Clayton and Clayton - [2010] FamCAFC 211

FAMILY COURT OF AUSTRALIA

CLAYTON & CLAYTON

[2010] FamCAFC 211

FAMILY LAW - APPEAL – CHILDREN – Appeal from decision of Family Law Magistrate – Appellant self-represented – Appeal entirely misconceived – Appeal dismissed – Order for Appellant to pay Respondent’s costs of appeal – costs not to include the cost of submissions on behalf of the Respondent filed out of time

Family Law Act 1975 (Cth)

APPELLANT:

Mr Clayton

RESPONDENT:

Ms Clayton

FILE NUMBER:

PTW

656

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

1 July 2010

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

1 July 2010

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

25 January 2010

LOWER COURT MNC:

Unreported, Magistrates Court of Western Australia, Fleming M, 25 January 2010

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Appellant in person

SOLICITOR FOR THE APPELLANT:

Self represented litigant

COUNSEL FOR THE RESPONDENT:

Ms Anderson

SOLICITOR FOR THE RESPONDENT:

DCH Legal Group

Orders

The oral application of the Respondent for an extension of time within which to file the Respondent’s Summary of Argument be dismissed.
The appeal be dismissed.
The Appellant pay the Respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed, such costs not to include the preparation of the submissions in reply and the Respondent’s chronology.

IT IS NOTED that publication of this judgment under the pseudonym Clayton and Clayton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT PERTH

Appeal Number: WA 2 of 2010
File Number: PTW 656 of 2009

Mr Clayton

Appellant

And

Ms Clayton

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The legislation and rules allow the Court to deal with an appeal by giving reasons in short form, rather than by giving detailed reasons which might take a good deal more time to produce.
Essentially, in reading Mr Clayton’s Notice of Appeal and in reading his submissions, it is apparent he is frustrated by the delay in a resolution of matters involving the welfare of the parties’ daughter. He considers that matters should have moved beyond the stage that they have currently reached, and that he should have an opportunity to spend more time with the child than he has been permitted pursuant to orders made by the Magistrate.
The difficulty from his point of view, however, is that the specific orders that he has appealed are those made on 25 January 2010, and in hearing his appeal it is not appropriate for me to range widely over the other parts of the proceedings which have troubled him.
My task today is to determine whether or not on 25 January 2010 the Presiding Magistrate erred in law in making the orders that he did.
Mr Clayton’s Notice of Appeal indicates, in Part C, that he is seeking leave to appeal. There is some controversy as to whether leave is needed in circumstances such as those here. I do not necessarily accept that leave is required, but if leave was required, his task would be even more difficult than it might otherwise have been. Rather than dealing with points relating to the requirements for leave to appeal, I intend simply to address the appeal on its merits, as if leave had been granted, if it were required.
There are three elements of Mr Clayton’s complaint. Firstly, that on 25 January 2010 the Presiding Magistrate should have acceded to a request from him for an extension of his time with the child. The second complaint is that the Magistrate should not have ordered a supplementary report from the single expert, Mr H, but instead should have proceeded to deal with the matter on the basis that there was already sufficient information available for that purpose. The third complaint is that the Magistrate refused to deal with Mr Clayton’s then Form 18 Application for contravention.
I have already flagged in my discussions with Mr Clayton this morning that each of the propositions has a fundamental difficulty. Dealing first with the extension of his time with the child, my examination of the file reveals that the father had on foot an interim application seeking an extension of time with the child. That was the application filed on 14 October 2009, which appears at page 35 of the Appeal Book and following. Essentially, what he was seeking at that time was to commence immediately an alternate weekend “access” arrangement with the child, as well as other times, including Wednesdays.
When that matter came before the Court, Mr Clayton had a considerable degree of success and effectively achieved most, if not all, of what he wanted. The matter then came before the Court on 10 December 2009, and I have the benefit of a transcript of what occurred on that day. After various discussions, the Magistrate, on page 184, said that the matter was to be adjourned through to 25 January 2010 at not before 12 noon to monitor the position.
Had Mr Clayton been legally represented, he would have understood that the effect of that order was that Court would simply conduct a brief review of the position on that date to see where the case should then proceed. Mr Clayton did not then have on foot, and he did not by 25 January 2010 have on foot, an application for a further extension of the time which had been granted to him earlier.
In those circumstances, counsel for Ms Clayton was quite right to draw attention to the Magistrate at the commencement of the hearing on 25 January 2010 that the matter had been listed for monitoring only, and that was the position that the Magistrate accepted. It would have been an error on the part of the Magistrate, given all of the circumstances, to have given any consideration to an amendment of orders made not all that long in the past (unless there was consent from both parties). Accordingly, there is no substance in Mr Clayton’s first complaint.
The second complaint concerns the single expert, Mr H. Mr H had previously provided a quite comprehensive report, and it was the Magistrate’s determination on 25 January 2010 that a supplementary report be obtained. It is true that the Magistrate did not give anything much in the way of reasons as to why he considered that a supplementary report was to be provided. In essence, he said that given the matters that had been put before him on that day, he thought it appropriate that there should be a further report.
He had before him a letter from the Department of Child Protection, which although undated was clearly material upon which he could rely, and in that report DCP had recommended that there be a further meeting between the child and Mr H. Quite apart from that report, it is a fact that the child had commenced having overnight time with her father. That arrangement had been in place for some time. Given her age, and given her degree of maturity, it was open to his Honour to consider that he might be assisted by receiving an updated report.
Frankly, it could have been that the updated report would be very much to Mr Clayton’s advantage, just as much as it may have been to Ms Clayton’s advantage, in seeking to obtain the outcome that they each wanted. Most importantly, it gave the child an opportunity, as the person most affected by these proceedings, to have some further input in the proceedings.
As I have explained to Mr Clayton today, the question is not whether, if I had been in the Magistrate’s position, I would have ordered a report. The question has to be whether or not the Magistrate erred in law in making an order for such a report. In my view, it is clear that he did not. I would have done the same thing in the same circumstances, for what that is worth, but he did it for good reason, and that is because he wanted further information before he made what was a very important decision for the child. Accordingly, there is no substance in that part of Mr Clayton’s appeal.
The third matter relates to his Honour’s failure to consider the contravention application that Mr Clayton had filed in relation to an earlier order about what the mother was to do, or not to do, with the child. This harks back to the first problem that Mr Clayton has, and that is 25 January 2010 was not a day for hearing of the contravention proceedings, but a day to monitor the substantive proceedings. The Magistrate made that point to Mr Clayton.
His Honour also went somewhat further and expressed his doubt as to whether or not prosecution of a contravention proceeding would, in fact, achieve what Mr Clayton thought it might achieve. The Magistrate, rightly or wrongly, expressed the view that he did not think it was worth pursuing, to which Mr Clayton respectfully responded that he would be guided by what the Magistrate had said. The Magistrate, in those circumstances, went on to say he would wait until after the updated report had been made available from Mr H before he heard the contravention application. Importantly, however, the Magistrate did say, at Appeal Book page 176, that if Mr Clayton wanted to proceed with the application, then it would be listed, but it would be listed at a later time.
In all of those circumstances, it would have been quite inappropriate for the Magistrate to have proceeded to hear the contravention application. Ms Clayton and her advisors were not on notice that the matter was going to be before the Court that day, and in fact Ms Clayton had left the Court to visit a sick relative, no doubt knowing that the matter was listed only for monitoring and that she was not expected to deal with a contravention application.
So whilst I have some sympathy with Mr Clayton for not being able to understand the processes of the Court, it is an unfortunate aspect of the lack of legal representation that sometimes matters do not follow the path a litigant anticipated. There is no merit in the final part of his appeal.
There being no other matters to consider, the appeal will be dismissed.

Costs

The application now before the Court is the respondent’s application for costs of the appeal. Counsel for the respondent properly acknowledges that those costs should not include the costs associated with preparation of submissions that were filed out of time and which I refused to receive. Otherwise she says the appellant has been completely unsuccessful in his appeal, which is of course conceded.
I accept Mr Clayton’s submission that the appeal was brought in good faith. There is no reason to doubt that, but it was entirely misconceived. Had money being spent on obtaining legal advice in relation to the prospects of appeal, Mr Clayton would have been advised not to proceed. Ms Clayton would then not have been put to the expense of responding.
It is the common practice, although not inevitable, that an unsuccessful appeal generally results in an order for costs being made. In these circumstances, where the appeal had no merit at all, it is appropriate that there be an order for costs. There is no basis for reducing it by 50 per cent. There is, however, a basis for not including the submissions filed on behalf of Ms Clayton.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered 1 July 2010.

Associate:

Date: 28 October 2010