Whister and Swan
[2013] FamCAFC 86
FAMILY COURT OF AUSTRALIA
| WHISTER & SWAN | [2013] FamCAFC 86 |
FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application to summarily dismiss appeal – Where the father appeals against final and interim parenting orders allowing relocation of the child and significantly reducing the father’s time with the child – Where the father’s notice of appeal is not formulated in terminology familiar to well-settled grounds of appeal – Where the father drafted the notice in good faith and is complying with procedural requirements to prosecute his appeal – Where the respondent mother’s application for dismissal is brought before the appellant’s summary of argument is due to be filed and before the time to file an amended notice of appeal without leave has expired – Where the Independent Children’s Lawyer opposes the application – Where there are reasonable prospects of success in the appeal having regard to the notice of appeal – Application dismissed and directions orders made requiring the father to file an amended notice of appeal and expediting the hearing of the appeal.
| Family Law Act 1975 (Cth) s96AA Family Law Rules 2004 (Cth) |
| Bigg v Suzi (1998) FLC 92-799 D & D [2006] FamCA 339 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 |
| APPELLANT: | Mr Whister |
| RESPONDENT: | Ms Swan |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC 20 of 2009 |
| APPEAL NUMBER: | NA 3 of 2013 |
| DATE DELIVERED: | 29 May 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 29 May 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 December 2012 |
| LOWER COURT MNC: | [2012] FamCA 1074 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Laws |
| SOLICITOR FOR THE RESPONDENT: | Odyssey Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The application in an appeal filed 15 April 2013 be dismissed.
The appellant file an amended notice of appeal by 12 July 2013.
The hearing of the appeal be expedited with a view to the matter being listed in the Brisbane Full Court sittings week commencing 16 September 2013.
The orders made by Regional Appeals Registrar Kane on 25 March 2013 be varied as follows:
6.That the Respondent file and serve the Summary of Argument and List of Authorities upon which they wish to rely by 4.00pm on Monday
19 August 2013.7.That the Independent Children’s Lawyer file and serve the Summary of Argument and List of Authorities upon which they wish to rely by 4.00pm on Friday 6 September 2013.
The costs of the respondent mother and the Independent Children’s Lawyer be reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whister & Swan 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 BRISBANE |
Appeal Number: NA 3 of 2013
File Number: BRC 20 of 2009
| Mr Whister |
Appellant
And
| Ms Swan |
Respondent
REASONS FOR JUDGMENT
This is an application filed by the respondent mother seeking that the appellant father’s appeal be summarily dismissed. The application, together with a supporting affidavit sworn by the mother’s solicitor, were filed on
15 April 2013.
The father appealed in time against final and interim parenting orders made by O’Reilly J (now retired) on 19 December 2012. A procedural hearing was conducted before the Regional Appeals Registrar on 25 March 2013. The timetable in respect of the appeal is such that the appeal books are not due until 12 July 2013 and the parties’ summaries of argument are not due until August and September 2013. The mother is legally represented, the father is self-represented.
The basis for the mother’s application for summary dismissal of the father’s appeal is as follows:
That the Appellant Father’s Appeal and each of the grounds set out in the Appellant Father’s Notice of Appeal be summarily dismissed as frivolous, or vexatious, or as an abuse of process or because the the [sic] grounds relied upon by the Appellant Father (severally) have ( or has, as may be found) no reasonable likelihood of success…
It is apparent that the notice of appeal, prepared by the father himself without the assistance of legal representation, has been drafted in good faith with no frivolous or vexatious intent. Mr Whister is in the process of preparing the appeal books and assures me they will be filed in time.
The effect of the orders the subject of the appeal are serious in that they permitted the relocation of the parties’ only child with the mother from Brisbane, Queensland to Western Australia and thereby significantly reduced the time the father spends with the child. The child was eight years old at the time of the trial.
The essential basis of the application to dismiss the appeal is a lack of merit in the appeal. The power to summarily dismiss an appeal on the basis of no reasonable prospect of success is contained in s 96AA of the Family Law Act 1975 (Cth) (“the Act”).
It is apparent from the notice of appeal that the father’s grounds are not formulated in terminology familiar to well-settled grounds available to challenge a discretionary judgment. This does not, however, necessarily lead to a finding that there are no proper grounds or that he has no reasonable prospect of success.
The mother’s application also seeks orders that leave to amend the notice of appeal be refused, that the father’s application for a stay of the orders (as sought in the notice of appeal) be dismissed; that this application be determined by a single judge in chambers in the absence of the parties; and that the father pay the mother’s costs of and incidental to the appeal.
In accordance with the Family Law Rules 2004, the father may amend the notice of appeal without leave of the Court until the due date for his written summary of argument, that is 2 August 2013.
As mentioned, an affidavit in support was filed as required by the Family Law Rules 2004 (“the Rules”). That affidavit does nothing more than confirm the mother’s instructions to file the application and that the application was prepared by Mr Laws of counsel. No written submissions in support of the application were received prior to the hearing before me.
In these circumstances, even if I had been minded to, on the material provided by the mother I would not have been able to determine the application in chambers. No such application would be determined in the absence of the parties having an opportunity to make submissions. It is a serious and rare step to dismiss an appeal without a hearing on the merits.
Relevant Principles
The Court has both inherent power and power pursuant to the Rules to summarily dismiss an appeal.
Section 96AA provides:
Appeal may be dismissed if no reasonable prospect of success
(1)If:
(a)an appeal has been instituted in a court under this Part; and
(b)having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal);
the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
(2)This section does not limit any powers that the court has apart from this section.
Mr Laws correctly emphasised the need to have regard to the grounds as disclosed in the notice of appeal.
The principles guiding the exercise of discretion under the Court’s inherent power to dismiss proceedings were explained by Kirby J in Lindon v The Commonwealth (No.2) (1996) 136 ALR 251 and referred to by the Full Court in Bigg v Suzi (1998) FLC 92-799 (at 84,974). Kirby J said (at 256):
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.)
It has been accepted by this Court, in D & D [2006] FamCA 339, that a consideration of the likely prospects of an appeal may be informed by a party’s summary of argument, not just the notice of appeal. I note the following comments of their Honours (Finn, Coleman and May JJ) at paragraph 43:
Where the summary of argument for use at the hearing of the appeal does not provide any indication of the errors asserted to have been made by the trial Judge, it would then be open to a respondent to an appeal to seek the dismissal of the appeal by the Full Court.
Discussion
Reasonable prospects of success
As mentioned, the orders made by the trial judge allowed the respondent mother to relocate with the child to Western Australia. It was further ordered that the parents have equal shared parental responsibility.
Somewhat unusually, interim orders for the child to spend time and communicate with the father and a procedural order that “Judgment in the principal proceedings otherwise is staying pending further trial directions” were made.
The interim orders provided:
UPON THE UNDERTAKING OF THE FATHER FILED
16 NOVEMBER 20118.The child spend time with and communicate with the father as may be agreed between the parties but failing agreement:
a.by telephone and/or Skype on each Tuesday, Thursday and Sunday between 6pm and 7pm Western Australia time, the mother to ensure that the child initiates the communication with the father
b.by text as may be initiated by the child or the father
c.commencing Easter 2013, 10 days in South East Queensland in each the child’s East, June/July and September/October school holiday periods (or equivalent according to the child’s Western Australia school holiday periods) and 3 weeks of the child’s Christmas school holiday period
d.4 days in approximately mid term during each of the child’s school terms in Western Australia, such to occur from 10am on a Friday to 4pm on the following Monday, with changeover for these mid term occasions to occur in Perth.
9.The parties share equally the travel costs for the child in relation to order 8 c and d.
10.When the child spends [sic] with the father he permit her to make such reasonable communication with the mother as the child may wish to initiate and permit the child to receive communications from the mother on each Tuesday, Thursday and Sunday on which the child is spending time with him, between 6pm and 7pm Queensland time when the child is in Queensland and between 6pm and 7pm Western Australia time if the child and the father should be in Western Australia.
11.Each party must afford the child privacy during all communication time.
12.Otherwise, interim orders 4, 5, 7, 8, 10 and 11 made 16 November 2011 remain in force; and interim order 3 made 31 January 2012 remain in force.
The mother had sought orders that the child live with her, she be permitted to relocate to Western Australia and have sole parental responsibility for the child. She had expressed a position that if she was not permitted to relocate she would remain living in the South East Queensland area. The father sought that the child live with him and the parties have equal shared parental responsibility. If the mother was to remain in South East Queensland he proposed the child spend time with her in alternate weekends for a total of five nights per fortnight.
The Independent Children’s Lawyer sought orders that the child live with the mother and that the mother not be permitted to relocate the child’s residence from South East Queensland. Counsel for the Independent Children’s Lawyer submitted to the judge that the intention of that proposal was that there be no relocation until the child finishes her secondary schooling.
This position against relocation accorded with the recommendations of the Family Report writer. The report writer expressed clear concerns about the ability of the child to maintain a meaningful relationship with the father if she were to relocate.
The report writer said (paragraph 95 of the report, reasons [134]:
[The mother’s] proposal to relocate with [the child] to [Western Australia]…has, inherent in it, elements (e.g. long distance and long periods of separation) that risk [the child] maintaining a meaningful relationship with both parents. It places her in a ‘no win’ situation whereby she will likely experience the loss of one of her parents; which one, will be dependant upon where it is eventually decided that [the child] resides.
Submissions of the Mother
The essence of the submissions for the mother are summarised in the following paragraphs of the written submissions handed up at the hearing:
36.In this case the father’s grounds do not reveal any potential substance.
37.It is submitted, that, in the light of the modern shift to a greater emphasis on case management and the consequential expectation that parties will make a real effort to “get it right” by defining and confining their disputes to real and substantial issues, that it is unreasonable for any party, including a litigant-in-person, to think that they will be permitted to come to court with documents that fail, at the most basic level, to define or explain their case and that they will be given opportunities to effect “running repairs” to their case where that indulgence is purchased at the cost of Court time and resources and to the considerable personal expense of the other party they have brought to Court.
…
39.In an appellate context, the test which has to be satisfied by “reasonable prospect of success” means that the mere existence of a triable issue may not be sufficient if a party agitating a limited point with apparent merit cannot also show that if the issue agitated is up-held, either alone or in concert with other meritorious issues, a different outcome will ensue.
40.In this case it is submitted that the Appellant father has failed to articulate even one triable issue and, even if that submission is not accepted, that her Honour’s Reasons display an internal structure and integrity that does not offer the father any real hope of ever discovering a ground or grounds sufficient to undermine her Honour’s ultimate discretionary determination and show him having reasonable prospects of success of obtaining a different outcome.
Submissions of the Independent Children’s Lawyer
The Independent Children’s Lawyer opposes the mother’s application and submits that this is not the proper time to dismiss the appeal. Counsel noted that the appellant might yet amend his notice of appeal and has not yet filed his summary of argument.
Helpfully, in written submissions the Independent Children’s Lawyer, while noting that the grounds are not easily discernible, explains some of the grounds as follows:
Ground 1: the Appellant will argued [sic] a failure to afford procedural fairness as the interchange between Her Honour and Counsel for the Respondent may not have been understood by the Appellant and no time was afforded to him to obtain legal advice in relation to this change of circumstances and its consequences.
Ground 2: relates to whether or not the Trial Judge gave consideration to the mother’s evidence that should the Court Orders not permit a relocation to Western Australia, then the mother would not move without her…Further, this ground raises concerns as to weight attached to the mother’s evidence of her intention to marry her partner who lived in Western Australia.
Ground 4: relates to the determination by Her Honour to make interim orders rather than final orders…It is also possible that the Appellant says Her Honour’s Reasons for Judgment were inadequate in this respect.
…the grounds of appeal may in broad terms fall within the categories of overlooking relevant factors, deciding contrary to the weight of evidence, a failure to provide adequate reasons for judgment and procedural fairness.
Counsel for the Independent Children’s Lawyer agreed that the mother’s application could be renewed later, should the mother see fit, following the amended notice of appeal, appeal books (including transcripts) and summary of argument being received. The application was otherwise opposed.
Submissions of the Father
The father confirmed that he is continuing to prosecute his appeal and intends to file appeal books and a summary of argument as per the directions made by Regional Appeals Registrar Kane on 25 March 2013.
Having heard the submissions for the mother and the Independent Children’s Lawyer, the father indicated that he would want the opportunity to file an amended notice of appeal, emphasising his lack of legal knowledge. He indicated he has some financial ability to consult lawyers.
Conclusion
It is still the position, as observed in D & D (at paragraph 43) that, “unless an appeal obviously lacks potential substance, it is preferable that it be dismissed on its merits, no matter how inelegant the drafting of the relevant notice of appeal”.
It is clear there are some prospects of success in the father’s appeal. This is a case with some unusual features and if anything, in my view, it should be heard with some priority. The Independent Children’s Lawyer supported a direction that the hearing of the appeal be heard with priority. Counsel for the mother did not oppose such a course.
The application should be dismissed and the hearing of the appeal should be expedited.
To provide some certainty and to ensure that the notice of appeal provides grounds at least sufficiently clear to allow a summary of argument in reply by the mother’s lawyers to be filed, an order will be made specifying the time for that amended notice of appeal to be filed.
In addition, to ensure the matter is ready to be heard in the September Full Court sittings some amendment needs to be made to the directions made by the Regional Appeals Registrar on 25 March 2013. The parties and their legal advisers agreed with the amended dates.
Costs
The mother sought that the father pay the costs of this application.
As the application is to be dismissed and orders made for the further direction of the appeal, counsel for the mother and for the Independent Children’s Lawyer conceded that the costs of the application ought be reserved.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 29 May 2013.
Associate:
Date: 29 May 2013
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