Ravinspole and Whycliffe and Anor
[2015] FamCAFC 225
•26 November 2015
FAMILY COURT OF AUSTRALIA
| RAVINSPOLE & WHYCLIFFE AND ANOR | [2015] FamCAFC 225 |
| FAMILY LAW – APPEAL – DISMISSAL – Where pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) the applicant seeks an order dismissing the respondent’s appeal – Where it is submitted that the appeal has no prospect of success, is frivolous and an abuse of process – Where there is no identifiable ground of appeal alleging error requiring appellate interference – Where is it apparent from the so-called grounds of appeal that the respondent has no reasonable prospect of success in the appeal – Appeal dismissed. |
| Family Law Act 1975 (Cth) – s 96AA(1) Federal Court of Australia Act 1976 (Cth) – s 31A Judiciary Act 1903 (Cth) |
| Family Law Rules 2004 (Cth) Bigg v Suzi (1998) FLC 92-799 |
| APPLICANT: | Ms Ravinspole |
| RESPONDENT: | Mr Whycliffe |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Miles |
| FILE NUMBER: | BRC | 6939 | of | 2010 |
| APPEAL NUMBER: | NA | 33 | of | 2015 |
| DATE DELIVERED: | 26 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Aldridge & Cronin JJ |
| HEARING DATE: | 26 November 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 April 2015 |
| LOWER COURT MNC: | [2015] FamCA 275 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cameron with Ms Walker-Munro |
| SOLICITOR FOR THE APPLICANT: | Legal Aid Queensland |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE ICL | Dr Sayers |
| SOLICITOR FOR THE ICL | Kelly Lawyers |
Orders
The Amended Notice of Appeal filed on 3 August 2015 be dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ravinspole & Whycliffe and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 33 of 2015
File Number: BRC 6939 of 2010
| Ms Ravinspole |
Applicant
And
| Mr Whycliffe |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Strickland J
Introduction
The application before the court is an application in an appeal filed by Ms Ravinspole (“the mother”) on 21 August 2015, in which the mother seeks the following orders, first, that pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) (“the Act”) the Notice of Appeal filed by Mr Whycliffe (“the father”) on 14 May 2015 and amended on 3 August 2015 be dismissed, and secondly, an order for costs. In support of that application a brief affidavit was filed by the mother on that same date, namely 21 August 2015.
The application is opposed by the father who appears today without legal representation.
The Independent Children’s Lawyer (“the ICL”) who is represented by counsel today supports the application.
Relevant Background
There was a hearing before Forrest J between 20 and 22 August 2014, and the issue before his Honour was a parenting dispute between the mother and the father in relation to the child B (“the child”) who was born in 2009.
His Honour delivered his reasons for judgment and made orders on 17 April 2015.
In summary those orders provided for the mother to have sole parental responsibility in respect of the child, for the child to live with the mother and spend time with the father. There were other orders made by his Honour including in relation to the place of handover and communication, but I need not identify those other orders for the purposes of the hearing today.
The father then filed a Notice of Appeal against all of the orders made by the trial judge on 14 May 2015.
On 10 June 2015, as is required under the Family Law Rules 2004 (Cth) (“the Rules”) the father filed a draft appeal index.
As is the practice in this court there was then a directions hearing held before the Appeal Registrar on 29 June 2015.
Importantly, at that directions hearing, the Appeal Registrar ordered that the father file and serve an Amended Notice of Appeal removing the request for leave to appeal (which was included in the original Notice of Appeal unnecessarily), and secondly, detailing in succinct numbered items the errors of law or principle asserted as grounds of appeal. The Amended Notice of Appeal was to be filed, according to the Appeal Registrar’s order, by Friday 7 August 2015 and the procedural hearing was adjourned to 31 August 2015.
The father complied with that order insofar as he filed an Amended Notice of Appeal on 3 August 2015. In that Amended Notice of Appeal he no longer pursued leave to appeal, which, to repeat, was unnecessary. It seems to me though that there were no relevant changes to the grounds of appeal, or how they were set out, and I will come back to that later in these reasons.
That then led to the application which is before the court today, namely the application in an appeal filed by the mother on 21 August 2015 seeking dismissal of the Amended Notice of Appeal, and seeking an order for costs.
There was then a further directions hearing on 31 August 2015 when it seems nothing more happened other than that hearing was further adjourned to 7 September 2015.
On the adjourned date, namely 7 September 2015, there were orders made by the Appeal Registrar providing for the filing of summaries of argument and lists of authorities in relation to the application in an appeal filed on 21 August 2015.
The mother complied with that order and filed her summary of argument and list of authorities on 6 October 2015. The ICL also complied with that order and filed a summary of argument and list of authorities on 15 October 2015. The father did not comply with the order.
Today I enquired of the father of his reasons for not complying with the order, and he indicated that he has had health problems, but no medical evidence was tendered by him.
Given the father’s failure to comply there was an email sent to him on 9 November 2015 by the assistant to the Appeal Registrar, pointing out to the father that he had not yet filed his summary of argument and requesting advice as to when that might be attended to. The response to that by the father was on the same day to forward to the court by email a three page document headed as follows:
The Justices of the High Court, High Court Appeal.
My Family is under attack by the Australian federal and family court, judiciary and friends.
The Commonwealth of Australia is under attack by the Australian federal and family court, judiciary and friends.
Justice, Democracy, Self Defence, Bellum Justum
In the body of that document the father set out various sections of the Commonwealth Constitution and the Judiciary Act 1903 (Cth).
On 13 November 2015 the Appeal Registrar by email advised all of the parties that the application would be listed before the Full Court at the Brisbane Registry on Thursday 26 November 2015 at 9:30am, and that of course is what has occurred today, namely the hearing of that application. To repeat, the father has appeared albeit without legal representation, and importantly he has acknowledged receipt of the summaries of argument filed by the mother and the ICL, and that he has read those documents. Despite the absence of any understandable and meaningful written summary by the father we permitted him to address the court orally in response to the application.
Discussion
The application is made pursuant to s 96AA(1) of the Act and that section provides as follows:
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).
In relation to the application, it is asserted by the mother in paragraph 2 of her affidavit filed on 21 August 2015 that the Notice of Appeal as amended does “not contain grounds of appeal which identify an error of relevant law or principle on the part of the Trial Judge”, and further, that “the appeal has no reasonable prospects of success.”
In paragraph 8 of the summary of argument filed on behalf of the mother on 6 October 2015, it is submitted as follows:
…[t]hat the Appellant’s Amended Notice of Appeal contains no succinct grounds pertaining to errors of law or principal [sic]. The appeal is frivolous and an abuse of process. The contents of the Notice of Appeal are prolix, inflammatory and highly derogatory and disrespectful of the parties, their legal representatives and his Honour Justice Forrest.
The principles in relation to an application such as this are well settled and I refer for example to the High Court decision of Lindon v Commonwealth of Australia (No. 2) (1966) 136 ALR 251. Therein Kirby J set out the principles relevant to an application for summary relief at 256 as follows:
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 a 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 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 O 26, 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)
That High Court decision has been applied on a number of occasions in the Full Court of this court, and I instance one example, namely Bigg v Suzi (1998) FLC 92-799, at pages 84,973–975.
The relevant phrase in s 96AA(1) is “no reasonable prospect of success”.
What constitutes “reasonable prospect” for the purposes of the equivalent of that section in the Federal Court of Australia Act 1976 (Cth), namely s 31A, was considered by the High Court in Spencer v The Commonwealth of Australia (2010) 241 CLR 118. There, French CJ and Gummow J observed at [25] that a consideration of whether a matter has reasonable prospects of success “requires a practical judgment by the Federal Court [substitute in this case the Full Court of the Family Court] as to whether the applicant has more than a ‘fanciful’ prospect of success.” Significantly, cases falling within the relevant section were said by their Honours to include the class of case in the longstanding category of cases which are frivolous, or vexatious, or an abuse of process.
In this case the Appeal Registrar, in my view, correctly recognised that in the initial Notice of Appeal there was no identifiable ground of appeal alleging error requiring appellate interference, and as a result made the order that I have referred to earlier in these reasons. I have indicated that the father did file an Amended Notice of Appeal, but to repeat, in reality that did nothing more than repeat the same so-called grounds of appeal.
It is readily apparent from those so-called grounds of appeal, which extend over 13 pages, that the father has no reasonable prospect of success in the appeal. In my view those grounds do not identify errors by the trial judge that would require appellate interference. As the mother submitted in her summary of argument, to which I have also earlier referred, they are impossible to understand, they are prolix, inflammatory, highly derogatory, gratuitously offensive and disrespectful of the parties, the legal representatives, and most importantly in terms of an appeal, the trial judge.
Using the terminology of Kirby J in Lindon v The Commonwealth, the father “lacks a reasonable cause of action [and] is advancing a claim that is clearly frivolous or vexatious”. Further, it is plain that the appeal is “doomed to fail” and the court should dismiss the same for the reasons set out in paragraph 6 of the principles identified by his Honour. For completeness, using the terminology of French CJ and Gummow J in Spencer v The Commonwealth, this belongs to the class of case which is frivolous or vexatious or an abuse of process.
The order that I would make is that the Amended Notice of Appeal filed on 3 August 2015 be dismissed.
Aldridge J
I agree with the proposed order and the reasons given for it.
Cronin J
I too agree with the proposed order and the reasons given.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Cronin JJ) delivered on 26 November 2015.
Associate:
Date: 2 December 2015
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