COLLINS & RICARDO
[2016] FamCAFC 119
•20 June 2016
FAMILY COURT OF AUSTRALIA
| COLLINS & RICARDO | [2016] FamCAFC 119 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant father sought leave to proceed without transcript of the proceedings below – leave granted. FAMILY LAW – APPEAL – TRANSFER – LEAVE TO APPEAL – where the applicant father sought leave to appeal the procedural orders of Rees J transferring the proceedings to Cairns – where there is no merit in the appeal – where there is no substantial injustice to either party – leave refused – the father pay the fixed costs of the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) s 117 |
| APPLICANT: | Mr Collins |
| RESPONDENT: | Ms Ricardo |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuels |
| FILE NUMBER: | SYC | 4959 | of | 2009 |
| APPEAL NUMBER: | EA | 171 | of | 2015 |
| DATE DELIVERED: | 20 June 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Murphy, Kent & Austin JJ |
| HEARING DATE: | 20 June 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 September 2015 |
| LOWER COURT MNC: | [2015] FamCA 779 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bateman |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuels & Associates |
Orders
The Application in an Appeal filed 30 March 2016 seeking leave for the hearing of the application for leave to appeal to proceed without transcript of the proceedings below be allowed.
The application for leave to appeal filed by the father on 8 October 2015 be refused.
That the father pay the costs of the Independent Children’s Lawyer of and incidental to the application for leave to appeal fixed in the sum of $4,356.00 inclusive of GST to be paid on or before a date three months from the date of these orders.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 171 of 2015
File Number: SYC 4959 of 2009
| Mr Collins |
Applicant
And
| Ms Ricardo |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE
REASONS FOR JUDGMENT
Murphy J
On 17 September 2015 Justice Rees made an order that “these proceedings be transferred to the Cairns Registry of the Family Court of Australia”. The father of the child seeks leave to appeal that procedural order. It is not disputed that leave is required. That litigation history is traversed in her Honour’s Reasons and culminates with her Honour recording at [8] of the Reasons that:
On 23 September 2011 the father filed the first of many contravention applications. At the hearing of the applications for change of venue, the father informed me that there had been 32 contravention applications filed…
As her Honour points out, that application was but part of a lengthy litigation history, spanning now some seven years, lasting the vast majority of this child’s life. The substantive proceedings which have not as yet been heard, despite this litigation, pertain to the care arrangements for the child.
In her oral submissions before us this morning the mother contends that there have been approximately 50 interlocutory applications and, she says, five appeals.
The grounds of appeal, apparently drawn by the father at a time when he was representing himself should be quoted. They are as follows:
1.Justice Rees failed to dismiss the Mothers application as the Mother did not comply with court order 2 dated the 29/5/15 on filing and serving.
2.Justice Rees failed to dismiss Ms [Ricardo] application as it was not served on the Father.
3.Justice Rees failed to take into account the Mothers previous unsuccessful application to transfere proceedings to Western Australia and the Mothers continuation of Contravention of court orders and disregard for court directions , on an ongoing basis.
4.Justice Rees failed to take into account the Mothers history of stalling court procedures and abuse of court proceedures.
5.Justice Rees failed to take into consideration of the Fathers application to expedite the Court hearing filed on the 16/4/15 due to the fears of the childs saftey due to the demise of the Mothers mental health.
6.Justice Rees failed to take into consideration of the longer waiting list of the smaller Cairns Family Law Court and the ability of this court to hold a lengthy matter.
(errors as in the original)
As argued by counsel who now represents the applicant father, the appeal, if leave be granted, appeared to centre on an assertion of a lack of procedural fairness. Despite counsel’s submissions to the contrary, I am unable to see how any such assertion is contained in any of the grounds of appeal or can be said to be implied within them.
Be that as it may, the challenge is essentially embraced by grounds one and two, and is that her Honour determined an application that was not before her. That submission devolves, at least in substance, from the apparent fact that contrary to the directions made by the primary judge on 29 May 2015, the mother did not file an application for change of venue and an affidavit supporting that application by 4 pm on 15 June 2015.
Although one might anticipate that the question of whether that application and affidavit had been filed is simple, like so much else in this case, it is not so. At [19] of the Reasons, her Honour said:
The mother submitted that she had already filed an application for change of venue in February 2014 and that application had not been determined. She conceded that the material upon which she relied was filed late because, she said, her then solicitor was not available within the specified time period…
Earlier in the Reasons at [14] her Honour had said:
14. The adjourned hearing came before me on 29 May 2015. Both parties appeared by phone. Both were self-represented. The mother indicated that she wanted to press an application for change of venue to Cairns and was directed to file an application and an affidavit in support by 4 pm on 15 June 2015. The father was directed to file a response and affidavit in support by 4 pm on 30 July 2015.
15.The matter was listed for determination of the competing applications for change of venue on 14 September 2015.
(Emphasis added)
Considerable confusion arose during the hearing of this appeal in respect of those simple matters. The mother, who appeared on her own behalf before this Court, asserted that she had filed the application and affidavit contemplated by the directions and had done so on 15 June 2015. That was denied by the father. Reference to the court file indicated that no document was filed by either party on that date.
The matter was further complicated by her Honour referring to material relied upon by the mother, said by her Honour to have been filed on 22 July 2015. It seems to be common ground between the parties and also apparent from the court file, that no documentation relevant to the issue of change of venue was filed on that date, and the reference to that date appears to be an error by her Honour.
Into this somewhat confused picture, the mother introduced an assertion that she had filed via the Commonwealth Portal the documents required of her, and had done so on 15 June 2015. Neither of the other parties had received any document filed on that date. The mother indicated that emails forwarded by her to the father confirm the fact that she had forwarded to him those documents. The emails together with an application and an affidavit said initially by the mother to have been filed on 15 June 2015 became Exhibits A to C in the proceedings.
Reference to those emails reveals clearly enough that, at least, an email was forwarded by the mother to the case coordinator seeking to file the two documents to which she refers and which she was required to file by the directions made on 29 May 2015. Reference to those emails also shows that, on the same date, she forwarded an email to the father and that email, on its face, purports to attach those documents. When the mother sent that email she requested a return receipt. That document also forms part of the exhibits and was provided to the court this morning. That document reveals that, at the very least, the father opened the email on 16 June 2015, that is the following day. The father denies that there was any attachment to the email, as indicated on the face of the email, and says that neither then, nor subsequently did he receive any documents from the mother purportedly filed that day.
Although it is unclear what happened between the 15 June 2015 and the hearing, on 14 September 2015, her Honour’s Reasons reveal that the mother had “e-filed an Application in a Case and an affidavit in support on Friday 11 September 2015, being one working day prior to the hearing” (Reasons, at [20]). That application and affidavit is, it seems, identical to the affidavit which the mother sought to file, but which it seems was not filed, on 15 June 2015.
On 30 June 2015, that is to say about a fortnight after the events of 15/16 June 2015 to which reference has just been made, the father filed a response. That response provided for orders as follows:
1.I ask the Mothers application to transfere proceedings is dismissed.
2.I ask the hearing be transfered to Wollongong., after a date for hearing is set.
3.It is expected to be a 3 to 4 week hearing. The Mothers legal representative is in Wollongong as well as most of the witness list..
(errors as in the original)
Two things will be observed. First, whatever may have been the situation emanating from any application for any orders sought by the mother, as and from 30 June 2015 the father sought to prosecute his own case for change of venue. In doing so, as part of the orders sought, he indicated the substantial part of the submissions that he would make in support of that application, namely that the “mother’s legal representative is in Wollongong as well as most of the witness list”.
By reference to the material contained within the record including the material to which reference has already been made, it is, in my view, entirely clear that the father was on notice from 2014 at the latest (I note that the mother says earlier) that she sought, or would seek, orders to have the substantive proceedings in respect of the child transferred to Cairns.
The fact that the father knew of that and knew that that was the case the mother sought to prosecute is reinforced by what her Honour said at [18]:
The father submitted that, because the mother did not comply with the directions for filing her application and affidavit, her application should be dismissed. The father relied upon the fact that applications which he made to the Full Court to proceed out of time were dismissed. Different considerations apply to this application.
(Emphasis added)
It is, in my view, fundamental to underscore that the father was himself prosecuting an application for change of venue. That application sought an order which the court was unable to make, namely that proceedings in this Court be transferred to Wollongong. Despite an apparent factual assertion to the contrary, this Court does not sit in Wollongong and no such order could be made by her Honour.
That matter notwithstanding, what was abundantly plain, was that both of the parties before her Honour sought to have the substantive proceedings in respect to the care arrangements for the child determined in a place other than Sydney. For the mother’s part that was Cairns; for the father’s part that was Wollongong.
Plainly enough, considerations relevant to the exercise of the discretion in respect of that procedural application arose on either party’s application. Her Honour was obliged to exercise her discretion as to the appropriate venue for the hearing of the substantive proceedings. In doing so, her Honour plainly, in my view, applied the correct principles and dealt seriatim with the matters prescribed by the Family Court Rules 2004 (Cth) (“the Rules”) in respect of change of venue. In respect of those specified matters and the discretion more broadly, the evidence of both parties was somewhat wanting as her Honour points out in the Reasons (see Reasons at [33] – [35]).
Her Honour was plainly anxious, in my view, to facilitate a trial of the important substantive proceedings in relation to a young child with as little formality as possible consistent with the respective rights of the parties. In doing so, her Honour permitted both of the then self-represented parties some latitude on the hearing of the procedural application. An example of that can be seen at [35] of the Reasons where her Honour said:
The convenience of the parties is also relevant. Again there is no evidence from either party of any particular inconvenience other than that the father, in oral submissions, told the Court that he could more easily attend to his farming work in the morning and evening if the proceedings were in Wollongong. Proceedings in either Sydney or Cairns would take the father away from his farm.
As can be seen the father had important things to say in support of his assertion that the proceedings should be held, if not in Wollongong, then certainly closer to Sydney than Cairns. Her Honour took those considerations into account. Similarly, the mother advanced arguments to the effect that the balance favoured the proceedings being heard and determined in Cairns. Her Honour took those considerations into account. In my view, her Honour did the best that she could, with all due respect, by reason of the evidence that was presented to her by each of the parties, and specifically by reference to each of the specific matters which needed to be considered by reference to the Rules, but also in relation to the exercise of the discretion more broadly.
In my view there is no merit in the arguments sought to be advanced on appeal by the father. I can see no substantial injustice to the parties by her Honour’s procedural orders and I would refuse the application for leave to appeal.
For reasons apparent from the transcript we refused the mother’s application to rely upon written submissions provided to the court only this morning, and not served on either of the parties. Those written submissions were not read by the bench. Similarly, we gave leave for the proceedings to continue despite the father’s failure to provide a transcript.
I would make the following orders:
1.The Application in an Appeal filed 30 March 2016 to permit the appeal to proceed in the absence of a transcript be allowed.
2.Leave to appeal the orders of Rees J on 17 September 2015 be refused.
Kent J
I agree with the orders proposed by Murphy J and I agree with his Honour’s reasons for those orders.
Austin J
I agree with the orders proposed and the reasons given by Murphy J.
Costs
Murphy J
This Court has made orders refusing the application for leave to appeal brought on behalf of the father. Consequent upon that order the mother seeks no order for costs, noting that she represents herself, and has at all times in respect of this appeal represented herself.
The Independent Children’s Lawyer submits that the father should pay his costs fixed in the sum of $4,356 inclusive of GST. The basis of that application is, of course, clear, but notwithstanding the provisions of s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) the circumstances here justify an order for costs.
What is said in support of that application is that the application has been wholly unsuccessful and that the financial circumstances of the father so far as they are known to this Court are such that he has a resource in a rural property on which he runs a farm. It is said on his behalf, that despite that fact and the capital investment in that farm, there are nevertheless, what I think can conveniently be described as, the difficulties inherent in farming and deriving an income therefrom.
It is partly as a result of that that ultimately it is submitted that in the event that this Court was persuaded that an order for costs should be made that the father be permitted three months in order to pay it.
In addition to the matter to which I’ve just referred, the Independent Children’s Lawyer submits primarily by reference to s 117(2A)(c) of the Act, that the father has been “judicially warned during a hearing of seven of his interlocutory applications about the potential for him to face applications for cost orders”.
I would also seek to point out that this application for leave to appeal emanates from an interlocutory order. The difficulties inherent in obtaining leave to appeal from interlocutory orders in procedural matters in circumstances when the applicant is unable to point to any powerful injustice are well known. In my view, the circumstances in this case justify an order for costs as sought by the Independent Children’s Lawyer. It seems to me that the amount of $4,356 which we are told is fixed by reference to the relevant scale, is a reasonable, indeed modest, amount. I would order costs and fix them in that sum.
As I earlier indicated it is submitted on behalf of the father that he be permitted three months to pay, emanating in essence as I understand it from his existing income position. I would be minded to permit three months to pay.
Kent J
I agree with the costs order proposed by Murphy J, and his Honour’s reasons for that order.
Austin J
I agree with the reasons given by Murphy J in respect to the proposed costs order.
Murphy J
The further order of the Court will then be that the applicant father pay the costs of the Independent Children’s Lawyer of and incidental to this appeal fixed in the amount of $4,356 inclusive of GST and that the father be permitted three months to pay as and from this date.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Kent & Austin JJ) delivered on 20 June 2016.
Associate:
Date: 7 July 2016