LP & FP

[2006] FamCA 363

JFLPFP

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE

Appeal No. SA 30 of 2005
SA 53 of 2005
SA 54 of 2005
File No. DGF 764 of 2004

IN THE MATTER OF:

Appellant/Husband

- and -

Respondent/Wife

EX TEMPORE REASONS FOR JUDGMENT

BEFORE:  Holden, Coleman & Boland JJ
DATE OF HEARING:         2^nd day of February 2006
DATE OF JUDGMENT:     2^nd day of February 2006

APPEARANCES: No appearance by or on behalf of the appellant husband.

Mr Eidelson of Counsel, (instructed by Berry & Associates, 162 Ferguson Street, Williamstown VIC 3016) appeared on behalf of the respondent wife.

No appearance by or on behalf of the children’s representative (instructed by Robert Halliday and Associates, Suite 1B, 147-151 Foster Street, Dandenong VIC 3175).

Name of Appeal Paulis & Polis

Appeal Number SA 30 of 2005

SA 53 of 2005
SA 54 of 2005

Date of Appeal hearing  2^nd day of February 2006
Date of Judgment  2^nd day of February 2006
Coram  Holden, Coleman & Boland JJ

Catchwords: Consideration of the merit of the appeals and application to adduce further evidence in circumstances where there was no appearance by the appellant and an adjournment sought.
Grounds of appeal not impacting on the trial Judges’ decisions in a manner enlivening appellate intervention – adjournment application refused – issue of affording litigants unfettered right of access to the court system balanced against expense to the public purse and a respondent with legal representation.
Held that none of the material raised in support of the application to adduce further evidence should be allowed for that purpose.

Appeals dismissed
Appellant ordered to pay the respondents costs fixed in the sum of $3500

COLEMAN J: Before the Court there are three appeals by the husband in the proceedings (to whom I shall refer as “the appellant”). The first question requiring determination is whether, as the appellant seeks, the appeals should be adjourned today to be heard on some future occasion. I would not grant such application.
The factual background to the appellant's application to adjourn the proceedings is contained in an affidavit sworn by the Appeals Registrar this day and I incorporate the content of that affidavit in these reasons for judgment. The narrative therein appearing can be supplemented by the matter referred to a couple of moments ago, that being that subsequent to the conversations referred to by the Appeals Registrar in paragraph 8 of her affidavit, sworn earlier today, the appellant caused to be sent to the Court a further medical certificate. That certificate bears today's date.
The position with medical certificates is thus that there was very early this morning, it seems prior to 10 am, sent to the Court a medical certificate dated today from an entity Southern Health, which suggested that the appellant was suffering from a "medical condition" and would be "unfit for work from 2/2/2006 to 2/2/2006 inclusive". It is apparent from the subsequent report, sent some time after the Court dealt with the matter, shortly after 10 am this morning, that the appellant caused a second copy of that same report to be sent to the Court by facsimile transmission and it does appear that such copy was sent from the Dandenong police station.
The most recent report dated today, also of a Dr GS, suggests that the appellant is “suffering from a medical condition and is unfit to attend court for 2ds”.
As is apparent from the learned Appeal Registrar's affidavit, yesterday, 1 February 2006, the appellant was seeking to have the proceedings adjourned on the basis that “It is very important that I get legal representation”.
Subsequent to that request, in the circumstances detailed in the Appeal Registrar's affidavit, as evidenced by the annexures to it, the appellant's basis for seeking an adjournment changed to reliance upon his unspecified "medical condition".
Without wishing to appear cynical, it is difficult to understand, and there is no evidence whatsoever advanced by the appellant, how his condition changed in the space, it seems, of a couple of hours from being one of unfitness for work for one day to unfitness to attend Court for two days.
It is evident from the documentation which has been provided during the course of today, conversations with the Appeals Registrar, and from the terms of the documentation advanced by the appellant, that he has not been admitted to any medical facility. It is readily apparent, and can comfortably be inferred, that whatever the nature of his "medical condition", it has not prevented the appellant from being extremely active during the course of the morning. He appears, from the Appeal Registrar's affidavit, not to have been confined to his accommodation by virtue of his medical condition. There is no suggestion in any of the medical reports that he has been prescribed any medication or had any treatment administered. He has not been admitted to any medical facility.
Whatever his unspecified medical condition, it has not precluded him, from, during the course of a period of some hours, attending at the a Medical Centre, attending, it seems on at least two occasions, the Dandenong police station, as well as attending the facility Southern Health, it appears from the medical certificate at the Dandenong premises of that services.
Notwithstanding such scepticism as the Court, in the circumstances outlined, is entitled to entertain, and mindful of the reality that if the appellant is aggrieved by a decision of this Court that his only avenue of review is the High Court, before reaching a concluded view with respect to his application to adjourn, it is to my mind appropriate to have regard to the appeals he seeks to agitate and the substance or possible substance of such appeals.
I thus turn to consider the three appeals which the appellant has instituted, and fourthly, his application to adduce further evidence, which I would treat, although not necessarily or clearly so, as being an attempt to adduce further evidence in all or any of the three appeals, if so doing was permissible, having regard to the authorities relevant in that regard.
THE JOSKE J APPEAL
The first appeal in time, and logically so, can for convenience be referred to as “the Joske J appeal” (SA 30 of 2005). It relates to orders made by Joske J on 15 April 2005. With great respect to the appellant, the material which he advances in support of that appeal does not, in my view, reveal an arguable ground of appeal. The material advanced in support of the appeal, to the extent that it impacts upon anything that Joske J decided on 15 April 2005, could not impact on that decision in a way that would enliven appellate intervention.
The appellant is unrepresented and there is no suggestion that he has any legal training or expertise. That being so, and he not being here in circumstances where he alleges medical incapacity, I consider it appropriate and fair to have regard to the judgment of Joske J in order to discern, before taking the serious step of dismissing the appellant's appeal against the orders, whether on the face of the record there is anything apparent which may, however inappropriately raised by the appellant, constitute a ground warranting appellate intervention.
There is an appeal book in respect of the appeal against Joske J's orders. It comprises some 95 pages. Prior to the commencement of the hearing of the appeal this morning I have read the totality of that appeal book. At page 10 and following his Honour gave necessarily brief reasons for his decision to dismiss the review application brought by the appellant against a decision of a Judicial Registrar of 8 March 2005. His Honour recorded that the proceedings related to two applications for contravention of orders which had been brought before the learned Judicial Registrar and determined by him on 8 March 2005. The learned Judicial Registrar determined on that date that the applications brought by the appellant as applicant could not succeed and dismissed those applications.
It is clear that, consistent with authority, Joske J dealt with the review application before him as a hearing de novo. In terms of the procedure his Honour adopted, nothing emerges from the record or from his Honour's reasons for judgment which raise any cause for disquiet, much less appellate intervention.
The proceedings which gave rise to the applications for contravention of orders relate to a child of the appellant and the present respondent, who was born in February 2000. The child has, broadly speaking, at all material times, that is, the times material to these proceedings and these appeals, primarily resided with the present respondent and there have from time to time been orders for contact in force and effect in favour of the appellant.
His Honour's reasoning process on 15 April 2005 was simple, which is not in any way said critically, and the logic which led him to his conclusion is transparently obvious. I can do no better than to quote from his Honour's reasons for judgment. So doing makes apparent the complete absence of merit in any challenge to that decision.
The application which the appellant brought before the learned Judicial Registrar asserted breaches on 13 December 2004 and 17 December 2004 of orders which had been made on 7 July 2004. His Honour concluded that those orders by their terms did not operate beyond 6 October 2004, on which date:
… no further order was made for either residence or contact, and in particular no order was made extending the residence of both parties to the child for a further period of time. (paragraph 3)
His Honour thus concluded that:
… as the orders of 6 October 2004 did not make any provision for further residence (or contact) by either party to the child, no order was in existence at the times that the husband has alleged that the wife was in breach of such orders. It is axiomatic that there can be no breach of an order which does not exist. (paragraph 3)
His Honour thus dismissed the appellant's review application. The record contains the orders of 7 October 2004, both in the handwritten form in which they became Minutes of Order, and in their engrossed form. There is nothing apparent on the face of the record and nothing raised by the appellant in his material which provides any basis for disputing the accuracy of the trial Judge's conclusion that there were no orders of the kind asserted to be contravened by the present respondent in force or effect after 6 October 2004.
With great respect to the appellant, there is absolutely nothing in the record, in any material advanced by him or otherwise appearing, that suggests that this appeal could possibly succeed, no matter whether the appellant were present to present the appeal himself or, with respect to members of the legal professional, was represented for that purpose.
There must of course be a balance between, on the one hand, affording litigants of this country an unfettered right of access to the courts of this land to agitate their grievances, and on the other, the reality that the public purse is put to great expense on having three judges from three separate parts of the Commonwealth present, with staff and Court facilities for that purpose, a respondent who is represented and in attendance who has at all times been present for the purpose of resisting the appellant's appeal. In my view, to allow this appeal to be adjourned today would be for this Court to aid and abet an abuse of the Court's processes. I would not allow the appeal to be adjourned and I would dismiss the appeal. Those observations are subject to a consideration at the end of these reasons of the further evidence application.
THE MUSHIN J APPEAL
The second appeal which requires consideration may for convenience be referred to as “the Mushin J appeal” (SA 53 of 2005). It relates to orders made by Mushin J on 25 July 2005. As is apparent from his Honour's cogent and detailed reasons, that appeal arises from his Honour's conclusions with respect to a contravention application brought by the appellant in which he alleged that on 25 June 2005 the present respondent, without reasonable excuse, failed to comply with an order for contact then in force and effect.
As with the appeal against Joske J's orders, nothing raised by the appellant, in my view, constitutes orders capable of constituting a ground of appeal in the sense in which that term is known to the law. With respect to the appellant, his Summary for Appeal document appears to misconceive the nature of the application he brought before the trial Judge.
For more abundant caution, given that the appellant is not represented and is not here and that the Court is considering whether to grant his application for an adjournment or to refuse that application, the Court has read the totality of the published appeal book comprising some 69 pages in this matter and has, against the background of having read the record of the proceedings, had regard to the reasons for judgment of the trial Judge.
It is appropriate to refer to those reasons for judgment. In my view, so doing provides abundant foundation for concluding, as I do, that the appeal against the orders of the trial Judge of 25 July 2005 is devoid of merit. In his reasons for judgment, his Honour referred to the relevant order. As noted earlier, the orders in question relate to a child of the parties, who was born in February 2000 and who is thus approaching six years of age. His Honour recited that the order provided for one week's contact in each school term holiday, failing agreement from 10 am on the first Saturday following school break-up until 5 pm on the second Saturday following school break-up.
His Honour recorded, and it is clear from the material of the appellant in this appeal, accurately, a number of matters in paragraph 2 of the judgment, the most significant of which was that the date complained of by the appellant was in fact a date when contact was liable to commence under the orders then in force and effect, that contact did not then occur. Whilst perhaps not strictly relevant at that point in his Honour's reasons for judgment, his Honour found, and the material of the appellant filed in this appeal serves to confirm correctly, that the contact, together with a couple of extra days which arose by virtue of it seems the weekend contact provisions in the orders, occurred during the course of the same school holiday period, albeit somewhat later.
His Honour referred at paragraph 3 to the evidence of the present respondent in relation to the admitted failure to provide contact in accordance with the strict terms of the order then in force and effect. I incorporate what his Honour recounted in that regard in paragraph 3 in these reasons. His Honour accepted the evidence of the respondent and nothing raised by the appellant or otherwise apparent on the face of the record provides any mandate for concluding that his Honour was entitled in the circumstances to accept the evidence of the present respondent as to her misunderstanding of the effect of the orders.
His Honour referred to the evidence of the appellant at paragraph 4 in relation to the issue. His Honour referred elsewhere in the course of his judgment to that matter. The appellant complained about the failure to comply with the orders, but it is significant that although he asserted that the failure to comply with the orders at the time provided created difficulties for him or "disturbed the father's routine and schedule diary", it is not apparent in any material raised at trial by the appellant or in his material in this appeal that anything other than inconvenience or perhaps annoyance or something of that kind was occasioned by the failure to comply with the order in its terms.
His Honour addressed the relevant legislative provisions in paragraph 7 and nothing to which this Court's attention has been attracted in reading the record or his Honour's reasons for judgment, suggest that any error was there entailed. His Honour then found, as noted earlier and which has not been shown to have been other than open to him, that the mother had a genuine but mistaken belief as to the effect of the orders - a genuine misunderstanding. His Honour, however, did not let matters rest there and proceeded at paragraph 9 and following of his judgment to consider whether were he to be:
… in error in my finding with respect to intention, in my view it is appropriate to find that the wife had a reasonable excuse for contravening the order in that she contravened it because, or substantially because she did not at the time of the contravention understand the obligation imposed by the order on the person who was bound by it
Having accepted the genuineness of the mother's belief with respect to the order, it is unsurprising that his Honour found, applying the civil standard, as was clearly appropriate, that the mother had, to the extent that it might necessary for her to do so, made out the statutory defence of reasonable excuse.
His Honour was, in my view, amply justified in reaching that conclusion, having regard to the circumstantial evidence, notably that the present respondent provided not only the contact to which the appellant had been entitled within a week of the due date of his receiving that entitlement, but in addition, the weekend or an extra couple of days which, in ways that need not be explored in detail here, meant that in substance it is not possible to conclude that the appellant received other than the totality of the contact to which he was entitled.
There is thus not only an absence of any basis for successfully challenging his Honour's acceptance of the evidence of the respondent as to her state of mind in terms of the order, but also circumstantial evidence corroborating her bona fides in that regard, being the facilitation of contact within such a short time of her erroneous understanding of the effect of the orders being removed.
His Honour made an order for costs and he gave detailed reasons for doing so. The decision of the High Court in Penfold v Penfold (1979-1980) 144 CLR 311 is relevant in that regard. Nothing to which this Court has been referred by the appellant in his material or anything appearing from an exploration of the record of the proceedings provides any basis for concluding that it was not reasonably open to the trial Judge to form the requisite opinion under s 117 of the Family Law Act 1975 (Cth) (“the Act”), namely that circumstances justified an order for costs. The quantum of the costs does not appear to be other than reasonable. Nothing raised by the appellant in that regard suggests it was.
Speaking for myself and only for myself, for his Honour in the circumstances of this case to have failed to visit the costs of the proceedings upon the appellant would, with respect, have bordered upon, if not being, an appellable error by his Honour. This was an application brought with respect to a period of contact which had been passed, which had been exercised in circumstances where there is no credible suggestion that any detriment or other disadvantage arose by virtue of the failure of the respondent to comply strictly with the order in according with its terms. The appellant was entitled to bring the application as a citizen, that was his right. But, in my view, in the circumstances which prevailed, having done so, he was at all times faced with the reality that the costs of such a futile exercise should be visited upon him.
It will be apparent from these observations that I consider this appeal devoid of merit. I further consider that, balancing the matters indicated earlier, to allow this appeal to remain to trouble the Full Court on another occasion, and indeed to trouble the respondent and those representing her on another occasion, would be no more and no less than for this Court to aid and abet an abuse of its processes. I would both refuse the adjournment and dismiss the appeal.
THE MORGAN J APPEAL

The third appeal can for convenience be referred to as “the Morgan J appeal” (SA 54 of 2005). This was an order made by her Honour on 25 July 2005 under s 118 of the Act declaring the appellant a vexatious litigant and restraining him from filing any further application in the proceedings, save for an appeal against the orders, without first obtaining permission from a judge of the Family Court of Australia in Melbourne to do so. Not surprisingly, her Honour then ordered that any application for permission first be listed before a judge and otherwise not served upon the respondent, that is, unless ordered by a judge.
The material advanced by the appellant in support of this appeal does not, in my view, raise any recognised ground of appeal, nor, however expressed, does anything which the appellant raised in his material cause this Court to be disquieted as to the appropriateness of the order made by the trial Judge and the conclusions reached by her.
Perhaps most importantly, although a great number of complaints are agitated in the seven typed pages of submissions or Summary of Argument made by the appellant, he does not appear to challenge any of the findings of fact upon which the learned trial Judge based her conclusion. It is, as with the earlier appeals, appropriate to have regard to the reasons which led the trial Judge to order as she did. It is not to be lost in this exercise that the effect of the trial Judge's orders was no more and no less than to save the present respondent from the cost and inconvenience of meeting applications which were incapable of succeeding or which were devoid of merit.
With respect, the effect of her Honour's orders was merely to impose upon the judiciary the obligation, as it were, of vetting applications brought by the appellant before obliging the respondent to consider whether to seek to resist any such applications. It is inconceivable that any judge entertaining an application by the appellant pursuant to the trial Judge's orders would not, in the event of some merit or the possibility of merit appearing, afford the appellant natural justice and procedural fairness and grant leave to serve the application on the respondent and have it heard in the usual way.
I make these observations simply because, in considering whether on balance to deny the appellant the opportunity to present his appeal to this Court on another day, these things have to be kept in mind, that is, the seriousness or otherwise of refusing him an adjournment in the light of what it is that he is seeking to appeal against.
The second aspect of that is the merit or apparent merit of the appeal he seeks to agitate before this Court. The appeal book in this matter numbers some 189 pages and prior to the appeal being called on this morning I have had the opportunity to read the appeal book in its totality. Nothing emerging from the record causes disquiet, either as to the availability of findings of fact made by the learned trial Judge or the reasoning process which she brought to bear in arriving at those facts as found.
It is instructive to refer to her Honour's reasons for judgment. Her Honour, by way of background to the proceedings (paragraph 3 and following), referred to the commencement of the proceedings on 18 June 2004, some 13 months prior to the matter coming before her Honour, at which time the husband filed an application for orders with respect to the parties' child. Since that time her Honour found 91 documents have been filed, the matter occupies five folders. Between June 2004 and December 2004 the husband filed three Form 2 applications and two contravention applications.
Her Honour referred then to the history of the matter in terms of adjudicative determinations (paragraph 5) and to expert evidence by Mr P, which it is to be noted the appellant disputes in material he has filed, relevant for that purpose. Her Honour then referred to the contravention applications and to the history of filing applications (paragraph 6 and following), that narrative being taken up on 29 April 2005. Her Honour referred to the proceedings earlier the same day before Mushin J (paragraph 7). Her Honour then having set out that background to the proceedings, a background which for my part was more than ample to enliven the power to make an order under s 118, addressed the issues before her.
Her Honour had regard to the "lengthy submissions" of the present appellant. It is apparent that a number of those submissions clearly would have had no productive impact in terms of the appellant's resistance to the application before her Honour.
Importantly, her Honour did note and accepted that the appellant had been successful in two applications before the Court. Her Honour made observations about the successes which the appellant thus had. With respect to her, the logic underpinning the conclusions she reached in relation to those matters is, to my mind, irresistible.
Her Honour then referred at paragraph 11 to a theme which, as will be seen when the further evidence application is addressed, subsists to this time. Having regard to those matters her Honour was thus:
… satisfied that by reason of the history of these proceedings … the husband's refusal to agree not to issue further applications before the trial and his foreshadowing of an application upon grounds which were not discernable [sic] to restrain the wife's solicitor from acting further in the proceedings, I should exercise my discretion in favour of the wife and make an order restraining the husband from filing further applications prior to the trial of these proceedings. I am satisfied that unless restrained the husband will continue to persist in filing unmeritorious and vexatious applications. (paragraph 12)
Nothing to which the appellant has referred the Court, or which otherwise emerges from the record, persuades me that it was other than open to her Honour in the exercise of discretion to conclude as she did with respect to the application.
I earlier referred to what are the consequences of the orders her Honour made. I am satisfied that her Honour's order could not stifle any legitimate forensic endeavours of the appellant in these proceedings. In my view, the appeal against these orders ought not be adjourned for reasons which would be discernible from the observations I have made with respect to the first two appeals. This appeal should, in my view, be dismissed. For the Court to do otherwise would be, in my view, no more and no less than for this Court to aid and abet an ongoing abuse of its processes.
FURTHER EVIDENCE APPLICATION
It remains only to consider the application of the appellant to adduce further evidence. That further evidence is contained in an affidavit filed 16 January 2006. As indicated earlier, this application does not, as far as I can discern, purport to specifically relate to any particular appeal. I may be wrong in that regard, but the course I propose can do the appellant no harm in that I have considered the application relative to each and every one of the appeals in case it may satisfy the requirement as outlined by the majority of the High Court in CDJ v VAJ (1998) 197 CLR 172.
The affidavit falls into categories. Allegations by the appellant himself which appear to relate to observations made by him when he got contact on 2 July 2005. These matters do not appear to have loomed large in the proceedings before Mushin J on 25 July 2005, which is not without significance given, as his Honour recorded in his judgment, that he allowed cross‑examination to range rather more widely than might strictly have been necessary in those proceedings.
The husband raises a number of allegations, which are no more and no less than allegations, and annexes to his affidavit some documentation. The first annexure to the affidavit is a document dictated by Dr M on 9 January 2006. One might wonder why the appellant did not find it necessary between 3 July 2005 and 9 January this year to seek any documentation in relation to the consultation between Dr M and the child on 3 July 2005. It is abundantly clear from the report itself and from the appellant's affidavit that he was present at the time of the consultation and indeed it was facilitated by the appellant.
The content of the document records or appears on a balanced reading of it, or certainly my reading of it, to record an allegation by the father that when the child was delivered to him on 2 July “he noted a 3cm abrasion on mid frontal as shown”. The words then appear “no swelling, no bruising evident”. It is less than entirely clear whether the appellant was reporting those matters or, as logic might suggest to be more probable, that was the doctor's observation, or perhaps more accurately, absence of observation.
There then follows a reference to asthma, which is of no present moment. There then purports to be a statement by the child that "she hit the door". There is no suggestion that whatever happened involved any action, acts or omissions on the part of the present respondent which would raise concerns about the safety of the child or the capacity of the respondent, nor would the presence of a sty in the left lower eyelid have raised such a concern.
There then follows “Had also been hit in the head at school - but was not reported to the teacher”. Who reported that to the doctor is less than clear, but whatever the reality, there is absolutely no basis for finding that anything inappropriate causing concern was done or not done by the respondent.
Assuming, which I would not, that this material could have any possible impact on the correctness of the decisions of any of the trial Judges in the appeals under consideration, it could not, in my view, be concluded that that evidence, if accepted, would render erroneous a trial Judge's decision or any decisions of them.
The next document is a document which, to the extent that it is decipherable, appears to be the actual contemporaneous notes, I assume of Dr M of a Medical Centre of 3 July 2005. I refrain from endeavouring to interpret any of the writing which appears on that document. It is improbable that anything of significance there contained would not have appeared in the document to which reference was previously made.
The third document, annexure B, is dated 4 January 2006 and this too emanated from the Medical Centre, Dandenong. It appears to be a report from one doctor to another, although that is not necessarily clear. What is clear is that the child was found to have had, on or about 4 January, or perhaps 18 October 2005, it is not entirely clear to me, “a small bruising on the left arm 1.5cm2 with tenderness. The child said it caused by a hard ball? in her mother flat”.
Accepting that the child had the bruising referred to, that she sustained it in some circumstances involving a hard ball in her mother's flat, to the extent that such evidence could possibly impact upon the decisions of any of the trial Judges relevant in these appeals, it could not, if accepted, render erroneous those decisions or any of them.
Attached then is a document of some two pages entitled “Headache Diary”. It is apparent from paragraph 8 of the affidavit of the appellant that this document emanated from either the appellant or the child. Without professing expertise in that regard, the probabilities are that the writing was not that of the child. The document, without referring to it in detail, does not contain anything which, to the extent that it could possibly impact upon the decisions of any of the trial Judges under consideration, render erroneous their decisions or any of them.
Annexure D appears to have been an MRI scan undertaken on the child on or about 22 December 2005. That document records under the heading “Conclusion”, “No significant abnormalities identified”. That conclusion obviates the need for this layperson to endeavour to understand what appears earlier. The document could not possibly meet the requirements of the majority in CDJ v VAJ (1998) 197 CLR 172.
I thus conclude that none of the material raised in support of the application to adduce further evidence should be allowed for that purpose. That being so, there is no foundation from that material for interfering with the decisions of any of the trial Judges in the three appeals under consideration. For those reasons I would accordingly refuse to further adjourn the appeals or any of them. I would dismiss each and every one of the appeals and I would dismiss the application to adduce further evidence filed on or about 16 January 2006.
HOLDEN J: I too would refuse the application for an adjournment of the appeals. I would also dismiss all three of the appeals for the reasons given by Coleman J. I would dismiss the application to adduce further evidence, again for the reasons given by Coleman J and to which I have nothing to add.
BOLAND J: For convenience, I will refer to the three appeals in this matter by the same description as used by Coleman J, namely the Joske J appeal, the Mushin appeal and the Morgan appeal. In respect of the application for the adjournment of the Joske appeal and the appeal itself, I agree entirely with the reasons of Coleman J and the presiding judge and have nothing further to add. I find similarly in respect of the adjournment of the appeals against the orders of Mushin and Morgan JJ and those appeals. I also agree with the reasons of Coleman J in respect to the appellant's application to adduce new evidence and I have nothing further to add.
HOLDEN J: The orders of the Court will be:
1That the application for the adjournment of appeals, SA30 of 2005, SA53 of 2005 and SA54 of 2005, be dismissed.
2That the Form 2 Application of the appellant, in relation to Appeal SA53 of 2005, seeking to adduce further evidence filed on 16 January 2006 is dismissed.
3That all three of the appeals referred to in order 1 be dismissed.
HOLDEN J: Before the Court is an application for costs on the part of the appellant seeking costs in the sum of $5430. We are of the view that this is an appropriate case in which to make an order for costs. The wife is not in receipt of legal aid. She is dependent upon a pension and a small amount of money from a cleaning job and is receiving minimal child support from the husband. The husband's financial position is not entirely clear to us, but it would seem that he is not employed by choice in order to persevere with the present proceedings. The fact of the matter is that the appellant has been totally unsuccessful in all three appeals and in his application to adduce further evidence.
In the reasons given by Coleman J, with which we have agreed, it is apparent that we are of the view that all three appeals were entirely without merit. For these reasons we would make an order for costs. We would fix those costs in the sum of $3500. There will be an order that the appellant pay the respondent's costs of the three appeals collectively fixed in the sum of $3500.

I certify that the preceding
67 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.

Associate
Date:

[2006] FamCA 363

2 February 2006

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