FIELD & MIGHELL
[2017] FamCAFC 60
•1 March 2017
FAMILY COURT OF AUSTRALIA
| FIELD & MIGHELL | [2017] FamCAFC 60 |
| FAMILY LAW – APPLICATION – STAY – Where the wife seeks a stay of the proceedings to travel to Mexico – Where she wife has not appeared – Where she has not provided an adequate reason/s for a stay – Where the proceedings should not be stayed – Application dismissed. FAMILY LAW – APPEAL – DISMISSAL – Where the husband seeks that the appeal be dismissed – Where the wife was on notice that consideration would be given to dismissing her appeal – Where it is readily apparent that the wife was attempting to retry issues that the trial judge had already finally determined under the guise of s 79A proceedings – Where none of the orders sought by the wife before the trial judge could successfully invoke the application of s 79A of the Family Law Act 1975 (Cth) – Where none of the wife’s so-called grounds of appeal raise appealable error by the trial judge – Where the grounds of appeal are incompetent – Where there is no prospect of success and the appeal is doomed to fail – Appeal dismissed. |
| Family Law Act 1975 (Cth) – ss 79A and 96AA |
| Lindon v The Commonwealth (1996) 136 ALR 251 |
| APPELLANT: | Ms Field |
| RESPONDENT: | Mr Mighell |
| APPEAL NUMBER: | SOA | 74 | of | 2016 |
| FILE NUMBER: | MLC | 1145 | of | 2010 |
| DATE DELIVERED: | 1 March 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 1 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 26 July 2016 |
| LOWER COURT MNC: | [2016] FCCA 1818 |
REPRESENTATION
| THE APPELLANT: | No appearance |
| THE RESPONDENT: | In Person |
Orders
The Application in an Appeal filed on 6 February 2017 be dismissed.
The Amended Notice of Appeal filed on 4 November 2016 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Field & Mighell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
|
Appeal Number: SOA 74 of 2016
File Number: MLC 1145 of 2010
| Ms Field |
Appellant
And
| Mr Mighell |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is a further listing of the Amended Notice of Appeal filed by Ms Field (“the wife”) on 4 November 2016. Her initial Notice of Appeal was filed on 23 August 2016, and the appeal is against an order made by Judge Burchardt on 26 July 2016 that:
(1)All extant applications and responses be dismissed.
This appeal first came before this Court on 14 December 2016. On that day the wife and Mr Mighell (“the husband”) both appeared without legal representation. I will come back to the detail of what I dealt with on that day, but, in the end result, I adjourned the hearing to today, effectively to give the wife one last opportunity to prepare and file a Further Amended Notice of Appeal containing competent grounds of appeal.
The wife has not appeared today, and the matter has been called several times. The husband appears, albeit again without legal representation.
During the period of the adjournment no Further Amended Notice of Appeal has been filed, but what has been filed is an application in an appeal supported by an affidavit filed by the wife on 6 February 2017, and in that application the wife sought that:
1.The appeal procedure be stayed until further order.
The supporting affidavit provides the reasons for that application, and they are twofold. First, the wife alleges that her mother, who is in Mexico, became seriously ill, she says in her affidavit “during the past weekend”, so I assume that relates to the weekend at the commencement of February, and, as a result, the wife says that she is required to go to Mexico to help look after her mother, and, as she says in her affidavit, “make her company”, whatever that may mean. She also says that she has been requested to do that by her brother, who presumably is in Mexico. Pausing there, it is confirmed by the husband that she, in fact, has two brothers still living in Mexico.
The wife has annexed to her affidavit a document which is in Spanish, and which the wife has translated. It is a very short document, and the translation in English, allegedly, according to the wife, is:
Diagnosis: Chronic Obstructive Pulmonary Disease Exacerbation Type 1 respiratory failure.
Now, there is no detail provided by the wife surrounding that, so that is the extent of the information that the wife presents in relation to her mother’s illness and her need to go to Mexico. What she does not explain, of course, is why she needs to go to Mexico urgently, and why her brother or brothers cannot care for her mother. In any event, that is just an example of the questions that arise from the scant information that the wife has provided on this topic.
The second, what I will call, reason for the application as explained in the affidavit – and I will summarise as best I can – is that the wife suggests that if she is going to travel to Mexico, she can extend her stay there, and these are my words, “sort out what is to happen to a property of the parties in Mexico”. That is the property, the presence of which, and the issues surrounding which, have caused difficulties in this matter.
In any event, that is what the wife has said in her affidavit. To repeat though, she has not appeared today, and I am none the wiser as to the need for her to travel to Mexico, either urgently or at all, and as to what her plans are generally. In those circumstances, the husband has requested that I proceed to hear and determine the matter today, and, in fact, dismiss the appeal.
In that regard, the wife is clearly on notice that that was something that would be considered today. In my ex tempore reasons for judgment delivered on 14 December 2016 when I adjourned the matter to today I said this in [10]:
The wife is plainly now on notice that what will be considered on 1 March 2017 is whether there are competent grounds of appeal then before the court which would allow the appeal to proceed, but if not, dismissal of the appeal will be considered and addressed on that day.
I also note that in [9] I identified for the parties, but particularly the wife, s 96AA of the Family Law Act 1975 (Cth) (“the Act”), which is the section that provides for the dismissal of an appeal if it has no reasonable chance of success. So, to repeat, the wife was well and truly on notice that dismissal was something that would be considered today.
At this point I emphasise that there has been no contact from the wife since her application of 6 February 2017. By that, I mean there has been no communication by her to the Registry or to the husband, for example, indicating that she would not be able to attend today, or that she was going to have someone else attend for her.
As is apparent from not only the appeal proceedings, but also the first instance proceedings, this matter has been continuing for some time. Indeed, the proceedings commenced when the husband filed an Initiating Application on 30 August 2010, and since then there have been a number of judgments delivered by Judge Burchardt, and there have been a number of matters dealt with by the Appeal Court, and I will come to the detail of that in a moment. Thus it is time this matter was brought to a conclusion, and in the circumstances, I will proceed today in the absence of the wife. There is no basis to accede to her application to stay the proceedings and I will dismiss it. What is before me then is the husband’s oral application that the appeal be dismissed.
I have set out already the dates of when the Notices of Appeal were filed, and the date of the orders made by the trial Judge, and in terms of the relevant background of the matter it is convenient for me to set out certain paragraphs from his Honour’s reasons for judgment delivered on 26 July 2016 as follows:
1.These parties have been litigating against one another in Mexico and in this country since 2003. Although they are long since divorced, there have been so many applications brought by them that it is easier to identify them as wife and husband respectively. The wife herself continues to use this descriptor in her affidavits.
2.The matter before the Court is the wife’s initiating application filed 3 July 2015 in which she seeks no less than 32 specific orders. The wife says that this application is brought pursuant to s.79A of the Family Law Act 1975 (“the Act”).
3.The husband’s response filed 1 September 2015 seeks that the application be dismissed and that the wife be declared a vexatious litigant (this being an order also sought by the wife in her own application against the husband).
4.For the reasons that follow, I am going to dismiss the application and the response.
A Very Brief Indication of the History of Litigation Between the Parties
5.It is not possible to understand this proceeding without some appropriate context. The parties commenced litigation in 2003 in Mexico when the husband applied for divorce, but, as I noted at paragraph 54 of my Judgment delivered 21 June 2011 “the parties rapidly got embroiled in what would in Australia be called child support proceedings”.
6.On 14 October 2013 on the first day of an appeal against orders I had earlier made, the husband informed the Full Court of the Family Court that the Mexican proceedings had finally ended “two months ago”, although I note that it was also asserted there had been several appeals from that conclusion which had been unsuccessful. On any view, however, the Mexican proceedings were certainly finally determined by October 2013.
7.Matters first commenced in this Court with the husband’s initiating application filed 30 August 2010. In the ultimate, I have given four sets of Reasons for Judgment, all of which should be read in conjunction with these Reasons. I will have to refer to these Reasons and the Judgment of the Full Court given on 25 February 2015 in disposing of the matters raised by the proceeding. Relevantly for these purposes, I made final orders in my third Judgment delivered on 31 August 2012. It was the orders then made that gave rise to the appeal to which I have referred. The appeal was entirely unsuccessful.
8.As earlier indicated, the wife filed her initiating application on 3 July 2015 and when the matter first became returnable before the Court on 28 September 2015, I made a number of observations to the parties, who are self-represented, in order that they be alerted to matters that concerned me about the nature of the proceeding.
9.I pointed out that this was an application to change, in effect, orders made as long ago as 2011. I observed that the first issue raised was whether I was functus officio. The second matter I directed the parties to consider was whether the application sought to retry issues I had already determined anyway, so that even if I was not functus officio I might be reluctant to reopen them. I gave as an example the endeavour to involve the husband’s mother as a party. The third matter to which I directed the parties’ attention was the Court’s capacity pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 which empowers the Court to dismiss a proceeding where there are no reasonable prospects of success. I indicated that this was a power the Court can exercise of its own motion and that I was minded to exercise it. I told the parties to revisit and reread all of my rulings and the appeal decision in preparing themselves.
The first matter to highlight in those reasons is that although these proceedings have been before the lower Court since 2010, that was not the start of any court proceedings between the parties. The parties had, prior to that, conducted litigation in Mexico, and, as his Honour has identified, as long ago as from 2003.
Next, I highlight that in addressing the issue of property settlement, which was the matter before his Honour, his Honour gave four sets of reasons for judgment, but, relevantly, he made final orders in the third of those four sets of reasons for judgment, delivered on 31 August 2012. Those orders gave rise to an appeal by the wife, but that appeal, as his Honour recites, was entirely unsuccessful.
The proceedings that this Court is now dealing with stem from an Initiating Application filed by the wife on 3 July 2015 following the dismissal of her appeal.
The husband filed a Response to that application on 1 September 2015 seeking that the application of the wife be dismissed, and that the wife be declared a vexatious litigant. Indeed, that was also an order sought by the wife in her Initiating Application against the husband.
In the wife’s Initiating Application she sought 32 orders. It was not necessarily clear from her application on what basis she sought those orders given, of course, to repeat, that his Honour made final orders for property settlement on 31 August 2012, and an appeal from those orders was unsuccessful, but what his Honour took from the wife’s application, her affidavit material in support, and her submissions before him, was that the application was brought pursuant to s 79A of the Act.
In his reasons for judgment his Honour carefully addressed all of the 32 orders sought by the wife. His Honour found, and I refer specifically, as I did in my earlier ex tempore reasons for judgment, to [80] of his Honour’s reasons for judgment where his Honour relevantly said this:
Furthermore, … the wife’s application has, in my view, been essentially misconceived and in part represents an abuse of the processes of the Court insofar as it seeks, effectively, to revisit matters already determined...
On my reading of the wife’s application before his Honour, and from my knowledge of the earlier proceedings, and from reading his Honour’s reasons for judgment, that is an accurate description of the proceedings brought by the wife, and, to highlight it again, it is readily apparent that what the wife was seeking to do, under the guise of s 79A proceedings, was to retry issues that the trial judge had already finally determined. It is further readily apparent from his Honour’s detailed reasons for judgment that none of the 32 orders sought by the wife could successfully invoke the application of s 79A of the Act.
In her Amended Notice of Appeal filed on 4 November 2016 the wife set out a number of grounds of appeal in what I will, perhaps generously, describe as a narrative covering 31 pages. I do not propose to recite any of those so-called grounds of appeal in these reasons for judgment. Having considered them carefully in the context of the proceedings that were before his Honour, and having regard to his Honour’s reasons for judgment, as I indicated in my ex tempore reasons for judgment delivered on 14 December 2016, none of the so-called grounds of appeal raised an appealable error by the trial judge.
There is no doubt that in that document the wife complains about his Honour’s reasons and revisits the history of the matter, but that is not what is required. It is necessary for an appellant to set out competent grounds of appeal raising appealable errors by the trial judge, and the wife has not done that, and, for completeness, that was also the case with her initial Notice of Appeal filed on 23 August 2016.
As I also indicated in my previous reasons for judgment, that situation was not new, in that in relation to her earlier appeal against the final orders made by the trial judge on 31 August 2012, that appeal initially came before this Court, and the Notice of Appeal that the wife had filed I similarly described as being incompetent and not raising any appealable error. Further, on that occasion I provided the wife with opportunities to amend her Notice of Appeal to present competent grounds of appeal, and, as I recall, I adjourned the matter on at least one occasion and maybe two to achieve that purpose. In the end, though, it did not happen, but I allowed the matter to proceed to be heard by a three member bench and, to repeat, the appeal was ultimately dismissed by that three member bench.
And the same thing has happened again. Although I was tempted to dismiss the wife’s appeal when it first came before me on 14 December 2016 because it did not raise competent grounds of appeal, I determined to provide the wife with another opportunity to prepare and file a Further Amended Notice of Appeal containing competent grounds of appeal. And, as I have said earlier, that has not happened. There has been no Further Amended Notice of Appeal filed by the wife, and it falls to me to determine this matter on the basis of the Amended Notice of Appeal filed on 4 November 2016 to which I have referred.
The relevant section of the Act is s 96AA and that provides as follows:
SECTION 96AA APPEAL MAY BE DISMISSED IF NO REASONABLE PROSPECT OF SUCCESS
96AA(1) If:
(a)an appeal has been instituted in a court under this Part; and
(b)having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal);
the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
96AA(2)This section does not limit any powers that the court has apart from this section.
In support of his oral application to dismiss the appeal, effectively pursuant to that section, the husband has taken me to a number of paragraphs of his Honour’s reasons, which he says highlight that the appeal has no reasonable prospect of success. As is obvious from what I have said so far in relation to the so-called grounds of appeal relied upon by the wife, I agree with the husband.
I should also mention, just in terms of authority, that the dismissal of an appeal under s 96AA of the Act is of a similar nature to a summary dismissal of an action, and, in that regard, the relevant approach is set out by Kirby J in the High Court decision of Lindon v The Commonwealth (1996) 136 ALR 251 at 256. There his Honour set out a number of principles to be applied in considering such applications, and they are as follows:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided.
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action - 03-01046fn022 or is advancing a claim that is clearly frivolous or vexatious.
3.An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4.Summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26 r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.
6.The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
Certainly, not all of these principles are relevant here, but some are, namely the second, which I find that the husband here has satisfied. As for the third principle, here it cannot even be said of the wife’s case that it is weak. In my view, there is no basis on which her case can succeed. And finally there is the sixth principle. That is a principle which is highly relevant to this matter, and resonates with this court.
So, to summarise, the question here is whether there is no reasonable prospect of success. As is apparent, and considering the grounds of appeal relied upon by the wife, in my view, that is the case. The grounds of appeal are simply incompetent. They do not identify any appealable error by the trial judge, and not only is there no reasonable prospect of success, there is no prospect of success, and the appeal is doomed to fail. Thus, I propose to dismiss the Notice of Appeal.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Strickland delivered on 1 March 2017.
Associate:
Date: 4 April 2017
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