Bayer & Wynne
[2021] FamCAFC 131
•8 July 2021
FAMILY COURT OF AUSTRALIA
Bayer & Wynne [2021] FamCAFC 131
Appeal from: FCCA orders made on 26 March 2021 Appeal number(s): SOA 22 of 2021 File number(s): MLC 4792 of 2018 Judgment of: STRICKLAND J Date of judgment: 8 July 2021 Catchwords: FAMILY LAW – APPEAL – Where the appellant seeks to appeal from notations rather than orders – Where the appellant’s Grounds of appeal do not reveal, demonstrate or identify any appellable error by the primary judge – Where it seems that the appellant seeks a remedy under the provisions of s 79A of the Family Law Act – Where such an application should be made in the lower court – Where the appellant is cognisant of difficulties in the appeal and initially seeks an adjournment to amend the Notice of Appeal – Where the appellant’s reasons for not having filed an amended Notice of Appeal prior to the hearing are not satisfactory – Where the appellant subsequently withdraws the appeal to pursue other applications – Appeal dismissed.
FAMILY LAW – COSTS – Oral application for costs in favour of the respondent – Where the financial circumstances of the parties require consideration – Where different circumstances necessitate different justifications for cost orders – Where the appellant seeks to withdraw the appeal bringing the matter to a conclusion – Application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 79A, 96AA, 117, 117(2), 117(2A), 117(2A)(a) Division: Appeal Division Number of paragraphs: 11 Date of hearing: 8 July 2021 Place: Melbourne The Appellant: In Person Solicitor for the Respondent: Kordell Lawyers Counsel for the Respondent: Ms Dellidis ORDERS
SOA 22 of 2021
MLC 4792 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR BAYER
Appellant
AND: MS WYNNE
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
8 JULY 2021
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 23 April 2021 be dismissed.
2.The oral application for costs made by the respondent be dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bayer & Wynne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
This is a directions hearing in relation to a Notice of Appeal filed by the appellant father on 23 April 2021, appealing orders made by a judge of the Federal Circuit Court of Australia on 26 March 2021. The appeal is opposed by the respondent mother.
Today I have raised with the appellant father the competency of the appeal as filed, bearing in mind that under section 96AA of the Family Law Act 1975 (Cth) (“the Act”), if the Grounds of appeal do not demonstrate a reasonable chance of success, then the appeal can be dismissed. That has been the thrust of my queries of the appellant father today, who I note is appearing without legal representation.
It is readily apparent that he has prepared his Notice of Appeal without any legal representation, and there are a number of problems with it. The first is that the appellant father has not identified the orders that he seeks to appeal, save and except in an indirect way, order 32(f) made by the primary judge. To put that into context, the appellant father has sought to identify as “orders” that he appeals from, notations made by the primary judge. As I have explained to the appellant father, it is only orders that can be the subject of an appeal, and notations are not orders. However, in discussion today, the appellant father has identified the order that he does wish to appeal from is order 32(f) of the orders made by her Honour.
Turning to the Grounds of appeal. What the appellant father appears to have done is to frame his so-called Grounds of appeal by referring to section 79A of the Act. The problem for the appellant is that they do not reveal, or demonstrate, or identify any appellable errors by the primary judge. All that it does, and all that he has done, is identify bases for seeking an order pursuant to section 79A of the Act either setting aside the order or orders made by the primary judge, or varying those orders. Today the appellant father appeared to recognise that that was a problem with his Notice of Appeal, and in response to this Court raising that with him, he indicated that he was looking to amend his Notice of Appeal to set out competent Grounds.
On that basis, he sought an adjournment to be able to file an amended Notice of Appeal to that effect. However, the Notice of Appeal was filed on 23 April 2021, and it is now 8 July 2021. In my view, the appellant father has had ample time to amend his Notice of Appeal, and not leave it to an oral application on the day of the directions hearing. His explanation as to why he has not filed an amended Notice of Appeal, is that “life” has gotten in the way of him attending to that. I have indicated to him that that is simply an unacceptable reason, and cannot explain why in the almost three-month period that he has had, he has not been able to put his mind to amending the Notice of Appeal, as he has recognised needed to be done. In any event, he sought an adjournment.
However, the appellant father subsequently changed his position, and has now indicated that he withdraws the appeal. What he will be looking to do is to either pursue a section 79A application in the Court below, or seek an extension of time to file a further Notice of Appeal. I have taken the time to explain to the appellant father that an extension of time would be necessary, and that there can be no guarantees that he would get an extension of time. Nevertheless, even with that knowledge, the appellant’s position is that he still seeks to withdraw the appeal. Thus, what I would propose to do is dismiss the appeal, the effect of which would not be a finding in relation to the merits of the appeal, and so if he was able to obtain an extension of time to file a further appeal, he could still pursue that.
Given that indication by the appellant father, counsel for the respondent mother has made an oral application for costs, seeking the sum of $3,300, being counsel’s fee on brief for today. That application is opposed primarily on the basis of the financial circumstances of the appellant father. In that regard, he tells me that he is currently earning approximately $130,000 gross per year, but in about four months’ time, that will be reduced significantly when he commences study. He says he has very few assets, he has some money in the bank and he has a motor vehicle.
As is the case, pursuant to section 117(2A)(a) of the Act, in determining whether an order for costs is made, and if so, what that order will be, I need to take into account the financial circumstances of the parties. Counsel for the respondent mother has indicated to me that her client works 15 hours a week, she is on trial in respect of a particular employment, and she is paid about $23 per hour – or $350 per week. She has the care of the two children of the relationship, and one of those children is not yet of school age.
I have referred to section 117 of the Act in the context of the requirement to consider the financial circumstances of the parties. That section governs the question of costs, and pursuant to section 117(2) of the Act, if there are circumstances that justify an order for costs being made, then this Court can make such an order. In assessing that and in assessing what orders should be made, there are certain factors that need to be taken account of, and they are contained in section 117(2A).
If the appellant father had pursued an application to adjourn the proceedings, then I would have no hesitation in making an order for costs in the amount sought. But given that the appellant father is seeking to withdraw the appeal, and on that basis, I will dismiss the appeal, that changes the circumstances, in my view, in relation to whether an order for costs is justified or not.
I appreciate, that it has still been the case that the respondent mother has come here today with counsel to oppose the appeal, but for all intents and purposes, this is the conclusion of that matter. Whatever the appellant father does from here on will be entirely up to him, and that will create a different circumstance again, and particularly, in relation to any issue of costs. Thus I am not prepared to make an order for costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 28 July 2021
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