Olman & Teitzel
[2020] FamCAFC 136
•25 May 2020
FAMILY COURT OF AUSTRALIA
| OLMAN AND ANOR & TEITZEL | [2020] FamCAFC 136 |
| FAMILY LAW – APPEAL – NOTICE OF CONSTITUTIONAL MATTER – Where there is no live constitutional matter in this appeal – Where the Notice has been provided to the Attorneys-General of the Commonwealth and of the States and there has been no application to intervene or to remove the cause to the High Court of Australia – Notice dismissed. FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Where once again there is no appearance by or on behalf of the first and second appellants – Where the respondent presses her application for summary dismissal of the Notice of Appeal pursuant to s 96AA of the Family Law Act 1975 (Cth) – Where there is no merit in any of the grounds of appeal and none of those grounds have any prospect of success – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs – Where the appeal has been wholly unsuccessful – Where there are circumstances which justify an order for costs being made – Costs ordered in favour on the respondent in the sum as sought. |
| Family Law Act 1975 (Cth) ss 65C(c), 96AA and 117 Judiciary Act 1903 (Cth) s 78B Family Law Rules 2004 (Cth) r 22.36 Federal Circuit Court Rules 2001 (Cth) r 16.05 |
| Arthurman & Arthurman (2019) FLC 93-926; [2019] FamCAFC 214 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 Olman & Teitzel [2018] FamCAFC 11 |
| FIRST APPELLANT: | Mr Olman |
| SECOND APPELLANT: | Ms M |
| RESPONDENT: | Ms Teitzel |
| INDEPENDENT CHILDREN’S LAWYER: | Trapski Family Law |
| FILE NUMBER: | MLC | 547 | of | 2017 |
| APPEAL NUMBER: | SOA | 2 | of | 2020 |
| DATE DELIVERED: | 25 May 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 25 May 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 December 2019 |
| LOWER COURT MNC: | [2019] FCCA 3518 |
REPRESENTATION
| THE FIRST APPELLANT: | Self-represented – no appearance |
| THE SECOND APPLICANT: | Self-represented – no appearance |
| COUNSEL FOR THE RESPONDENT: | Mr Carne |
| SOLICITORS FOR THE RESPONDENT: | Westminster Lawyers |
| INDEPENDENT CHILDREN’S LAWYER | Trapski Family Law |
Orders
The second appellant be removed as a party from the Amended Notice of Appeal filed on 24 February 2020.
The Notice of Constitutional Matter filed on 10 January 2020 be dismissed.
Paragraph 6 of the Amended Notice of Appeal filed on 24 February 2020 be struck out.
The Amended Notice of Appeal filed on 24 February 2020 be dismissed.
The appellant father pay the costs of the respondent mother of and incidental to the appeal fixed in the sum of $8,282.47
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 Olman & Teitzel and Ors 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).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 2 of 2020
File Number: MLC 547 of 2017
| Mr Olman |
First Applicant
And
| Ms M |
Second Applicant
And
| Ms Teitzel |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
This is a further directions hearing in relation to the Amended Notice of Appeal filed by Mr Olman (“the first appellant”), and Ms M (“the second appellant”), on 24 February 2020, appealing against orders made by a judge of the Federal Circuit Court of Australia on 6 December 2019.
There was no appearance by either appellant, but Ms Teitzel (“the respondent”) was represented by Mr Carne.
As I understand it, going back to the first instance proceedings, at no stage has the second appellant taken any part in the proceedings. For example, when her Honour heard the matter on 17 and 20 June 2019, ultimately delivering her judgment and making orders on 6 December 2019, there was no appearance by or on behalf of the second appellant, or as she was in the first instance proceedings, the second respondent.
I have been involved in these proceedings from an appeal perspective since 2017. There was an Application in an Appeal filed by the first appellant seeking an extension of time to appeal against various orders made by Judge Williams (as her Honour then was) throughout 2017. That Application was heard by me and ultimately dismissed on 29 January 2018 (see Olman & Teitzel [2018] FamCAFC 11), and at no stage did the second appellant take any part in those proceedings, and as I have just referred to, she did not take any part in the proceedings before her Honour, and she has not taken any part in the proceedings that are now before this Court.
What I suspect is, that the first appellant, presumably to gain some advantage, has named the second appellant as a party, when, in fact, she is taking no part in these proceedings. Thus, when I come to make orders today, I will make an order removing the second appellant as a party to this appeal.
The appeal was first listed before this Court on 9 April 2020, when Mr Carne appeared for the respondent, and there was also no appearance by or on behalf of either of the appellants. In summary, that directions hearing was to be conducted by telephone link, and when the matter was called on for hearing, attempts were made to contact the appellants by telephone. In relation to the first appellant, my court officer was able to get through to someone, but not him, on his mobile telephone number, who indicated that the first appellant would be available in a few minutes. My court officer waited a short time and attempted to again contact the first appellant, but the line was engaged. At least one other attempt was made with a similar result. As far as the second appellant was concerned, every attempt to contact her on the telephone number provided went to voicemail.
I noted on that occasion that there was an email sent by the first appellant to the appeal registrar the day before the hearing, indicating that there may be difficulty with him and the second appellant attending by telephone, although when I looked at the email, it said that he did not have access to telephone lines except WiFi, and my understanding was, that he was able to participate in the hearing by telephone.
I proceeded as far as I could with the directions hearing in the absence of either of the appellants, identifying matters that I had intended to raise with the first appellant in relation to his Amended Notice of Appeal.
On that day, there was also an Application in an Appeal before this Court, filed by the respondent, seeking summary dismissal of the appeal, or in the alternative, an order for security for costs. I raised a number of matters with Mr Carne in relation to that application, and confirmed with him that that application or any amended application that his client might determine to file, would need to be heard first, before the appeal could proceed.
What was discussed was, that the respondent’s application needed to be listed for hearing, and I noted that the first appellant would need to file responding documents to that application, but with the adjourned date I was able to give, that allowed ample time for him to do that.
I further noted on that occasion that on 10 January 2020, the appellants had filed a Notice of Constitutional Matter, but no order was sought in the proceedings, for example, an order seeking an adjournment of the appeal pending responses to the Notice. The Notice had just been filed and had remained on the file because no orders were sought.
I indicated to Mr Carne, and this was also his submission, that on my reading of that Notice, there was no live constitutional matter in the appeal, and the Notice was of no consequence and was not something that I would permit to hold up the hearing and determination of the appeal. I also noted that that was not the first time the appellants had filed a Notice of Constitutional Matter. That was done before the primary judge, and an adjournment was sought on the basis of that Notice being filed. Her Honour dealt with that Notice in her reasons for judgment, found there was no live constitutional matter, and refused the application to adjourn.
I noted on 9 April 2020 that I took the same view as her Honour, because the Notice of Constitutional Matter filed on 10 January 2020, raised precisely the same issues that her Honour had to deal with. I further noted that s 78B of the Judiciary Act 1903, which provides for a Notice of Constitutional Matter to be filed, provided that it was the duty of the court not to proceed in the cause, unless and until the court is satisfied that the Notice has been given to the Attorneys-General of the Commonwealth and the States, and a reasonable time has elapsed since the giving of the Notice, for consideration by the Attorneys-General of the question of intervention in the proceedings, or removal of the cause to the High Court of Australia.
I recorded that the Notice had been provided to the Attorneys-General of the Commonwealth and of the States, and there had been no application to intervene or to remove the cause to the High Court of Australia. Indeed, the only response to the Notice was by the Commonwealth Attorney-General, which was that they simply wished to be advised of when the appeal was to be listed for hearing.
Thus, what I will be doing with that Notice today, is dismissing it. I will do that because today was the adjourned hearing date of the directions hearing, and also the hearing date of the Application in an Appeal to which I have referred, and there has been nothing received from any of the Attorneys-General of the Commonwealth or of the States, indicating that they wished to intervene or remove the cause to the High Court of Australia.
The directions hearing was adjourned to today, and the order made was that the Amended Notice of Appeal filed on 24 February 2020, and the Application in an Appeal filed on 27 March 2020, be adjourned for further consideration to 10:00am Melbourne time on Monday 25 May 2020, and that order was sent to the appellants by the appeal registry in the usual way.
There was an Amended Application in an Appeal filed by the respondent on 8 May 2020, together with an affidavit of the solicitor for the respondent and a summary of argument. There was an affidavit filed in support of the original Application in an Appeal filed on 27 March 2020, and that was an affidavit by the respondent. That affidavit is still there in support of the Amended Application.
No responding documents to the Amended Application have been filed by or on behalf of either of the appellants. However, in the context of being informed today of the availability of the appellants to appear at this hearing, I have been provided with a copy of an email chain passing between the first appellant and the appeal registrar, and it commences with an email of Thursday 21 May 2020, last Thursday, from the first appellant, which apparently attached documents for filing. There is then a responding email by the appeal registrar saying that the documents have not been accepted for filing, and advising why. Then, there is an email on Friday 22 May 2020 from the first appellant, attaching an Application in an Appeal seeking procedural orders. The appeal registrar responded to that email, saying that for that application to be filed, there needed to be an affidavit in support, which there was not, and the registrar refused to file that application.
Then, there is a further email on Friday 22 May, wherein the first appellant queries what rule is being applied, and the appeal registrar then responds referring the first appellant to r 22.36 of the Family Law Rules 2004 (Cth) (“the Rules”).
Thus, nothing has been filed either responding to the application of the respondent, or seeking other orders, procedural or otherwise, by or on behalf of either appellant.
I mentioned earlier that the order made on 9 April 2020 was to adjourn the matter to today at 10:00am Melbourne time. I am informed by my court officer that when she telephoned the first appellant this morning to confirm the arrangements for the hearing, she was informed by him that he thought it was 10:00am Adelaide time. He was disabused of that understanding, but he sent an email to the appeal registry which reads:
Dear Parties,
I am running late and request to convene at 10am Northern Territory / Adelaide time.
Thank you.
I called the matter on at the appointed time, namely 10:00am Melbourne time. Mr Carne appeared as counsel for the respondent, but there was no appearance by or on behalf of either appellant, and attempts to telephone the first appellant at that point were unsuccessful. I determined, though, to stand the matter down until 10:00am Northern Territory/Adelaide time, and I looked to resume the hearing at that time. However, I was informed by my court office that her attempts to telephone the first appellant at that time were unsuccessful, albeit this was the time that he indicated he would be available for the hearing. My court officer, also at my request, attempted to telephone the second appellant, but that was unsuccessful.
Thus, in those circumstances, I propose to proceed with the matter today. I am not prepared to further adjourn it. As is apparent from what I have said so far, what has happened this morning is not a one-off occurrence. This seems to be how the first appellant looks to conduct this litigation, and I am not going to permit it.
What is before this Court is the Amended Notice of Appeal filed on 24 February 2020, and an Amended Application in an Appeal filed on 8 May 2020 seeking dismissal of the Amended Notice of Appeal, or in the alternative, an order for security for costs. The Amended Application is supported by an affidavit of the respondent filed on 27 March 2020, an affidavit of the respondent’s solicitor filed on 8 May 2020, and a summary of argument filed on 8 May 2020. Thus, although there appears to have been an affidavit filed by the second appellant in 2017 in those proceedings, the fact remains that there has been nothing filed by her in the first instance proceedings which have led to the appeal before this Court. She took no part in the hearing before her Honour, she has taken no part in the appeal to date, and, to repeat, I propose to remove her as a party to this appeal.
Coming then to the application to dismiss the Amended Notice of Appeal.
The application is made on the basis of section 96AA of the Family Law Act1975 (Cth) (“the Act”), which provides as follows:
96AA Appeal may be dismissed if no reasonable prospect of success
(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).
There is recent authority to which I have been referred in relation to the meaning of “no reasonable prospect of success”, and in that regard the Full Court said this in Arthurman & Arthurman (2019) FLC 93-926 at [18]:
According to the Court in Lysaght, the test asks whether the application has a “real” as opposed to “fanciful” chance of success. Whilst it must be applied by reference to its own language, the test is nonetheless broader than “hopeless” or “bound to fail”. It must also be borne in mind that “the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried” (Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 at [35]).
In terms of any relevant authority in relation to summary dismissal, the leading case continues to be Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251. There, Kirby J set out six principles to be applied in applications for summary relief at page 256. Not all of those principles are relevant to this matter, but for completeness I set them all out hereunder:
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)
Now the application before this Court today is not strictly an application for summary dismissal, but it is of the same nature, and thus in my view, it is relevant to consider and take into account what Kirby J said at page 256. In terms of relevance to this application, principals two, three and six are relevant.
Turning then to the grounds of appeal, which are against both the final parenting and the property settlement orders made by the primary judge on 6 December 2019. Those grounds are as follows:
PARENTING
1.Her Honour erred to find that she has jurisdiction to issue PARENTING and INJUNCTION ORDERS against [A].
2.ALTERNATIVELY her Honour misconstrued her functions and powers and exceeded jurisdiction by:
a)Erroneously finding that a step-parent is a “parent” under the Act where the Act states otherwise.
b)Failing or omitting to find that a step-child is not a de facto child under the Act.
c)Finding that she has “inherent powers” to transfer the birth certificate and passport of [A] to the step-parent.
d)It was not necessary to determine [X’s] parentage pursuant to s 69W of the Act where there was genuine doubt by the [first appellant] as to his paternity.
e)Failing to give adequate reasons in relation to how a step-parent qualifies as parent under the Act.
f)Discrediting, suppressing and or omitting the Appellants’ evidence in making decisions.
PROPERTY
5.(sic)Her Honour erred in law and her judgement miscarried to not find that the Respondents engaged in unconscionable conduct, duress and equitable fraud to obtain unfair court outcomes.
The respondent, at paragraph 5 of her summary of argument filed on 8 May 2020, has conveniently summarised the grounds of appeal as follows:
(a)That Her Honour erred in making parenting orders with respect to the child [A] born in 2009 without jurisdiction to do so in circumstances where (it is asserted) the Respondent is not a ‘parent’ for the purposes of the Act;
(b)That Her Honour erred in failing to make any determination with respect to the parentage of the child [X] born in 2013 in circumstances where (it is asserted) there was doubt as to [X’s] paternity.
(c)That Her Honour erred in making an order that [A’s] birth certificate and passport be released from subpoenaed materials to the Respondent.
(d)That Her Honour erred in “discrediting (sic) suppressing and or omitting the Appellants’ evidence in making decisions”; and
(e)With respect to property matters, that Her Honour erred in not finding that the Respondent had engaged in unconscionable conduct, duress and equitable fraud to obtain her orders sought from the Court.
(footnotes omitted)
The first assertion raised in the grounds of appeal relates to the power of the court to make parenting orders sought by the respondent with respect to the child A. With regard to the two children the subject of the proceedings before the primary judge, it is relevant to note that the parents of A are the first and second appellants, and the parents of the second child X, are the first appellant and the respondent.
In my view, there is no issue about the power of the court to make the parenting orders. The primary judge found that pursuant to s 65C(c) of the Act, the respondent was a person concerned with the care, welfare and development of A, and therefore, had standing to seek parenting orders with respect to him, (at [69]-[73]).
I do not understand it to be challenged by the first appellant that that subsection applied, and that is part of the issue as to whether this ground of appeal has any reasonable chance of success.
In any event, as submitted by the respondent, it was entirely open to her Honour to make that finding. A had been brought to Australia to live with the first appellant and the respondent, who, at that time, namely October 2013, were living in a de facto relationship, and he remained in their care until their separation in November 2016. Pursuant to interim orders made by Judge Williams in the Federal Circuit Court of Australia on 14 February 2017, the children, including A, have been living with the respondent since those orders were made.
Thus, there can be no issue about the power of the court to make parenting orders in relation to A.
I note that the first appellant frames it in terms of no jurisdiction, but to repeat, in my view, there was not only the power but also, if it is necessary to consider it, the jurisdiction to make parenting orders in relation to A, and indeed, that issue was not new. It had been raised previously by the first appellant in the proceedings in 2017, where he had sought to challenge the jurisdiction of the court to make parenting orders with respect to that child.
To repeat, there was an application before this Court which I heard seeking an extension of time to appeal against various orders made by Judge Williams in 2017, and that issue was front and centre of the proposed appeal if the first appellant was given an extension of time. In my decision though, I determined that there was no prospect of success in that regard, and I accepted that Judge Williams had the power and the jurisdiction to make the orders that she did, and found that there was no merit whatsoever in the proposed grounds of appeal in the event that an extension of time was allowed.
Significantly though, the first appellant then sought special leave to appeal to the High Court of Australia against the orders made by this Court. That was unsuccessful, with the High Court of Australia dismissing the application.
Given that history and background, there is nothing new that is put in the first appellant’s Amended Notice of Appeal, which would provide a successful basis to challenge the power of the primary judge to make parenting orders with respect to A, and thus, there is absolutely no chance of success of that complaint, and the grounds of appeal in which it is found.
In Ground 2 of the grounds of appeal, the first appellant asserts that the primary judge erroneously found that a stepparent is a parent under the Act, where the Act states otherwise, failed or omitted to find that a stepchild is not a de facto child under the Act, and failed to give adequate reasons in relation to how a stepparent qualified as a parent under the Act. However, those matters were not findings that her Honour had to be concerned with, nor findings that her Honour had to make in the context of making parenting orders in relation to the child A.
Thus those assertions do not provide any basis for the success of this aspect of Ground 2.
I now turn to what is described in the summary of the respondent as the alleged failure to determine the child, X’s, paternity, and that is also found in Ground 2 of the Amended Notice of Appeal.
On 18 June 2019, the first appellant filed an Application in a Case with an affidavit in support, and in that application, he sought an order as follows:
I also seek express orders that X spends equal time with both his parents.
That application was made during the course of the hearing before the primary judge, and, to repeat, the hearing was scheduled to commence on 17 June 2019 but was adjourned to 20 June 2019, when it was completed. The point of referring to that sequence is that in those proceedings, the first appellant was seeking orders that X spend equal time with both his parents, and in an earlier affidavit filed on 14 March 2019, the first appellant had deposed that:
The respondent and I have a child, [X], born in 2013 in Australia. He is an Australian citizen.
Thus, in the circumstances where there was no application before the court for any parentage testing order, and in any event, the first appellant was clearly seeking parenting orders with respect to the child, X, there can be no error made by the primary judge in not addressing any matters concerning X’s parentage. For those reasons, this ground has no chance of success, reasonable or otherwise.
Turning then to the next matter which can be summarised as the release of A’s birth certificate and passport to the respondent.
By order (17) of the final orders made by her Honour, her Honour provided for A’s birth certificate and passport to be released to the respondent from the documents produced under subpoena from the Department of Home Affairs, and her Honour said this at [242]:
The [respondent] does not have a record of [A’s] birth. A copy of his birth certificate and passport was produced pursuant to a subpoena issued for the purpose of these proceedings. The documents produced were not released for photocopying. The [respondent] needs his birth certificate and passport for various purposes. As I propose to make an order that she have sole parental responsibility for [A] I propose to make an order in the terms of Order 10 of the [respondent’s] proposed minute of orders sought.
I accept the submission of the respondent, that having then subsequently made an order for the respondent to have sole parental responsibility for A, it was entirely open to the primary judge to make orders releasing those documents to her. Thus, again, I find that this ground of appeal has no chance of success, reasonable or otherwise.
The final ground of appeal in relation to parenting asserts that her Honour discredited, suppressed and/or omitted the appellants’ evidence in making decisions. There are no particulars provided in relation to that assertion, but it is not an assertion which has any traction. It might be assumed that what the first appellant is raising is that her Honour, in the circumstances, determined to permit the respondent and the Independent Children’s Lawyer (“ICL”) to proceed on an undefended basis, and her Honour sets out her reasons for that at [95]-[108] as follows:
The decision to proceed on an undefended basis
95.The Court telephoned the [first appellant] twice in the afternoon of 20 June 2019 and on both occasions the telephone calls went through to his voicemail facility. The Court or the Independent Children’s Lawyer did not receive any communications from the [first appellant] during the short adjournment. The [first appellant] had telephone and email facilities available to him earlier in the day.
96.The second [appellant] was called outside the Court in the morning and the afternoon sessions of the Court. The second [appellant] did not respond to the call on both occasions. The second [appellant] was given notice of the hearing on 20 June 2019 via the Independent Children’s Lawyer’s email of 17 June 2019.
97.Rule 13.03C of the FCC Rules provides that if a party to a proceeding is absent from a hearing, the Court or a Registrar may, amongst other things, adjourn the hearing to a specific date or generally or proceed with the hearing generally.
98.The High Court authority of Allesch v Maunz [2000] HCA 40 stands for the authority that a party has the right to appear or be heard on a matter. Justice Kirby says at paragraphs 38 to 40:
“…Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principal require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be a factor. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.”
99. I also considered the following:
a) the object of the FCC Rules;
b)Aon Risk Services Australia Limited v Australian National University;
c)the mandatory requirement of s.69ZN(7) of the Act;
d)that Judge Williams had made provision in her orders of 4 February 2019 requiring the [first appellant] to attend Court and put the [first appellant] on notice that if he did not comply with those orders that the matter may proceed on an undefended basis;
e)the statements the [first appellant] made to Judge Williams on 4 February 2019;
f)the [first appellant’s] various comments during the proceedings on 17 June 2019 and in the morning of 20 June 2019;
g)the procedural history of the matter and its effects on the [respondent] (and indirectly) on the children;
h)the content of the [first appellant’s] email of 18 June 2019.
100.I also considered paragraphs 96 to 98 of the [first appellant’s] affidavit filed on 12 June 2019 which is as follows:
96. I cannot participate in a Trial where:
a) Court makes orders without jurisdiction.
b)Where both [the second appellant] and I have been denied procedural justice through bad faith judgements and fraud.
c)My evidence has been suppressed.
d)And the case has been prejudged in [the respondent’s] favour through carefully orchestrated judgements and family reports.
97. I seek orders stated at the beginning of this application, short of which I will file express Appeal and seek writs of Mandamus, Certiorari and Prohibition pursuant to s 76, 76 and 77 of the Constitution.
98. If those routes fail I will seek other avenues. I cannot accept Orders made without jurisdiction.
101.During the course of the morning of 17 June 2019, the [first appellant] made it clear that he understood the option he had of attending personally at Melbourne or making himself available by telephone.
102.There is no room for the view that the [first appellant] could reasonably have assumed that his Application in a Case and/or the substantive parenting and property matters would not proceed on either of 17 or 20 June 2019. He may have presumed the success of his application to adjourn on the basis of the Notice but that in my view is not an answer to any misunderstanding of the matters before the Court on 17 and 20 June 2019.
103.The [second appellant] was also aware that proceedings would be listed on both 17 and 20 June 2019 and the nature of the substantive proceedings in relation to Orders concerning her.
104.The [respondent] and the Independent Children’s Lawyer were prepared to proceed with all matters on both 17 and 20 June 2019. The Court was ready to proceed with all matters on both days. The Court has many other matters requiring a determination.
105.The [first appellant] was provided with the opportunity to participate at 2.15pm on 20 June 2019 to further address, at the very least, his application for an adjournment of the substantive proceedings and with the ability to participate in the hearing of his Application in a Case filed 15 March 2019 and the substantive proceedings. The [first appellant] did not avail himself of the opportunity to appear (either personally, by telephone or any other form of electronic communication) to prosecute his oral application for an adjournment, prosecute his Application in a Case, defend the orders the [respondent] sought in her Amended Initiating Application or pursue the orders he sought in his Application in a Case and his affidavit filed 12 June 2019.
106.The [first appellant] did not advise either the Independent Children’s Lawyer or the Court of any inability to attend by telephone at 2.15pm even though he was equipped with the electronic means to do so.
107.In relation to the consequences of my orders on the [first appellant] and the second [appellant], they are both at liberty to invoke Rule 16.05 of the FCC Rules and apply to this Court to set aside the orders I have made on an undefended basis.
108.Having regard to all of these matters the Court was satisfied that the hearing in relation to the [first appellant’s] Application in a Case filed 15 March 2019 and the substantive parenting and property matters should proceed in the absence of the [first appellant] and the second [appellant].
In summary, her Honour permitted that because of the failure by the first appellant to engage in the proceedings, and it is readily apparent that that was the case, and it was open to her Honour to proceed on that basis.
Thus, if that is what the first appellant is referring to, then, those paragraphs of her Honour’s reasons amply answer that complaint.
I note further, that in her final orders, her Honour made an order pursuant to r 16.05 of the Federal Circuit Court Rules 2001 (Cth) that the first and second appellants could seek leave to set aside the final orders upon filing an application and affidavit within 21 days of service of the orders. Her Honour did that, and wisely so, given that her Honour determined to proceed on an undefended basis, but importantly, the first appellant did not take up that order, and no application was filed either by the first appellant, or by the second appellant for that matter.
Again, there can be no doubt that this aspect of Ground 2 has no chance of success, reasonable or otherwise.
Now, there is one ground of appeal, namely Ground 5, in relation to the property settlement orders made by her Honour. There are no particulars provided in relation to that ground of appeal. There is nothing that can be gleaned from her Honour’s reasons for judgment which goes any way to suggest that the respondent, and to use the terminology of the ground of appeal, engaged in unconscionable conduct, duress, and equitable fraud to obtain unfair court outcomes.
Indeed, having read and reread her Honour’s reasons for judgment delivered on 6 December 2019, I can find no appellable error by her Honour in any aspect of those reasons.
Again, I comfortably find that Ground 5 has no prospect of success, reasonable or otherwise.
In summary then, none of the grounds of appeal raised in the Amended Notice of Appeal have any reasonable prospect of success. Indeed, in my view, they have no prospect of success whatsoever, and thus, it is appropriate to not waste this Court’s time any further with an unmeritorious appeal, and I propose to dismiss the Amended Notice of Appeal.
I now have an application for costs on behalf of the respondent, and the amount sought on scale is $8,282.47.
Section 117 of the Act governs the question of costs. Pursuant to ss 117(1), the primary position is that each party is to bear their own costs, but pursuant to ss 117(2), if there are circumstances that justify an order for costs being made, then this Court can make such an order.
In considering whether there are circumstances justifying an order for costs, and what that order for costs should be, there are a number of factors set out in ss 117(2A). The primary factor relied on in support of the application for costs here, is that the first appellant has been wholly unsuccessful in his appeal. There only needs to be one factor which justifies an order for costs, it is not necessary to find more than one, and certainly here, that is the case.
Given what I have said in my reasons for judgment as to why I am dismissing the Amended Notice of Appeal, namely that none of the grounds of appeal have any prospect of success, I can comfortably find that there are justifying circumstances for an order for costs to be made.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 25 May 2020.
Associate:
Date: 3 June 2020
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