Olman & Teitzel

Case [2020] FamCAFC 136

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

  1. The second appellant be removed as a party from the Amended Notice of Appeal filed on 24 February 2020.

  2. The Notice of Constitutional Matter filed on 10 January 2020 be dismissed.

  3. Paragraph 6 of the Amended Notice of Appeal filed on 24 February 2020 be struck out.

  4. The Amended Notice of Appeal filed on 24 February 2020 be dismissed.

  5. 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…

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AGLC
Olman & Teitzel [2020] FamCAFC 136
Case
[2020] FamCAFC 136
Decision Date

CaseChat Overview and Summary

The case involves an appeal from the Family Court of Australia, with the mother as the respondent and the father as the appellant. The appeal concerns parenting and property matters following a divorce. The mother has applied for summary dismissal of the appeal, which was supported by a Notice of Constitutional Matter, on the basis that the father did not appear or participate in the proceedings. The legal issues before the court were whether there was a live constitutional matter and if the appeal had any merit. The court found that there was no live constitutional matter as the Attorneys-General had not applied to intervene or remove the cause to the High Court. The court also found that the appeal had no merit as there were no prospects of success on any of the grounds raised by the father. The reasoning of the court was that the father had failed to participate in the proceedings despite being given multiple opportunities to do so. The court considered the procedural history of the case, the father's communications, and the rights of the other parties involved, including the children. The court concluded that the father's failure to participate was not due to any misunderstanding of the proceedings and that the court was justified in proceeding without him. The final orders of the court were to remove the second appellant from the notice of appeal, dismiss the notice of constitutional matter, strike out certain paragraphs from the notice of appeal, dismiss the appeal, and order the father to pay the costs of the appeal.

Orders

Orders of the court

1.

The second appellant be removed as a party from the Amended Notice of Appeal filed on 24 February 2020.

2.

The Notice of Constitutional Matter filed on 10 January 2020 be dismissed.

3.

Paragraph 6 of the Amended Notice of Appeal filed on 24 February 2020 be struck out.

4.

The Amended Notice of Appeal filed on 24 February 2020 be dismissed.

5.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 basis95.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].

Ratio Decidendi

Legal Principle Established

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