NORRIS & MATTHEWS
[2017] FamCAFC 233
•13 November 2017
FAMILY COURT OF AUSTRALIA
| NORRIS & MATTHEWS | [2017] FamCAFC 233 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks expedition of her appeal against parenting orders – Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PREPARATION OF APPEAL BOOKS – Where the mother sought an order that the father be responsible for the preparation and costs of the appeal books – Where the mother has purchased the relevant transcript – Where there is considerable contention about the mother’s financial state – Where there is no reason why the burden of preparing the appeal books should shift to the father – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the application is brought bona fide – Where the mother is bankrupt in Australia – Where it cannot be found that an order for security for costs would stifle the appeal – Security for costs ordered. |
| Family Law Act 1975 (Cth) s 94 Family Law Rules 2004 (Cth) r 12.10A |
| Sawer & Sawer [2007] FamCA 140 |
| APPELLANT: | Ms Norris |
| RESPONDENT: | Mr Matthews |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 2226 | of | 2015 |
| APPEAL NUMBER: | EA | 86 | of | 2017 |
| DATE DELIVERED: | 13 November 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 7 November 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 June 2017 |
| LOWER COURT MNC: | [2017] FamCA 461 |
REPRESENTATION
THE APPELLANT: | In person (by telephone link) |
| COUNSEL FOR THE RESPONDENT: | Ms Carty |
| SOLICITOR FOR THE RESPONDENT: | Oliver Campbell Heslop Solicitors |
| SOLICITOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Batt (appearing as agent for Mr Scally, Legal Aid NSW Newcastle) |
Orders
The application for expedition of Appeal EA 86 of 2017 is dismissed.
The application that the respondent be responsible for and bear the costs of the preparation of the appeal books in Appeal EA 86 of 2017 is dismissed.
Upon the written undertaking given by the solicitor for the respondent that the solicitor will hold the ordered security in trust on account of any costs order that may be made in the appeal:
(a) The appellant shall pay to the solicitor for the respondent the sum of $20,000 as security for any costs ordered in the appeal to be held in accordance with the terms of the undertaking.
(b)In the event that the security as provided in Order 3(a) herein is not paid within 28 days of the date of this order then the appeal be stayed pending compliance with the order.
The costs of the application for security for costs are reserved to the appeal hearing.
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 Norris & Matthews 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 86 of 2017
File Number: NCC 2226 of 2015
| Ms Norris |
Appellant
and
| Mr Matthews |
Respondent
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Ms Norris (“the mother”) seeks that her appeal against parenting orders made by Austin J on 30 June 2017 be expedited. She further seeks that the father be responsible for preparing the appeal books save for the provision of transcript which she has already acquired.
Mr Matthews (“the father”) opposes the mother’s application that he be responsible for the appeal books. He also seeks that the mother be ordered to pay security for costs of the appeal in the sum of $35,000.
The parenting orders on appeal relate to the child of the mother and the father who was born on 13 November 2010. The orders relevantly provided that the father have sole parental responsibility for the child and that the child live with him. A notation to the orders explained that the orders “intentionally make no provision for the child to spend time or communicate with the mother” and that if, when and how such time or communication would occur were decisions that the father would make by reason of his having sole parental responsibility.
Background
The parties commenced their relationship in July 2008 and married in August 2009. The child was born in 2010. It appears that there is some dispute as to the date of separation, but it was an agreed fact that they continued to live at the same property until early August 2015.
In late August 2015 the father commenced parenting proceedings in the Federal Circuit Court of Australia and the matter was transferred to the Family Court of Australia in December 2015. It appears that there have been numerous Applications in a Case filed in the proceedings.
It is helpful to set out some history taken from the primary judge’s reasons.
In January 2016, while the principal parenting proceedings were awaiting hearing, interim consent orders were made between the parties which provided that they have equal shared parental responsibility and that the child live with the mother and spend substantial and significant time with the father, which included school holiday time and regular time during the school week. Notwithstanding the then current operation of an apprehended violence order for the protection of the mother and child, the orders were said to prevail over that order. On 9 December 2016 the mother’s interim application seeking an order that she be permitted to relocate the child’s residence to New Zealand was dismissed. A further interim application seeking the same relocation order was dismissed on 22 December 2016 and the parties were restrained from removing the child from Australia.
Those orders having been made, the father provided the child to the mother on Christmas Day so as to spend time with the mother on that day. The father expected the child to be returned on Boxing Day, however the mother did not return the child. Instead the mother went into hiding with the child and the father did not see the child for nearly two months.
In response the father sought a recovery order and the mother again sought orders to enable her to relocate the child’s residence to New Zealand. The mother’s application was dismissed. Recovery orders were made but were unable to be executed because the mother and child could not be found.
The mother took the child to school for the first time in 2017 in mid-February. The teachers notified the police and the father collected the child from school. She has been in the father’s care since that time.
The father then made an application for the child to live with him. Interim orders were made that the child live with the father and spend supervised time with the mother for two hours each week. The primary judge noted:
15. … Given the mother threatened to abandon the child and return alone to New Zealand if orders were made in those terms, provision was made for suspension of the child’s supervised visits with the mother if she failed to attend on two consecutive occasions. The mother moved to New Zealand within days of those orders being made, but she flies back to Australia to see the child, ensuring never to miss two consecutive visits and cause suspension of the orders.
(Footnotes omitted)
The primary judge also considered the issue of family violence. His Honour observed that when the parenting proceedings were commenced the father filed a Notice of Risk asserting that the mother had been physically violent towards him. The mother shortly afterwards filed a Notice of Risk raising similar allegations against the father. The issues raised in the notices were not judicially determined as the parties entered into the January 2016 consent orders.
The primary judge concluded that there was no risk of harm to the child from exposure to family violence nor did he find a need to protect the child from other alleged abuses while in the father’s care.
Ultimately his Honour found that the child could not have a relationship with both parents because it was apparent that the mother would not allow the child to have a relationship with the father if the child lived with her and if the child lived with the father, the mother indicated that she would not see the child.
It is also relevant to the Applications in an Appeal to note that the parties still have property proceedings on foot and the mother is a bankrupt pursuant to a sequestration order made in February 2017. The mother also lives in New Zealand and is a citizen of that country.
Expedition
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides for the expedition of appeals, although no criteria or considerations for making that determination are provided. Recourse is often had to r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) which addresses applications for expedition of hearings before a judge.
The considerations thus are:
·Whether the applicant has acted reasonably and without delay;
·Whether the application has been brought expeditiously;
·Whether there is any prejudice to the respondent; and
·Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment.
There can be no argument that the application was brought promptly.
It was argued that there would be prejudice to the father if the appeal was expedited because it allowed him less time in which to gather the funds necessary to meet the appeal. While it cannot be doubted that the appeal process is a costly one, the issue of expedition does no more than bring the attendant costs closer. I do not consider that this argument of itself would prevail against an order for expedition if otherwise appropriate.
The mother represents herself and thus her affidavit in support of the expedition application was somewhat less focussed on these issues and more focussed on an agitation of grievance and allegations against the father. Nonetheless, I understand the basis for the application to be that the child is not spending any face to face time with the mother and arrangements for electronic communication are unsatisfactory. The mother further contended that the father has been violent towards her and she also expressed a fear that he may be violent towards the child.
The mother also argued that there was considerable personal stress and anxiety on her by reason of the appeal and thus it should be expedited.
Nothing put in submissions nor in the mother’s affidavit persuades me that there is any circumstance of this matter which would cause it to take priority over other cases to their possible detriment.
The application for expedition will be dismissed.
Preparation of the appeal books
Although the mother has purchased the relevant transcript necessary for the appeal, she seeks an order that the father bear the cost of preparing the appeal books. In support of this application the mother referred to her “dire financial situation” and accused the father of “financial abuse”, although this assertion was undefined. The mother said that she borrowed the funds necessary to pay for the transcript and that she was “comfortable” with her being responsible for that expense. In her oral argument she said that the father should pay the costs of preparing the appeal books as it was only reasonable given what he had done to her.
There is considerable contention about the mother’s financial state. In her oral argument the mother asserted that she had been granted a disability pension. The father asserted that she has undisclosed assets and has acted in a way to minimise the value of assets held by her. This is staunchly denied by the mother. However, her affidavit contains no details or relevant evidence to support her bald assertion of financial difficulties.
The primary judge briefly alluded to the mother’s assertions about her assets in relation to the property proceedings at [48(c)], an unchallenged finding, in the course of making findings about the mother’s credibility. After referring to her evidence in which she denied knowing anything about a particular asset the father asserted she owned, his Honour said “[h]er denial was revealed to be a lie.”
I raise this point merely to demonstrate that the issue of what the mother’s assets, liabilities and resources are is far from clear. However, I am unprepared to conclude that her financial situation is as dire as asserted, or her ability to borrow the further sums necessary to complete the production of the appeal books foreclosed. The preparation of the appeal books is the responsibility of the mother and I see no reason why that burden should shift to the father.
This application will be dismissed.
Security for costs
The father sought an order that the mother provide $35,000 to be paid to the Registry, or the trust account of his solicitor, by way of security for any costs order that may be made against the mother in the event that the appeal was unsuccessful.
The principles governing an application for security for costs were set out by the Full Court in Sawer & Sawer [2007] FamCA 140 as follows:
19. The power in this Court to make an order for security for costs is to be found in s 117(2) of the Act, which is in the following terms:
If, in proceedings under this Act, the court is of [the] opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
…
21. The authorities establish that in exercising the discretion to order security for costs, it may also be relevant for the Court to consider in addition to the financial circumstances of the parties and the other five specific matters mentioned in s 117(2A), the following matters:
a) the prospect of success of the litigation;
b) whether the claim for security is made bona fide;
c) whether or not an order for security would stifle the litigation;
d) whether or not the litigation may involve a matter of public importance;
e) whether or not there has been a delay in bringing the application for security;
f)whether there would be difficulty in enforcing an order for costs
(Luadaka v Luadaka (1998) FLC 92-830; Jones and Jones (2001) FLC 93-080; Adult Guardian and Mother's Parents and B and Child's Representative (2002) FLC 93-116.)
Bona fides of the claim
The father points to the numerous Applications in a Case brought by the mother during the parenting and property proceedings between the parties, some 11 in total. Of these applications one was not pressed by the mother, six were dismissed either after judicial determination or by reason of the mother’s failure to appear, one remains undetermined and one in which she sought an extension of time in which to file documents was granted with an order that she pay the father’s costs of $500. This costs order has not been paid. I interpolate and observe that the mother denied all knowledge of a costs order, arguing that she was not present on that day but was represented by a solicitor. Somewhat unusually she did not suggest she would pay the ordered sum but instead suggested that the father’s solicitor speak to the solicitor who was present at that hearing, noting in passing that she no longer instructed that solicitor.
The father also noted that the mother had filed two earlier appeals, both of which were discontinued by her.
There can be no doubt that the litigation to date has incurred considerable expense for the father.
The father’s application is brought bona fide.
Whether an order would stifle the litigation and whether there would be difficulty in enforcing any order for costs
The mother’s case patently was that she had no funds and thus could not pay any ordered security. As I have indicated she provides no information capable of supporting that assertion. I do observe that at the commencement of the hearing, the mother sought to tender and rely on a balance sheet apparently prepared as part of the property settlement proceedings in which various assets were listed and comments made about those assets. Clearly it was a contentious document as counsel for the father indicated. In any event when asked about its relevance to the hearing the mother said that it showed the father’s “lies”. Whether it does or does not remains to be determined on the property proceedings. It certainly did not support the mother’s asserted penury.
The father argued that the mother lives in and is a citizen of New Zealand and is a bankrupt in Australia. Such assets as she has here are consumed in the bankruptcy. For the father it was submitted that in her proof of debt, the mother revealed significant debt to the various lawyers who had represented her during the family law proceedings.
It was argued that these two factors mean that any order for costs made against the mother in relation to the appeal will be impossible to recover in Australia. There is force in this argument. The father further argues that there is considerable support to enable a finding that the mother has assets and funds in New Zealand. It is unnecessary to traverse the detail of these assertions which are contained in the father’s affidavit and which are strenuously denied by the mother.
As I have earlier found, sufficient doubt attends the mother’s assertions as to her financial situation such that I could not find that to make an order for security for costs would stifle the appeal. In making that finding I take into account her apparent ability to borrow a sum to purchase the transcript.
Prospects of success on the appeal
It was argued that the mother’s appeal enjoys little prospect of success.
The Notice of Appeal filed by the mother raises 24 challenges to his Honour’s orders. Giving such of those grounds that appear to raise a competent challenge to the orders a beneficial reading, it appears that the thrust of the challenges go to the weight attributed to the evidence by the primary judge and the facts found by him based on the evidence. Such challenges face considerable barriers to appellate intervention. Nonetheless I am unable to conclude that the appeal is devoid of merit.
Conclusion
It is appropriate that there should be an order that the mother give security for costs in relation to the appeal. The father sought that she lodge the sum of $35,000 as security. In all of the circumstances in my view an appropriate sum which will meet the need for security is $20,000 and I will make the order in that amount.
The father sought an order that the costs of the application for security for costs be reserved to the hearing of the appeal which is an appropriate order.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
13 November 2017.
Associate:
Date: 13 November 2017
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