I also take into account that as a result of the orders made by Justice O’Reilly, the appellant has high costs related to spending time with the child.
The financial position of the respondent apparently is that she works part time and her husband earns between $40,000 and $60,000 per year as a builder. No doubt she likewise has high costs in relation to this litigation.
Overall a costs order is justified. The appellant should pay the costs of the respondent of the appeal including the costs of today. In this, I would emphasise that the appellant had failed to file the amended Notice of Appeal on time being an opportunity afforded to him after the hearing on 29 May 2013 and also failed to file his appeal books. Those costs should be assessed in the usual manner should there be no agreement between the parties.
I certify that twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 3 September 2013.
Associate:
Date: 3 September 2013
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