Wallis and Best (No 2)
[2014] FamCAFC 182
•11 September 2014
FAMILY COURT OF AUSTRALIA
| WALLIS & BEST (NO. 2) | [2014] FamCAFC 182 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the mother seeks that the father’s appeal be summarily dismissed – where it is put that the appeal has no likelihood of success and is frivolous, vexatious or an abuse of process – where there is no utility in the appeal – where there are no proper grounds of appeal – where the father’s submissions do nothing to enhance the prospects of success of his appeal – where the appeal should be summarily dismissed – appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the mother seeks her costs of and incidental to the appeal and the application in an appeal – where there are circumstances which justify an order for costs being made – where the father has been wholly unsuccessful – costs ordered as sought by the mother. |
| Family Law Act 1975 (Cth) – s 117 Federal Circuit Court of Australia Act 1999 (Cth) – s 39(6) Family Law Rules 2004 (Cth) – Part 10.3, r 10.12 Federal Circuit Court Rules 2001 – r 8.02 |
Lindon v The Commonwealth (No 2) (1996) 136 ALR 251
| APPELLANT/RESPONDENT: | Mr Wallis |
| RESPONDENT/APPLICANT: | Ms Best |
| INDEPENDENT CHILDREN’S LAWYER: | David Lewis |
| FILE NUMBER: | LNC | 611 | of | 2009 |
| APPEAL NUMBER: | SOA | 21 | of | 2014 |
| DATE DELIVERED: | 11 September 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne by telephone to Tasmania |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 11 September 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 February 2014 |
| LOWER COURT MNC: | [2014] FCCA 796 |
REPRESENTATION
| THE APPELLANT/RESPONDENT: | In person |
| COUNSEL FOR THE RESPONDENT/APPLICANT: | Mr McVeity |
| SOLICITOR FOR THE RESPONDENT/APPLICANT: | McVeity & Associates |
THE INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
The Notice of Appeal filed on 24 March 2014 be dismissed.
The father pay the mother’s costs of and incidental to the appeal including the application an appeal filed 17 April 2014 such costs to be as assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wallis & Best 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 MELBOURNE |
Appeal Number: SOA 21 of 2014
File Number: LNC 611 of 2009
| Mr Wallis |
Appellant/Respondent
And
| Ms Best |
Respondent/Applicant
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Before the Court today is a Notice of Appeal filed by Mr Wallis (“the father”) on 24 March 2014, appealing against orders made by Judge Roberts on
25 February 2014.
In addition there is an application in an appeal filed by Ms Best (“the mother”) on 17 April 2014. In that application an order is sought for summary dismissal of the appeal that I have just referred to and, in the alternative, an order for security for costs.
There is also a response to that application filed by the father on 18 August 2014. In that response the father seeks that the mother’s application be dismissed, that is, in respect of both matters, namely, in respect of the summary dismissal application and in respect of the security for costs application, and secondly, he seeks an order for costs in his favour.
Today was intended to be a directions hearing for the appeal but, of course, before I can get to that, if indeed I do, I need obviously to determine the application for summary dismissal.
There is at least a basis for dismissing one part of the father’s Notice of Appeal in any event, and it arises in this way. One of the applications before
Judge Roberts on 25 February 2014 was an application that the proceedings be transferred to the Family Court of Australia. I indicate that the word actually used in the formal application was “adjourned” to the Family Court of Australia, but it is perfectly clear, including from his Honour’s reasons for judgment, and indeed now the Notice of Appeal, that what was being sought was a transfer. In any event, there is no ability for the Federal Circuit Court of Australia to adjourn proceedings to the Family Court of Australia; that can only occur by way of transfer.
In the Notice of Appeal, the father appeals against that dismissal of his application to transfer the proceedings to the Family Court of Australia, and in his grounds of appeal, if they can be termed as such, and I will explain that comment later in these reasons, he suggests that his Honour erred in refusing to grant “the respondent’s request that the substantive matter be transferred to the Family Court of Australia”.
Now, as I have pointed out to the father today, I am quite surprised that his solicitor at the time, Mr Kitto, appears to have had no knowledge of this, or no understanding of it, but the fact of the matter is that pursuant to s 39(6) of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCC Act”), there is no appeal from a refusal to transfer proceedings from the Federal Circuit Court of Australia to the Family Court of Australia.
Thus, that aspect of the appeal is incompetent and, as I say, in any event would need to be formally dismissed.
The application before his Honour on 25 February 2014 was an application filed on 14 February 2014 on behalf of the father, and it sought four orders as follows:
(1)that the substantive proceedings be adjourned to the Family Court of Australia; and
(2)that this matter be allocated a new Trial date sometime after the outcome of [the father’s then-appeal] is known; and
(3)that the Applicant pay the costs of and incidental to [the father’s] application; and
(4)any other Order the Court sees fit.
His Honour, in respect of that application, made the following orders:
(1) That the Application in a Case filed 14 February 2014 is dismissed.
(2)That the applications for costs by Ms [Best] and the Independent Child’s Lawyer are adjourned to a date to be fixed.
(3)That [MR WALLIS] file and serve a Financial Statement within 28 days.
The father has appealed against all of the orders, and I am somewhat bemused by that, given that Mr Kitto prepared this document for him. I cannot see any basis for appealing against the order adjourning the question of costs or providing that he, the father, file a financial statement.
The significant matter, which I would have thought that the father needed to challenge, was the first order namely, dismissal of the application in its entirety, but that comment is by the by. It does not affect any aspect of the application that I am currently dealing with, although it does throw into question another aspect of the Notice of Appeal, in addition to what I have adverted to already in relation to the challenge to his Honour’s refusal to transfer the proceedings.
Background
The background to the application filed on 14 February 2014, and the hearing on 25 February 2014, is that these have been long-running proceedings in, initially, the Federal Magistrates Court of Australia, as it was previously known, and latterly, in its successor, the Federal Circuit Court of Australia.
In 2010 there were final parenting orders made. However, the making of those orders did not in fact finalise the dispute between the parties; that dispute has continued and the hearing before his Honour on 25 February 2014, was intended to be the first day of a two day hearing addressing the issue of parenting orders.
Importantly, I am told today, and the father has not been able to say anything against it, that that listing was pursuant to an order made on 16 July 2013 by his Honour, where his Honour set the matter down for hearing in Burnie. At that time though, apparently there were no dates available and, in the usual way of case management in the Federal Circuit Court of Australia, there was then a subsequent letter sent to the solicitors for the parties advising of the dates that the hearing would take place. That was a letter of 10 September 2013.
Thus, as at 10 September 2013, everyone was aware that the hearing in relation to the parenting issues would take place on 25 and 26 February 2014. Then, on 11 February 2014, as is recorded at [10] in his Honour’s reasons for judgment, there was an email sent by Mr Kitto, the father’s solicitor at the time, to
Mr Lewis, the Independent Children’s Lawyer (ICL) as follows:
I refer to the above and confirm that the writer is unavailable to conduct the Trial in this matter, later this month.
Accordingly, I am instructed to seek an adjournment.
Would you please advise whether the adjournment can be arranged by consent or otherwise.
It also seems sensible to await the outcome of the current Appeal prior to the Trial being conducted.
I await your reply.
The reply from the ICL, which is referred to at [11] of his Honour’s reasons, was that he would not consent to an adjournment and that he, Mr Lewis, would oppose any application for an adjournment. Now, it is not recorded in his Honour’s reasons, but it is quite clear from the way this matter has progressed, that the mother also did not consent, or was not prepared to consent.
As a result of this the application of 14 February 2014 was filed.
What then happened is recorded at [13] of his Honour’s reasons, namely:
Mr Kitto wrote to my Associate in an email and, referring to his client’s Application in a Case, asked for an earlier listing. My Associate’s reply referred to the facts that the matter had been set down on 3 December 2013, his Application was filed on 14 February2014 and it had been listed for today. My Associate went on to say:
If it is not possible for you to represent your client at that time it will be necessary for you to brief alternative counsel to represent him at Court in Burnie on 25 February 2014.
It is not possible to say whether your client’s Application in a Case will be granted, so counsel will need to be prepared to run the matter if it is not granted.
I interpolate to say that I suggest that that reply would not have been a surprise to Mr Kitto.
What next happened, and is recorded at [14] of the reasons for judgment, is a Mr Edwards appeared for the father on the application in a case on 25 February 2014. But as his Honour says, Mr Edwards was only briefed by Mr Kitto to appear on that application and not on the substantive matter. Paragraph 14 of his Honour’s reasons is as follows:
Interestingly, Mr Kitto only briefed Mr Edwards to appear on the Application in a Case, and not on the substantive matter. To say the least, I find that somewhat strange, because even if he did not know it (and any competent lawyer should know it), Mr Kitto was made aware by my Associate that he should brief someone else to appear on the Application in a Case and on the substantive matter. And yet he still chose to only partially instruct counsel to appear in the matter. Frankly, I think that is insulting to the Court, to the counsel he instructed, and to the other two counsel sitting at the bar table.
His Honour went on at [15] and identified that, for his part, Mr Kitto had had since 3 December 2013 to instruct someone else if he knew he was going to be on leave. His Honour in that paragraph also refers to the fact that there had been no application for him to disqualify himself as a result of some remarks allegedly made in earlier hearings, and I will explain that later in my reasons.
The summary dismissal application
In terms of the application for summary dismissal, Mr McVeity for the mother has referred me to Part 10.3 of the Family Law Rules 2004 (Cth) (“the Rules”), and particularly Rule 10.12 which provides for a party to apply for summary orders, and sets out four bases for such an application. Mr McVeity has relied primarily on paragraph (d) which reads:
…
(d) there is no reasonable likelihood of a success.
In other words, Mr McVeity is saying that in this case the appeal should be dismissed because there is no reasonable likelihood of success. Mr McVeity, though, has also relied on paragraph (c), which reads:
…
(c) it is frivolous, vexatious or an abuse of process;
…
Thus, as a secondary aspect, Mr McVeity is suggesting that in some respects the Notice of Appeal is in that category, and is at least, an abuse of process.
There are many decisions in relation to the question of summary dismissal. I do not propose to set out all of those decisions, but one I mention at this point is the High Court decision in Lindon v The Commonwealth (No 2) (1996) 136 ALR 251 wherein Kirby J set out the applicable principles (at 256) as follows:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided;
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading…
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
(footnotes omitted.)
I add that although Mr McVeity is suggesting that there is no reasonable likelihood of success of this appeal, he puts it even higher and says that there is no likelihood of success. That is, of course, not a test that he needs to satisfy, but that perhaps emphasises the point. Mr McVeity has also conceded, quite properly, that in a summary dismissal application it needs to be determined on the basis of taking the father’s case, in this instance his appeal, at its highest.
There are effectively three points made by Mr McVeity in support of the application. First, that following the refusal of the adjournment on
25 February 2014, the hearing in relation to the parenting issues proceeded, and final orders were made on 26 February 2014. It is apparent that there is no appeal by the father against those orders made on 26 February 2014. He appeared before his Honour after the refusal of the adjournment without legal representation, his Honour then finalised the matter and made the orders that I have referred to, and to repeat, there is no appeal by the father against those orders.
Thus Mr McVeity says there is no point to the appeal that is now being brought. It lacks utility because the matter has been finalised, final parenting orders have been made, and there is no appeal against those orders. And Mr McVeity even suggests that in those circumstances the appeal can be treated as vexatious and/or an abuse of process.
The second point made by Mr McVeity is that there are no proper grounds of appeal in the Notice of Appeal. Now, I stress that although the father is now appearing for himself, and he did appear on 26 February 2014 before
his Honour without legal representation, as I understand it, his Notice of Appeal was prepared by Mr Kitto as opposed to being prepared by him.
The grounds of appeal as set out by the father in his Notice of Appeal filed on 24 March 2014 are as follows:
1.That his Honour erred in all the circumstances in refusing to grant the following:
1.1the Respondent’s Application in a Case for an Adjournment; and
1.2the Respondent’s request that the substantive matter be transferred to the Family Court of Australia; and
1.3the Respondent’s request that the substantive matter be allocated/re-scheduled a new Trial date on a date convenient to the Family Court of Australia;
Particularly in light of his Honour’s comments made on the following dates:-
(a)Monday the 15th July, 2013 between 10:00am and 12:25pm at Burnie; and
(b)Tuesday the 3rd December, 2013 between 2:15pm and 5:10pm at Burnie.
[Relevant parts of the Transcript in relation to the above dates to be provided in due course]
I note that the relevant parts of the transcript have not been provided either to Judge Roberts, or to the Appeal Court. In any event Mr McVeity suggests that these are not proper grounds of appeal, and I agree with him.
It is not a proper ground of appeal to simply assert that a trial judge has erred. It must be indicated how the trial judge has erred, either in fact or in law, such that there would be appellate interference with his Honour’s orders.
Mr McVeity has conceded that what often happens when the Appeal Court is faced with no proper grounds of appeal, is an opportunity is given to the appellant to prepare an amended Notice of Appeal with proper grounds of appeal. However, that is usually the case where the Notice of Appeal has been prepared by a person without legal representation, and that was the point of my reference earlier to the fact that, as I understand it, Mr Kitto a solicitor, and a solicitor practising in this jurisdiction, prepared the Notice of Appeal. In any event, what Mr McVeity says is that, and this is my phraseology, subsequently the father filed a summary of argument setting out his submissions in relation to the dismissal application, and in that context referred to and identified his complaints about the orders made by the trial judge. Mr McVeity says that it can be seen from at least paragraph 5, and maybe paragraph 16 of that summary of argument, what the particulars are of the complaints that the father makes. Mr McVeity then says that even if those complaints were translated into, for example, an amended Notice of Appeal, they still would not enhance the prospects of success of the appeal.
The third point arises out of [10] of his Honour’s reasons for judgment, where his Honour set out the contents of the email from Mr Kitto to Mr Lewis on
11 February 2014, seeking an indication from Mr Lewis as to whether he would consent to an adjournment, because Mr Kitto was unavailable to conduct the trial later that month. When that email is viewed along with the subsequent events to which I have referred earlier in these reasons, Mr McVeity suggests that that smacks of an abuse of process.
Now, in responding to the summary dismissal application, the father has effectively relied on his summary of argument, and there is also an affidavit in support. That affidavit however does not add to the summary of argument insofar as the issues that the father wishes to present, or the submissions he wishes to make, in response to the summary dismissal application.
I now turn to the father’s summary of argument and I will address each of the matters raised therein.
First, the father submits that the mother had two weeks’ notice of his adjournment application and an explanation of why he would need an adjournment. That statement is correct but it says nothing about whether the appeal should be dismissed or not. The focus is on what his Honour did and not what the mother did.
In the second paragraph of his summary of argument the father says he relies on his affidavit dated 14 February 2014, and which is annexed to his summary of argument. That is the affidavit that was before his Honour on 25 February 2014 in support of the application of 14 February 2014. In that affidavit the father refers to, and I will summarise as best I can, the application he has made, or that has been made on his behalf. He seeks an adjournment to the Family Court of Australia, and that a new trial date be given. He requests that his application of 14 February 2014 be given an urgent hearing date and he says at [4] of his affidavit that “[m]y reasons for requesting these aforementioned orders is because I have appealed costs orders made by Judge Roberts whom is seized of this my matter.” I will return to that because his Honour addresses that in his reasons for judgment.
At [5] of his affidavit the father sets out what he says his Honour said in Court on 15 July 2013. Now, importantly, there are only four words that are alleged to be direct quotes and the balance is the father’s summary of what he claims his Honour said.
The father then says this at [6] of his affidavit:
I say that his Honour’s comments are such that in the interests of justice and in the best interests of my son [A], that my matter ought be adjourned to the Family Court of Australia and be given a new Trial date, sometime after the outcome of my Appeal is known.
At [7] of his affidavit the father deposes to what he says his Honour said in Court on 3 December 2013. I note that there are no direct quotes in that paragraph, and again nothing more than the father’s summary of what
his Honour said.
The father in his affidavit then deposes that the outcome of the appeal to which he has been referring, the costs appeal so called, was not yet known, and it was not known when judgment would be delivered in that matter.
Then finally, at [10], the father says:
I say that clearly his Honour feels very uncomfortable remaining seized of this my matter and that in the interests of justice and in the best interests of my child that the following orders ought be made:
and he sets out the same orders that are sought in the application.
Now, perhaps immediately it can be seen that there is a disconnect between what Mr Kitto said in his email of 11 February 2014 to Mr Lewis, and what is in this affidavit. In the email to Mr Lewis the reason put for seeking the adjournment is the unavailability of Mr Kitto, but that is not adverted to at all in the affidavit of 14 February 2014. Further, in the email there is a reference to the costs appeal, but how Mr Kitto phrases that is to say that, “[i]t also seems sensible to await the outcome of the current Appeal”. He does not say, for example, that it is absolutely essential that this matter should await the outcome of that appeal. Yet the father in his affidavit makes the question of the appeal not yet being finalised as the basis for the adjournment application. Thus, I can understand and appreciate why Mr McVeity says that when one looks at the progress of this matter, it smacks of an abuse of process. There is also a query about Mr Kitto’s actions and, indeed, his Honour, as he said in his reasons for judgment, contemplated referring Mr Kitto to the relevant professional body.
Now, of course, I cannot say anything more about that. Mr Kitto is not here. All I can do is look at the facts as presented to me and what appears in
his Honour’s reasons for judgment, and, to repeat, I can understand why
Mr McVeity questions what was really going on here. Is it an abuse of process or something else, and, of course, there is the circumstance of Mr Kitto arranging for a Mr Edwards to only appear on the application for an adjournment, and I have referred earlier to his Honour’s comments about that in his reasons for judgment.
In any event, for the father to rely on his affidavit of 14 February 2014 in opposing the summary dismissal application does not assist him. Indeed, it raises more questions than it answers.
In paragraph 3 of his summary of argument the father submits “that the court knew, or ought to have known, that by not granting the Application that would cause the Appellant to suffer and not fully be able to put up a defence as he is not legally trained”. There is absolutely no evidence, and nothing in
his Honour’s reasons, and nothing that has been put to me, which would indicate that his Honour was aware of that. It was not suggested, for example, in the affidavit of the father, it was not suggested in the email from Mr Kitto to
Mr Lewis, and I have not been taken to anything where that was a specific submission made to his Honour on the day. In any event, even if his Honour was aware, because of course his Honour certainly would have become aware of it on 26 February 2014 when the father appeared before his Honour without legal representation, his Honour nevertheless determined to proceed with the hearing and made final orders, and that does not enhance the prospects of success of the appeal against the dismissal of the adjournment application.
In paragraph 4 of his summary of argument the father submits that the adjournment application was not discussed on 25 February 2014, and he attaches a letter sent to Mr Kitto by Mr Edwards who appeared for him, as I have indicated, on 25 February 2014. First, I simply say that the father is not correct in that submission. His Honour was well aware that the application before him was an adjournment application, and that is what his Honour addressed at [10] of his reasons for judgment. His Honour says there “[w]hat this application is really all about is for an adjournment …”. Therefore that part of the submission does not enhance the prospects of success of the appeal.
Turning to the letter. That is a letter dated 4 March 2014 and in effect is a report by Mr Edwards to Mr Kitto of what happened on 25 February 2014.
Mr Edwards goes through what the application was on that day and the difficulties encountered, and he says this:
Unfortunately, the Application in a Case was severely hindered by the Federal Circuit Court of Australia rules, specifically Rule 8.02. I have not produced that rule herein, however, I am sure that a cursory glance at it by you will reveal that your client’s Application in a Case was ill-fated from the outset.
This from Mr Edwards who appeared for the father on the day, and in his assessment the application was, “ill-fated from the outset”. I can only agree.
Rule 8.02 provides for a transfer to the Family Court of Australia, and sets out the factors which need to be considered. I understand Mr Edwards’ comment to indicate that none of the factors set out in r 8.02 were present. Thus, that letter does not enhance in any way the prospects of success of the appeal.
I pause to say that I have referred to it in that way because, of course, the onus is upon the applicant, the mother in this case, to satisfy the Court that there is no reasonable likelihood of success. My position is, that Mr McVeity in what he has put to me, and from my own reading of the documents, including the Notice of Appeal and his Honour’s reasons for judgment, there is no reasonable likelihood of success of this appeal. What I am now doing is not reversing the onus, but attempting to assess the father’s submissions. At the end of the day I propose to weigh up what the father has put to me with what Mr McVeity has put to me, and reach a conclusion as to whether there is a reasonable likelihood of success.
In paragraph 5 of his summary of argument, the father submits that the trial judge “gave no weight to the fact that [he] would be self-represented if the Application failed”. Now, that is nothing more than a repeat of what was said in paragraph 3, and I do not need to say anything more about that. That does not enhance the prospects of success.
In paragraph 6 of his summary of argument, the father submits that the trial judge “failed to take the history of the case into account, as [the judge] knew or ought to have known that the Appellant has always been legally represented and would place the Appellant at a disadvantage”. His Honour was well aware of the history of the matter, and he said so. He clearly was aware of when the father had been represented and by whom. That does not enhance the prospects of success of the appeal.
In paragraph 7 of his summary of argument the father submits that the trial judge “failed to consider that it was not the fault of the Appellant as to why he was seeking an adjournment”. Now, the fact of the matter is the adjournment was sought by Mr Kitto because he could not appear, and then in the affidavit the adjournment is sought because the costs appeal had not been heard. Neither of those matters are the fault of the father, to use his words, but that is not to the point. It is not a question of looking at whose fault it is. What
his Honour had to deal with was an application to transfer the proceedings to the Family Court of Australia, and he refused that application. The application to adjourn the proceedings until after the costs appeal result was known, was also dealt with by his Honour, and his Honour dealt with it on the basis that there was no justification, and no reason, why his Honour should delay the hearing. The hearing that had been set since July 2013, and specifically since September 2013. Thus, if I need to say it, that submission does not enhance the prospects of success of the appeal.
In paragraph 8 of his summary of argument, the father submits that “the Appellant ought not to have suffered or the child as everybody is entitled to a fair and just hearing”. Again, that is not to the point. Certainly the father has to be provided with procedural fairness, and I am talking about procedural fairness on 25 February 2014, no other date, and I am talking about the application for an adjournment which was heard on that day. I have not been taken to anything, and there is nothing that I have seen in any document relied upon by the father, that would indicate that on that day procedural fairness was not accorded. Indeed, Mr Edwards appeared for the father on instructions from
Mr Kitto, and the hearing proceeded in the normal way. Thus there is no basis to suggest that that submission enhances the prospects of success of the appeal, and the reference to the child is frankly a red herring. The child is not a party to the proceedings, and the child is not a person to whom procedural fairness has to be accorded. The child is in a special position, and if anything it is in the interests of children to hear and determine proceedings relating to them without delay. The child, unfortunately, has been the subject of long-running proceedings in the Court and the parents have to take responsibility for that, no-one else. They are the ones who have put the child through that process.
In paragraph 9 of his summary of argument the father submits that “[he] should not be punished for something that was unforeseen and certainly a (sic) exceptional circumstance of why the adjournment should of (sic) been granted”. However, there is no detail whatsoever provided of the “exceptional circumstance”, or what was “unforseen”. Mr Kitto, in my view, had ample time to instruct alternative counsel to appear for the father at the hearing. He was able to instruct Mr Edwards to appear on 25 February 2014. Nothing whatsoever has been put to me to indicate why Mr Edwards, for example, could not have been briefed for the entire hearing. Thus, again, this submission does not enhance the prospects of success of the appeal.
In paragraph 10 of his summary of argument the father says that the application for dismissal should be dismissed, and he then launches into his submission in relation to the question of security for costs.
In paragraph 11 of his summary of argument the father submits again that:
… the court knew or ought to have known from the material before it, that the Application was “seeking an adjournment of the trial and a transfer to the Family Court” as I would be unrepresented.
This is in effect a repeat of earlier submissions and I need not say anything more about it.
In paragraph 12 of his summary of argument the submission is that the father’s legal representative never prosecuted an application for adjournment. Now, that is simply not correct. His Honour’s reasons attest to the fact that what was before him was an application to adjourn, and that is what he dealt with. Thus, nothing here enhances the prospects of success of the appeal.
In paragraph 14 of his summary of argument the father submits that there was inadequate time to get a new lawyer “up to speed”. I do not accept that submission. It is not apparent that that was the case and, indeed, as I say,
Mr Edwards was briefed to appear on 25 February 2014.
In paragraph 15 of his summary of argument the father submits that the trial judge should have adjourned the matter after comments he made on 15 July 2013. I have referred to that issue which is set out in some detail in the father’s affidavit of 14 February 2014. As has been seen, in that affidavit the father alleges that on two previous occasions before his Honour, his Honour made certain statements, and he says this at paragraph 10:
… his Honour feels very uncomfortable remaining seized of this my matter and in the interests of justice and in the best interests of my child that the following orders ought to be made: …
And of course the order sought was for an adjournment.
I have already commented that although it is said in the ground of appeal that the relevant transcript would be provided, that simply has not been the case. His Honour though dealt with this issue in his reasons for judgment as follows:
4.The affidavit filed on behalf of Mr [Wallis] on 14 February 2014 refers in part to what I assume is why it should be transferred to the Family Court, and it refers to things that I am supposed to have said on 15 July 2013 here in Burnie. It also refers to things that I am supposed to have said on 3 December 2013 here in Burnie. The affidavit does not say that it was in Burnie, but I know that I was in Burnie at the time.
5.Firstly, I will say that I do not accept what is stated to be an accurate record of what I said. But even if the sentiment is correct – and, again, I do not necessarily accept that – then it seems that
Mr [Wallis] got the impression on 15 July 2013 that there was reason to transfer the matter to another judicial officer and perhaps to another court. He got that impression again on 3 December 2013. What I find interesting is that he did not make an application after 15 July 2013. He did not make an application on 3 December 2013 or even after that date, until 14 February 2014 - eleven days before the matter was listed for hearing.6.As I have said, I do not accept that I have been accurately portrayed there, but the way to accurately portray what I say in court, or what anybody says in court, is to obtain a transcript.
As can be seen, his Honour points out that no application was made at the time, in other words either on 15 July 2013 or 3 December 2013, that, for example, he disqualify himself because of what he had said. That speaks volumes in my view as to whether there was indeed anything said by his Honour which could lead to his disqualification. It was only raised on 25 February 2014 via the affidavit of the father of 14 February 2014, in the context of an attempt to adjourn the proceedings.
Mr McVeity may not have made this submission, but I indicate that that also smacks of an abuse of process, and makes one wonder what was really going on. In any event, his Honour dealt with it. His Honour said he does not accept that what was stated is accurate. To repeat, his Honour points out that there was no application to disqualify him until the issue was raised on 25 February 2014, and I must say, even before his Honour on 25 February 2014 there appears to have been no formal application for him to disqualify himself. No such order is sought in the application of 14 February 2014, and thus it appears to me to be just a throw-away line; a last ditch attempt to try and get an adjournment because Mr Kitto was unavailable.
At [15] of his Honour’s reasons for judgment he says this:
It is compounded by the fact that Mr Kitto was quite clearly still in Launceston last Thursday. So it seems to me that he cannot rely upon the fact that he did not have time to instruct someone else. In fact, he has had since
3 December 2013 to instruct someone else if he knew he was going to be on leave. He also had time to make applications for me to disqualify myself when I made remarks that Mr [Wallis] interpreted on 15 July and
3 December 2013. He did not make those applications at that time, but left it until 14 February 2014, after he had been told he was not going to be given an adjournment because he was going to be away.Thus, this submission does not enhance the prospects of success of the appeal.
I now turn to the issue of the costs appeal not having been finalised at the time this hearing took place.
His Honour dealt with this in his reasons for judgment and, in my view, dealt with it appropriately, and I have not been taken to anything which would persuade me that his Honour was in error. At [7] of his reasons for judgment his Honour says this:
The first affidavit by Mr [Wallis], that is the one filed on 14 February 2014, sought, in part, to rely upon the fact that he has appealed against costs orders that I made earlier last year, and that the appeal has been heard, but the decision has not been handed down. I do not see that as any reason to transfer the matter to another judicial officer or another court. If that appeal is successful, what it will tell me is that Strickland J (sitting as the Full Court) believes I got it wrong in relation to a costs order. As I have said, I do not see that as a reason to transfer the matter to another judicial officer; if his appeal is successful then Mr [Wallis] will presumably be appreciative of that result and he will not have to pay those costs.
I agree entirely with his Honour. There can be no basis, and no basis has in fact been put to me, why the hearing on 25 and 26 February 2014 should have been delayed because of there being a costs appeal unresolved at that point.
Conclusion
As I have indicated, I need to weigh up and balance the submissions of Mr McVeity with those of the father and determine whether there is a reasonable likelihood of success of the appeal.
In my view, there is no likelihood of success of the appeal.
The grounds of appeal are not proper grounds, but as Mr McVeity has invited me to, and as I have done, I have not rested on that; I have looked at the submissions made by the father which perhaps expand and provide the detail of his complaints, and having done that, I am still not persuaded that there is any merit in the grounds of appeal, or his complaints generally.
Thus, in summary, there is no likelihood of success of the appeal, and in any event, the appeal is pointless given that final orders were made on 26 February 2014, and no appeal has been brought against those orders.
That is as far as I need to go in finding that the appeal should be summarily dismissed. I do not need to go to the issues that have been raised by Mr McVeity of abuse of process or vexatious proceedings. I have made comments about that along the way, and I must say I am very concerned about those issues, but, as I say, I do not need to pursue those matters and say anything more about them.
Costs
I now have an application for costs made on behalf of the mother as a result of the order that I have indicated I will make.
As with any application for costs, this application is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”), ss (1) of which provides that each party should bear their own costs, and ss (2) of which provides that if there are circumstances that justify it, an order for costs can be made. In ss (2A), the factors that need to be considered in determining whether a costs order should be made, and what that amount should be, if there is to be an order made, are set out.
In this case, Mr McVeity has taken me to paragraph (a) of ss 117(2A), namely, the financial circumstances of the parties. I am aware of those circumstances. The most significant issue is that the father is unemployed, and he tells me, and it is apparent from, for example, the financial statements that I have seen, that at least on the face of those documents, he is what can be termed impecunious.
In relation to the mother’s circumstances, they are set out in some detail in the affidavit in support of the application for security for costs. She works part-time, earns approximately $15,000 annually from her employment, receives Centrelink benefits, provides primary care for the child of the relationship, has two other children to support as well, does not receive any child support from the father of those children, and nor does she receive any form of financial support from the father here for the cost of caring for their child. She owns the home that she and the children live in, has no mortgage, is not on legal aid, and has funded her legal fees from the interest she has received from her bank investment accounts.
Those financial circumstances are of course relevant and necessary to be taken into account, and indeed, the father in response to the application relies very much on his financial circumstances.
The other factor to which Mr McVeity has taken me is paragraph (e), which requires that I take into account whether either party has been wholly unsuccessful. In this case, the father has been wholly unsuccessful. I propose summarily dismissing his appeal, and, of course, to get to that point, the application seeking that by the mother, which was opposed by the father, has been successful.
In my view, there are clearly circumstances here that justify an order for costs.
What is sought is that costs be either agreed or, in default of agreement, assessed. I would expect those costs to be relatively substantial given that they are the costs of and incidental to the appeal, and of the application that was filed on 17 April 2014, and that brings into sharp focus the financial circumstances of the parties. As the father has conceded, from his experience when other orders for costs have been made against him, impecuniosity is no bar to an order being made if it is otherwise justified.
What has happened here is the mother has been obliged to respond to the appeal, to bring an application to seek its dismissal, and to instruct her legal representatives to undertake that task. Thus she has incurred costs which have turned out to be unnecessary given the ultimate result today, and it would be entirely inappropriate and unfair if the mother was left to meet those costs in the circumstances.
In conclusion then, although the father’s financial circumstances are poor, in my view, there should be an order for costs.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 11 September 2014.
Associate:
Date: 22 September 2014
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