Coleman and Hindle & Ors - [2009] FamCAFC 189

FAMILY COURT OF AUSTRALIA

COLEMAN & HINDLE AND ORS

[2009] FamCAFC 189

FAMILY LAW - APPEAL – FROM A DECISION OF A FAMILY COURT JUDGE – PRACTICE AND PROCEDURE – Application for extension of time within which to appeal – Orders at the heart of the proposed appeal were largely procedural – Consideration of the utility of any appeal and prospects of success – Application dismissed – Costs sought against the applicant – Applicant in poor financial circumstances – Cannot rely on financial hardship to avoid a costs order – Responsibility to take care in the invocation of the court’s jurisdiction – Applicant to pay costs of other parties

FAMILY LAW - Application to have applicant declared vexatious – Such an application requires factual determinations to be made – Applicant had not received prior notice of such an application – Application refused

APPLICANT:

Mrs COLEMAN

RESPONDENT 1:

Mr HINDLE

RESPONDENT 2:

Ms HINDLE

RESPONDENT 3:

DEPARTMENT OF CHILD SAFETY

INDEPENDENT CHILDREN’S LAWYER:

CARTER FARQUAR

APPEAL NUMBER:

2009

FILE NUMBER:

BRC

5431

2008

DATE DELIVERED:

29 September 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick J

HEARING DATE:

29 September 2009

REPRESENTATION

APPLICANT:

Applicant appeared in person via phonelink

FIRST RESPONDENT:

First Respondent appeared in person

SOLICITOR FOR THE SECOND RESPONDENT:

Ms Hewitt

SOLICITORS FOR THE SECOND RESPONDENT:

Bridges Family Law Specialists

COUNSEL FOR THE THIRD RESPONDENT:

Mr Selfridge

SOLICITOR FOR THE THIRD RESPONDENT:

Crown Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Walsh

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER

Carter Farquar

Orders

That the applications contained in proposed orders 1 - 5 sought in the application for extension of time to appeal filed 2 September 2009 be dismissed.
That the applicant, Mrs Coleman, pay the costs of and incidental to today’s application of the first respondent, the Department of Child Safety and the Independent Children’s Lawyer as agreed and in default of agreement as assessed.

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

IN THE APELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: NA68 of 2009
FILE NUMBER: BRC 5431 of 2008

Mrs COLEMAN

Applicant

And

Mr HINDLE

Respondent 1

And

Ms HINDLE

Respondent 2

And

DEPARTMENT OF CHILD SAFETY

Respondent 3

And

CARTER FARQUAR

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

I will state the order that I propose to make first and then I will give my reasons for that order. I propose to dismiss the application for an extension of time which involves dismissal of the orders sought in paragraphs 1 and 2 of the application filed by Mrs Coleman on 2 September 2009, and the order sought in paragraph (4) then becomes a matter which it is not necessary to consider.
As to the request for a recovery order I am inclined to dismiss that as a matter of incorrect form and leave it to the filing of a fresh application if any order is sought. I say that because it appears in an application in an appeal and might be inclined to be lost in the system unless an application in the parenting matter was made for a recovery order, but I will allow an opportunity for that to be addressed before I formally pronounce orders.
In support of her application for an extension of time Mrs Coleman has filed an affidavit. Whilst I am not certain from what she deposes to as the exact chain of events following the making of the order on 17 July 2009, being the order she seeks to appeal, the period of delay is relatively short. There was a delay of some days, or perhaps week even, in the availability of the sealed orders and then the receipt of them and I merely say that delay, in my view, is not really a significant question in deciding whether or not an extension of time ought to be granted.
The significant questions are whether, really, there is any utility in extending the time to appeal the orders and whether there is any real prospect of success. There is also a question as to whether or not permission to appeal is needed because the orders, though made in what is a parenting matter, were purely procedural orders. I do not think I need to resolve that issue because, whether leave is necessary or not, the fact that the orders are of a procedural nature is highly relevant, in my view, to whether or not any useful purpose is served by extending time within which to appeal.
The orders that Mrs Coleman seeks to appeal are order (3) which is that an application in a case and an application for final orders, both filed on 17 June 2008, be adjourned to 10 am on 23 October 2009 for interim hearing and/or mention. In other words, on the face of the order, there will not necessarily be a hearing of those applications on the date specified in October. It may only be a mention for the management of the application.
Notwithstanding that, Mrs Coleman wishes to appeal on the basis that, as expressed in her proposed ground of appeal, order (3) is already on appeal from 29 April 2009 under N42 of 2009 as amended on 9 July 2009, and in the welfare proceedings under … in the High Court of Australia.
As to that, clearly, that cannot be literally correct because the order cannot be already on appeal in those proceedings, it only being made on 17 July. I take, really, the thrust of what Mrs Coleman says to be that the questions raised in the June applications made by the mother is a question that she thinks arises under the appeal proceedings and the proceedings in the High Court which she refers to.
Even if that is so, that would not mean that an order simply adjourning the application, whether for hearing or mention, was of itself in error. The, perhaps, primary argument that Mrs Coleman raises is, in effect, that there is currently an order relating to the children in favour of the director of the Department of Communities and this Court cannot make an order effective during the operation of that order. That, of course, is not determinative of whether or not an application seeking orders to operate after the anticipated expiry of placement with the department may be made.
In my view, in the circumstances there will be no useful purpose served in granting an extension of time to appeal order (3) and I am not satisfied that any real prospect of success exists on appeal against it. I should indicate that Mrs Coleman participated in the proceedings leading to the order of 17 July 2009, appearing by telephone.
Order (4) required that Mrs Coleman serve on the other parties, within seven days, a sealed copy of various applications. The first-named has really been overtaken by events; the second, which related to the independent children’s lawyer, is not now in the form that it was then to be pursued. The third application related to an amended application for contravention. Affidavits in support were also to be served.
The complaint that Mrs Coleman seeks to make is that the period for service was too short, it was an unfair order, the documents had already been served and the orders were made because of some bias on the part of Murphy J towards Mrs Coleman.
Allegations of bias, of course, are serious allegations, but they are easily made. Simply because such an allegation is made says nothing of the merits of it. Proposed appeal ground 3 is of some assistance in addressing the merits of any ground based on bias and that proposed ground referred to perceived conduct of his Honour relating to some communications which occurred in August 2009, namely, after the orders which it is sought to appeal.
Those matters do not, in any way that I can understand, go to the question of appealable error in the making of the orders of 17 July 2009. Therefore, I can discern no real prospect of success insofar as it is sought to rely upon some generalised perception that his Honour has been biased towards Mrs Coleman on past occasions.
Of course, it is obvious that order (4) places but the slightest burden on Mrs Coleman in that it simply required service or – as she would have it – re-service, of some court documents. It is difficult to understand what utility would be served by extending time to appeal such an order.
Order (5), however, is of greater significance and I should say that what I have referred to as order (5), in fact, is not couched as an order and I am not necessarily satisfied that it is an order. The heading after order (4) is:
It is noted that -
and then (I will call it paragraph (5)) – reads:
Should there be non-compliance with order (4) above with respect to the other parties being served documents the applications listed in (4)(a) (b) and (c) above will be dismissed.
On its face then that is not an order which has a guillotine or automatic operation but is a notation of an intention that if service is not made, the applications will be dismissed. That interpretation is somewhat consistent with what appears to have happened. All parties seem to be of the understanding that because of events that occurred after the orders were made the question of whether or not the applications as described in order (4) are or will be dismissed is to be visited or revisited by Murphy J, I think in October, but certainly on a subsequent date.
In those circumstances, again, it is difficult to see of what Mrs Coleman is aggrieved. In any event, I am not satisfied that there is any prospect of a successful appeal against such an order, if an order it in fact be.

RECORDED : NOT TRANSCRIBED

Three parties seek an order for costs against Mrs Coleman in relation to the application for an extension of time within which to appeal, which application I have just dismissed. I accept, for the purposes of my deliberations, that Mrs Coleman is in financially tight or stringent circumstances and that an order for costs against her might well constitute financial hardship.
The nature of the application was one to appeal, as I have described, substantially procedural orders. It is apparent from the course of the hearing today that in relation to a number of the impacts of those orders the impacts were minor or, indeed, of no effective impact against Mrs Coleman’s interests at all.
The grounds of appeal related mostly to events which occurred after the orders and I have found, as I have expressed in dealing with the application proper, no real prospects of a successful appeal. In many ways the application lacked substance and merit. I take account of that and the dismissal of the application and consider that it is the most significant of the factors which bear upon the question of costs as set out in the Family Law Act and that an order for costs ought to be made as sought.
I add only that while I expressed an acceptance of Mrs Coleman’s financial circumstances, and the likely hardship than an order for costs will cause her, parties cannot rely upon poor financial circumstances to bring litigation before the court which necessarily involves other parties, including the state, in expense, and expect to be relieved of any obligation to pay the costs of failed applications because of poor financial circumstances. Indeed, persons who cannot pay the costs of litigants brought to court ought to have, in one sense, an added responsibility to be careful about the invocation of the court’s jurisdiction.
I shall just add in relation to costs that some of the parties who sought costs against Mrs Coleman sought that I have regard to historical matters or conduct which goes beyond the particular application with which I have dealt. I have expressly disregarded any of those submissions in coming to the conclusion about costs which I have expressed.
Ms Hewitt sought that I receive and deal with an application that Mrs Coleman be declared vexatious. I do not intend to entertain that application. It seems that this sort of application is often made at the end of a proceeding such as that with which I have just dealt, but based not on the proceeding itself but on a long history as to which a particular interpretation is urged upon the court.
Two things ought to be appreciated by those who would seek that the court deal with such applications. One is that the relevant section focuses on the particular application before the court and whether that was vexatious or not, but to the extent that a court may look at a prior history a proper opportunity ought to be given to the respondent to any such application to consider that history and put forward any evidence which might put an interpretation or explanation upon it different to that contended for by the applicant for the declaration.
Applications like the one Ms Hewitt makes are serious and involve factual determination, not merely argument, and it is for that reason that I decline to receive it and call upon Mrs Coleman to respond today. To do so would be grossly unfair, in my view. Now, that is not to say that such an application ought, in this matter, not be brought, but if so it ought to be brought in a proper timeframe and with a readiness for the matters that I have described to be explored.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate:

Date: 16 October 2009