WELTER & KATZ
[2019] FamCAFC 219
•26 November 2019
FAMILY COURT OF AUSTRALIA
| WELTER & KATZ | [2019] FamCAFC 219 |
| FAMILY LAW – APPEAL – CHILDREN – Where many of the appellant’s grounds of appeal were a combination of assertions and/or comments dressed up as weight challenges – Where the grounds of appeal and the summary of argument do no more than provide the appellant with a vehicle to assert the correctness of his position and his beliefs which were not accepted by the primary judge – Where a careful consideration of the reasons of the primary judge and the evidence before his Honour do not reveal any appealable error – Where none of the 23 grounds of appeal have merit – Appeal dismissed. FAMILY LAW – COSTS – Where the respondent seeks costs as a result of the appeal being dismissed – Where the appellant opposes any order for costs primarily because of his poor financial circumstances – Where the respondent’s financial circumstances are also poor – Where the authorities are such that impecuniosity is not a bar to a costs order being made where it is otherwise justified – Where an order for costs is justified here because the appeal has been entirely unsuccessful – Costs ordered in the amount sought by the respondent. |
| Family Law Act 1975 (Cth) s 117(2A)(a) |
| Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64 |
| APPELLANT: | Mr Welter |
| RESPONDENT: | Ms Katz |
| INDEPENDENT CHILDREN’S LAWYER: | Perry Weston Lawyers (Not participating) |
| FILE NUMBER: | MLC | 2221 | of | 2017 |
| APPEAL NUMBER: | SOA | 73 | of | 2018 |
| DATE DELIVERED: | 26 November 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 11 July 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDER DATE: | 27 September 2018 |
| LOWER COURT MNC: | [2018] FCCA 2742 |
REPRESENTATION
| THE APPELLANT: | In Person with the assistance of an interpreter |
| COUNSEL FOR THE RESPONDENT: | Ms Clark |
| SOLICITOR FOR THE RESPONDENT: | Inner Melbourne Community Legal |
Orders Made 11 July 2019
The Amended Notice of Appeal filed on 9 April 2019 be dismissed.
The appellant father pay the costs of the respondent mother of and incidental to the appeal fixed in the sum of TWO THOUSAND THREE HUNDRED AND FORTY-NINE DOLLARS [$2,349] such amount to be paid within three [3] months of the delivery of the reasons for judgment.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Welter & Katz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 73 of 2018
File Number: MLC 2221 of 2017
| Mr Welter |
Appellant
And
| Ms Katz |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
On 9 April 2019, Mr Welter (“the father”) filed an Amended Notice of Appeal against certain of the parenting orders made by Judge Curtain on 27 September 2018. The appeal is opposed by Ms Katz (“the mother”).
The appeal was heard on 11 July 2019, and I made orders dismissing the same and providing for the father to pay the costs of the mother of and incidental to the appeal, fixed in the sum of $2,349.
Unfortunately, because of time constraints, I was unable to deliver my reasons for judgment ex tempore, and I indicated that I would provide those reasons as soon as I was able to. These are those reasons.
Relevant background
The father was born overseas in 1958, and came to Australia in 1994. He suffered an industrial accident in 2006, and is in receipt of a Centrelink disability benefit.
The mother was also born oversea in 1972, and came to Australia in 2003. She works part-time.
The parties were married in 2003. They separated on 30 December 2015 when the mother left the former matrimonial home with the two children X born in 2005 and Y born in 2007.
On the day of separation the mother applied for an intervention order which was made on 25 January 2016. That order excluded the father from the home, and the mother then returned there with the two children.
The father filed an Initiating Application in the Federal Circuit Court of Australia on 8 March 2017, and the mother filed her Response on 28 April 2017.
An initial family report was provided on 19 October 2017, and that report was updated on 17 May 2018.
Interim parenting orders were made on 3 May 2017, providing, inter alia, for the children to live with the mother and spend time with the father each Sunday from 11:00am to 5:00pm. The latter order was varied on 11 December 2017 to provide for the children to spend time with the father on each alternate Sunday from 11:00am to 5:00pm, and on each alternate Saturday from 11:00am to 5:00pm.
The hearing before the primary judge took place over three days commencing on 18 June 2018.
The father filed his initial Notice of Appeal on 19 October 2018. However, the grounds of appeal propounded in that Notice were incompetent, in that they failed to identify any appealable error by the primary judge which would require appellate interference, and on 8 February 2019 I adjourned the directions hearing to enable the father to obtain legal representation, if possible, and to file an Amended Notice of Appeal.
The father, who appeared before the primary judge without legal representation, also appeared in the appeal without legal representation.
The father was unable to secure legal representation, and although he attempted to prepare an Amended Notice of Appeal, that Notice was also inadequate, and on 20 March 2019, the matter was further adjourned to give the father another opportunity to prepare and file a competent Notice of Appeal.
On 9 April 2019, the father filed an Amended Notice of Appeal. Although there were still significant issues with that Notice, which will become apparent later in these reasons, I allowed the appeal to proceed, although on 30 April 2019 I did strike out three of the 26 grounds of appeal.
The appeal
There is some confusion in the father’s documents as to which orders made by the primary judge are the subject of the appeal. However, at the very least, it seems that the father complains of the order providing for equal shared parental responsibility, but with the mother having the final decision about the children’s care (paragraph 2), the order providing for the children to live with the mother (paragraph 3), and the order providing that upon the father presenting evidence of appropriate sleeping arrangements, the children spend half of all school holidays with him (paragraph 5).
Some of the orders the father sought in the appeal though were, that all parenting orders be discharged, there be equal shared parental responsibility with the father having the final decision about the children’s care, and the children spend alternate weeks with each parent. There were also nonsensical orders sought such as the “mother go to school to learn about how to handle children”, and “the children to live with the father during school terms”.
After the three grounds of appeal were struck out, there were 23 grounds left. However, ultimately none of these grounds revealed an appealable error by the primary judge requiring appellate interference. Many were a combination of assertions and/or comments dressed up as weight challenges, and no error of principle, law or fact is demonstrated.
By way of example:
4.The learned trial Judge failed to give sufficient weight and to consider that the mother is neither confident nor capable of making her own decision in regard to the children’s interest. This was proved during cross examination when she was asked whether the children love their father, she answered Yes. She was then asked why did she put the children in the intervention order? She simply said she was advised in the NJC. (order No 2 and 3)
6.The learned trial Judge failed to give sufficient weight and to consider the imagination error when saying equal shared parenting right and then permitting the mother to make decisions should both parents not come to a joint agreement. We are here because there are issues that we did not agree about in the first place and all will be decided by a single order permitting the mother who is proven to be less able to make independent decision during cross examination. One would assume that the decision making powers should be reserved to the better positioned, and to the capable one with intention to make good and fair decision. (Order No 2)
8.The learned trial Judge failed to give sufficient weight and to consider that due to proved reasons I do not want to put my life at risk by having contact with the mother. If anything happens my children will suffer. In the past she repeatedly tried to put me in trouble by misleading. I have to be very careful to avoid further bogus allegations. She tried to make intervention order that include the children based on lies. (Order No 7)
9.The learned trial Judge failed to give sufficient weight and to consider my reasons to be careful for my life after one warning when she threatened me using a kitchen knife the day was Friday in 2014. In the other way around she said if he kills me no one will be able to find me. I do not know how she came up with this idea or who invented this idea. It could be a copy from other cases to strengthen her case for harsh intervention. (Order No 10)
12.The learned trial Judge failed to give sufficient weight and to consider the dishonest of the mother and her carelessness that could put the children in danger. In the past she wanted to take the children overseas with hidden agenda. She did not want me to know that she also had a plan to take them from […] to […] for her sister’s wedding so that X can carry wedding flowers. And X was not happy and said I am not 2 or 3 year old baby to do that. She is that careless she couldn’t be trusted to keep the children safe. (Order No 2)
13.The learned trial Judge failed to give significant weight and to consider that the mother have been dishonest to the legal system and very cruel to me without having a tiny good reason to do so other than fallowing a typical routine that did not consider my acting as a father and a mother of the children. That is why I want to make clear argument that it is too risky for me to get too close to the mother (Order No 10 and 11)
14.The learned trial Judge have failed to give sufficient weight and to consider that onn the 30/12/2015 the mother took the children and left home peacefully under normal condition saying she is taking the children to a park. But what she reported in order to kick me out of my home and to impose interim order attempting to be followed by intervention order. All was so that she can remain in the unsafe flat which will become more unsafe for the children without my presents. 25 to 30 drug users use to inter to the building every day. (Order 2)
16.The learned trial Judge failed to consider and to give sufficient weight that one day in 2015 I was in the bedroom, the children came to play with me. Then she came and started talking about her family and in particular about her sister overseas. We did not agree about the details but she kept pressuring me. I tried to leave home. Y said! with whom are you living us dad? Even Y was smart enough to understand the danger of his surrounding without me been around. He cried, he was badly in tears. X closed the bedroom door trying to stop me from leaving, she asked for the phone number of my mother so that she can speak to her. I changed my mind and stayed because of what the children said (Order No 2 and 3)
17.The learned trial Judge failed to give sufficient weight and to consider that the children’s so called independent lawyer does not care about the children’s safety and interest. He is racist he discriminated against me we were 5 people at the time in the federal circuit court on the 13/07/2017 at 12.15pm. I called the police. I also complained about him to VLA to LIV and to the legal services commissioner. I asked for an order to change the independent children lawyers in my affidavit (order No 6)
18.The learned trial Judge failed to give sufficient weight and to consider that on the 12/03/2017 X went to her friend birthday party in another building. The mother did not know what flat number and X did not have a mobile. Then at 11 pm X used her friends phone to call her mother. The mother was scared to pick up X. X ended up staying overnight there without arrangement. If I was in the mothers position I would want to know the flat no before sending her. I wouldn’t be resting before my daughter gets home. (order No 2 and 3)
22.The learned trial Judge failed to give sufficient weight and to consider that on the 20/11/2017 on the way to school X and Y argued about who should ride the bike the mother did not come up with the right solution. X was upset and she disappeared from her mother she was missing for 8 hrs until 4 pm. The mother failed to find solution to an easy problem (Order 2 and 3)
24.The learned trial Judge failed to give sufficient weight and to consider that every school day my children are waiting for the mother to arrive and to pick them from school because she is at work. Y waits about one and half hour. And X waits up to one hour. Because of this reason and for safety of the children they should stay with me during school times. I can drop Y to school and I can pick him from school at exact times. And I can drop X and pick her up [at the] train station. She will not be alone but with school friends. So that they can be safe and feel safe. I saw lately in the ABC news that 300 children are missing. I worry too much for my children’s safety. Regretting later is not going to help. The mother is not organized (Order No 3).
26.The learned trial Judge failed to give sufficient weight and to consider that the mother’s affidavit is always full of lies to attack me unlawfully. There was no order against the mother lies. The problem is not only the mother but also her lawyer and her support group. There is wrong advice for job creation.
(Errors and omissions as per original)
Nor did the father’s written summary of argument assist in identifying any appealable errors. The father simply repeats the grounds of appeal, then seeks to introduce evidence as to alleged events that have occurred since the orders were made by the primary judge, without there being any application to lead further evidence. He then concludes the summary by referring to parts of the family reports which he disagrees with, but without demonstrating how that relates to any of the grounds of appeal.
Plainly, the grounds of appeal and the summary do nothing more than provide a vehicle for the father to assert the correctness of his position and his beliefs, which were not accepted by the primary judge. It is apparent that he is seeking an opportunity to re-run the trial.
In Bahonko v Sterjov (2008) 166 FCR 415, the Full Court of the Federal Court of Australia said:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify were error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally though provided by the appellant), that such an examination may yield a conclusion of appellable error.
(Citations omitted)
I do not propose to hunt through the appeal documents in the hope of finding a legitimate challenge to the orders made by the primary judge. What I have done though is to carefully consider the reasons for judgment provided by the primary judge, and the evidence that was before his Honour, and I am not able to ascertain any appealable error. His Honour’s findings, in particular that the father uses the children as messengers, and that he is inflexible and lacks insight, are sound, and are justified on the evidence.
It is unnecessary to look to address each remaining ground of appeal discretely; none have any merit.
Conclusion
Having found that none of the grounds of appeal have any merit, the appeal must be dismissed.
Costs
At the conclusion of the hearing the mother sought an order for costs as a result of the appeal being dismissed.
The father opposed that application, primarily because of his financial circumstances. He receives a disability benefit of approximately $800 per fortnight, he rents his accommodation, and the only substantial asset that he owns is a motor vehicle.
Pursuant to s 117(2A)(a) of the Family Law Act 1975 (Cth) I am obliged to take into account the financial circumstances of both parties. In that regard the mother’s position is similar to the father’s; she earns approximately $900 per fortnight, she rents accommodation, and she has a motor vehicle.
Plainly the father’s financial circumstances are poor, but so are the mother’s, and in any event, the authorities are such that impecuniosity is not a bar to a costs order being made where it is otherwise justified (D & D(Costs)(No 2) (2010) FLC 93-435).
Here, an order for costs is justified, because the appeal has been entirely unsuccessful. Accordingly, there will be an order for costs as sought by the mother.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 26 November 2019.
Associate:
Date: 26 November 2019
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