Father Opposes Appeals Filed by the Mother Against Magistrate Orders
Emerson & Greening [2021] FedCFamC1A 23 (29 September 2021)
The mother filed three appeals against orders made by a Family Law Magistrate of the Magistrates Court of Western Australia. The appeals were opposed by the father who also applied for costs because the appeals should have been discontinued far earlier than they were, given there was no utility in them proceeding once the final hearing of the substantive proceedings had been expedited. The Court, in ruling upon this case, assessed merits and the conduct of the appellant in bringing the appeals.
Facts:
On 11 March 2021, interim parenting orders were made suspending the previous live with and spend time with orders providing for the child the subject of the proceedings to live with the father, for the latter to have sole parental responsibility, and for the matter to be adjourned to 18 March 2021. The mother filed three appeals namely WEA 7 of 2021 on 22 March 2021, WEA 8 of 2021 on 24 March 2021, and WEA 13 of 2021 on 26 May 2021. The appeals are against the orders made by a Family Law Magistrate of the Magistrates Court of Western Australia on 11 March 2021 and 18 March 2021, and one of the orders made by another of the Family Law Magistrates of the Magistrates Court of Western Australia on 14 May 2021. The father opposed the appeals.
On 13 July 2021 the appeals were all discontinued by the mother. On 21 July 2021 the father made an oral application for costs amounting to $15,906.49 purportedly calculated on a party/party basis in accordance with Schedule 3 to the former Family Law Rules 2004 (Cth). The basis of the application for costs was that the appeals had no merit and should have been discontinued far earlier than they were, given there was no utility in them proceeding once the final hearing of the substantive proceedings had been expedited. On 24 March 2021, the mother filed an application seeking the recusal of the Magistrate, who made the first two sets of orders, a stay of those orders, and the discharge of the Independent Children’s Lawyer (“ICL”).
On 28 April 2021, the Magistrate recused himself and referred the balance of the application to the other Family Law Magistrate. The father then sought orders restraining the mother’s solicitor and counsel from acting for her. On 3 May 2021, the newly appointed Magistrate advised that he could not recommence the final hearing in the week of 20 September 2021 if the father’s application to restrain the mother’s solicitor and counsel from acting, and the mother’s application seeking discharge of the ICL, were pressed. On 14 May 2021, the father’s application was listed for hearing on 23 September 2021, the balance of the matters were adjourned generally, and supervised time was ordered.
On 18 May 2021, the listing of the hearing of the father’s application was changed from 23 September 2021 to 25 June 2021, and on that basis the Magistrate advised that the final hearing could resume on 13 September 2021. That date of 25 June 2021 was changed administratively to 11 June 2021. The respondent relies on the conduct of the appellant in bringing appeals that had no merit and in pursuing them when there was no utility in doing so given the listing of the final hearing. The appellant argues that the appeals had merit and it was reasonable to maintain them until the listing of the final hearing was confirmed.
Issue:
Whether or not the appeals of the mother had merit.
Applicable law:
Family Law Act 1975 (Cth) s 4(1), s 94(1) - provides that an appeal can only be brought from a decree.
Family Law Act 1975 (Cth) s 117 - requires the Court to take into account the financial circumstances of the parties in making cost orders.
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64 - authority that impecuniosity can be no bar to making an order for costs where there are circumstances that otherwise justify an order being made.
Analysis:
Although there were real concerns with the second appeal, given that the orders the subject of that appeal were consequential upon the orders the subject of the first appeal, and that there were no obvious concerns about that appeal, and further, that those two appeals ran together, there would have been minimal costs incurred in relation to the second appeal over and above the costs incurred in addressing the first appeal. An appeal can only be brought from a decree. However, as to the third appeal, the order appealed was not a decree; it was not decisive of the rights of the parties. The third appeal was an appeal which should never have been brought.
On 18 June 2021, on the basis of the final hearing resuming on 11 October 2021, the mother’s senior counsel indicated to the court that the appeals would not be proceeding, and Notices of Discontinuance would be filed once that date was confirmed. That confirmation came on 28 June 2021, when the court advised the parties of the listings of the applications and of the final hearing. In considering the Amended Schedule of Costs filed on 20 July 2021 and relied on by the father, there are minimal costs that could be claimed to be incurred on a party/party basis between 2 July 2021 and 13 July 2021. The Court does not consider it unreasonable to attempt to negotiate the question of costs.
Conclusion:
The Court concluded that in relation to the first and second appeals no costs issues can be said to arise for the respondent from the concerns about the merits of the second appeal given that the orders the subject of that appeal were consequential upon the orders the subject of the first appeal and those appeals ran together. The Court further concluded that the appeals should have been discontinued as soon after 28 June 2021 as possible. It was not unreasonable that the Notices of Discontinuance were filed on 13 July 2021. The respondent can only claim minimal costs incurred on a party/party basis between 2 July 2021 and 13 July 2021. The Court ordered the appellant mother to pay the costs of the respondent father of and incidental to appeal no. WEA 13 of 2021 fixed in the sum of $1,400.