Spellson & Killian
[2021] FedCFamC1A 47
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Spellson & Killian [2021] FedCFamC1A 47
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: 2 November 2021 Catchwords: FAMILY LAW – APPEAL – Practice and Procedure – Where the grounds of appeal as presently pleaded do not clearly articulate any form of legal, factual or discretionary error – Where the appeal was listed to afford the appellant the opportunity to be heard about why the incompetent grounds should not be struck out – Where the incompetent grounds are struck out – Where in default of another Amended Notice of Appeal being filed within 21 days, the appeal is summarily dismissed. Legislation: Family Law Act 1975 (Cth) ss 117(2A)(d)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32(3)(b), 46(2), 69(4)
Cases cited: House v The King (1936) 55 CLR 499; [1936] HCA 40 Number of paragraphs: 13 Date of hearing: 2 November 2021 Place: Newcastle 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:
2 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The grounds of appeal contained within the Amended Notice of Appeal filed on 1 November 2021 are struck out and, in default of another Amended Notice of Appeal being filed within 21 days, the appeal is summarily 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:
On 3 September 2021, a judge of the Family Court of Western Australia made an order between the appellant and the respondent in these terms:
1.All outstanding applications and responses including as to costs be and are hereby dismissed.
The effect of the order was to dismiss all pending applications between the parties, which relevantly comprised these applications brought by the appellant:
(a)an application against the respondent for costs in respect of parenting proceedings contested between the parties from 2011 until 2020, which proceedings were eventually resolved by consent orders (Application in a Case filed on 22 June 2021);
(b)an application for an order compelling the retention of monies in trust as security for the payment of costs awarded in his favour against the respondent in other proceedings started in the Supreme Court of Western Australia and later cross-vested to the Family Court of Western Australia (Application in a Case filed on 24 June 2021);
(c)an application for access to certain documents filed in proceedings contested between the respondent and a third party, to which the appellant was not privy (Application in a Case filed on 24 June 2021); and
(d)an application for an order compelling the provision of documents and transcripts to the Commonwealth Director of Public Prosecutions in anticipation of the respondent being prosecuted for perjury or some similar offence (Application in a Case filed on 24 June 2021).
The Amended Notice of Appeal filed by the appellant on 1 November 2021 contains grounds of appeal pleaded as follows:
1.The original orders of 7th February 2008 for contact/ visitation between the father and the child were not considered in the ruling for the application for costs in the parental proceedings from 2011 and 2020.
Item 32 of the Judgement states – The parenting proceedings were not said by either party to have been necessitated by the failure of the other to comply with previous orders.
Item 8 of Applicants submission sealed 4/08/2021 states “the first respondent failed to facilitate unless I complied with her own additional personal conditions”
Item 15 “Trying to stop contact between the first applicant and the child by moving to [Town B]”
Item 17 “coercive control over child access and demand for goods”
Item 29 “The first respondent didn’t provide access to the child as per original orders”
Item 30 “The first applicant experienced excessive coercive control”
Item 36 “prolonged complex parenting proceedings that were only brought about by necessity by the first respondent not adhering to original court orders”
Item 39 “Non-contact, denied visitation with the child, and extortion demands of money or goods for visitation with the child lead to the requirement for applications both financial and parental in the family court. This behaviour continued into the court case with missed phone calls, missed and late to contact visits handovers. Evidence was testified during the trail of 2013/2014 and submitted to court in the many documents submitted from 2011 to 2021.
Sect 117 – Family law act 1975, (2a)(d) Weather 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.
(As per the original) (Emphasis in original)
As can be seen, save in one respect addressed below, none of the narrative which purports to be the grounds upon which the appeal is brought appear to articulate any recognisable form of legal, factual or discretionary error.
Despite the appeal potentially calling into question the probity of the dismissal of the four quite distinct applications, it will be observed that the grounds of appeal only purport to impugn the dismissal of the costs application related to the concluded parenting proceedings. The inference about such confinement of the appeal is strengthened by the remedy of limited ambit sought by the appellant in the appeal, being the re-exercise of discretion by ordering the respondent to pay his costs of the proceedings below between 2011 and 2021 (together with a request for the Court to refund his “court fees” and “any cost associated with the appeal”).
The appeal was listed before me to afford the appellant the procedural fairness of an opportunity to be heard about why the apparently incompetent grounds of appeal should not be struck out and he be required to file an Amended Notice of Appeal containing proper grounds of appeal within a given time frame, with the appeal to be summarily dismissed in default of compliance. When notice was first given of the appeal being listed before me, the grounds of appeal comprised those set out within the Notice of Appeal filed on 1 October 2021 but, before the listing date, the appellant filed two Amended Notices of Appeal on 28 October 2021 and 1 November 2021, though the amendments to the grounds were slight.
When invited to do so, the solitary complaint about the judgment which the appellant was able to specifically articulate 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. The appellant confirmed the appeal was confined to the dismissal of only his costs application, though he gratuitously added “there’s still plenty of biases in there but that’s the main one”. No complaint was otherwise raised about the dismissal of the three other applications.
To the extent that the appeal can be construed as an attack upon the dismissal of the appellant’s costs application for failure to take a material consideration into account (House v The King (1936) 55 CLR 499 at 504–505), the mere existence of the consent orders reached between the parties in February 2008 could not be a consideration which influenced any decision about the parties’ responsibility for costs arising in the later proceedings conducted between them from 2011 until 2020. In any event, the primary judge noted those orders were made (at [6]).
Even if the appellant believes the respondent’s alleged breach of the February 2008 orders was the catalyst for the institution of fresh proceedings, the subsequent proceedings were resolved by consent orders in August 2020. Consequently, no finding was ever made to vindicate the appellant’s belief that the later proceedings were “necessitated” by the wife’s failure to comply with the February 2008 orders. The later proceedings comprised a fresh parenting dispute and were not proceedings necessarily brought to enforce the orders made in February 2008 for contravention without reasonable excuse. The appellant’s assertion that s 117(2A)(d) of the Act was engaged is not correct merely because he believes it to be so.
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)
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.
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.
The existing grounds of appeal are struck out pursuant to s 69(4)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) for their lack of clarity. Unless the grounds of appeal are amended, the respondent will be unduly prejudiced by not knowing precisely how she needs to resist the appeal. The appellant should be allowed a short but sufficient period of time within which to file another Amended Notice of Appeal, failing which the appeal will be summarily dismissed pursuant to the power reposing in ss 32(3)(b), 46(2) or 69(4)(a) of the FCFCA Act, because by then the appellant will have had more than sufficient chance to properly plead the grounds of his appeal. The appellant ultimately submitted to an order in those terms and agreed he could file an Amended Notice of Appeal in proper form within 21 days.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 2 November 2021
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