Application of Christopher Tilley

[2015] NSWSC 700

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Application of Christopher Tilley [2015] NSWSC 700
Hearing dates:	2 June 2015
Date of orders:	02 June 2015
Decision date:	02 June 2015
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Summons dismissed.
Catchwords:	INJUNCTIONS – application to stay delivery of applicant’s District Court criminal file to the Family Court – letter of request from Family Court on behalf of litigant – alleged failure of litigant in Family Court to comply with Family Law Rules – jurisdiction of courts – application dismissed
Legislation Cited:	Family Law Act 1975 (Cth) Family Law Rules 2004
Category:	Procedural and other rulings
Parties:	Christopher John Tilley (Plaintiff – ex parte application)
Representation:	Counsel: In person (Plaintiff) Solicitors: Self-represented (Plaintiff)
File Number(s):	2015/163681

Judgment

1. The Plaintiff seeks a declaration that would prevent the misuse of a District Court file that is being produced to the Family Court or, in the alternative, an interlocutory injunction to stay the transfer of the file to the Family Court until its purpose and intended method of management upon receipt is ascertained and until the Plaintiff can obtain proper legal advice in relation to the management of the file. The Plaintiff seeks a further order that the Family Law proceedings being SYC 737/2014 be cross-vested to the Supreme Court.

2. The Plaintiff appeared for himself with the assistance of his wife.

3. In his affidavit in support the Plaintiff says that he is a party to financial proceedings in a case in the Family Court of Australia being case numbered SYC 737/2014 brought against the mother of the Plaintiff’s new baby by her ex-husband. He says that he is not party to parenting proceedings. His involvement in the case relates only to the fact that her ex-husband has placed a caveat on the home co-owned by the Plaintiff and his partner, the mother of his child. A lapsing notice had been issued and when that lapsing notice was challenged in this Court the proceedings were cross-vested to the Family Court

4. On 28th May 2015 the Independent Children's Lawyer in the Family Court proceedings wrote to the Registrar of the Family Court asking pursuant to r 15.34 of the Family Law Rules 2004 that the Registrar make a request to the District Court at Parramatta for the file of R v Christopher Tilley to be provided to the Family Court. The letter went to identify when those proceedings were heard in the District Court and enumerated the documents that were specifically required.

5. On 28 May 2015 a case coordinator at the Family Court wrote to the District Court Registry in Parramatta requesting that Court to forward the file sought by the Independent Children's Lawyer. The letter referred to s 121 of the Family Law Act 1975 (Cth) which is the section that restricts publication of any proceedings or matters associated with proceedings in the Family Court.

6. The letter from the Independent Children's Lawyer was also forwarded to the Plaintiff. He emailed the Registrar at the District Court at Parramatta expressing his concern about the transfer of the file and asking for no action to be taken so that he could make application to “the Duty Judge” on the following Monday, that is, yesterday.

7. The Registry replied saying (inter alia):

I can confirm that because the matter was marked 'No Billed', the documents requested by the Family Court simply do not exist and cannot be produced. The Family Court has been informed of such via email today.

However, should the Family Court insist that the whole of the Court file be produced, I note your objection and will refer all correspondence to the Registrar of this Court for consideration before the file or documents are forwarded.

8. The Plaintiff asks me to prevent the file being forwarded to the Family Court. Part of the basis for that is what is said to be a failure to comply with r 15.34 of the Family Law Rules in that the letter from the Independent Children's Lawyer is said not to set out the reason for seeking production. Accordingly, the Plaintiff submitted that the Family Court should not have requested the file from the District Court.

9. The Plaintiff is further concerned that the file would be made available to the Independent Children's Lawyer and perhaps other persons involved in the proceedings.

10. The Plaintiff submitted that this Court had jurisdiction over State bodies such as the District Court and had jurisdiction over lawyers such as the Independent Children's Lawyer who requested the Family Court to apply for the file.

11. This application is misconceived. The Family Court has made a request to the District Court for the production of the file. Such letters of request are ordinarily employed between courts in lieu of subpoenas being issued. If, as the Plaintiff asserts, the Family Court should never have issued the request because the provisions of r 15.34 had not been complied with, the Plaintiff must apply to the Family Court to set aside the request. This Court has no jurisdiction to do so.

12. Further, it would be entirely inappropriate for this Court to enjoin the District Court from responding to the request made by the Family Court for the file. Apart from anything else, the request by the Family Court must be regarded as valid and appropriate until it is impugned in an application to that Court. This Court has no power to make any orders in relation to the Family Court apart from specific legislative power given such as the ability to cross-vest proceedings to the Family Court.

13. Whilst I understand that the Plaintiff has concerns about how the file will be used, that is not a matter about which this Court can make any orders. The Plaintiff says that he is a party to the proceedings in the Family Court. That gives him the opportunity of making whatever submissions are necessary to judges and registrars of that Court to ensure that the file is appropriately managed bearing in mind s 121 of the Family Law Act.

14. The Court has no power to cross-vest proceedings that are in the Family Court to this Court. In any event, on 25 August 2014 Campbell J considered it appropriate to make orders cross-vesting the caveat proceedings to the Family Court so that they could be determined with the other aspects of the Family Law proceedings. Nothing has been demonstrated to suggest that that order was inappropriate nor any basis for the proceedings to be returned to this Court even if there was power to do so.

15. Accordingly, the Summons is dismissed.

**********

Amendments

04 June 2015 - Date of orders corrected.

04 June 2015 - File number corrected

Decision last updated: 04 June 2015