Dakin and Sansbury (No 2)
[2014] FamCAFC 80
•7 May 2014
FAMILY COURT OF AUSTRALIA
| DAKIN & SANSBURY (NO. 2) | [2014] FamCAFC 80 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks to review the exercise of power by the Appeal Registrar – where the application is opposed – where the application is an abuse of process – application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent seeks his costs – where the applicant opposes the application – where there was no need for the respondent to respond in the way that he did – where the submissions of counsel were not of assistance – application dismissed. |
| |||
| APPLICANT: | Ms Dakin | ||
| RESPONDENT: | Mr Sansbury |
| FILE NUMBER: | MLC | 3048 | of | 2010 |
| APPEAL NUMBER: | SOA | 16 | of | 2014 |
| DATE DELIVERED: | 7 May 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 7 May 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 12 December 2013 |
| LOWER COURT MNC: | [2013] FCCA 2141 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Trim |
| SOLICITOR FOR THE RESPONDENT: | Cahill & Rowe Family Law |
Orders
The application in an appeal filed on 1 April 2014 be dismissed.
The oral application for costs made on behalf of the respondent be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dakin & Sansbury has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 16 of 2014
File Number: MLC 3048 of 2010
| Ms Dakin |
Applicant
And
| Mr Sansbury |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
The application before me today is an application in an appeal filed by
Ms Dakin (“the applicant”) on 1 April 2014 in which she seeks, and these are my words and my summary, a review of the exercise of power by the Appeal Registrar in uplifting and returning to the applicant her application in an appeal, her affidavit in support, and her draft notice of appeal which were in fact filed on 25 February 2014.
In support of that application the applicant has filed an affidavit.
The application is opposed by Mr Sansbury (“the respondent”); he filed a response on 1 May 2014 seeking a number of orders. I have clarified with counsel for the respondent, Mr Trim, that what his client seeks today is that the application be dismissed, and he does not seek the alternative order sought in paragraph 2 of that response.
To complete the picture, in that response an order is also sought in paragraph 3 “[t]hat the Applicant be restrained from filing any further Application in these proceedings without leave of the Court.” I have indicated earlier, and I confirm, that I am not prepared to make any such order. These proceedings are appeal proceedings, and they only comprise this matter, and as will be seen shortly, this matter is now at an end.
That response is supported by an affidavit which raises certain matters discretely, and responds to matters deposed to by the applicant in her affidavit.
The application and response were listed for hearing today and the applicant again appears without legal representation, which of course is her right. However, it is apparent that the applicant has misunderstood what this application is about. Both in her affidavit in support of her application and in her submissions to me today, she has raised matters that are completely irrelevant to the application. She raises matters which are historical, and I accept and understand that they are of great concern to the applicant, but to repeat, they have no relevance to the application before me today.
What the application today is about is whether the applicant can satisfy this court that the application in an appeal filed on 25 February 2014, and the supporting documents, which were all uplifted and returned, should now be filed. I express it in that way because an application seeking to review the exercise of power by a Registrar is a hearing de novo.
The application in an appeal that the applicant seeks to file seeks two orders; first, that the applicant be granted an extension of time to appeal the orders of 12 December 2013, and secondly, that the application be heard by a full bench and not just a single judge. I can tell the applicant that the second order is not an order that would be made. These are matters that are appropriately heard by a single judge of the Appeal Division and there is no justification for putting this matter before a three member bench.
In any event the application, to repeat, seeks an extension of time to appeal against the orders of 12 December 2013. The only order made on that day, was an order whereby Judge Bender dismissed an application by the applicant to stay final orders made by her Honour on 30 August 2013.
In relation to those orders of 30 August 2013, the applicant filed an application in an appeal seeking an extension of time to appeal against those orders on
6 November 2013. She then filed an amended application in an appeal on
9 January 2014, and in that amended application the applicant continued to seek an extension of time to appeal against the orders of 30 August 2013. In addition she also sought an extension of time to appeal against orders made on 30 January 2012 and 1 July 2013.
Further, and relevantly, the applicant in that amended application sought “leave to appeal the orders of December 12, 2013”. That amended application of
9 January 2014 was heard by me on 15 January 2014, and I delivered my reasons for judgment on 10 February 2014. On that date I made an order that “[t]he amended application in an appeal filed on 9 January 2014 be dismissed”.
I do not need to trouble anyone with my reasons for judgment in relation to the application to extend time on 30 January 2012 or 1 July 2013, but clearly the effect of the order that I made is that the applicant is not able to pursue an appeal against the orders made on 30 August 2013.
Thus, both at the time that the applicant filed her application on 25 February 2014, and currently, there is no appeal on foot against the orders of 30 August 2013. The relevance of that is that the order made by her Honour on
12 December 2013, that the applicant wishes to complain about, was an order whereby her Honour dismissed the application by the applicant to stay the orders made on 30 August 2013.
The only possible basis on which the applicant could have been successful in that application seeking a stay, was that there was an appeal pending in relation to the orders of 30 August 2013. As I have demonstrated, there was no appeal on foot as at 12 December 2013, (there was only an application seeking an extension of time to appeal), there was no appeal on foot as at 25 February 2014 and there is obviously still no appeal on foot in relation to the orders of
30 August 2013, today.
Thus, for the applicant to seek an extension of time to appeal against the orders made on 12 December 2013, in my view, is a clear abuse of process. It has no utility. It is futile. Even if the applicant was granted an extension of time to appeal, and she did, that appeal could go nowhere because, to repeat, there is no appeal against the orders of 30 August 2013, and no basis to stay those orders.
Therefore, I propose to dismiss the application in an appeal seeking a review of the exercise of power by the Appeal Registrar.
I now have before me an oral application for costs consequent upon the order that I propose to make namely, dismissing the application today.
Mr Trim for the respondent seeks an order that the applicant pay the respondent the sum of $1,000 by way of costs.
Mr Trim has appropriately and correctly referred me to s 117 of the Family Law Act 1975 (Cth) which governs the question of costs and which section relevantly provides as follows:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) (4A), and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Mr Trim has submitted that there is a circumstance justifying an order for costs here namely, the applicant has been wholly unsuccessful.
However, for my part, and I would have expected this to be appreciated by any experienced legal practitioner, this was an application that was never going to succeed.
In my view the most that would have been required to respond to the application was a response seeking dismissal, and maybe a very short affidavit supporting, and referring to, the basis why the Appeal Registrar uplifted the application of 25 February 2014. Instead what was filed was a response which in addition seeks orders that simply could not, or would not in reality be made, and an affidavit of some length responding to what by anyone’s measure, was irrelevant information in the affidavit of the applicant. In my view there was absolutely no need to respond in any way to that irrelevant material.
Then there is the attendance today by counsel.
I am unclear as to why counsel would need to be briefed, but it has happened, and counsel has made submissions to me. With all due respect to Mr Trim I found his submissions unhelpful, save and except the one submission namely, the application should be dismissed.
For those reasons I propose to dismiss the oral application for costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 7 May 2014.
Associate:
Date: 13 May 2014
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