Bligh & Trott
[2023] FedCFamC1A 95
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bligh & Trott [2023] FedCFamC1A 95
Appeal from: Order dated 4 May 2023 Appeal number(s): NAA 79 of 2023 File number(s): BRC 2766 of 2015 Judgment of: ALDRIDGE J Date of judgment: 7 June 2023 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of appeal judicial registrar’s decision for security for costs and consequent dismissal – Where the grounds contending incompetence of counsel and the primary judge’s failure to adjourn the hearing are not established – Allegations of bias – Where there is no reason to vary the orders of the appeal judicial registrar – Application dismissed – Appellant to pay the costs of the respondent in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 68B,117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3, rr 12.02, 13.36
Cases cited: Frazier & Valdez (2016) FLC 93-729; [2016] FamCAFC 163
Maddax & Danner [2016] FamCAFC 176
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
OP v TP (2002) 30 Fam LR 281; [2002] FamCA 1155
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Number of paragraphs: 36 Date of hearing: 7 June 2023 Place: Sydney The Appellant: Self-represented litigant Solicitor for the Respondent: Evans Brandon Family Lawyers Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
NAA 79 of 2023
BRC 2766 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BLIGH
Appellant
AND: MS TROTT
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
7 JUNE 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 24 May 2023 is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $1,709.65.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bligh & Trott has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
This is the review of a decision of an appeal judicial registrar made by way of an Application in an Appeal filed on 24 May 2023. It was not supported by an affidavit as required by r 13.36 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), but no one has taken any point about that.
On 4 May 2023, the appeal judicial registrar made the following orders:
1.The oral application of the [appellant] to adjourn the hearing of the application in an appeal filed 5 April 2023 until after the determination of foreshadowed applications to seek an extension of time to appeal consent orders made by the primary court on 3 February 2023 and 10 February 2023 is refused.
2.The oral application of the [appellant] to adjourn the hearing of the application in an appeal filed 5 April 2023 for further oral submissions is refused.
3.By 4.30pm (AEST) on Tuesday 4 July 2023, the [appellant] … pay, by way of security for costs, the sum of $20,000 by payment into this Court, to be held pending further order of the Court.
4.Pending the [appellant’s] compliance with the preceding order, appeal NAA79/2023 is stayed pending further order of the Court.
5.In the event the payment required by Order (3) is not made by 4 July 2023, the respondent’s appeal NAA79/2023 be dismissed pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
6.The [respondent’s] costs of and incidental to the application in an appeal filed 5 April 2023 are reserved.
The review of a registrar’s decision is a hearing de novo against discretion to be exercised afresh on the basis of the evidence that is before the Court.
The orders that are subject of the appeal concern the parties’ child who was born in 2011.
A hearing before the primary judge commenced on 6 February 2023. The appellant was represented by a barrister and solicitor for the first three days of the hearing and acted for himself for the remaining two days.
On 8 February 2023, a number of orders were made by consent, including orders that the child live with the respondent and that she have sole parental responsibility for him. There were orders that greatly restricted the scope of the issues for determination for trial which led to the following matters left to be determined:
·Whether the respondent should consult with the appellant before she made a long term decision for the child;
·If and what time the child should spend with the appellant;
·Whether communication restraints and a personal protection order should be made;
·Whether Family Law Watchlist orders should be made and
·Whether the respondent should be able to change the child’s name.
On 3 April 2023, the primary judge ordered that the child spend no time with the appellant. Orders were made under s 68B of the Family Law Act 1975 (Cth) (“the Act”) prohibiting him from contacting the respondent or child, approaching the home or workplace of the respondent or child, or place of any extracurricular activity for the child. The respondent was permitted to change the name of the child and the Family Law Watchlist order was removed.
THE APPEAL
The Notice of Appeal was filed on 4 April 2023. It contains the following grounds:
1.My Lawfirm [collapsed] due to the Untimely death of my friend and lawyer […]. My New barrister advised the court he could not [prepare] at such short notice, and even when he was given two days, he made the court aware he vould not properly [prepare]; however the matter was still listed and my barrister made it clear he was not ready, and could not defend me.
2.Her honour prevented my barrister from raising issues about [B’s] safety with the court due to ill informed earlier choices he made, with admissions he was not [prepared]. Her honour then asked me to make submissions about the risks to [B], solely to use maliciously against the [appellant].
3. Her honour prevented an expert explaining how the [respondent’s] server [psychological] deviance placed [B] at unacceptable risk, and therefore did not consider the primary consideration.
4.Her honour was openly biased due to criminal [conviction] and had no intention of allowing a fair hearing.
5.Her honour explained to the applicant their was no or little point is orders to ask questions of [Dr N] at my expense because that would occur at trial. She then used accepting her advice against me, showing biased intent.
(As per the original)
It is important to note that the orders sought in the Notice of Appeal are that the appellant have sole custody of the child and that the appellant and respondent submit for a psychological assessment.
However the residence of the child was determined by the consent orders of 8 February 2023, against which there is no appeal. The appeal is therefore significantly misconceived as the Court would not be revisiting the orders made on 8 February 2023, but only those made on 3 April 2023, assuming of course that the appeal was successful.
As to Ground 1, it is unclear what error is sought to be identified by this ground. It could be a complaint that the appellant’s barrister was incompetent or that the primary judge fully failed to adjourn the hearing, either because of that incompetence or when the legal representation ceased. The latter, failing to adjourn the hearing, is not a valid ground of appeal (see s 26(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
A challenge to orders based on incompetence of counsel is not of itself an independent ground of appeal. It must be demonstrated that the incompetence was such that the appellant did not have a fair trial or that it produced a miscarriage of justice (see TKWJ v The Queen (2002) 212 CLR 124; OP v TP (2002) 30 Fam LR 281; Maddax & Danner [2016] FamCAFC 176).
It can be seen from this, that the above ground, if that is indeed the content of Ground 1, would require the appeals court to deal with a number of matters that are not readily established. The grounds of appeal do not assist in identifying them.
Ground 3 appears to challenge the orders made for the child to live with respondent. As I have already explained, that order is not the subject of the appeal.
Grounds 2 to 5 raise the actual bias of the primary judge. To succeed on this ground, the appellant must establish that her Honour’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72])
In Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, Gleeson JA, with Emmett JA & Tobias AJA agreeing, said:
68.A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun v Minister) at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.
Again these are difficult grounds to establish.
At this stage the only material before the Court are the reasons of the primary judge. It is therefore difficult to deal in any detail with the prospects of the success of the appeal, save for the above general observations.
Turning then to the application for security of costs themselves. I note that the Independent Children’s Lawyer (“the ICL”) supports the application. The power to make such an order is included in the court’s powers as to costs, set out in s 117 of the Act.
The court is obliged to take the matters set out in s 117(2A) into account. Assistance in the matters to be considered can also be gained from r 12.02 of the Rules.
In Frazier & Valdez (2016) FLC 93-729, the Full Court said:
12.Whilst the exercise of the discretion depends upon the relevant circumstances of each case, in Luadaka & Luadaka (1998) FLC 92-830 the Full Court of this Court, after extensive review and reference to authority (and a leading text on costs), identified (at [62]) a (non-exhaustive) list of factors, additional to or in the context of those identified in s 117(2A) of the Act, which may be relevant to an application for security for costs. In summary, transposing that list to the context of an appeal, those factors are:
(a)The means of an appellant to satisfy an order for costs if he or she is unsuccessful;
(b)The financial circumstances of both parties: impecuniosity of the appellant is not alone sufficient to justify an order for costs but nor does it prevent an order being made if there are other grounds which justify an order. As regards the respondent, an order is not confined to cases where the respondent (the applicant for security) does not have the means to meet his or her costs – in appropriate circumstances an order may be made even if the applicant for security has the means to meet his or her costs;
(c)The prospects of success in the proceedings – ordinarily the Court will not undertake a detailed assessment of the likelihood of the appellant’s success unless it can be demonstrated that there is a high probability of success or failure;
(d)Whether the appeal is bona fide, whether it is genuine and not trivial, vexatious or a sham;
(e)Whether an order for costs would be oppressive or stifle the litigation: that prospect does not require a refusal of the application but is often a significant matter;
(f)Whether or not the litigation involves a matter of public importance (if so, this will militate against the making of an order);
(g)Whether or not there has been delay in bringing the application for security and consequent prejudice to the respondent (appellant);
(h)Other relevant matters may include any difficulties of enforcing an order for costs and the amount of costs to be incurred.
The respondent’s evidence identifies her poor financial position. She has a debt of $320,000 being the costs of the proceedings to service, as well as the complete care and support of the child without any assistance from the appellant.
The appellant’s primary submission on this application was that the above statements made by the respondent were false and that this is a malicious application because the respondent will not incur any costs in defending the appeal.
This is because, he said, a friend of the respondent’s provided her with the sum of $320,000 for legal costs of which either $75,000 or $100,000 remains. He proffered no evidence to support that statement. The appellant asserted that in evidence given in the criminal proceedings against him, the friend who provided the funds said words to the effect of that “he was flexible with repayments and ultimately did not expect to be repaid”. Such statements are not necessarily inconsistent with an advance that comes with it the legal obligation to repay. It may simply be an acceptance of realities. As I have said, in her affidavit, the respondent described the commission of funds as a loan which she is struggling to repay.
In order to attempt to disprove that evidence, the appellant sought an adjournment of the hearing of this application so as to enable him to obtain a transcript of the friend’s evidence. That application was refused because I considered that the appellant has had more than ample time since he received the respondent’s affidavit to follow that course.
His own affidavit of 12 April 2023 dealt specifically with that matter. If the provision of funds was indeed a gift, then the respondent will be expending her own funds which could otherwise be deployed to her other expenses including the support of the parties’ child. If, as said, it seems more likely that the provision of funds was a loan, albeit with some flexibility as to the terms of repayment, then the respondent is indeed in a poor financial position. Either way she will be funding the defence of the appeal if it proceeds.
I have already discussed the nature of the appeal which faces a number of difficulties. It cannot be said to have reasonable prospects of success. The appellant has failed to pay the respondent $6,000 in costs and the ICL $2,557 in costs that he was ordered to pay on 15 March 2016.
His suggestion that those orders were subsequently set aside is wrong and he has produced no such order. This however is an example of the appellant making broad assertions which turn out to be baseless, a matter noted frequently by the primary judge. This and the formulation of the grounds of appeal suggest that the appeal will not be prosecuted in a straightforward and simple manner.
The appellant does not live in Australia having been deported subsequent to his convictions for various serious criminal offences relating to the appellant’s safety. He has not identified where he lives.
It follows from the above that the appellant will not voluntary comply with a costs order if one is made at the conclusion of the appeal and that it will be most likely impossible for the respondent to enforce such an order.
Indeed, the primary judge recorded at [254] of her Honour’s reasons:
254.Despite what he submits, it troubles me that the [appellant], at least twice, in cross-examination referred to being beyond the jurisdiction of this court when giving evidence. He seemed to suggest that he could do whatever he liked because he was “beyond the jurisdiction anyway”. …
This application has been brought promptly and is clearly bona fide. There is no evidence that the appellant has the means to meet an order for security. The respondent submitted that because the appellant had proposed orders that he spend time with the child in New Zealand or be enrolled at a school in the United Kingdom suggests that he has some means. That may be so if they were genuine proposals but given the appellant’s bravado in making extravagant claims, as identified in the primary judge’s reasons, it is difficult to give them any significant weight. I proceed on the basis that if an order for security is made there will be a substantial risk that the appeal will be stifled.
That is not determinative of this application, but however it is a matter to take into account.
CONCLUSION AND COSTS
Taking all these matters into account, the interests of justice favour making the order for security for costs given the nature and prospects of success of the appeal, the residence of the appellant overseas and the almost certainty that any order for costs against him will never be met.
As there is no reason to vary the orders of the appeal judicial registrar, the application for review is dismissed. The application has been entirely unsuccessful and in those circumstances it is appropriate being a review application which was the subject of a considered decision to make, that there should be an order for costs.
It is appropriate that the appellant pay the respondent’s costs assessed in accordance with Sch 3 of the Rules. The appellant is to pay the respondent’s costs of the application fixed in the sum of $1,709.65 within 28 days.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 16 June 2023
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