SPENCER & SPENCER
[2015] FamCAFC 89
•23 April 2015
FAMILY COURT OF AUSTRALIA
| SPENCER & SPENCER | [2015] FamCAFC 89 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant sought an extension of time to appeal an order dismissing her contravention application – The proposed appeal does not raise a substantial issue and is unlikely to succeed – Application dismissed – Order for the applicant to pay the costs of the respondent and the Independent Children’s Lawyer. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant sought an extension of time to appeal interlocutory orders made in financial proceedings – The proposed appeal does not raise a substantial issue and leave is required in any event – Application dismissed – Order for the applicant to pay the costs of the respondent. |
| Family Law Act 1975 (Cth) – s 117 |
| Gallo v Dawson (1990) 93 ALR 479 Joshua v Joshua (1997) FLC 92-767 |
| APPLICANT | Ms Spencer |
| RESPONDENT: | Mr Spencer |
| FILE NUMBER: | PTW | 7180 | of | 2010 |
| APPEAL NUMBER: | WA | 7L | of | 2015 |
| WA | 13 | of | 2015 |
| DATE DELIVERED: | 23 April 2015 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 23 April 2015 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 7L: 10 November 2014 13: 16 June 2014 |
| LOWER COURT MNC: | 7L: N/A 13: [2014] FCWA 70 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Turley |
| SOLICITOR FOR THE RESPONDENT: | Biddulph & Turley |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Cohen |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid WA |
Orders
WA 7L OF 2015
The application in an appeal be dismissed.
The applicant pay the respondent’s costs of and incidental to the application as agreed and in default of agreement, as assessed.
WA 13 OF 2015
The application in an appeal be dismissed.
The applicant pay the respondent’s costs of and incidental to the application as agreed and in default of agreement, as assessed.
The applicant pay the costs of the Independent Children’s Lawyer, fixed in the sum of $280.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spencer & Spencer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 7L of 2015 & WA 13 of 2015
File Number: PTW 7180 of 2010
| Ms Spencer |
Applicant
And
| Mr Spencer |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before me are two applications in an appeal filed by Ms Spencer (“the wife”), in which she seeks to obtain extensions of time to appeal against orders made by Moncrieff J.
The background to the matter is complex. There are currently six other appeals on foot, the most significant relating to final parenting orders made by Moncrieff J on 21 November 2014. It is hoped that these appeals will be ready for hearing before the Full Court in the October 2015 sittings. An extraordinary amount of material has been filed in the first instance proceedings, and an order has been made declaring the wife a “vexatious litigant”; however, that order does not affect the wife’s standing before the Full Court of the Family Court of Australia.
WA 13 of 2015
This application seeks an extension of time to appeal an order made by Moncrieff J on 16 June 2015, which dismissed a contravention application filed by the wife against the husband, Mr Spencer. The contravention application concerned an order permitting the husband to record telephone conversations between the mother and their child, provided that the child was not aware the recording was being made.
Moncrieff J heard the contravention application on 16 June 2014 as a preliminary issue prior to the parenting trial. His Honour made an order dismissing the application and indicated that he would provide reasons at a later point. The reasons were delivered on 21 November 2014 in a separate judgment from the reasons for the final parenting orders, which were also delivered that day.
The time for filing the appeal ran from the date of the order; however, it appears that the wife received incorrect advice from a member of the court staff indicating that she did not need to appeal until reasons were provided. I have not seen the correspondence in question.
On 1 April 2015, the wife filed her application seeking an extension of time. The affidavit in support sets out various reasons why the wife was late in filing, but the important preliminary question to determine is whether the appeal raises a substantial issue. This is to be considered in the context of the principles laid down in Gallo v Dawson (1990) 93 ALR 479.
As Lindenmayer J said in Joshua v Joshua (1997) FLC 92-767, at 84,440:
The power of the Court to extend the time for the institution of an appeal is a discretionary power to be exercised when it is shown to the Court's satisfaction by the applicant that strict compliance with the rules will work an injustice to the applicant … the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal.
The wife acknowledged in her submissions that this is the most minor of the various appeals she has been endeavouring to prosecute, and it has to be said that it raises a very minor issue indeed. I am not persuaded by the submissions, the proposed grounds of appeal, or the affidavit evidence, that this comes even close to being a significant issue warranting the attention of a Full Court.
In any event, on reading the trial judge’s very careful reasons, I do not consider that the appeal would be likely to succeed. It is therefore unnecessary for me to consider the wife’s explanations for the delay.
For those reasons, the application in WA 13 of 2015 is dismissed.
WA 7L of 2015
This application concerns the financial proceedings between the parties, which are not yet resolved and are listed in the Callover this week. The wife seeks an extension of time to appeal various interlocutory orders made by Moncrieff J on 10 November 2014.
The first point to be made is that there is no automatic right of appeal against those orders, so even if the wife is granted an extension of time, she needs leave to be able to argue the appeal. The authorities make clear that leave is unlikely to be granted in circumstances where the complaint is essentially about case management matters. However, it is still necessary to look at the actual orders and determine whether there is a substantial issue to be raised.
The first two orders appealed related to the appointment of a valuer, but the wife abandoned this complaint in the course of her oral submissions. It seems that her real objection is to the content of the report, rather than the report being ordered. Indeed, it seems that the valuer appointed was proposed by the wife herself. The wife was originally concerned about being ordered to pay for half of the cost of the report, but this order was subsequently amended to provide that the husband should pay the entire cost. He has paid, and the report has been provided, so the issue is entirely moot.
The next order required the wife to pay the setting down and hearing fee. The wife says, and I accept for the present purposes, that a previous order provided for the cost of the setting down and hearing fee to be met equally. The wife did not dispute that she is in receipt of a health care card and is therefore entitled to a full exemption. Her complaint is that taxpayers should not lose the benefit of the revenue that would be received if the respondent was unable to obtain a similar exemption. That clearly does not raise a substantial issue in the context of these proceedings and it has no relevance to the function to be performed by the Full Court.
The final order appealed adjourned the wife’s application to proceed on an undefended basis, which I understand was based on alleged non-disclosure by the husband. This order was a case management matter decided by the judge who had the conduct of the matter. It left open the rights of the wife to prosecute the application at a later stage. Furthermore, even if a judge is satisfied that a party has not provided full disclosure, it does not follow that an order will be made for the other party to proceed on an undefended basis. There is absolutely no merit in the complaint and hence, no substantial issue to be determined by the Full Court.
For those reasons, the application in WA 7L of 2015 is also dismissed.
Costs
The husband seeks an order for costs, but does not seek to have them quantified today. The Independent Children’s Lawyer seeks costs fixed in an amount of $280 in WA 13 of 2015, which is clearly less than the cost that would have been incurred in reading all of the material.
Section 117 of the Family Law Act 1975 (Cth) provides that each party shall bear their own costs, unless the court is of the opinion that there are circumstances justifying a costs order.
The respondent and the Independent Children’s Lawyer rely on the complete lack of success of the wife’s applications. In my view, in the overall context of these proceedings, that alone is a sufficient basis for making a costs order against the wife.
The wife seeks that the question of costs be reserved, because she feels that she will be able to persuade the Full Court of the merit of her more substantial complaints at a later point. There is no merit in that proposition. These are entirely stand-alone matters and the applications should never have been made. They have been a complete waste of the Court’s time and the time of others.
On that basis, there will be an order that the wife pay the husband’s costs of both applications, as agreed or assessed. There will also be an order in WA 13 of 2015 that the wife pay the costs of the Independent Children’s Lawyer, fixed in the sum of $280.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 23 April 2014, edited to correct grammatical errors and some infelicity of expression
Associate:
Date: 19 May 2015