Riley & Samuels
[2008] FamCAFC 208
•19 December 2008
FAMILY COURT OF AUSTRALIA
| RILEY & SAMUELS | [2008] FamCAFC 208 |
| FAMILY LAW - APPEAL – APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL – Leave to appeal documents were originally incorrectly filed in the Federal Magistrates Court – No explanation for delay between the expiry of time as of right and the forwarding of the incorrect application – Period of delay short nonetheless – Merits of proposed appeal – No grounds of appeal – Oral submissions of father as to his arguments on appeal demonstrate no prospects of success – No appellable error discerned in the Federal Magistrate’s reasons for dismissing the father’s applications – Application dismissed FAMILY LAW - SECURITY FOR COSTS – Sought by the mother if an extension of time within which to appeal was granted – Father alleges he would not be able to meet an order for security for costs – Application for extension of time within which to appeal dismissed – Accordingly the application for security for costs is unnecessary – Application dismissed |
| Family Law Act 1975 (Cth), Part VII, s 65DA, s 65N, s 70NAC |
| APPELLANT: | MR RILEY |
| RESPONDENT: | MR SAMUELS |
| FILE NUMBER: | CSC | 165 | of | 2008 |
| APPEAL NUMBER: | NA | 96 | L | of | 2008 |
| DATE DELIVERED: | 19 December 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick J |
| HEARING DATE: | 12 December 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 16 September 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1237 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person by video link in Cairns |
| COUNSEL FOR THE RESPONDENT: | Mr L R Middleton by video link in Townsville |
| SOLICITOR FOR THE RESPONDENT: | […] Lawyers |
Orders
That the application of the father filed 12 November 2008 be dismissed.
That the amended application of [Mr Samuels] filed 5 December 2008 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Riley & Samuels is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 96 L of 2008
File Number: CSC 165 of 2008
| MR RILEY |
Appellant
And
| MR SAMUELS |
Respondent
REASONS FOR JUDGMENT
On 19 May 2008, a Registrar in the Federal Magistrates Court at Cairns made parenting orders, by consent of Mr and Ms Riley, in relation to their three children, then seven, three and one and three-quarter years of age. Among other provisions, the orders provided that the father spend time with the children each alternate Saturday at the home of a nominated person, commencing on the following Saturday, which the orders described as 25 May 2008. The next Saturday was in fact 24 May 2008.
When the orders were made, the father was legally represented. The mother was not present, but was represented by her solicitor, Mr Samuels.
In circumstances that will be outlined later, the father did not spend time with the children on the Saturday nominated. On 28 July 2008, the father filed an application alleging that the mother’s solicitor was in contempt of court. The detail of the contempt provided was:
[Mr Samuels] is a solicitor from [a] law firm […]. He failed to follow the directions of the court on the above stated date [19 May 2008] by not advising his client, [Ms Riley], of when contact was to take place. As a result, I have suffered a financial loss, emotional loss and a loss of contact with my children.
On 12 September 2008, the father filed an application seeking that “the matter” for contempt of court be transferred to the Federal Magistrates Court in Cairns; that, in the interim, the solicitor be restrained from representing the mother any further; that the solicitor be held accountable for a further flagrant disregard to court orders and directions with regard to his verbal submissions to the Registrar on 19 May 2008 “where he stated to Registrar Victoire that by having the child matters transferred to Townsville that it would enable me to have further visitations of the children, Thus [sic] far this has never been offered by [Mr Samuels]”; that Mr Samuels, pending the determination of a trial, have his practitioner’s licence revoked; that Mr Samuels pay all his costs associated with the application for contempt of court; that Mr Samuels pay all his costs in relation to travelling expenses and accommodation for 24 May 2008; and that Mr Samuels pay damages for malpractice in the sum of no less than $10,000.00.
The father’s applications came before Federal Magistrate Coker on 16 September 2008. For reasons that he gave on that day, the learned Magistrate ordered that both applications be dismissed.
The father wishes to appeal the dismissal, but is out of time. The father’s application before me is for an extension of time within which to appeal. The solicitor brings an application for security for costs in the event that leave to appeal out of time is granted.
Only two factors relevant to the issue of extension of time have been raised, which are delay and the merits of the proposed appeal.
Delay
On the court file are documents seeking leave to appeal filed on 28 October 2008, but they were incorrectly filed in the Federal Magistrates Court of Australia. It seems reasonable to assume that the attempt was made to file the documents at least a few days earlier than 28 October. The affidavit of the father contains no explanation for any delay between the expiry of the time within which to appeal as of right, and the forwarding of an application for an extension albeit incorrectly to the Federal Magistrates Court. Nonetheless, the period is very short. The father made some claims to me of contact between himself and the Appeals Registrar in this Registry, but there is no indication of such contact on the file.
Mr Middleton, counsel for the solicitor, did not attempt to make anything substantial of the delay and indeed, as he submitted, the application really turns much on the merits of the proposed appeal.
If I was satisfied that there were arguable grounds, then I would be likely either to grant the father some liberty to depose as to any attempts to file an appeal within time or otherwise explain the delay. Even if unexplained, delay would most likely be a matter of minor significance.
The merits of the proposed appeal
The father’s proposed Notice of Appeal contains 18 numbered paragraphs. The paragraphs in fact do not contain grounds of appeal. The only indications of arguments in respect of potential grounds relate to late service of material by the solicitor on the day of hearing of the father’s contempt application and the proposition in paragraph 5 of the proposed Notice of Appeal that:
5.The basis of the dismissal of the contempt of Court Application was based on a series of unfounded allegations that it was an action by me to intimidate [Ms Riley]. I have no reasons to intimate [Ms Riley] via her solicitor [Mr Samuels] it [sic] is an unfounded allegation.
In oral submissions which I invited the father to direct to the arguments he wished to raise on appeal, he further asserted that, in referring in his reasons to s 70NAC of the Family Law Act 1975 (Cth), the learned Magistrate applied a wrong test to the contempt application. The father then asserted that the Federal Magistrate had overlooked other sections in Part VII of the Act (relating to children).
The only other “complaint” that may, on a generous approach, fall for consideration, is in respect of the content of a Family Report, which the father asserts (in his material) would have assisted him on the contempt application.
Late service of the solicitor’s and mother’s material
The father complains that material was given to him at the last minute on the 16 September 2008 hearing date. This included an application by the mother seeking dismissal of the father’s application, filed on 12 September 2008, with costs; that the father be declared a vexatious litigant and be restrained from filing further applications without leave; and that the father’s application for contempt be stayed pending provision of security for costs in the amount of $20,000.00. The application was supported by an affidavit from the mother. She deposed that she received Centrelink benefits for the children, that the father did not pay child support, that there were difficulties with regard to her travelling to Cairns, that on the other hand the father was single and in receipt of a veteran’s affairs and service pension and that she did not consent to orders for contact that were unsupervised until the father was psychologically assessed and other material, including the Family Report, gathered. She deposed that she did not consent to the father being provided with her address as, because of domestic violence in the past, she had a fear that he would attend at her residence.
An affidavit of the mother’s solicitor was also filed. He deposed that on 19 May 2008 the father was legally represented. He deposed that the mother’s response to the father’s originating application for parenting orders had sought a change of venue to Townsville and that the Registrar heard arguments and determined that the proceedings should be transferred to Townsville. He deposed that the father had not appealed that order. The solicitor also deposed:
On the 19.5.08 Registrar Victoire made orders by consent pertaining to contact. On the afternoon of the 19.5.08 I did inform the mother of the orders made that day and I mistakenly informed her that contact was to commence on 31.5.08 and not the 24.5.08 as that was the next Saturday after the 25th.
The solicitor then deposed to events after the father’s failed attempt to spend time with the children on 24 May 2008.
In my view, there is little or no merit in the father’s complaints about late service because:
·the material served on the father on 16 September was largely if not entirely in response to the father’s application of 12 September 2008, only a few days beforehand;
·insofar as that material contained an explanation relevant to the contempt application the solicitor had already given an explanation of which the father was aware, as in the affidavit filed in support of the application for contempt, the father himself noted that the solicitor had, on 29 May 2008, spoken to the father’s solicitor whose file note was:
He informed me that he obviously didn’t explain to his client the fact that contact should have started last weekend;
·as far as the contempt application was concerned, the obligation lay on the father to present his case. The solicitor was not obliged to put on material before the father had presented his case;
·the father did not ask for an adjournment of any applications. He suggests that, not being legally represented, he did not have a proper appreciation of the possibility that he could seek an adjournment. Nonetheless, he does not say what it is he could have usefully done, had an adjournment been granted; and
·Coker FM did not rely on any of the late material that was “new” to the father, in deciding the outcome of the father’s application for contempt.
The father’s contention that “The dismissal of the contempt of Court Application was based on a series of unfounded allegations”
Coker FM said of the contempt application:
9.…Quite simply, the bringing of a contempt application is tantamount to a sledgehammer being brought to deal with the cracking of a walnut. It is, unfortunately, and without doubt, the most misconstrued application that I have ever seen in relation to proceedings. It has led to enormous expense and difficulty on the part of all parties.…
10.But, of course, in relation to contravention proceedings there is an absolute obligation and, of course, in relation to contempt, even a greater obligation, to deal with issues in a very precise manner. The material that is filed by the applicant in relation to these proceedings falls short in every respect of what could properly and should properly be expected in relation to proceedings. For there to be a suggestion that there is a flagrant challenge to the authority of the Court, requires there to be the most detailed evidence that one could possibly imagine in relation to proceedings. There would need to be, I would think, so much more than is involved in relation to this matter, that the application for contempt, and that is what is before the Court at the moment, must automatically fail.
11.…For there to be a finding that there is in some way a contravention of an application, or a breach of an application, there is, when a party is not a party to the action, but rather a stranger, as is the case with Mr [Samuels] in relation to these proceedings, then there must be some indication of intent on the part of a party to assist or to facilitate a breach of the order.
…
13.The onus falls upon the applicant, the father in relation to this matter, to put forward evidence in relation to the action being of an intentional nature, as it is alleged. There is not a skerrick of such evidence in relation to this matter. There is supposition. There is concern expressed on the part of the applicant that in some way there may have been an impropriety on the part of Mr [Samuels]. There is not a skerrick of evidence in relation to that. There may have been, at the very best, or worst, depending upon how you look at it, a limited lack of courtesy in respect of any communication that might have been forwarded. I do not know. There is no evidence before the Court. But it falls so far short of what could, in any way, be expected to constitute, let alone, a contempt, but even a contravention in relation to proceedings, that the application must fail.
14.It is incurably defective because of the fact that there is no evidence, whatsoever, which sets out or justifies the position taken in relation to this matter. There is limited evidence in respect of such issues, and in fact, counsel for Mr [Samuels] has taken me quite properly through all of the material that has been filed in relation to the matter. The evidence that is relied upon is defective in every degree in relation to in any way showing any impropriety on the part of Mr [Samuels], let alone any intent or intentional act on his part in relation to such a matter.
I have read the father’s affidavit in support of the contempt application. I agree with what the learned Magistrate said of it. The father did not attempt to take me to his material and argue against the Federal Magistrate’s assessment of it.
Clearly the dismissal of the contempt application was not based on a series of unfounded allegations, but on the stark lack of evidence in the father’s case.
The proposition that Coker FM wrongly relied on s 70NAC of the Act and failed to apply other provisions of Part VII
In paragraphs 11 and 12 of his reasons, Coker FM said:
11.… For there to be a finding that there is in some way a contravention of an application, or a breach of an application, there is, when a party is not a party to the action, but rather a stranger, as is the case with Mr [Samuels] in relation to these proceedings, then there must be some indication of intent on the part of a party to assist or to facilitate a breach of the order.
12.In that regard, I am mindful particularly of the definition of ‘contravened an order’, which is set out in s.70NAC of the Family Law Act. At least insofar as it is relevant in relation to Mr [Samuels] here, it is in these terms:
A person is taken for the purposes of this division to have contravened an order under this Act affecting children if and only if:
b) he or she has:
1) Intentionally prevented compliance with the order by a person who is bound by it, or
2) Aided or abetted a contravention of the order by a person who is bound by it.
The last two sentences of paragraph 13 (earlier set out) were:
13.…There is no evidence before the Court. But it falls so far short of what could, in any way, be expected to constitute, let alone, a contempt, but even a contravention in relation to proceedings, that the application must fail.
Clearly, all that Coker FM was doing was comparing the lesser requirements for proof of a contravention proceeding with those of the contempt application to demonstrate how far the father’s case fell short.
The arguments of the father that the Federal Magistrate had failed to apply other sections of the Act (such as s 65DA, 65N and some of the Federal Magistrates Court Rules have no merit, either because, consistently with his own submission about s 70NAC, either the sections did not apply to a contempt application or the father failed to show how the application of any particular section or rule should have led to a different outcome.
The question of the Family Report
An affidavit filed by the father on 9 December 2008, expressed to be in support of his request that the solicitor’s application for security be dismissed, is more in the nature of submissions and argument. However, the final paragraph involves a request for the inclusion “in the proceedings” of a Family Report which is annexed to the affidavit. The father asserts that “it contains valuable evidence in respect of [Mr Samuel]’s actions and places the contents of both [Ms Riley] and [Mr Samuel]’s affidavits in very serious question. If this long awaited report had of then been before Federal Magistrate Coker on 16 September 08 the decisions of Magistrate Coker would have been in favour of my application for contempt of court of [Mr Samuels].…”. I shall treat this request as indicating that the father might make an application to adduce further evidence on any appeal and therefore as relevant to the merits of the proposed appeal.
The father has highlighted (with marker pen) various passages of the report, but he did not otherwise address me on what it was about the report that would have led to a different decision by the Federal Magistrate on his contempt application against the solicitor. I have read the report and cannot see anything that would have made a difference to a consideration of the contempt application.
The application that the father filed on 12 September 2008
In relation to this application, Coker FM said:
16.Just as clearly, it is the case that there should be, in my view, a dismissal of the application in a case filed on 12 September 2008. I have already ruled that the first of the orders sought, the transfer of the matter to the Federal Magistrates Court at Cairns, should be dismissed. The matter was listed to proceed today. The orders that thereafter are sought are, again tantamount to and in fact I find, a clear and direct intent on the part of the applicant to interfere with the mother's appropriate right to representation. To suggest that there should be restraint placed upon Mr [Samuels] from representing his client any further, is without base and there is no proper evidence, whatsoever, that justifies such an application.
…
18.Firstly, the Court is required to enforce orders. The orders are between the mother and the father in these proceedings. There is not a skerrick of evidence as to any direction given in relation to the proceedings. And if, as perhaps could be inferred, and was suggested to be inferred on the part of Mr [Riley], there is an obligation that falls upon an officer of the Court in relation to notification, it is clear that that was given. It was also clear that it appears to have been mistakenly inclusive of the wrong date.
19.The worst that could possibly be found in relation to Mr [Samuels] in that regard, is that he does not read a calendar very well. There is not a skerrick of evidence upon which there could be any suggestion, whatsoever, that there was intent or failure in relation to the normal obligations that fall upon every legal representative in relation to the representation of their client.
20.If it were to be the case that that was to be found, again it would be an identical situation to that which arises pursuant to the application for contempt pursuant to s.112AP. It is a criminal level of evidence that must be found. It is not simply on the balance of probabilities, it is beyond reasonable doubt. There is not a skerrick of evidence in relation to that particular aspect of the matter. There is nothing whatsoever in the orders or the material before this Court, or I would think otherwise, which could in any way suggest that there was impropriety in any of the dealings by Mr [Samuels] in relation to these proceedings.
…
23.Order 4, as sought, I have already commented upon. It is sought that I should make an order, pending the determination of a trial, that Mr [Samuels]’ practitioner's licence should be revoked. I have no such power in relation to the matter, and it would seem to me, that it would be one of the most grievous breaches of the rules of natural justice to, upon the limited material, some might say, spurious material, that is before the Court, consider that there should be any such order made. It is beyond jurisdiction. It is beyond comprehension. That order also must, and will be, dismissed.
24.The applications in relation to costs associated with the contempt application, as well as costs in relation to travelling, and damages for malpractice, are all again misconstrued. I gain the distinct impression, though it was objected to by Mr [Riley], that there is a degree of angst in relation to these proceedings and that it is an abuse of process designed specifically with the intent of recovering money, of which there is no entitlement, and to intimidate and to, in any way possible, lead to the resolution of the matter, favourable to the father, rather than to consider what might be appropriate in relation to the children and to their right to a relationship with both parties.
25.The applications that are before the Court and are being dealt with at this moment, are misconstrued in the extreme.
…
28.To seek an order for a payment of at least $10,000 in relation to some punitive action, which is of course contrary to law, contrary to the power of the Court and unjustified, is without doubt an abuse of process. For the reasons that I have given in relation to this matter, and I hope they are clear, I could not hope that I could be more clear, the application for contempt of 28 July 2008 and the application in a case of 12 September 2008 are dismissed.
Insofar as Coker FM drew conclusions about the motivation of the father in bringing the application, I am satisfied that those were available inferences from other findings. I discern no appealable error in the Federal Magistrate’s reasons for the order dismissing the father’s application filed 12 September 2008.
The solicitor’s application for security
Notwithstanding the content in his material, Mr Middleton, for the solicitor, accepted that the costs of the appeal were likely to be, and therefore the amount in which security was sought, in the order of $6,000.00. The father stated that he would not be able to raise such a sum.
Conclusion
I conclude that there are no prospects of success of the father on appeal. Given this, and the father’s statement that, if I ordered security for costs on the appeal (which I consider I would highly likely do) he would not be able to meet the security, in my view, the proper course is to dismiss the application for an extension of time. On the basis of that dismissal, I would in turn dismiss the application for security for costs as being unnecessary.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 19 December 2008
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