Spellson & Killian
[2022] FedCFamC1A 4
•27 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Spellson & Killian [2022] FedCFamC1A 4
Appeal from: Spellson & Killian [2021] FCWA 164 Appeal number(s): NAA 29 of 2021 File number(s): PTW 292 of 2008 Judgment of: AUSTIN J Date of judgment: 27 January 2022 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Summary Dismissal – Where other grounds of appeal were previously struck out as incompetent – Where the respondent seeks summary dismissal of the appeal in its newly amended form – Where the appeal is from the dismissal of the appellant’s application for costs of parenting proceedings finalised by consent – Where the solitary ground of appeal is that in dismissing the application the primary judge failed to take into account s 117(2A)(d) of the Family Law Act 1975 (Cth) – Where there was no factual foundation established for the application of s 117(2A)(d) – Where the appeal is prosecuted on a false premise – Where the appellant has no reasonable prospect of success – Appeal summarily dismissed. Legislation: Family Law Act 1975 (Cth) s 117(2A)(d)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 35, 46, 66
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Spellson & Killian [2021] FedCFamC1A 47
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Number of paragraphs: 23 Date of hearing: 27 January 2022 Place: Newcastle (via video link) The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 29 of 2021
PTW 292 of 2008FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SPELLSON
Appellant
AND: MS KILLIAN
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
27 JANUARY 2022
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed on 22 November 2021 is dismissed.
2.Otherwise:
(a)the Application in an Appeal filed on 15 December 2021 by the respondent is dismissed; and
(b)the Application in an Appeal filed on 10 January 2022 by the appellant is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spellson & Killian has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
The incompetent grounds of appeal contained within the Amended Notice of Appeal filed in these proceedings on 1 November 2021 were struck out by order made on 2 November 2021, for reasons published that day (Spellson & Killian [2021] FedCFamC1A 47).
As required, the appellant filed a further Amended Notice of Appeal on 22 November 2021.
Then, on 15 December 2021, the respondent filed an Application in an Appeal seeking the summary dismissal of the appeal in its newly amended form, which application was listed for hearing today. The appellant subsequently filed an Application in an Appeal on 10 January 2022 and it was listed for hearing simultaneously.
This Court is empowered by the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) to summarily dismiss unmeritorious appeals (s 46(2)). Summary dismissal is justified if the appeal has no reasonable prospect of success, even if the appeal is not hopeless or bound to fail (ss 46(2) and 46(3)). The power of summary dismissal may be exercised in respect of an appeal by a single judge (ss 32(3)(b) and 32(5)).
The pending appeal is from an order made by a judge of the Family Court of Western Australia on 3 September 2021, dismissing numerous applications brought by the appellant. Relevantly, one of the dismissed applications (filed in June 2021) was for the respondent to pay the appellant’s costs of and incidental to parenting proceedings, finalised in August 2020 by consent orders made between them.
The solitary ground of appeal now pressed by the appellant is that, in dismissing the costs application, the primary judge wrongly failed to take into account s 117(2A)(d) of the Family Law Act 1975 (Cth) (“the Act”), being a mandatory consideration affecting the disposition of an application for costs if the underlying proceedings were necessitated by the respondent’s failure to comply with previous orders of the Court.
The ground was pleaded as follows:
Sect 117 – Family law act 1975, (2A) (d) Weather (sic) the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court. The respondent Failed to comply with the orders of 7th February 2008 which triggered the requirement to return to court in 2011. The appeal is related to the failure by the primary judge to apply s 117(2A)(d) of the Family Law Act 1975 (Cth) (“the Act”) in determining the costs dispute.
(As per the original)
In this instance, the appellant alleged he commenced the parenting proceedings in 2011 because he was dissatisfied with the respondent’s compliance with pre-existing parenting orders made in February 2008. Hence, so he alleged, s 117(2A)(d) was necessarily engaged by his costs application and the omission of its consideration was an error by the primary judge.
As was previously recorded in the reasons for judgment delivered on 2 November 2021:
10.It is apposite to observe that the argument now mounted – an asserted failure by the primary judge to take s 117(2A)(d) of the Act into account as a material consideration – was the subject of only the lightest touch in submissions made by the appellant to the primary judge at first instance. The costs application was determined on written submissions and, in his submissions filed on 4 August 2021, the appellant said only this:
29.Item 37) The [respondent] didn’t provide access to the child as per original orders therefore made it necessary for these proceedings to be bought by the [appellant]. …
…
36.… The [appellant] seeks the [respondent] to pay costs for the prolonged complex parenting proceedings that were only bought about by necessity by the [respondent] not adhering to original court orders.
(As per the original)
11.The primary judge therefore inaccurately recorded this in the reasons for judgment in reference to s 117(2A)(d) of the Act, when recounting the particular sub-sections of s 117(2A) which were “not in issue”:
32.The parenting proceedings were not said by either party to have been necessitated by the failure of the other to comply with previous orders.
12.Nevertheless, the error is not necessarily dispositive of the appeal. But the appeal is not being heard now and it is unnecessary to discuss its prospects of success. It is only presently necessary to identify the grounds of appealable error upon which the appellant appeals from the dismissal order made on 3 September 2021, which grounds are not sufficiently exposed by the contents of the existing Amended Notice of Appeal.
(Emphasis added)
While it was not then apposite to consider the appeal’s prospects of success, it is now because of the respondent’s application to summarily dismiss it.
The appeal is prosecuted on a false premise. Although the appellant may genuinely believe he was motivated to re-commence parenting proceedings in 2011 by the respondent’s failure to comply with the prior orders made in February 2008, neither the primary judge nor the appeal court could accept that premise as being factually correct. It is an assertion of mere belief as distinct from an established fact.
Because the fresh parenting proceedings commenced by the appellant in 2011 were eventually resolved in August 2020 by consent orders, there was no trial and hence no factual finding made by the primary judge that the proceedings were necessitated by the respondent’s failure to comply with the former orders. There was consequently no factual foundation established for the application of s 117(2A)(d) of the Act on the subsequent question of costs, meaning it could not then have been a relevant consideration. While the primary judge did mistakenly say the appellant did not seek to invoke s 117(2A)(d), the mistake was immaterial because the provision could not apply, even though the appellant thought it did.
In his Application in an Appeal, the appellant sought an order in these terms:
1.The respondent (sic) to produce edviance (sic) of her claims in her Application in an Appeal Filed 15th December 2021
(As per the original)
In support of his application for that order, the appellant said this in his supporting affidavit filed on 10 January 2022:
1.The respondent has sworn on oath the affidavit dated 15th December 2021 that the contents of the affidavit are true.
2.The respondent has failed to provide any sought (sic) of proof that the contents are in fact true.
(As per the original)
The appellant’s application for that order (based on that evidence) was misconceived because the respondent did adduce sworn evidence in support of her summary dismissal application. She filed an affidavit on 15 December 2021 in which she denied her alleged non-compliance with antecedent orders in this way:
13.[The appellant] states that I instigated the proceedings by not following Court orders. [The appellant] has not produced evidence to support this claim throughout the proceedings. [The appellant] did not once make application for contravention of a court order. I followed court orders and did not do so twice when police intervention was required and in consideration of personal safety when [the appellant] engaged in acts of domestic violence.
14.[The appellant] throughout the proceedings failed to follow court orders and currently does not follow court orders.
The appellant did not file any affidavit to refute that evidence. There is no reason to reject the respondent’s unchallenged evidence, in which case the factual premise for the application of s 117(2A)(d) is removed entirely.
Even if the appellant had filed an affidavit to refute the respondent’s evidence, it would not elevate his assertion of her failure to comply with past parenting orders above a bare allegation, still fiercely denied by her.
The appellant could not adduce any further evidence in the appeal (pursuant to s 35(b) of the FCFCA Act) to try and prove the factual premise for the application of s 117(2A)(d), as any such evidence would have been available for him to adduce at the time of the costs application. Attempting to now belatedly adduce it in the appeal would improperly tend to obliterate the distinction between original and appellate jurisdiction (CDJ v VAJ (1998) 197 CLR 172 at [55], [111], [114], [116] and [186.9]).
The second order the appellant sought in his Application in an Appeal was in these terms:
2.The “Application in an Appeal” document filed on the 15th of December 2021 is an incomplete document. The docement (sic) should be dismissed.
In support of his application for that order, the appellant said this in his supporting affidavit:
3.The Application in an Appeal document filed on the 15th December 2021 is missing the last page “Important Notices to the Respondent/s” and as such is an incomplete document.
Even if the copy of the respondent’s Application served on the appellant inadvertently omitted the standard information for respondents at its conclusion, the defect was not such as to invalidate the Application (s 66 of the FCFCA Act). More importantly, the appellant was not denied procedural fairness because he well knew what information was omitted from the respondent’s Application, as exactly the same information was correctly included within his own Application in an Appeal filed on 10 January 2022. The second aspect of the appellant’s application was therefore also without merit.
It is trite to observe that the power to summarily dismiss proceedings should be exercised with considerable caution (Spencer v Commonwealth of Australia (2010) 241 CLR 118). However, the appellant has no reasonable prospect of demonstrating in the appeal that the primary judge, when dismissing his costs application, erred by failing to take a material consideration into account pursuant to s 117(2A)(d) of the Act. The appeal is therefore summarily dismissed.
Neither party sought costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 27 January 2022
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