Leyland & Anor and Padfield & Anor
[2012] FamCAFC 83
•6 February 2012
FAMILY COURT OF AUSTRALIA
| LEYLAND AND ANOR & PADFIELD AND ANOR | [2012] FamCAFC 83 |
| FAMILY LAW – APPEAL – appeal from an interlocutory decision of an Acting Magistrate – whether the Acting Magistrate denied the appellants procedural fairness – whether the Acting Magistrate failed to strike out objectionable material – whether the exercise of discretion was inequitable – whether the decision was based on incorrect facts and wrong principles – whether the Acting Magistrate gave sufficient weight to the appellants’ evidence – whether the Acting Magistrate failed to consider the needs of the children – no merit in any of the grounds of appeal – appeal dismissed. FAMILY LAW – COSTS – appellants wholly unsuccessful – indemnity costs awarded. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| 1ST APPELLANT: | Ms Leyland |
| 2ND APPELLANT: | Mr Leyland |
| 1ST RESPONDENT: | Ms Padfield |
| 2ND RESPONDENT: | Mr Padfield |
| FILE NUMBER: | PTW | 5375 | of | 2010 |
| APPEAL NUMBER: | WA | 21 | of | 2011 |
| DATE DELIVERED: | 6 February 2012 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 6 February 2012 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 27 June 2011 |
REPRESENTATION
| COUNSEL FOR THE 1ST AND 2ND APPELLANTS: | In person |
| SOLICITOR FOR THE 1ST AND 2ND APPELLANTS: | Self-represented litigants |
| COUNSEL FOR THE 1ST AND 2ND RESPONDENTS: | Mr Moser |
| SOLICITOR FOR THE 1ST AND 2ND RESPONDENTS: | Nathan Laird Barrister & Solicitor |
Orders
The appeal be dismissed.
The first and second appellants pay the first and second respondents’ costs of and incidental to the appeal fixed in the sum of $5000.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leyland and Anor & Padfield and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 21 of 2011
File Number: PTW 5375 of 2010
| Ms Leyland |
1st Appellant
| Mr Leyland |
2nd Appellant
And
| Ms Padfield |
1st Respondent
| Mr Padfield |
2nd Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Before the Court today is the Notice of Appeal filed on 25 July 2011 relating to proceedings in the Magistrates Court of Western Australia. It concerns three children, B, who is aged nearly 10, C, who is 8, and J, who is nearly 5.
The appeal is against interlocutory orders made by Acting Magistrate Kaeser on 27 June 2011 – although it may be more accurate to say that the appeal is against the failure or refusal by the Acting Magistrate to make certain orders sought by the appellants.
I am authorised to hear the proceedings today as a single judge, as the Chief Justice has determined pursuant to the provisions of section 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that the matter is appropriate to be heard by a single judge.
Ms Leyland and Mr Leyland (“the appellants”) are the maternal grandparents of the three children, and Ms Padfield and Mr Padfield (“the respondents”), are the parents of the three children.
In the proceedings in the Magistrates Court, the appellants are seeking orders, to allow them to spend time with their three grandchildren, both face-to-face and telephone contact, and various other orders. The appellants have not seen the children for a very long time.
The respondents are strongly opposed, to say the least, to the appellants having any form of contact with the children. They seek that the appellants’ application be dismissed and that orders be made restraining the appellants from making further applications to the court without leave. They have also sought some other injunctions.
The orders sought by the respondents were initially sought on both a final and an interim basis, but as was said by the appellants today, the respondents some time back abandoned the applications for interim relief.
The substantive proceedings are now pending in the Family Court of Western Australia awaiting a trial before a judge. There has been some delay in the matter proceeding to trial associated with issues concerning the appointment of a Single Expert, but those matters were not known to the Acting Magistrate, and are not matters material to the appeal that I have heard this morning.
Background
Some further background information will be of assistance in placing the appeal in context. First, the appellants’ Form 1 Application initiating the proceedings was filed on 22 September 2010, and at the same time the appellants filed a Form 2 Application seeking interim orders, including orders allowing them to spend time with their grandchildren pending the final hearing.
On 25 October 2010, standard directions were made for the conduct of the proceedings. The appellants sought to challenge part of those orders by appeal, but that appeal was ultimately not pursued. On 4 November 2010, the respondents filed a Form 1A and a Form 2A seeking the dismissal of the appellants’ Form 1 and Form 2 applications filed on 22 September 2010, and various other orders, as I have indicated.
On 4 November 2010, each of the respondents filed an affidavit in support of the orders they sought. The first paragraph of each affidavit indicated specifically that the affidavit was filed in support of the interim relief sought in the Form 2A. This is relevant, as r 15.09 of the Family Law Rules 2004 (Cth) provides that an affidavit can only be relied upon for the purpose of the application for which it was filed.
On 13 December 2010, the maternal grandmother’s sister, H, also filed an affidavit. This affidavit too was expressly stated to be filed in support of the interim relief sought by the parents.
It would be an understatement to say that the three affidavits painted the appellants but, in particular, the grandmother, in less than a flattering light. Attached to the three affidavits were what could only be described as venomous correspondence from the grandmother, some of which she had copied to various third parties, including relatives and friends.
In this correspondence, the grandmother, for example, refers to the children’s father as “dickhead”, “wanker” and “coward”. She described the paternal grandparents as “unpleasant individuals who would not know an unselfish, decent act if it came up and bit them”. She referred to her own sister as a “parasite”, and last but not least, she referred to her own daughter as “you fickle bastard” and a “liar”. The grandmother has today acknowledged that she sent the correspondence in which these descriptions appear.
Also attached to one of the affidavits was a copy of the District Court writ that the appellants issued, not only against the respondents, but against three of their friends and against the paternal grandparents. The writ sought damages for loss said to have been occasioned by disputes within the family.
The affidavit of the second respondent, the children’s father, went on to describe how the writ was summarily struck out in the District Court with costs. It also noted that the appellants have appealed against that order. The affidavit went on to describe how the appellants have sued the lawyer who represented the parents in the District Court, as well as reporting that lawyer to various authorities.
On 14 February 2011, the appellants filed a Form 2 Application in which they again sought interim orders for the three children to spend time with them. They also sought the appointment of a Single Expert. Importantly, for the purposes of this appeal, they also sought an order to strike out the Form 1A and Form 2A applications filed by the parents.
The order seeking the striking out of these documents asserted that they were frivolous, vexatious, an abuse of process and would cause delay to the hearing of the appellants’ Form 2 Application.
This Form 2 Application of the appellants, filed on 14 February 2011, came before Acting Magistrate Kaeser on 2 March 2011. His Honour made orders for the appointment of a Single Expert, and he adjourned the matter to trial in the Family Court of Western Australia on 27 June 2011, with an estimated hearing time of three days. The Acting Magistrate also made an order for the matter to come back before him on 10 May 2011 for monitoring. Significantly, there is no appeal against any of these orders.
At the monitoring hearing on 10 May 2011 orders were made clarifying the arrangements in relation to the appointment of the Single Expert. Orders were also made vacating the trial date for 27 June 2011. Again, importantly for the purposes of this appeal, the matter was adjourned to 27 June 2011, that is the date originally allocated for the trial, “for directions only and to deal with the issue of the application to strike out evidence prior to trial”.
There is no indication in the order that the Acting Magistrate adjourned the issue of the striking out, or the dismissal of the originating application of the appellants, or the respondents’ responses. Thus the only matters before the court on 27 June 2011 were to be the making of any further directions that might be required and dealing with the issue of the application to strike out evidence in the affidavits.
Decision of Acting Magistrate Kaeser
When the matter came before the court on 27 June 2011, counsel for the respondents, and the appellants, who appeared in person, were given the opportunity to make submissions on the matters that were before the court. Although no separate formal reasons were given, it is apparent from the transcript that the Acting Magistrate determined it was inappropriate for him to deal with the application to strike out the affidavits.
His Honour was persuaded that this was a task that should be undertaken by the judicial officer who ultimately was to hear the matter. He pointed out that his commission as an Acting Magistrate expired on 5 August 2011, although it is the case that subsequent to the hearing that commission was extended.
His Honour also pointed out that because the matter had been set down for a three day hearing it may well be the case that the matter would be heard by a Judge, rather than a Magistrate. It is also apparent that his Honour was persuaded by the submissions of counsel for the parents that the affidavits on which the parents had sought to rely in the interim proceedings may not be relied upon at all at trial, given the rule to which I have earlier referred, indicating that an affidavit can only be relied upon in the proceedings for which it is filed.
I accept that the Rules themselves provide that the Rules may be waived. It is therefore possible that the parents could still seek to rely on those interim affidavits at trial. But if they did, the Acting Magistrate pointed out that objection could then be raised at or prior to the trial.
In responding to a submission from the appellants that they were concerned that such damaging allegations were available on a “public file” the Acting Magistrate pointed out that the file was not available to the public and could only be searched with specific permission from the court, by someone who could show a proper interest in the proceedings.
At the very end of the proceedings before the Acting Magistrate on 27 June 2011, the grandmother sought an interim order to spend time with the children. The Acting Magistrate did not deal with that application, pointing out that he had already made orders effectively expediting the matter to trial, the result of which was that, at that stage, the parties had already jumped seven months up the queue.
His Honour did not need to state the obvious, that there was no interim application to spend time with the children listed before him that day, and it was not open to the grandmother to stand up at the very end of the proceedings and to seek to agitate an issue that was not properly before the court.
In the circumstances of this case, it would be surprising, to say the least, if any judicial officer would be minded to make any interim orders for spending time with the children. The issues raised in this litigation are complex and highly disturbing, and the issues are not such as could be properly resolved on the basis of affidavit evidence.
Before dealing with each of the grounds of appeal, I should say, as previously indicated in the course of hearing submissions this morning, I do not wish to be seen as suggesting that every part of each of these three contentious affidavits that have been referred to in the submissions is of probative value.
I accept that in some instances, especially in the case of the witness, H, some of the evidence is given in a fashion that is unhelpful, to say the least, and would almost certainly be struck out if the rules of evidence were to be applied.
When the appeal was filed on 25 July 2011, the appellants sought to rely on 13 grounds of appeal. However, when the Summary of Argument was provided by the appellants on 15 November 2011 there were nine grounds of appeal, drawn somewhat differently to the original grounds.
The respondents had been directed to file a responding Summary of Argument, which was not received by the court until 18 January 2012. Counsel who drew the Summary of Argument elected to respond to the grounds of appeal, as set out in the original notice, rather than those foreshadowed in the summary of argument of the appellants, on the basis that leave had not been sought and of course therefore not granted to amend the grounds of appeal.
I have today indicated that I will proceed on the assumption that the appellants would want to agitate the grounds as set out in their summary of argument, rather than the original grounds. The first appellant has told me that that is indeed the intention of the appellants and they had understood the grounds of appeal could be amended up to the time of the filing of the summary and they had simply not properly understood that it was, in fact, necessary to file an amended notice of appeal setting out the new grounds.
As it turned out, the court was informed that the appellants had not, in fact, received the Summary of Argument provided by the respondents, and I have no particular reason to doubt that this is the case. Out of an abundance of caution, however, I gave the appellants an opportunity to look at the respondents’ Summary of Argument, primarily because it foreshadowed an application for costs, which clearly would be made regardless of the grounds on which the appellants relied in the event that the appeal was to be dismissed.
The appellants indicated, after reading the respondents’ Summary of Argument, that there were many factual matters with which they would wish to take issue in the summary and that in other respects they simply did not understand the respondents’ Summary of Argument and therefore felt that they were not in a position to proceed with the hearing today.
Effectively, it was an application for an adjournment. I was not prepared to grant this application for two reasons. First, the resources of the court are already seriously stretched, and it has taken a long time for this hearing date to be made available to the parties, and it would be a long time before another date became available. However, more importantly, in an appeal the respondents’ submissions only become of relevance in the event that the appellants raise some form of arguable case in relation to at least one ground of appeal.
Having had the opportunity to study the Summary of Argument provided by the appellants, and to consider the grounds upon which they were relying, I was not in any way satisfied that it was likely the appellants would, in fact, be able to demonstrate appealable error, but nevertheless I thought it appropriate to allow the appellants the opportunity to present oral submissions, because it sometimes occurs in the hearing of an appeal that what at first appears to be an impeccable judgment does in fact contain error. On this occasion, however, that was not to be.
Grounds of Appeal
I will deal very briefly with each of the grounds of appeal that were relied upon, noting that the legislation itself permits the court to give reasons in what are called short form, where no appealable error has been demonstrated.
Ground 1
The first ground of appeal relied upon a denial of procedural fairness. This ground, along with many others, proceeded on the basis of three different assumptions, all of which are not assumptions that could properly have been made. The first is the assertion made by the appellants that the allegations made by the respondents are false, and the allegations that they have made are not only probative but true.
As I have explained to the appellants in hearing the submissions today, this argument misapprehends the nature of the judicial process where the truth or otherwise of allegations is established at trial by a process of cross‑examination, not by the averment of one of the parties to the litigation that their affidavit contains the truth and that the affidavits of the other parties are untruthful.
The second assumption that is made falsely by the appellants is that having the affidavits struck out would result in them being removed from the court file, which would give the appellants some greater degree of satisfaction than simply having them not accepted as evidence in the proceedings. Again, as I think the Acting Magistrate pointed out, that too is an incorrect assumption, save in circumstances where an affidavit is clearly scandalous, and I gave an example of that in hearing the submissions this morning. The affidavit would inevitably remain on the court file, even if portions of it, or the whole of it was struck out.
The third assumption is that the rules of evidence will apply. Pursuant to s 69ZT of the Act the rules of evidence do not apply unless certain exceptions are shown to have been established. Those exceptions are yet to have been shown to be established, and it will be a question for the trial Judge, not for the Acting Magistrate, and not for me, to determine. I might say that, as presently advised, it would appear highly unlikely that the court would be persuaded that the rules of evidence should apply in this case, but that is clearly a matter on which the trial Judge will make the ultimate determination and on the basis of further submissions.
There is accordingly no merit in Ground 1.
Ground 2
Ground 2 asserts a failure to strike out objectionable material. Again, there is a misapprehension, I think, in that the Acting Magistrate did not fail to strike out objectionable material, he instead determined that the decision whether or not to strike out objectionable material should be made by somebody other than him.
In doing so, the Acting Magistrate recognised that the affidavits might in fact never be relied upon for reasons that were explained to the appellants at the time. Both of the bases upon which the Acting Magistrate determined that the matter should be adjourned for hearing by the judicial officer who ultimately heard the matter were plain commonsense. It would have been very surprising, in my view, if the Acting Magistrate had taken it upon himself to determine what evidence should properly go before another judicial officer. Again, the assumption underlying this ground was that the allegations made by the respondents in their material were false; an assumption which I have said cannot be made.
Ground 3
The third ground of appeal asserts that it was inequitable for the Acting Magistrate to exercise his discretion, or not to exercise his discretion. As best I could apprehend the submissions that are made in support of this ground, it was because the Acting Magistrate was “prepared to consider dismissing the appellants’ Form 1 and Form 2 Applications at a summary hearing based on affidavit evidence only”.
I think this ground falls away, because the fact is that whatever the Acting Magistrate might have been prepared to do, he ultimately did not have to do because the applications of the respondents to have the applications of the appellants summarily dismissed was not pursued.
Ground 4
Ground 4 asserts that the decision was based on incorrect facts, and some effort was made in the submissions in support of this ground to show that a fact or facts relied upon by one of the respondents in an affidavit was incorrect. Even if it were to be established that an allegation made by a deponent was clearly incorrect, it would not provide a basis for striking out that affidavit evidence. It is a matter to be put to the deponent in cross-examination at trial.
It would normally go without saying that an alleged inaccuracy or inconsistency in the affidavit of one witness does not provide a basis for striking out affidavits by other witnesses, whose evidence has not been shown to be demonstrably incorrect. Again, this ground of appeal misapprehends the nature of the judicial process.
Ground 5
The fifth ground of appeal asserts that the Acting Magistrate based his decision on a wrong principle, and the wrong principle was said to be that the Acting Magistrate assumed that conflicting affidavits could remain on the court file. Again, this is a misapprehension. It is not, unfortunately, uncommon that the court has before it two affidavits by the same witness, one of which could not be correct. However, that is a matter that sounds in the findings the court ultimately makes in relation to the credibility of the witness and does not provide a basis for the striking out of the material.
In fact, the appellants would be wise to leave the material on the court file, because if the lack of credibility can be demonstrated on the word of the respondents alone, then that would be of assistance to their case, rather than damaging to it.
The rest of the submissions made in support of Ground 5 relate to the duties of legal practitioners. The Acting Magistrate was not there to determine whether or not a legal practitioner had acted contrary to his ethical and professional obligations; he was there to determine the applications that were before him. There are other bodies that deal with the professional conduct of legal practitioners, and the conduct of the practitioner in question, I understand, from reading the material, has already been drawn to the attention of that authority, and it is a matter for them to determine whether there is any substance at all in the complaints that have been made against the practitioner.
Ground 6
The sixth ground of appeal relates to the refusal of the Acting Magistrate to apply the rules of evidence. As I have already said, the person who should make that decision is the judicial officer who is going to hear the matter, who at this point seems likely to be a Judge of the court. It would therefore not have been appropriate, as his Honour himself clearly understood, for the Acting Magistrate to make that decision.
Ground 7
The seventh ground of appeal asserts that the Acting Magistrate failed to give appropriate weight to the appellants’ evidence. Again, this ground misapprehends the nature of the judicial process. The weight that can be given to affidavit evidence is something that can be determined only after the evidence of all of the parties and their witnesses has been tested at trial.
Ground 8
The eighth ground of appeal submits that the Acting Magistrate failed to adequately consider the needs of the children. I am not persuaded there was any issue before the Acting Magistrate on that day where the needs of the children had to be considered. I have already indicated that the only matters before the Acting Magistrate were directions about the conduct of the matter, having noted that he has already expedited the hearing of the substantive matter. The other issue was what might be called a technical issue relating to the quality of the evidence and whether it should be struck out.
The only matter in relation to which the interests of the children would have been relevant would have been if there had been an application properly before the court on that day for the appellants to see the children. However, I have already explained that there was no such application properly before the court, and therefore the interests of the children did not directly arise.
Ground 9
The final ground of appeal is described as “power of the Family Court to strike out proceedings that are an abuse of process”. There is no doubt that the court can strike out proceedings that are an abuse of process, but I have already indicated that the matter that was before the Acting Magistrate was not the striking out of proceedings as such, but the striking out of parts of the evidence.
Listening to the appellants’ submissions today, it seems clear they are of the view that the affidavits that were the subject of the striking out application were designed for only one purpose, and that was to upset the appellants. I have explained in hearing that submission that there is no basis upon which the Acting Magistrate could have arrived at that view simply by reading the affidavits.
The affidavits were designed, so it seems, to assist in having the application of the appellants struck out summarily. If it were the case that the material contained in the affidavits was so lacking in substance that no judicial officer would ever have contemplated striking out the applications of the appellants, then the appellants might have been partway down the road of persuading a court that there must have been some ulterior motive. But in fact that is not the case. The material provided collectively by the respondents, and to a much lesser extent by H, did provide some basis for a court to pause to consider whether or not the appellants have a case that will ultimately have any prospect of success at trial.
Now, for their own reasons, the respondents elected not to pursue their application to have the proceedings struck out summarily, but it cannot be assumed that in arriving at that decision they were motivated by anything other than a proper motive. It could have been that counsel, having read all of the material before the court, determined that there was insufficient material to satisfy what is a very stringent test before an application will be struck out summarily. It could also have been that the respondents determined that the costs associated with pursuing that application were not worth the effort, given the prospects of success.
So, there are multiple reasons why the respondents may not have proceeded, and it cannot be assumed that in, first of all, relying upon the affidavits and then abandoning reliance upon them that they were in any way motivated by anything other than a proper motive. For those reasons, there is no merit in the final ground of appeal.
Costs
There being demonstrably no merit in any of the grounds, the appeal will be dismissed, which brings me to the issue of costs. The submissions that were relied upon by counsel for the respondents in support of the application for costs set out some well known – and some perhaps less well known – authorities in relation to the awarding of indemnity costs.
There is nothing, however, particularly surprising in any of the material that counsel has put forward. Essentially, the authorities are clear that in the event an appellant or an applicant pursues an appeal or an application that is devoid of any merit or where, if legal advice had been taken, the application or the appeal would have been immediately withdrawn, the court’s discretion to order costs on an indemnity basis is enlivened.
This is such an appeal. It was utterly without merit. The appellants failed to take the hint that was given to them at the directions hearing, and they have pursued the appeal to the bitter end. It is a clear case for the awarding of indemnity costs.
The respondents sensibly seek to quantify those costs, rather than going to the further substantial expense of having them assessed. The appellants adopted a sensible and reasonable position in relation to that proposition, recognising that if the matter was to go an assessment of costs that it might incur further costs for them. The amount sought by the respondents of $5000 is relatively modest compared to most of the appeals that come before the Court. In fact it would seem likely that it does not amount to indemnity costs, and instead, as was suggested in the submissions by counsel for the respondents, probably amounts to no more than costs at scale. In order to save the parties the expense and inconvenience of an assessment, I intend to fix the costs at $5000.
I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray.
Associate:
Date: 6 February 2012
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