May and Longley & Anor
[2016] FamCAFC 184
•14 September 2016
FAMILY COURT OF AUSTRALIA
| MAY & LONGLEY AND ANOR | [2016] FamCAFC 184 |
| FAMILY LAW – APPEAL – DISMISSAL – Where the respondents seek that the appellant’s Amended Notice of Appeal be summarily dismissed – Where the second part of the Amended Notice seeks to appeal certain paragraphs of the reasons for judgment of the trial judge and is therefore incompetent and must be dismissed – Where there is no ground of appeal against the order dismissing the application alleging contravention and that part of the appeal must be dismissed – Where the child the subject of the appeal was aged 17 years at the time of the filing of the Amended Notice – Where there is no utility in the appeal – Where s 96AA of the Family Law Act 1975 (Cth) applies – Where none of the grounds of appeal have a reasonable prospect of success and all are devoid of merit – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondents seek costs – Where written submissions are required – Orders made for the filing and serving of written submissions. |
| Family Law Act 1975 (Cth) – ss 70NBA and 96AA Family Law Rules 2004 (Cth) – rr 11.02(1), 11.02(2)(a) and 22.45 |
| Bennett and Bennett (1991) FLC 92-191 Lindon v The Commonwealth (1996) 136 ALR 251 |
| APPELLANT: | Ms May |
| FIRST RESPONDENT: | Mr Longley |
| SECOND RESPONDENT: | Ms Mann |
| FILE NUMBER: | MLC | 1151 | of | 2008 |
| APPEAL NUMBER: | SOA | 59 | of | 2015 |
| DATE DELIVERED: | 14 September 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 4 December 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 July 2015 |
| LOWER COURT MNC: | [2015] FCCA 2252 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Levine |
| SOLICITOR FOR THE APPELLANT: | James McConvill & Associates |
| COUNSEL FOR THE RESPONDENTS: | Ms Carter |
| SOLICITOR FOR THE RESPONDENTS: | Pearce Webster Dugdales |
Orders
The time to file the Amended Notice of Appeal be extended nunc pro tunc to 9 November 2015.
The Amended Notice of Appeal filed on 9 November 2015 be dismissed.
Within 21 days of the date of this order, the respondents file and serve written submissions in support of their applications:
(a)for the costs of and incidental to that part of the said Amended Notice of Appeal seeking to appeal against certain paragraphs of the reasons for judgment in relation to the order for costs made on 30 September 2015;
(b)for the costs of and incidental to the order made on 4 December 2015 dismissing the Amended Application in an Appeal filed on 2 December 2015; and
(c)for the costs of and incidental to the Application in an Appeal filed on 23 November 2015.
Within 14 days of the receipt of those written submissions the appellant file and serve written submissions in response.
Within seven days of the receipt of the written submissions in response the respondents file and serve written submissions in reply.
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 May & Longley and Anor 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).
|
Appeal Number: SOA 59 of 2015
File Number: MLC 1151 of 2008
| Ms May |
Appellant
And
| Mr Longley |
First Respondent
And
| Ms Mann |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The primary application before the court has been the Application in an Appeal filed on 23 November 2015 by Mr Longley and Ms Mann (“the respondents”) seeking an order that the Amended Notice of Appeal filed by Ms May (“the appellant”) on 9 November 2015, be summarily dismissed. The appellant opposes that application.
In the Amended Notice of Appeal the appellant sought to appeal against orders made by Judge Burchardt on 27 July 2015, and certain paragraphs of his Honour’s reasons for judgment in making an order for costs on 30 September 2015.
Plainly, it is not possible to appeal against paragraphs of a judgment, and there can only be an appeal against orders. Thus, for that reason, the second part of the Amended Notice of Appeal is incompetent and must be dismissed. For completeness though, even if that part of the appeal could be treated as an appeal against the order for costs made on 30 September 2015, it is still incompetent. The appeal is out of time, and no application has been made for an extension of time. Thus, there can be no question that that part of the appeal must be dismissed.
As to the orders made on 27 July 2015, in summary they provided for the dismissal of the appellant’s applications before the court that day, the discharge of the parenting order made on 13 August 2008, the restraint of the appellant from contacting the child, [X] (“the child”) born in 1998, unless such contact was initiated by the child, and for the child to “spend time and/or communicate with the [appellant] as he so wishe[d] from time to time”.
The appellant’s applications before his Honour were as follows:
a)an Initiating Application filed on 18 May 2015 seeking parenting orders;
b)an Application Alleging Contravention by the respondents of paragraph 5 of the orders made by consent on 13 August 2008; and
c)an Application in a Case filed by the appellant’s solicitor on behalf of the appellant seeking to inspect documents produced pursuant to subpoenas served in the United Kingdom.
As indicated, the child was born on in 1998, is now aged 18 years, and can no longer be the subject of parenting orders made under the Family Law Act 1975 (Cth) (“the Act”). Thus, even if this appeal is successful, the appeal against the orders made by the trial judge would be futile, and that appeal would need to be dismissed. Although the child was aged 17 years when the Amended Notice of Appeal was filed, and the hearing of the application took place before this court, the appeal was plainly futile even then. This issue was raised with counsel for the appellant during the hearing of this matter, and all he could indicate was that his instructions were to proceed regardless.
The Application in an Appeal
What is sought is summary dismissal of the appeal, but in reality it is an application under s 96AA of the Act. That section provides as follows:
APPEAL MAY BE DISMISSESD IF NO REASONABLE PROSPECT OF SUCCESS
96AA
(1)If:
(a)an appeal has been instituted in a court under this Part; and
(b)having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal);
the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
(2)This section does not limit any powers that the court has apart from this section.
Thus, it is a matter of determining as best I can the prospects of success or otherwise of each ground of appeal relied upon. First though I need to address a preliminary issue raised by the respondents about the Amended Notice of Appeal.
On 24 September 2015 I gave leave to the appellant to file and serve an Amended Notice of Appeal “on or before the close of business on Friday 23 October 2015”. However, as can be seen, the Amended Notice was not filed until 9 November 2015, and the respondents say as a result that it should be dismissed for that reason (rr 11.02(1), 11.02(2)(a) and 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).
However, both the appellant and her solicitor have deposed in affidavits filed respectively on 2 December 2015, that the Amended Notice of Appeal was lodged for filing on 23 October 2015, but because of certain irregularities with the document, it was not received for filing. It then took until 9 November 2015 for the document to be amended, and it was then filed.
In these circumstances I was prepared to extend the time for the filing and allow the Amended Notice to be relied upon, and particularly because, save and except as to costs, there has been no prejudice to the respondents as a result of a copy of the Amended Notice having been provided to them. As to costs, on 4 December 2015, I made an order reserving the question of costs, including in relation to this issue.
To return to the application seeking summary dismissal, I note that the leading authority in relation to applications of this nature is the decision of Kirby J in Lindon v The Commonwealth (1996) 136 ALR 251. There, his Honour set out (at 256) the approach a court should take in the guise of six principles. Not all of those principles are relevant to this matter, but I set them all out as follows:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3.An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth’s attack was upon the entirety of Mr Lindon’s statement of claim.
6.The guiding principle is, as stated in O26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
(footnotes omitted)
With that background I now consider each of the grounds of appeal. I note though that Ground 9 is not pursued by the appellant, and that Ground 11 relates to the aspect of the appeal where challenge is made to certain paragraphs of the reasons for judgment in relation to the order for costs made on 30 September 2015, and to repeat, I have found that that aspect of the appeal is incompetent and must be dismissed. Accordingly, this ground of appeal need not be considered.
I also note that all but one of the grounds of appeal relate to the order dismissing the Initiating Application seeking parenting orders. There is one ground of appeal (Ground 1) against the order dismissing the Application in a Case, but there are no grounds of appeal against the order dismissing the Application Alleging Contravention. Thus, the appeal against that order must be dismissed in any event.
Ground 1
The Trial Judge erred in holding that the court had a discretion to refuse to issue an subpoena to an overseas person under s 21AF of the Family Law Regulations.
This ground is misconceived. There was no such “holding” by the trial judge, and that was conceded by the appellant’s counsel at the hearing before this court. Instead, the complaint is in relation to what his Honour said at [6], namely:
Both the Family Court Rules and Regulations and, for that matter, the comparable Rules of the Federal Court, either of which this Court may apply in case of deficiency, make it very clear that service out of subpoenas is not permitted under the Rules, save by leave of the Court. There is a procedure in the Family Court Regulations for service out in Hague Convention countries – countries part of the Hague Convention on service – and also a procedure for countries which are not. Unless I misunderstand the matter, those advising the [appellant] simply bypassed that regime and served subpoenas on the two doctors in Britain, with which those doctors, perhaps slightly surprisingly, have complied. But I regard this as an abuse of process which comes close to being a contempt of court.
(emphasis omitted)
As explained in oral submissions, it is said that his Honour erred by indicating that leave of the court was required under the “Family Court Regulations” for a subpoena to be served in a Hague Convention country.
There are two difficulties with this submission. First, although it is the case that leave is not required under the Regulations, leave is required under the Rules of the Federal Circuit Court, and plainly that is what his Honour was referring to in his reasons. Secondly, the application before his Honour was not for the issue of a subpoena, but to inspect documents produced pursuant to subpoenas that had been served irregularly. His Honour dismissed that application because the appellant’s solicitors had failed to comply with the necessary procedure. Indeed, as can be seen, his Honour described that as “an abuse of process which comes close to being a contempt of court”. I agree with that description by his Honour given what had occurred. It seems the appellant was refused leave by the registrar to issue the subpoenas, yet the appellant’s solicitors proceeded to cause them to be served in the United Kingdom. The lame excuse proffered in paragraph 20 of the affidavit of Joseph Anthony Carbone (one of the appellant’s solicitors) filed on 23 October 2015, that “[a]lthough the Registry staff said there was no jurisdiction to issue the subpoenas, [the appellant] was not refused permission to serve those documents in the United Kingdom”, plainly justifies his Honour’s description of that as an abuse of process bordering on contempt of court.
This ground of appeal has no reasonable prospect of success, and indeed has no merit.
Ground 2
The Trial Judge erred in failing to hold that there were new facts and circumstances that could justify making the parenting orders sought in the [appellant’s] initiating application for the reasons particularised below.
Particulars
The child was more mature and able to express his wishes.
The parents were divorced and the father no longer lives in Australia, and thus there is no constant connection to the paternal family.
In his reasons for judgment his Honour carefully addressed all of the matters raised by the appellant in her affidavit in support of the Initiating Application filed on 18 May 2015, seeking, inter alia, that the child live with her, that she have sole parental responsibility for him, that the respondents visit the child as agreed, but that the second respondent have supervised time until she undergoes “a mental health assessment”.
His Honour found, and correctly I might add, that the events deposed to in paragraphs 1 – 17 of the affidavit all pre-date the orders made on 13 August 2008, which orders incidentally were made by consent, that “[p]aragraphs 18 through to 36 go back a lot further in time, as far as [1995], but do not get any later than 2006” (at [9]).
His Honour then referred to the only “recent event” deposed to by the appellant, namely a visit by her and her solicitor to the child’s school on a day when he was not there, in breach of the orders of 13 August 2008, and when the appellant spoke to the deputy principal. On this basis his Honour concluded as follows:
14.If there were ever a case where the doctrine in Rice & Asplund had work to do, this must surely be it. Effectively, all the things the [appellant] now seeks to agitate were agitated in the proceedings leading up to 2008 orders. No material change of circumstances has arisen since then, and whether this matter was dismissed pursuant to Rice & Asplund or r.13.10 or s.17A, there is simply no question that that is the outcome that is in [X’s] best interest.
15.The thesis that a change of residence should be contemplated at this stage in his life, when he hasn’t seen [the appellant] since 2008, I’m afraid, really, only has to be stated to be understood as being appropriate for rejection.
The appellant complains that his Honour erred by failing to find that because the child was more mature and able to express his wishes, and because the respondents were divorced and the father no longer lived in Australia, there were sufficient “new facts and circumstances” to warrant making the parenting orders sought by her.
However, not only were none of these things put to his Honour, but there was also no evidence that at any stage since 2008 had the child expressed a wish to live with the appellant; indeed, the opposite was the case. There was also no evidence that there was no “constant connection to the paternal family”. Once again the opposite was the case, and in the affidavit filed by the second respondent on 17 July 2015 she deposed to the regular contact that the first respondent had with the child.
Finally, I repeat that none of these things were put to his Honour, and that was because the sole basis for the appellant’s application was her concern that the child was at risk in his mother’s care (paragraph 16 affidavit of the appellant affirmed on 23 July 2015). However, to dwell on that claim for the moment, not only was there no evidence presented by the appellant to support that claim, but there was nothing new about it; it had been a concern expressed by the appellant from a time well before the consent orders were made in 2008.
In these circumstances, not only does this ground of appeal have no reasonable prospect of success, there is absolutely no merit in it.
Ground 3
The Trial Judge erred in making a determination that the appellant’s application for parenting orders should have been dismissed pursuant to s 17A of the Federal Circuit Court Act or rule 13.10 of the Federal Circuit Court for the reasons particularised below.
Particulars
The Trial Judge did not have the benefit of a current family report.
The Trial Judge failed to take into account the best wishes of the child and in particular the desirability of the child maintaining a relationship with [the appellant], and his paternal family (which is presumed to be in his best interests pursuant to the Family Law Act).
The Trial Judge failed to make a determination as to the mother’s mental health and the need for her to be psychiatrically assessed.
The Trial Judge failed to take the evidence at its highest in favour of the appellant.
The Trial Judge erred in drawing an adverse inference against the appellant, that she demonstrated a lack of insight on the basis that she was seeking a change of residence.
The Trial Judge failed to make a proper finding on the current relationship between the appellant and the child.
As can be seen, the appellant here provides particulars as to why it is said that the trial judge erred in dismissing the Initiating Application for parenting orders. I now address those particulars as follows:
a)There was no application by the appellant for a family report to be prepared, and in any event, there was no evidence before his Honour that would justify a family report being ordered even if one had been sought.
b)His Honour plainly took into account the best wishes of the child and concluded that the outcome that best served those wishes was summary dismissal of the application. Further, there is no presumption in the Act that maintaining a relationship with a grandparent is in the best interests of a child. What the Act in fact provides is that “except when it is or would be contrary to a child’s best interests”, “children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)” (s 60B(2)(b)). This is a principle underlying the objects of that part of the Act dealing with children.
In any event, the issue of maintaining a relationship between the child and the appellant was dealt with in the consent orders made on 13 August 2008, and no fact or circumstance was established before his Honour that would require those orders to be revisited so as to make the parenting orders sought by the appellant.
c)Although there was an application before the trial judge that the mother’s mental health be assessed, there was no evidence before his Honour that would have justified such an order being made.
d)The evidence before his Honour was the appellant’s affidavit filed on 18 May 2015 and referred to in [20] above. The vast bulk of that evidence was irrelevant being historical and pre-dating the orders of 13 August 2008. The only “recent event” deposed to therein was the visit to the school in breach of those orders, and although that did not reveal a fact or circumstance justifying the orders sought by the appellant, his Honour accepted that evidence.
I also note that there was a further affidavit sworn by the appellant on 23 July 2015 replying to the responding affidavits of the respondents sworn respectively on 16 July 2015 and 15 July 2015, but that did not provide any additional “recent event”, and thus that evidence did not take the appellant’s case any higher.
In submissions to his Honour, the appellant’s solicitor confirmed what the appellant herself deposed to in her affidavit material, namely that the sole basis on which she brought the application was her concern that the child was at risk, but to repeat, there was no evidence comprised in any of the affidavit material which supported that claim, and thus it was not open to his Honour to accept that.
e)Nowhere in his Honour’s reasons does his Honour say that the appellant “demonstrated a lack of insight on the basis that she was seeking a change of residence”. A submission to that effect was made by counsel for the respondents to his Honour, and I observe that it would have been well open to his Honour to make that finding, but his Honour did not.
f)The trial judge was not required to make a finding as to the current relationship between the appellant and the child for the purpose of determining whether the application should be summarily dismissed.
Again, not only is there no reasonable chance of success of this ground of appeal, but it has no merit.
Ground 4
The Trial Judge failed to provide proper reasons for his decision to dismiss the appellant’s application for parenting orders pursuant to s 17A of the Federal Circuit Court or rule 13.10 of the Federal Circuit Court.
What is required by way of reasons is that the appeal court and the parties “should be able to discern either expressly or by implication the path by which the result has been reached” (Bennett & Bennett (1991) FLC 92-191 at 78,267).
However, reasons do not need to be extensive, nor elaborate or lengthy, and a trial judge is not required to decide every matter that is raised in the case. How much needs to be said will vary from case to case in the light of the issues raised which require adjudication.
Here, it is beyond doubt that his Honour’s reasons are adequate and reveal why the case was decided the way it was. As the respondents submitted, the child was almost 17 years of age, he had not seen the appellant since 2008 and there was no evidence to suggest that he was at risk in his mother’s care. Thus, there was “no question” that the application was “doomed to fail”, and that on the evidence dismissal was “the outcome that was in [the child’s] best interests”. I also refer again to what his Honour said at [15], quoted above.
The “path by which the result has been reached” is clear, and there is no reasonable chance of success of this ground of appeal. Indeed, again, it is a ground without any merit.
Ground 5
The Trial Judge erred in failing to hear and determine the [appellant’s] application for parenting orders pursuant to s 70NBA of the Family Law Act, which did not require the need to demonstrate new facts and circumstances, as a precondition to making a parenting order.
This is a confusing and confused ground.
There was no application by the appellant for parenting orders to be made pursuant to s 70NBA. The appellant had filed an Initiating Application seeking parenting orders which his Honour summarily dismissed. Certainly, following his Honour’s dismissal of the appellant’s Application Alleging Contravention by the respondents of paragraph 5 of the orders made on 13 August 2008, his Honour discharged that order and put in place alternative orders. However, there is no basis on which it can be argued that pursuant to s 70NBA his Honour should have made the orders sought by the appellant in the application that his Honour dismissed summarily.
This ground has no reasonable prospect of success and again it has no merit.
Ground 6
The Trial Judge erred in making the parenting orders proposed by the Respondent in the minutes of orders pursuant to s 70NBA of the Family Law Act without making a determination as to whether there were new facts and circumstances to justify doing so.
As the respondents submit, once a contravention application is before the court, the court’s discretion is at large, and an order may be made pursuant to s 70NBA irrespective of whether “new facts and circumstances” are present or not. Thus, if the evidence justified it, then it was open to his Honour to make the parenting orders proposed by the respondents, without first determining whether there were “new facts and circumstances” present as a precondition to making those orders.
Accordingly, again, there is no reasonable chance of success of this ground of appeal, and it has no merit.
Ground 7
The Trial Judge failed to provide proper reasons for his decision to make the parenting orders proposed by the Respondent in the minutes of orders.
I refer again to the principles that govern the need for a trial judge to provide reasons for his or her decision.
Here, his Honour found that the orders proposed by the respondents were appropriate based on the “material as a whole” (at [16]). In that regard it is readily apparent that the evidence of the child’s age, that he had not sought to have any contact with the appellant, that the appellant had breached the orders made on 13 August 2008, and crucially, that the appellant had sent a letter to the child exhorting him to leave his mother and live with her, all provided a basis for the orders his Honour made.
Again, the “pathway by which the result has been reached” is clear, and there is no reasonable chance of success of this ground of appeal. Yet again, there is no merit in this ground.
Ground 8
The Trial Judge placed undue weight on the family report that was made in 2008 for the reasons particularised below.
Particulars
The family report was out of date.
The Trial Judge did not see the family report.
The short answer to this complaint is that his Honour did not place any weight on the 2008 report; indeed, his Honour did not even see that report.
His Honour did indicate in [11] that the mother’s counsel told him that as at 2008 both the child and his older sister “expressed a clear view that they did not wish to spend time with [the appellant]”. During the hearing before this court, counsel for the appellant took his Honour there to be repeating something that he was told during the hearing by the mother’s counsel about the 2008 report. However, I do not consider that that is what his Honour was referring to. Although in [11] his Honour does refer to the 2008 report, and specifically that he had not seen it, what he was then indicating was simply that the mother’s counsel informed him that at that time both children expressed a clear view. I accept that his Honour was still not entirely correct in what he said in [11], but the mother’s counsel did indicate to his Honour that the child’s wishes were very clearly expressed in 2008, and they gave rise to the orders that were made at that time. When that is coupled with what the second respondent deposed to in paragraph 18(f) of her affidavit filed on 17 July 2015, namely that “the family report writer ascertained in 2008, the children had no wish to see [the appellant]”, and that the children had also made that very clear to her themselves, that perhaps explains his Honour’s comment.
However, frankly, it does not matter that his Honour may not have been entirely correct in [11]. To repeat, the complaint is that his Honour placed undue weight on the family report, and it has simply not been established that his Honour placed any weight on the report at all. What his Honour did place weight on, was the fact that the appellant had not seen the child since 2008, and that was common ground.
Yet again there is no reasonable chance of success of this ground and it has no merit.
Ground 10
The Trial Judge erred in making the parenting orders proposed by the Respondent in the minutes of orders pursuant to s 70NBA of the Family Law Act for the reasons particularised below.
Particulars
The Trial Judge did not have the benefit of a current family report.
The Trial Judge failed to take into account the best wishes of the child and in particular the desirability of the child maintaining a relationship with [the appellant].
The Trial Judge failed to make a determination as to the mother’s mental health and the need for her to be psychiatrically assessed.
The Trial Judge failed to take the evidence at its highest in favour of the appellant.
The Trial Judge failed to consider the range of orders that he could have made that included that the appellant spend time with the child on a limited basis.
The Trial Judge failed to hold that the abovementioned orders could only have be [sic] made if the appellant’s defence to the abovementioned orders should have been summarily dismissed pursuant to s 17A of the Federal Circuit Court or rule 13.10 of the Federal Circuit Court.
The Trial Judge erred in drawing an adverse inference against the appellant, that she demonstrated a lack of insight on the basis that she was seeking a change of residence.
This ground is similar to Ground 3, the difference being that it attacks the parenting orders made pursuant to s 70NBA of the Act rather than the order for summary dismissal. Nevertheless, in relation to the particulars of the ground, some are precisely the same as the particulars of Ground 3. In this regard, I refer to the first, second, third and seventh particular of Ground 10, and I repeat the comments that I made in addressing the same particulars of Ground 3; in other words, none of those particulars have any merit.
In relation to the fourth particular, unlike when determining an application for summary dismissal, there is no requirement “to take the evidence at its highest in favour of the appellant”, and thus this particular also has no merit.
That leaves the fifth and the sixth particulars. As to the fifth, it is apparent that his Honour considered the orders that would be in the best interests of the child, and plainly, on the evidence, that did not include any of the orders sought by the appellant, or even an order that the appellant spend time with the child on a limited basis. In any event, as referred to above, the appellant did not seek any orders pursuant to s 70NBA.
As to the sixth particular, I agree with the respondents that it is incomprehensible, and thus I cannot take it any further.
In these circumstances there is no reasonable prospect of success of this ground, and in fact it has no merit at all.
Conclusion
Given that no ground of appeal has any reasonable prospect of success, and indeed none has any merit whatsoever, the appeal must be dismissed.
Costs
The respondents seek the costs of and incidental to first, that part of the Amended Notice of Appeal filed on 9 November 2015 seeking to appeal against certain paragraphs of the reasons for judgment in relation to the order for costs made on 30 September 2015, secondly the order made on 4 December 2015 dismissing the Amended Application in an Appeal filed on 2 December 2015, and the Application in an Appeal filed on 23 November 2015.
There is a need for written submissions to be filed and served in relation to those applications, and I will provide for that in the orders that I make.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 14 September 2016.
Associate:
Date: 14 September 2016
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