Wadsworth and Wadsworth and Anor - [2008] FamCAFC 149

FAMILY COURT OF AUSTRALIA

WADSWORTH & WADSWORTH

[2008] FamCAFC 149

FAMILY LAW - APPEAL – From decision of Federal Magistrate – summary dismissal by Federal Magistrate of application seeking adult child maintenance – whether Federal Magistrate erred in dismissing an application in a case without providing reasons – whether Federal Magistrate failed to apply correct principle to summary dismissal application – whether Federal Magistrate took into account facts assumed to be correct from respondent’s evidence where respondent had no knowledge of matters – whether Federal Magistrate erred in failing to apply provisions of Division 7 of Pt VII – no merit in any ground of appeal – appeal dismissed.
FAMILY LAW - COSTS – application by respondents for costs – where appellant wholly unsuccessful – where appellant claimed unable to meet any order for costs due to her financial circumstances – order for costs made – appellant to pay costs within 12 months.

Family Law Act 1975 (Cth)
Federal Magistrates Act 1999 (Cth) s 17A
Federal Magistrates Court Rules 2001 r 13.10

Stead v State Government Insurance Commission (1986) 161 CLR 141

APPELLANT:

Ms Wadsworth

RESPONDENTS:

Mr & Mrs Wadsworth

FILE NUMBER:

PAC

166

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

29 August 2008

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

7 August 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 February 2008

LOWER COURT MNC:

[2008] FMCAfam 140

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENTS:

Ms Dickson

SOLICITOR FOR THE RESPONDENTS:

FRS Legal

Orders

That the Notice of Appeal filed on 4 March 2008 be dismissed and removed from the active pending cases list.
That the appellant pay the respondent’s costs fixed in the sum of THREE THOUSAND FIVE HUNDRED DOLLARS [$3,500.00], such costs to be paid within twelve [12] months of the date hereof.

IT IS NOTED that publication of this judgment under the pseudonym Wadsworth & Wadsworth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 5 of 2008
File Number: PAC 166 of 2007

Ms Wadsworth

Appellant

And

Mr & Mrs Wadsworth

Respondents

REASONS FOR JUDGMENT

Introduction

This is an appeal by Ms Wadsworth (“the appellant”) against orders of Federal Magistrate Lindsay made on 8 February 2008 in which his Honour summarily dismissed the appellant’s application for adult child maintenance. The appellant is the adult child of Mr and Mrs Wadsworth (“the respondents”).
This appeal is being determined by me as a single Judge, following a direction by the Chief Justice pursuant to section 94AAA(3) of the Family Law Act 1975 (Cth).
The appellant by her Notice of Appeal filed on 4 March 2008 appeals against orders 1 and 2 of the orders made by the Learned Federal Magistrate. Those orders provide:
1.The Application in a Case filed on 1 February 2008 do stand dismissed.
2.Pursuant to Rule 13.10 of the Federal Magistrates Rules 2001, the Amended Application filed on 18 January 2008 do stand dismissed.
…

Background

The appellant was born in May 1974 and was aged 33 years at the time of the hearing before the Learned Federal Magistrate. The appellant is the first born child of the respondents.
The appellant ceased to live with the respondents in approximately 1993.
On the 12 January 2007 the appellant filed an Application for Final Orders seeking, inter alia, adult child maintenance.
The respondents filed an Amended Response on 19 February 2007 seeking that the Application for Final Orders be dismissed.
On 16 August 2007 the respondent’s filed an Application seeking that the Application of 12 January 2007 and Amended Response filed 19 February 2007 be listed for preliminary argument.
On 6 September 2007 Federal Magistrate Lindsay made orders that all applications, including the application to summarily dismiss the matter be listed for trial before his Honour on 8 February 2008.
On 12 October 2007 the appellant filed an Application in a Case seeking various interim and procedural orders.
On 19 October 2007 the appellant filed an Application in a Case seeking further procedural orders and a Contravention Application.
On 19 November 2007 the appellant filed an Application in a Case seeking, inter alia, the appointment of an Independent Children's Lawyer.
On 23 November 2007 Federal Magistrate Lindsay dismissed the appellant’s Applications in a Case filed 12 October, 19 October and 19 November 2007 and the Contravention Application filed 19 October 2007.
On 18 January 2008 the appellant filed an Amended Application for Final Orders. In her Amended Application, the appellant sought a number of orders pursuant to s 66L of the Family Law Act1975 (Cth) with respect to her maintenance. The orders sought by the appellant were summarised by the Learned Federal Magistrate of his Honour’s reasons for judgment as follows:
“The Amended Application seeks the following orders, and I will summarise them. It seeks payment of $2,000 weekly in cash indexed; it seeks payment of the applicant’s costs of up to 20,000 kilometres of domestic air travel annually; it seeks payment of costs up to 100,000 kilometres of international air travel annually; it seeks that the respondents pay for the health insurance cover, including extras, at the highest tabled scale of cover; it seeks payment of moneys which will enable the applicant to be examined on an urgent basis by a dentist and then seeks payment of a range of orthodontic, what is described as periodontic and endodontic treatments, including for cosmetic purposes; it seeks payment of all of the expenses associated with the removal of certain genital hair to prepare for sexual reassignment surgery, and facial hair, upon the basis that such treatment is to commence forthwith; it seeks the payment of costs of a procedure known as augmentation mammoplasty, of sexual reassignment surgery, including orchiectomy and vaginoplasty, and the payment of travel and similar costs associated with those surgical procedures; it seeks payment upon the applicant receiving an offer of a place of study in a tertiary institution, of costs of core textbooks and $250 per enrolled subject; it seeks the provision of a motor vehicle, and there are highly specific provisions in the paragraph of the application that relate to the kind of motor vehicle that is to be provided; it seeks the transfer of a Volvo motor vehicle, in paragraph 10; and it seeks the costs of the applicant renting a dwelling of luxury standard or, in the alternative, the purchase of a dwelling, with highly specific requirements as to location and fixtures and fittings (eg. rugs of a Middle-Eastern origin).”
On 1 February 2008 the appellant filed an Application in a Case seeking orders relating to the appointment of a single expert witness, namely a psychiatrist, for the trial date to be vacated and that any order for child maintenance be backdated to 5 September 2007. The return date of that application was 8 February 2008.
On 8 February 2008 the Learned Federal Magistrate heard the applications and delivered reasons for judgment. His Honour dismissed the Amended Application for Final Orders filed 18 January 2008 and the Application in a Case filed 2 February 2008.
The appellant filed a Notice of Appeal on 4 March 2008.

Reasons for Judgment of Learned Federal Magistrate

The Application of the appellant was made pursuant to section 66L of the Family Law Act 1975 which relevantly provides as follows:
(1) A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:
(a) to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child.
The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.
The Learned Federal Magistrate initially discussed the authorities addressing whether all the provisions regulating child maintenance orders in Division 7 apply with respect to adult child maintenance applications. His Honour considered whether the reference to “child” and children” in Division 7 relates to relationship or age. His Honour concluded the reference is to the relationship and that it was “beyond doubt” that all of the provisions of Division 7 apply to proceedings under s 66L.
His Honour then summarised the nature of the orders sought by the appellant and outlined the material upon which his Honour relied in determining the application for summary dismissal.
The Learned Federal Magistrate then discussed the power to summarily dismiss proceedings, referring to the provisions of Rule 13.10 of the Federal Magistrates Court Rules 2001 and also outlining the provisions of s 17A of the Federal Magistrates Act. His Honour concluded that the application:
“…will only be summarily dismissed if the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the claim but, in considering such an application, I do not have to be satisfied that the claim is hopeless or bound to fail for it to have no reasonable prospect of success.”
After again noting that the provisions of Division 7 apply to the application for adult child maintenance, his Honour discussed whether the Court has a discretion not to exercise the adult child maintenance jurisdiction in a particular case. After referring to authority on this question, including Re: AM (Child Maintenance) (2006) FLC 93-262 and Cosgrove & Cosgrove (1996) FLC 92-700, his Honour concluded:
“30.I do not think there is doubt but that there is a discretion to decline to exercise the jurisdiction. The question is whether the facts of this particular case warrant us doing so and, in particular, whether we are warranted in taking that course of action having regard to the provisions of the Federal Magistrates Court Rules and of s.17A of the Federal Magistrates Act to which I have referred.”
His Honour then identified the circumstances which were “not in dispute”, as ascertained from the appellant’s affidavits and her responses to matters put to her by the Court.
The Learned Federal Magistrate found the appellant brought the application 14 years after the cessation of a financial relationship between the parties and noted that the application was therefore seeking the resurrection of a dependency that had been broken 14 years before the application was brought.
His Honour considered the appellant’s delay in bringing the application, not only since the cessation of any financial interdependence between the parties, but also since the appellant had been provided with medical advice regarding medical procedures. His Honour considered the delay to be significant.
The Learned Federal Magistrate referred to authority addressing the meaning of “necessary” as provided in s 66L, stating care was required “before we import too much significance into the use of that expression.” His Honour indicated that “even bearing in mind that important reservation, the application seems to me to be a highly speculative application.”
His Honour then commented on whether the provision of financial assistance to enable the appellant to undergo an operative procedure recommended to her in 1995, was ”necessary” because of a mental or physical disability of the child . On this issue, his Honour had regard to the report of a psychologist, Dr Z filed on behalf of the appellant, which his Honour considered offered the appellant little support.
His Honour found in the circumstances of the case the application was an “unreasonable imposition to make upon the respondents”.
His Honour considered the appellant’s age to be another relevant matter, however, his Honour noted that the appellant’s age
“46. …is not in itself a disqualifying feature but a matter that, together with the gaps between receipt of medical advice and institution of proceedings, between cessation of dependency and institution of proceedings, again has to go to the reasonableness of the application.”
His Honour concluded in the circumstances that the question of the lack of filial relationship was not an issue to which significant weight should be given.
The Learned Federal Magistrate finally took into account what he described as the “breadth of the application”, referring to the nature of the orders sought by the appellant. His Honour stated that “[a]gainst the legislative test, some of the orders sought… have a strong element of the far-fetched and impertinent about them.”
His Honour concluded there was no reasonable prospect of success of the application:
“50. Taking all of those matters into account, it seems to me that there is no reasonable prospect for success of this application. To use the language of Rule 13.10, the claim for relief pursuant to s.66L, in my view, has no reasonable prospect of being successfully prosecuted.
51. Even were the test that which was previously enunciated by the High Court in those two decisions to which I referred earlier, it seems to me the facts and circumstances of this case are such that, in assessing the prospects of success of the applicant’s claim, it would be appropriate to categorise them as hopeless and bound to fail.”
His Honour thus dismissed the appellant’s Amended Application. His Honour also dismissed the appellant’s Application in a Case filed 1 February 2008.

Grounds of appeal

The appellant appeared on her own behalf at the hearing of the appeal. The respondents were represented by Ms Dickson of counsel.
The appellant set out the following grounds of appeal in her Notice of Appeal:
“1. That the Federal Magistrate erred in dismissing the Application in a Case filed 1 February 2008.
2. That the Federal Magistrate erred in dismissing the Amended Application filed on 18 January 2008, by dismissing it on a preliminary basis relying upon Rule 13.10 of the Federal Magistrates Rules 2001.
3.    That the Federal Magistrate erred in refusing to appoint an Independent Childrens [sic] Lawyer.
4.    That Dr [Z] had in his possession case documents when he examined the Child, and he said to the Child that he had read through the case documents.
5.    That the Appellant and Child were denied effective legal representation.
6.    That lawyers for the Appellant did not obtain and file a report from the Child’s treating medical specialists, including a psychiatrist and endocrinologist.
7.    That the Federal Magistrate many times described the Child with male pronoun and demonstrated bias in respect of the background of the Child.”
The orders sought by the appellant in the Notice of Appeal were as follows:
“1. That all of the Orders sought by the Appellant in her Amended Application filed 18 January 2008 be granted forthwith.
2.    That pecuniary Orders to be granted under paragraph 1 supra are to be made retrospective from the date of inception of proceedings by the Appellant, ie 12 January 2007.
3.    That the Respondents do pay the Appellant’s costs of and incidental to this Appeal.
4.    That the Respondents do pay the Appellant’s costs of and incidental to the proceedings between them in the Federal Magistrates Court.”
However during the hearing of the appeal the appellant indicated that in lieu of these orders, she was now seeking that the matter be remitted to the Federal Magistrates Court if the appeal was successful.
On 7 May 2008 I made orders, inter alia, that the appellant, if so advised, obtain those parts of the transcript of the hearing before the Federal Magistrate as may be relevant to the appeal. The appellant failed to obtain a transcript.
It was submitted by counsel for the respondents that in the absence of the transcript of proceedings before the Learned Federal Magistrate, the appellant could not pursue ground 7 of her Notice of Appeal. The appellant conceded this and indicated that she was no longer pursuing ground 7.
During the course of the hearing I indicated that there was no merit in any of grounds 3, 4, 5 and 6 of the Notice of Appeal. I will now deal with those grounds.

Ground 3

The appellant by her Application in a Case filed 19 November 2007 sought the appointment of an Independent Children's Lawyer. This application was dismissed by Federal Magistrate Lindsay on 23 November 2007.
The Amended Application for Final Orders did not seek the appointment of an Independent Children’s Lawyer and nor did the Application in a Case filed on 1 February 2008. The appellant asserted that she made an oral application at the commencement of the hearing but that was denied by the respondents. There is no transcript and the Learned Federal Magistrate said nothing about this in his reasons. Thus, ground 3 has no merit.

Ground 4

This was not the subject of any order made by the Learned Federal Magistrate and it was not put in issue before his Honour. Thus there is no merit in this ground.

Ground 5

Again, this was not a matter that was before the Learned Federal Magistrate. There was no order made and thus there is no merit in this ground.

Ground 6

This ground relates to the appellant’s complaints regarding the conduct of her own lawyers, but again it was not the subject of any application before the Learned Federal Magistrate or any order made by his Honour and it has no merit.
The only remaining grounds for consideration are therefore grounds 1 and 2 and I turn to those grounds.

Ground 1

The appellant filed an Application in a Case on 1 February 2008 seeking orders with respect to the appointment of a single expert witness (a psychiatrist), for the costs of the single expert to be borne by the respondents, that the trial date be vacated and for any order for child maintenance to be backdated to 5 September 2007. The Learned Federal Magistrate dismissed this application.
In their summary of argument the respondents stated that this application “was not considered by the Learned Federal Magistrate”. However, it was contended that as his Honour summarily dismissed the appellant’s application for final orders, it necessarily follows that no further submissions were entertained by the court.
There is no doubt that the Learned Federal Magistrate did not provide any reasons for the dismissal of this application. The only reference made to the application is at paragraph 43 of the Learned Federal Magistrate’s reasons for judgment, in the context of discussing the expert report obtained by the appellant which was before the court. After referring to the report, and concluding that the report, on its face, offered the appellant “very little support”, his Honour stated:
“43. The applicant’s answer to that is to say: “Look, I brought an application”. Indeed, there was an application returnable before the court today. I suppose she would also say that, as part and parcel of the application for final orders, there is a suggestion that money should be provided by the respondents so that this issue itself can be the subject of expert opinion. However, when I bear in mind all that the cases tell me, I have to bear in mind in terms of trying to place this application in the context of reasonableness, given what we know of the lack of financial and other interdependence between the parties.” [Emphasis added]”
The appellant suggested that she raised this application with the Federal Magistrate at the commencement of the hearing. This was not conceded by the respondents and in the absence of a transcript I am not able to find that what the appellant says is correct. I can only proceed on the basis that the Learned Federal Magistrate dismissed the application in the context of summarily dismissing the application for final orders. On that basis it can be said that there was no need for any reasons.

In these circumstances I do not consider that there is any merit in this ground of appeal. If I am wrong about that though, and if, for example the appellant has been denied procedural fairness then in my view there is still no basis for allowing the appeal and remitting the matter for rehearing. It is not every denial of procedural fairness at a trial that requires a rehearing, and specifically where a rehearing would inevitably result in the making of the same order. (Steadv State Government Insurance Commission (1986) 161 CLR 141). Here, given the orders sought in the application filed on 1 February 2008 and the careful and comprehensive judgment delivered by the Learned Federal Magistrate in relation to the application for summary dismissal, I consider that to remit the matter would make no difference to the result of that application.

Ground 2

The appellant’s submissions with respect to this ground of appeal can be summarised into three arguments. Firstly, the appellant submits that the Learned Federal Magistrate did not apply the correct principle in relation to the summary dismissal application and should have relied on Rule 13.10 of the Federal Magistrates Court Rules 2001. Next the appellant contends that in identifying the relevant factors, the Learned Federal Magistrate took into account facts assumed to be correct from the respondents evidence when the respondents had no direct knowledge of the matters. Thirdly, the appellant submits that the Learned Federal Magistrate, having identified that Division 7 applied to an application for adult child maintenance did not proceed to apply the relevant provisions, including in particular considering what is in the best interests of the child.
With respect to the first argument, the appellant submits that the Learned Federal Magistrate applied section 17A of the Federal Magistrates Act 1999 instead of Rule 13.10 of the Federal Magistrates Court Rules 2001, the latter imposing a “higher hurdle” or standard.
I fail to see any merit in this argument. His Honour adopted the language of Rule 13.10(a) in summarising the approach to a summary dismissal application:
“16. So the application will only be summarily dismissed if the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the claim but, in considering such an application, I do not have to be satisfied that the claim is hopeless or bound to fail for it to have no reasonable prospect of success.”
His Honour then stated:
“50. Taking all of those matters into account, it seems to me that there is no reasonable prospect for success of this application. To use the language of Rule 13.10, the claim for relief pursuant to s.66L, in my view, has no reasonable prospect of being successfully prosecuted.”
In support of the appellant’s second argument the appellant referred specifically to findings of the Learned Federal Magistrate in paragraphs 32 to 34 inclusive of his reasons for judgment with respect to the period of her marriage, the number of occasions and nature of interaction between the appellant and respondents since 1993, the medical advice provided to the appellant and the issue of her financial independence as follows:
“32. What is not in dispute, though - and this can be ascertained from reading the applicant’s affidavits and from her responses to the various matters that have been put to her by the court today - are the following circumstances: firstly, that the applicant has been financially independent of the respondents since about 1993. That financial independence since that time has been accompanied with the physical separation of the parties. The number of occasions and the nature of the interaction alleged by the applicant with her parents since that time that are referred to in the affidavit material do not cut across the clear inference to be drawn, on the basis of all of the factual material made available to the court, that a financial relationship ceased in 1993.
33. The period during which the applicant has been financially independent from her parents includes a period of her own marriage, so that means that the application which was instituted in this court in January of 2007 is brought some fourteen years after the cessation of a financial relationship between the parties. More importantly, it means that the application, to use the paraphrase expression adopted by Carmody J in Re AM (supra), is seeking the resurrection of a dependency that had been previously broken, and it was a dependency that had been broken some fourteen years before the application was brought.
34. In terms of the delay in making the application, I think relevantly in this case it is not simply the delay since the absence of any financial interdependence between the parties; it is also the delay which has occurred since, on the applicant’s own account, she was provided with medical advice that suggested that the sort of medical procedures which form such a significant part of her application were recommended to her as being required, and that, on the basis of the documentary material that has been put before me, was sometime in 1995. So the application, insofar as it relates to those medical procedures - and, as I say, they are a very significant part of the application that is made by the applicant - relates to a medical procedure that has been the subject of medical advice for a period of eleven or twelve years prior to the filing of the application. That, in the circumstances of such a case, is in my view a significant delay.” [Emphasis added]
Again, this is an argument without merit. The Learned Federal Magistrate indicated that these issues were not in dispute based on the appellant’s own affidavits and her responses in court. Of course, without a transcript of what was said during the hearing I can only proceed on the basis that what the Learned Federal Magistrate says about what was said in court is correct. Thus, I cannot be satisfied that any error was made.
The third argument of the appellant also must fail. As was submitted by the respondent’s counsel Division 7 is not relevant to the application for summary dismissal and thus there was no error by the Learned Federal Magistrate in that regard.

Conclusion

There is no merit in any ground of appeal and the appeal must be dismissed.

Costs of the appeal

In the event that the appeal was dismissed, the respondents sought an order for costs. At the time of the hearing the respondent’s counsel indicated that counsel fees were $4,400 but that with solicitor’s fees her instructing solicitor would have to provide the Court with an itemised schedule. That schedule has now been received and it indicates the solicitor’s fees are $4,582.59. Thus a total of $8,982.59 is sought.
The appellant opposed any order for costs. She submitted that no matter what the amount sought her financial circumstances were such that she could not afford to meet any order. She said that she is impecunious and she will remain so for some time to come. She receives a disability pension in the amount of between $530 and $540 per fortnight and lives in government rental accommodation which constitutes approximately 25% of her income.
The appellant has been wholly unsuccessful in this appeal and there is a clear justification for an order for costs to be made. The appeal simply had no prospect of success and the respondents have been put to significant costs and expense in responding to the appeal. Apart from their legal costs they funded the travel by the appellant from Sydney for the purposes of the appeal.
That said, I do not consider in the circumstances of this case that the amount of costs sought is reasonable. There has been unnecessary double handling between the solicitor and the barrister, and there is no basis for the solicitor to charge for sitting in Court during the hearing of the appeal. With counsel fees I was not provided with any break down of those fees. However, given my knowledge of how this appeal has progressed I fail to see how total fees of $4,400 for counsel can be justified.
Clearly the financial circumstances of the appellant are relevant but that is not the only consideration. To repeat, this has been an unnecessary and fruitless appeal and an order for costs is justified. I propose though to give the appellant a significant period of time in which to pay the costs.

I certify that the preceding 63 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 29 August 2008.

Associate