A and A - [2004] FMCAfam 630

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A & A

[2004] FMCAfam 630

FAMILY LAW – Procedures pending appeal from an order of this Court – Family Law Rules 2004 – stay of order pending appeal – dispensation with compliance with Family Law Rules 2004 – court’s general power to make orders under s.15 of Federal Magistrates Act 1999.

Family Law Act 1975; ss.106A, 117, 117A, 61C, 100B
Family Law Rules 2004; r. 22.12(2), 22.12(3), 22.43, 22.43(c), 22.10, 22.44, 1.12
Federal Magistrates Act 1999; s.15

Clemett & Clemett (1981) FLC 91-013
Re Evelyn (No 3) (1998) FLC 92-817
CSN & JBN (1998) FLC 92-833

Applicant:

A J A

Respondent:

G J A

File No:

MLM 6121 of 2002

Delivered on:

8 November 2004

Delivered at:

Melbourne

Hearing Date:

8 November 2004

Judgment of:

Bennett FM

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Ms L Colla

Solicitors for the Respondent:

Hunter Newns

ORDERS

That the wife’s application filed 20 September 2004 be dismissed.
That the wife make contribution to costs of the husband this day fixed in the sum of $500, such payment to be made by deduction from monies payable by the husband to the wife in February 2005.
That my reasons of this day be transcribed and a copy be made available to both parties.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 6121 of 2004

A J A

Applicant

and

G J A

Respondent

REASONS FOR JUDGMENT

(ex tempore)

This matter comes before me this afternoon having been sent out of the duty list to me because the mother, who is self represented, seeks a stay of orders which I made on 23 August 2004 in respect of which she has filed an appeal to the Family Court of Australia.
In the mother's application, which was filed on 20 September 2004 and returnable today, she seeks the following orders:
(1)Orders 3, 4, 5, 6 and 7 of the Federal Magistrates Court of 23 August 2004 be stayed pending the hearing and determination of the notice of appeal filed at the Family Court, Melbourne Registry on 20 September 2004.
(2)In the alternative, orders 3, 4, 5, 6 and 7 of the Federal Magistrates Court of 23 August 2004 be dismissed.
(3)In the alternative, a hearing de novo be granted.
I do not regard paragraphs (2) and (3) of the mother’s application to be competent applications with the consequence that I will deal with this matter as the mother’s application for a stay of some of my orders pending the appeal.
I am advised by the mother that the appeal will be heard by the Honourable Justice Kay at the end of January 2005.
By way of background, on 23 August 2004 these parties came before me with applications arising under Part VII of the Family Law Act 1975. The parties sought specific issues orders in relation to the one child of the marriage who is still under the age of 18, being S D A, born 5 April 1989. I made orders which facilitate the husband having access to school reports in relation to S on a retrospective basis, unhindered by the wife and also provide that, in the event that the wife fails to execute documents to give effect and validity to the order, that pursuant to s.106A of the Family Law Act those documents be executed by a proper officer of this court in the name of the wife. There is also an order that the wife keep the husband advised of any major illness of S, such advice to be given within 48 hours of a health incident occurring with a notation that nothing in the order requires the child to have contact with the father during his illness or otherwise.
My reasons for judgment were transcribed and are dated 24 August 2004.
On 20 September 2004 the mother filed a notice of appeal. I do not have a copy of the notice. However, it is common ground that, on appeal, the mother seeks that paragraphs 3, 4, 5, 6 and 7 of my orders be set aside. These are the orders in respect of which she now seeks a stay.
The mother explained to me that, when she first filed her notice of appeal at the Family Court, she understood that the mere filing of such a notice effectively stayed my orders. She has since been disabused of that concept and she now she brings this application today to stay the orders. The mother says that the father has recently submitted the documents for execution by her and, if she does not sign those documents, the Registrar of this court will sign them on her behalf. The father denies that he has submitted any documents for the mother to execute and, through his counsel, says that he is merely waiting for S’s school to act on the orders which I made.
The first matter of which I sought to be satisfied was my power to grant a stay. For that purpose, I directed myself and the parties to Chapter 22 of the Family Law Rules 2004 (“the Rules”). We went through the Rules at some length.
It appears that the process prescribed by the Rules is a complicated one and, as I have already discussed with the parties at length, I think goes something like this:
i)Rule 22.12(2) provides that if an appeal has been started, any party may apply for an order staying the operation or enforcement of all or part of the order to which the appeal relates.
ii)Rule 22.12(3) provides that an application for a stay “must be made to the Federal Magistrate who made the order under appeal”. For reasons to which I will come in a minute, my reading of this sub-rule “the application …. must be made to a the Federal Magistrate” requires that the substantive argument for a stay be made to the Federal Magistrate once he or she is properly seized of the matter.
iii)Turning then to how the actual application is to be initiated, r.22.43 provides that a party in the position of the mother in these proceedings may make an application in relation to an appeal by filing an application in a case which is otherwise called a Form 2. There is an explanation by example to this Rule which, in subparagraph (c), makes it clear that an order which can be applied for is an order for a stay or an extension of time. In this instance the mother has not used a Form 2, she has used the generic application pertaining to our court. If it was up to me, the wrong form would be of no consequence at all. However, the problem seems to be where the application is to be filed or initiated.
iv)Rule 22.10 provides that, if an appeal against an order of the Federal Magistrates Court has been started, a document in that appeal must be filed in the Regional Appeal Registry.
v)The term "Regional Appeal Registry" is a term that is defined in the dictionary to the Rules. Turning to the dictionary, I find that "Regional Appeal Registry" means, for an appeal from the Federal Magistrates Court in a case heard in Victoria, the Melbourne Registry.
vi)I take a reference to the Melbourne Registry to be the Melbourne Registry of the Family Court of Australia. It seems that it must be the Family Court because, in r.22.44, it is provided that, on the filing of an application in a case, the Appeal Registrar must fix a date for hearing of the application. "Appeal Registrar" is also a term defined in the dictionary and means a Registrar at the Appeal Registry for that appeal and includes a Regional Appeal Registrar. For the avoidance of doubt, the Federal Magistrates Court does not have an Appeal Registrar or a Regional Appeal Registrar.
vii)Relevantly, r.22.44 provides that the date of the hearing, which is to be fixed by the Appeal Registrar, must be within 28 days of the application. As I have mentioned, r.22.12(3) provides that the Appeal Registrar must fix it before me subject, I suppose, to availability and abridgement of time.
As indicated, the application now brought by the wife is filed in the Federal Magistrates Court at first instance. It has not been via the route that appears to be ordained for it by the Rules.
I have endeavoured to explain to the mother that, in my view, I have no power to deal with the stay application which she has brought because it has not been brought via the appropriate route. I hoped that I could excite some argument from Ms Colla or the mother as to how I could deal with the application now filed because it seems a pity not to be able to do so. However, there was no contrary submission.
It seems to me that unless I have my jurisdiction revived under some set of Rules, I am what is often referred to as functus officio.
There was no submission made that I could or should dispense with the operation of the Rules as they relate to this case. There is a power of dispensation in r.1.12 for a court to do so of its own volition or on application. “Court” is also a defined term. Relevantly, it means a court that has jurisdiction under the Family Law Act. The difficulty, however, is that I cannot identify how I am properly seized of the mother’s application in the first place. I think that it follows that I cannot not dispense with compliance with the Rules in order to give myself jurisdiction which I otherwise lack.
Belatedly, it occurs to me that s.15 of the Federal Magistrates Act 1999, confers a general power on me to make decrees and orders. That could include an order staying operation of an order under appeal. However, the judges of the Family Court have specifically regulated the conduct of appeals in their court and I conclude that I am required to adhere to the specific course that appears in the Rules rather than have recourse to a general power. It appears that, with respect, there are significant obstacles in the course provided for in the Rules. I do not assume that those obstacles are intentionally placed in the way of litigants.
Unfortunately, it appears to me that Ms A will have to refile this application in the Family Court and that the Appeal Registrar will then arrange for it to come back to me. I would encourage that any times sought to be abridged, to enable the application to be listed before me earlier than 28 days after it is filed, be abridged.
For these reasons, I dismiss the mother’s application filed on

20 September 2004. I do so with some reluctance because it seems to be an unnecessarily complicated route that the mother has to take in these proceedings in order to obtain a stay of an order which, in practical if not legal terms altered, a fairly long status quo. Had I been going to consider the matter on its merits - and obviously I have not considered the matter on its merits – I would have had regard to the decisions such as Clemett & Clemett (1981) FLC 91-013 as well as

Re Evelyn (No 3)
(1998) FLC 92-817 and CSN & JBN (1998) FLC 92-833.
The husband makes an application for the wife to pay his costs thrown away in circumstances where I have just dismissed the mother's application which was before the court today. At my invitation, her costs were categorised in two ways. There was a figure of $3,200 said to be referrable to costs for the husband's attendance at court today, preparation for a briefed counsel, counsel's fees of $1,200, travelling expenses for the husband of $55 and travelling expenses for his solicitor of $450. That, to my mind, does not add up to $3200, but it is said that there are other costs that do. The second category of costs was the affidavit material prepared on behalf of the husband which it is said amounts to some $470 in professional fees and I think there was some tacit acceptance that the mother will now file an application to the Family Court seeking a stay of the order and that, if she relies on the affidavit material she already has, the husband can seek to rely on the affidavit material he has already sworn in response to that.
Section 117 of the Family Law Act provides that each party to proceedings ought bear his or her own costs, save where there are circumstances which would justify me making an order for costs.
The matters which I am mandated to take into account in assessing whether or not such an order is justified are set out in s.117A of the Family Law Act. The first matter is the financial circumstances of each of the parties. It is said on behalf of the husband that his liabilities exceed his assets and that his income is limited. It was said that today he has completed and had approved by the court an application for waiver of filing fees on the basis that he lacked the capacity to do so. He is paying about $10,200 per annum in child support in the form of $50 per week for each of two children and a lump sum payment of $5000 per annum in February. It was said that he has taken loans to pay for legal fees and that these proceedings have been very expensive for him.
The mother, on the other hand, says the father's financial situation is not so bleak. She said from the bar table but did not refer me to any documentation that he had some $50,000 in shares, $150,000 in a rental property in a block of land worth $250,000 and they were his personal assets, as opposed to assets pertaining to his farming operation, which are plant and equipment and stock, and then he has a beneficial interest in a trust which I gather is something of a remainderman upon the death of his own mother. What she could not tell me, however, in spite of being asked to do so was give any picture of the husband's liabilities. So I am left with the situation that I accept for the purpose of this costs application that whilst he may have some assets, he has liabilities that could exceed those assets.
The mother described her own financial situation in terms of having two teenagers. I am satisfied that they would be expensive to maintain. She does not own any real property whatsoever. She rents the home in which she and the two boys reside. She has a car worth $4,000. She owes the school that the children attend a considerable amount, some thousands of dollars, she said, by way of arrears of school fees. She is unable to say how much the educational expenses of the children are in any year because the fact is she cannot pay them and has not paid them and they are accruing on an arrears basis.
The mother says she has been on a sole parent pension since 1996 and she has lived and paid for legal representation in these proceedings using the assistance of her family, but that there are corresponding loans for that assistance and she has to repay them. She says every dollar that she spends on legal fees affects the children and, inferentially, every dollar that she would be asked or called upon to pay for the husband's legal fees would affect the children.
The only other matter that I think is relevant is whether any party to the proceedings has been wholly unsuccessful. I think the wife today has been wholly unsuccessful in this application. It was pointed out to me, and agreed by the wife, that by letter dated 26 October 2004 sent to the wife and received by her, she was put on notice that the husband would seek costs of this day. That letter, omitting irrelevant and formal parts, reads as follows:
We acknowledge service of the documentation in relation to an appeal to the Family Court of Australia and to a proceeding listed before the Federal Magistrates Court at Melbourne on 8 November 2004. We also advise that we have been served with a notice of ceasing to act by your previous solicitors. On the basis of the information contained in the documentation prepared by them we understand that you are currently an unrepresented litigant. We have reviewed the documentation which we have received. In our view, the documentation and the proceeding is defective and has been issued without proper grounds. The return date of the application for 8 November 2004 will require the preparation of extensive response material by Mr A, together with an affidavit outlining the substance of his objections to your application. In addition, we give you notice that our client will be making an application to the court for security for costs in this matter. We would invite you to make direct contact with Mr Stratmann of this office to confirm that the proceeding has been withdrawn prior to 1 November 2004. In the event we do not receive notice from you that the proceeding has been withdrawn by that date our client would be compelled to incur substantial costs of preparation of response material. An application to the court will be made on 8 November 2004 to also recover those costs. We recommend that you consider your position carefully in this matter.
It is the case that the wife confirmed that she had not contacted Mr Stratmann up to or including 1 November 2004 because it was not her intention to withdraw her application.
Costs is a discretionary matter. I think the husband has been put to very considerable costs. I am concerned that he has been put to considerable costs. I queried on why he would bother to incur the costs of opposing a stay application in a situation where he was really seeking to assert rights under these particular orders prior to the appeal being heard. It is my recollection of this matter that the father still has rights to access information about S by virtue of being a parent who has the undisturbed responsibility for the long-term care, welfare and development of S. That is pursuant to s.61C of the Family Law Act where I note there has not been a specific issues order which confers responsibility for the long-term care, welfare and development of S on the parties jointly or on the mother solely.
However, I accept the submission of the father that the mother’s application that brings the parties to court today was an application whereby the mother also sought that my previous orders be "dismissed" or "in the alternative, a hearing de novo be granted".

I accept that it was necessary for the father to be represented today in order to avoid some possible mischief.
I note that there is further evidence relied upon by the mother for that application. It was an affidavit sworn by the child S. He is not yet 16 years of age. On a preliminary basis, it appears to be an affidavit that is filed contrary to s.100B of the Family Law Act.
In all of the circumstances I will make a modest allowance in respect of the husband's costs. I will order that the mother make a contribution to the father's costs of this day in the sum of $500, such contribution to be deducted from moneys payable by the husband to the wife in February 2005 by way of lump sum child support or whatever.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Bennett FM

Associate: R. Campbell

Date: 10 November 2004