Winter and French
[2014] FamCAFC 215
•11 November 2014
FAMILY COURT OF AUSTRALIA
| WINTER & FRENCH | [2014] FamCAFC 215 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time in which to file a notice of appeal – Where the applicant seeks to appeal a costs order resulting from an unsuccessful application to stay parenting orders changing the primary residence of two children – Where the applicant has failed to demonstrate that the proposed appeal has sufficient merit – Application dismissed. |
| Gallo v Dawson (1990) 93 ALR 479 Winter & French [2013] FamCAFC 75 |
| APPLICANT: | Ms Winter |
| RESPONDENT: | Mr French |
| FILE NUMBER: | BRC | 7013 | of | 2010 |
| APPEAL NUMBER: | NA | 53 | of | 2014 |
| DATE DELIVERED: | 11 November 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 7 November 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 December 2013 |
| LOWER COURT MNC: | [2013] FCCA 2433 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Applicant appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Respondent appeared in person |
Orders
The application in an appeal filed 1 October 2014 be dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Winter & French has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 53 of 2014
File Number: BRC 7013 of 2010
| Ms Winter |
Applicant
And
| Mr French |
Respondent
REASONS FOR JUDGMENT
In an application in an appeal filed 1 October 2014, Ms Winter (“the mother”) seeks an extension of time in which to appeal a costs order made by Judge Demack on 3 December 2013. It can thus be seen that the application for an extension of time has been filed nine months after the time limit expired for the filing of a notice of appeal. The order from which the mother wishes to appeal is:
(2)That the mother pay the father’s costs with respect to the stay application fixed in the sum of four thousand, six hundred and ninety three dollars and fifty cents ($4,693.50) with such sum to be paid within six (6) months of the date of these Orders and thereafter interest shall accrue at the applicable Family Law rate.
Background
At the conclusion of contested proceedings in relation to the parties’ children, orders were made on 26 April 2012 that the children live with their father. This involved a significant change as they had previously been living with their mother. After the order was made the mother filed, on 31 May 2012, an application for a stay of those orders. Judge Demack refused the mother’s application for a stay on 5 July 2012 and later ordered on 30 August 2012 that she pay the father’s costs of the application. The mother did not appeal from the dismissal of the stay application.
The appeal from the orders of Judge Demack in relation to the parenting orders and also in relation to the order that the mother pay the costs of the failed stay application was heard by the Full Court on 29 April 2013. The reasons and orders were made by the Full Court on 9 May 2013 (published as Winter & French [2013] FamCAFC 75) when the Full Court dismissed the mother’s application in relation to the substantive appeal i.e. the appeal against the children’s orders but in relation to the costs of the stay application the appeal was allowed and remitted for rehearing by Judge Demack. It is from the decision of the judge on 3 December 2013, again making the costs order that the mother wishes to appeal and seeks leave.
The reasons of the Full Court to which I have just referred provide sufficient background. In relation to the appeal about the costs order the reasons of the Full Court commence at [45]. In essence the appeal was allowed in this respect and remitted for rehearing to the same judge because the mother asserted at the appeal hearing that there were matters not known or not appreciated by the judge and that had they been properly understood a costs order would not have been made. Of particular significance, her Honour when first hearing the costs application did not know that the Queensland Police were to commence an investigation possibly leading to the father being charged in relation to giving false evidence in the Family Court proceedings. The Full Court decided based on this further evidence tendered at the appeal that the best course was as follows:
51.That is, it can readily be accepted that if her Honour had known, when determining costs, that there remained an open question as to whether the father had provided false evidence in respect of the substantive application in relation to which costs were being agitated, that would have been a significant consideration in the discretionary determination.
52.Of course, the father is entitled to be presumed innocent of the charge unless and until he is convicted of it, but we accept the submission of counsel for the mother that the gravity of the conduct the subject of the criminal proceeding should prevent the making of a costs order in favour of the father whilst that question goes unresolved.
53.We will, then, allow the appeal against the costs order made by her Honour on 30 August 2012 and remit the matter for rehearing by her Honour at a date and time to be fixed, following the conclusion of the criminal proceedings involving the father.
Draft Notice of Appeal
The mother seeks to appeal the costs order essentially on the following grounds:
1.That the father in his affidavit of 29 June 2012, filed in the stay proceedings, gave false and misleading evidence and that the judge failed to properly consider this evidence in coming to her decision about costs.
2.That the father’s solicitor had been struck off and therefore could not render a bill for which the father would be liable.
Apart from the question of the bill from the father’s solicitor, the mother’s case very much depends on the extent to which the judge relied on the father’s affidavit when she made the decision in relation to refusing the mother’s application for a stay and consequently the order for costs. It is thus necessary to have regard to that judgment.
In addition to the draft notice of appeal the mother has also filed an affidavit on 1 October 2014 and a summary of argument on 3 November 2014.
Reasons for refusing the stay and ordering costs
In the reasons delivered by Judge Demack on 5 July 2012 the background to the matter was set out at some length and it was explained that the mother was particularly concerned that the orders which had been effected involved separation of the children from a half sibling. The judge did not set out the evidence of the father about which the mother complains. It is not apparent from the reasons that the judge relied at all on the affidavit of the father about which the mother now complains. In the hearing in relation to this application for an extension of time, the mother produced a copy of the affidavit of the father sworn by him on 29 June 2012. The judge in relation to the evidence of the parents only made reference to her substantive judgment where she made a finding that she preferred the evidence of the father to the mother which does not seem at all to be connected to the decision to refuse the stay. Of the evidence before the judge in relation to the stay the only comment made by the judge was at [38]:
Having found that it was in the best interests of the children to live with their father for the reasons which I gave in my decision, and there being few, if any, agreed facts as to what has occurred since the decision was put into effect, I cannot now find differently with respect to what outcome might be in the best interests of the children.
At the time of the refusal of the stay the children were living with their father. In the exercise of her discretion the judge concluded that there were not the circumstances necessary to order the stay.
It is also necessary to refer to the reasons for judgment of the judge in relation to the first costs order made on 30 August 2012 because in her second decision (being the basis of this application) the judge makes some reference to it. Again, it cannot be seen that the judge relied at all on any assertions made by the father in the affidavit about which there is complaint. The reason the costs order was made on the first occasion was that the mother had failed in her application for a stay.
Reasons for costs order (3 December 2014)
The judge observed that the costs issue had been remitted for rehearing on the basis that new evidence was available and of that said as follows:
19.That new evidence was with respect to it being asserted that the father had lied or given untruthful evidence to the court and that that was the subject of a police investigation. And the Court of Appeal, quite properly, with respect to them, considered that as that information was not available before me that once that referral to the police had been concluded, however the outcome, the costs application should come back to me for rehearing.
20.What has come to pass is that the police have not taken that matter any further and there is nothing before me with respect to any improper behaviour by the father or any criminal matters.
21.So that takes me back to the decision that I made in August 2012.
The mother still complains about the conduct of the father however in her own submissions she informs the court that the proceedings in the Magistrates Court of Queensland were dismissed. That being the case there was nothing further the judge could have done as the purpose of the remission was met.
The other aspect raised by the mother on the application for extension of time relates to the father’s solicitor. The judge did refer to this in the following passages of her reasons in relation to costs:
29.The one other matter which I need to confront is that after submissions had been received and concluded and after I had advised the parties that I would give a decision today, a few days after hearing their submissions, and as I was advising the parties of the time of day and that I would take them by telephone new information came from the mother through her solicitor, new facts which had previously never been before the court and which were not the subject of any evidence or any submissions. And those facts related to the solicitor on the record for the father as at August 2012.
30.The costs order that I made was made on 30 August 2012. I had received submissions on 5 July 2012 and 28 August 2012. The solicitors for the father on the record as are on the face of my judgment are [K] & Associates and the mother appeared on her behalf.
31.The evidence that came from the Bar Table on behalf of the mother was that the solicitor for the father, [Ms K], had as at 30 August 2012 been struck off as a legal practitioner. And it was said that that had happened some time earlier in August 2012. And it was then submitted, albeit briefly, that that would have a bearing on that solicitor’s capacity to render an account to Mr [French].
32.I invited the mother through her solicitor to seek and receive an adjournment of this costs application so that evidence could be put before the court about this issue, because there is no evidence before the court and I certainly do not take judicial notice of someone apparently being struck off. It is not something which is within my knowledge and I have no knowledge of Ms [K] and to whether she was struck off or not.
33.And some submissions as to what that might mean bearing in mind the timeline of the hearing date of 5 Jul 2012, the last submission on 28 August 2012 and my delivery of my judgment on 30 August 2012. The invitation to seek an adjournment so that evidence and submissions could be made was rejected on the basis that further costs for the mother would incur.
34.So to be plain, there is no evidence before the court with respect to Ms K] not being in a position to render a fee and there is nothing further that I can do with that information. It is a most unsatisfactory state of affairs.
Ultimately, Judge Demack ordered that the mother pay the costs for the following reasons:
35.So my decision is this. I repeat and rely upon the entirety of my decision of 30 August 2012. I note that the mother’s financial position is poorer than it was then, but I do not consider that that outweighs the other matters which were otherwise set out in that decision.
36.The father was wholly successful. The stay application put him to even further expense. And, as I say, at paragraph 23 the stay was brought about six weeks after the children had moved into the father’s care. For all of the reasons as set out in my decision of 30 August 2012 I am satisfied that these Orders should be made.
Principles – Extension of time
The principles in relation to applications for an extension of time are well settled (see Gallo v Dawson (1990) 93 ALR 479). The main object is to ensure that time limitations do not prevent the proper administration of justice.
In this application it is not necessary to consider the question of adequate explanation for delay and prejudice to the respondent. It is quite clear that there is little merit in the proposed appeal and that leave should not be given.
In relation to the question of the respondent being obligated to pay the solicitor, this matter was raised and an opportunity given by the judge to adjourn the matter to provide further information. The applicant did not take this opportunity. In any event, the respondent is now pursing the application for these moneys by way of enforcement proceedings. In the hearing before me the respondent said that he was able to prove that he had paid his solicitor the money associated with the costs orders. If he has not paid, or cannot prove it, the order is unlikely to be enforced.
As to the issue of what the respondent said in an affidavit filed to resist the application for a stay order, it is not apparent that the judge relied on it at all. In addition, as the applicant states in her written submissions, the prosecution brought by the police in the Magistrates Court of Queensland was dismissed.
There is no merit in the proposed appeal and thus the application should be dismissed.
The parties appeared for themselves so there is no issue as to costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 11 November 2014
Associate:
Date: 11 November 2014
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