MCMILLAN & MCMILLAN - [2018] FamCAFC 200

FAMILY COURT OF AUSTRALIA

MCMILLAN & MCMILLAN

[2018] FamCAFC 200

FAMILY LAW – APPLICATION IN AN APPEAL – ADJOURNMENT – Where the appellant sought that the appeals be adjourned – Where the appellant relied on medical certificates to demonstrate that he was unable to present his appeals – Where the medical certificates presented did not establish that there was any medical reason why the hearing of the appeals should be adjourned – Application dismissed.

FAMILY LAW – APPEAL – REFUSE TO STAY – Where the appeal was deemed abandoned on 7 September 2017 – Where there is no appeal on foot that would justify a stay being granted as sought in the appellant’s application before the trial judge – Where even if leave to appeal was granted the application seeking a stay could not be pursued and thus the appeal is futile – Where pursuing the appeal in these circumstances borders on an abuse of process – Where there is no proper basis for leave to appeal to be granted – Where the grounds of appeal relied on are incompetent and no appealable error is demonstrated – Application for leave to appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal does not raise any question of general principle – Where none of the grounds of appeal have merit – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent seeks an order for costs – Where the appellant opposes any such order – Where there are circumstances here which justify an order for costs being made – Where the appellant has been wholly unsuccessful in the appeals – Costs ordered in the sum as sought by the respondent.

Family Law Act 1975 (Cth) ss 94(2A) and 117
Family Law Rules 2004 (Cth) r 19.18

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

APPELLANT:

Mr McMillan

RESPONDENT:

Ms McMillan

FILE NUMBER:

CSC

355

2015

APPEAL NUMBERS:	NOA	42	of	2017
NOA	12	of	2018

DATE DELIVERED:

25 October 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Ryan &
Kent JJ

HEARING DATE:

19 October 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATES:

28 September 2017

22 December 2017

LOWER COURT MNC:

[2017] FamCA 773
[2017] FamCA 1102

REPRESENTATION

THE APPELLANT:

In person

SOLICITOR ADVOCATE FOR THE

RESPONDENT:

Mr Lago (via telephone)

SOLICITOR FOR THE RESPONDENT:

WGC Lawyers

Orders

The application for leave to appeal in appeal no. NOA 42 of 2017 be dismissed.
The appeal in appeal no. NOA 12 of 2018 be dismissed.
The appellant husband pay the respondent wife’s costs fixed in the sum of THREE THOUSAND SIX HUNDRED AND TWENTY FIVE DOLLARS AND TEN CENTS [$3,625.10].

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 McMillan & McMillan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Numbers: NOA 42 of 2017 & NOA 12 of 2018
File Number: CSC 355 of 2015

Mr McMillan

Appellant

And

Ms McMillan

Respondent

REASONS FOR JUDGMENT

Introduction

There are two appeals before the Court, namely appeal no. NOA 42 of 2017 and appeal no. NOA 12 of 2018.
In the first appeal, Mr McMillan (“the husband”) filed a Further Amended Notice of Appeal on 8 August 2018 seeking leave to appeal, and if leave is granted, to appeal against an order made by Tree J on 10 August 2017 (amended on 23 February 2018), dismissing the husband’s application filed on 9 August 2017 seeking the following order:
An adjournment be granted and all matters currently before the Court be stayed until further notice to the Court, regarding the ongoing Process/Progress of the Applicant/Appellant’s Appeal currently before The Full Court.
(Capitalisation as per original)
In the second appeal, the husband filed a Notice of Appeal on 19 January 2018 appealing against an order for costs made by Tree J on 22 December 2017.
Ms McMillan (“the wife”) opposes both appeals.
On 7 September 2018 the husband filed an Application in an Appeal seeking orders extending the time to file his summary of argument in appeal no. NOA 12 of 2018, and to add to the appeal book the transcript of the proceedings before Tree J on 8 February 2016. That application was not opposed by the wife, and we made the orders sought at the commencement of the hearing of the appeal.

Application to adjourn the hearing of the appeals

When the appeals were called on for hearing, the husband, who appeared without legal representation, tendered an Application in an Appeal seeking two orders, namely, leave to file an Application in an Appeal dated 18 October 2018, and an affidavit in support thereof, and an adjournment of the hearing of the appeals.
In relation to the first order sought, the Application in an Appeal and the affidavit were sent to this Court on 18 October 2018, but were not accepted for filing. At the commencement of the hearing of the appeals, we informed the husband that we were not prepared to receive the application because it sought orders that this Court either could not make, or that were inappropriate to make, and we returned the application and the affidavit to the husband.
As for the application to adjourn the hearing of the appeals, the husband did not provide any affidavits of medical professionals but sought to rely upon two medical certificates annexed to his affidavit, as demonstrating that he was unable to present his appeals on that day.
After reading the affidavit and the annexed certificates, we advised the husband that we were not satisfied that the medical certificates established that he was medically unfit to present his appeals, and we dismissed the application, indicating that we would provide our reasons for that decision as part of our reasons delivered in relation to the appeals. We now provide those reasons.
On 26 July 2018 the parties were advised that the appeals would be listed for hearing in the Full Court sitting in the week commencing 15 October 2018.
Subsequent to that date, the husband filed a Further Amended Notice of Appeal on 8 August 2018, his appeal books on 24 August 2018, an Application in an Appeal and a supporting affidavit on 7 September 2018, his summaries of argument respectively on 31 August 2018 and 11 September 2018, and written costs submissions on 12 October 2018.
Thus, the husband had done everything that he needed to do for the appeals to be heard on 19 October 2018, and all that was left was for any oral submissions to be made at the hearing of the appeals, if necessary.
The only medical evidence relied upon by the husband in support of his application were two certificates annexed to his affidavit. One certificate was headed “W Medical Centre” and dated 6 September 2018. It read:
Dr E
MB;BS, FRACGP
Medical Certificate
THIS IS TO CERTIFY THAT
Mr McMillan
IS RECEIVING MEDICAL TREATMENT FOR STRESS/ ANXIETY/DEPRESSION
He HAS FOUND THE RECENT FAMILY COURT MATTERS STRESSFULL. THESE ARE A CONTRIBUTING FACTOR TO HIS CURRENT MENTAL HEALTH CONDITION AND HE HAS FELT UNABLE TO RESUME WORK.
This Certificate was completed on 6/9/2018
Dr E
The other certificate was also headed “W Medical Centre”, but was dated 12 October 2018. It read:
To Whom it May Concern,
Mr McMillan, […] has been seen by me for psychological services on three occasions since 2017.
Mr McMillan was specifically seeking support and psychological strategies to help him deal with the distress he has been experiencing as a result of his prolonged and ongoing legal matters.
Yours Faithfully,
Ms A – psychologist.
As can be seen, neither certificate expressed any opinion positively asserting that the husband was medically unfit and unable to present his appeals to this Court on 19 October 2018, and thus we were not satisfied that there was any medical reason why the hearing of the appeals should be adjourned.
Further, as referred to above, the husband had been able to do all that was necessary to prepare his appeals for hearing, and on the eve of the hearing he had even been able to prepare an Application in an Appeal and a lengthy affidavit, albeit we refused to receive those documents.

Background to the appeals

These parties have a long history of litigation in the Family Court of Australia, and to put the two appeals into context, it is necessary to set out some of that history.
Between 1998 and 2008, a number of costs orders were made in favour of the wife against the husband, totalling approximately $19,000. However, the wife did not seek to enforce those orders until 15 June 2015, when she obtained an enforcement warrant for the amount of the costs, together with interest of approximately $27,000.
On 14 September 2015 the husband applied for that warrant to be “dismissed, struck out or stayed”. He also sought orders setting aside the costs orders themselves, due to them being obtained by “fraud” on the part of the wife and her legal representatives.
On 23 May 2016 Tree J made orders permanently staying that warrant, but otherwise dismissing the husband’s application. His Honour had no difficulty with the warrant applying to the actual amount of the costs orders, but because of the wife’s delay, his Honour considered that she should not be entitled to claim any interest.
On 16 June 2016 the wife obtained a new enforcement warrant for the amount of the costs orders then outstanding, namely approximately $16,000, excluding interest.
On 12 September 2016 the husband applied for that warrant to be stayed or dismissed, and in effect also sought that Tree J recuse himself from dealing with the application. The basis of that application was said to be that Tree J did not allow the husband to properly litigate his claim in respect of “the alleged dishonesty of the wife and her lawyer in obtaining several costs orders, and perhaps their dishonesty more generally”, and that his Honour “did not properly assist the husband as a self-represented litigant”.
On 19 September 2016 the husband filed a further application seeking a stay of the warrant pending the outcome of the recusal application. That application was heard by Forrest J on 30 September 2016, and by consent his Honour made interim orders staying the warrant pending determination of the recusal application.
On 25 October 2016 Tree J dismissed the husband’s recusal application.
On 7 November 2016 the wife applied for an order for the husband to pay her costs of and incidental to the recusal application.
On 23 February 2017 the husband filed two Applications in an Appeal seeking extensions of time to file Notices of Appeal respectively against the order of 23 May 2016 and the order of 25 October 2016.
On 24 April 2017 Murphy J dismissed both applications, finding in effect that there was no realistic prospect of success in either appeal.
The 12 September 2016 stay application was then listed for hearing on 22 June 2017. However, just prior to the hearing, the husband filed a further application seeking a variety of orders, including an adjournment and a stay; the investigation and charging of the wife and her lawyer; a declaration that the wife is a vexatious litigant; and various orders for costs. The husband filed an affidavit in support of that application in which he sought to demonstrate that some of the costs orders sought to be recovered by the enforcement warrant had in fact been paid, or otherwise extinguished. Thus, when the matter came on before his Honour the wife’s solicitor sought an adjournment to consider the material filed by the husband, and his Honour adjourned the hearing to 6 July 2017.
On 6 July 2017, prior to the matter being mentioned, the husband filed a further application and supporting affidavit seeking, amongst other relief, an order that:
The Court not allow the withdrawal of the Enforcement Warrant filed by [the wife] on 16 June 2016 but that The Court Dismiss and/or Strike Out the Enforcement Warrant on the grounds that it was filed in The Court by Fraudulent Claims and Statements to the Court.
(Capitalisation as per original)
The argument of the husband was that the power to restrain the filing of a Notice of Discontinuance was contained in (the now repealed) s 118 of the Family Law Act 1975 (Cth) (“the Act”).
When the matter came before Tree J that day, the wife’s solicitor indicated that the wife did in fact intend discontinuing the enforcement warrant. Accordingly, his Honour adjourned the matter to 10 August 2017 for further mention. Importantly, the application filed by the husband on 6 July 2017 was not otherwise disposed of.
On 3 August 2017 the husband filed a Notice of Appeal (appeal no. NOA 36 of 2017) appealing against his Honour’s “decision” of 6 July 2017.
On 9 August 2017 the husband filed the application referred to above in [2].
At the hearing on 10 August 2017 the wife’s solicitor indicated that attempts to file a Notice of Discontinuance of the enforcement warrant were unsuccessful, and the wife made an oral application seeking an order that the enforcement warrant be either permanently stayed or dismissed. The basis of that application was that the amounts claimed were not accurate, and the wife wished to obtain a further enforcement warrant containing the correct amounts.
On 10 August 2017 Tree J made the order (as amended on 23 February 2018) dismissing the husband’s application filed on 9 August 2017, and which order is the subject of appeal no. NOA 42 of 2017.
On 7 September 2017 appeal no. NOA 36 of 2017 was deemed abandoned due to the husband’s failure to file a draft appeal index on or before that date.
On 28 September 2017 Tree J made an order permanently staying the enforcement warrant issued on 16 June 2016.
On 9 October 2017 the wife sought a further enforcement warrant in the sum of $16,314 (including the costs of making the application).
On 22 December 2017 Tree J made the following orders in chambers:
(1)That the husband pay the costs of and incidental to his application that Tree J recuse himself from dealing with the husband’s Application filed 12 September 2016.
(2)That otherwise the wife’s Application in a Case filed 7 November 2016 be dismissed.
Order (1) is the subject of appeal no. NOA 12 of 2018.

Discussion

Appeal no. NOA 42 of 2017

This appeal, or rather the leave to appeal sought in that Notice of Appeal, can be readily disposed of.
The husband’s application filed on 9 August 2017 seeking an adjournment and a stay of all matters then before the Court, was necessarily tied to the Notice of Appeal filed on 3 August 2017. In other words, the stay of all matters was sought, and could only be sought, pending the determination of that appeal. However, that appeal was deemed to be abandoned on 7 September 2017. Thus, until and unless that appeal is reinstated as a result of a successful application to that effect, there is no appeal on foot that provides a basis for a stay to be granted as sought in the husband’s application that was before his Honour. Accordingly, even if leave to appeal is granted, and the appeal is successful, the application of 9 August 2017 could not be pursued, and thus the appeal is futile. Indeed, to pursue the appeal in these circumstances borders on an abuse of process. Accordingly, we propose to dismiss the application for leave to appeal.
In any event, having carefully read his Honour’s reasons for judgment delivered on 28 September 2017, the husband’s written submissions as to leave to appeal filed on 12 January 2018, the husband’s Further Amended Notice of Appeal filed on 8 August 2018 containing his further amended 17 grounds of appeal, and the husband’s summary of argument filed on 31 August 2018, we are not persuaded that there is any proper basis for leave to appeal to be granted; to adopt the language from some of the relevant authorities (e.g. Medlow & Medlow (2016) FLC 93-692), the decision of his Honour is not attended by sufficient doubt to warrant it being reconsidered by this Court, and no substantial injustice would result if leave was refused.
We also add that in the event that leave was granted, the grounds of appeal relied upon are incompetent, and no appealable error is demonstrated. It is readily apparent that rather than being solely concerned with the order the subject of the appeal, the husband is attempting to use this appeal as a vehicle for again raising his long-standing complaints about the previous alleged conduct of the wife and her solicitor. However, it is not appropriate for this appeal to be used in that way.
His Honour’s reasons for judgment are entirely orthodox in his reference to authority, his recitation of the relevant legal principles, and his application of those principles to the facts of this case, including a careful and thoughtful evaluation of the merits of the appeal which are said to require a stay of all proceedings.

Appeal no. NOA 12 of 2018

In our view this appeal should also be dismissed, and because it does not raise any question of general principle, the reasons for that decision can be in short form (s 94(2A) of the Act).
Given his Honour’s long involvement with these parties, he did not need to set out at length the background to the proceedings, and instead he referred to his previous decisions where that was done (at [3]).
His Honour then identified the relevant statutory provisions, namely s 117 of the Act, and r 19.18 of the Family Law Rules 2004 (Cth), and the applicable legal principles (at [4] – [5]).
Next, his Honour addressed the relevant factors arising pursuant to s 117(2A) of the Act, and concluded as follows:
12.Weighing those matters in the balance I am satisfied that the usual rule in relation to costs is displaced, and there should be an order for costs against the husband.
There are 11 grounds of appeal relied on by the husband, and they can be summarised as follows:
a)Grounds 1 – 3: the Judge erred in denying the husband procedural fairness and/or natural justice and in denying the husband a right to a fair hearing of any further matters to be considered by submission or otherwise.
b)Ground 4: the Judge erred in failing to consider or properly consider the conduct of the wife and her solicitor as required by s 117(2A)(c) of the Act.
c)Ground 5: the Judge erred in that he failed to consider or properly consider that the proceedings were commenced by way of a fraudulent application.
d)Ground 6: the Judge erred in making the decision without calling for further submissions on the fraudulent application issue.
e)Ground 7: the Judge erred in making an “In Chambers” decision for costs that effectively rewards the wife and her solicitor for the deceitful conduct.
f)Ground 8: the Judge erred in failing to make an order in the husband’s favour in light of the evidence of fraud and perjury on the part of the wife and her solicitor.
g)Ground 9: the Judge erred in making a “further decision” in regard to costs in the matter while the Full Court was considering an appeal of the Judge’s previous decision to not award costs to the husband under s 118 of the Act.
h)Ground 10: the Judge erred in making a “further decision” in the matter while the Full Court was considering an appeal of the Judge’s previous decision and has directly caused this appeal to be lodged.
i)Ground 11: the Judge erred in making an order that contains such significant factual errors as to render it invalid.
In relation to Grounds 1 – 3, there is nothing to which the husband has directed this Court that demonstrates that he was denied procedural fairness by the trial judge.

Although his Honour dealt with the application in chambers, which his Honour was entitled to do, he made directions allowing each party to file whatever material they wished that was relevant to the application.
As to Ground 4, there was no conduct of the wife or her solicitor in the context of the recusal application that his Honour dealt with, that his Honour needed to consider. We also note in this regard that the husband has again attempted to inappropriately use this appeal as a vehicle to raise his long-standing complaints about the conduct of the wife and her solicitor. However, it was unnecessary for his Honour to consider that in determining this application for costs.
Grounds 5 – 8 have no merit because they assume a positive finding that the proceedings were initially commenced by the wife by filing a fraudulent application for an enforcement warrant, with a perjured affidavit. Further, and specifically in relation to Ground 8, we note that the husband did not seek any order for costs.
As to Grounds 9 and 10, likewise they have no merit. The fact that an appeal or appeals relating to other matters may be ongoing does not prevent his Honour from hearing and determining the wife’s application for costs.
Finally, there is Ground 11, but that should also fail. No alleged factual errors were identified, and in any event, a careful reading of his Honour’s reasons for judgment do not demonstrate any such error.

Conclusion

In the circumstances, we propose to dismiss the application for leave to appeal in appeal no. NOA 42 of 2017, and to dismiss the appeal in appeal no. NOA 12 of 2018.

Costs

Given the outcome of the appeals, the wife seeks an order for costs fixed in the sum of $3,625.10.
The husband opposes that order.
Section 117 of the Act governs the issue of costs, and although the primary position is that each party should bear their own costs (s 117(1)), s 117(2) provides that costs can be ordered where there are circumstances that justify such an order.
Here, there are such circumstances in that the husband has been wholly unsuccessful in the appeals (s 117(2A)(e)), and accordingly we would propose to make an order for costs as sought by the wife.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ryan & Kent JJ) delivered on 25 October 2018.

Associate:

Date: 25 October 2018