Newett & Newett
[2021] FamCAFC 55
•22 April 2021
FAMILY COURT OF AUSTRALIA
Newett & Newett [2021] FamCAFC 55
Appeal from: Transcript of hearing on 1 December 2020;
Newett & Newett and Anor (No. 6) [2020] FamCA 1056
Appeal number(s): NOA 84 of 2020;
NOA 85 of 2020File number(s): BRC 2179 of 2018 Judgment of: TREE J Date of judgment: 22 April 2021 Catchwords: FAMILY LAW – APPLICATIONS IN AN APPEAL – SECURITY FOR COSTS – Where the father seeks security for his costs of the appeals brought by the mother – Where both the mother’s appeals lack merit and are futile – Where the mother’s financial means are likely to be insufficient to meet an order for costs against her – Where the relevant matters strongly militate in favour of an order for security for costs in favour of the father – Applications granted.
FAMILY LAW – EVIDENCE – Where the mother objected to affidavit evidence obtained by the father in support of his applications for security – Where that evidence related to the mother’s civil and criminal proceedings in the State courts – Privacy – Where proceedings in State courts are public and are able to be searched and copied – Where it is an essential part of the openness of the administration of justice that State proceedings be conducted in public – Where no breach of privacy found – Where certain statements in the affidavit struck out on the basis of inadmissible hearsay.
FAMILY LAW – COSTS – Where the father is in a better financial position than the mother – Where his applications for security for costs were successful – No order as to costs of the Applications in an Appeal.
Legislation: Evidence Act 1995 (Cth) ss 75, 138
Family Law Act 1975 (Cth) ss 67ZBA, 67ZBB, 117
Justices Act 1886 (Qld) s 154
Criminal Practice Rules 1999 (Qld) r 57
Uniform Civil Procedure Rules 1999 (Qld ) rr 980, 981
Cases cited: Atkins & Hunt (Security for Costs) (2015) FLC 93-646; [2015] FamCAFC 66
John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
Luadaka v Luadaka (1998) FLC 92-830; [1998] FamCA 1520
Newett & Newett (No. 5) [2020] FamCA 1023
Newett & Newett [2020] FamCAFC 76
Re F: Litigants in Person (2001) FLC 93-072; [2001] FamCA 348
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Russell & Close [1993] FamCA 62
Division: Appeal Division Number of paragraphs: 64 Date of hearing: 9 March 2021 Place: Cairns Solicitor for the Applicant: Damien Greer Lawyers The First Respondent: Litigant in person The Second Respondent: Litigant in person ORDERS
NOA 84 of 2020; NOA 85 of 2020
BRC 2179 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR NEWETT
Applicant
AND: MS NEWETT
First Respondent
MS ADLAM
Second Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
22 APRIL 2021
THE COURT ORDERS THAT:
1.Within 30 days of the date of these orders, the first respondent mother lodge with the Registry Manager in the Brisbane Registry, Family Court of Australia the sum of $15,000 as security for costs of her appeal in appeal no. NOA 84 of 2020.
2.Within 30 days of the date of these orders, the first respondent mother lodge with the Registry Manager in the Brisbane Registry, Family Court of Australia the sum of $15,000 as security for costs of her appeal in appeal no. NOA 85 of 2020.
3.In the event that the first respondent mother does not comply with Order 1, appeal no. NOA 84 of 2020 be stayed.
4.In the event that the first respondent mother does not comply with Order 2, appeal no. NOA 85 of 2020 be stayed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newett & Newett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
These are the reasons for judgment in relation to competing Applications in an Appeal for security for costs between Mr Newett (“the father”) and Ms Newett (“the mother”). The mother has brought two appeals from orders made by the primary judge on 1 December 2020 (NOA 84 of 2020) and on 9 December 2020 (NOA 85 of 2020) respectively.
On 21 December 2020, the father filed in each appeal an application seeking security for his costs of the appeals from the mother.
The mother resists those applications, and submits that they should be dismissed with costs. Failing their dismissal, the mother seeks in turn, for the father to provide security for her costs of the father’s Applications in an Appeal.
Ms Adlam (“the maternal grandmother”) is the second appellant to the mother’s appeals, however although she appeared, did not otherwise participate in these interim applications.
On 9 March 2021, I heard the competing applications, and reserved my decision. This is that decision.
BACKGROUND
The mother is presently 43 years of age, and the father is 45. They commenced cohabitation in 2005, were married in 2008, and separated in January 2018. Their three children are presently aged ten, eight and six years respectively.
Some of the procedural history of this matter was set out in my reasons for judgment delivered in Newett & Newett [2020] FamCAFC 76 at [6]–[20] (albeit in relation to an appeal against earlier orders) as follows:
6.To understand the nature of the hearing conducted by the primary judge, it is necessary to have a little more history of the matter.
7.Since separation, the mother has made a number of allegations against the father, including that the father has sexually abused the children.
8.The proceedings were commenced by the father in the Federal Circuit Court on 1 March 2018. By her Response filed 10 April 2018, the mother sought interim parenting orders, to the effect that she have sole parental responsibility for the children, who would live with her, and spend time with the father on alternate weekends. On 18 April 2018, Judge Cassidy made interim orders providing for the parties to have equal shared parental responsibility, for the children to live with the mother, but spend five nights per fortnight with the father. No appeal was brought from those orders.
9.On 10 July 2018, a family report was released, which recommended that “[the mother] engage with a psychiatrist and possibly also her psychologist to assist in the management of anxiety, particularly with respect to her beliefs about [the father’s] capacity to care for the three girls into the future”.
10.On 13 November 2018, the matter was listed for trial to commence on 17 June 2019 in the Federal Circuit Court in Brisbane.
11.Then, on 6 February 2019, the father withheld the children, following discussions with their nanny about concerns she had surrounding the welfare of the children when in the mother’s care.
12.The father then filed an application on 7 February 2019, seeking a change of residence for the children, and following a hearing on 26 February 2019, on 6 March 2019, further interim parenting orders were made in the Federal Circuit Court for equal shared parental responsibility, and for the children to live with the father, but spend two hours per week supervised with the mother. The mother appealed from these orders.
13.On 18 April 2019, the mother filed a further Application in a Case, by which she sought an order staying the 6 March 2019 orders until her appeal was determined, and in the interim, for the children to return to her care, but after a moratorium, resume spending time with the father under the orders of Judge Cassidy of 18 April 2018. On 24 May 2019, that Application in a Case was dismissed by Judge Spelleken.
14.By then, by Application in a Case filed on 22 May 2019, the mother had sought that the trial date be moved from June to November 2019. That application was listed for the first day of trial on 17 June 2019.
15.On 17 June 2019 the mother’s appeal from the orders of 6 March 2019 was dismissed, due to the fact that the final hearing of the primary proceedings was set down to commence before a judge that day, hence rendering the appeal futile (Newett & Newett [2019] FamCAFC 102).
16.Later that day, when the trial was called on, it transpired that the primary judge was conducting another trial. However, he heard from the parties, and investigated whether or not the matter was actually ready for trial, which appeared problematic given that there were 900 pages of the mother’s further material which had not been provided to either of the two relevant experts. In the course of the discussion on that day, the primary judge suggested that the mother, who self-represented, overnight should “just dot point the points that you want to make as to why the adjournment should happen and any other orders that you’re seeking on an interim basis” (Transcript 17 June 2019, p.9 lines 22–24).
17.When the matter was then called on the following day, the mother handed such a document up to the court (Transcript 18 June 2019, p.3) although it does not appear to have been marked or otherwise retained on the court file, perhaps because it seems that his Honour was without an associate at that particular moment.
18.The mother’s application for an adjournment was supported by the Independent Children's Lawyer. However during argument, the primary judge, on more than one occasion, told the mother that, if the trial was adjourned, he would not be undertaking a further interim hearing (Transcript 18 June 2019, p.9 lines 8–26, and p.11 line 1). That said, the father’s (and Independent Children's Lawyer’s) position was that, if an adjournment was granted, then pending the trial commencing, there needed to be an interim determination in relation to whether the father should have sole parental responsibility, whether he should be permitted to change the children’s school, and whether the Suburb C property should be sold. Arguments were advanced by the parties in relation to those matters.
19.Ultimately, his Honour intimated that he intended to adjourn the trial (Transcript 18 June 2019, p.37 line 7), before saying “I will reserve my decision about these things today that we’ve discussed – that is, the sale of the property, the moving of the school and whether there should be an order for sole parental responsibility, and you will get my decision very soon about that” (Transcript 18 June 2019, p.41 lines 5–8).
20.In due course the primary judge delivered his reserved judgment on 12 August 2019.
The interim orders of 12 August 2019 provided for the father to have sole parental responsibility for the children, for the children to live with the father and spend supervised time with the mother, and for the sale of the former matrimonial home in which the mother was residing.
As a result of my judgment in that appeal, the appeal was allowed, the orders of 12 August 2019 set aside, and the interim parenting and property applications were remitted for rehearing. The matter was later transferred to the Family Court of Australia. Thereafter it was set down for a final hearing in relation to both parenting and property matters to commence on 30 November 2020.
On 18 November 2020, the mother filed an Application in a Case seeking, inter alia, that the trial proceed only as an interim hearing, and sought some interim property orders and variations to the then current interim parenting orders.
On 30 November 2020, consequent upon the primary judge giving leave for the Independent Children’s Lawyer to withdraw, his Honour adjourned the parenting trial, but determined to proceed with the property trial (Newett & Newett (No. 5) [2020] FamCA 1023). No appeal has been brought from those orders.
On the morning of 1 December, the mother made a further application to adjourn the property trial on the basis that she had not received disclosure material provided to her from the father, despite her former lawyers having received those documents. The primary judge refused to adjourn the property hearing, however briefly stood the matter down to afford the mother the opportunity to read the disclosed documents. That did not occur due to the mother leaving the court precinct during the adjournment, and not returning. Upon application by the father’s counsel, the property hearing proceeded in the mother’s absence, whereupon his Honour reserved his decision in relation to property matters. As the mother was not present to prosecute her application filed 18 November 2020, it was dismissed. His Honour further discharged all previous orders requiring the attendance of subpoenaed witnesses at the parenting trial. Those are the orders subject of the mother’s appeal by NOA 84 of 2020.
On 3 December 2020, the mother filed another Application in a Case seeking, inter alia, the reopening of her previous application filed 18 November 2020, for new evidence to be adduced in the proceedings, and for the father to be restrained from having any contact with the mother, maternal grandmother and the children until trial. The further evidence sought to be adduced were affidavits of the mother and maternal grandmother deposing to conduct of the parties following the hearing on 1 December 2020.
On the weekend of 5 and 6 December 2020, the children spent time with the mother pursuant to the then current interim orders made on 17 June 2020 and 2 October 2020. On Sunday 6 December 2020, when the children were due to be returned to the father, the mother advised the contact centre and the father’s solicitor that she would not be returning them. On the following day 7 December 2020, the father made an application for a recovery order, and on 9 December 2020, the recovery order was made by the primary judge and ex tempore reasons for judgment were delivered. The primary judge also suspended any further time the children spend with the mother until further order. Those are the orders subject of the mother’s appeal by NOA 85 of 2020.
THE MOTHER’S EVIDENTIARY OBJECTION
Amongst the material which the father sought to rely upon in the hearing before me, was an affidavit filed in appeal NOA 85 of 2020 on 1 March 2021. Paragraph 4 of that affidavit detailed the results of enquiries made on 12 February 2021 by the father in relation to eight proceedings which had been commenced by the mother, in either the Magistrates Court or the Supreme Court of Queensland. These comprised a claim in the Supreme Court against a psychiatrist who had been appointed in Family Court parenting proceedings, a private criminal prosecution against the Queensland Commissioner of Police, a private criminal prosecution against a police sergeant, three private criminal prosecutions against two witnesses in the Family Court proceedings and the husband of one of those witnesses, and private criminal prosecutions which the mother commenced against the Independent Children’s Lawyer and the father’s solicitor. It was said that all of those proceedings have been dismissed, together with costs orders against the mother, none of which costs orders have been satisfied. The total sum involved exceeds $84,000.
The mother objected to the entirety of that material on the basis that it was illegally obtained, such illegality being said to be founded in breach of her privacy. When pressed as to the basis for the claim for privacy, the mother was unable to refer to any statute or authority, but rather protested that it was my obligation to assist her in that regard as a self-represented litigant.
I am far from persuaded that the obligations imposed upon a court dealing with a self-represented litigant as explained in Re F: Litigants in Person (2001) FLC 93-072 extend to undertaking research to determine the merits of a claim boldly and baldly advanced without any reference to any legal basis for it, but to cover the eventuality that I am wrong as to that, I will briefly deal with and rule upon the mother’s objection now.
Relevantly, s 138 of the Evidence Act 1995 (Cth) (“Evidence Act”) provides as follows:
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
…
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note: The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.
Before turning to the individual pieces of litigation which paragraph 4 of the 1 March 2021 affidavit refers to, as a general proposition, the courts of Queensland are public courts and what occurs in them, particularly orders made by those courts, are public and are able to be searched or copied by any person depending on relevant laws (see Uniform Civil Procedure Rules 1999 (Qld), rr 980 and 981 for civil proceedings, and the Justices Act 1886 (Qld), s 154 and Criminal Practice Rules 1999 (Qld), r 57 for criminal proceedings). That is all the more the case in the case of criminal prosecutions, which comprise seven of the eight proceedings commenced by the mother. It is an essential part of the openness of the administration of justice that it be conducted in public (John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477).
Turning then to the individual pieces of litigation, the first is the mother’s unsuccessful claim against the psychiatrist who assessed the parties in these proceedings. It is said that the mother’s Amended Statement of Claim was struck out by the judge on 20 November 2020 with costs, and that “documents disclosed during the Family Court proceedings indicate that these costs exceed $50,000.”
The orders of the Supreme Court of Queensland referred to in paragraph 4 and annexed to the affidavit are matters of public record and are able to be accessed upon request (Uniform Civil Procedure Rules 1999 (Qld), rr 980 and 981). The source of the information as to the quantum of the psychiatrist’s costs is explicitly from the mother herself. However the fact that “those costs remain unpaid” is apparently directly sourced from an undisclosed person or database either employed, or maintained, by the Supreme Court of Queensland.
Whilst in interim applications such as this, s 75 of the Evidence Act only requires evidence of the source of the hearsay information to be adduced, I am not satisfied that simply saying that the source was either the Magistrates Court or the Supreme Court of Queensland, is a sufficient identification. However it seems to me that only means that the statement “those costs remain unpaid” should be struck-out, as the balance of paragraph 4(a) is sourced from public records.
Turning then to the two private criminal prosecutions against the Queensland Commissioner of Police and a Queensland police sergeant, the two sub-paragraphs both annexe a copy of the private criminal summons, but then go on to say “that summons was dismissed on 9 November 2020 with the appellant ordered to pay costs of $500.00. Those costs remain unpaid.” Absent some specificity to the source of that information, it is inadmissible hearsay and will not be admitted.
Turning then to the three private criminal prosecutions against two witnesses in the Family Court proceedings and the husband of one of them, again the three sub-paragraphs annexe the relevant initiating proceedings, but go on to say “that summons was struck-out on 13 January 2021.” The source of that information is not adequately disclosed and I will not admit into evidence the last sentence of paragraphs 4(d), (e) and (f).
Next is the private criminal prosecution against the former Independent Children’s Lawyer in the proceedings. Like the affidavit does in relation to the other proceedings, whilst the summons is attached, the paragraph continues “that summons was stuck-out on 10 December 2020 and the appellant was ordered to pay [the Independent Children’s Lawyer’s] costs of $13,365. Those costs remain unpaid.” Given the failure to annexe any order to that effect, or the sufficient identification of the source of the information that those costs remain unpaid, I decline to admit into evidence the final two sentences of paragraph 4(g).
Finally, there is the private criminal prosecution against the father’s solicitor. Although the affidavit adopts a similar form to that in relation to the Independent Children’s Lawyer (i.e. the summons is annexed but its fate, the quantification of costs and their non-payment, is not specifically sourced) here, given that the prosecution involved related to the father’s own solicitor, I am satisfied that, although not altogether beyond criticism, nonetheless the source is sufficiently identified, albeit perhaps largely by inference. I therefore admit into evidence the full contents of paragraph 4(h).
THE APPLICATIONS FOR SECURITY FOR COSTS GENERALLY
In each appeal, the father seeks his security for costs in the amount of $15,000, i.e. a total of $30,000.
Section 117(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that the Court may make such order with respect to security for costs as it considers just, whether by way of interlocutory order or otherwise.
The principles governing an application for security for costs in an appeal are well settled (Luadaka v Luadaka (1998) FLC 92-830; Atkins & Hunt (Security for Costs) (2015) FLC 93-646). Those authorities make plain that the following factors are relevant considerations in the exercise of the discretion, including:
(a)The means of an appellant to satisfy an order for costs if he or she is unsuccessful;
(b)The financial circumstances of both parties: impecuniosity of the appellant is not alone sufficient to justify an order for costs but nor does it prevent an order being made if there are other grounds which justify an order. As regards the respondent, an order is not confined to cases where the respondent (the applicant for security) does not have the means to meet his or her costs – in appropriate circumstances an order may be made even if the applicant for security has the means to meet his or her costs;
(c)The prospects of success or merits of the appeal – ordinarily the Court will not undertake a detailed assessment of the likelihood of the appellant’s success unless it can be demonstrated that there is a high probability of success or failure;
(d)Whether the appeal is bona fide, whether it is genuine and not trivial, vexatious or a sham;
(e)Whether an order for costs would be oppressive or stifle the litigation: that prospect does not require a refusal of the application but is often a significant matter;
(f)Whether or not the litigation involves a matter of public importance (if so, this will militate against the making of an order);
(g)Whether or not there has been delay in bringing the application for security and consequent prejudice to the respondent (appellant);
(h)Other relevant matters may include any difficulties of enforcing an order for costs and the amount of costs to be incurred.
In both applications for security, the mother relied upon a dizzying array of material. Numerous affidavits and previous submissions were read, in addition to the 42 pages of the mother’s Amended Written Submissions filed on 5 March 2021 in these applications themselves. Unfortunately, very little of that material was responsive in any logical way to the father’s applications for security for costs, but rather digressed into the several theories which the mother appears to hold dear as an explanation for her present circumstances, seemingly involving collusion and conspiracies by a number of persons, including even the primary judge, of whom it is said that, by refusing to adjourn the hearing of the property proceeding, his Honour “abused and tortured” the mother. Later it is said that the primary judge “acted under dictation,” seemingly from the father and his legal team “in a form of ‘illegal match fixing’ amongst legal associates and colleagues.”
Later still in her submissions the mother invites the Court to, of its own volition, make “vexatious litigation orders” against the father and his solicitor, and announces that “I make ex-tempore application for such order.”
The mother further alleges that the father’s solicitor and the former Independent Children’s Lawyer “planned and premeditated [the] abduction” of the children from her and later still foreshadows that if the primary judge in future refuses to recuse himself from the case, that “will form a third Appeal or possible Writ of Prohibition.”
A little refreshingly, at paragraph 50 of the Amended Written Submissions, the mother commences to address the applications for security for costs, including referring to uncontroversial statements of principle. However unfortunately, by paragraph 56, the mother appears to be addressing an unmade application for expedition of the hearing of her appeals, and trails off to a further dalliance with the conspiracy theories she entertains in relation to this litigation. True, thereafter the mother returns to a discussion of relevant law at paragraph 69, but unfortunately thereafter only addresses the considerations under s 117(2) of the Act and does not address the relevant discretionary considerations which she correctly identified at paragraphs 50, 53 and 54 of her submissions.
THE APPLICATION FOR SECURITY IN APPEAL NO. NOA 84 OF 2020
Overview
It will be remembered that this appeal relates to the dismissal of the mother’s Application in a Case filed 18 November 2020. The precise order being appealed that his Honour made on 1 December 2020 was as follows:
5. That the mother’s Application in Case filed 18 November 2020 be dismissed, noting that the mother has failed to prosecute her claim for either further interim relief or a variation of current interim orders.
The means of the mother to satisfy an order for costs if she is unsuccessful
I did not understand it to be controversial that the mother is without means to satisfy any costs orders that may be made against her in this appeal. Indeed I note that, without objection, the solicitor for the father told me during the course of the hearing that, at the property trial, leaving aside superannuation, there were no assets, but only liabilities. Whilst it appears that the mother may have some slender funds to cover emergencies, they would not appear to be, even on the rosiest of views, sufficient to meet any likely order for costs.
The financial circumstances of the parties
It appears as though the father is in receipt of income, whereas the mother has limited income, perhaps in large part because she is presently a student. I am satisfied that the father is in a better financial position than the mother.
The merits of the appeal
The grounds of appeal annexed to the mother’s Notice of Appeal filed 14 December 2020 run to some 14 paragraphs. A little confusingly, given that no property orders were made by the primary judge on 1 December 2020, the seven grounds advanced under the heading “Financial and Property Proceedings” are simply impossible to understand, particularly given that judgment in the property proceedings remained reserved on 9 March 2021. I conclude that those grounds are presently wholly without merit. Whether they may form a valid vehicle for challenge to the primary judge’s ultimate decision in the property proceedings, is a matter upon which I do not express any opinion.
Turning then to the grounds of appeal articulated under the heading “Children’s Proceedings” they are as follows:
1.The learned trial judge erred in Negligence by failing to run the Change of Circumstances (Rice v Asplund) proceeding in the first instance per the Mother's application (and per the directions in Communication by the Judge's Associate to the Parties); and therefore fully exercise the appropriate standard and duty of care in the immediate conduct and management of Child proceedings required to protect Child Victims of Family Violence; where physical and psychological violence by the Father against the Children had been identified in the Family Report by an Officer of the Court, and denigration of the Mother by the Father to the Children had occurred in the presence of a witness prescheduled to be cross-examined in the week of trial.
2.The learned trial judge erred in Negligence by failing to protect the Children from immediate and obvious risk of Harm, immediately gather and/or test the evidence in line with s67ZBA and s67ZBB Family Law Act 1975, upon filing of the Notice of Risk of Child Abuse filed 3 November 2020.
3.The learned trial judge erred at law by not applying the rule within Russell v Close (1993) unreported judgement; when it was made abundantly clear to His Honour the Children’s Mother was being repeatedly traumatised and violated by the Father in his constant abuse and neglect of the Children where evidence had been supplied to the Court on numerous occasions; where the acts impacted her PTSD condition, and affected her Courtroom presentation, attitude and behaviours, which were not then granted adequate consideration.
4.The learned trial judge erred in Negligence by failing consider the alternatives of engaging the Intervenor as temporary responsible guardian of the Children until Trial to protect the Children from immediate and obvious risk of Harm and Neglect posed by the Father, per evidence before the Court, particularly evidence adduced by its own Court Officers.
5.The learned trial judge made jurisdictional error; by determining the Husband to be the recipient of a State Domestic Violence Order that complied with any of the definitions within s4AB Family Law Act and could therefore be utilised in the Family Court as evidence of violence by the Wife towards the Husband; where the reasons for judgment of the in force Domestic Violence Order were not consistent at all with s4AB Family Law Act 1975, and remained heavily challenged by the Wife.
6.The learned trial judge failed to make a Family Violence declaration in favour of the Wife given such admissions and evidence in affidavit before him regarding acts of torture, organised child stealing, cyberstalking and other acts of family violence.
7.The learned trial judge erred by determining the Husband was not a perpetrator of Family Violence, where prima facie evidence on file before the Honourable Court deposed in many of the Mother's affidavits, and criminal admissions by the Father in affidavit and in transcripts of other jurisdictional proceedings over a three year period, demonstrated the violent acts of the Husband against the Wife met the definitions found within s4AB Family Law Act 1975, and should therefore be properly assessed in the Family Court
(As per the original)
Even leaving aside the infelicity of drafting of those grounds, especially by the repeated reference to “the learned trial judge erred in negligence”, none of these grounds deal with the fundamental reason which was relied upon by the primary judge for the dismissal of the mother’s Application in a Case filed 18 November 2020, namely her departure from the proceedings, and hence her failure to prosecute the application. At page 69 of the transcript (which it was agreed forms the reasons for judgment in the matter) at lines 17–41, it was said as follows:
HIS HONOUR: Or whether the ICL thinks it’s relevant, or whether the mother thinks it’s relevant. The second issue is that the mother’s application in a case effectively sought that there be a revisiting of the parenting orders. She’s not here to prosecute it.
[COUNSEL FOR THE FATHER]: No.
HIS HONOUR: And it may be that she knew when she left that that was the case; I don’t know. But there’s no application by you to vary the interim orders either, as I understand it.
[COUNSEL FOR THE FATHER]: No.
HIS HONOUR: Leaving this matter for an indeterminable time for further treatment is but it seems to me if the mother is not here to prosecute her application, and she isn’t, and you have no application to change the interim orders, then the interim orders will just continue.
[COUNSEL FOR THE FATHER]: Yes.
HIS HONOUR: But I thought I – now, because I otherwise propose to dismiss the application in a case, partly for want of prosecution, partly because it no longer has any utility because I’ve dealt with the matter.
[COUNSEL FOR THE FATHER]: Yes. I don’t oppose your dismissing it at all.
Given that reasoning, it is not to the point to say that the primary judge should have considered either the rules in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) or Russell & Close [1993] FamCA 62, or have had regard to s 67ZBA or s 67ZBB of the Act, or indeed any of the other matters raised by way of challenge to the primary judge’s orders. The simple fact is that the mother was not present on the occasion when the application was listed for disposition.
Also relevant to the question of the merits of the appeal, is what appears to be its inevitable futility, in that I was told without objection, that the mother has now brought a further application for interim parenting orders, which at the time of the hearing before me, was shortly due for hearing before the primary judge. Therefore even if the primary judge was wrong to dismiss the mother’s Application in a Case filed 18 November 2020 as he did on 1 December 2020, the appeal is futile given the mother has again pressed for a review of the interim parenting orders by way of a separate further application.
I conclude that the prospects of success of the mother’s appeal are slender.
Bona fides of the appeal
I accept that the mother is bona fide in bringing this appeal, albeit her bona fides are unfortunately not affected by insight.
Would an order for costs stifle the litigation
I did not understand it to be controversial that an order for costs would practically stifle the litigation.
Other considerations
The litigation does not involve a matter of public importance, there has been no delay in bringing the application, and it did not appear to be controversial that the likely costs of $15,000 in the appeal would be unenforceable, as the mother is in a poor financial position.
Evaluation
I am satisfied that the demonstrable lack of merit to the appeal, combined with the likely inability of the mother to meet any order for costs that may be made in the appeal if it were dismissed, strongly militates in favour of an order for security, and I will so order.
THE APPLICATION FOR SECURITY IN APPEAL NO. NOA 85 OF 2020
Overview
Many of the observations which I made generally in relation to appeal no. NOA 84 of 2020 also pertain to appeal no. NOA 85 of 2020. Particularly, the observations and findings which I made in relation to the capacity of the mother to satisfy an order for costs if she is unsuccessful in the appeal, the parties’ financial circumstances, whether the litigation involves a question of public importance, whether there has been delay and whether there would be difficulty in enforcing an order for costs, equally apply to this appeal. I will therefore only address the prospects of the appeal succeeding, the mother’s bona fides in bringing the appeal, and whether or not an order for costs would stifle the appeal.
The merits of the appeal
It will be recalled that this appeal arises out of the primary judge making a recovery order on 9 December 2020. By then the mother had filed an Application in a Case on 3 December 2020 which sought to revisit the interim parenting arrangements for the children, such that they would live with the mother.
Whilst it is unnecessary to recite all of the grounds of appeal, in substance what the mother appears to complain of is that her Application in a Case filed 3 December 2020 ought to have been determined prior to the father’s Application in a Case filed 7 December 2020. Her grounds of appeal appear to contend that, by doing so, the primary judge was procedurally unfair (Grounds 1, 10 and 14), demonstrated apprehended bias (Grounds 2, 11 and 13), failed to address the risk of harm to the children by making the recovery order (Grounds 3, 4, 5, 6, 8 and 9), made jurisdictional error in relation to the rule in Rice and Asplund (Ground 7) and failed to consider other alternatives such as ordering the children into the care of the maternal grandmother (Grounds 12, 13 and 14).
In the primary judge’s ex tempore reasons for judgment at [9] his Honour referred to the mother’s Application in a Case filed 3 December 2020 as follows:
In my view, the application of 18 November is not properly before me today, but, in any event, I have allowed the mother, almost uninterrupted, to identify why she says the incident which I now discuss justified her actions. I have heard those submissions. I have read her affidavit that she relies upon in respect of her Application in a Case filed 3 December and the Affidavit of her mother, Ms Adlam. It is fair to say that there is a repeat in the mother’s affidavit, at least, of some of the allegations earlier made by her which are still yet to be tested.
However that appears to be the only reference to the mother’s Application in a Case and it seems as though, although clearly advertent to that application, the primary judge thereafter only proceeded to determine the father’s Application in a Case seeking a recovery order. That said, his Honour plainly concluded that the best interests of the children required such an order (at [26]).
Even accepting that the primary judge’s reasons were, of necessity, delivered ex tempore, I could not conclude that the appeal is wholly without merit, in that his Honour, in reality, simply refused to deal with the mother’s application, which had been filed first in time.
However again the question of futility looms large. Firstly, the recovery order has now been acted upon, and the children are in the father’s care. Therefore the appeal against that order is likely pointless. Rather it is the suspension of the mother’s time with the children which the appeal should properly focus upon, and as I have already observed, as at the time of the hearing before me, further interim parenting proceedings were to shortly proceed before the primary judge.
Therefore whilst the grounds of appeal may have merit, I am far from persuaded that the outcome of the appeal is likely to see it succeed, if it is, by the time of the disposition of the appeal, futile, in that it has been overtaken by subsequent events.
Bona fides of the appeal
Again I am satisfied that the mother is bona fide in bringing this appeal, although again she suffers from a lack of insight.
Would an order for costs stifle the litigation
As in the first application, again I am satisfied that it is nigh inevitable that an order for security will stifle the appeal.
Evaluation
Much like appeal no. NOA 84 of 2020, although to require security for the father’s costs will stifle the appeal, it is likely futile, and the mother would be unable to be likely to satisfy an order for costs if one were made if the appeal is dismissed. Weighing those matters in the balance again tells strongly in favour of an order for security in this case.
THE MOTHER’S APPLICATION MADE BY RESPONSE TO APPLICATION IN AN APPEAL
By paragraphs 2 and 3 of her Response filed 22 January 2021 in appeal no. NOA 84 of 2020, the mother sought an order for security for costs against the father in the event that the application succeeded.
It is suffice to deal with that application to say that the father is not the moving party in the appeal, and there is no possible basis for ordering security against him, particularly given the lack of merit of the mother’s appeal. Further the consequence sought if the father fails to provide that security, namely that his Application in an Appeal filed 21 December 2020 be dismissed, is nonsensical, because that was the very application I was dealing with at the hearing. Paragraphs 2 and 3 of the mother’s Response to Application in an Appeal filed 22 January 2021 will be dismissed.
Paragraph 4 of the mother’s Response sought orders restraining the father from filing any future applications for security for costs “in any future [a]pplications to the [c]ourt in relation to the BRC217[9]/2018 Family Court proceedings”. The mother appears, in drawing this proposed order, to not understand that this Court is exercising an appellate jurisdiction, and is not sitting as a first instance court. Even if I had power to make the order sought, I would not do so, as a sufficient basis for it has not been established on the evidence. Particularly, the present applications for security for costs have been demonstrated to be meritorious, and I cannot conceive of any basis for restraining the father from making further applications, particularly if the mother were to bring further unmeritorious appeals.
Finally the mother seeks that the father pay her costs or that they be reserved. There is no basis for either order, since the mother has failed in resisting the father’s applications, and there is no benefit to deferring the question of the determination of costs.
COSTS
In the event that the applications succeeded, the father sought an order for costs.
I have considered the matters addressed in s 117(2A) of the Act. Particularly the father has succeeded in his applications, but he is in, as I understand it, a better financial position than the mother. Further, an important matter which I take into account is that the father’s success in his applications likely means that he will be spared the haemorrhaging of further legal costs in the appeals.
Weighing the relevant matters in the balance, does not persuade me that the usual order, namely that both parties should bear their own costs, should be departed from in this case. I decline to make any order for costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 22 April 2021
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