Yapp & Wyndham

Case [2021] FamCAFC 80

FAMILY COURT OF AUSTRALIA

Yapp & Wyndham [2021] FamCAFC 80

Appeal from: Yapp & Wyndham [2020] FCCA 2122
Appeal number(s): SOA 68 of 2020
File number(s): MLC 8709 of 2013
Judgment of: STRICKLAND J
Date of judgment: 26 May 2021
Catchwords:

FAMILY LAW – APPEAL – PARENTING – Where the primary judge determined the appellant’s application by applying the rule in Rice and Asplund (1979) FLC 90-725 as a preliminary or threshold issue – Where it was within the discretion of the primary judge whether the application of the rule was to be addressed as a threshold issue or as part of a final hearing – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent seeks costs – Where the appellant was wholly unsuccessful in the appeal – Where the appellant opposed any order for costs citing his poor financial circumstances – Where impecuniosity is not a bar to an order for costs being made where there are circumstances otherwise that justify such an order being made – Where there are circumstances here which justify an order for costs – Costs ordered in the sum as sought by the respondent.

Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA, 117
Cases cited:

Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43

D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64

Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16

Division: Appeal Division
Number of paragraphs: 40
Date of hearing: 4 December 2020
Place: Adelaide via Video-link
Solicitor-Advocate for the Appellant: Ms D’Angelo
Solicitor for the Appellant: Hartleys Lawyers
Counsel for the Respondent: Ms Heggie
Solicitor for the Respondent: Victoria Legal Aid

ORDERS

SOA 68 of 2020
MLC 8709 of 2013

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR YAPP

Appellant
AND:

MS WYNDHAM

Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

26 MAY 2021

ON 4 DECEMBER 2020 THE COURT ORDERED THAT:

1.        The appeal be dismissed.

2.        The question of costs be reserved.

THE COURT ORDERS THAT:

1.The father pay the costs of the respondent mother of and incidental to the appeal fixed in the sum of $3,763.94.

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yapp & Wyndham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

  1. On 10 August 2020, Mr Yapp (“the father”) filed a Notice of…

Continue reading Yapp & Wyndham

Sign in free to access the full text

Details
AGLC
Yapp & Wyndham [2021] FamCAFC 80
Case
[2021] FamCAFC 80
Decision Date

CaseChat Overview and Summary

The appeal in Yapp & Wyndham involved a father who sought to overturn a Family Court decision regarding parenting arrangements for his child. The original consent order stipulated that the child would live with the mother and spend alternate weekends with the father. After a series of further proceedings and allegations of child abuse, which were not substantiated, the father filed an application seeking a change in the arrangements, which was dismissed by the primary judge. The father subsequently appealed the decision, citing various grounds, including the denial of natural justice and errors in the application of the Rice and Asplund rule.

The legal issues before the court included whether the primary judge correctly applied the rule in Rice and Asplund as a threshold issue and whether the father's grounds for appeal had merit. The court examined the father's claims that the primary judge failed to consider certain factors, including the child's attachment to the father, and that natural justice was denied by not allowing cross-examination or appointing an Independent Children's Lawyer. The court found that these issues were either misconceived or irrelevant to the threshold application of the Rice and Asplund rule.

The court held that the primary judge had the discretion to apply the Rice and Asplund rule as a threshold issue and that the father's arguments misconstrued the nature of a preliminary hearing. The court also noted that the father's submissions contained substantial errors and were largely irrelevant. Given the lack of merit in the grounds of appeal, the appeal was dismissed.

In relation to costs, the mother sought an order for costs as the father was wholly unsuccessful in the appeal. Despite the father's poor financial circumstances, the court found that circumstances justified an order for costs, as the father had not complied with a previous costs order and had engaged in conduct that warranted such an order. The court ordered the father to pay the mother's costs of the appeal in the sum of $3,763.94.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The father pay the costs of the respondent mother of and incidental to the appeal fixed in the sum of $3,763.94.

Note: The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yapp & Wyndham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

The order sought to be discharged was a consent order and provided for the child to live with the mother, and to spend time with the father.PROCEDURAL BACKGROUND Parenting proceedings were initiated by the father in 2013, and final orders were made in July 2014 for the child to live with the mother and spend alternate weekends with the father. A family report was obtained in those proceedings. The father issued further proceedings in September 2015, which were also the subject of a family report. In those proceedings allegations were made by the father that the child was the subject of child abuse. However, those allegations were not proven, and the final orders were those made by consent on 19 September 2016. Then, the father filed a further application on 17 December 2019, which was amended on 25 June 2020, and was the application which led to the order the subject of this appeal. In the meantime, the father filed yet another application on 28 April 2020, seeking orders that the child live with him and spend each alternate weekends with the mother. That application followed the father refusing to return the child to the mother, citing safety concerns for the child in relation to the mother’s partner. On 12 May 2020, the primary judge dismissed that application and ordered that the father return the child to the mother. The primary judge then heard the Amended Application filed on 25 June 2020 on 9 July 2020, and delivered his reasons for judgment and made orders on 13 July 2020. His Honour determined that application by applying the rule in Rice and Asplund (1979) FLC 90-725 as a preliminary or a threshold issue.THE APPEAL Ultimately the grounds of appeal relied upon by the father were as follows:2. His Honour … denied natural justice on the following basis:a.Not allowing cross-examination and final hearing in this matter to test the evidence;b.Failing to appoint an Independent Children’s Lawyer to obtain the wishes of the Child;c.His Honour made Orders on a Interim level that he was not in a position to make without hearing evidence and considering the evidence;d.His Honour failed to consider, or failed to properly consider, or attached insignificant weight to the effect of the Child’s attachment to the Father;e.His Honour attached no, or inadequate weight to the Child’s attachment to the Father and the ability to develop a more meaningful relationship;f.His Honour denied natural justice without allowing a family report and 11F report to be conducted;g.His Honour failed to consider the father’s application which was reasonably practicable and did not place enough weight on same;h.His Honour erred in law by not ordering psychiatric assessments to be completed of the parties.3.His Honour … has erred in weighting the significant change in circumstances under the Rice v Asplund threshold when dismissing the application to vary the previous Final Orders from 2016.4.His Honour … has also erred in the weight applied to the Child’s wishes in this matter, the Child’s wishes have not been sought or heard accordingly and without being considered through any third party independent exert evidence.5.His Honour erred in considering the Mother’s ability in promoting a meaningful and significant relationship between the Child and the Father.(As per original)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This again is not an issue for the preliminary hearing, but may well be an issue for a final hearing, if the threshold hurdle is overcome. Thus, this ground of appeal is misconceived and need not be considered.CONCLUSION Given that there is no merit in any of the grounds of appeal, the appeal must be dismissed. However, before leaving this matter there are three comments that this Court wishes to make. First, it is readily apparent that the father and his legal representatives have no, or limited understanding, of how the rule in Rice and Asplund is applied, and in particular, that it was within the discretion of the primary judge whether the application of the rule was to be addressed as a threshold issue, or as part of a final hearing. Further, from the written summary of argument and the oral submissions made on behalf of the father, there was no recognition of the difference between a preliminary hearing and a final hearing, and much of what was put to the court was irrelevant. Secondly, there was no recognition by the father or his legal representatives that when applying the rule in Rice and Asplund, it is unnecessary to address in any detail, or even at all, the factors for determining what is in a child’s best interests contained in s 60CC of the Act (Carriel & Lendrum at [49]-[58]). Thirdly, there was also no recognition by the father or his legal representatives of whether an order dismissing an application such as the father’s here, is a “parenting order” (see Poisat at [52]-[54], and Carriel & Lendrum at [59]-[61]). If it is not a parenting order then the court would not be obliged to apply the presumption in s 61DA, and to consider the matters in s 65DAA. Finally, can I say that the written submissions of the father and the oral submissions by his solicitor-advocate at the hearing of the appeal, were not only of no assistance, but they contained substantial errors and were generally irrelevant in attempting to justify appealable error by the primary judge.COSTS Given the appeal was dismissed, the mother sought an order for costs in the sum of $3,763.94. The mother relied primarily on the circumstance that the father was wholly unsuccessful in the appeal, but also made submissions about the conduct of the litigation by the father, including the fact that he had failed to comply with the order for costs made in these proceedings by the primary judge on 13 July 2020. Further, and relevantly, the mother was in receipt of legal aid. The father opposed any order for costs citing his poor financial circumstances. The application for costs is governed by s 117 of the Act. Pursuant to s 117(1) each party is to bear their own costs, but where there are circumstances that justify it, the court has a discretion to make an order for costs (s 117(2)). Here, there are such circumstances (e.g. see s 117(2A)(c), (e) and (g)), and thus it is open to this Court to make an order for costs. As to the father’s financial circumstances, there is ample Full Court authority that even impecuniosity is not a bar to an order for costs being made, where there are circumstances otherwise that justify such an order being made (D & D (No 2) (2010) FLC 93-435). That is the position here, and accordingly there will be an order for costs as sought by the mother.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.