Kabat & Garacia
[2019] FamCAFC 191
•31 October 2019
FAMILY COURT OF AUSTRALIA
| KABAT & GARACIA | [2019] FamCAFC 191 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Where the father filed a Notice of Appeal from procedural orders listing the matter for a trial which has subsequently taken place – Where the father filed an Application in an Appeal seeking expedition of an appeal from those procedural orders – Where the father subsequently filed an Application in an Appeal seeking an adjournment of the hearing of his expedition application – Where the orders sought to be appealed are purely procedural and are not “decrees” within s 4 of the Family Law Act 1975 (Cth) – Where the Notice of Appeal and the Applications in an appeal are an abuse of process – Where the Notice of Appeal and the Applications in an Appeal are struck out. |
| Family Law Act 1975 (Cth) ss 4, 68L, 94AAA(1), 117 |
| Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28 Gadde & Gadde [2019] FamCAFC 116 Lenova & Lenova (Costs) [2011] FamCAFC 141 Meadows & Meadows (2019) FLC 93-883; [2019] FamCAFC 1 Robeck & Robeck [2018] FamCAFC 201 Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207 |
| APPLICANT: | Mr Kabat |
| RESPONDENT: | Ms Garacia | ||||
| INDEPENDENT CHILDREN’S LAWYER: | Burchill & Horsey Lawyers | ||||
| FILE NUMBER: | BRC | 7499 | of | 2017 | |
| APPEAL NUMBER: | NOA | 28 | of | 2019 |
| DATE DELIVERED: | 31 October 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 26 June 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
REPRESENTATION
| APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Ms Black |
| SOLICITOR FOR THE RESPONDENT: | KLM Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Minnery |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Burchill & Horsey Lawyers |
Orders
The Notice of Appeal filed on 20 March 2019 be struck out.
The Applications in an Appeal filed on 16 April 2019 and 14 June 2019 respectively be struck out.
The Applicant pay the Respondent’s costs of the applications fixed in the sum of $3,971.90 by paying that sum to Legal Aid Queensland.
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 Kabat & Garacia 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 28 of 2019
File Number: BRC 7499 of 2017
| Mr Kabat |
Applicant
And
| Ms Garacia |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 20 February 2019, a trial judge in the Family Court of Australia made procedural orders for the trial of parenting proceedings[1] between Mr Kabat (“the father”), Ms Garacia (“the mother”) and the lawyer appointed[2] to represent the interests of the children the subject of the proceedings.
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
[2] Pursuant to s 68L of the Act.
Those orders were procedural in nature. They did not determine the proceedings, nor any issue in the proceedings, nor did they conclude any substantive legal rights of the parties. The orders are not decrees within the definition of “decree” in s 4(1) of the Family Law Act 1975 (Cth) (“the Act”) and are thus not amenable to the appellate jurisdiction conferred by s 94AAA(1) of the Act.[3]
[3] Commonwealth v Mullane (1961) 106 CLR 166 at 169; Tallant & Kelsey (2016) FLC 93-742; Robeck & Robeck [2018] FamCAFC 201; Meadows & Meadows (2019) FLC 93-883 at [66] and Gadde & Gadde [2019] FamCAFC 116.
It follows that the father’s purported appeal from those orders by a Notice of Appeal filed on 20 March 2019 is incompetent and, indeed, is an abuse of process. The proceeding is not validly constituted as an appeal and ought be struck out.
It also necessarily follows that the applications the father has filed in this proceeding on 16 April 2019 and 14 June 2019 respectively are incompetent and likewise are an abuse of process. By his Application in an Appeal filed on 16 April 2019, the father sought that his “appeal” be heard on an ex parte basis and that the hearing of the appeal be expedited. Contrary to the expedition application, by his Application in an Appeal filed on 14 June 2019, the father sought, inter alia, that the hearing of his expedition application be postponed for eight (8) weeks. In the event, on the hearing of these applications the father did not wish to pursue the 14 June 2019 application.
Each of the father’s Notice of Appeal filed on 20 March 2019 and Applications in an Appeal filed on 16 April 2019 and 14 June 2019 ought be struck out as each is an abuse of process and I will so order.
Relevant to the question of costs, apart from the incompetence of the father’s proceedings, even if it were assumed jurisdiction existed, at all times the father’s purported challenges to the procedural orders made on 20 February 2019, given the substance of those orders, lacked any utility. The procedural orders included an order setting the parenting proceedings down for a trial for five days commencing on 3 June 2019. That trial has taken place such that there was no utility in any of the subject proceedings when the applications were heard on 26 June 2019.
As to costs, by reason of the foregoing there plainly are circumstances that justify a costs order against the father within the meaning of s 117(2) of the Act.
At the hearing of the applications, the father was unable or unwilling to make submissions as to his financial capacity to pay an order for costs beyond submitting that he is self-employed, he pays a “small amount” of child support and has no assets.
The mother was in receipt of legal aid but, as counsel for the mother informed the Court, that grant was conditional upon her making an application for costs.
Overall, I am satisfied that the conduct of the father in pursuing these applications and the completely unnecessary expense incurred as a result, coupled with the father being wholly unsuccessful, warrant an order that the father pay the mother’s costs fixed in the sum of $3,971.90 as sought, payable to Legal Aid Queensland.
In my judgment, any assertion by the father as to his impecuniosity does not overwhelm the factors in favour of an order for costs being made.[4]
[4]Lenova & Lenova (Costs) [2011] FamCAFC 141.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 31 October 2019.
Associate:
Date: 31 October 2019
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