COLLINS & RICARDO
[2017] FamCAFC 42
•10 March 2017
FAMILY COURT OF AUSTRALIA
| COLLINS & RICARDO | [2017] FamCAFC 42 |
| FAMILY LAW – APPLICATION IN AN APPEAL – where an oral application for recusal was made by the father – where the basis of that application was that the Honourable Justice Strickland and the Honourable Justice Murphy had sat on a previous unsuccessful application for leave to appeal brought by the father – where there is no proper foundation for that application – application dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – where an application was filed to proceed without a transcript – where that application also sought to adduce further evidence – where there is no prejudice to the respondent in allowing these applications – applications allowed. FAMILY LAW – APPEAL – LEAVE TO APPEAL – where the father sought leave to appeal orders made by the trial judge dismissing two applications made by him – where the first application sought an unsupervised contact visit between the father and the child – where the subsequent application sought recusal of the trial judge – where there was no error made by the trial judge – applications for leave to appeal dismissed. FAMILY LAW – COSTS – where counsel for the respondent mother made an application for costs – where that application was opposed by the father – where the mother was in receipt of legal aid – where the proceedings were wholly unsuccessful – where the father had been informed by registry staff that there was no substance to these proceedings – where counsel for the mother sought to include costs in relation to solicitor’s travel – where it would not be just to require the father to pay travel costs – costs otherwise ordered. |
| Family Law Act 1975 (Cth) s 117 |
| APPLICANT: | Mr Collins |
| RESPONDENT: | Ms Ricardo |
| FILE NUMBER: | SYC | 4959 | of | 2009 |
| APPEAL NUMBER: | NA | 69 | of | 2016 |
| NA | 85 | of | 2016 |
| DATE DELIVERED: | 10 March 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Strickland and Murphy JJ |
| HEARING DATE: | 10 March 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 September 2016 27 October 2017 |
| LOWER COURT MNC: | [2016] FamCA 996 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person by telephone |
| COUNSEL FOR THE RESPONDENT: | Mr J Bunning |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Queensland |
Orders
The oral application made by the applicant for the Honourable Justice Strickland and the Honourable Justice Murphy to recuse themselves from the hearing of this appeal be dismissed.
The application to proceed without providing a transcript be allowed.
The application to adduce further evidence be allowed.
The applications for leave to appeal filed on 28 September 2016 and 21 November 2016 be dismissed.
The applicant contribute to the respondent’s costs in these proceedings fixed in the sum of $3,850, with such sum to be paid within 90 days.
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 Collins & Ricardo 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 69 and 85 of 2016
File Number: SYC 4959 of 2009
| Mr Collins |
Applicant
And
| Ms Ricardo |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT[1]
Murphy J
[1] Headings have been added to the settled reasons for ease of reference.
The father of a child now aged eight seeks leave to appeal procedural orders made by Carew J on 1 September and 27 October 2016.
The father, who represents himself, raised before us by way of an oral application that Strickland J and myself should recuse ourselves. The sole basis of that application appears to be that the two of us have sat on an earlier unsuccessful application for leave to appeal brought by the father.
The father’s position is perhaps rendered somewhat understandable by reason of the fact that Tree J, who is resident judge in North Queensland, has disqualified himself from hearing the matters the subject of the broader proceedings by reason of having sat on an earlier appeal. However, the father’s oral application has no proper foundation and should be rejected.
In my view, leave to appeal should be refused. The proposed appeals relate solely to procedural orders and involve no final determination of the substantive rights of the parties. It is not demonstrated that the appeals have any merit. No injustice to the applicant father is evident.
My reasons for that conclusion can be relatively briefly stated, but, unfortunately, it is necessary to place the father’s applications within their rather complex relevant antecedent history.
Application in the Appeal
First, it is necessary to deal with an application in an appeal filed by the father by which he seeks to be excused from producing the transcript of a relevant part of the proceedings, despite a procedural order that he do so and, additionally, seeks to adduce further evidence, being emails passing between him and the court. Neither of those applications is opposed by counsel for the mother and no prejudice to her is asserted.
A consideration of the issues in the application for leave to appeal satisfies me that they can be heard and determined with no prejudice to the respondent mother, or, indeed, the father himself.
In the absence of a transcript for the proceedings on 27 October, it might be noted that, because of the applicant father’s absence from earlier proceedings, a transcript of them had been ordered and made available to the parties (see the reasons of Carew J at [38]).
The application to adduce further evidence pertains to emails passing between the father and the court and is said to illustrate that the hearing date of 1 September appointed in respect of his two applications in a case was “unsuitable”.
The emails were plainly available to be tendered before her Honour on 27 October and, otherwise, might not satisfy the test for receipt of further evidence. However, the applicant father represents himself; the emails are illustrative of his arguments and he was not present for the 1 September proceedings. Receipt of them into evidence by this Court causes no prejudice to the respondent mother.
I would allow the application to receive the further evidence. In light of the fact that the respondent elicited no objection to the adducing of that further evidence, the presiding judge indicated to the parties that such an order would be made.
The Context for These Proceedings
The current applications are the latest of innumerable applications filed between the parties in a litigation history that now spans nearly eight years. As can be seen, the parties’ litigation about their child has occupied, effectively, the entirety of her life.
Most recently, and relevant as context to the instant applications, on 17 September 2015 Rees J ordered that parenting proceedings then subsisting in the Sydney Registry of the Family Court of Australia be transferred to the Cairns Registry. The father sought leave to appeal that decision. His application for leave was refused by the Full Court on 20 June 2016.
With all respect to the self-represented father, the confusion evident in the father’s case and its presentation referred to by that Full Court is again evident before this Full Court.
Consequent upon the failure of that application for leave to appeal by the father, the proceedings were, in fact, transferred to the Cairns Registry of this Court. An Application in a Case was filed by the father on 8 August 2016. It, too, is a somewhat confusing document and is a mixture of orders sought and argument.
It contains the following as being the orders sought:
1.I ask that my matter [ Amended Initiating Application filed 16/4/14 ] be relisted to expadite the hearing date . The original Initiating Application was filed on the 21/1/14.
2.Ms [Ricardo] continues to ignore all court orders and now is contraveining every single court order. Due to her contravention of court orders and Parental alienation of my daughter , my daughter has not had contact with myself since March 2015 when I flew to Cairns. I ask that due consideration is given to my request to deal with my hearing and interim application and a hearing is granted by way of telephone with in 7 days. or sooner as this is becoming most urgent and is obviously effecting my daughter’s mental health. See Notice Of Child Abuse filed 15/9/15.
3.I ask that this first hearing not be a mention but a hearing to discuss my Interim Application to vary the contact orders. There has been more than enough court mentions and undue stalling in this due process.
4.I ask the court vary the contact order to non supervised over night contact from the 27th of August at 9 am at change over at [AAA Location] to the 28th of August at 5 pm at [AAA Location].
5.I ask for an order for a second contact a fortnight later on the 9th of September changeover at [AAA Location] at 4pm and return on the 11th of September at 5pm.
6.I ask to attend the procedule hearing by phone. My ph number is ph [Applicant’s phone number]
7.I ask for this application to be expadaited if the Mother fails to turn up to court.
8.I ask for this application to be heard with some urgency.
9.I ask for all my contravention / contempt applications be given various court dates and hearings be done by way of telephone.
(As per original)
That application, labelled as “urgent” by the father, was listed to be heard on 1 September 2016. It is relevant to note that the “urgent” application sought as one of its orders that time be permitted between him and his daughter on the last weekend in August. Central to his arguments on this appeal is that the hearing date of 1 September 2016 occurred after the relevant weekend.
With those facts in mind, a second Application in a Case was filed by the father on 18 August 2016. That application sought these “orders”:
1.I ask that the hearing date given on the 1/9/16 be brought forward sometime before the 27/8/16 to take into account what the “Urgent Application in a case” was submitted for. That is a unsupervised visit on the 27-28th of August.
2.I ask to attend by way of phone as I will not be near any family Law Courts except on the 23/8/16 when I am in Brisbane.
3.I ask this matter be refered back to Sydney as Sydney can hear urgent applications with in 48hrs notice.
4.I will not have phone or internet coverage between 28-8/16 – 10/9/16. To have a hearing after the 26/8?16 would defeat the purpose of the urgent application and any chance of contact between the daughter and father.
(As per original)
That application was also allocated the hearing date of 1 September 2016. On the scheduled hearing date of 1 September, the father did not appear. An order was made by Carew J dismissing each of the applications in a case filed by him on 8 and 18 August. Nothing to which the father refers in any oral or written submissions made by him suggests any error in her Honour so doing.
The order made on 1 September noted that an Application in a Case filed by the mother on 26 August 2016 “is to be allocated a hearing date not before 31 October 2016 at the request of the [mother]”.
What occurred in the aftermath of those proceedings emerges from Carew J’s ex tempore reasons for judgment delivered on 27 October 2016.
1.This matter comes before me generally today as a result of this matter first being dealt with by me on 1 September 2016.
2.It became apparent on that date that there were still many applications that had not yet been resolved for the parties. Most importantly, there is an outstanding Initiating Application that was filed by the father on 21 January 2014 and amended by him on 28 July 2014 seeking to revisit the Order of the Honourable Justice Watts dated 12 January 2012 (“the primary parenting Order”). That Order was made after a nine day hearing of this parenting matter.
3.As a result of the number of outstanding applications, the parties were notified in writing that this matter would be listed today for the purposes of a case management hearing.
4.The parties were each invited to attend today’s hearing via video link. A letter from the Court to the parties on 19 September 2016 advised them that the matter had been listed before me for a case management hearing, that the parties had leave to appear via video link and that they should contact the Cairns Registry to make those arrangements. That letter further notified the parties that if they had difficulty attending the Cairns Registry in person, they could attend the hearing by telephone and the parties were invited to call the Cairns Registry to make such arrangements.
5.On 18 October 2016 it was confirmed to the parties by written correspondence that this was a case management hearing and that the purpose of the hearing was to establish which applications remain outstanding and to make further directions to progress the matter to trial. Parties were again reminded that they had leave to appear by video link and that they should contact the Cairns Registry to make those arrangements.
On 21 October 2016, some three days after the correspondence to which her Honour refers at paragraph 5 of those reasons, the father filed a further Application in a Case.
That application sought the following orders:
1.I ask that all my proceedings be transferred back to Sydney due to the inability of Cairns Registry to hold the proceedings. This is due to Justice Tree removing himself from hearing any matters in this proceedings as he was a preceeding Justice in a former appeal in this matter.
2.I ask my proceedings be expedited.
3.I ask Justice Carew disqualify herself from any proceedings with myself until the Appeal is finalised on inappropriate orders already made by Justice Carew on the 1/9/16
4.I ask Justice Carew hand down her ‘Reasons for Judgement’ as soon as possible to allow the Appeal to progress. The Draft Index cannot progress until a ‘Reasons for Judgement’ is handed down. This matter was given an expedited Status by Registrar George in August 2014 and it appears now stalled by Justice Carews inability to finalise matters she has already dealt with.
5.I ask that no further proceedings to be held in Brisbane as this is not suitable to the Respondant or Applicant and is clearly in breach of court orders make by the full bench.
(As per original)
Bias?
That application was made returnable before her Honour on 27 October; that is, the date upon which the “case management hearing” to which her Honour refers in the passages just quoted was to be held. Her Honour says, with respect correctly as it seems to me, that “[i]t is not readily apparent from the father’s material why it is sought that I disqualify myself” (Reasons, 27 October 2016, [12]).
Nor did the basis upon which any such claim might be made become apparent in any written or oral argument advanced by the father in this Court. The father offers no foundation whatsoever for any such claim. As best as can be discerned, the basis would appear to be that her Honour made a decision, as he asserts it, to list and hear on 1 September his application filed on 8 August, contrary to what he asserted should occur; that is, the court did not give him the result that he wanted.
He asserts orally in arguments made before us this morning, that he has “a good feeling for bias” and that he maintains that the trial judge did not afford him an impartial hearing. To the extent that any such assertion might emerge from the transcript, it is, of course, not apparent to us because the father has failed to provide that transcript. I cannot for myself see any suggestion that the lack of impartiality is evident.
To the extent that a second basis might be discerned for the father’s assertion, it seems to me that the father asserts that her Honour was acting contrary to Rees J’s orders transferring the proceedings to Cairns. The basis of that assertion would appear to be that her Honour heard the proceedings via video link from Brisbane. The assertion is nonsensical. It should be noted, in any event, that her Honour did so because the resident judge had recused himself.
The Application for Transfer to Sydney
Her Honour dismissed the father’s application to transfer the proceedings back to Sydney on the unsurprising basis that that very issue had been the subject of an earlier determination by Rees J, that it was the subject of an unsuccessful application for leave to appeal by the father, and that the material before her Honour offered no evidence which suggested that there had been any changed or altered circumstances which might justify any such change.
A Hearing in Brisbane?
In seeking to make sense of the “orders” sought before her, Carew J isolated some under the heading “Application that there be no hearings of this matter in the Brisbane Registry”.
This heading appears to seek to address the premise inherent in many of the father’s submissions that a matter has not been transferred to the Cairns Registry and/or is not being managed and heard in the Cairns Registry if a judge other than one physically present in Cairns hears and determines proceedings via video link. That premise is false. In any event, there has been no suggestion that the trial will be heard otherwise than by a judge present in Cairns.
Expedition
Her Honour’s reasons conclude by dealing with what is gleaned to be an application for expedition of the substantive proceedings.
Her Honour ordered that the trial be set down to be heard from 21 to 23 December 2016, that is to say, some eight weeks subsequent to the date on which the proceedings were heard and determined by her Honour.
On any view, given the enormous caseload faced by the trial division of this Court, that is an expedited hearing. The trial was, in fact, expedited. Those dates have been vacated subsequently by reason of these applications for leave to appeal by the father.
The father’s actions have caused the trial of the substantive proceedings, which he purports to urgently want determined, to be delayed.
Conclusion
Nothing to which this Court has been taken in any written or oral submissions made by the father suggest, in my view, any error made by her Honour.
The applications for leave to appeal should, in my view, be dismissed. In written submissions filed on behalf of the respondent mother, it was suggested that an application would be made pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”). Her counsel made clear that that application was not being pursued by her.
Strickland J
I agree with the reasons given by Justice Murphy and with the orders foreshadowed by his Honour.
Thackray J
I also agree with the reasons given by Justice Murphy and with the orders he foreshadowed.
RECORDED: NOT TRANSCRIBED
Costs of the Appeal
The Full Court now has before it the respondent’s application for costs incurred in successfully opposing the application for leave to appeal.
An amount of $4,634 is sought, payable within 90 days.
The makeup of that amount is:
·$2,220, a fairly modest fee for counsel;
·$1,627 preparation by the solicitors, again, a very modest amount; and finally
·$787, being a disbursement for the respondent’s solicitor to travel from Cairns to Brisbane to instruct Brisbane-based counsel today.
The application for costs is opposed by the applicant.
The application is made under s 117 of the Act, which provides that each party to proceedings shall bear his or her own costs. This is subject to, inter alia, s 117(2) which provides that if, in proceedings under the Act, the court is of the opinion that there are circumstances that justify it doing so, the court may, subject to certain conditions, make such orders as to costs as the court considers just.
Section 117(2A) goes on to provide that in considering what order, if any, should be made, the court shall have regard to a number of factors. Each of these has been mentioned briefly in the submissions of counsel for the respondent.
The first factor is the financial circumstances of each of the parties. We have very little information about this matter, other than the respondent is in such a position that she has successfully obtained legal aid (albeit the applicant considers the respondent’s position may not have been accurately stated to the legal aid authority). The only evidence we have of the applicant’s financial position is a copy of a bank statement indicating that he has a modest amount of money in the bank, and his own unsworn statements that he is a farmer facing difficult financial circumstances. In the absence of any proper evidence, it is difficult to reach any conclusion in relation to the parties’ financial circumstances, but the authorities are clear that impecuniosity of a litigant is no bar to an order for costs being made. That is especially so, in my view, in relation to appellate proceedings where the applicant has chosen to bring the matter before a second tribunal.
The second factor is whether any party to the proceedings is in receipt of legal aid and, if they are, the terms of the grant of that assistance. Here the respondent has obtained legal aid and, as a result, has had representation both by solicitor and counsel. In the event that an order for costs is not made, the costs associated with these proceedings will be paid by the public purse rather than by the person who caused the proceedings to be instituted.
The third factor is the conduct of the parties to the proceedings. Although counsel for the respondent made submissions in rather general terms, I am not persuaded that the conduct of the applicant is a relevant factor. He is a self-represented litigant who has not done a terribly good job in drafting grounds of appeal and a summary of argument, but it is scarcely to be expected that he could have done a better job, given he does not have legal training. In my estimation, he has done his best to present his case.
The factor mentioned in s 117(2A)(d), is irrelevant.
The next factor, in my view, is highly relevant. This is whether any party to the proceedings has been “wholly unsuccessful”. The applicant here has been wholly unsuccessful. I accept the respondent’s submission that it was inevitable that the application would fail. Had the applicant taken legal advice about the matter he would not have pursued it. This is a very significant factor.
The next factor is whether an offer in writing has been made. Notwithstanding what was said by counsel for the respondent, there was no offer in writing.
The final factor is a catchall provision, namely “such other matters as the court considers relevant”. As Murphy J has pointed out, the applicant was informed by registry staff on 19 August 2016 that a fundamental plank of his case had no substance. He did not heed that advice, and, in my view, that is a relevant consideration.
I would make an order for costs. However, the question is whether the respondent is entitled to the full amount sought. The amounts for counsel and preparation by the solicitor are entirely appropriate. But the applicant takes issue with the disbursement of $787 for the solicitor to travel from Cairns to Brisbane for today’s hearing. The applicant says this was unnecessary, and that counsel could have conducted the hearing without the benefit of a solicitor instructing him. And of course there was a possibility that a Legal Aid solicitor based in Brisbane might have attended to instruct counsel.
I am not concerned about the propriety of the solicitor attending. It is entirely a matter between solicitor and counsel, and I can see good reasons why they would have felt the solicitor should be in attendance. However, as Murphy J has said in exchanges, it is another question altogether as to whether the luxury of having a solicitor, fully conversant with the matter, present in court to instruct counsel is something that should be brought home on a self‑represented litigant. Although it was not in any way improper for the solicitor to attend, I would not consider it “just”, to use the expression in the legislation, to require the applicant to pay the costs involved in a matter such as this, where the application was doomed to fail.
I do not, however, accept the applicant’s argument that it was unnecessary for any legal representative to be involved in representing the respondent. The issues involved were not without complexity. The respondent does not live in Brisbane. In my view, it was appropriate for Brisbane-based counsel to be engaged.
For those reasons, I would order the applicant to pay the respondent’s costs in an amount which I would round off at $3,850, to be paid within 90 days.
Strickland J
I agree with the reasons given by the presiding Judge and the proposed orders.
Murphy J
I, too, agree with the order proposed by the presiding Judge and with his Honour’s reasons. I have nothing to add.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Murphy JJ) delivered on 10 March 2017.
Associate:
Date: 21 March 2017
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