ZLOTNIK & GERASIMOV
[2016] FamCAFC 62
•28 April 2016
FAMILY COURT OF AUSTRALIA
| ZLOTNIK & GERASIMOV | [2016] FamCAFC 62 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for extension of time in which to file an appeal – Where the appellant seeks to appeal orders made by consent – Where there are no circumstances to vitiate consent – Whether the Court should exercise its discretion to allow the extension of time – Where the appellant seeks to file an appeal after significant delay – Where the appeal must fail and is futile – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Circumstances justifying order – Where no evidence of parties’ financial positions adduced – Where appellant wholly unsuccessful – Where appellant failed to comply with the Family Law Rules – Where costs order made against appellant. |
| Family Law Act 1975 (Cth) ss 62B, 117 |
Family Law Rules 2004 (Cth) rr 10.15, 15.44, 15.45, 15.46
Allan and Ors & Allan and Ors (2014) FLC 93-606
Gallo v Dawson (1990) 93 ALR 479
Harris v Caladine (1991) 172 CLR 84
Jackamarra v Krakouer and Anor (1998) 195 CLR 516
Ledarn & Ledarn [2015] FamCAFC 220
Robinson & Willis (1982) FLC 91-215
Sedrak v Carney and Anor [1999] 3 VR 95
| APPELLANT: | Mr Zlotnik |
| RESPONDENT: | Ms Gerasimov |
| FILE NUMBER: | SYC | 503 | of | 2015 |
| APPEAL NUMBER: | EA | 25 | of | 2016 |
| DATE DELIVERED: | 28 April 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 31 March 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT ORDERS MADE: | 6 May 2015 |
REPRESENTATION
THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Morris Alexander & Nelson Barristers & Solicitors |
Orders
The Application in an Appeal filed by the appellant on 22 February 2016 is dismissed.
The appellant is to pay the costs of the respondent of the application as agreed or in default of agreement as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zlotnik & Gerasimov 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 SYDNEY |
Appeal Number: EA 25 of 2016
File Number: SYC 503 of 2015
| Mr Zlotnik |
Appellant
And
| Ms Gerasimov |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 22 February 2016 Mr Zlotnik (“the father”) seeks an extension of time in which to lodge an appeal against consent parenting orders made by Rees J on 6 May 2015. On that day, in parenting proceedings between the father and Ms Gerasimov (“the mother”), the primary judge made a number of interim orders including an order appointing Dr E as a single expert to prepare an urgent report for the assistance of the court. The matter was then adjourned for further consideration of the wife’s application for interim parenting orders. The father seeks an extension of time in which to appeal against the orders appointing Dr E as the single expert, the order that he pay one half of Dr E’s costs and the order standing the matter over for further consideration.
In order to understand the father’s application it is necessary to give some background to the matter. This has largely been taken from the judgment of the primary judge, given on 5 August 2015 after the matter had returned to her following the receipt of Dr E’s report.
The parenting proceedings concern the parties’ son (“the child”), who was born in 2012 and was thus just three and a half years old at the time the proceedings were before the trial judge.
The parties had separated in February 2013 when the child was a little over one year old. The primary carer of the child has always been his maternal grandmother who has looked after him since his birth. In fact the primary judge noted that the maternal grandmother and the child have only been apart for six nights since the child was born.
The maternal grandmother is Russian. She currently has a three year parent visa which enables her to stay in Australia for 12 months. She is then required to leave Australia for six months before she can return for another 12 month stay.
Thus, in May 2012, when the child was less than five months old, the maternal grandmother returned to Russia with the mother and the child. They returned to Australia in September 2012.
In May 2013 the maternal grandmother returned to Russia with the mother and the child. The mother stayed until June 2013 and the child returned with the maternal grandmother in September 2013.
Again in April 2014 the maternal grandmother returned to Russia accompanied by the mother and the child. The mother stayed until 15 May 2014. The maternal grandmother and the child returned to Australia on 27 August 2014.
On each of these occasions the father consented to the child returning to Russia and staying there with the maternal grandmother.
In 2015 the mother suggested that a similar course be followed. She proposed to leave Australia with the child on 26 June 2015. She would return on 8 August 2015 and leave the child with the maternal grandmother in Russia until December 2015. The father did not agree with that proposal and proceedings were commenced by the mother so that the court could determine the dispute between them.
The matter came before the primary judge on 6 May 2015 in a judicial duty list. The mother was represented by counsel and the father appeared for himself.
At the outset, after her Honour had been informed of the nature of the dispute, her Honour informed the parties that she thought the decision was a very important one for the child and that in order to determine the dispute she “would like to have the assistance of somebody who is trained in child psychology to help me to work out what the right thing to do is”. Her Honour raised the possibility of whether a privately funded family report could be obtained quickly.
Her Honour was then informed that it was likely there would be consent orders to enable the mother and the child to travel to Russia for some six weeks.
After the lunch adjournment the primary judge was informed of two things. First, Dr E was prepared to provide a report and for that purpose he could see the parties on 26 May. Secondly, consent orders were proposed for the child to travel with the mother to Russia for the period 26 June 2015 until 8 August 2015 and for the mother to do all acts and things necessary to ensure the child was returned to the Commonwealth of Australia no later than 8 August 2015. The primary judge made those orders.
The matter then turned to the proposed report and the following exchange took place:
HER HONOUR: And is there any agreement, Mr [Zlotnik], about seeing Dr [E] and each of you paying for half of his report?
MR [ZLOTNIK]: The counsel just informed me about that five minutes ago before this hearing. Me – I ask why this is required.
HER HONOUR: Because I’m not prepared to deal with the application, Mr [Zlotnik], in relation to your child without some expert assistance because I am very concerned about him.
MR [ZLOTNIK]: I understand, your Honour. I’m very concerned about him, too.
HER HONOUR: Well, the question is, are you sufficiently concerned about him that you’re prepared to pay half of the cost of Dr [E’s] report?
MR [ZLOTNIK]: Will I be attending the doctor?
HER HONOUR: You most certainly will. He will interview you, and he will interview the child’s mother, and he will interview the child and I presume the grandmother. And he will prepare a report that contains his recommendations about how [the child]’s life should be organised from that time onwards.
MR [ZLOTNIK]: Yes. I consent, your Honour.
The matter was then stood in the list for approximately an hour while consent orders were written out. When the matter returned the following exchange took place:
HER HONOUR: Right. Mr [Zlotnik], what’s your attitude in relation to the orders for the appointment of Dr [E].
MR [ZLOTNIK]: Quiet please. Your Honour, I sincerely apologise to you for having to draw your attention again to this case. In principle I have no objections to signing this appointment with Dr [E], except one minor note that there are some questions here that relate to money issues and the ability of the parents, in fact, myself to provide for the care and maintenance of the child …
Her Honour then made the following orders by consent:
5.That Dr [E] is appointed as single expert to prepare a report addressing the following matters:
6.(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect and violence
(c)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(d)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(e)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(f) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(g) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(h)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(i) the capacity of:
(i)each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(j)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(k) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(l)Any recommendations that the expert would care to make generally or with respect to the proposed period of travel for the child to Russia for a period of 5 months;
(m)Any other matters or information the expert feels the Court should be advised of after conducting interviews.
7.At least 7 days before the scheduled appointment with Dr [E] the wife’s solicitor shall cause to be forwarded to him all documents that have been filed by the parties.
8.That each of the parties make themselves, the child and other relevant persons available for interview in accordance with the directions of Dr [E].
9.That the parties shall pay one half each of the costs of preparation of the report of Dr [E].
Her Honour also made the following order:
11.That the matter is listed in the Senior Registrar’s Duty List on 23 June 2015 at 10am for consideration of appropriate parenting orders.
In due course a report from Dr E was prepared and became available to the parties and the Court. The matter came before the primary judge in another judicial duty list on 20 July 2015 and was heard on that day. Her Honour delivered written reasons on 5 August 2015 in which her Honour made an order that pending further order the child live with the mother. Her Honour varied the orders made on 6 May 2015 so that the mother was now required to return the child to Australia on 28 December 2015. Orders were made for the child to spend time with the father on his return from Russia.
On 26 August 2015 the father filed a Notice of Appeal against those orders in Appeal EA 142 of 2015. That appeal has not yet been heard. It will be necessary to return to that appeal shortly.
The father informed me that the child returned from Russia in accordance with the orders made on 5 August 2015.
Principles to be applied
The principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480-481, where McHugh J said:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the court to do justice between the parties. In doing so, the court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal.
I shall deal first with the issue of delay. Any appeal from the orders of 6 May 2015 should have been filed by 3 June 2015. The Application for an extension of time was filed over eight months later. In his affidavit in support of his application seeking the extension of time the father said:
2.After the court made orders that [the child] must be returned to Australia no later than 8 August 2015, I was convinced these consent orders are binding unless overturned through the court of appeal. I didn’t realize Dr [E]’s report of was ordered to create an opportunity for the mother to seek variation of the orders she consented to. In later correspondence the Mother Lawyer, Lou Kyle, confirmed that the only reasons her client (the mother) consented to returning [the child] to Australia on 8 August 2015 was to lift his name off the Airport Watchlist so they can get out of the country and then to vary the “return date” orders as soon as the report is out, so she can leave [the child] in Russia with his grandmother and return to Australia by herself.
3.By the time I realized what was going on, it was already too late to appeal the orders for the appointment of Dr [E]. His appointment was scheduled for end of May and there was no time left to get an appeal through the court system to prevent this from happening.
In his oral submissions the father said that at all times until 5 August 2015 he was of the view that the child would be returned on 8 August 2015 whatever the outcome of the proceedings. It was only then that he said he realised that he had not understood the role of an expert witness and that the orders of 6 May 2015 ought not to have been made. It is difficult to reconcile these statements with either the comments made by both the primary judge and the father at the hearing to which I have referred or with the form of the order itself.
The primary judge had made it quite clear to the father that she was not prepared to consider the mother’s application to have the child remain in Russia until December without the assistance of someone trained in psychology. Her Honour informed the father that Dr E would “prepare a report that contained his recommendations about how [the child]’s life should be organised from that time onwards”. The father’s response was to consent.
The orders appointing Dr E clearly spell out the steps he was asked to take, including, most specifically:
(1)Any recommendations that the expert would care to make generally or with respect to the proposed period of travel for the child to Russia for 6 months.
I do not accept that the father was unaware on 6 May 2015 that one, if not the most important, reason for the adjournment and appointment of Dr E was to assist the court with the determination of whether the child should be permitted to remain in Russia for six months. It follows that the father cannot have thought that the 6 May orders requiring the child to return in August were final and would not be the subject of reconsideration after the receipt of the report.
By way of further explanation of the delay, the father said that he had understood his appeal number EA 142 of 2015 filed on 26 August 2015 was also an appeal from the orders of the primary judge made on 6 May 2015. He said that the first three grounds of appeal in that matter were directed to those orders. Those grounds are:
1.1The trial Judge erred in law by not applying the principles laid out in rule 15.44 (1) for parties appointing a joint single expert in consultation with each other, where Dr [E] was in fact not a joint single expert, but an expert witness unilaterally and entirely appointed, instructed and hired by the respondent mother and her lawyers.
1.2The trial Judge erred by denying procedural fairness to a self-represented litigant. The trial judge did not explain to the father the applicable court rules, options and procedures (rules 15.45, 15.46) for one of the following options:
a)a joint single expert appointed and instructed by both parties,
b)a court-appointed single expert, or
c)an expert witness appointed by one of the parties.
The trial Judge also failed to explain to the father the implications of rules 15.49 and 15.51 with regards to father’s ability to appoint an alternative expert witness in the future, if a joint single expert is appointed “by consent”.
1.3The trial Judge denied procedural fairness to the father by failing to inform him that the principle of “res judicata” does not apply in the Australian Family Law and that court orders consented to by both parties can be retrospectively overturned and re-determined by application from one of the parties, subject to “new circumstances”, such as obtaining an expert witness report.
Each of these grounds appears to relate to the expert’s report in some way.
The father then said, in oral submissions, that on 29 January 2016 he attempted to file an Application in an Appeal seeking the following orders:
1.That leave is granted to exclude from the Notice of Appeal the matter of disqualification of the Honourable Justice Rees and the Appellant is allowed to appeal from the 6 May 2015 orders made by her Honour Justice Rees regarding the appointment of Dr [E], which in the subsequent hearing 20 July 2015 before her Honour Justice Rees was the main reason for the Appellant’s submission for her disqualification.
It is necessary to explain that on 20 July 2015 when the matter again came before the primary judge, the father asked her to disqualify herself. Her Honour refused to do so and Appeal EA 142 of 2015, in part, is an appeal against that refusal.
If the order sought in the Application was made, Appeal EA 142 of 2015 would effectively be converted into an appeal only against the orders of 6 May 2015. There would be no extant appeal against the orders made on 5 August 2015. Of course, to the extent that Appeal EA 142 of 2015 is an appeal against orders made on 6 May 2015, it is incompetent as that appeal was filed nearly three months after the appeal from those earlier orders should have been filed. No extension of time in which to appeal from the 6 May orders has been made in that appeal.
The proposed Application in an Appeal was not accepted for filing and the father was informed that Appeal EA 142 of 2015 was not an appeal against the orders of 6 May 2015.
The explanation of the father flies in the face of the material referred to earlier which establishes that the very purpose of obtaining the report was to determine the length of time the child would stay in Russia. It does seem that the complaint about the appointment of Dr E has its genesis in the orders made on 5 August 2015.
True it is that the father is a litigant acting for himself but the Rules apply to him as much as any litigant.
I also do not regard the explanation as to the delay until 26 August 2015 to be satisfactory. There can be no doubt about the purpose for which Dr E’s report was being obtained. In addition to the passages already quoted from the transcript on 6 May 2015 it is necessary only to add a further comment in which, immediately prior to making the orders for the appointment of Dr E, the primary judge said:
… and when we have Dr [E]’s report, a judicial officer will decide what is to happen after that.
The father’s delay since August 2015 is not satisfactorily explained. Appeal EA 142 of 2015 is not, and could not be seen as a competent appeal from the 6 May orders. It was not up to the Court to advise the father that Appeal EA 142 of 2015 was not an appeal against the earlier orders of 6 May. That should have been obvious to the father when he completed the Notice of Appeal and was required to identify the orders appealed against.
It is necessary to consider the merits of the appeal.
In a slightly different context to the present, Chernov JA said in Sedrak v Carney and Anor [1999] 3 VR 95:
16.In my view, however, as I made clear to the parties at the commencement of the hearing of this application, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondents and cause needless expenditure of public funds if the appeal were otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that what must be clearly shown before the applicant is denied the right to have his or her appeal heard, is that the appeal would fail.
This is in accordance with what the High Court said in Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at 521. There is some significance, however, in the fact that, in each of these cases, an appeal had been filed in time and the applicant was seeking to be excused from the consequences of a procedural delay in preparing the appeal for hearing. In circumstances where the appellant has properly exercised his or her right to appeal, the merits of the appeal are not as significant a consideration as they may be if the appeal has not been filed in time.
An immediate and, in my opinion, a fatal hurdle for the father is that the orders were consent orders. Whilst the making of parenting orders by consent is “no mere formality”, little more may be required (Brennan J in Harris v Caladine (1991) 172 CLR 84 at 102). In that same case, Dawson J said at 124:
… the fact that an order is sought by consent does not relieve a court, or a registrar, from compliance with the requirements of the section, but it may render compliance much less demanding. Provided that a court, or a registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met. Of course in that case their Honours were talking of final orders and not what are essentially procedural orders for the appointment of an expert witness.
The father was not represented but was given considerable time to consider the orders and expressed little hesitation in agreeing with them. An expert, whether a family consultant or other professional, would have been appointed even if the father did not consent. It was the choice of the expert and how he was to be paid that were critical. Even so, the orders were entirely unremarkable and fully within the usual course of procedural steps taken within this court.
In Robinson & Willis (1982) FLC 91-215 at 77,153-154, the Court said an appellant:
… Would have to show that in some way the magistrate was wrong in the order the magistrate made, it would seem to be a highly difficult task for the husband to demonstrate error in a magistrate who had done no more than make the orders he was asked to make by consent. Apart from such exceptional situations as submitting that the magistrate had no jurisdiction or that there was patent injustice in the form of order itself, or by seeking and being granted leave to adduce fresh evidence, it would seem almost impossible; since because of the consensual nature of the orders sought, the magistrate would have given no reasons which could be attacked …
In Allan and Ors & Allan and Ors (2014) FLC 93-606, Finn, Ryan and Austin JJ said at 79,507:
63.The fact that an order is made by consent does not, of course, make the order of any different nature from an order made otherwise. The order derives its force from the circumstance that it is a valid order made by the court in question, not from the agreement of the parties. Therefore, save for an important qualification, an order made by consent may be the subject of an appeal in the same way as any other order (see Gilbert v Estate of Gilbert (1990) FLC 92–125 at 77–839).
64.However, the “important qualification” referred to in Gilbert is of present significance: the correctness of an order may not be appealed on its merits by a party who consented to the order. Rather, that party's right of appeal is limited to vitiating grounds, such as fraud, mistake, fresh evidence, or the absence of jurisdiction…
The father does not point to any such circumstances that would vitiate his consent. He submits that a perusal of the transcript indicates that the primary judge brought psychological pressure to bear on him, forcing him to consent to the orders. He referred to the question in which he was asked if he was sufficiently concerned about the child to pay for half of the report. I do not see how that constitutes psychological pressure sufficient entirely to vitiate the father’s consent.
The father submitted that the orders were made contrary to s 62B of the Family Law Act 1975 (Cth) (“the Act”). That section provides:
If a court makes an order in proceedings under this Part, the court must inform the parties to the proceedings about the family counselling services, family dispute resolution services and other courses, programs and services available to help the parties adjust to the consequences of that order.
Note: Before informing the parties, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section 11E).
As can be seen, that section applies after orders are made and not prior to the making of the orders. This section does not assist the father. In any event, the orders made by the primary judge contained the additional pages informing the parties as to how to reach an agreement with the other party, understand their parental responsibility and adjust to and follow court orders.
The father then submitted that the appointment of Dr E was contrary to r 15.44 of the Family Law Rules 2004 (Cth) (“the Rules”) which provides that “if the parties agree” that expert evidence would be of assistance “they may agree to jointly appoint a single expert witness”. The father asserts that as he did not contact the expert or play any role in his selection the parties had not jointly appointed a single expert witness within the meaning of that rule and the court was therefore wrong to make the consent orders. The consent order is powerful evidence that the father agreed to appoint Dr E. It matters not who made the arrangements with him.
The father submits that he was not given the opportunity by the primary judge to consider the matters provided under r 15.46 and to take them into account in deciding whether to agree to the appointment of Dr E. That rule simply sets out the order the court may make. It does not apply when the parties have already agreed.
The father submitted that the trial judge should not have made the orders because the orders were contrary to r 10.15(3). Rule 10.15(1) permits a party to apply for a consent order by tendering a draft consent order to a judicial officer during a court event. Rule 10.15(1)(b) applies if there is no current case. The father’s submission was that a current case only arose after orders had been made. That is plainly wrong.
Finally, the father submitted that the orders were made contrary to s 65G because the parties had not attended on a family consultant to discuss the proposed order. That section only applies if the proposed order does not provide for a child to live with a parent, grandparent or other relative of the child or if a person other than a parent, grandparent or relative is to be granted parental responsibility. It therefore has no application in this matter.
Further, for good or ill, the report of Dr E has been obtained. Anyone who wishes may seek to rely on that report at a further hearing. There is no point setting aside the order because the report will remain in existence even if the father’s appeal is successful.
Either party had the entitlement to seek the appointment of another single expert should a further report be required or to seek the appointment of an adversarial expert, although the course to be taken will be decided by the judge hearing that application.
I therefore conclude that the father’s appeal must fail and is futile. There would be a considerable prejudice to the mother if an extension of time were granted in that she would have to prepare for and attend upon an appeal which as I have said is doomed to fail.
Finally, I refer to the public interest in appeals being dealt with promptly by litigants. In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Gummow, Hayne, Crennan, Kiefel and Bell JJ said at 213:
...Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
A second aspect of the public interest was raised by French CJ in the same case at 192:
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
Taking into account these matters, the delay and the futility of the appeal, the application will be dismissed.
Costs
The mother sought an order for costs in the event the Application was unsuccessful. Costs are governed by s 117 of the Act. The parties are to bear their own costs unless the court is of the view that circumstances justify a different order. In considering such an order the court must take into account the considerations raised by s 117(2A).
Neither party adduced any evidence of their financial position.
The wife referred to her having the benefit of a number of unpaid costs orders including an indemnity costs order made by a judge of this court in 2012. As a result of those costs orders the mother sought and obtained a sequestration order against the father who is presently a bankrupt.
When invited to make submissions about his ability to pay a costs order the father did not make any reference to his financial position other than to refer to those costs orders and his bankruptcy. He did not indicate what his financial position was or, importantly, his income or expenses.
The father was wholly unsuccessful in his application which was in any event necessitated by his failure to comply with the rules. It is appropriate that the father pay the mother’s costs of the application.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 28 April 2016.
Associate:
Date: 28 April 2016
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