Halladay and Seydl
[2019] FamCAFC 258
•19 December 2019
FAMILY COURT OF AUSTRALIA
| HALLADAY & SEYDL | [2019] FamCAFC 258 |
| FAMILY LAW – APPEAL – Where the father failed to file documents in accordance with orders made in June 2019 – Where the father’s appeal is from interim parenting orders – Where those orders have been superseded by final parenting orders made after a trial – Where the father’s appeal is without utility – Appeal dismissed – Where the mother’s costs schedule is insufficiently particularised to enable the costs claim to be considered – No order as to costs. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Halladay |
| RESPONDENT: | Ms Seydl |
| INDEPENDENT CHILDREN’S LAWYER: | Swanwick Murray & Roche Lawyers |
| FILE NUMBER: | BRC | 10660 | of | 2016 |
| APPEAL NUMBER: | NOA | 33 | of | 2019 |
| DATE DELIVERED: | 19 December 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 19 December 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 March 2019 |
| LOWER COURT MNC: | [2019] FCCA 925 |
REPRESENTATION
| APPELLANT: | Self-represented via telephone |
| COUNSEL FOR THE RESPONDENT: | Ms Downes |
| SOLICITOR FOR THE RESPONDENT: | Dodd Bedford & Associates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Perren via telephone |
Orders
The appeal be dismissed.
There be no order as to costs.
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 Halladay & Seydl 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 33 of 2019
File Number: BRC 10660 of 2016
| Mr Halladay |
Appellant
And
| Ms Seydl |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
The interim parenting orders made in the Federal Circuit Court of Australia (“the Federal Circuit Court”) on 28 March 2019, the subject of these appeal proceedings, no longer have any operative effect. Those interim orders were discharged by the final parenting orders made on 12 July 2019 following the trial of the proceedings.
There has, to date, been no appeal from the final orders made on 12 July 2019.
The fact that the interim orders no longer have any operative effect has the consequence that there is no utility in this appeal from those orders. That appeal was instituted on 16 April 2019 by Mr Halladay the father of the child the subject of the parenting proceedings (“the father”). That appeal was opposed by the child’s mother Ms Seydl (“the mother”) and by the lawyer appointed to independently represent the child’s interests in the proceedings (“the ICL”).
On 8 November 2019, the Appeals Registrar directed correspondence to the parties, primarily as a consequence of the father’s non-compliance with the orders made by the Appeals Registrar on 24 June 2019, directed to progress the appeal to a hearing.
On 24 June 2019, an order was made for the father to file and serve an Amended Notice of Appeal by 4.00 pm on Friday 26 July 2019 detailing, in succinct numbered grounds, the errors of law or principle that he asserted.
The document submitted by the father on that day fell well short of compliance with the order made and was not accepted for filing.
The orders of 24 June 2019 also included an order that the father file and serve his Summary of Argument and List of Authorities for this appeal by 16 August 2019.
The consequence of the father’s non-filing of those documents meant that the mother and the ICL did not file any documents as there was nothing for them to respond to.
In the result however, as I have said, those matters have been superseded by the feature that the parenting proceedings proceeded to a final trial with the making of final orders on 12 July 2019 in the Federal Circuit Court.
I note that the correspondence from the Appeals Registrar of the 8 November 2019 pointed out to the father that in view of the final orders, it appeared that this appeal no longer had any utility, and that the father might wish to give consideration to whether he proceeds with the appeal, and the Appeals Registrar pointed out the means by which appeals can be discontinued.
In the result, the father who appears by telephone today, seemingly thought that because this appeal was on foot he was somehow precluded from filing an appeal from the final parenting orders.
As has been pointed out to the father, there has been no appeal yet filed from the final parenting orders and an appeal from those orders is now well out of time. The father would have to bring an application to extend the relevant appeal period to be able to file an appeal from the final orders, and I have suggested to him today that if that is the course he wishes to investigate, he ought obtain legal advice for that purpose. Whether or not the father seeks to obtain legal advice, and whether or not he brings any such application is entirely a matter for him, but it does not affect the outcome with respect to this current matter.
For these reasons as to its lack of any utility, the current appeal ought be dismissed and I will make an order to that effect.
Consequent upon the dismissal of the appeal for its lack of utility, there is an application by the mother, who is legally aided, for an order for her costs in respect of the appeal proceedings. The father opposes that order pointing out that no documents have been filed by the mother in that she is yet to file a Summary of Argument. The mother filed a Schedule of Costs on 13 December 2019 and undoubtedly some of those costs would have been incurred, for example, attendance at the Registry for the purpose of the orders made in June 2019, for example, and of course preparation of that brief schedule as well as the attendance of counsel today. However, it seems to me that for costs applications to be properly pursued and for parties, particularly self-represented parties, to have proper notice of the argument they are called upon to meet, Schedules of Costs must be particularised in sufficient detail so that a person in the father’s position can properly examine his position with respect to the claim for costs, and the Court can consider the application with sufficient particulars.
Unfortunately, that has not been done in this case and on that basis I do not propose to make any order with respect to costs.
The orders of the Court will be:
1. The appeal be dismissed.
2. There be no order as to costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 19 December 2019, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 19 December 2019
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