Draper & Corwin
[2022] FedCFamC1A 177
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Draper & Corwin [2022] FedCFamC1A 177
Appeal from: Draper & Corwin [2022] FedCFamC1F 626 Appeal number(s): NAA 209 of 2022 File number(s): MLC 4817 of 2020 Judgment of: AUSTIN J Date of judgment: 26 October 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL –Where the respondent to the appeal seeks an order that the appeal be summarily dismissed, or alternatively, an order for security for costs – Summary dismissal – Where the grounds as pleaded mount a broad and relatively unspecific attack upon the appealed orders – Where that does not necessarily mean the appeal has no reasonable prospects of success – Application dismissed – Security for costs – Where the applicant remains in breach of an earlier costs order made in the respondent’s favour and there is a real risk any eventual costs order in the appeal will be incapable of execution – Where the applicant should secure the respondent’s costs of the appeal – Application granted. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, rr 12.02, 13.38
Cases cited: Frazier & Valdez (2016) FLC 93-729; [2016] FamCAFC 163
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Number of paragraphs: 28 Date of hearing: 26 October 2022 Place: Newcastle (via video link) The Applicant: Litigant in person Counsel for the Respondent: Mr Tatarka Solicitor for the Respondent: KCL Law ORDERS
NAA 209 of 2022
MLC 4817 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DRAPER
Applicant
AND: MS CORWIN
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
26 OCTOBER 2022
THE COURT ORDERS THAT:
1.Within 14 days, the applicant shall pay to the respondent’s solicitors on the Court record the sum of $12,500 by way of security for the respondent’s party/party costs of and incidental to the appeal, which sum shall be held by them on trust until this appeal is determined and further orders are made as to costs.
2.In default of payment pursuant to Order 1, the appeal is forthwith dismissed.
3.Otherwise, the Application in an Appeal filed on 21 October 2022 is dismissed.
4.The parties shall bear his and her own costs of this application.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Draper & Corwin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
Before the Court for determination is an Application in an Appeal, filed by the respondent on 21 October 2022, seeking orders in these terms:
1.That the Amended Notice of Appeal filed by [the Applicant] on 29 September 2022 be summarily dismissed.
2.That in the alternative to Order 1 herein, [the Applicant] pay to the Respondent the sum of $21,400 or such other sum as this Honourable Court deems appropriate to the trust account of the Respondent's solicitors, KCL Law, within 7 days of the date of this order as security for the Respondent's costs of this Appeal.
3.That in the event that [the Applicant] fails to comply with Order 2 of these Orders, the Appeal stand dismissed.
4.That [the Applicant] pay the Respondent's costs of and incidental to this Application on an indemnity basis.
5.Such further or other orders as this Honourable Court deems appropriate.
The substantive appeal (and the attendant application for leave to appeal), filed as recently as 20 September 2022, lies from orders made by the primary judge on 24 August 2022 and is listed for hearing before the Full Court on 8 December 2022. As can be seen from the pending interlocutory application, the respondent wants the appeal summarily dismissed or, in the alternative, her costs of the appeal secured in advance by the applicant.
The respondent sought such orders be made in the parties’ absence, pursuant to r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), but it was more appropriate to swiftly list the application for hearing between the parties in open court.
The two alternative forms of relief sought by the respondent are amenable to determination by a single judge (ss 32(2)(e), 32(3)(b) and 32(5) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), even though the appeal must be heard by the Full Court (s 32(1)(b)).
Both forms of relief were resisted by the applicant.
Summary dismissal
The power to summarily dismiss unmeritorious appeals is found within s 46(2) of the FCFCA Act. Summary dismissal is justified if the appeal has no reasonable prospect of success, even if the appeal is not hopeless or bound to fail (ss 46(2) and 46(3)).
In support of her application, the respondent relied upon the affidavit she swore on 21 October 2022, though it was not actually filed until some days later.
The only reason advanced for summary dismissal of the appeal is set out as follows in the respondent’s affidavit:
20.1.I say that [the applicant] does not have an arguable case in the Appeal, and that the Appeal does not have any prospect of success.
(Affidavit of the respondent filed 26 October 2022)
The respondent is entitled to an honestly held view that the applicant “does not have an arguable case” and the appeal does not enjoy “any prospect of success”, but her perception alone does not amount to objective demonstration of the facts.
The grounds of appeal lie from orders which achieve several different outcomes, namely: the dismissal of an interlocutory application brought by the applicant (Order 1); the dismissal of an enforcement application brought by the applicant (Order 2); a declaration that the parties’ unresolved applications for final relief under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) will be heard by the Federal Circuit and Family Court of Australia (Division 1) (Order 3); the discharge of an order made in April 2021 (Order 4); a procedural order directing that the respondent’s divorce application be fixed for hearing (Order 5); and the imposition of what purports to be an anti-suit injunction, preventing the applicant from seeking matrimonial relief in proceedings he instituted in the United States of America (Order 6).
As pleaded, the grounds of appeal mount a broad and relatively unspecific attack upon those orders, but that does not necessarily mean the appeal has no reasonable prospects of success.
The grounds of appeal complain, in part, of judicial bias (Ground 5) and the denial of procedural fairness (Ground 4), which must inferentially arise from the manner in which the primary judge conducted the hearing on 15 June 2022. At this stage, without an Appeal Book and without transcript of the hearing, it is impossible to conclude those grounds have no reasonable prospects of success.
The remaining grounds of appeal appear, on their face, to attack only the anti-suit injunction. These grounds assert legal, factual and discretionary errors in the primary judge’s application of the test to determine whether Australia is a “clearly inappropriate forum” to entertain the parties’ various matrimonial disputes (Grounds 1–3). Again, on the strength of nothing more than the respondent’s subjective opinion, it is not possible to conclude at this early stage of the appeal that those grounds have no reasonable prospects of success.
The respondent criticised the validity of the written submissions advanced by the applicant in support of the appeal, as were annexed to his affidavit filed on 25 October 2022, but he deposed such submissions were “a preliminary draft of summary of arguments”. No procedural orders have yet been made setting the date by which the applicant must file and serve his settled Summary of Argument in the appeal. The present application requires only a “practical assessment” of the appeal’s prospects (Spencer v The Commonwealth (2010) 241 CLR 118 at [25] and [47]), but not a pre-emptive and definitive judgment of the substantive appeal.
The application for summary dismissal of the appeal should be dismissed.
Security for costs
The power to make an order securing the payment of a party’s costs is found within s 117 of the Act.
The respondent bears the onus of demonstrating entitlement to such an order. The relevant influential factors were helpfully collected in Frazier & Valdez (2016) FLC 93-729 at [12], but many of those factors are now recited within r 12.02 of the Rules.
The respondent deposed that her application for security for her costs in the appeal is premised upon several features in aggregation: her modest financial circumstances; her uncertainty about the applicant’s financial circumstances; the difficult she would likely encounter enforcing any costs order in her favour due to the applicant’s residence abroad and her assertion that he has no assets in Australia; and the applicant’s history of breaching costs orders in prior proceedings between the parties.
Relevantly, the respondent deposed:
20.2.I have been and continue to be the primary carer for [the child], who is 3 years of age. I am a full-time student earning a modest income as a Teacher earning $473 per week. I am also in receipt of Centrelink payments (Single Parenting Payment and Family Tax Benefits) of $500 per week. Accordingly, my total weekly income is $973, and I have weekly expenditure of $941. Included in this expenditure is weekly board of $200 that I pay to my parents for accommodation.
20.3.I am not aware of [the applicant’s] financial means. He has not filed a Financial Statement and to the best of my knowledge has not provided his income to the Child Support Agency. His current financial circumstances are unclear save that he asserts that he is in full-time employment in the United States as a teacher, and he resides with his parents. I estimate his income to be USD$85,000 to $100,000 based upon the salary my brother receives for a similar role. [The applicant] does not own any assets in Australia that are capable of satisfying any orders for costs that are made if his Appeal is unsuccessful.
20.4.[The applicant] has a history of non-compliance in relation to these proceedings and child support matters. [The applicant] has failed to pay the sum of $8,000 in costs ordered against him by Justice Strickland on 9 August 2021 arising from the previous Application in Appeal. In addition, there has been ongoing default in [the applicant’s] child support obligations. At the time of [the applicant’s] recent departure from the Australian jurisdiction, there were child support arrears of $2,737.21. The arrears were paid as a result of a departure prohibition order instituted by the Child Support Agency. There is currently a child support assessment in place for $366.75 per month.
…
20.7.[The applicant] ordinarily resides outside of Australia.
(Affidavit of the respondent filed 26 October 2022)
Such evidence was not contested by the applicant, who filed an affidavit on 25 October 2022 to meet the application. He generically referred therein to his accrual of “tremendous debts”, his lack of resources, and his penury. He also conceded the former costs order made against him in the respondent’s favour is still outstanding.
Although the application for summary dismissal fails because the respondent cannot presently demonstrate the appeal has no reasonable prospects of success, it does not conversely follow that the appeal has reasonable prospects of success. On the contrary, as they are pleaded, the grounds of appeal do not evince much objective confidence in their prospects, despite the applicant’s apparent belief in the righteousness of his cause.
Starting then from the premise of the appeal’s relative weakness, importantly, the applicant remains in breach of an earlier costs order made in the respondent’s favour and his evidence only served to confirm the respondent’s concern that any costs order she might obtain against him in this appeal will similarly go unsatisfied. On the evidence, there is a real risk that any eventual costs order will be incapable of execution.
The applicant failed to lead any direct evidence about his actual assets and liabilities, thereby precluding any independent assessment of his claim of penury. The primary judge observed his coyness to do so in the underlying proceedings as well (at [46]). If he is genuinely “penniless”, as he says, then the respondent may be wondering why he is bothering to appeal the decision which requires the parties’ property settlement dispute to be litigated in Australia rather than in the USA, particularly when the parties have already agreed to litigate their parenting dispute over their only child in Australia.
The applicant submitted, by implication, that an order compelling his payment of security would cause him hardship and tend to stultify the appeal. He was the only one who could lead evidence of his assets and liabilities to allay that concern, but decided not to do so, in which case the submission does not carry the weight it otherwise might have done.
On balance, the applicant should secure the respondent’s costs of the appeal. Attention must then turn to the quantum and other conditions of the security.
The respondent sought the sum of $21,000 be paid to her solicitors within seven days, in default of which the appeal is automatically dismissed. Instead, the respondent’s party/party costs of the appeal should be estimated at $12,500, which sum seems more reasonable taking into account the nature of the grounds of appeal. The applicant should have 14 days within which to post the security. The applicant did not articulate any objection to the funds being held by the respondent’s solicitors in trust pending the outcome of the appeal.
Conclusion
The appeal will not be summarily dismissed, but security for the respondent’s costs of the appeal will be required on conditions.
I dismiss the respondent’s application for costs of the application to be costs in the appeal. No costs order should be made in relation to the contest of the interlocutory application. Both parties were partially successful in prosecuting and resisting the application.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 27 October 2022
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