Spanos & Besley
[2022] FedCFamC1A 23
•22 February 2022
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 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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
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 application heard on 7 December 2020, fixed in the sum of $4,000. There were also orders made which required the Independent Children's Lawyer (“ICL”) to organise the preparation of a family report, a psychiatric assessment and report of the parties, and permitting the ICL to provide copies of subpoenaed material to both experts.
By Notice of Appeal filed 17 January 2022, the father appealed from those orders. However in a letter dated 2 February 2022, an Appeals Judicial Registrar advised the father that there would be a hearing before me on 15 February 2022 “to enable [the father] to be heard as to why the appeal should not be summarily dismissed or incompetent grounds being struck out”. At the conclusion of that hearing, I reserved my decision in relation to those matters. I also reserved my decision in relation to an oral application made by the father to rely upon a bundle of material which he had filed the day before.
For the reasons which follow, the Notice of Appeal filed 17 January 2022 will be dismissed, as will the father’s oral application of 15 February 2022.
BACKGROUND
The parties have two children to their relationship, V, who is presently 13 years of age, and X, who is two years of age.
By Initiating Application filed on 10 August 2020 in the Brisbane Registry of the Family Court, the father sought parenting orders in relation to both children. Subsequently those proceedings were transferred to the Federal Circuit Court of Australia.
Thereafter the mother filed an Application in a Case seeking that the proceedings be transferred from Brisbane to Cairns, given that both parties and the children lived in Cairns. On 7 December 2020, a Federal Circuit Court judge acceded to the mother’s application, and made an order for transfer. Later the mother pressed her application for costs associated with that application, and it was that application which was determined by the primary judge on 20 December 2021. Also at the hearing of the mother’s application for costs, the ICL sought orders, including those subsequently made by the primary judge relating to the preparation of a family report and a psychiatric assessment and report. It is from those orders which the father now appeals.
THE ORAL APPLICATION TO ADMIT FURTHER MATERIAL
At the very end of the hearing before me on 15 February 2022, the father indicated that he wanted to rely upon a bundle of material which had been filed only the afternoon before. I reserved my decision in relation to the admission of that material.
Having now considered all of the material, it falls into two groups. The first is material which was before me in any event. The second is additional material, for instance transcripts of earlier proceedings and affidavits relied upon in them. None of that additional material could possibly bear upon the merits of the father’s appeal. Therefore the oral Application in an Appeal made 15 February 2022 will be dismissed.
SUMMARY DISMISSAL
The Federal Circuit and Family Court of Australia Act 2021 (Cth) permits the summary dismissal of appeals where they have no reasonable prospects of success (see ss 46(2) and 46(3) and the definition of “proceeding” in s 7). The power to summarily dismiss may be exercised by a single judge (see ss 32(3)(b) and 32(5)).
THE APPEAL
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)
It appears as though the different articulation of the grounds of appeal in the latter document is erroneous, and I propose to ignore them to the extent they depart from the grounds articulated in the Notice of Appeal.
Ground 1 – Costs
Before I discuss this ground of appeal, it should be noted that appellate courts have generally been reluctant to interfere with a primary judge’s discretion as to costs (Robinson and Higginbotham (1991) FLC 92-209 (“Robinson”)). However that does not mean that there should never be interference with the exercise of a costs discretion (Stasiuk & Guild [2021] FamCAFC 62 at [6]), but rather an appellate court must interfere “if the result is plainly unjust or if the discretion was exercised on wrong principles” (Robinson at 78,417).
This ground appears to have as its starting point that counsel at the 7 December 2020 hearing relating to the transfer of the proceedings from Brisbane to Cairns, did not tell the presiding judge that the resident Cairns Federal Circuit Court judge had dealt with the father in previous parenting proceedings in relation to another child, in consequence of which she would likely recuse herself from further dealing with any transferred proceedings. The next point is that after the proceedings were transferred, in fact it transpired that the resident judge in Cairns did recuse herself from dealing with the new proceedings. At the hearing when she did so, the solicitor for the mother told the Court, once the primary judge had intimated her intention to recuse herself, that “I anticipated you may do this” (Transcript 3 March 2021, p.3 line 22). The father then says that, given that statement by the mother’s solicitor, she ought to have instructed counsel in the earlier transfer proceedings to make the submission that if transferred, the resident Cairns judge would likely recuse herself from dealing with the matter, which, he infers, would have militated against the matter being transferred. He characterised this failure as a failure to make “admissions of facts” such that when the primary judge was dealing with the subsequent application for costs, s 117(2A)(c) of the Family Law Act 1975 (Cth) (“the Act”) was directly engaged.
However there are at least two flaws to this argument. The first is that the conduct of a party in relation to “admissions of fact” referred to in s 117(2A)(c) of the Act is plainly not intended to capture a failure to press matters of fact in submissions to the court. Rather it is focussed upon formal admissions of fact requested to be made by one party of the other as is, for instance, currently provided for in Pt 8.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Section 117(2A)(c) is not engaged on these facts in the way the father contends.
In any event, the submission, even if it had been made on 7 December 2020, is unlikely to have militated against the transfer of the proceedings. That is because judges other than the resident Cairns judge regularly circuit there, in part to deal with any such conflict matters.
It therefore follows that any failure by the primary judge – assuming there was a failure – to advert to this consideration does not speak to any error by his Honour. This ground of appeal therefore does not enjoy reasonable prospects of success. Moreover, the order for costs is not plainly unjust or exercised on wrong principles.
Ground 2 – Family report and psychiatric report
Even assuming that orders in relation to a family report and a psychiatric assessment and report are each a “judgment” as that term is used in s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and hence susceptible of appeal (as to which, see Hullett & Benton [2022] FedCFamC1A 13), this ground of appeal alleges factual matters which were not raised by the father before the primary judge. Indeed in relation to this suite of now impugned orders, at [37] the primary judge noted “the [f]ather did not object to the proposed order but neither did he consent to it. He said that he thought the order would be unnecessary including for example that a family report had been prepared”.
The father was mistaken as to the latter, as a family report had only been prepared in the earlier proceedings involving another child and mother, but in any event, the argument which the father now wishes to raise under the cover of this asserted ground is a factual one, and not purely one of law. Parties are bound by the way they conduct their cases at first instance (Metwally v University of Wollongong (1985) 60 ALR 68).
Moreover, even if the matters now complained of by the father were true – seemingly that the ICL has some prior professional association with the mother and members of her family, and/or may have misconducted herself in earlier proceedings involving the father – that may well be a basis for seeking to have her removed as ICL, but would not, even if established, invalidate or infect orders made prior to any discharge which required her to attend to matters such as initiating a family report or psychiatric report. Those orders would nonetheless remain intact and undamaged.
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.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 22 February 2022
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