Alexander and Hooper - [2013] FamCAFC 67

FAMILY COURT OF AUSTRALIA

ALEXANDER & HOOPER

[2013] FamCAFC 67

FAMILY LAW - APPEAL – NOTICE OF APPEAL – where there is no merit in the appeal – where the Federal Magistrate (as he then was) correctly determined to dismiss the father’s application alleging contravention for lack of particulars – where his Honour was correct in making a costs order in the mother’s favour – where no error by his Honour is established – appeal dismissed.
FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the appellant seeks costs for today’s hearing – where there is no merit in the application – application dismissed.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Alexander

RESPONDENT:

Ms Hooper

FILE NUMBER:

ADC

2041

2009

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

22 April 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

22 April 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

20 November 2012

LOWER COURT MNC:

NA – Transcript only

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

No appearance

Orders

The Notice of Appeal filed on 17 December 2012 be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the Alexander & Hooper has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 90 of 2012
File Number: ADC 2041 of 2009

Mr Alexander

Appellant

And

Ms Hooper

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is a directions hearing in relation to a Notice of Appeal filed by the father on 17 December 2012, appealing against orders made by Federal Magistrate Simpson (as he then was) on 20 November 2012.
The respondent has not appeared at the hearing today. However, as I have already indicated, it is not necessary for a respondent to appear on a directions hearing.
I have indicated though that having read the documents, namely the transcript of the proceedings before his Honour on 20 November 2012, and the Notice of Appeal filed by the father, I propose to do more today than simply conduct a directions hearing. I have also indicated that if in doing that it became apparent that the respondent would be prejudiced in not being present, I would then consider taking another course.
In terms of the appeal itself I do not consider that the respondent will be prejudiced. There will however be an issue in relation to the costs of today, and as the respondent is not here she will not be able to pursue an application for costs. It is not apparent though that the respondent is legally represented and thus I proceed on the basis that even if the respondent had attended today, she would have appeared in person and there would be no legal costs that she could claim.
As to the substantive aspect of the appeal, having read the relevant documents it is quite apparent to me that there is no merit whatsoever in this appeal and whether that is because the father does not understand or appreciate what an appeal is about, what is required, and what he needs to show, or whether he does understand that and he has simply gone ahead regardless, does not change that fact.
As I have said the appeal is against orders made by Federal Magistrate Simpson (as he then was) on 20 November 2012. The application before his Honour on that day was an application alleging contravention filed by the father. He was alleging a contravention of orders made in 2007 and 2009. According to the transcript of the proceedings of that day the father appeared in person and the mother was represented by Ms Rieniets.
When the matter was called on Ms Rieniets alerted his Honour to the fact that there were no particulars at all included in the application alleging contravention. Ms Rieniets indicated that she had written to the father on

31 October 2012 advising him that the matter had not been pleaded properly, and that she would be seeking to have the matter struck out on 20 November 2012 if he did not withdraw it, and she also indicated that an order for costs would be sought against him.
At the hearing before his Honour the father indicated that he did not receive any letter, but regardless of that the fact remained that Ms Rieniets’ position was correct, in that there were no particulars at all included in the statements of alleged contravention in the application. On that basis the application could not proceed and had to be dismissed, and his Honour agreed with Ms Rieniets in that regard.
What then happened was that his Honour, albeit he determined quite correctly in my view to dismiss the application for the reason of lack of particulars, he then went on to try and get to the bottom of the issue that was concerning the father, and particularly in relation to the question of whether the mother had complied with an order that she do all she could to change the citizenship of the child of the relationship back to SN, or to dual SN and Australian citizenship. It is apparent from the transcript of the proceedings that that was the major concern of the father and he was alleging that the mother had not complied with that order.
Ultimately Ms Rieniets was able to refer his Honour to a copy of a letter received from the Consulate-General of SN in Sydney, addressed to the mother, which indicated that until the age of 18 years the child was automatically a dual citizen of SN and Australia, but upon reaching the age of 18 years he was able to decide what citizenship he wished to retain, and he would then need to nominate whether it would be Australian or SN citizenship. Albeit his Honour did not need to delve into that issue, he did, and on my reading of the transcript of the proceedings, he satisfied himself that the mother was not in fact in breach of that order. However, his Honour indicated that he was not dismissing the application for that reason, but for the reason that he had initially indicated, which was, lack of particulars.
The revelation in relation to the issue of citizenship would prevent the father from filing a further application alleging a breach of that order, but his Honour left that open for the father to pursue. His Honour informed the father that if he dismissed the application that did not mean that the father could not bring another application, but he would need to properly plead the contraventions. I note of course that the father has not pursued that course, i.e. filed a properly pleaded application alleging contravention, but rather he has filed this appeal.
I invited the father to indicate to me on what possible basis he could succeed in the appeal against the order dismissing the application insofar as it was reliant upon lack of particulars, and he put two matters to me. First, he said that the respondent did not comply with the order made in 2007 which was the order in relation to citizenship, and secondly, that his Honour did not have a broad look at the issue.
Neither of those submissions establishes error by his Honour, and as I have indicated during the hearing that is what the father needs to demonstrate to succeed on this appeal. He has not established error by his Honour anywhere in his grounds of appeal or in the eight page annexure to the Notice. Thus that part of the appeal must be dismissed.
His Honour having dismissed the application alleging contravention for the reasons I have indicated, then made an order on an application by Ms Rieniets for costs. Ms Rieniets sought an amount of $300. His Honour enquired of the father as to his financial position, and enquired of Ms Rieniets as to the mother’s financial position. It was apparent that both parties were in a poor financial position, but his Honour determined that an order for costs was appropriate, and in my view correctly so. The application had been wholly unsuccessful and his Honour ordered the father to pay costs in the sum of $150.
The father appeals against that order as well.
I observe that there is absolutely nothing in the Notice of Appeal directed to any alleged error by his Honour in making the order for costs, and so I invited the father to put anything to me today going to that issue. He repeated that his Honour did not get it right in terms of the order that he made, he repeated again that the respondent had not complied with the order made in 2007 in relation to citizenship, and then extraordinarily, he went on and said that he felt that in the circumstances he would be entitled to the costs of today.
Again, having read the transcript of the proceedings before his Honour and the Notice of Appeal, and taken into account what the father has told me today, there is no merit whatsoever in his appeal against the costs order. His Honour’s reasons are sound and he was generous, in my view, in only requiring the father to pay an amount of $150.
No error has been identified in relation to that order, and that part of the appeal must also be dismissed.
The mother is not here to make an application for costs and I will not repeat what I have said about that. I do not propose to make an order for costs today, but the father is fortunate indeed that the mother is now representing herself, and presumably has no legal costs. If the mother had been represented here I would have had no hesitation in making an order for costs today against the father.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on

22 April 2013.

Associate:

Date: 7 May 2013