Summary Dismissal Sought From Appeal in Amended Form
Spellson & Killian [2022] FedCFamC1A 4 (27 January 2022)
The respondent seeks summary dismissal of the appeal in its newly amended form. The appeal is from the dismissal of the appellant’s application for costs of parenting proceedings finalised by consent. The solitary ground of appeal is that in dismissing the application the primary judge failed to take into account s 117(2A)(d) of the Family Law Act 1975 (Cth). The Court assessed whether there was a factual foundation established for the application of s 117(2A)(d).
Facts:
Incompetent grounds of appeal contained within the Amended Notice of Appeal filed in these proceedings on 1 November 2021 were struck out by order made on 2 November 2021.
The appellant filed a further Amended Notice of Appeal on 22 November 2021. On 15 December 2021, the respondent filed an Application in an Appeal seeking the summary dismissal of the appeal in its newly amended form, which application was listed for hearing today. The appellant subsequently filed an Application in an Appeal on 10 January 2022 and it was listed for hearing simultaneously.
The pending appeal is from an order made by a judge of the Family Court of Western Australia on 3 September 2021, dismissing numerous applications brought by the appellant. One of the dismissed applications (filed in June 2021) was for the respondent to pay the appellant’s costs of and incidental to parenting proceedings, finalised in August 2020 by consent orders made between them. The appellant asserts that, in dismissing the costs application, the primary judge wrongly failed to take into account s 117(2A)(d) of the Family Law Act 1975 (Cth) (“the Act”), being a mandatory consideration affecting the disposition of an application for costs if the underlying proceedings were necessitated by the respondent’s failure to comply with previous orders of the Court.
The appellant alleged he commenced the parenting proceedings in 2011 because he was dissatisfied with the respondent’s compliance with pre-existing parenting orders made in February 2008. Hence, he alleged, s 117(2A)(d) was necessarily engaged by his costs application and the omission of its consideration was an error by the primary judge. The costs application was determined on written submissions and, in his submissions filed on 4 August 2021, the appellant said that the [respondent] didn’t provide access to the child as per original orders therefore made it necessary for these proceedings to be bought by the [appellant]. The [appellant] seeks the [respondent] to pay costs for the prolonged complex parenting proceedings that were only brought about by necessity by the [respondent] not adhering to original court orders.
Issue:
Whether or not there should be summary dismissal of the appeal in its newly amended form.
Applicable law:
Family Law Act 1975 (Cth) s 117(2A)(d) - a mandatory consideration affecting the disposition of an application for costs if the underlying proceedings were necessitated by the respondent’s failure to comply with previous orders of the Court.
Analysis:
The appeal is prosecuted on a false premise. Although the appellant may genuinely believe he was motivated to re-commence parenting proceedings in 2011 by the respondent’s failure to comply with the prior orders made in February 2008, neither the primary judge nor the appeal court could accept that premise as being factually correct. It is an assertion of mere belief as distinct from an established fact. Since the fresh parenting proceedings commenced by the appellant in 2011 were eventually resolved in August 2020 by consent orders, there was no trial and hence no factual finding made by the primary judge that the proceedings were necessitated by the respondent’s failure to comply with the former orders.
There was consequently no factual foundation established for the application of s 117(2A)(d) of the Act on the subsequent question of costs, meaning it could not then have been a relevant consideration. While the primary judge did mistakenly say the appellant did not seek to invoke s 117(2A)(d), the mistake was immaterial because the provision could not apply, even though the appellant thought it did. The appellant's sought order for the respondent to produce deviance of her claims in her Application in an Appeal Filed 15th December 2021 was misconceived because the respondent did adduce sworn evidence in support of her summary dismissal application. There is no reason to reject the respondent’s unchallenged evidence, in which case the factual premise for the application of s 117(2A)(d) is removed entirely.
Even if the appellant had filed an affidavit to refute the respondent’s evidence, it would not elevate his assertion of her failure to comply with past parenting orders above a bare allegation, still fiercely denied by her.
Conclusion:
The Court dismissed the Amended Notice of Appeal filed on 22 November 2021. Otherwise:
(a) the Application in an Appeal filed on 15 December 2021 by the respondent is dismissed; and
(b) the Application in an Appeal filed on 10 January 2022 by the appellant is dismissed.