SCOLLAN & ALLAMBY - [2021] FamCAFC 17

FAMILY COURT OF AUSTRALIA

SCOLLAN & ALLAMBY

[2021] FamCAFC 17

FAMILY LAW – LEAVE TO APPEAL – APPEAL – DISMISS – Where the respondent seeks that the appellant’s Amended Notice of Appeal be summarily dismissed – Where the grounds of appeal in the Amended Notice of Appeal are incompetent and fail to identify any appealable error by the primary judge – Where the appeal has no prospect of success and thus the application for leave to appeal should be dismissed.

APPEAL – COSTS – Where the appellant opposes the respondent’s application for costs – Where the opposition by the appellant to the application by the respondent seeking dismissal of his appeal was wholly unsuccessful – Where that satisfies the requirement of a justifying circumstance to make an order for costs – Where the financial circumstances of the parties do not prevent an order for costs being made – Where there is ample Full Court authority which provides that even where there is impecuniosity that is not a bar to an order for costs being made where the circumstances otherwise justify it – Where the appellant’s position cannot be described as impecunious – Costs ordered in favour of the respondent in the amount sought.

Family Law Act 1975 (Cth) s 96AA, s 117
Family Law Rules (2004) (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Lindon v Commonwealth (No. 2) (1996) 136 ALR 251; [1996] HCA 14

APPELLANT:

Mr Scollan

RESPONDENT:

Ms Allamby

INDEPENDENT CHILDREN’S LAWYER:

Mr Kent

FILE NUMBER:

ADC

1225

2017

APPEAL NUMBER:

SOA

2020

DATE DELIVERED:

10 February 2021

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

10 February 2021

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

31 August 2020

LOWER COURT MNC:

[2020] FCCA 2398

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Childs

SOLICITOR FOR THE RESPONDENT:

Women’s Legal Services

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Hemsley

INDEPENDENT CHILDREN’S LAWYER

Legal Services Commission of
South Australia

Orders

The oral application by the appellant father to adjourn the hearing of the Application in an Appeal filed by the respondent mother on 29 January 2021 be dismissed.
The respondent mother have leave orally to amend the order sought in the said Application in an Appeal to read, “[t]hat pursuant to s 96AA of the Family Law Act 1975 (Cth) the father’s Amended Notice of Appeal filed on 11 January 2021 be dismissed”.
To the extent that leave to appeal is required the application for leave to appeal contained in the Amended Notice of Appeal filed on 11 January 2021 be dismissed.
For completeness the said Amended Notice of Appeal be dismissed.
The appellant father pay the costs of the respondent mother of and incidental to the Application in an Appeal filed on 29 January 2021 and the Amended Notice of Appeal filed on 11 January 2021 fixed in the sum of $6,000.

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 Scollan & Allamby 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).

THE APPELLATE JURISDISION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

File Number: ADC 1225 of 2017
Appeal Number: SOA 80 of 2020

Mr Scollan

Appellant

And

Ms Allamby

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

Before the court today is an Application in an Appeal filed by Ms Allamby (“the mother”) on 29 January 2021 seeking the following order:
That pursuant to s96AA of the Family Law Act 1975 (Cth) the father’s Application in an Appeal filed on 25 September 2020 and Amended Application in an Appeal filed 11 January 2021 be dismissed.
There is a second order sought, namely, that Mr Scollan (“the father”) pay the mother’s costs.
I will come back to the specific terms of that order, but I note that there was an affidavit filed in support of that application, also on 29 January 2021, as well as a summary of argument. Subsequently, the father filed a Response to that Application in an Appeal on 8 February 2021, and on the same day, an affidavit in support of that Response was filed. In short, what the father seeks is dismissal of the application.
Returning to the specific terms of the orders sought in the application filed by the mother. As is apparent, and as has been confirmed today, there are two typographical errors in that order, in that what is sought to be dismissed is the Application in an Appeal filed on 25 September 2020, when it should have identified the Notice of Appeal filed on 25 September 2020. Likewise, it seeks that the Amended Application in an Appeal filed on 11 January 2021 be dismissed, when it should have sought the Amended Notice of Appeal filed on that day be dismissed. Those typographical errors were carried through to the affidavit in support of the application, but not in the summary of argument. The summary of argument is accurate, in that it identifies correctly and appropriately that the application for dismissal is of the Notice of Appeal and the Amended Notice of Appeal.
The father has in his responding documents made a point of the fact that there is no Application in an Appeal filed on 25 September 2020, and there is no Amended Application in an Appeal filed on 11 January 2021, and for that reason he says that the application before the court today should be dismissed.
As I have indicated during the course of the hearing today, I am not prepared to dismiss the application on that basis, because I am satisfied that the father well knew that what is being sought to be dismissed, is the Notice of Appeal and the Amended Notice of Appeal. And, to repeat, that is made perfectly clear in the summary of argument, and thus I confirm that I am not prepared to dismiss the application on that basis. Indeed, as I also indicated during the course of the hearing, I propose to make a formal order giving leave to the mother to orally amend the application.
Further, I am satisfied that there is no prejudice to the father in making that order and in proceeding to hear and determine the application today. I note though, that the father sought an adjournment of the hearing of the application because of, and these are my words, his understanding of what was before the court today. I have indicated to the father, and I confirm, that I am not prepared to adjourn the hearing for that reason, and I will make a formal order dismissing the father’s oral application.
I have taken that view for two reasons. First, I am satisfied that the father well knew what the subject of the application was, and there could have been no doubt about that, given the history of the proceedings in this Court, and what was said during the previous hearing in this Court on 1 December 2020. Importantly, on that date it was noted that the mother’s counsel foreshadowed the possibility of an application being filed seeking summary dismissal of the appeal, subject to the Amended Notice of Appeal to be filed by the father. And in any event, there is the summary of argument which sets out the correct position.
Thus, to repeat, I am satisfied that the father well knew what the application before this Court was today, and I am not persuaded that the father will suffer any prejudice by this Court proceeding to hear and determine the application today.

Relevant Legal Principles

As is apparent from the application, it is brought pursuant to s 96AA of the Family Law Act 1975 (Cth) (“the Act”), and that section relevantly 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).
In terms of the relevant authority in relation to summary dismissal, which is of course what s 96AA provides, the leading case continues to be Lindon v Commonwealth (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)
For the purposes of the application here, I highlight the first, the second, the third and the sixth principles.

RELEVANT BACKGROUND

The substantive proceedings before the court below concern the issue of parenting orders for the parties’ two children.
Those proceedings were commenced in the court below on 30 March 2017 by the father.
There was a trial listing of that matter on 17 June 2020, but that was vacated, and the matter has now been listed in a trial call-over list before the primary judge on 23 February 2021.
On 28 February 2020, the father filed an Application in a Case and supporting affidavit in which he sought a number of orders, including primarily the recusal of the primary judge, the dismissal of the Independent Children's Lawyer (“ICL”), a separate trial for the issue of whether the family reports produced in the matter should be admitted, and the appointment of new solicitors for the mother.
That application was opposed by the mother and the ICL, and the primary judge heard the matter on 8 July 2020 and 29 July 2020. And to put that into context, his Honour heard submissions from the father on the first date, and submissions from counsel for the mother and counsel for the ICL on 29 July 2020, and his Honour then reserved his decision.
On 31 August 2020 his Honour delivered his reasons for judgment and made the orders the subject of this appeal. The orders that his Honour made were as follows:
(1)That the father’s Application in a Case filed on 28 February 2020 be hereby dismissed.
(2)That the proceedings are adjourned to 23 February 2021 at 10:30am for callover and possible trial listing NOTING the parties are required to personally attend on this day UPON FURTHER NOTING it is requested that counsel properly instructed for trial attend and in the event they are not available, the file principal attend.
(3)That the parties no less than seven (7) days prior to the callover date provide to the Court a case outline including:
a.A joint table of assets and liabilities noting those items agreed, those remaining in dispute and the steps to be taken to resolve the disputed items;
b.A brief Summary of Argument including a Minute of Orders sought; and
c.A trial plan indicating estimated length of trial sought and witnesses relied upon at trial.
As can be seen, the first order dismissed the father’s application.
Now, it is understandable that that order of course would be the subject of the appeal, but it is entirely unclear on what basis an appeal can be brought against orders 2 and 3, but that is what the father has done. Upon querying that with the father today he has indicated that he has appealed against all the orders, thinking that orders 2 and 3, if his appeal is successful, would simply fall by the wayside.
That is not an unreasonable position for the father to take, given that he is without legal representation, but the fact of the matter is that there is no basis, and can be no basis, for an appeal against orders 2 and 3. Indeed, I note that there is absolutely nothing set out by the father in either his Notice of Appeal or his Amended Notice of Appeal, which addresses those two orders, and which provides a ground of appeal, or any basis for setting those orders aside.
Thus, I proceed on the basis that the complaint that the father has, is against the first order, namely the dismissal of his application.
On 25 September 2020, the father filed a Notice of Appeal against those orders and that Notice came before this Court on 1 December 2020.
As it transpired, the Notice of Appeal filed on 25 September 2020 was deemed abandoned as a result of the father failing to file a draft appeal index within the time permitted under the Family Law Rules 2004 (Cth).
On 2 November 2020, the father then filed an Application in an Appeal seeking reinstatement of the appeal. That application came before this Court on 24 November 2020, and by consent, the appeal was reinstated and other orders were made, namely including for the father to file and serve a draft appeal index, and adjourning the matter to a directions hearing on 1 December 2020.
I made that latter order with a view to specifically addressing the grounds of appeal in the Notice of Appeal and the further conduct of the appeal, given that, as I highlighted to the parties on 24 November 2020, in my view, there were serious deficiencies in the father’s Notice of Appeal as it stood, and particularly referring to the incompetent grounds of appeal, as I now describe them.
In any event, the matter came before this Court again on 1 December 2020, and I confirmed my view that the grounds of appeal were, as I now describe, incompetent, and failed to identify any appealable error.
Nevertheless, the father sought an adjournment to file an Amended Notice of Appeal. That application was not opposed by the mother or the ICL, and thus I made orders providing for the father to file and serve an Amended Notice of Appeal, and adjourned the matter to today for further consideration.
As I have already mentioned, it was also noted that the mother’s counsel foreshadowed the possibility of an application being filed seeking summary dismissal of the appeal, subject to the Amended Notice of Appeal to be filed by the father.
On 11 January 2021, the father filed his Amended Notice of Appeal, and that is what is before the Court today in the context of the application for dismissal.
Indeed, I should note the earlier discussion about what is being sought to be dismissed. There is no need to seek dismissal of the Notice of Appeal filed on 25 September 2020, given that that Notice of Appeal is subsumed in the Amended Notice of Appeal. Thus, it is only necessary to consider dismissal or otherwise of the Amended Notice of Appeal.

Leave to appeal

In both the Notice of Appeal and the Amended Notice of Appeal, the father has sought leave to appeal.
Neither the mother nor the ICL have challenged that and suggested that there is no need for leave to appeal.
However, the position on the authorities, as I understand them, is that there is no requirement to seek leave to appeal against an order dismissing an application that a trial judge recuse himself or herself, but it is arguable that with the other orders sought in the application, and ultimately dismissed by his Honour, that there is a need for leave to appeal against the dismissal of the application for those orders. Understandably, where there is a mix of orders sought, and where the dismissal, depending on which order is referred to, may or may not require leave to appeal, that leave to appeal is sought.
I do not need to spend any more time on this issue though, because in summary, it is readily apparent that the basis of seeking leave to appeal by the father is the success, as he would put it, of his grounds of appeal. The test as to whether leave to appeal is granted or not is whether, in all the circumstances, the decision complained of is attended by sufficient doubt to warrant it being reconsidered by the Full Court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
In terms of the issue of sufficient doubt, matters referred to by the father in his Amended Notice of Appeal in support of his application for leave to appeal, can be seen as precisely the same matters which are the subject of the grounds of appeal. That is often the case in these matters, and thus, appropriately in those circumstances, the grounds of appeal need to be considered, and of course if they are found to have merit, then leave to appeal would follow, but of course, otherwise, if there is no merit in the grounds of appeal.

DISCUSSION

The grounds of appeal contained in the Amended Notice of Appeal comprise a number of paragraphs extending over seven pages. They are in numbered paragraphs but an apt description for the contents is that they contain a narrative and as such, the so-called grounds of appeal are inadequate. They improperly comprise submissions, commentary, opinion and argument, whereas what they should comprise is identifiable grounds of appeal demonstrating appealable error by the primary judge. Given how the grounds have been drafted, that is not only a difficult exercise; it is an impossible exercise. And to not put too fine a point on it, what is set out in those seven or so pages, does not demonstrate any appealable error by the primary judge.

I do not propose to go through those seven pages line by line or chapter and verse, and I propose to proceed in a summary way.
Ground 1 alleges that the primary judge misdirected himself as to the law and as to the facts, but the difficulty and the problem for the father is, he does not identify how his Honour has misdirected himself, and specifically, in relation to what law and what facts. He refers generally to the decision handed down on 31 August 2020, but nothing more.
Ground 1(a) is simply not a competent ground of appeal. It alleges that the primary judge treated the appellant as if he were legally qualified and knew the Rules of Court. That is nothing more than a bold assertion. There are no particulars in relation to it, no reference to anything, for example, in the reasons for judgment. To repeat, it is an incompetent ground of appeal.
Ground 2, in its opening words, frankly, is difficult to follow and comprehend, but it seems that this ground is directed to the issue of alleged bias on the part of the primary judge. What the father has done is, in subparagraphs 1 through 16, traversed the history of the proceedings, the various hearings that have been conducted, the child dispute conferences that have taken place, the documents filed, the child dispute conference memoranda, the family reports, the psychological report prepared by Dr B, the conduct of the family conference at the offices of the Legal Services Commission, and the complaints that the father has made along the way in relation to the way conferences have been conducted and the like.
However, it seems that that content is entirely new. And by that I mean none of the matters set out therein have been identified or demonstrated to be matters that were put to the primary judge in support of any of the orders that were sought from his Honour, but particularly, the order that his Honour recuse himself. It is not open to an appellant to introduce new material in that way, and seek to rely on it in some way as a ground of appeal. A litigant is bound by the case that the litigant runs in the court below, and is not able to run the case differently on appeal, and this is an attempt that smacks of the father doing that.
As was submitted by the counsel for the mother, it can also be seen as an attempt by the father to re-run his case (albeit a different case) before this Court, and the fact of the matter is, that is not open to an appellant. That is not what an appeal is about. An appeal is about being able to demonstrate on the evidence before the primary judge, that the primary judge made an appealable error in making the orders.
That is not what the father has done in these several pages. Indeed, if I recall it correctly, one submission that the father put to me today, was that what he was intending to do, and this confirms what I have just said, is to put further information, and new information before this Court, to, in my words, obtain a different result. Again I stress, that is not what an appeal is about.
In terms of what his Honour said about the application that he recuse himself, that appears commencing at [44] of his Honour’s reasons for judgment, and correctly, his Honour identified the principles that apply, citing the well-known High Court case of Johnson v Johnson (2000) 201 CLR 488. His Honour refers to in [47] that the father relied on his submissions filed with this Court, and the affidavit filed in support of the Application in a Case. In discussions with counsel today, in considering the question as to whether any of this material that is now in the Amended Notice of Appeal was put before the primary judge, I have had occasion to look at those submissions and the affidavit, and none of what is now in the Amended Notice of Appeal, can be found in either of those two documents.
Indeed, that was the problem his Honour had, and he said in [51]:
[The father] does not provide any particulars for these allegations.
Those allegations were bald, general allegations as, for example, set out in [48].
His Honour also correctly, without referring to the particular authority, made what I consider findings that were open to him on the evidence, and the submissions that were before the court, and here I am referring to [66] and [68] of the reasons for judgment where his Honour said this:
66.It is not possible to identify with any confidence, what it is that might lead me to decide this case other than on its legal and factual merits.
…
68.This then makes it difficult to establish any logical connection between the matter and the feared deviation in the course of deciding the case on its merits.
What his Honour is there referring to is the test established in the High Court case of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 in relation to the principles concerning disqualification on the ground of apprehended bias There the High Court said this:
6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
…
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Footnotes omitted)
My point in referring to his Honour’s reasons for judgment in the context of the application now before this Court, is appreciating that the father is without legal representation. I have considered his Honour’s reasons for judgment, and the material that was before his Honour, and I am satisfied that in making the order that his Honour did in refusing the application to recuse himself, there is no error identified.
His Honour’s reasons are sound, and there can be no merit in that part of the Amended Notice of Appeal, even if I proceed on the basis that what is contained in the Amended Notice of Appeal can be described as being in some way, appropriate grounds of appeal. Bearing in mind, that in my view, that is not the case, but again recognising the position of the father, I needed to go to that extent.
Secondly, there are then paragraphs 3 through 10, and they are nothing more than a repeat of the so-called grounds of appeal set out in the Notice of Appeal filed on 25 September 2020. By repeating them in this document, they have not achieved any greater success in demonstrating an appealable error. They did not in the initial document, and they do not in this document.
Finally, there is paragraph 11 where the father suggests that the primary judge demonstrated, as he describes it, further bias and/or apprehended bias in the series of events which took place following the filing of his Application in a Case on 28 February 2020. Nothing in that paragraph persuades me that his Honour, in the hearings therein identified, namely April through July 2020, has exhibited bias or apprehended bias. There are no particulars. They again are just bald allegations, and cannot be said to have any merit.
In summary, and to repeat, the so-called grounds of appeal set out in the Amended Notice of Appeal are incompetent in that they do not demonstrate appealable error. I have taken the time to look at the in excess of seven pages alleged to comprise the grounds of appeal, and I have identified that much of the material in those seven pages is inappropriate and cannot be put, and certainly cannot be said to comprise grounds of appeal. However, doing the best I can with what is contained in those pages, and assessing those complaints against his Honour’s reasons for judgment and the evidence and submissions that were before his Honour, I am not persuaded that there is any complaint therein contained that has any merit, even if it could be described as a ground of appeal.
Given that I have found that the grounds of appeal, so-called, have no merit and thus, given what I have said earlier as to the basis of the application for leave to appeal, that application should fall by the wayside, and I propose to, in terms of the formal order I make, dismiss the application for leave to appeal, and that will finalise the matter.

Costs

I now have an application for costs by the mother.
The amount sought is $6,000 and there is a schedule of costs providing the detail of that amount which has been filed on 8 February 2021 and, as I understand it, been served on the father.
As is well known, the primary position in relation to costs is that each party is to bear their own costs (s 117(1) of the Act), but if there are circumstances that justify the making of an order for costs, then this Court has that discretion (s 117(2)), and in exercising that discretion, there are a number of factors that the court needs to look at (s 117(2A)).
Obviously, the court needs to first identify a circumstance justifying an order for costs. That circumstance is that the opposition by the father to the application seeking dismissal has been wholly unsuccessful (s 117(2A)(e)). That, as far as I am concerned, satisfies the requirement of a justifying circumstance, and thus it is open to me to make an order for costs.
The application is opposed by the father, and in submissions he has put to me, and these are my words not necessarily his, that the appeal was warranted, that it could have been dealt with or disposed of earlier in the piece, and therefore there should be no order for costs.
The father has also relied on his financial circumstances, and he has provided me with an outline of those. He has a business that he operates and which he says is quite a popular and successful business. He draws a wage from the business of about $17,000 a year, and he has plant and equipment and motor vehicles. He does not own a home but rents a property where he lives, he has loans associated with his business and, as with any business, he, I assume, has trade creditors and trade debtors. He says he manages to “keep his head above water”.
In terms of the financial circumstances of the mother, I am told that she does not work, she receives a Newstart allowance, her expenses either equal or exceed her Newstart allowance, she has the care of the two children of the relationship, she rents a home and does not have any assets of any significance.
I do not accept the submission of the father that his appeal was warranted. I have found that the Amended Notice of Appeal, and indeed this would also apply to, if I was dealing with it, his Notice of Appeal, has no merit whatsoever. As a result, the application seeking dismissal was well justified.
The father chose to oppose that application, and as a result, the mother has incurred legal costs in pursuing an ultimately successful application to dismiss the appeal.
In terms of the financial circumstances of the parties, the mother’s circumstances are obviously relatively poor, but the father is able to manage on his wage and run his business successfully. Thus, he is not, in my view, in the same poor financial circumstance as the mother.
I am not persuaded that the financial circumstances of the parties would prevent an order for costs being made, and in any event, there is ample Full Court authority which provides that even where there is impecuniosity, if there are circumstances that justify an order for costs being made, that impecuniosity cannot prevent an order for costs being made. I hasten to add though, that I do not perceive that the father’s position can be described as impecunious.
I propose to make an order for costs and in the amount sought.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 10 February 2021.

Associate:

Date: 23 February 2021