Argyri & Conroy

Case [2025] FedCFamC1A 6

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Argyri & Conroy [2025] FedCFamC1A 6

Appeal from: Argyri & Conroy [2024] FedCFamC2F 1168
Appeal number: NAA 224 of 2024
File number: MLC 5516 of 2023
Judgment of: CAMPTON J
Date of judgment: 30 January 2025
Catchwords: FAMILY LAW – APPEAL – Where the appellant will not comply with an order for security for costs staying the prosecution of a parenting appeal – Where the grounds of appeal do not clearly articulate any form of legal, factual, or discretionary error – Where the appellant is afforded an opportunity to be heard as to why the Notice of Appeal should not be struck out – Where the grounds are incompetent – Where the appeal is summarily dismissed – Order for costs in favour of the respondent.
Legislation:

Family Law Act 1975 (Cth) Pt VII, s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35 and s 46

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 12.52, 13.39
Cases cited:

Beale v Harvie [2023] FedCFamC1A 181

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 76

The Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

Charton & Sedgley [2023] FedCFamC1A 205

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Newett & Newett(No 9) (2023) FLC 94-133; [2023] FedCFamC1A 23

Newett and Newett (No 2) (2021) FLC 94–051; [2021] FedCFamC1A 11

Pachris & Tajir (No 3) [2023] FedCFamC1A 230

Re Darley (No 2) (2023) 379 FLR 234

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2023] FedCFamC1A 112

Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 43
Date of hearing: 21 January 2025
Place: Sydney (via Webex)
The Appellant: Litigant in person
Counsel for the Respondent: Ms O’Connell
Solicitor for the Respondent: Fiona McGregor Family Lawyer Pty Ltd

ORDERS

NAA 224 of 2024
MLC 5516 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR ARGYRI

Appellant
AND:

MS CONROY

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

30 JANUARY 2025

THE COURT ORDERS THAT:

1.The Application in an Appeal filed 31 December 2024 is dismissed.

2.The Notice of Appeal filed 2 September 2024 is summarily dismissed.

3.The appellant pay the costs of the respondent fixed in the sum of $20,000 within 60 days.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the…

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AGLC
Argyri & Conroy [2025] FedCFamC1A 6
Case
[2025] FedCFamC1A 6
Decision Date

CaseChat Overview and Summary

In the matter of Argyri & Conroy, the father filed an appeal against the parenting orders made by the primary judge in the Federal Circuit and Family Court of Australia. The mother, Ms Conroy, filed a response seeking dismissal of the appeal and costs. The central issue before the court was whether the appeal had any reasonable prospect of success and if not, whether it should be summarily dismissed. Additionally, the court had to determine if an application to adduce further evidence should be allowed and whether the appeal could proceed on procedural fairness grounds.

The court found that the father's grounds of appeal did not articulate any form of legal, factual, or discretionary error and were thus incompetent. The father was given an opportunity to explain why the appeal should not be dismissed, but he failed to provide a satisfactory explanation. The court determined that the father had not identified the grounds of appeal to which each category of document related and that the evidence sought to be adduced was available at the time of the trial. Furthermore, the court found that the father had not demonstrated that the further evidence would avoid an error that could not be remedied by conventional appellate principles.

The court concluded that the appeal was wholly devoid of merit and incompetent, making no legitimate contention of appealable error. It held that the father had not pursued a more cost-effective avenue to challenge the orders before filing an appeal. The circumstances justified an order for costs in favour of the mother. The court dismissed the appeal, ordered the father to pay the mother’s costs fixed in the sum of $20,000 within 60 days, and dismissed the application to adduce further evidence.

The court's decision was based on the father's failure to provide a reasonable basis for the appeal and his inability to explain why he could not participate in the trial or file his evidence. The court emphasised that procedural fairness concerns the fairness of the hearing, not the outcome, and that the father had been given every opportunity to present his case. The court found that the father's impecuniosity, without more, was not a sufficient reason to deprive the mother of her costs.

Orders

Orders of the court

NAA 224 of 2024

MLC 5516 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ARGYRI

Appellant

AND:

MS CONROY

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

30 JANUARY 2025

THE COURT ORDERS THAT:

1. The Application in an Appeal filed 31 December 2024 is dismissed.

2. The Notice of Appeal filed 2 September 2024 is summarily dismissed.

3. The appellant pay the costs of the respondent fixed in the sum of $20,000 within 60 days.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The father, appearing electronically with the benefit a Country B language interpreter, was invited to show cause why the appeal should not be summarily dismissed on account of it having no reasonable prospect of success. He was unable to discharge that onus. The appeal will be summarily dismissed.BACKGROUND The father was born in 1971 and is currently 53 years old. The mother was born in 1978 and is currently 46 years old. The child has spent time with the father in the presence of the mother. In mid-2018 and early 2019, the mother travelled with the child to Country B to visit the father. Process pursuant to the Hague Convention, initiated by way of the Central Authority at the father’s request, was not unsuccessful. On 23 May 2023, the father filed an Initiating Application broadly seeking orders that he have sole parental responsibility (as it was then) for the child, for the child to live with him in Country B and spend time with the mother. On 21 June 2023, the mother filed a Response to an Initiating Application seeking different parenting orders. On 28 June 2023, the parties entered consent interim parenting orders. A Child Impact Report was produced by Ms C, Forensic Psychologist on 12 September 2023. The father said that he engaged electronically from Country B with the expert in the preparation of that report. On 8 November 2023, the father’s solicitors ceased to act. The father appeared without representation electronically from Country B before a judicial registrar on 13 November 2023 and before another Division 2 judge on 25 March 2024. Orders were made for the father to file his trial material by 8 July 2024 and listing the matter for trial on 5 August 2024. Notations were made identifying the possible consequences to the parties should there be non-compliance with the trial directions or a failure to appear at trial, including that the matter be heard on an undefended basis. A Family Report was produced on 9 July 2024. The father engaged in the interviews with the single expert and the child electronically from Country B. The father did not file any material for trial pursuant to the orders made 25 March 2024. He had leave to appear electronically at the trial and was sent a link by email for that purpose (at [7]). The father advised the court by return email on 5 August 2024, being the morning of the trial, that he would not be participating or appearing. The primary judge determined the matter, delivering ex tempore reasons and making the orders under challenge that provide for the mother to have sole decision-making responsibility for the child, for the child to live with the mother, and spend professionally supervised time with the father on up to four occasions each year in Melbourne and have Skype/FaceTime communication with the child once each calendar month with the mother having capacity to monitor the calls and to terminate them, should she determine the father’s conduct to be inappropriate. Orders were made restraining the father from denigrating the mother in presence or hearing of the child, requiring the mother to provide the father with progress summaries each six months as to the well-being of the child and permitting the father to receive copies of school reports together with orders permitting the father to send letters, cards and gifts to the child.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The purpose of providing reasons is to ensure that the parties understand why a decision was made (Bennett and Bennett (1991) FLC 92-191). The reasons under challenge are cogent and clear. Any complaint as to the reasons being inadequate is fallacious.CONCLUSION AND COSTS The appeal is wholly devoid of merit and incompetent, it not making any legitimate contention of appealable error. It has no reasonable prospect of success and so it should be dismissed. The mother filed a costs schedule in compliance with the Rules and the Appeal Judicial Registrar’s orders itemises the wife’s costs on a scale basis at $27,305. She seeks that the father pay her costs fixed in the sum of $20,000. The father opposes an order for costs of the appeal in the mother’s favour. The relevant principles as to costs are well settled. While the starting position established by s 117(1) of the Act is that each party pays their own costs, s 117(2) allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 117(2A) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 117(2A) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient. The father works part time as a public servant in Country B earning a salary of approximately EUR 750 per month. He said that he expends all his income on living expenses and owes significant debt by way of unpaid legal fees relating to the proceeding and having no property or savings. The father did not pursue, as he ought to have prior to filing an appeal, the more cost-effective avenue by way of an application pursuant to r 10.13(1)(a) to challenge the orders made on 5 August 2024. He has been wholly unsuccessful in the appeal and put the mother to substantial unnecessary cost. The impecuniosity of the father in these circumstances, without more, is not a sufficient reason for depriving the mother of her costs. The circumstances justify an order for costs. The father did not suggest that the order sought by the mother for her costs was unreasonable. The father will pay the mother’s costs fixed in the sum of $20,000 within 60 days.

Ratio Decidendi

Legal Principle Established

Not unexpectedly, the father could not identify the grounds of appeal to which each category of document related (r 13.39(2)(b) of the Rules). The evidence sought to be adduced was available to the father at the time of the trial. It does not fall into the category of that identified by the High Court in CDJ v VAJ. I am not satisfied that this further evidence has any impact on the appeal and thus does not meet the requirements identified by the High Court, namely that it is necessary to receive it to avoid an error “which cannot be otherwise remedied by the application of the conventional appellant principles” (CDJ v VAJ at [109]). The Application in an Appeal to adduce further evidence will be dismissed. CONSIDERATION As to the procedural fairness complaint, the primary judge was satisfied that the father was aware of the hearing and had the option to attend electronically, but that he had chosen not to do so (at [9]). The primary judge found that the mother had complied with her obligations pursuant to listing orders as to the filing of trial material, and that it was in the best interests of the child that the matter came to a final resolution (at [10] and [11]). Leave was therefore granted for the mother to proceed on a final and undefended basis. The father asserted that he was “was eager to participate” in the trial. He said at the show cause hearing that he did not appear electronically because he could not pay the cost of the setting down for hearing fee. He later tellingly conceded “that’s why I gave up”. As a concept, and importantly for the father in this appeal, procedural fairness is concerned only with the fairness of the hearing, not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]). Procedural fairness requires each party to be given an adequate opportunity to be heard and present their case (Kioa v West (1985) 159 CLR 550 at 582). It is only the opportunity to present evidence and argument which the interest of justice requires, not the actuality of it. The father was afforded every opportunity to file and serve material by way of evidence for trial and to appear at the trial to participate in the testing of evidence by cross-examination of the mother and the experts and to make submissions. He elected not to avail himself of those opportunities. He did not explain on appeal:(a)Why he could appear and engage electronically for the purposes of the listings before the judicial registrar, before another Division 2 judge on 25 March 2024, and for the preparation of each of the child impact report and the Family Report, but could not electronically appear when the matter was listed for trial, other than his concession that he “gave up”; and(b)Why he could not file and serve his trial material. The primary judge read and considered the prior affidavits filed by the father for the purposes of the 2023 interim hearing as prepared by his then solicitors (at [9] and [30]). The reasons identify consideration of father’s concerns as to the child’s psychological welfare, his contentions as to the mother’s anger management issues, and his assertion that the hypervigilance and overprotective nature of the mother’s parenting limits the child’s development, leading to the child becoming anxious, presenting as afraid and upset in the mother’s care (at [19] and [20]). The reasons record his evidence as to his concerns as to the child living with the mother and his desires for the child to experience his Country B heritage and other educational and extracurricular pursuits (at [20] and [48]).