Spanos & Besley

Case [2022] FedCFamC1A 23

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Spanos & Besley [2022] FedCFamC1A 23

Appeal from: Spanos & Besley [2021] FedCFamC2F 618
Appeal number(s): NAA 21 of 2022
File number(s): BRC 10673 of 2020
Judgment of: TREE J
Date of judgment: 22 February 2022
Catchwords: FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Where the father appeals from a costs order and orders initiating a family report and psychiatric report – Where the grounds of appeal do not enjoy reasonable prospects of success – Where the appeal has no reasonable prospects of success – Appeal summarily dismissed – Application to admit further material dismissed – Costs ordered in favour of mother.
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26, 32, 46

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 8.1
Cases cited:

Hullett & Benton [2022] FedCFamC1A 13

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 5

Stasiuk & Guild [2021] FamCAFC 62
Number of paragraphs: 28
Date of hearing: 15 February 2022
Place: Cairns (via video link)
The Appellant: Self-represented litigant
Solicitor for the Respondent: Collier Lawyers
Solicitor for the Independent Children's Lawyer: Reaston Drummond Law

ORDERS

NAA 21 of 2022
BRC 10673 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR SPANOS

Appellant
AND:

MS BESLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

22 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The father’s oral Application in an Appeal made 15 February 2022 is dismissed.

2.The Notice of Appeal filed 17 January 2022 is dismissed.

3.Within 28 days the appellant pay the respondent’s costs of and incidental to the appeal in the sum of $1,004.42.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spanos & Besley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

INTRODUCTION

  1. On 20 December 2021, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders requiring Mr Spanos (“the father”) to pay Ms Besley (“the mother”) her costs of an…

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AGLC
Spanos & Besley [2022] FedCFamC1A 23
Case
[2022] FedCFamC1A 23
Decision Date

CaseChat Overview and Summary

In this case, Mr. Spanos, the father, appealed against a costs order and orders initiating a family report and psychiatric report issued by the Family Court. Ms. Besley, the mother, sought an order for costs in the sum of $1,004.42 in relation to the appeal. The Independent Children's Lawyer (ICL) did not seek an order for costs. The legal issues before the court were whether the grounds of appeal had reasonable prospects of success and whether the appeal should be summarily dismissed.

The court found that neither of the grounds of appeal had reasonable prospects of success. The first ground concerned the transfer of jurisdiction and the consideration of the parties' conduct during the proceedings. The court found that the primary judge had considered the conduct of the parties in relation to the proceedings and that the appeal did not raise any new or compelling arguments. The second ground concerned the ICL's alleged non-disclosure of her connections to the Hallett family and her conduct in the case. The court found that the ICL's decisions had been based on the best interests of the children and that the father's allegations were not supported by the evidence. The appeal was summarily dismissed, and the application to admit further material was dismissed.

The court ordered that the father pay the mother's costs of and incidental to the appeal in the sum of $1,004.42 within 28 days. The court found that the father's financial position did not militate against an order for costs and that the circumstances justified such an order. The form of the order is subject to the entry in the Court's records. This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

NAA 21 of 2022

BRC 10673 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR SPANOS

Appellant

AND:

MS BESLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

22 FEBRUARY 2022

THE COURT ORDERS THAT:

1. The father’s oral Application in an Appeal made 15 February 2022 is dismissed.

2. The Notice of Appeal filed 17 January 2022 is dismissed.

3. Within 28 days the appellant pay the respondent’s costs of and incidental to the appeal in the sum of $1,004.42.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The grounds of appeal in the Notice of Appeal filed 17 January 2022 read as follows:1 & 2. The [primary judge] did not take into consideration in the Mothers costs application to transfer Jurisdiction from Brisbane to Cairns, that applying Family Law Act Sect 117 Costs (2A) (c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters; as supplied above was not forthcoming at the Brisbane hearing on the 7 December 2021. 3,4 & 5, The Current Independent Child Lawyer (ICL) whom was the ICL in my first case …, of which this same ICL did not disclose that her Families Legal firm did represent not only my wife/respondent in the aforementioned case, yet also legally represented my wifes Mother (a ...) and her father prior to our case. I have expressed this to all concerned in an affidavit and although all of the ICL's decisions in the case have echoed the respondent/mothers lawyers request she still remains on the case. [The ICL] has done nothing but put the children lives in peril due to ignoring the cases subpoenaed evidence.In my first case …, when I was told of my daughter by people at her school about [the father’s daughter] going to the corner store at 5 years old with a hundred dollar note, doing some grocery shopping alone I asked the ICL to contact a close neighbor …, whom I am friends with, he and his partner were also extremely concerned regarding my daughters safety while living with the mother. I informed the ICL at the time [the ICL] that she could contact [the neighbour] for further information.The ICL … did contact [the neighbour] by telephone and [the neighbour] stated he tried to tell [the ICL] what was happening at the mothers home and the concerns held for [the father’s daughter], yet [the ICL] only questions to [the neighbour] were, did you ever see [the father]/myself ever assault his wife while he/I was living at the property.[The neighbours] have given their approval to make an statement/affidavit regarding this incident. [The ICL] noted in a letter, that [the neighbour] had no information regarding the case, essentially perverting the course of Justice and putting [the father’s daughter] life at risk and is currently proceeding to do the same with the children in this case.(As per the original) It is reasonably apparent that the numbering of those alleged grounds of appeal is intended to reflect the orders which the two grounds challenge. Therefore the Notice of Appeal only contains two grounds of appeal. In his Summary of Argument filed 8 February 2022, the father repeated those grounds verbatim. However confusingly, in submissions filed 14 February 2022, the father referred to three grounds of appeal as follows:1.The appellant appeals the costs Ordered by [the primary judge]2.The he appellant appeal psychiatrist report Ordered by [the primary judge]3.The matter was transferred from the FCA to the FCCA by order on 9 October 2020 because the matter was not deemed complex the respondents council and the ICL have turned the case into a complex case and the Independent Children's Lawyer (ICL) and firm needs to be remove and replaced by a firm not of Cairns, for non-disclosure of her connections to the Hallett family and for further see hereto point 7 below.(As per the original)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that Ground 2 is without merit and has no prospects of success.CONCLUSION Neither ground of appeal enjoys reasonable prospects of success, and hence the appeal does not enjoy such prospects either. It ought be dismissed.COSTS In the event the appeal were dismissed, the ICL sought no order for costs, however the mother sought an order for her costs in the sum of $1,004.42. The appeal was wholly misconceived and without merit, and should have never been brought. The father told me that his financial circumstances are that he earns about $45,000 per annum from his business, and that he presently has $25,000 in his bank account. However it appears as though $10,000 of that $25,000 relates to superannuation monies (and it is unclear whether the father has a present right to access them) and in any event, the balance comprises funds needed to conduct his business; for example $7,000 is due to be paid to creditors in early March. I am not satisfied that the father is impecunious, and in any event impecuniosity would not be a bar to a costs order (see Northern Territory v Sangare (2019) 265 CLR 164). His financial position does not militate against an order for costs. I am satisfied the circumstances justify an order for costs, which should be in the sum claimed by the mother. Those costs should be paid within 28 days.

Ratio Decidendi

Legal Principle Established

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