Benard & Eames and Anor [2020] FamCAFC 47 (5 March 2020)

Enough about COVID-19, here is something even scarier......costs orders against a member of our brethren.

In the case of Bernard & Eames a solicitor - who has remained nameless - ran a number of different cases for a number of different clients as apparently a bit of an expert in child support matters (which by the way, if there was such an expert, that expert would make a killing!). His applications to the Federal Circuit Court, in many matters, sought orders regarding child support. The solicitor acted for Mr Eames.

In the instant case, Mr Eames sought orders to essentially offset his liabilities to his children from his first marriage against obligations he had to support his step children of his current relationship (he was not separated from his current spouse).

The Orders sought were:

1. From the date of these orders, in relation to [the children] any monies paid by the [second respondent] to third parties for purposes directly related the children’s transport, medical, education and living costs (up to $50 per week) be credited at an appropriate percentage against any child support otherwise payable by the [second respondent] to the [first respondent] regarding the said children.
2. The [second respondent] be declared to have had a lawful duty to maintain K and L [the step children who were aged 12 and eight respectively at the time of the hearing] from 1 July 2015 onwards and that duty be duly quantified.

These orders are curious and interesting and cutting-edge - there are authorities which supported the case law in relation to these orders (so Mr Eames said on advice of his solicitor)

The first order was sought pursuant to s 123 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) and the second under s 66M  (which you may recognise as the "step-parent provisions" ) of the Family Law Act 1975 (Cth) (“the Act”).

The solicitor who sought these Orders, relied on a string of cases from the Federal Circuit Court of Australia (or the Federal Magistrate's Court) which suggested that Orders of this nature could be sought. There were authorities from the Family Court of Australia which followed a principle that orders of this nature could not be sought.

This case was brought at first instance before the Federal Circuit Court of Australia. The first instance judge in this case said of the application that it was brought without merit and so should be struck out - it had no reasonable prospects of success. The judge relied on authority from the Family Court of Australia and preferred that authority to the two cases from the Federal Circuit Court.

That decision was appealed. The Full Court found in Eames & Eames [2018] FamCAFC 204 (1 November 2018) that:

1. The Appeal was without merit and should be dismissed;
2. That judges of the Family Court of Australia and Federal Circuit Court of Australia are bound by "judicial comity" - mutual politeness between judges to each other's decisions and if at an equal level, judges should not tear each other's decisions apart unless the judgement is "clearly wrong" - though Federal Circuit Court judges are not bound to follow the Family Court of Australia.
3. The judge at first instance was right to follow the precedent set by the Family Court of Australia.

The matter was sent back to the judge at first instance to determine the issue of costs (i.e. should the solicitor pay the costs of the appeal and not the appellant client).

The trial judge determined that a costs order should be made against the solicitor.

The solicitor appealed - one of the grounds being that he should not have to pay given he made a claim for his client when there was a divergence of authorities that led to him bringing the proceedings. The problem with this ground of appeal was that the divergence of authority was cleared up by the time the costs order was made (because of the appeal case the solicitor brought for his client and so he could not argue that appeal ground!).

Order - The appellant pay the costs of the first respondent of and incidental to the appeal fixed in the sum of $18,000.

This case may serve as a warning to bringing court cases without a barrister briefed but also with relying on divergent authorities on a single technical point (even if you are an expert).