Redmond and Stolz (No 2) - [2015] FamCAFC 110

FAMILY COURT OF AUSTRALIA

REDMOND & STOLZ (NO. 2)

[2015] FamCAFC 110

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals from orders of the trial judge that permit the child to travel with the mother outside Australia and restrain the father from acting to cause the Australian Federal Police to place the child’s name on the family law watch list, pursuant to s 68B(2) of the Family Law Act 1975 (Cth) – Where the father appeals from orders of the trial judge dismissing his application for discharge of the Independent Children’s Lawyer – Where the order pursuant to s 68B(2) of the Family Law Act 1975 (Cth) does not interfere with any legitimate right of the father, and was designed to prevent the father from frustrating the orders of the Court – Where the trial judge carefully considered the father’s concerns regarding the conduct of the Independent Children’s Lawyer and addressed those concerns in his reasons – Appeal dismissed – Orders made by reference to s 121 Family Law Act 1975 (Cth) allowing the mother to publish the orders and reasons for judgment to any person necessary to facilitate the child’s travel.

FAMILY LAW – APPEAL – COSTS – The vexatious and unmeritorious nature of the appeal warrants an order that the father pay the mother and Independent Children’s Lawyer’s costs on an indemnity basis.

Family Law Act 1975 (Cth)

Bennett & Bennett (2001) FLC 93-088

APPELLANT:

Mr Redmond

RESPONDENT:	Ms Stolz
INDEPENDENT CHILDREN’S LAWYER:	Patrick Dooley
FILE NUMBER:	BRC	4493	of	2011

APPEAL NUMBER:

2015

DATE DELIVERED::

12 June 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Murphy and Kent JJ

HEARING DATE:

12 June 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 May 2015

LOWER COURT MNC:

[2015] FamCA 367

REPRESENTATION

FOR THE APPELLANT:	In person
FOR THE RESPONDENT:	In person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Dooley Solicitors

Orders

The appeal from the orders of Forrest J on 19 May 2015 be dismissed.
The appellant father pay the costs of each of the respondent mother and the Independent Children’s Lawyer of and incidental to the appeal, failing agreement, to be assessed on an indemnity basis.
The respondent mother and the Independent Children’s Lawyer be permitted to publish these orders and the reasons for judgment to the Australian Federal Police, the relevant airline carrier, the relevant airport authority and any person necessary, so as to ensure the travel of the respondent mother and the child, E born in February 2005, in terms of the order made by Forrest J on 19 May 2015 allowing departure from Australia on 21 June 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Stolz (2) 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 35 of 2015
File Number: BRC 4493 of 2011

Mr Redmond

Appellant

And

Ms Stolz

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

KENT J

This appeal ought be dismissed.
In my opinion this appeal does not raise any question of general principle. Consequently, the reasons for its dismissal may be given in short form.

(Section 94(2A) of the Family Law Act 1975 (Cth) (“the Act”)). In my judgment the singular lack of merit in this appeal and the subject matter of the orders it challenges renders the conclusion that reasons for its dismissal in short form are all that is necessary.
On 19 May 2015 Forrest J made orders permitting the mother of the child E (born February 2005) to remove the child from Australia for the purpose of a short period (15 days) of overseas travel between 21 June 2015 and 5 July 2015.
Forrest J made those orders in the context of the child’s father Mr Redmond having applied to review the decision of the Principal Registrar made on 10 March 2015. The Principal Registrar had made similar orders permitting the overseas travel.
The father opposed the mother’s application for those orders before the Principal Registrar; has unsuccessfully sought their review before Forrest J; and now seeks to have them set aside by this appeal.
Forrest J also dismissed the father’s Applications in a Case by which the father sought an order that the Australian Federal Police (“AFP”) be requested to place the child’s name on the family law watch list. Importantly, Forrest J observed in his reasons for judgment (at [9]) that the father’s submissions revealed that the father had filed that application so as to provide a basis for the father to apply directly to the AFP to place the child’s name on the family law watch list. It was in that important context that, aside from dismissing the father’s applications for review and making orders permitting the overseas travel, Forrest J:
a)dismissed the father’s application for placement of the child’s name on the family law watch list;
b)made an interim order (order (9)) pursuant to s 68B(2) of the Act restraining the father from, inter alia, acting to cause the AFP to place the child’s name on the family law watch list; and
c)made an interim order (order (10)) restraining the father from filing any further application, without first obtaining the leave of the Court, seeking placement of the child’s name on the family law watch list.
Forrest J also dismissed the father’s application seeking the discharge of the Independent Children’s Lawyer (“the ICL”).
The father’s asserted challenge (within Ground 1) that Forrest J lacked “… any inherent power …” to make the injunctive orders (orders (9) and (10)) mischievously and disingenuously, overlooks that Forrest J plainly relied upon s 68B(2) of the Act as the juridical source of power for those orders. That section is specifically referred to in order (9). The challenge has no substance.
The father sought to rely upon a decision of the Full Court in Bennett & Bennett (2001) FLC 93-088 (“Bennett”) as authority for the proposition that s 68B(2) was not a source of power for those orders. However, in contrast to the instances referred to in Bennett, neither order (9) nor order (10) work any interference on any legitimate right of the father. The Court having determined to permit the temporary travel, orders (9) and (10), each interim orders, are designed to protect against the father acting illegitimately prior to the planned departure on 21 June 2015 to frustrate the Court’s order and that travel. No person can be said to possess any legitimate interest, worthy of protection, to act to frustrate the orders of a superior Court. That is in complete contrast with orders of the kind referred to in Bennett.
The father’s claim (within Ground 1) that he was denied procedural fairness concerning the making of orders (9) and (10) based upon the assertion that the father had no notice that such orders might be made, is likewise mischievous and disingenuous. As is recorded in Forrest J’s reasons for judgment (at [10]) by her Responses filed on 29 April 2015 to the father’s applications, the mother sought not only the dismissal of the father’s applications, but an order that the AFP remove the child’s name from the family law watch list; as well as an order for an injunction pursuant to s 68B of the Act in terms similar to order (10). Reference to the transcript of the hearing below (pp 34 – 35) demonstrates that the potential for such injunctions was squarely raised in the hearing and the father participated in those exchanges. This challenge also has no substance.
Ground 2 of the appeal as expressed does not constitute a proper ground of appeal. It states a conclusion unsupported by particulars or specificity. Consequently, the error or errors purportedly asserted cannot be discerned. If it be necessary to say anything at all about a broad asserted conclusion that the trial judge failed to consider the child’s best interests or failed to apply s 60CC considerations in making the orders his Honour made, all that need be said is that the reasons for judgment of the trial judge amply demonstrate the contrary.
That too can be said in relation to the father’s assertions concerning his Honour’s refusal to discharge the ICL. The father failed to file a written outline of submission for the purpose of this appeal. He was thus granted the indulgence of making oral submissions by reference to his grounds of appeal but uninformed by any written document. In his oral submissions the father descended to attempting to rehash arguments made before Forrest J and his complaints can fairly be described as challenges only as to the weight given by Forrest J to his complaints. It is equally clear from the reasons for judgment delivered by Forrest J that his Honour carefully considered each of the complaints agitated by the father concerning the application for discharge of the ICL and carefully weighed up those matters in determining, in comprehensive reasons, why that application for discharge ought not succeed.
The father’s challenges in Ground 3 have a character well beyond the mischievous or disingenuous. These challenges go so far as to assert that a curial order of a superior Court, of itself, is capable of constituting “… an abuse of the court process …”; contains “… criminal elements …”; “… pervert[s] the course of justice …”; and is a “… form of extortion …” These challenges only need be stated to reveal that they are vexatious in the extreme. Equally vexatious are the orders sought by the father on appeal including order (4) which is in these terms:
The Full Court refer Justice Forrest to the Australian Federal Police (AFP) for any police prosecution in regards to perverting the course of justice and hindering the AFP from doing their job.
I record these matters to demonstrate the vexatious character of this appeal and the relevance of these matters to questions of costs. It is particularly significant that these assertions are made by a person who is qualified as a legal practitioner and purports to be a litigation lawyer.
Before dealing with the question of costs, the only other matter I wish to record is that whilst the father sought leave to appeal the subject orders, in my judgment the orders, viewed holistically, are parenting orders within the meaning of s 64B of the Act and thus leave to appeal is not required.
As to costs, the hearing of this appeal was expedited only because the father filed this appeal in circumstances where the ordered travel is due to commence on 21 June 2015. The need to hear and determine this appeal urgently in that circumstance dislocated this Court and came at the expense of pre-existing and legitimate claims of other litigants to the Court’s limited resources. Expedition of the hearing of this appeal cast an additional burden upon each of the mother and the publicly funded ICL for the child to respond to the appeal.
By bringing this utterly unmeritorious appeal, the father has thus wasted the limited resources of this Court at the expense of other more deserving litigants; has caused limited resources available to fund the ICL to be consumed; and has caused unnecessary stress, inconvenience, time and expense to the mother who currently has primary care responsibilities for the child. It might be added that by bringing such an unmeritorious appeal the father has caused the mother, who is the primary carer of the child, significant unnecessary stress.
In short, all of this constitutes disgraceful conduct on the part of the father and a gross misuse of the Court’s processes to perpetrate such conduct.
It is conduct by a qualified lawyer (albeit not currently practicing as such) who is a very experienced litigator on his own account in this and other courts and tribunals. There is reference in the record to the father having instituted in excess of 100 separate legal proceedings over the past four (4) years in various courts including appeals to this Court and the Queensland Court of Appeal.
Whilst the father is apparently an undischarged bankrupt, property settlement orders are yet to be determined by Forrest J following the final trial of those proceedings in which judgment is reserved.
It may be that the father will receive property, beyond that which his trustee in bankruptcy may claim, pursuant to the final property orders that are made. Whether or not that be so, a debt now created by a costs order will survive the father’s current bankruptcy.
In my judgment, the father ought not be permitted to litigate in this manner with immunity and his conduct justifies the exceptional departure from the usual orders for costs made by this Court, and the father should be ordered to pay the costs of each of the mother and the ICL on an indemnity basis.
I would only add that I have residual concerns, given the oral submissions of the father as to what he expresses to be the law if there are any appeals pending, as to any approaches he might make to the AFP to prevent the forthcoming travel by the mother and the child E. I would therefore include in the orders to be made an order pursuant to s 121 of the Act that permits the mother to publish the orders made and the reasons for judgment to the AFP, to her proposed international carrier and indeed to any other person necessary to ensure that the ordered travel to commence on 21 June 2015 takes place.
For these reasons I would make orders having the effect that:
1. The appeal from the orders of Forrest J on 19 May 2015 is dismissed.
2.The appellant father pay the costs of each of the respondent mother and the Independent Children’s Lawyer of and incidental to the appeal, failing agreement, to be assessed on an indemnity basis.
3.The respondent mother and the Independent Children’s Lawyer be permitted to publish these orders and the reasons for judgment to the Australian Federal Police, the relevant airline carrier, the relevant airport authority and any person necessary, to as to ensure the travel of the respondent mother and the child, E born in February 2005, in terms of the orders made by Forrest J on 19 May 2015 allowing departure from Australia on 21 June 2015.

murphy j

I agree with what his Honour says about s 94(2A) of the Act and I agree that that section applies to this appeal.
I agree that the appeal should be dismissed.
Reference to what was said by the father in the proceedings below and to what is deposed to by the mother in an affidavit by her filed by leave this morning, together with the other matters referred to by his Honour Justice Kent indicates in my view that this appeal borders on vexatious or an abuse of process.
I agree otherwise with his Honour’s reasons in respect of the dismissal of the appeal.
I also agree with his Honour’s proposed order for indemnity costs and I agree with the reasons that his Honour advances for making that order.
I also agree that an order should be made pursuant to s 121 of the Act and, again, I agree with his Honour’s reasons for the making of that order.

may j

I also agree for the reasons expressed by Kent J that the appeal should be dismissed and I also agree that there should, in this unusual case, be orders for costs on an indemnity basis.
The orders of the Court will be as follows:
1. The appeal from the orders of Forrest J on 19 May 2015 be dismissed.
2.The appellant father pay the costs of each of the respondent mother and the Independent Children’s Lawyer of and incidental to the appeal, failing agreement, to be assessed on an indemnity basis.
3.The respondent mother and the Independent Children’s Lawyer be permitted to publish these orders and the reasons for judgment to the Australian Federal Police, the relevant airline carrier, the relevant airport authority and any person necessary, to as to ensure the travel of the respondent mother and the child, E born in February 2005, in terms of the orders made by Forrest J on 19 May 2015 allowing departure from Australia on 21 June 2015.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Murphy & Kent JJ) delivered on 12 June 2015.

Associate:

Date: 12 June 2015