FERANTI & CONNOR (COSTS APPEAL)
[2010] FamCAFC 40
•16 March 2010
FAMILY COURT OF AUSTRALIA
| FERANTI & CONNOR (COSTS APPEAL) | [2010] FamCAFC 40 |
| FAMILY LAW - APPEAL – COSTS – Where the mother died subsequent to the hearing of the appeal – Where in the circumstances the father sought only to press his appeal in respect of the costs order against him – Whether the trial Judge erred in stating that she took account of the parties’ financial circumstances – Where the trial Judge principally determined that the father should pay the costs of the mother and the ICL because he had been wholly unsuccessful in his applications – Where neither the mother’s counsel nor counsel for the ICL made any submissions about the parties’ financial circumstances and none of the documents before her Honour referred to the parties’ financial circumstances – Where the trial Judge’s consideration of the parties’ financial circumstances was not supported by evidence – Appealable error established. FAMILY LAW - APPEAL – No merit in other grounds of appeal. FAMILY LAW - APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where there was a lack of sufficient nexus between the evidence sought to be adduced and the orders the subject of the appeal – Application dismissed. FAMILY LAW - COSTS – Where the father was self-represented – Where the father sought a costs certificate in the event the appeal was allowed – Where the ICL sought a costs certificated if an error of law was found – Where the mother was not represented at the appeal – Where unclear if the mother’s executors would wish to participate at the re-hearing – Where the Court would consider any application by the mother’s executors for a grant of a certificate for the re-hearing – Where it is appropriate in the circumstances that the father and the ICL be granted costs certificates for the appeal and the re-hearing. |
| Family Law Act 1975 (Cth) – s 93A(2), s 117 Family Law Rules 2004 – r 5.06 |
| CDJ v VAJ (1998) 197 CLR 172 De Winter v De Winter (1979) 23 ALR 211 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Penfold v Penfold (1980) 144 CLR 311 |
| APPELLANT: | Mr Feranti |
| RESPONDENT: | Ms Connor (Deceased) |
| INDEPENDENT CHILDREN’S LAWYER: | Nicola Atchison |
| FILE NUMBER: | MLF | 10368 | of | 1994 |
| APPEAL NUMBER: | SA | 21 | of | 2009 |
| DATE DELIVERED: | 16 March 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Warnick, Boland & O’Ryan JJ |
| HEARING DATE: | 15 October 2009 and 18 February 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 February 2009 |
| LOWER COURT MNC: | [2009] FamCA 140 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr Feranti appeared in person |
| SOLICITOR FOR THE RESPONDENT: | No appearance by the wife. |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Holly Tinning |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Nicola Atchison |
Orders
The appeal be allowed.
Order 3 of the trial Judge’s orders made 20 February 2009 be set aside.
The mother’s and the ICL’s applications for costs be remitted for re-hearing before Dawe J.
The application to adduce further evidence filed 17 September 2009 be dismissed.
That the Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by her in relation to the appeal.
The Court grants to the father and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the father and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the new trial ordered.
IT IS NOTED that publication of this judgment under the pseudonym Feranti & Conner (Costs Appeal) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 21 of 2009
File Number: MLF 10368 of 1994
| Mr Feranti |
Appellant
And
| Ms Connor |
Respondent
REASONS FOR JUDGMENT
Introduction
On 20 March 2009 Mr Feranti (“the father”) filed a Notice of Appeal in which he sought, if it was necessary, leave to appeal and to appeal orders made by the Honourable Justice Dawe on 20 February 2009.
The orders made by Dawe J dismissed two interim applications made by the father in parenting proceedings between himself and Ms Connor (“the mother”) in respect of their only child T, who is presently 15 years old. Her Honour also ordered that the father pay the mother’s and the independent children’s lawyer’s costs of the proceedings.
The mother did not participate in the appeal. Her solicitors, Peter Falconer & Associates, wrote to the Appeal Registrar on 15 June 2009 and advised that the mother would not participate in the appeal, but she agreed to be bound by any determination of the Full Court. The independent children’s lawyer (“the ICL”) filed submissions, and appeared at the hearing of the appeal.
The litigation concerning the child has been ongoing for the majority of her life. At the time we heard the appeal, competing applications for final parenting orders were pending in the Adelaide Registry of the Court. Subsequent to the hearing of the appeal, in December 2009, after a long illness, the mother died. The Appeal Registrar was provided by the mother’s solicitor with a copy of her death certificate.
After we received advice from the Appeal Registrar of the mother’s death, on our own motion, we caused the matter to be relisted on 18 February 2010 to afford the father and the ICL the opportunity to make submissions to us about the status of the appeal following the mother’s death. The ICL advised that she did not wish to make any further submissions. The father advised that, as a result of the mother’s death, he was only seeking to press his appeal in respect of order 3 of the trial Judge’s orders (the costs order). He submitted that, as the dismissal of his applications by the trial Judge formed the foundation for the costs order, some consideration of his other grounds of appeal would be required.
We inferred from the father’s submissions that he did not require us to give reasons for our refusal of his application to adduce further evidence in the appeal. However, for more abundant caution, we will provide some brief reasons as to why we dismissed that application at the hearing of the appeal.
In order to assess the father’s complaint, we will first set out some material historical facts about the parties and the proceedings. We will examine Dawe J’s reasons, discuss the basis on which the costs order was made, and whether any appealable error is demonstrated. We will finally consider whether leave to appeal was required.
Background
We were provided with a very detailed chronology by the ICL. It is unnecessary for us to refer to much of the material in that chronology. However, the following matters aid understanding of the single issue now raised in this appeal.
The father is aged 52 years and the mother, at the time of her death, was aged 49 years. They commenced cohabitation in 1987 and married in 1988.
The child was born in March 1995. The parties separated when she was approximately nine months old.
Parenting proceedings were first filed in 1996.
After a defended hearing, Guest J made orders on 3 December 1999.
In 2004 further proceedings were heard by Brown J, who permitted the mother to move to South Australia with the child. Orders were made for the father to have telephone contact with the child, and face to face contact for one half of each school holiday period.
In 2005 the mother filed an application seeking orders that the orders granting the father contact with the child be discharged. The response to this application filed by the father sought that the child live with him.
In 2005 the father filed a contravention application (which was later amended) in respect of asserted breaches of the orders of Brown J with respect to telephone and holiday contact and various other orders.
In November 2007 Watt J made orders dismissing the father’s contravention application, transferring the proceedings between the parties to the South Australian Registry of the Court, and also made orders that the father pay the mother’s costs of the contravention proceedings on a party and party basis, and costs of other parts of the proceedings on an indemnity basis. The father appealed against the orders of Watt J. That appeal was, except in relation to the costs ordered on an indemnity basis, unsuccessful.
In August 2008 the mother filed an application seeking that the child be permitted to leave the Commonwealth of Australia in September of that year for a period of approximately 2 months.
In early September 2008 Strickland J made orders that the child be permitted to leave the Commonwealth of Australia for a specified period and made a number of other orders, including an order that the child spend an additional week with the father during the 2008/2009 Christmas school holiday period.
On 19 December, 2008 Dawe J heard an application by the father, and made orders that the mother purchase a ticket and ensure the child was placed on a plane from regional South Australia to Melbourne that afternoon to spend time with the father.
On 22 December 2008 the father filed an application in which he sought inter alia a recovery order and that the child be delivered immediately to him.
On 19 January 2009 the father filed an application seeking orders that the matter be transferred to the Melbourne Registry of the Court, that the ICL be removed from the proceedings and that the child be interviewed by a judge. At this time the father’s appeal from the orders of Watt J, which included an order that the proceedings be transferred from the Melbourne Registry to the South Australian Registry of the Court, had not yet been heard.
On 27 January 2009 the father’s two applications were listed before Dawe J. The father appeared by telephone.Dawe J made a number of procedural orders, including orders that the father serve sealed copies of his applications on the mother’s solicitor and ICL, and adjourned the applications to 20 February 2009.
On the adjourned date (20 February 2009) both the mother and the ICL were represented by counsel. There was no appearance by or on behalf of the father on this occasion. Dawe J made the following orders, the final order now being the subject of this appeal:
(1)The husband’s Application in a Case filed on the 22 December 2008 is dismissed.
(2)The husband’s Application in a Case filed on the 19 January 2009 is dismissed.
(3)The husband pay the costs of and incidental to both applications dismissed for both the wife and the Independent Children’s Lawyer such costs to be taxed in accordance with the Family Law scale.
Application to adduce further evidence
As we have earlier noted, before us the father sought leave to adduce further evidence. We dismissed that application at the hearing of the appeal, and indicated we would give our reasons for the dismissal of that application with these reasons.
The father’s application to adduce further evidence was filed 17 September 2009. Before us, in support of his application the father submitted that the further evidence would provide “further examples” of where the trial Judge acted incorrectly and was biased against him. The ICL opposed the father’s application in its entirety.
The further evidence sought to be adduced by the father was:
·a transcript of proceedings before Dawe J on 19 December 2008;
·orders of Dawe J made 19 December 2008;
·acknowledgement of service signed by the mother’s solicitor on 17 December 2008;
·a document which the father describes as “a telephone log for outgoing calls on [his] telephone for the evening of 16 December 2008”; and
·Part D of the father’s application in a case filed 16 December 2008, which application was heard by Dawe J on 19 December 2008.
In summary, the documents sought to be adduced by the father all related to his application of 16 December 2008 and the hearing before, and orders made by, Dawe J on 19 December 2008.
The Court is empowered, pursuant to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”), to receive further evidence in its discretion. Relevantly, the High Court said in CDJ v VAJ (1998) 197 CLR 172 at [109]:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
Our reason for dismissing the father’s application was the lack of sufficient nexus between the proceedings before Dawe J on 19 December 2008 and her Honour’s orders of that day (which orders were not the subject of appeal), and the orders made by her Honour on 20 February 2009. As such, the evidence sought to be adduced by the father was not relevant to a consideration of whether the orders then the subject of the appeal are erroneous. It is for this reason that we dismissed the father’s application.
The conduct of the proceedings before the trial judge and her honour’s reasons
As set out earlier in these reasons, on 27 January 2009 Dawe J adjourned the hearing of the father’s applications to 20 February 2009. As we have already explained, when the applications came before her Honour on this day, the mother and the ICL were represented by counsel and the father did not appear. No application had been filed by the father to appear by electronic communication. The transcript reveals her Honour was advised by counsel for the mother that her Honour’s court officer unsuccessfully tried to telephone the father on his mobile phone number. The transcript reveals the following exchange occurred between her Honour and her court officer. Thereafter a further submission was made by counsel for the ICL:
HER HONOUR: Sorry, Mr Boehm [counsel for the mother], can I just get Mr Court Officer to call the husband again, just so I can note his non-appearance. I gather he has been called personally, Mr Court Officer before.
COURT OFFICER: Ma’am.
HER HONOUR: If you’d call him in the precincts of the court, not on the telephone again, and check his appearance, please.
COURT OFFICER: No appearance, ma’am.
HER HONOUR: I note that there’s no appearance of the father and it is nearly 10.15. Mr Court Officer, you confirm that Mr Boehm is correct, that you’ve telephoned – there’s no application for appearance by telephone link, as far as I’m aware.
COURT OFFICER: No application on the file ma’am. I phoned the husband on his mobile number, which is the only number I could find, in the court. He said there was no-one there, leave a message after the beep. When I attempted to actually leave a message the phone actually disconnected. (transcript 20 February, 2009 p2)
After hearing submissions from the mother’s counsel and counsel for the ICL, her Honour gave ex tempore reasons for judgment, dismissed the father’s applications and made the costs order now subject of the appeal.
Her Honour commenced her reasons by referring to the applications before her which she noted had a “complex background”. Her Honour went on to explain that she had made orders on 27 January 2009 that sealed copies of both applications filed by the father be served on both the solicitor for the mother and the ICL. At paragraph 5 of her reasons the trial Judge noted that “[t]here [was] no affidavit of service indicating that the order has been obeyed; in particular service of the sealed application (document 530) filed on 22 December 2008”. That application sought a recovery order be issued and for the child to be immediately delivered to the father, or in the alternate, that the child be recovered by a state authority, and delivered to the father. The father also sought that the mother be placed on a bond of $400,000.00 to ensure compliance with Court orders. Her Honour observed that the material in support of that application “raised significant issues as to the appropriateness of [the] orders sought”
Her Honour then referred, in paragraph 8, to the orders sought by the father in his application filed on 19 January 2009. The orders sought were for:
·the proceedings to be transferred to the Melbourne Registry of the Court;
·the removal of the current ICL; and
·the child to be interviewed by a Judge as part of the final parenting proceedings.
After referring to the fact that the father was not present and that he had not applied to appear by telephone link, her Honour explained that she had directed the court officer to contact the father on his mobile phone “being the number available to the Court Officer”.
At paragraph 10 her Honour considered the application to transfer the proceedings to the Melbourne Registry. She explained that the material relevant to that application in the father’s material was directed to asserted delays in hearing the proceedings in the Adelaide Registry. Her Honour found that “ongoing delay in listing the final matters concerning [the child] appears quite clearly, on the face of the documents, to be due entirely to matters undertaken by the father”.
The matters highlighted by the trial Judge were the father’s prosecution of appeals and contravention applications which had “specifically prevented the listing of the matters to be determined on a final basis”. Her Honour then explained, at the present time, the father’s appeal from the orders of Watt J (who had transferred the matter from the Melbourne Registry) was awaiting hearing by the Full Court in March 2009. As a result of these findings her Honour concluded “it is unlikely that the father would have been successful in that application”.
Her Honour then turned to deal with the order sought by the father for the dismissal of the ICL. Her Honour explained the father did not provide “any information which would be of a convincing nature”, but rather that he raised issues in “a general sense” previously asserted by him, and which had formed the basis of an earlier application before her Honour. Dawe J went on to observe that an appeal in respect of her earlier refusal to dismiss the ICL was still pending.
Finally her Honour turned to the question of whether it was appropriate for the child to be interviewed by a Judge. After recording that the rules allowed for such an interview, her Honour made findings that “there was nothing in the affidavit of the father which would convince [her] that such a step would be appropriate or in the best interests of [the child]. Her Honour then referred to the need for the child to “lead her life” without being embroiled in the “continual dispute” between her parents, and referred to the fact of the mother’s health which she noted was of “serious concern”.
Her Honour thus concluded at paragraph 14 she was of the view that it was in the child’s best interests “that she participate as little as possible in these proceedings” and went on to record that the child was independently represented, that she had in the past had the opportunity to speak to a suitably qualified Family Consultant, who had appropriate expertise.
Her Honour concluded that aspect of the father’s application had little prospect of success. Her Honour also noted that she had been made aware the father had sought a similar order earlier in the proceedings, refusal of which had also been subject of an appeal by the father. Her Honour then dismissed the application of the father filed on 19 January 2009 referring to the application as document 535 (being the document number in the Court file).
At paragraphs 18 and 19 the primary Judge dealt with the applications before her by the mother’s counsel and ICL for costs of their respective attendances that day. As this is the only remaining challenge to Dawe J’s orders we set those paragraphs out in full:
In relation to the question of costs, both the mother and the Independent Children’s Lawyer have incurred costs in attendance today and in responding to the Application in a Case. I consider the provisions of section 117 and, in particular, that in the usual course of events each party would bear their own costs. However, the provisions of section 117(2) and (2A) are highly relevant in this matter. Not only has the father been wholly unsuccessful in these proceedings, he has failed to attend, and, as my judgment indicates, there was little merit in either of the applications brought by the father.
I take into account the financial circumstances of the parties, but the most significant factor is not the financial circumstances of the parties but the fact that the father has been wholly unsuccessful in these proceedings, and the comments I have made concerning the merit of his applications.
Asserted error of fact and law (Grounds 9 and 10)
Grounds 9 and 10 of the father’s grounds of appeal specifically relate to the challenge to the costs order. Those grounds are as follows:
9.The presiding judge erred in stating that she took account of the financial circumstances of the parties, where no such information was contained in any material that was before her.
10.Although alluding to Section 117 of the Family Law Act, the presiding judge failed to properly address the provision of that section before making a costs order against the father.
In support of grounds 9 and 10 the father relied on paragraphs 40 and 41 of his written submissions. Those paragraphs are as follows:
Dawe J further states that she “…consider the provisions of sections 117…”, and that “…the provisions of section 117(2) and (2A) are highly relevant in this matter”. Just as she has repeatedly failed to apply the provisions of the Family Law Act and the Family Law Rules, Dawe J failed to apply the provisions of Section 117. There was no material whatsoever from any of the parties that related to the financial position of either the father or the mother. No questions were asked by the judge, or information offered by counsel for the mother or child representative, during either the 27 January 2009 or 20 February 2009 hearings. No submissions were made to raise the issue of, or shed any light towards, the financial position of any party. For Dawe J to say, in paragraph 19 of the judgment, that she “…take into account the financial circumstances of the parties…” is a blatant and deliberate falsehood. …
The presiding judge’s granting of the costs order sought by the mother’s counsel and child representative, without properly applying considerations to [sic] Section 117, contrasts sharply to her actions at the 19 December 2008 hearing in which she made the order which in effect set the stage for the 27 January 2009 and 20 February 2009 hearings. That application filed by the father (16 December 2008) was necessitated by the mother’s failure to comply with the orders of three judges. The father was successful in that application. The father incurred substantial costs in the preparation of the application and travel costs to attend the Adelaide registry from [G] in Victoria. Dawe J ignored the father’s request for a costs order. …
Relevant law
Section 117 provides that, subject to subsection (2) and a number of other specified provisions which are irrelevant to this appeal, each party to a proceedings shall bear his or her own costs. Sections 117(2) and (2A) provide as follows:
(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) 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.
How the matters in s 117(2A) may be considered, and the weight afforded to them, is discussed by the Full Court in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [41]:
The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subsection (2A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
It is also relevant we refer to the comments of the High Court in considering a cost application in Penfold v Penfold (1980) 144 CLR 311.
Discussion
Ground 9 asserts that the trial Judge erred in that she took into account the parties’ financial circumstances in making the costs order when there was no evidence of those circumstances before her. A consideration of Dawe J’s reasons reveals that, in ordering costs to be paid by the father, her Honour principally determined that the father should pay the costs sought because he had been wholly unsuccessful in his applications, and he had failed to attend the hearing. However, in paragraph 19, her Honour said “I take into account the financial circumstances of the parties”.
Counsel for the ICL, in her written submissions, acknowledged that her Honour’s reasons “do not provide detail as to how Her Honour brought into account the financial circumstances of the parties and in particular, the father”. However, counsel for the ICL argued in her written submissions that:
… the learned Judge gave little weight to this particular section, and relied upon a finding that the applications where [sic] wholly unsuccessful and had little merit.
At the hearing of the appeal the ICL conceded that her Honour erred in referring to the parties’ financial circumstances, and the consequence of that error was the appeal against Order 3 of her Honour’s orders should be allowed.
Our reading of the transcript reveals neither the mother’s counsel, nor counsel for the ICL, made any submissions to her Honour about the parties’ financial circumstances, nor did any of the documents before her Honour refer to the parties’ respective financial positions.
We accept her Honour’s consideration of financial circumstances of the parties was not supported by any evidence, and as a consequence her reliance on this factor as a “circumstance” of which she took account was in error. We are accordingly satisfied there is merit in ground 9 of the husband’s Notice of Appeal.
We indicated to the father at the re-opening of the appeal that we would consider his remaining grounds of appeal to ascertain whether or not her Honour’s finding that he was “wholly unsuccessful” was soundly based. While we do not think it necessary we do so having regard to our determination of ground 9 in the father’s favour, and as consequence of that determination that Order 3 of her Honour’s orders must be set aside, and the costs application of the mother and the ICL remitted for re-hearing, we will for completeness discuss the remaining challenges.
Ground 10
Ground 10 asserts that the trial Judge made a mistake in law in failing to address seriatim each sub-section of s 117(2A). As we have already explained, it was sufficient for the purposes of s 117 if her Honour found a circumstance which warranted departure from s 117(1). This she did. Accordingly no appealable error is established on that basis.
procedural fairness and bias grounds (grounds 1, 2, 3 and 4)
The father relied on four grounds of appeal, all directed to asserted bias by the trial Judge. The relevant grounds are:
1.There was a denial of justice and procedural fairness against the father.
2.There was bias and prejudice against the father by the presiding judge.
3.The presiding judge had pre-judged and pre-determined the father’s applications and material in support.
4.The presiding judge disregarded the applicable legislation and court Rules as they applied to the father’s applications.
It is not in dispute that the father failed to file an application to appear at the hearing on 20 February 2009 via electronic communication. We note the father submits that he was prevented from participating in the hearing (father’s summary, paragraph 18) and that he was “in fact sitting by a landline telephone waiting to be called by the court officer to establish a telephone link for the hearing”. The father submitted that he had turned off his mobile telephone in order to “comply with the court rules”.
We see no merit in this complaint. The father, although a self-represented litigant, has filed many applications and appeals in the Court. He is able to competently quote rules and refer to them in his submissions. Rule 5.06 was relevant to her Honour’s determination. It provides as follows:
(1)A party may request permission to do any of the following things by electronic communication at a hearing:
(a)attend;
(b)make a submission;
(c)give evidence;
(d)adduce evidence from a witness.
(2)Before making a request, the party must ask any other party whether the other party agrees, or objects, to the use of electronic communication for the purpose proposed by the party.
(3)A request must:
(a)be in writing;
(b)be made at least 7 days before the date fixed for the hearing;
(c)set out the information required under subrule 16.08 (3);
(d)set out details of the notice in relation to the request that has been given to any other party;
(e)state whether any other party agrees or objects to the request; and
(f)state the expense to be incurred by using the electronic communication.
(4)A request may be considered in chambers, on the documents.
(5)The court may take the following matters into account when considering a request:
(a)the distance between the party’s residence and the place where the court is to sit;
(b)any difficulty the party has in attending because of illness or disability;
(c)the expense associated with attending;
(d)the expense to be incurred, or the savings to be made, by using the electronic communication;
(e)any concerns about security, including family violence and intimidation;
(f)whether any other party objects to the request.
(6)If the court grants the request, the court may:
(a)order a party to pay the expense of using the electronic communication; or
(b)apportion the expense between the parties.
(7)If a request is granted, the party who made the request must immediately give written notice to the other parties.
The father offers no cogent explanation why, if he was unable to attend the Adelaide Registry, he did not file such an application. In our view the trial Judge did all she could in the circumstances to ensure the father’s participation at the hearing. We do not find any absence of procedural fairness afforded to the father in these circumstances.
The father complains that he was denied procedural fairness or that the trial Judge demonstrated bias to him by failing to deal with his application of 22 December 2008 which was filed as a result of the mother’s asserted failure to comply with her Honour’s order of 19 December 2008 which was to ensure the child travelled from the mother’s home to Melbourne to spend time with the father. He asserts the application should not have been adjourned until after the school holiday period had concluded.
We accept the father properly sought to have his application filed on 22 December 2008 dealt with on an urgent basis. It is regrettable the application was not able to be listed prior to the Christmas period. However, there is nothing in the appeal book which discloses appealable error by the trial Judge in respect of this application. Her Honour dealt with the application on the day it was listed before her. Further, as her Honour explained in her reasons the father had failed to serve that application in accordance with the rules. Her Honour also considered, albeit briefly, the merits of the orders sought, and noted the material filed in support of the application “raised significant issues as to the appropriateness of [the orders] sought”.
The father does not challenge her Honour’s finding that he had not served a sealed copy of the application filed 22 December 2008 on the mother’s solicitor or the ICL. Further as a reading of the transcript of 27 January 2009, p 4 (Appeal book page 58) reveals, the father conceded he had not forwarded this application to the Court until 15 January 2009, and he only received sealed copies for service on 19 January 2009.
Before us the father complained that the trial Judge had not explained why she did not deal with the father’s application of 22 December 2008 for costs of his application filed 16 December 2008. We accept on 19 December 2008 the father was successful in obtaining an order for the mother to purchase an airline ticket for the child and requiring her to send the child to Melbourne for contact with the father. Against this factual background, we accept there were circumstances which may have warranted departure from s 117(1). While it would have been preferable if her Honour had dealt separately with this paragraph of the father’s application dated 22 December 2008, we are not satisfied the father has established a lack of procedural fairness by her Honour in dismissing his application in its entirety. It must be remembered a sealed copy of the application had not been served on the mother and the ICL and the father was not present to agitate his claim. Overall we are not satisfied that the failure to consider this paragraph of the father’s application has resulted in procedural unfairness.
Having regard to the matters we have discussed we are not satisfied the father has established any of his natural justice or procedural fairness grounds. We are further satisfied that her Honour was entitled, having regard to the relevant provisions of the rules, to dismiss the father’s applications.
Grounds 5, 6, 7 and 9 of the father’s Notice of Appeal assert factual errors by the trial Judge. We have examined the factual errors which the father asserts. If her Honour was in error in respect of her finding that the ICL had responded to the father’s applications, we are satisfied this matter is not one which vitiated her Honour’s discretion in determining that the father was wholly unsuccessful in his applications (see De Winter v De Winter (1979) 23 ALR 211).
We see no relevance in the father’s complaint that the trial Judge erred in stating she had directed the court officer to telephone the father. The salient matter is the father failed to file an application to appear by telephone, and the trial Judge, although not required to do so, satisfied herself that attempts were made to contact the father by telephone. This challenge has no merit.
We are also satisfied that no appealable error is demonstrated in her Honour’s observations relating to the causation of delays in the final hearing. Those observations were not integral to her Honour’s determination that the father’s applications should be dismissed.
In conclusion, we are satisfied that the trial Judge’s determination that the father was wholly unsuccessful was open to her in the circumstances of this hearing.
Was leave to appeal required?
At the hearing of the appeal we raised with the father the question of whether he was required to seek leave to appeal the orders of 20 February 2009. Section 94AA of the Act together with Regulation 15A(1) of the Family Law Regulations 1984 (Cth) prescribes the circumstances in which leave to appeal is required. In summary, the section and rule in conjunction provide that leave is required to appeal all interlocutory orders except those in relation to “a child welfare matter”. A “child welfare matter” is defined as:
… a matter relating to:
(a)the person or persons with whom a child is to live; or
(b)the person or persons with whom the child is to spend time or communicate; or
(c)any other aspect of parental responsibility, within the meaning of Part VII of the Act, for a child.
It is questionable whether the orders made by Dawe J on 20 February 2009 fall within the definition of “child welfare matter”. However, as we have found merit in ground 9 it is unnecessary that we consider this matter in detail. Suffice it to say that should leave be required, we would grant it.
Costs
The father was self represented before us. However he sought, in the event the appeal was allowed, that we grant him a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) on the basis he had incurred costs in obtaining transcript and in photocopying expenses.
Although the ICL submitted at the re-opening that she did not want to be further heard in the matter after the mother’s death, at the conclusion of the hearing on 15 October 2009 an order for costs was sought on behalf of the ICL against the father if his appeal was dismissed. The ICL also sought, in the event we found error of law by the trial Judge, we should grant a certificate to the ICL for the appeal and re-hearing.
As we have recorded earlier in these reasons, the mother was not represented at the appeal and no submissions were filed on her behalf. It is unclear to us whether in these circumstances her executors would wish to participate in the re-hearing of the application made on her behalf for costs. If her executors did wish to participate at the re-hearing we would consider any application seeking a grant of a certificate for the re-hearing.
We are satisfied the father has established an error of law, and that the parties should bear their own costs under s 117(1). In these circumstances we propose to grant the certificates as sought.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 16 March 2010
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