BANDENT & BANDENT - [2017] FamCAFC 193

FAMILY COURT OF AUSTRALIA

BANDENT & BANDENT

[2017] FamCAFC 193

FAMILY LAW – APPEAL – CHILDREN – Where the matter was adjourned to enable the appellant to file an amended Notice of Appeal setting out competent grounds of appeal – Where the appellant was aware of the adjourned hearing but has not appeared – Where the respondent seeks that the appeal be dismissed – Where there are no competent grounds of appeal set out in the Notice of Appeal and the appeal has no reasonable prospect of success – Appeal dismissed. –

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs thrown away – Where there are circumstances which justify such an order – Costs ordered in favour of the respondent.

Family Law Act 1975 (Cth) s 96AA

APPELLANT:

Mr Bandent

RESPONDENT:

Ms Bandent

FILE NUMBER:

MLC

8250

2007

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

14 September 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

14 September 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

24 March 2017

LOWER COURT MNC:

[2017] FCCA 834

REPRESENTATION

THE APPELLANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Ms Wilkinson

SOLICITOR FOR THE RESPONDENT:

Bowlen Dunstan & Associates

Orders

The Notice of Appeal filed on 4 May 2017 be dismissed.
The appellant father pay the costs of the respondent mother thrown away fixed in the sum of ONE THOUSAND DOLLARS ($1,000), such costs to be paid within twenty-eight (28) days of the date hereof.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

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

Appeal Number: SOA 30 of 2017
File Number: MLC 8250 of 2007

Mr Bandent

Appellant

And

Ms Bandent

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an adjourned directions hearing in relation to the Notice of Appeal filed on 4 May 2017 by Mr Bandent (“the father”). In that Notice of Appeal the father sought to appeal against orders made by Judge Williams on 6 April 2017.
I originally listed the matter for a directions hearing on 28 July 2017, and I did so because, having read the Notice of Appeal filed by the father, it was readily apparent that it was incompetent, and as it stood, the appeal should be dismissed on the basis that there were no proper grounds of appeal contained in the Notice of Appeal. The grounds set out were as follows:
1.We will be submitting documented and verified documents which we believe prove that Judge Williams made several errors.
2.We will be submitting documented and verified documents which we believe prove that these errors are significant in nature such that the matter be set aside.
3.We will be submitting to the court that Judge Jillian Williams applied a wrong principle of law, made a finding of facts on several important issues which could not be supported by evidence and appeared to exercise his (sic) or (sic) her discretion to her decision which was clearly wrong
Although they do not of course assist in terms of being satisfied that there are competent grounds of appeal, it is instructive to refer to the orders sought by the father in his Notice of Appeal, namely:
1.That the respondent cease and desist in illegal refusal of access to the Applicant father.
2.That the respondent cease and desist in telling the affected person […] that the Applicant father has mental health issues.
3.That the respondent cease and desist in distributing as fact an AGE/FAIRFAX media news article which has been named in the Supreme Court and proven in the Federal Circuit Court as fraudulent.
If nothing else, the inappropriateness of those orders, emphasises the incompetence generally of the Notice of Appeal.
The hearing on 28 July 2017 was conducted by telephone link with the father, who appeared without legal representation, and Ms Bandent (“the mother”), who appeared represented by counsel.
What transpired at that hearing was that initially I raised with the father the problem that I had perceived with his Notice of Appeal, namely that there were no competent grounds of appeal, and I indicated to him that I had two choices. One option was to dismiss the appeal at that point, and the other was to adjourn the matter to enable him to amend his Notice of Appeal such that it set out competent grounds of appeal.
At that point the father indicated that he would want to seek an adjournment.
Counsel for the mother then raised with me that the matter had in fact been transferred to the Family Court of Australia from the Federal Circuit Court of Australia, an Independent Children’s Lawyer (“ICL”) had been appointed, and the orders under appeal were not final orders but interim orders. The point of counsel raising that with me was, first, in a sense to query whether the father wished to proceed with the appeal, given that the matter would be listed in the Family Court of Australia, and those interim orders would in all probability be reconsidered. Secondly, to point out that that process would be held up if the appeal was to proceed.
I note that counsel for the mother also indicated that if the matter was adjourned her client would be seeking an order for costs.
At that point the father indicated that he had no intention of delaying the proceedings, he just wanted his son back, and the Federal Circuit Court judge was “entirely biased”, and quoting from the transcript of the hearing that day:
[MR BANDENT]:     … [e]ven a moron could tell that listening to the recording.
…
[MR BANDENT]:     So Wayne Dunstan and Kathryn Schuck [counsel for the mother] know what they’re doing. They know they’re harming my son. They’re playing lawyer games. …
[MR BANDENT]:     And forget about the costs as well.
(Transcript 28.7.17, page 3, lines 18 – 19, lines 23 – 24, and line 30)
At that point counsel for the mother interrupted. I requested that she not say anything, and I said “[w]e will let [Mr Bandent] rant … and then I will come back to him in a calm manner” (Transcript 28.7.17, page 3, lines 34 – 35 and line 39). I explain that at that point, that that was clearly what the father was doing, and given in particular his tone. The father then responded as follows:
[MR BANDENT]: Hey, listen. Don’t fucking start “rant” with me, you fucking pissant. Go fuck yourself, you cunt. You fucking paedophile cunt. Fuck you.
(Transcript 28.7.17, page 3, lines 41 – 42)
The father then hung up.
Following that I debated with counsel for the mother what should be done with the appeal. Initially I indicted that I would be dismissing the appeal, but on reflection I indicated that I would adjourn the matter, because that was the initial request of the father, and I wanted to give him a chance to file an Amended Notice of Appeal containing competent grounds of appeal, despite his behaviour.
Thus, I adjourned the matter to today and I reserved the mother’s costs.
According to the appeal file, consequent upon the orders I made on 28 July 2017, a letter was sent to the father at his address for service, namely Property A, and that letter advised the father that “this appeal has been listed for further consideration before Justice Strickland in Melbourne on 14 September 2017 at 9:30am”. I also note that enclosed with that letter was a sealed copy of the orders made on 28 July 2017. That letter was also sent to the solicitors for the mother.
I note from the appeal file that there has been no response to that letter from the father, and he has not appeared at the hearing today.
In those circumstances counsel for the mother asks me to dismiss the appeal on two bases. First, the failure of the father to attend today, and secondly, pursuant to s 96AA of the Family Law Act 1975 (Cth) which provides as follows:
SECTION 96AA APPEAL MAY BE DISMISSED IF NO REASONABLE PROSPECT OF SUCCESS
96AA(1)If:
(a)an appeal has been instituted in a court under this Part; and
(b)having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally, or in relation to a particular ground of appeal);
the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
96AA(2) This section does not limit any powers that the court has apart from this section.
To repeat, it is readily apparent that there is no competent ground of appeal set out in the Notice of Appeal, and I am satisfied that the appeal has no reasonable prospect of success. Thus, I propose to dismiss the same.
Given the dismissal of the appeal I now have an application on behalf of the mother for costs, both in relation to the hearing on 28 July 2017, and the hearing today.
The amount sought was $3,000, but in my view that is not reasonable in the circumstances of what would have been required in relation to this matter. Instead I would allow the costs of the two attendances.
There is no question that there are circumstances here which justify an order for costs. The mother instructed her legal representatives to appear on both occasions, and on the first occasion the hearing was cut short by the father hanging up the telephone, following a stream of abuse, and today he has failed to appear, albeit I am satisfied that he had notice of the hearing.
To repeat, the costs that I am prepared to allow are the costs of the two appearances, and I propose to fix those costs in the sum of $1,000.

I certify that the preceding twenty (20) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 14 September 2017.

Associate:

Date: 15 September 2017