Emerson & Greening - [2021] FedCFamC1A 23

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
Emerson & Greening [2021] FedCFamC1A 23

Appeal from: NA – transcript and unpublished reasons

Appeal number(s): WEA 7 of 2021
WEA 8 of 2021
WEA 13 of 2021

File number(s): PTW 5212 of 2017

Judgment of: STRICKLAND J

Date of judgment: 29 September 2021

Catchwords: FAMILY LAW – APPEAL – COSTS – Where the respondent relies on the conduct of the appellant in bringing appeals that had no merit and in pursuing them when there was no utility in doing so given the listing of the final hearing – Where the appellant argues that the appeals had merit and it was reasonable to maintain them until the listing of the final hearing was confirmed – Where in relation to the first and second appeals no costs issues can be said to arise for the respondent from the concerns about the merits of the second appeal given that the orders the subject of that appeal were consequential upon the orders the subject of the first appeal and those appeals ran together – Where the third appeal was an appeal which should never have been brought because the order appealed was not a decree and it was not decisive of the rights of the parties and in any event the grounds of appeal had no chance of success – Where the appeals should have been discontinued as soon after 28 June 2021 as possible but the appellant attempted to obtain an agreement that there would be no costs sought by the respondent and that was a reasonable position to take – Where it was not unreasonable that the Notices of Discontinuance were filed on 13 July 2021 – Where the respondent can only claim minimal costs incurred on a party/party basis between 2 July 2021 and 13 July 2021 – Where the appellant is in poor financial circumstances but impecuniosity is not a bar to making an order for costs where there are circumstances that otherwise justify such an order being made – Costs ordered in favour of the respondent in the sum of $1,400.

Legislation:
Family Law Act 1975 (Cth) s 4(1), s 94(1), s 117

Family Law Rules (2004) (Cth) Schedule 3

Cases cited:
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64

Yule v Janek (1978) 139 CR 1; [1978] HCA 4

Number of paragraphs: 50

Date of hearing: 21 July 2021

Place: Perth via telephone to Adelaide

Counsel for the Appellant: Mr Hedges of Senior Counsel

Solicitor for the Appellant: Sanctuary Legal Pty Ltd

Counsel for the Respondent: Mr Rynne

Solicitor for the Respondent: Anthony R Clarke & Associates

Counsel for the Independent Children's Lawyer: Mr Bannerman

Solicitor for the Independent Children's Lawyer: Bannerman Solicitors
ORDERS

WEA 7 of 2021
WEA 8 of 2021
WEA 13 of 2021
PTW 5212 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS EMERSON

Appellant

AND:
MR GREENING

Respondent

AND:
INDEPENDENT CHILDREN'S…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Emerson & Greening

Details

AGLC: Emerson & Greening [2021] FedCFamC1A 23
Case: [2021] FedCFamC1A 23
Decision Date

CaseChat Overview and Summary

The case of Emerson & Greening involved appeals against certain orders made in family law proceedings. The appellant, Greening, sought to appeal three sets of orders made by a Magistrate in the Magistrates Court of Western Australia. The respondent, Emerson, applied to consolidate the appeals and for the hearing to be expedited, and to dismiss the appeals on the basis they had no prospect of success. The appeals were heard by the Family Court of Australia, which was required to determine whether the appeals were frivolous and without merit, and thus an abuse of process. The court also had to consider whether the appeals had any utility, given the prospect of the final hearing resuming in September 2021.

The court found that the second and third appeals were not valid, as they were based on orders that were not appealable. In relation to the second appeal, the court noted that the grounds of appeal were simply a repeat of those asserted in the first appeal, despite the orders not being the same. In relation to the third appeal, the court found that it was not a valid appeal given the absence of a decree which could be the subject of an appeal. The court also indicated a preliminary view that the grounds of appeal had no merit. The court was of the view that the appeals had no prospect of success and were an abuse of process. The court found that the appeals were frivolous and without merit, and that the respondent was entitled to costs.

The court ordered that the appeals be dismissed and that the respondent be awarded costs on an indemnity basis. The court further found that the appeals had no utility and that the respondent was entitled to costs on an indemnity basis. The court noted that the appeals had caused unnecessary delay and expense, and that the respondent was entitled to be compensated for that. The court ordered that the respondent be awarded costs on an indemnity basis for the three appeals.

Orders

Orders of the court

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Background

Background to the litigation

In summary, the basis of the application for costs was that the appeals should have been discontinued far earlier than they were, given there was no utility in them proceeding once the final hearing of the substantive proceedings had been expedited. It was also argued that the appeals had no merit in any event.RELEVANT BACKGROUND The orders made on 11 March 2021 were made partway through the final parenting orders hearing, and whilst the mother was still under cross-examination. They were interim parenting orders suspending the previous live with and spend time with orders providing for the child the subject of the proceedings to live with the father, for the father to have sole parental responsibility, and adjourning the matter to 18 March 2021. On 18 March 2021, various orders were made by consent, but no change was made to the status quo, and the proceedings were transferred to the Family Court of Western Australia. On 24 March 2021, the mother filed an application seeking the recusal of the Magistrate, who made the first two sets of orders, a stay of those orders, and the discharge of the Independent Children’s Lawyer (“ICL”). On 28 April 2021, the Magistrate recused himself and referred the balance of the application to the other Family Law Magistrate. On 29 April 2021, the father filed an application seeking orders restraining the mother’s solicitor and counsel from acting for her. On 3 May 2021, the matter came before the newly appointed Magistrate. His Honour advised the parties that he could recommence the final hearing in the week of 20 September 2021, but that could not happen if the father’s application to restrain the mother’s solicitor and counsel from acting, and the mother’s application seeking discharge of the ICL, were pressed. The matter was adjourned to 10 May 2021, and then further adjourned to 14 May 2021. On 14 May 2021, the father’s application was listed for hearing on 23 September 2021, the balance of the matters were adjourned generally, and supervised time was ordered. That effectively meant that the final hearing could not resume in September 2021. The order providing for the adjournment was the subject of the third appeal. On 18 May 2021, the listing of the hearing of the father’s application was changed from 23 September 2021 to 25 June 2021, and on that basis the Magistrate advised that the final hearing could resume on 13 September 2021. Subsequently, that date of 25 June 2021 was changed administratively to 11 June 2021. The appeals first came before this Court on 9 June 2021 on the mother’s application to consolidate them and to have the hearing expedited. Orders were made consolidating the appeals, but I refused to expedite the hearing whilst the applications to restrain the mother’s solicitor and counsel were still unresolved. This Court was made aware of the prospect of the final hearing resuming in September 2021, and accordingly, I raised the issue of the utility of the appeals. I also took the opportunity to raise concerns that I had with the appeals, and primarily with the second and third appeals. The grounds of appeal asserted in the second appeal were just a repeat of those asserted in the first appeal, despite the orders not being the same. In relation to the third appeal, I expressed the view that it was not a valid appeal given the absence of a decree which could be the subject of an appeal. I also indicated a preliminary view that the grounds of appeal had no merit.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Appeal from:	NA – transcript and unpublished reasons
Appeal number(s):	WEA 7 of 2021 WEA 8 of 2021 WEA 13 of 2021
File number(s):	PTW 5212 of 2017
Judgment of:	STRICKLAND J
Date of judgment:	29 September 2021
Catchwords:	FAMILY LAW – APPEAL – COSTS – Where the respondent relies on the conduct of the appellant in bringing appeals that had no merit and in pursuing them when there was no utility in doing so given the listing of the final hearing – Where the appellant argues that the appeals had merit and it was reasonable to maintain them until the listing of the final hearing was confirmed – Where in relation to the first and second appeals no costs issues can be said to arise for the respondent from the concerns about the merits of the second appeal given that the orders the subject of that appeal were consequential upon the orders the subject of the first appeal and those appeals ran together – Where the third appeal was an appeal which should never have been brought because the order appealed was not a decree and it was not decisive of the rights of the parties and in any event the grounds of appeal had no chance of success – Where the appeals should have been discontinued as soon after 28 June 2021 as possible but the appellant attempted to obtain an agreement that there would be no costs sought by the respondent and that was a reasonable position to take – Where it was not unreasonable that the Notices of Discontinuance were filed on 13 July 2021 – Where the respondent can only claim minimal costs incurred on a party/party basis between 2 July 2021 and 13 July 2021 – Where the appellant is in poor financial circumstances but impecuniosity is not a bar to making an order for costs where there are circumstances that otherwise justify such an order being made – Costs ordered in favour of the respondent in the sum of $1,400.
Legislation:	Family Law Act 1975 (Cth) s 4(1), s 94(1), s 117 Family Law Rules (2004) (Cth) Schedule 3
Cases cited:	D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64 Yule v Janek (1978) 139 CR 1; [1978] HCA 4
Number of paragraphs:	50
Date of hearing:	21 July 2021
Place:	Perth via telephone to Adelaide
Counsel for the Appellant:	Mr Hedges of Senior Counsel
Solicitor for the Appellant:	Sanctuary Legal Pty Ltd
Counsel for the Respondent:	Mr Rynne
Solicitor for the Respondent:	Anthony R Clarke & Associates
Counsel for the Independent Children's Lawyer:	Mr Bannerman
Solicitor for the Independent Children's Lawyer:	Bannerman Solicitors

WEA 7 of 2021 WEA 8 of 2021 WEA 13 of 2021 PTW 5212 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS EMERSON Appellant
AND:	MR GREENING Respondent
AND:	INDEPENDENT CHILDREN'S…