Fullmer & Omeros (No 2)

Case [2022] FedCFamC1A 110

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Fullmer & Omeros (No 2) [2022] FedCFamC1A 110

Appeal from: Fullmer & Omeros (No 4) [2021] FedCFamC2F 319
Appeal number(s): NAA 75 of 2021
File number(s): MLC 7203 of 2016
Judgment of: MCCLELLAND DCJ
Date of judgment: 19 July 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from primary judge’s dismissal of multiple counts of alleged contravention against the respondent – Reasonable excuse for respondent failing to comply with orders – No error established – Protracted litigation history – Absence of transcript – Appeal dismissed – No order as to costs.
Legislation:

Family Law Act 1975 (Cth) ss 60CG, 70NAE

Federal Circuit and Family Court of Australia 2021 (Cth) s 35

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181

Fullmer & Omeros [2022] FedCFamC1A 6

FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236

House v The King (1936) 55 CLR 513; [1936] HCA 40

Insley & Maidment [2022] FedCFamC1A 48

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255

Newett and Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Number of paragraphs: 56
Date of hearing: 16 May 2022
Place: Melbourne (via videolink), delivered in Sydney  
The Appellant: Litigant in person
The Respondent: Litigant in person

ORDERS

NAA 75 of 2021
MLC 7203 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR FULLMER

Appellant
AND:

MS OMEROS

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

19 JULY 2022

THE COURT ORDERS THAT:

1.The Notice of Appeal filed 3 December 2021 is dismissed.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fullmer & Omeros has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

MCCLELLAND DCJ:

  1. X was born in 2014 (“the child”). She is now eight years old.  Her parents separated when she was approximately one year old…

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AGLC
Fullmer & Omeros (No 2) [2022] FedCFamC1A 110
Case
[2022] FedCFamC1A 110
Decision Date

CaseChat Overview and Summary

This appeal stems from a long-standing dispute between Mr Fullmer and Ms Omeros regarding parenting arrangements for their child. The matter has been before various courts, with numerous applications and hearings held over several years. The most recent appeal concerns the primary judge's dismissal of multiple counts of alleged contraventions against Ms Omeros. Mr Fullmer, acting as his own legal representative, sought to challenge the primary judge's decision, arguing that Ms Omeros had failed to comply with the parenting orders made on 6 March 2019. The appeal was dismissed by the court, finding no error on the part of the primary judge.

The legal issues before the court were whether the primary judge erred in dismissing the appellant's multiple counts of alleged contraventions against the respondent and whether there was a reasonable excuse for the respondent's failure to comply with the orders. The court found that Mr Fullmer had failed to demonstrate any error on the part of the primary judge in respect of these grounds of appeal. The court also found that, even if there had been an error, the totality of the evidence presented before the primary judge was not available due to the absence of the transcript of the primary proceedings. This was despite Mr Fullmer being cautioned by Austin J regarding the difficulty he would face in successfully prosecuting the appeal in the absence of the transcript.

The court dismissed the appeal and made no order as to costs, as both parties were self-represented. The decision was made on 19 July 2022 by McClelland DCJ. The court found that the appellant had failed to demonstrate any error on the part of the primary judge in respect to this ground of appeal. The appeal was dismissed, and the notice of appeal filed on 3 December 2021 was dismissed.

Orders

Orders of the court

NAA 75 of 2021

MLC 7203 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FULLMER

Appellant

AND:

MS OMEROS

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

19 JULY 2022

THE COURT ORDERS THAT:

1. The Notice of Appeal filed 3 December 2021 is dismissed.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For reasons which I explain, I have found the appeal to be without merit and it has been dismissed. As both parties are self-represented, no issue of costs arises.BACKGROUND Pursuant to orders made on 6 March 2019 (“the orders”), the child is to live with the respondent and spend time with the appellant, including as relevantly noted at [8] of the reasons for judgment:5. [The child] spend time with the [appellant] as follows:-(a)during school terms, each alternate weekend from after kindergarten/school (or 3.30pm) on Friday until the commencement of kindergarten/school (or 9.00am) the following Monday, such time to commence on the first weekend of the school term following each school term holiday period…;…(c) for half of all school term holiday periods, from the conclusion of kindergarten/school (or 3.30pm) until 5.00pm the following Friday;…(e)by Skype, FaceTime, telephone or other like electronic communication, each Sunday morning that [the child] is not in the [appellant’s] care for a period not exceeding ten minutes between 10.00am and 10.30am, such call to be instigated by the [respondent] to the [appellant] and the [appellant] to ensure that his device is switched on, charged and able to receive calls;(f)on the Father’s Day weekend, in the event that [the child] is not already in the care of the [appellant], from 4.00pm on the Saturday preceding Father’s Day until the commencement of school on the day after Father’s Day. Order 7 of the orders provided for the following changeover arrangements:7. For the purposes of changeovers pursuant to these orders:-…(c) on a non-school day;-(i)seven days prior to any changeover that shall not occur at school, the [respondent] advise the [appellant] of the availability of the maternal grandmother to effect changeover;(ii)in the event that the maternal grandmother is available to facilitate changeover, changeover occur at the Suburb S Library, in the State of Victoria; and(iii)otherwise the parties do all such acts and things necessary to engage a private child contact service such as DD Family Services, FF Contact Service or such other service as may be nominated by the [respondent] to facilitate changeover, the costs of same to be borne by the [appellant] at first instance and the [respondent] to electronically reimburse the [appellant] as to one half of that cost;(d)as may be otherwise agreed between the parties in writing from time to time. There has been ongoing litigation between the parties since those orders were made. That litigation history is set out at [2] as follows: (a)the [appellant] filed a Contravention Application on 6 September 2019. That was summarily dismissed on 30 September 2019;(b)on 22 November 2019, the [respondent] filed an Initiating Application seeking to vary the primary orders and to travel overseas with [the child]. That application was dismissed on the basis of the principles in Rice & Asplund [1978] FamCA 84 (“Rice & Asplund”) by Mercuri J on 20 February 2020;(c)on 12 August 2020 the [appellant] filed a further Contravention Application;(d)on 24 August 2020 the [appellant] filed an Initiating Application seeking to vary the primary orders. That application was given a return date of 22 September 2020;(e)on 14 September 2020 the [appellant’s] Contravention Application filed 12 August 2020 was listed before a deputy registrar. The application was dismissed for non-compliance with the rules. At that time, the [appellant’s] affidavit filed 9 September 2020 was struck out as an abuse of process and removed from the court file and portal;(f)on 22 September 2020 the [appellant’s] Initiating Application was listed before a deputy registrar. The application was adjourned to 29 March 2021;(g)on 23 September 2020 a deputy registrar made orders in chambers by consent varying the order for the mechanics of changeover, dispensing with the requirement for the parties to engage a professional supervisor, and for changeovers not at [the child’s] school or facilitated by the maternal grandmother to be effected between the parties at Suburb S Police Station;(h)the appellant filed a further Contravention Application on 4 March 2021 setting out some 27 alleged counts of contravention. This is the application currently before the Court; (i)on 29 March 2021 a deputy registrar listed the [appellant’s] Initiating Application filed 24 August 2020 for a threshold Rice & Asplund hearing before a judge on 13 July 2021, and adjourned the [appellant’s] Contravention Application to a directions hearing on 29 April 2021;(j)at the directions hearing in relation to the [appellant's] Contravention Application before a deputy registrar on 29 April 2021, counts 9 to 22 of that application were struck out. The [appellant] was directed to file further material regarding counts 24 to 27. He was put on notice that the remaining counts may be dismissed if he did not file further material compliant with the Rules. The Contravention Application was adjourned to a deputy registrar on 29 July 2021; (k)the [appellant] filed an Application of Review of Registrar’s decision on 13 May 2021. He sought to review the decision of the deputy registrar and her determination to strike out counts 9 to 22 of his Contravention Application; (l)on 29 July 2021 a deputy registrar listed the matter before me for a hearing in relation to counts 1 to 8 of the Contravention Application filed 4 March 2021 and struck out all other counts. The [appellant] did not file an Application to Review the decision of the deputy registrar.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, the appellant has failed to demonstrate any error on the part of the primary judge in respect to this ground of appeal.SUMMARY AND CONCLUSION Accordingly, while it has been extremely difficult to identify the substance and nature of the appellant’s grounds of appeal, to the extent that I have been able to do so I have found that each ground is lacking in merit and must be dismissed. For completeness, I would add that, even if I had found error on the part of the primary judge I would not have made the orders sought by the appellant in circumstances where I do not have available the totality of the evidence presented before the primary judge as required by s 35 of the FCFCOA Act. This is the result of the appellant failing to provide the Court with the transcript of the primary proceedings. Further, this is despite the fact that the appellant was cautioned by Austin J as to the difficulty he would face in successfully prosecuting the appeal in the absence of the transcript of the proceedings before the primary judge: Fullmer & Omeros [2022] FedCFamC1A 6.ORDERS For all these reasons, the appeal must be dismissed. In circumstances where each party is self-represented, no issue of costs arises.

Ratio Decidendi

Legal Principle Established

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