Hadesty and Beaven (No 2) - [2017] FamCAFC 177

FAMILY COURT OF AUSTRALIA

HADESTY & BEAVEN (NO. 2)

[2017] FamCAFC 177

FAMILY LAW – APPEAL – CHILDREN – Where the appellant chose to leave the courtroom before the appeal had been dealt with – Where the appellant was aware that consideration would be given to dismissing his appeal – Where the respondent makes application for security for costs if the appeal is to proceed – Where the father has made it plain to the solicitor for the respondent that he has no intention of paying a previous costs order – Where the appeal has no reasonable prospects of success – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent and the Independent Children’s Lawyer seek orders for costs – Where there are circumstances which justify orders for costs being made – Where impecuniosity is no bar to an order for costs being made – Costs ordered in favour of the respondent and the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) s 96AA

APPELLANT:

Mr Hadesty

RESPONDENT:	Ms Beaven
INDEPENDENT CHILDREN’S LAWYER	Ms R Reed

FILE NUMBER:

ADC

3579

2013

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

25 August 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:	Strickland J
HEARING DATE:	25 August 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

26 April 2017

LOWER COURT MNC:

[2017] FCCA 1306

REPRESENTATION

THE APPELLANT:	In person
COUNSEL FOR THE RESPONDENT:	Mr Hemsley

SOLICITORS FOR THE RESPONDENT:

SE Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Anderson

SOLICITORS FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

The appeal be dismissed.
The father pay the costs of the mother and the Independent Children’s Lawyer of and incidental to the appeal, such costs to be taxed in default of agreement.

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 Hadesty & Beaven(No. 2) 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 34 of 2017
File Number: ADC 3579 of 2013

Mr Hadesty

Appellant

And

Ms Beaven

Respondent

And

Ms R Reed

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Introduction

Before me today is a Notice of Appeal filed on 24 May 2017 by Mr Hadesty (“the father”) appealing against parenting orders made by Judge Kelly on 26 April 2017. Ms Beaven (“the mother”) and the Independent Children’s Lawyer (“ICL”) oppose the appeal.
The appeal was initially before this court for directions on 14 August 2017. However, on 9 August 2017 the father forwarded an email to the Southern Appeals Registry referring to that listing, indicating that he had been contacted about a job interview which conflicted with the listing, and enquiring as to the procedure for obtaining an adjournment. He was informed by the Southern Appeals Registry that the first step in the process would be to seek the consent of the other parties for the adjournment. It is apparent from email correspondence that I have been provided with that the father sought the consent of the other parties, but that consent was refused. Accordingly, on Thursday 10 August 2017 the father sent another email to Southern Appeals Registry advising of that, arguing that he had a right to be heard, and if the matter was not adjourned he would suffer prejudice.
As a result of that email, and the matter being referred to me in chambers, I directed the Appeal Registrar to relist the directions hearing. Fortunately, a matter which had been listed in the afternoon of 14 August 2017 resolved, and I directed the Appeal Registrar to relist this matter at that time, and to advise the parties, including the father, of that listing.
I understand that on Friday 11 August 2017, the Southern Appeal Registrar forwarded emails to the parties, including the father, advising of the change in the listing. However, when the matter was called on at 2:15pm on 14 August 2017, the father was not in attendance, but counsel for the mother was, as was counsel for the Independent Children’s Lawyer (“ICL”). In the circumstances though, and particularly given the relatively short notice of the relisting, I determined to adjourn the directions hearing and made orders adjourning the directions hearing to today, namely 25 August 2017.
I am informed today that an email was sent to the father enclosing, in the usual way, a copy of the order, and advising him that on 25 August 2017 I would be considering whether to dismiss his Notice of Appeal. The reasoning behind that advice was that, in my view, having regard to the grounds of appeal, and of course the reasons for judgment in support of the orders that were challenged in the appeal, it appeared to me that the appeal had no reasonable prospect of success. Thus, dismissal in those circumstances would be appropriate under s 96AA of the Family Law Act 1975 (Cth) (“the Act”).
Today the matter has again been called on, and the father appeared. At the outset I challenged him as to why he did not attend on 14 August 2017. He indicated that he had a job interview. My response to that was that as I understood it the interview was in the morning and that was why he wanted the listing at 9:30am that morning adjourned. He then replied by saying he did not receive notification of the change to the listing. However, I do not accept that, and I informed the father of that, given my understanding of the emails emanating from the Southern Appeals Registry, and the receipt of the same by for example, the other parties.
In any event, I then turned to the matters that were before the court today, and by that I mean not only was this to be a directions hearing in relation to the Notice of Appeal, but to repeat, it was also the hearing in which I proposed to consider whether the appeal should be dismissed. I confirmed that with the father, and indicated to him that on my preliminary reading of the documents there was no reasonable chance of success.
I then turned to the other application before the court today, and that is an application filed on behalf of the mother seeking an order by way of security for costs. I was about to hear submissions in support of that application from counsel for the mother when the father abused me, and the mother, and stormed out of the courtroom.
I should also say that in the short time the hearing took place in the presence of the father he indicated that he wished to make an application that I disqualify myself. I refused to accept that application. If the father had remained in the courtroom I would have explained to him that such an application was clearly premature, given that very little if anything had been said in relation to the matters before the court, and subject to what might have been said subsequently, then I would have been quite prepared to receive that application.
In any event, the father did not remain, and to repeat, he stormed out of the court uttering abuse.
In the circumstances I propose to dismiss the appeal; not as a result of the conduct and behaviour of the father, which is unfortunate, but because in my view there is no reasonable prospect of success in the appeal.
I want to also mention the application in an appeal that I have previously referred to seeking an order for security for costs. There is an affidavit in support of that application which I have read. In that affidavit the mother refers to the order for costs I made on 26 May 2017 when I dismissed a previous Notice of Appeal filed by the father. I made the usual order for costs, namely that the father pay the costs of the mother and the ICL, with those costs to be assessed on a party/party basis in default of agreement. Annexed to the affidavit is correspondence to the father from the mother’s solicitors in an attempt to agree the amount of costs. Importantly, there was a response by the father where he abused the solicitor, and made it plain that he had no intention of paying any order for costs.
That is significant in the context of an application for security for costs. I of course, given the circumstances today, do not know what the father’s attitude to that application is, but if he had remained in the courtroom, and indeed I recall that I was about to say this as he left, there were three choices that I had today. First, to allow the appeal to proceed and make appropriate directions, secondly, to dismiss the appeal for the reasons I have indicated earlier, and thirdly, make an order for security for costs and require that the amount of security be paid prior to the appeal proceeding.
To repeat, I did not get the opportunity to put those matters to the father.
I would have been disposed, if the matter was to proceed, to make an order for security for costs. As matters have transpired though, I propose to dismiss the appeal and adopt the second alternative set out above.
To repeat, the appeal is against orders made by Judge Kelly on 26 April 2017.
The orders appealed against provided for the father to undertake one random urine drug screen test as requested by the ICL, and at the ICL’s cost. The orders further provided that if the test was clear, then the time of the child of the relationship with the father should recommence.
It seems the matter came before her Honour as a result of non-compliance by the mother with her Honour’s previous order of 1 February 2017. That order also provided for the child’s time with the father to resume after the father presented a clear drug screen test at the request of the ICL. Apparently the father undertook the test, but the mother did not comply with the order providing for the time to resume. The mother indicated to her Honour that she did not comply because she understood that the test had to be undertaken within 24 hours of the request, and that was not the case. For his part before her Honour the father relied on the fact that there was no such requirement in the order.
In her Honour’s reasons for judgment delivered on 26 April 2017, her Honour recognised that the order did not provide for the test to be undertaken within 24 hours, but in effect she indicated that that was an oversight, and that all such orders should have that requirement. In the end result her Honour determined to make the further order referred to above, on the basis that what was at stake was the best interests of the child.
In the Notice of Appeal the father has set out two and a half pages of what he describes as grounds of appeal challenging her Honour’s orders. And in his orders sought he has sought to address far wider issues than the one involved in the appeal.
Although the father was well within his rights to complain, given there was no requirement in the order for the test to be taken within 24 hours of the request, in my assessment, the primary judge took the correct approach given that the issue at the time was what was in the best interests of the child.
It is for those reasons that in my assessment the appeal has no reasonable chance of success.
I now have applications for costs before me by both the mother and the ICL.
Plainly both the mother and the ICL have been put to expense as a result of the appeal filed by the father. I have found that that appeal had no reasonable prospect of success. On that basis I propose to make an order for costs.
In terms of financial circumstances I am aware that the father is unemployed, but as is often said by this court, impecuniosity is no bar to an order for costs being made where there are circumstances otherwise which justify such an order. Here there are plainly circumstances that justify the order, and to repeat, I propose to make the costs orders as sought.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the

reasons for judgment of the Honourable Justice Strickland delivered on 25 August 2017.

Associate:

Date: 29 August 2017