WHYATT & CHADWIN - [2019] FamCAFC 175

FAMILY COURT OF AUSTRALIA

WHYATT & CHADWIN

[2019] FamCAFC 175

FAMILY LAW – APPEAL – COSTS – Where the appellant has misunderstood the liberty to apply order made by the Magistrate – Where there is no ground of appeal set out in the appellant’s Notice of Appeal which identifies appealable error by the Magistrate – Where the order for costs made by the Magistrate arose from an exercise of his Honour’s discretion and the amount the appellant was ordered to pay was far less than that which was sought by the respondent – Where there is no reasonable chance of success – Appeal dismissed.

Family Law Act 1975 (Cth) s 96AA

APPELLANT:

Mr Whyatt

RESPONDENT:

Ms Chadwin

FILE NUMBER:

PTW

493

2008

APPEAL NUMBER:

WEA

2019

DATE DELIVERED:

3 October 2019

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland J

HEARING DATE:

3 October 2019

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT ORDER DATE:

24 June 2019

LOWER COURT MNC:

NA - transcript only

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person - no appearance

Order

The Notice of Appeal filed on 22 July 2019 be dismissed.

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 Whyatt & Chadwin 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 PERTH

Appeal Number: WEA 28 of 2019
File Number: PTW 493 of 2008

Mr Whyatt

Appellant

And

Ms Chadwin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the court today is a Notice of Appeal filed by Mr Whyatt (“the father”) on 22 July 2019, appealing against an order made by Magistrate Kaeser on 24 June 2019.
There is no appearance today by or behalf of Ms Chadwin (“the mother”), but I proceed on the basis that the mother opposes the appeal. I indicate that contact was made with the mother’s solicitors who appeared for her in the proceedings in the lower court, but my staff were informed that those solicitors no longer represent her. To repeat though, I proceed on the basis that the mother opposes the appeal.
On 7 December 2018 there was liberty given to the parties to re-list the matter upon seven days’ notice, in the event of any difficulty with the planned process from that day. The topic of the proceedings was parenting orders.
The father took up that liberty to apply, and filed an application which came before Magistrate Kaeser on 24 June 2019. His Honour, though, dismissed that application, and as a result, there was an application made by the mother for costs. That application was successful, and an order was also made on 24 June 2019 that within three calendar months the father pay a contribution towards the costs of the mother in the amount of $2,000.
On 22 July 2017, as I have indicated already, the father filed a Notice of Appeal against that order.
In that Notice of Appeal the father sought leave to appeal, but I have indicated to him that that was unnecessary, because he was appealing against a final order, and thus, he is able to appeal as of right. However, the question which has been addressed today, is whether in the grounds of appeal in that Notice of Appeal, or by way of separate submission in support of the grounds, the father is able to demonstrate appealable error by the Magistrate in making the order that his Honour did. If not, then without any reasonable chance of success the appeal must be dismissed (s 96AA of the Family Law Act 1975 (Cth)).
There are nine grounds of appeal in the father’s Notice of Appeal as follows:
1.I am appealing the order to pay contribution of costs to Ms Chadwin as I am not in a financial position to pay and support my family currently, and the application to the Family Court had merit inn the best interests of the child in question.
2.My Individual Tax Return for 2017/2018 fled with ATO states my income as $36,184.00. My Payment Summary for FYI2018/2019 states my gross income of $36,692.27. Therefore costs of $2000 to be paid in 3 months will have a significant detrimental impact on supporting myself and family.
3.I do not foresee my current income being different to the latest lodged Individual Tax Return or Financial Year payment summary; or a change in my financial position.
4.The Hearing on 7^th December 2018 gave orders “with liberty to the parties to relist upon 7 days notice in the event of any difficulty with the planned process from today” and was also discussed and typed in the Court Transcript.
5.The Hearing on the 7^th December 2019 gave direction for Ms Chadwin to enrol [the child] in immediate professional counselling, sign consent to attend the Single Expert Witness and arrange a meeting between myself and [the child] over christmas, see court transcript requested.
6.Ms Chadwin failed to follow any of three directions and was difficult, with no replies to any communications from myself and no reply from her Lawyers. Emails were provided as evidence in the Form 2 Application filed on 30 January 2019.
6.Ms Chadwin and her lawyers were causing difficulties with following court directions, and therefore an application was made to the court for orders as I had serious concerns for [the child’s] mental health and welfare based on the evidence I had, including the Department of Communities report provided to the court.
7.Proceeding Magistrate Kaeser has not taken into consideration, of the significance of the evidence provided by myself to the court, or given just reason for Ms Chadwin to not follow court directions without consequence. As a result, I still have grave concerns for my son, [the child’s] mental health. More so after speaking with his therapist [Mr B] on Monday 7^th July 2019.
7.Therefore I am appealing the request to pay costs for Mrs Chadwin defense of a justified application.
8.In addition I am making a request for Chief Judge, The Honorable Gail Sutherland, to review all court documents and evidence provided to the Magistrates Court and the Family Court of WA since June 2018; within the context of her Reasons for Decision from the 2015 Trial for PTW493/2008 that Judge Sullivan presided over.
(As per original)
Immediately it can be seen that the last ground, which is numbered 8, is not in fact a ground of appeal, but is a request made to the Chief Judge, and should not appear in this document as a ground of appeal, and I strike it out.
As can also be seen from the remaining grounds of appeal, the complaint of the father is primarily that he is not in a financial position to pay the costs ordered, and he sets out his financial circumstances. Further, he refers to the liberty to apply that I have identified earlier in these reasons, and sets out some issues that he has with the wife failing to comply with directions, and difficulties caused by her and her lawyers, which led him to take up that liberty to apply.
The father then raises a concern he has with the Magistrate failing to take into account some matters. As can be seen though, the matters identified are matters in relation to the parenting proceedings, which were dismissed. They are not matters that have any relevance to the order made for costs.
Thus, in summary, there is no ground of appeal, as such, set out in this Notice of Appeal which identifies an appealable error by the Magistrate, and as the appellant father has himself indicated today during submissions, the order made by his Honour for costs arose from an exercise of his Honour’s discretion. And in that regard, it is relevant to note that the application for costs before his Honour was for an amount of $7,900. His Honour, though, determined only to order that the father pay $2,000 as a result of his Honour taking into account all relevant circumstances, including, and importantly, the financial circumstances of the father.
Thus, there is no appealable error identified in the grounds of appeal contained in the Notice of Appeal filed in this matter, and the appeal has no reasonable chance of success.
The father has raised with the court whether he would be able to, as he put it, re-submit his appeal. The short answer to that is, on my reading of the reasons for judgment of the Magistrate, and the complaints that the father has, there is no basis on which he could re-submit an appeal. There is no appealable error that I can see in the reasons for judgment delivered by the Magistrate.
As I said earlier, it seems that the major complaint the father has is that he says he is not in a position to afford to meet the order for costs.
In submissions though, it has become apparent that there was another aspect, and this might even have been the major issue for the father, and that is, he submits that because liberty to apply was given, that enabled him to bring his application to seek parenting orders, or a variation of parenting orders, and given that, he should not be required to pay any costs in relation to those proceedings. However, that is a misunderstanding by the father of the liberty to apply. The liberty to apply was given in the event of difficulties arising. It is not an invitation to the parties to come back on the basis that no costs would be ordered if the application was unsuccessful.
The fact is, that if a party takes up that liberty to apply and files an application, but is unsuccessful, they are still at risk in relation to costs. And unfortunately for the father, that is what has happened here.
Thus, for those reasons, I propose to dismiss the Notice of Appeal filed by the father on 22 July 2019.

I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 3 October 2019.

Associate:

Date: 10 October 2019