Bemert & Swallow
[2010] FamCAFC 100
•11 June 2010
FAMILY COURT OF AUSTRALIA
| BEMERT & SWALLOW | [2010] FamCAFC 100 |
| FAMILY LAW - APPEAL – Application to reinstate abandoned appeal – Appeal deemed abandoned pursuant to r 22.13(2) – Where the appeal books failed to be filed in time – Principles in Gallo v Dawson (1990) 93 ALR 479 applied – Consideration given to the relevant provisions in Chapter 1 of the Family Law Rules 2004 (Cth) in relation to case management and what was said in Aon Risk Services v Australian National University (2009) 239 CLR 175 – Where the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account – Where there was a lack of any adequate explanation for the failure to comply with procedural orders – Where there is uncertainty of the relief which is sought if the appeals were reinstated – Where significant prejudice, both financial and emotional, would be caused if the appeals were reinstated – Where the appeals were futile – Where the public interest was a significant factor – Application to reinstate dismissed FAMILY LAW - LEAVE TO APPEAL – Where leave is not required under s 118(1)(c) to institute an appeal against a decision made pursuant to s 118 subjecting an appellant to an order under s 118(1)(c) – Where an order pursuant to s 118(1)(c) is interlocutory and therefore pursuant to s 94AA of the Act leave is required to appeal FAMILY LAW - APPEAL – Application to reopen hearing – Principles in Stephens & Stephens (2009) FLC 93-425 applied – Where the material filed provides some information about what has happened since the hearing – Where the material also makes clear the focus of the application is on issues other than the best interests of the children – Application granted FAMILY LAW - COSTS – Application for costs of the abandoned appeal – Where the non-compliance of the procedural orders was not by reason of mistake or lack of understanding of the orders – Where the reasons for non-compliance focus on the assertions of being impecunious and the inability to afford the printing of the appeal books – Where in the circumstances of this case these matters are not persuasive – Where the Appellants ought to have known that they were unable to pay the costs associated with the preparation of the appeal books and that they knowingly and negligently exposed the Respondents to unnecessary legal costs – Justifying circumstances established – Costs granted pursuant to r 19.18(1)(a) of a specific amount FAMILY LAW - COSTS – Application for costs of the application to reopen hearing – Where although the application to reopen the hearing was granted the material filed bolstered the father and mother’s case – Costs granted |
| Family Law Act 1975 (Cth) Court Procedure Rules 2006 (ACT) Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Carr & Anor v Finance Corporation of Australia Limited (No 1) (1981) 147 CLR 246 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123 Tudor & Tudor (1992) FLC 92-273 |
| FIRST APPLICANT: | Mr Swallow |
| SECOND APPLICANT: | Mrs Swallow |
| FIRST RESPONDENT: | Mr Bemert |
| SECOND RESPONDENT: | Mr Bemert (Snr) |
| THIRD RESPONDENT: | Mrs Bemert (Snr) |
| FILE NUMBERS: | SYC SYC | 959 3827 | of of | 2008 2008 |
| APPEAL NUMBERS: | EA EA | 14 16 | of of | 2009 2009 |
| DATE DELIVERED: | 11 June 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & O'Ryan JJ |
| HEARING DATE: | 19 August 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 January 2008 |
| LOWER COURT MNC: | [2009] FamCA 5 |
Representation
| SOLICITOR FOR THE APPLICANTS: | Paul Doolan, Barkus Doolan Kelly |
| SOLICITOR FOR THE RESPONDENTS: | Mr Bemert in Person |
Orders
The First Respondent and the Second and Third Respondents be granted leave to rely upon the affidavit sworn by the First Respondent on 30 March 2010.
The application by the First Respondent filed on 7 August 2009 to reinstate appeal EA 16 of 2009 be dismissed.
The application by the Second Respondent and the Third Respondent filed on 7 August 2009 to reinstate appeal EA 14 of 2009 be dismissed.
The First Respondent pay within two months of the date of these orders the costs of the First Applicant and the Second Applicant of the abandoned appeal by the First Respondent in appeal EA 16 of 2009 which costs are assessed in the amount of $1,500.00.
The Second Respondent and the Third Respondent pay within two months of the date of these orders the costs of the First Applicant and the Second Applicant of the abandoned appeal by the Second Respondent and the Third Respondent in appeal EA 14 of 2009 which costs are assessed in the amount of $1,500.00.
The First Respondent pay within two months of the date of these orders the costs of the First and Second Applicants in relation to the application in a case filed on 30 March 2010 on behalf of the First, Second and Third Respondents which costs are assessed in the amount of $750.
IT IS NOTED that publication of this judgment under the pseudonym Bemert & Swallow is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 14 of 2009
EA 16 of 2009
File Number: SYC 959 of 2008
SYC 3827 of 2008
| Mr and Mrs Swallow |
Appellants
And
| Mr Bemert & Mr and Mrs Bemert (Snr) |
Respondents
Reasons For Judgment
Introduction
Before us for hearing are three applications.
First, an application filed on 3 July 2009 by Mr Swallow (“the father”) and Mrs Swallow (née Bemert) (“the mother”) for costs of abandoned appeals by Mr Bemert (“the maternal grandfather”) in matter EA 16 of 2009 and Mr and Mrs Bemert (Snr) (“the maternal great grandparents”) in matter EA 14 of 2009. The costs application is opposed by the maternal grandfather and the maternal great grandparents.
Second, an application filed on 7 August 2009 by the maternal grandfather and the maternal great grandparents pursuant to r 22.44 of the Family Law Rules 2004 (Cth) (“the Rules”) to reinstate the appeals (EA 14 and EA 16 of 2009) that were taken to be abandoned because of the failure to file appeal books by a date ordered.
Third, an application filed on 30 March 2010 by the maternal grandfather and the maternal great grandparents to reopen the hearing before us and adduce further evidence.
In relation to the second application the appeals sought to challenge the following orders made on 15 January 2009 by Watts J:
1. The application filed by [the maternal grandfather] on 20 February 2008 (“the first application”) is summarily dismissed.
2. In the event that Order 1 is set aside by the Full Court, and the matter remitted for re-hearing, [the maternal grandfather] shall prior to such re-hearing being listed, pay by way of security for costs to the solicitors for [the father] and [the mother] the sum of $50,000.00, such sum to be invested in a controlled monies account, pending determination of the hearing of the first application.
3. Pursuant to s 118(1)(c) of the Family Law Act 1975, [the maternal grandfather] shall not, without leave of a court having jurisdiction under the Family Law Act 1975, institute any proceedings under the Family Law Act 1975.
4. [The father and the mother] may, if they wish, make an application, in the time provided for by the Family Law Rules 2004, for [the maternal grandfather] to pay their costs.
5. The initiating application filed 1 July 2008 by [the maternal great grandparents] (“the second application”) is summarily dismissed.
6. In the event that Order 5 is set aside by the Full Court, and the matter remitted for re-hearing, [the maternal great grandparents] shall prior to such re-hearing being listed, pay by way of security for costs to the solicitors for [the father and the mother] the sum of $25,000.00, such sum to be invested in a controlled monies account, pending determination of the hearing of the second application.
7. [The father and the mother] may, if they wish, make an application, in the time provided for by the Family Law Rules 2004, for [the maternal great grandparents] to pay their costs.
Watts J summarised the proceedings before him as follows:
1. [The maternal grandfather] wants to see his four grandchildren who do not know him. The children’s parents, [the father and the mother], vehemently oppose [the maternal grandfather]’s wish. A State protective order currently keeps [the maternal grandfather] away from the children and their parents. [The maternal grandfather] wants this Court to set aside that order. [The maternal grandfather] is a veteran litigant whom the Supreme Court of New South Wales has found is vexatious. [The mother] says she was sexually abused by [the maternal grandfather] as a child. [The maternal grandfather] denies this saying his daughter has a mental illness. [The maternal grandfather] also wants the children to see his parents, [the maternal great grandparents] and other relatives. [The maternal great grandparents] have made their own application to see their great grandchildren which the parents oppose. The central question to consider is whether there should be a full hearing or whether these proceedings should be dismissed now. Another question is whether [the maternal grandfather] should be able to commence future cases in this Court without first getting permission to do so.
…
3. [The maternal grandfather] proposes that the children spend time with him every second weekend on a Sunday for three hours, except on religious holidays and school holidays. He also seeks an order that during the time the children spend with him, other members of [the maternal grandfather]’s family, namely his brother, [Great Uncle C], [C’s wife] and his [C’s son], his father [the maternal great grandfather] and his mother, [the maternal great grandmother] spend time with the children. This time with the children is to take place at [N Street].
4. The protection order is an Apprehended Violence Order made by Magistrate Madgwick dated 23 October 2007 (“the AVO”), which is in force for a period of five years. [The maternal grandfather] had applied to the Supreme Court of New South Wales for leave to appeal against the AVO and leave to appeal was refused.
5. [The maternal great grandparents] seek to spend time with the children on a weekly basis for two hours on a Sunday at 3pm. [The maternal grandfather and the maternal great grandparents] all live at [N Street].
6. Whilst it is somewhat unclear as to whether or not [the maternal grandfather and the maternal great grandparents] are seeking time which would be concurrent or cumulative, [the maternal grandfather] has applied for the removal of any restriction which would stop him from being at [N Street] at the times the children were with the [maternal great grandparents].
7. [The maternal grandfather and the maternal great grandparents] spent some time with [L] before she was one year of age but the other three children have not spent time with them nor since early 1998 has there been any communication between any of the children and [the maternal grandfather and the maternal great grandparents], apart from a very small number of chance meetings.
The reinstatement applications are opposed by the father and the mother. However, in the event that the appeals were reinstated the father and the mother seek that it be on conditions including that the maternal grandfather and the maternal great grandparents comply with costs orders made by Watts J on 6 August 2009.
In relation to the third application the maternal grandfather and the maternal great grandparents relied upon an affidavit of the maternal grandfather sworn on 30 March 2010 and a draft amended notice of appeal filed on 30 March 2010. The maternal grandfather and the maternal great grandparents seek leave to reopen on the ground that they are self-represented and “did not know how to plead fraud and … [t]he previous Notice of Appeal mentioned the fraud perpetrated by the maternal grandfather but did not detail the fraud explicitly as is required by law”. The father and the mother asked that the application be dismissed and for costs.
The father and the mother were married in January 1996. They are the parents of L born 1997 (aged 12 years), E born 2000 (aged 10 years), M born 2004 (aged years 5) and T born on 2006 (aged 3 years) (“the children”).
The maternal great grandparents are the parents of the maternal grandfather. In an affidavit sworn on 7 August 2009 the maternal grandfather said that his father is 89 years of age and his mother is 86 years of age and that both his parents “are hearing impaired and suffer from mild dementia”.
The maternal grandfather was born in 1946 and is 63 years of age. He is the father of the mother, Mrs Swallow. The mother was born in 1975. The mother has a sister who was born in 1976 and who currently resides in Israel.
We observe that over a period of many years the maternal grandfather has been a participant in proceedings both in the Family Court under the Family Law Act 1975 (Cth) (“the Act”) and in other courts and tribunals.
Background
In reasons for judgment delivered on 15 January 2009 Watts J set out a deal of relevant background facts some of which we will repeat. There are also various matters of history set out in affidavits and written submissions of the maternal grandfather. In an affidavit sworn on 7 August 2009 the maternal grandfather said: “This matter has a long history and dates back to 1982”. It is a very detailed and complex history and what we hereafter set out is obviously only a very small part of it, however, it is instructive.
The maternal grandfather graduated from medical school in 1975 and worked as a medical practitioner to September 2000.
In his reasons at [74] the trial Judge observed that in written submissions filed on 25 August 2008, the maternal grandfather “sets out the four separate pieces of litigation that he says he was involved in with his former wife [(“the maternal grandmother”)] during the period 1982 to 1984. He does not, in that list, mention the proceedings in the High Court of Australia”.
In July 1982, after a contested hearing in the Family Court, the maternal grandmother was awarded custody of the mother by Nygh J. An order was also made that the maternal grandfather have access which was defined to some extent. In 1983 an order was made by Nygh J suspending access by the maternal grandfather to the mother and her sister.
In relation to such litigation the trial Judge at [75] set out what the maternal grandfather said in paragraph 34 of his affidavit of 2 October 2008, namely:
I recall my own experience in the Family Court in [Bemert & Bemert] where I was ‘disempowered and unable to protect my children’ by Nygh J’s corrupt and perverted orders of 1982 and 1983 that lead 26 years later and directly resulted in this current situation. The errant juridical officer of the Family Court [the late Nygh J] wilfully perverted justice by failing to be mindful of the powerful evidence of [Dr D] with regard to the maternal abuse and physical assaults my elder daughter had to tolerate from her mother, [the maternal grandmother] over the years. The judicial pervert [the late Nygh J] wilfully desecrated every rule in the Family Law Act 1975 with regard to the welfare of a child in making his orders. Although he was thrown out of the [Bemert v Bemert] proceedings and his orders set aside on appeal in 1984, his perverted orders have adversely affected both my daughters more so after his demise. [italics and bold in original]
The maternal grandfather applied for an order nisi for a writ of prohibition against Nygh J which Brennan J dismissed on 24 September 1983: see Re Nygh; Ex parte [Bemert] [citation removed].
In his reasons the trial Judge at [76] set out what the maternal grandfather said in para 35(iv) of his affidavit sworn on 19 May 2008 namely:
The ex parte application of the husband to the High Court of Australia adjudicated in Canberra by Brennan J in 1983 to have Nygh J removed as adjudicator in [Bemert v Bemert] matter no. [ … ] with Nygh J being thrown out as adjudicator in any further family court proceedings in [Bemert v Bemert]. [italics and bold in original]
His Honour then at [77] said: “Clearly on [the maternal grandfather]’s oath he is asserting that Justice Nygh had been ‘thrown out of the [Bemert v Bemert]’ proceedings”. After referring at [78] to what was said by Brennan J in Re Nygh; Ex parte [Bemert] his Honour concluded at [79]: “It can be readily seen that [the maternal grandfather] has misrepresented what happened in the High Court of Australia and the assertion that Nygh J was thrown out of the proceedings appears factually inaccurate”.
We observe that in paragraph 7 of his affidavit of 7 August 2009 the maternal grandfather contended that in August 1984 he “mounted an appeal to Nygh J’s orders of no access. Evatt P and Nicholson JA set aside Nygh J’s judicial orders of no access, and reinstituted access to the father”. Our researches reveal that on 16 June 1983 the Full Court of the Family Court delivered reasons for judgment in relation to appeals by the maternal grandfather and a cross-appeal by the maternal grandmother that provide a more reliable and comprehensive history of the proceedings between the maternal grandfather and the maternal grandmother than was suggested by the maternal grandfather: see [Bemert & Bemert] (unreported, Family Court of Australia, Evatt CJ, Ellis and Fogarty JJ, 16 June 1983).
The trial Judge at [25] observed that the maternal grandfather contended that from 31 August 1997 to 1 January 1998 he had regular contact with the child, L, in babysitting her in her parents’ absence, feeding her, burping her and changing her nappies as the child’s needs dictated at the time. The maternal grandfather contended that in this period the relationship between the child and himself was good and that the father and the mother have never alleged that the maternal grandfather did not properly care for the child during the period 1997 to 1998.
The trial Judge at [26] observed that the maternal grandfather contended that in late 1997 the mother for the first time accused the maternal grandfather of incest. The maternal grandfather contended that in late 1997 the mother instructed the father to make allegations of rape against the maternal grandfather and his brother, Great Uncle C, to the maternal great grandmother. The trial Judge at [61] observed that:
[The maternal grandfather] says [the father] in late 1997 conferred with [the maternal great grandmother] and accused [the maternal grandfather] and his brother [Great Uncle C] of having raped [the mother] (age or dates were not specified) and [Great Uncle C] of having had an incestuous relationship with his niece, [the mother]. Thereafter all voluntary contact ceased between [the maternal grandfather], his extended family members and [the mother] and [the father]. [The maternal grandfather] says he and his brother were devastated by the false accusation.
We observe that in his affidavit of 30 March 2010 the maternal grandfather contended at paragraph 34 that in November 1997 the mother “was convinced by her sister … that she had been raped by her paternal uncle and had had an incestuous relationship with her father during her childhood”.
The trial Judge observed at [27] that the maternal grandfather accepted that the mother “subjectively believes that she had suffered violence and sexual abuse (incest) at the hands of [the maternal grandfather] from when she was between the ages of 3 and 14 years”. His Honour said: “This belief is set out in [the mother]’s signed and witnessed application for an AVO dated 2 August 2007”. The maternal grandfather denied he ever had an incestuous relationship with the mother.
The trial Judge observed at [29] that it was part of the maternal grandfather’s case that the mother accused him of performing a termination on her in a hospital setting in the presence of the father; raping her; incest; violence; and making comments such as “I will cut off your nipples”.
The trial Judge at [30] said: “Since early 1998, apart from chance meetings, there has been no contact between [the maternal grandfather and the maternal great grandparents] on the one hand and the [father and the mother] on the other”. In early 1998 the child L was only a few months old and the other children had not yet been born. His Honour at [32] observed that the maternal grandfather said that between 1998 and 2007 he has had “chance meetings” with the mother on approximately ten occasions.
During his oral submissions to us the maternal grandfather made oblique reference to having lost his wealth because the mother did not give evidence on his behalf in proceedings in the Supreme Court of New South Wales. The trial Judge said:
85. [The maternal grandfather] claims that [the mother]’s conduct in [earlier proceedings] (matter no. [ … ]) was dreadful. [The maternal grandfather] says [the mother] failed to give her crucial evidence and refers to the Probate judgment of […] September 1998 where the Justice invoked the principle of Jones v Dunkel (1959) 101 CLR 298 against [the maternal grandfather].
In the affidavit sworn on 7 August 2008 the maternal grandfather said:
12. In 1998, [the mother] refused to give oral evidence in support of her affidavit evidence in the Probate Division of the Supreme Court of NSW, thus leading to the Probate Court not accepting the [the maternal grandfather]’s evidence of his de facto marriage with the late [Ms NH].
The maternal grandfather deposed at paragraph 26 of his affidavit of 7 August 2009 that he “had substantial wealth prior to 1998”. He went on to say:
Both my estate and my former wife’s estate of about $6,000,000 was sequestrated by the Supreme Court of NSW in multiple Court litigations from 1998 to 2005. Following the litigations, by various court orders, I was left owing a considerable amount of money I presume it to be approximately over $1,500,000 – see affidavit of [the mother] to the [Ms NH] Estate as a consequence of the Court orders that relied on the alleged fraud of the [Ms NH] administrator, [Mr AH] and his witnesses in the Equity, Medical Tribunal and Probate litigations.
In his affidavit of 7 August 2009 the maternal grandfather also said:
22. There is another application pending for determination in the Supreme Court for the applicant to have leave to file four statements of claim to obtain his $6 million from the administrator of the [Ms NH] estate on the grounds of witness fraud, HCCC and NSW Medical Board conspiracy and perversion of the course or justice pursuant to s 314 of the Crimes Act 1900 HCCC and the NSW Medical Board in collusion relied on knowingly false evidence and made false allegations to the detriment of the appellant in the medical tribunal of NSW. It is also alleged that the administrator of the [Ms NH] Estate and his witnesses also gave knowingly material and false evidence in the Supreme Court of NSW in the probate and equity litigations.
In September 2000 the maternal grandfather was deregistered as a medical practitioner by the Medical Tribunal of New South Wales.
The trial Judge said:
40. [The maternal grandfather] worked as a medical practitioner from January 1975 to […] September 2000 when he was deregistered by the Medical Tribunal of NSW. [The maternal grandfather] says he applied to be reregistered as a medical practitioner on […] September 2007 pursuant to s 92 of the Medical Practice Act 1992 (NSW), but alleges the application was unduly delayed to 31 July 2008 by subterfuge perpetrated by the High Court of Australia in Special Leave to Appeal in [Bemert] v Health Care Complaints Commission [citation removed] ([ … ] July 2008). It is a matter of public record that on 31 July 2008 Justices Gummow and Kiefel dismissed an application by [the maternal grandfather] for special leave to appeal, in excess of five years out of time, against a decision of the Court of Appeal of the Supreme Court of New South Wales (Beazley JA, Meagher JA and Pearlman AJA). In [Bemert] v Health Care Complaints Commission [citation removed] ([ … ] May 2002) the Court of Appeal had found that none of the 100 grounds of appeal raised by [the maternal grandfather] established that the Tribunal had made any error of law when it had found, upon inquiry into two complaints, that [the maternal grandfather] had engaged in unsatisfactory professional conduct and professional misconduct within the meaning of ss 36 and 37 of the Medical Practice Act 1992 (NSW). [The maternal grandfather] says that this matter will be referred to the International Criminal Court (ICC) after three legally qualified expert referees make their findings on the documentation.
In an affidavit sworn on 7 August 2009 the maternal grandfather contended that since 30 October 2001 his only source of income has been Centrelink benefits.
On 25 February 2005 Patten AJ, in the Supreme Court made the following orders:-
1. That [the maternal grandfather] shall not, without leave of this court, institute proceedings in any court.
2. That any legal proceedings instituted by [the maternal grandfather], in any court before the date of this order, shall not be continued by him without leave of this court.
3. That [the maternal grandfather] pay the costs of these proceedings.
4. The exhibits may be returned.
5. That [the maternal grandfather] give not less than 3 days notice to Crown solicitor of any application to institute proceedings for leave pursuant to Os 1 and 2 above.
The trial Judge observed at [111] that these orders were made upon an application by the Attorney General of New South Wales under s 84(1) of the Supreme Court Act 1970 (NSW). For reasons which we need not repeat his Honour was of the opinion that the maternal grandfather did not need leave of the Supreme Court to bring an application in relation to his grandchildren.
The trial Judge observed at [34] that the maternal grandfather contended that on 20 July 2007 he met the mother on O Road and he asked the mother “Why do you lie?” The maternal grandfather contended that the mother answered, “I have nothing to say to you”. The maternal grandfather contended that on 1 August 2007 “he introduced himself to [the children] [L] and [E], who were in close proximity to their mother”.
On 2 August 2007 the mother applied for an apprehended violence order (“AVO”) and on 23 October 2007 an order was made in a Local Court in Sydney protecting the father and the mother and the four children. The trial Judge observed at [38] that the maternal grandfather is subject to the following orders as defendant:-
1. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected persons or a person with whom the protected persons have a domestic relationship.
2. The defendant must not engage in conduct that intimidates the protected persons or a person with whom the protected persons has a domestic relationship.
3. The defendant must not stalk the protected persons or a person with whom the protected persons has a domestic relationship.
4. The defendant must not approach or contact the protected persons by any means whatsoever, except through the defendant’s legal representative.
5. The defendant must not approach the school or other premises at which the protected persons may from time to time attend for the purposes of education or child care or other specified premises [no other premises are specified]. [italics and bold in original]
We observe that in the notice of appeal filed on 10 February 2009 by the maternal grandfather he contended in Ground 7 that the trial Judge erred in not making a parenting order in favour of the maternal grandfather in circumstances where the AVO “was procured by fraud” and “was made by the perversion of the course of justice by the Local Court Magistrate especially despatched from the Downing Centre by order of the Attorney General to attend the Local Court [in Sydney] to adjudicate that particular matter on 23.10.2007”. In the affidavit sworn on 7 August 2008 the maternal grandfather contended that the Local Court Magistrate accepted the mother’s “false evidence with regard to incest”.
In his affidavit sworn on 30 March 2010 the maternal grandfather contended that on 6 September 2007 he lodged an application for review of his being deregistered as a medical practitioner. He contended that the application was heard by the Medical Tribunal in November 2008/January 2009 and in March 2009 an order was made “for a further deregistration period of three years from the date of publication”. The maternal grandfather contended that he “filed a complaint against the 2009 Tribunal (Murrell DCJ) with the ICC [International Criminal Court] for her deceit and perversion of the course of justice”.
On 11 September 2007 the maternal grandfather made an application to the International Criminal Court. In his reasons the trial Judge said:
41. [The maternal grandfather], saying that he was mindful of the Australian judicial conspiracy against him in several jurisdictions, applied in September 2007 to the ICC to assess, investigate and make findings on his allegations and for intercession by the highest court in the world. [The maternal grandfather] says that such a conspiracy becomes obvious when two separately constituted courts of appeal on the same issue and the same evidence of the same witnesses make a contradictory and irreconcilable findings on “the de facto issue” after more than 80 full hearing days of litigation in the Supreme Court of New South Wales, and when [the maternal grandfather] is finally successful with the de facto issue the Court of Appeal fails to award him costs of more than $1,000,000.
42. [The maternal grandfather] says that there are currently various pieces of litigation and applications in several jurisdictions as a consequence of his de-registration, including an application to the ICC filed 11 September 2007 “to investigate and bring to justice the HCCC and the 17 corrupt Australian judicial officers, and the return of my estate valued at over $10,000,000.”
43. On 28 October 2008, [the maternal grandfather] told me from the bar table that the figure of 17 Australian judges whom he has reported to the ICC has now increased in number to 20.
In his affidavit of 30 March 2010 the maternal grandfather said at paragraph 45 that he had “lodged complaints against 20 Australian judicial officers who had formally adjudicated his proceedings and conspired to wilfully pervert the course of justice in the litigation he was a party in”.
The trial Judge at [39] observed that the maternal grandfather “applied for leave to revoke the AVO or alternatively applied for leave to appeal the length of the AVO so that its duration was reduced from 5 years to 1 year from the date of its grant in the Supreme Court”. The matter was heard on 10 September 2008 in the Supreme Court and the application for leave was dismissed.
We observe that in the notice of appeal filed on 10 February 2009 by the maternal grandfather he also contends in Ground 7 that “[t]he perversion of the course of justice by Harrison AsJ possibly under instruction of the Attorney General, and/or the judicial allocator in the Supreme Court or the Attorney General’s underlings”. The maternal grandfather said that the “matter will be thoroughly investigated by the prosecutors of the International Criminal Court prior to the persons concerned being charged in that jurisdiction”.
On 14 January 2008 the maternal grandfather made a complaint to the Judicial Commission of New South Wales to have the Chief Judge of the District Court of New South Wales removed from office. The trial Judge at [44] observed that the maternal grandfather claimed that Chief Judge Blanch as the Chairperson of the Medical Tribunal of New South Wales, “wilfully perverted the course of justice by authorising the prosecution of the Health Care Complaints Commission (HCCC) complaint on 2 September 1998 that was in breach of s 48 of the Medical Practice Act 1992 (NSW)”. His Honour at [46] observed that the maternal grandfather said that he was deregistered by the Deputy Chairperson of the Medical Tribunal in breach of s 154(2) of the Medical Practice Act “to the exclusion of the other three members and that deregistration was unlawful and the [Deputy Chairperson] wilfully perverted the course of justice by failing to detect the breaches and criminality of the HCCC and the NSW Medical Board during the hearing”. His Honour observed at [47] that the maternal grandfather claims that the Health Care Complaints Commission and the New South Wales Medical Board “in unison perverted the course of justice”.
On 20 February 2008 an application for final orders was filed in the Family Court by the maternal grandfather in which he sought:
1. Order that [the maternal grandfather] be given access to his four children [sic] [L, E, M and T] in the marriage between [the father] and [the mother] every second weekend on a Sunday for three hours except on religious holidays or school holidays.
2. A no costs order.
3. An order that during the access visit to the grandfather, the relatives of the four children, namely [Great Uncle C, C’s Wife and C’s son], [the maternal great grandfather] and [the maternal great grandmother] also have access to the four children.
4. That the access be conducted at the premises known as [N Street].
5. That one or both parents of the four children deliver them [N Street] for access.
6. That one or both parents of the four children collect them from [N Street] following the access.
7. Order that the AVO dated 23.10.2007 for the four children be set aside.
The trial Judge observed at [134]:
[The maternal grandfather], for a period of ten years, has delayed any application to spend time with the children or to have any communication with them. [The maternal grandfather]’s reason is that he had been preoccupied with the preservation of his estate and the prosecution of numerous other pieces of litigation, including those in connection with judicial conspiracy. The judicial prosecutions are ongoing in the ICC and [the maternal grandfather], hopes they may result in the return of [the maternal grandfather]’s estate of over $10,000,000.
In his affidavit sworn on 7 August 2009 the maternal grandfather contended at paragraph 19 that on 17 March 2008 he “was arrested, incarcerated and charged with a breach of the AVO by NSW Police”. The maternal grandfather went on to say:
The Appellant was assault [sic] by the gaoler. Leave has been sought by the appellant from the Supreme Court to prosecute the Crown [NSW Police] for damages and compensation for $700,000. Leave has been tentatively granted to file a Statement of Claim in the District Court of NSW subject to the Attorney General’s Notice of Motion (NOM) for conditions to be placed on the leave application. The hearing of the NOM would be litigated on 24 October 2009 before Smart J.
During submissions to us the maternal grandfather made an oblique reference to an incident involving a process server. In paragraph 19 of his affidavit of 7 August 2009 the maternal grandfather contended that in 2008 [the mother] “created havoc with being served court appointed documents by a 78 year old female ex patient of the [maternal grandfather] namely [Mrs KN]. [The mother] assaulted the appointed process server, [Mrs KN] and summoned the police”.
The trial Judge observed:
63. [The maternal grandfather] says the “penny only dropped” when he read [the mother]’s affidavit of 12 May 2008 and formed an expert medical opinion (having practised medicine for 25 years) that his elder daughter was suffering from depression coupled with Parental Alienation Syndrome within a matrix of marital disharmony. [The maternal grandfather] says this was admitted to [the maternal great grandparents] by [the father] in 1998 while [the father] accepted a lift in their car to avoid getting drenched in the rain and [the mother], on subsequently hearing of the disclosure, punished [the father] for his admission. [The maternal grandfather], immediately after having made the psychiatric diagnoses of [the mother] in May 2008, took steps to notify the NSW Police Force with regard to the complaint being laid against him which he asserts was riddled with false allegations. In addition, [the maternal grandfather] notified the NSW Department of Community Services (DoCS) with regard to evaluating [the mother] as a potential risk to her children and advised DoCS to regularly provide support to [the mother] should the need arise. [The maternal grandfather], during submissions, referred to the letter he had written which was in evidence (Annexure “MBM 5” to [the maternal grandfather]’s affidavit sworn 19 May 2008). [The maternal grandfather] had written a letter to DoCS warning them about the risk to the children in their mother’s care. [The maternal grandfather] says his letter to DoCS was written when he imaged his daughter “not to be the full quid” and prior to the penny having dropped on 12 May 2008 that she suffered from psychiatric illness that exonerates her legally from bearing false witness.
64. There is no evidence before me that DoCS have made any assessment that the children are at any risk in the care of their parents or have taken any action arising from [the maternal grandfather]’s letter in May 2008.
65. The proposed criminal charges against his daughter were when he perceived her “not to be the full quid”. Now that he says he has diagnosed her as being psychiatrically ill he has formed the opinion that even if she were found by a court to have deposed false evidence, her psychiatric illnesses would exonerate her of any wrongdoing. [The maternal grandfather] says “[f]ar be it for a former medical practitioner to prosecute a psychiatrically afflicted patient, especially his favourite elder daughter”.
The trial Judge observed at [71] that the maternal grandfather wrote a letter (Exhibit “B”) on 28 May 2008 to the lawyer for the father and the mother in which he said:-
Please find enclosed a copy of letter I received from the Crown Solicitor’s Office signed by Anina Johnson dated 23 May 2008. That should confirm that Mr Campton of Counsel was flogging a dead horse with attempting to rely on a leave to file the initiating process in a Federal Jurisdiction. That should now put to rest the s 84(4) issue.
I seek to inform you that I will make representation to Justice Watt [sic]of the Family Court on the 27.6.2008 for the following Interim Orders, namely:-
1.That the AVO being oppressive and not in the interest or welfare of my four grandchildren be set aside and the First Respondent pay her own legal costs;
2.A psychiatric assessment of my elder three grandchildren for grandparent alienation syndrome so as to identify all the perpetrators for the Family Court;
3.A psychiatric assessment of my elder daughter, the First Respondent and her mother, [the maternal grandmother] - the perpetrator of my daughter’s mental illness;
You may wish to discuss with your clients the withdrawal of the AVO prior to its being set aside by Court order, and suitable access arrangements to my four grandchildren by consent.
The trial Judge observed at [72] that the maternal grandfather also wants his former wife psychiatrically examined and at [80] that the maternal grandfather “also proposes as part of the hearing that [the mother]’s sister in Israel also be psychiatrically assessed”.
On 11 July 2008 an application for final orders was filed by the maternal great grandparents in which they sought:
1. Regular contact with our four great grandchildren, [L, E, M and T] on a weekly basis for two hours on a Sunday at 3pm pursuant to s 60B(2)(b) of the Family Law Act 1975;
2. That the parents or their agents bring the four great grandchildren to our home for contact and collect them after contact;
3. That Order 1 & 2 be implemented expeditiously in view of the great grandfather’s age and health.
4. We seek short notice.
The trial Judge observed at [229]:
There was no satisfactory explanation in the affidavits of [the maternal great grandparents] as to why it was they had taken ten years to do anything about making the application that they now made to the Court. The unsatisfactory explanation I was given was that up until recently they were unaware that they were able to do so (as noted at paragraph 19 in my Reasons for Judgment delivered 7 August 2008.)
On 7 August 2008 the trial Judge made various orders including that:
3. The application filed by the maternal great grandparents on 1 July 2008 be heard at the same time as the application of the maternal grandfather filed 20 February 2008 and consequently the application filed on 1 July 2008 be adjourned to 28 October 2008.
On 20 August 2008 a further amended response was filed by the father and the mother in which they sought orders in the following terms:-
1. That the application filed by [the maternal grandfather] is summarily dismissed.
2. In the alternative to order 1, that the application filed be permanently stayed.
3. In the alternative to orders 1 and 2, that the application be stayed pending [the maternal grandfather] obtaining an order from the Supreme Court of NSW for leave to initiate proceedings as to parenting in a court exercising jurisdiction pursuant to Part VII of the Family Law Act.
4. In the alternative to orders 1, 2 and 3, that pursuant to s 118 of the Family Law Act and or Part 10.3 and or Rule 11.04 of the Family Law Rules, the court summarily dismiss and or stay the application filed by [the maternal grandfather].
5. That as a further alternative and without concession, that [the maternal grandfather] pay by way of security for costs to the solicitors for the parents a sum of $50,000 within 7 days of the date of these orders and such solicitors hold monies pending determination at first instance of [the maternal grandfather]’s application filed on 20 February 2008 and that the application be stayed pending compliance with this order.
6. That the applicant [the maternal grandfather] pay the respondents’ costs of and incidental to his application filed 20 February 2008 on an indemnity basis.
7. That the initiating application filed 1 July 2008 by [the maternal great grandparents] be summarily dismissed.
8. In the alternative to the preceding order, that the said initiating application filed by [the maternal great grandparents] be permanently stayed.
9. In the further alternative, that pursuant to s 118 of the Family Law Act and or Part 10.3 and or Rule 11.04 of the Family Law Rules, the Court summarily dismiss and or stay the application filed by [the maternal great grandparents].
10. That as a further alternative and without concession, that [the maternal great grandparents] pay by way of security for costs to the solicitors for the parents a sum of $25,000 within 7 days of the date of these orders and such solicitors hold monies pending determination at first instance of [the maternal great grandparents]’s application filed on 1 July 2008 and that the application of [the maternal great grandparents] be stayed pending compliance with this order.
11. That [the maternal great grandparents] pay the respondents’ costs on an indemnity basis of and incidental to their initiating application filed 1 July 2008.
In summary, the maternal grandfather and the maternal great grandparents sought parenting orders to spend time with the four children. The father and the mother sought that the applications be summarily dismissed.
We observe that in his affidavit of 30 March 2010 at paragraph 69 the maternal grandfather contended that in 2008 he was psychiatrically assessed by Professor P and Dr R and that he proposes to file a notice of motion for leave to file a statement of claim against “[Professor P and Dr R]” these two medical practitioners for $3 million “with regard to them both having perpetrated intentional wrongdoings [worse than professional negligence]”.
We observe that the trial Judge said:
16. On 28 October 2008 [the maternal grandfather] foreshadowed that he also wanted to rely upon an affidavit which was not yet in existence by a [Professor P], who is a forensic psychiatrist. [The maternal grandfather] advised that [Professor P] had seen him after [Professor P] had been appointed by the Attorney General of NSW, the Attorney General acting for the NSW Medical Board. Twenty ring binders of material had been provided to [Professor P] who had then spent ten hours with [the maternal grandfather]. [The maternal grandfather] indicated that [Professor P] believed in the existence of a condition called Parental Alienation Syndrome and would be giving evidence about that in his report. In addition, [the maternal grandfather] said [Professor P] had reached conclusions as to the likelihood of [the maternal grandfather] being involved in the alleged sexual abuse of his daughter, based on reading the material that she had filed in this case.
17. The report of [Professor P], on [the maternal grandfather]’s own admission, did not in fact deal with those topics. The legal representatives for [the mother and the father] have objected to the use of the report by [the maternal grandfather] and in the alternative have submitted it should be given little weight. I have admitted the report which does say some things about [the maternal grandfather]’s personality upon which I place some weight but otherwise I give the report no weight.
We also observe that the trial Judge said:
48. As noted above, [the maternal grandfather] wishes to rely on the report of [Professor P] prepared on 21 October 2008. The report is of no relevance in these proceedings apart from providing some insights as to [the maternal grandfather]’s personality.
49. On page 15 of the report [Professor P] notes that [the maternal grandfather] has “moderate obsessional traits” and is “mildly compulsive in matters of interest or importance to him”. On page 20 of the report, in giving his opinion regarding the mental status of [the maternal grandfather], [Professor P] addresses the issue of whether [the maternal grandfather] suffered from a recognisable/diagnosable personality disorder;
On the totality of information available to me I do not have evidence that [the maternal grandfather] suffers currently from any DSM IV TR Axis II personality disorder. Further, it is unlikely that the applicant suffered from any DSM IV TR Axis II personality disorder in the past.
50. [Professor P] adds on page 20 of the report that [the maternal grandfather] has:
… moderately strong obsessional traits within his personality structure. Additionally, some features of his behaviour (particularly with regard to litigation) may be characterised by obsessional traits within his personality structure.
51. As to the issue of contrition, [Professor P] notes that he believes [the maternal grandfather] is ashamed of his actions in the past and has insight into his behaviour, but that he cannot provide a conclusive opinion as to contrition (page 23 of the report). On page 24 of the report [Professor P] gives further opinion as to whether [the maternal grandfather] suffers from a personality disorder:
There is no indication that the applicant suffers from a diagnosable personality disorder and I doubt that he is impaired in this sense. The issue of [the maternal grandfather] having personality traits of importance warrants further consideration. On my assessment, he has significant traits of obsessionality and some traits of compulsiveness…. The possibility that he might have anti-social personality traits is harder to determine.
On 28 October 2008 the hearing of the application for summary dismissal of the applications by each of the maternal grandfather and the maternal great grandparents commenced before the trial Judge.
On 28 October 2008 an oral application was made by the father and the mother for an order against the maternal grandfather pursuant to s 118(1)(c) of the Act and the trial Judge received written submissions from the maternal grandfather in respect of that application.
The documents that were read and relied upon before the trial Judge were extensive. The documents were identified by his Honour at [14] to [19] of his reasons.
The trial Judge observed at [53] to [54] that the maternal grandfather said that he intended “to vigorously pursue the parenting proceedings” and that he sought:
that the following matters inter alia, be the subject of exploration by him at any hearing of the matter:
(a) Whether the allegations made by [the mother] about suffering violence and sexual abuse by [the maternal grandfather] and his brother are true.
(b) Whether [the mother] suffers from Parental Alienation Syndrome.
(c) Whether [the mother] suffers from depression.
(d) Whether [the mother and the father] suffer marital disharmony that has impacted on their children.
(e) The details of [the mother]’s psychiatric therapy for the last six years due to her marital difficulties.
(f) Whether any psychiatric illness suffered by [the mother] poses an unacceptable risk to her children while they are in her care.
(g) Whether [E] suffers from Grandparental Alienation Syndrome.
(h) The results of a psychiatric assessment of [the mother], [the maternal grandmother] and [the mother]’s sister.
His Honour also observed at [55] that the maternal grandfather “described a decade of emotional abuse by his elder daughter in wilfully depriving him of contact with her children (his grandchildren) as her act of wickedness”.
At the conclusion of the hearing on 28 October 2008 the trial Judge reserved his judgment. On 15 January 2009 the trial Judge delivered reasons for judgment and made orders.
On 10 February 2009 a notice of appeal (EA 16 of 2009) was filed on behalf of the maternal grandfather against all of the orders made on 15 January 2009. In the notice of appeal there are 50 grounds of appeal. In the event that the appeal succeeded the following orders were sought:
1. Setting aside all the orders of Watts J made on 15.1.2009;
2. No costs order;
3. That the matter be remitted to the Family Court for a contested hearing;
4. That the Appeal Court order:
a. A psychiatric assessment of each of the [Swallow] nuclear family members;
b. A Family Report to be prepared on the [Swallow] nulear [sic] family prior to the hearing;
c. Access to the parties to all medical evidence of the [Swallow] family members prior to the hearing including a report from the maternal grandfather’s treating “therapist”.
5. That this matter be consolidated with [the maternal great grand father and maternal great grand mother v the mother and the father] should that appeal be granted.
We observe that in the Notice of Appeal of the maternal grandfather he indicated in numbered paragraph 5 of the document that he was applying for leave to appeal.
On 10 February 2009 a notice of appeal (EA 14 of 2009) was filed on behalf of the maternal great grandparents against orders 5 and 6 made on 15 January 2009. In the notice of appeal there are 14 grounds of appeal although replicating in part the grounds of appeal from the maternal grandfather’s appeal. In the event that the appeal succeeded the following orders were sought:
1. Setting aside all the orders of Watts J made on 15.1.2009 relevant to the appellants;
2. No costs order;
3. That the matter be remitted for re-hearing back to the Family Court for a contested hearing and be expeditiously dealt with;
4. That a family report be prepared prior to the rehearing;
5. That the financial documentation re the maternal grandfather’s financial resources be made available to the trial judge only;
6 That the Appeal Court order psychiatric assessment of each of the [Swallow] nuclear family members and order access to the parties to all medical evidence of the [Swallow] family members.
7. That the order that the Appellants “pay by way of security for costs $25,000 be set aside”.
On 12 February 2009 the [father and the mother] filed an Application in a Case seeking costs of the proceedings determined by the trial Judge on 15 January 2009. The application was heard on 20 May 2009.
On 23 February 2009 the maternal grandfather filed a draft index to appeal books in appeal EA 16 of 2009 and on the same day the [maternal great grandparents] filed a draft index in appeal EA 14 of 2009. The two draft indexes are identical and each identify 31 documents. We observe that one document is described as: “Complaint against Watts J filed with the Chief Justice”.
On 2 March 2009 a direction was made that the application by the father and the mother for costs be stood over to a date to be fixed after written submissions were received. In his reasons of 6 August 2009 the trial Judge said at [5]: “Both the parties were informed by letter written by my Associate and addressed to their respective addresses for service (the respondent’s address being [ … ]) of the listing date of 20 May 2009. That listing was to give the parties an opportunity, if they so desired, to make further oral submissions”.
On 25 March 2009 a directions hearing was conducted by a Registrar in relation to the appeals and the following orders were made:
1. That Appeal No EA 16 of 2009 be consolidated with and heard immediately after Appeal No EA 14 of 2009.
2. That the appeal books for the appeals comprise each of the following documents arranged in the following order: [thereafter 39 documents excluding exhibits were identified]
3. That the Appellants be responsible for the preparation of the appeal books.
4. That the Appellants prepare a total of eight (8) copies of the appeal books, and file in the Sydney Registry of the Court on or before 6 May 2009, four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.20(2) of the Family Law Rules 2004, and serve three (3) copies of the appeal books on the Respondent Parents, together with a copy of the certificate. See notation 5 below.
5. That pursuant to Rule 22.21 the appeal will be taken to be abandoned if the appellant fails to file the appeal books by the due date.
6. That each of the Appellants file and serve their Summary of Argument and List of Authorities with the Appeals Registrar on or before 3 June 2009.
7. That the Respondent Parents file and serve their Summary of Argument and List of Authorities with the Appeals Registrar on or before 1 July 2009.
8. That each party be at liberty to apply for any further directions regarding any question arising out of the appeal book index to the Appeals Registrar, and regarding any other issue, to the Honourable Justice Boland (or if not reasonably available to another member of the Appeal Division) upon five (5) days notice in writing to each other party and to the Appeals Registrar in the Sydney Registry.
9. That the costs of and incidental to this hearing be reserved to the Full Court.
10. To the extent these orders do not comply with the Family Law Rules 2004 there be dispensation from such compliance.
IT IS NOTED THAT
1. The estimated hearing time of the appeal is ½ to 1 day.
2. Each of the appellants is self represented.
3. Counsel to be advised to appear as counsel for the Respondent.
4. The appellants will be referred to as Appellant 1 – [the maternal grandfather]; Appellant 2 – [the maternal great grandmother]; Appellant 3 – [the maternal great grandfather].
5. Each of the appellants agreed (Appellant 2 agreeing for Appellant 3) that they required only one copy of the appeal book between them.
6. The respondent will oppose any application made by Appellant 1 to represent Appellants 2 and 3. The respondent will oppose any submission made in support of any such application by Appellant 1 to the effect that such representation is necessary as a result of each of the three appellants having only one copy of the appeal book between them, given that the three appellants consented to having only one copy of the appeal book between them.
7. In the event either party seeks to rely on an exhibit in the proceedings he or she shall provide photocopies of such exhibit for members of the Full Court.
8. The Appellant or Legal Representative for the Appellant is to contact the Appeal Registry on […] in order to make an appointment to file the Appeal Books.
We observe that the orders included inter alia directions of the consolidation for the two appeals and the filing and service of the appeal books by 6 May 2009.
On 1 May 2009 an application was made by each of the maternal grandfather and the maternal great grandparents for an extension of time for compliance with the directions made on 25 March 2009. In the application the maternal grandfather and the maternal great grandparents sought an extension of time until 31 January 2010 to file and serve the appeal books. In an affidavit in support of the application reference was made to a later date of 28 February 2010 by which to file and serve the appeal books. The applications were opposed by the father and the mother.
On 7 May 2009 submissions were filed by the maternal grandfather and the maternal great grandparents in support of the application filed on 1 May 2009. On the same day submissions were filed on behalf of the father and the mother opposing the orders sought by the maternal grandfather and the maternal great grandparents.
On 8 May 2009 Registrar Stow-Smith considered the submissions received on 7 May 2009 and made an order varying the orders made on 25 March 2009. The Registrar granted the maternal grandfather and the maternal great grandparents an extension of time until 5 June 2009 to file and serve the appeal books.
By letter dated 8 May 2009 Registrar Stow-Smith wrote to each of the maternal grandfather and the maternal great grandparents and advised of the order made on that day. The Registrar also advised that failure to file and serve the appeal books by 5 June 2009 would result in the appeals being deemed abandoned. The Registrar also advised: “An appellant may seek re-instatement of an abandoned appeal by filing an [a]pplication in an [a]ppeal together with supporting [a]ffidavit and any such application will be listed before a Judge of the appeal division”. No appeal books were filed in accordance with the Registrar’s orders.
On 20 May 2009 the trial Judge heard the application for costs filed by the father and the mother on 12 February 2009. There was an appearance by a solicitor for the father and the mother but no appearance by any of the maternal grandfather or the maternal great grandparents. At the conclusion of the hearing his Honour reserved judgment.
The appeal books were not filed in accordance with the order made on 8 May 2009 and thus as and from 5 June 2009 the appeals by the maternal grandfather and the maternal great grandparents were deemed abandoned.
By letter dated 10 June 2009 a Registrar wrote to each of the maternal grandfather and the maternal great grandparents and advised that as the appeal books were not filed by 5 June 2009 then pursuant to r 22.21 of the Rules, the appeals were taken to be abandoned.
On 3 July 2009 an application in an appeal was filed by the father and the mother in which they sought costs of the abandoned appeals. They seek an order that the maternal grandfather pay costs in the sum of $1,500.00 in respect of appeal EA 16 of 2009 and that the maternal great grandparents pay costs in the sum of $1,500.00 in respect of appeal EA 14 of 2009. The application was supported by an affidavit sworn by the father on 3 July 2009. The father said that he and the mother:
have incurred legal costs involved in perusing each Notice of Appeal; taking advice as to the merits of each Appeal; perusing the Appeal Books Index in each case (which was voluminous); attending upon a directions hearing convened by the Appeals Registrar for the purpose of settling the Appeal Books Index, perusing the Application for an extension of time by each of the [maternal grandfather and the maternal great grandparents] seeking a variation to the directions of the Appeals Registrar; making submissions by letter to the Appeals Registrar as to why the request for an extension of time until January 2010 should be dismissed; and now in making this Application for costs in circumstances where the Appeals have each now been deemed abandoned.
By letter dated 15 July 2009 the father and the mother and the maternal grandfather and the maternal great grandparents were advised that the application in an appeal filed by the father and the mother on 3 July 2009 would be heard by the Full Court on 19 August 2009.
On 6 August 2009 the trial Judge delivered reasons in relation to the costs proceedings and ordered that the maternal grandfather pay to the father and the mother an amount of $12,000.00 and the maternal great grandparents pay an amount of $4,000.00.
On 7 August 2009 an application in an appeal was filed by the maternal grandfather and the maternal great grandparents seeking the following:
1. That the Court of Appeal set aside the orders of Registrar Halbert.
2. That the Court of Appeal extend reasonable time in which the Appellant [the maternal grandfather] can afford to pay for the printing of the Appeal Books, and then file those appeal books; or in the alternative,
3. That the Court of Appeal dispense with the filing of appeal books altogether for the prospective appeal in view of the Applicant’s impecuniosity; or in the alternative,
4. That the Respondent’s pay for the printing and filing of the Appeal Books.
5. That the Court of Appeal set a hearing date for the main appeal.
In summary the maternal grandfather and the maternal great grandparents were seeking reinstatement of the abandoned appeals. The application was made approximately two months after the appeals were deemed abandoned.
On 7 August 2009 an affidavit was sworn by the maternal grandfather in support of the reinstatement application filed on that day. The maternal grandfather gave evidence about “Background” and “The current litigation”, some of which we have already referred to. The maternal grandfather contended at paragraph 45: “The Appeal Court actions were discontinued because both my parents and I lacked the financial resources to fund the appeal books being printed that [were] mainly occasioned by my poverty/impecuniosity”.
On 7 August 2009 written submissions prepared by the maternal grandfather were filed on behalf of each of the maternal grandfather and the maternal great grandparents in support of the application for reinstatement. The maternal grandfather submitted at paragraph 24 “that he has discharged the onus of establishing that both he and his parent were impecunious and that a further period of time ought to be granted by the appeal court in which to print the appeal books as the Appellant’s litigation is meritorious”. The maternal grandfather submitted at paragraph 5 that his impecuniosity was “easily traceable to the [mother]’s act of refusing to give her evidence in the Probate litigation in 1998 that effected $6,000,000 loss for the [maternal grandfather] in 1998”.
On 7 August 2009 a response to an application in an appeal was filed by each of the maternal grandfather and the maternal great grandparents seeking that the application filed on 3 July 2009 by the father and the mother for costs of the abandoned appeals be “set aside” and that each party pay their own costs or alternatively that there be no order for costs.
On 7 August 2009 an affidavit was sworn by the maternal grandfather in support of the response filed on the same day by the maternal grandfather and the maternal great grandparents in relation to the application for costs of the abandoned appeals. In the affidavit the maternal grandfather replied to parts of the affidavit of the father sworn on 3 July 2009 and then proceeded to give evidence about “Background” and “The current litigation”, some of which we have already referred to.
On 7 August 2009 written submissions prepared by the maternal grandfather were filed on behalf of each of the maternal grandfather and the maternal great grandparents in relation to the costs proceedings.
On 11 August 2009 a sealed copy of the application for reinstatement filed on behalf of the maternal grandfather and the maternal great grandparents on 7 August 2009 and the affidavit in support of the maternal grandfather sworn on 7 August 2009 were served on the father and the mother although unsealed copies may have been served earlier.
On 11 August 2009 written submissions were filed on behalf of the father and the mother in respect of their application for costs of the abandoned appeals.
On 11 August 2009 written submissions were filed on behalf of the father and the mother in respect of the applications by the maternal grandfather and the maternal great grandparents for reinstatement of their appeals.
On 14 August 2009 further written submissions were filed on behalf of each of the maternal grandfather and the maternal great grandparents in relation to the application for costs of the abandoned appeals. The submissions appear to be in response to the submissions filed on behalf of the father and the mother on 11 August 2009.
During the hearing before us on 19 August 2009 we granted leave to the father and the mother to file in court a response to an application in an appeal being a response to the application in an appeal filed by the maternal grandfather and the maternal great grandparents seeking reinstatement of the appeals. In the response the father and the mother sought the following orders:
1. That the Application in an Appeal in EA 14 and EA 16 of 2009 be dismissed.
2. That the Applicant’s pay the Respondent’s costs in respect of the Application in an Appeal fixed as follows:
2.1The First Applicant, [the maternal grandfather] in the sum of $1,000
2.2The Second and Third Applicant’s, [the maternal great grandparents], in the sum of $1,000
In the event that the court grants reinstatement of the appeal EA 14 and EA 16 of 2009, it be on the following conditions:
3. That the Appeal Books be filed and served by 4.00 pm on 18 September 2009.
4. Compliance by [the maternal grandfather] that the terms of Order 1 made 6 August 2009 by Watts J that requires payment of costs of $12,000 by 3 September 2009.
5. Compliance by [the maternal great grandparents], with Order 2 made 6 August 2009 by Watts J that requires payment of costs of $4,000 by 3 September 2009.
5. Compliance within the timeframe stipulated by each of [the maternal grandfather and the maternal great grandparents] with any order for costs (if any) made by the Full Court of the Family Court in respect of the applications heard on 19 August 2009.
The maternal grandfather and the maternal great grandparents did not object to the filing of the response on behalf of the father and the mother.
At the commencement of the hearing before us the maternal grandfather and the maternal great grandparents sought an adjournment of the hearing of their application for reinstatement of the appeals until after August 2010. The application was opposed by the father and the mother.
In relation to the application for an adjournment of the hearing of the reinstatement application the maternal grandfather made a number of submissions. First, it was contended that the maternal grandfather and the maternal great grandparents were not aware that the application would be listed before us for hearing. In discussion the maternal grandfather conceded that he had been advised by a Regional Appeal Registrar that the application would be listed before us and that we may hear it. Second, the maternal grandfather contended that he was not prepared and needed more time to prepare his submissions. However, in discussion he admitted that on 12 August 2009 he received the submissions in reply filed on 11 August 2009 on behalf of the father and the mother.
In the circumstances we refused the application by the maternal grandfather and the maternal great grandparents for an adjournment of the hearing of their reinstatement application. The presiding Judge in discussion advised that every opportunity would be given to the maternal grandfather and the maternal great grandparents to make submissions in answer to the written submissions of the father and the mother and thereafter the maternal grandfather proceeded to make oral submissions in answer to what was put in the written submissions of the father and the mother commencing from paragraph 2.10 of the submissions. It very quickly became apparent that the maternal grandfather was able to adequately deal with the relevant parts of the written submissions of the father and the mother and at no time was it suggested that there was any discrete matter in respect of which the maternal grandfather and the maternal great grandparents needed more time to prepare. We have no doubt that the maternal grandfather and the maternal great grandparents were able to deal with their application for reinstatement and no prejudice was caused to them by the refusal of their application seeking to vacate the hearing of their application. In any event, we are of the view that it was in the interests of all parties that the application be dealt with as soon as possible.
At the conclusion of the hearing on 19 August 2009 we reserved our judgment.
On 30 March 2010 an application in an appeal was filed by the maternal grandfather and the maternal great grandparents. In the application the following orders are set out:
1. That the appeal be granted.
2. That the judgment and orders of Watts J dated 15.01.2009 be set aside.
3. That the matter be remitted back to the lower court for hearing to determine the matter of access of the four grandchildren to the maternal grandfather and the maternal great grandparents.
4. That if the judgment of Watts J be set aside, an order that the appeal be discontinued.
6. That a further hearing be adjudicated by a Justice of the Family Court other than Watts J in lower court of the Family Court of Australia.
7. Costs.
8. An order that the appeal be reopened.
The application of 30 March 2010 was supported by an affidavit sworn by the maternal grandfather on the same day. The affidavit, excluding attachments, comprises 70 paragraphs. We do not propose to repeat all of what is in this affidavit. It appears, however, in a format that deals with a number of topics. The first topic is described at paragraphs 5 to 9 as: “All matters relevant to the new orders sought”. The second topic is described at paragraphs 10 to 15 as “The fraud of the [mother] that was material to Watts J accepting [the mother] as a witness of truth and a credible witness in the lower court proceedings”. The third topic is identified at paragraphs 16 to 60 as: “All facts material to this application known to the Applicant”. The fourth topic is described at paragraphs 61 to 70 as: “Matters relevant to the [maternal grandfather]’s financial circumstances”.
In paragraph 5 of the affidavit of 30 March 2010 the maternal grandfather said that the appellant’s “seek leave to reopen the appeal on the ground that he is a litigant in person and did not know how to plead fraud and the other grounds relied on in this application. The previous notice of appeal mentioned the fraud perpetrated by the [mother] but did not detail the fraud explicitly as is required by law”. Then in paragraph 7 of the affidavit the maternal grandfather said that he and the maternal great grandparents “would be grateful if the court of appeal would deal with this matter of the new grounds of fraud and apprehended bias on the papers”. It was contended that the maternal grandfather and the maternal great grandparents “independently apprehended bias by the tone, disposition, demeanour, findings and orders of Watts J. On that ground [they] request that Watts J does not have carriage of and adjudicate the lower court proceedings in the Family Court of Australia if leave is granted to [them] to pursue access”.
In relation to the matter of alleged fraud, without repeating all of what the maternal grandfather said, he appeared to make allegations in relation to fraud perpetrated by the mother in the proceedings in the Local Court at Waverly in 2007 when she sought and obtained an AVO.
In relation to the third category, namely, facts material to the application known to the applicant, again we do not propose to repeat all of what the maternal grandfather said. However, it appears that it relates to matters of history and background prior to the hearing before us in August 2009.
In relation to the fourth category, namely, matters relevant to the maternal grandfather’s financial circumstances, the maternal grandfather repeated what he had said in previous affidavits about his financial circumstances and how his circumstances may change if he is successful in his pursuit of other litigation. The maternal grandfather contended that on 19 November 2009 he was granted leave in the Supreme Court to file a statement of claim for damages and compensation against the Crown and that he claimed an amount of $700,000. He also contended that he may sell and obtain money from “[m]edical software/data invention” he designed and implemented over several years.
In his affidavit of 30 March 2010 the maternal grandfather contended at paragraph 67 that he owes about $800,000 in legal costs to the estate of [Ms NH] “for the fraud perpetrated by the [H] family members and their witnesses”. The maternal grandfather contended that “this matter currently under a leave to file four statements of claim to set aside judgments procured by the operation of fraud valued at $16 million to be heard on at a future date in the Supreme Court of NSW”. The maternal grandfather also said at paragraph 66 that legal aid has repeatedly been refused to him with respect to legal representation in proceedings in the Supreme Court and the High Court of Australia.
In his affidavit of 30 March 2010 the maternal grandfather also contended that he may obtain damages and compensation “at some future date from prosecution of the Crown for false arrest, unlawful incarceration and assault by a police officer or alternatively, the Crown may accept the maternal grandfather’s proposal of settlement for $1,500,000 dated 30 November 2009”.
On 30 March 2010 the maternal grandfather filed a draft amended notice of appeal in relation to the orders made on 15 January 2009. In the draft amended notice of appeal the grounds of appeal are:
1. Apprehended bias.
2. Fraud of the [mother].
3. Denial of natural justice;
4. The main issue of the application not being addressed by Watts J or the Family Court.
5. New evidence.
There is then a note “See annexed pages labelled grounds wherein each ground is detailed”. Attached to the draft amended notice of appeal is a document dated 30 March 2010 which comprises 52 paragraphs which appears to be in the nature of submissions in support of the proposed grounds of appeal. We do not propose to address all of what is contained in this draft amended notice of appeal.
We observe that in the draft amended notice of appeal of each of the maternal grandfather and the maternal great grandparents were identified as the appellants. We also observe that in numbered paragraph 5 of the draft amended notice of appeal it was indicated that leave to appeal was being sought.
On 14 May 2010 we received written submissions in response on behalf of the father and the mother. It was submitted that:
2. The [mother and father] perceive that the Application in a Case is ostensibly seeking leave to re-open the appeal (paragraph 8 of the Orders sought).
3. None of the matters canvassed by [the maternal grandfather] in his affidavit filed 30 March 2010 constitute fresh evidence that would justify their receipt on an appeal before the Full Court of the Family Court, let alone re-opening of an appeal in circumstances where oral submissions were made on 19 August 2009 and the decision has been reserved for some 8 months.
4. Much if not all of the contents of the [maternal grandfather’s] Affidavit are irrelevant and/or in a form that is not admissible.
5. The Affidavit contains scandalous material in respect of its comments about the late Justice Nygh and should be struck out to that extent.
6. The Respondents seek the following Orders from the Full Court:
6.1 That the Application filed 30 March 2010 be dismissed.
6.2 That the [maternal grandfather, maternal great-grandparents] pay the [mother and father’s] costs of and incidental to the Application in a Case fixed at $750.
The Reasons Of The Trial Judge
We do not propose to undertake in our reasons any detailed consideration of the reasons of the trial Judge. However, we observe that in relation to the application by the father and the mother for dismissal of the application by the maternal grandfather his Honour said:
141. [The maternal grandfather] does not fit into either of the categories described in paragraph 64. It could not be said [L] had established a meaningful attachment or relationship with him. None of the other children have ever had a relationship with him. [The maternal grandfather] has never been the children’s primary care giver. The parents are absolutely opposed to the children having a relationship with [the maternal grandfather].
142. There is no evidence that there are any significant issues about how the children are being parented by [the mother] and [the father]. The children’s parents oppose them having time with [the maternal grandfather]. I find in the circumstances of this case they are entitled to make that decision without having to justify it through litigation.
143. Given that the paramount consideration in determining any parenting application is what is in the best interests of the children, it would make no sense to embark upon a course of litigation which I find would be:
a) Difficult to contain and would likely be protracted; and
b)Be a source of high stress for a parent to whom the children are primarily attached; and
c)Might psychologically injure or disable that parent and consequently put the children at psychological risk; and
d) Was without any realistic prospect of success.
144. That course cannot be in the children’s best interests. That is a powerful reason not to embark upon it and [the maternal grandfather]’s application to spend time with the children should be summarily dismissed.
145. In addition, I find that [the maternal grandfather]’s application for the children to have time with him in the circumstances of this case so clearly untenable that that application could not possibly succeed. [The mother] and [the father] should be protected from being further troubled and the Court should be relieved of further wasted time which could be devoted to the determination of claims which have realistic merit. On this further basis an order for summary dismissal of [the maternal grandfather]’s application to spend time with the children should be made.
In Commonwealth Bank v Heinrich (No 2) Debelle J again approved what Chernov JA said in Kay v Attorney-General and said:
[16] However, the fact that an order under s 39(1) may be varied or revoked is, I think, a compelling reason for concluding that the order is not a final order. It is a misuse of language, if not also legal heresy, to characterise as final an order which is capable of being later varied or revoked. For these reasons, I apply the reasoning in Kay v Attorney-General and conclude that an order made pursuant to s 39(1) is interlocutory in nature. It follows, therefore, that Mr Heinrich must obtain leave to appeal.
We respectfully adopt the views of Chernov JA in Kay v Attorney-General and Debelle J in Commonwealth Bank v Heinrich (No 2). In our view, because of s 118(2) of the Act, an order pursuant to s 118(1)(c) is interlocutory and therefore leave is required to appeal against such an order pursuant to s 94AA of the Act.
We are also of the view that leave is not required under s 118(1)(c) of the Act to institute an appeal against a decision made pursuant to s 118 subjecting an appellant to an order under s 118(1)(c). In other words, leave is not required pursuant to s 118(1)(c) to make an application pursuant to s 94AA for leave to appeal against an order made pursuant to s 118(1)(c). Again, we adopt the views of Chernov JA in Kay v Attorney-General and Debelle J in Commonwealth Bank v Heinrich (No 2).
We observe that it was not suggested by the father and the mother that because of the order pursuant to s 118(1)(c) of the Act the maternal grandfather could not without leave pursuant to that section make an application pursuant to s 94AA for leave to appeal. The contention of the father and the mother was only in relation to the application for reinstatement.
In this case, in accordance with r 22.02(1) of the Rules, the maternal grandfather included in his notice of appeal an application for leave to appeal against the order made against him pursuant to s 118(1)(c) of the Act. There was no discussion before us drawing any distinction between the application to reinstate the appeal against the parenting orders and an application to reinstate an application pursuant to s 94AA of the Act for leave to appeal against the order pursuant to s 118(1)(c). The matter proceeded on the basis that we were dealing with an application to reinstate an appeal against the parenting orders and the s 118(1)(c) order and the argument for the father and mother was whether or not the maternal grandfather required leave for the reinstatement of his abandoned appeal because of the restraints imposed by the s 118(1)(c) order. In our view, the provisions of Chapter 22 of the Rules and in particular Parts 22.2, 22.3, 22.6 and 22.8 apply in relation to a notice of appeal which includes an application pursuant to s 94AA for leave to appeal
The issue as to whether the maternal grandfather required leave to institute the reinstatement proceedings because of the order pursuant to s 118(1)(c) of the Act was not extensively argued before us. For example, there was no discussion before us as to whether an application for reinstatement may constitute the institution of proceedings under the Act. Again, we would adopt what was said by Chernov JA in Kay v Attorney-General and Debelle J in Commonwealth Bank v Heinrich (No 2).
We therefore propose to proceed on the basis that the order pursuant to s 118(1)(c) does not require the maternal grandfather to seek leave to bring an application for reinstatement of his notice of appeal. In our view, given that the maternal grandfather was entitled to appeal against the dismissal of his application for parenting orders and also seek leave to appeal against the order pursuant to s 118(1)(c) and did not require leave pursuant to s 118(1)(c) to do so, then as part of those appeal proceedings he is entitled to seek without leave a reinstatement of the abandoned appeal which included the application for leave to appeal. If we are in error in this view then we would have granted leave to the maternal grandfather to institute a proceeding for reinstatement of his abandoned appeal.
As to the application to reopen the appeal we propose to grant the application. Although, as we have observed, the material in the affidavit of the maternal grandfather of 30 March 2010 is repetitive of what is contained in the material that was before us at the hearing, it does provide information about some of what has happened since 19 August 2009 and also makes clear that the focus of the application by the maternal grandfather is on issues other than the best interests of the four children.
Notwithstanding the unfortunate period of delay since we reserved our judgement, in our view, in the circumstances of this case, there are a number of clearly identifiable relevant matters.
At the directions hearing on 25 March 2009 orders were made that the maternal grandfather and the maternal great grandparents prepare the appeal books and file and serve same by 6 May 2009. The maternal grandfather and the maternal great grandparents were aware that if the orders were not complied with then the appeals would be deemed abandoned because this was noted by the Regional Appeal Registrar: see paragraph 5 of the orders of 25 March 2009.
The maternal grandfather and the maternal great grandparents sought and obtained on 8 May 2009, over the opposition of the father and the mother, an extension of time to file and serve the appeal books by 5 June 2009. The maternal grandfather and the maternal great grandparents had sought an extension to 31 January 2010. The orders of 8 May 2009 were not complied with and thus the appeals were deemed abandoned as and from 5 June 2009. We observe that in a letter dated 8 May 2009 written by the Regional Appeal Registrar notice was given that if the appeal books were not filed by 5 June 2009 then the appeals would be deemed abandoned.
No application was made between 8 May 2009 and 5 June 2009 by the maternal grandfather and the maternal great grandparents for any further extension of time or any other relief. Then approximately nine weeks after the appeals were deemed abandoned and an application made by the father and the mother for costs of the abandoned appeals the maternal grandfather and the maternal great grandparents made an application for reinstatement of the appeals and gave no evidence as to when the appeal books would be filed if the appeals were reinstated.
It may be that the reinstatement applications were only filed because of the application by the father and the mother for costs of the abandoned appeals. During discussion before us the maternal grandfather said: “Your Honour, the respondents seek costs of the application in an appeal. The whole reason why the appeal wasn’t pursued was because of the overbearing nature of the respondents” (Transcript, 19 August 2009, p 16).
In any event, the maternal grandfather and the maternal great grandparents provided no information as to a date by which appeal books could or would be completed if the appeals were reinstated, giving rise to the prospect of what the father and the mother submitted would be “a matter without finality.” It was submitted by the father and the mother, and we agree, that given the history of the proceedings and other associated litigation, it was entirely undesirable for that situation to arise. During discussion before us the maternal grandfather suggested 1 August 2010 (Transcript, 19 August 2009, p 12).
The only possible explanation that was put by the maternal grandfather and the maternal great grandparents as to why the procedural orders were not complied with, why there was substantial delay in filing the reinstatement applications and why there would be inordinate delay before the appeals books could be filed was that they are financially impecunious. However they were in this situation at the time the proceedings were commenced in February 2008 and when the appeal proceedings were commenced in February 2009. This situation is also likely to persist and we have great difficulty accepting that by August 2010 the financial circumstances of the maternal grandfather will change because of the outcome of the litigation he has commenced in other courts or the funds he may receive from his “[m]edical software/data invention”.
As seen r 22.18(2) of the Rules provides that “If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the” respondent or the Regional Appeal Registrar to prepare the appeal books. It is not suggested, and in our view correctly, that the father and the mother should have responsibility for preparation of the appeals books. In fact, in discussion before us the maternal grandfather said: “An order that the respondents pay for the printing and filing of the appeal books is entirely without merit” (Transcript, 19 August 2009, p 12). So also it was not suggested that the Regional Appeal Registrar prepare the appeal books. Nothing was put that would suggest that this is an appropriate case for public cost to be incurred.
In the result we are of the view that no adequate explanation was given by the maternal grandfather or the maternal great grandparents explaining why there was a significant delay of more than two months before the reinstatement applications were filed.
It was submitted by the father and the mother that the original index to the appeal books ran to some 38 items together with a list of exhibits. The maternal grandfather and the maternal great grandparents provided no rationale whatsoever as to why the Court would now dispense with the filing of appeal books or as to how an appeal could be dealt with in the absence of same.
It was submitted by the father and the mother that significant weight should be given to the history of the litigation and the findings of the trial Judge when having regard to both the merits of the appeals and the motivation and conduct of the maternal grandfather and the maternal great grandparents in prosecuting these proceedings. We have set out above a number of relevant findings of his Honour.
The maternal grandfather and the maternal grandmother were involved in protracted litigation with respect to the parenting of the mother and her sister. The maternal grandfather then ceased to have any relationship with the mother in early 1998. Since early 1998 the maternal grandfather and the maternal great grandparents have spent no time with any of the children. In fact at that time the child L was probably less than six months old and the children E, M and T were not born.
As we have already observed the maternal grandfather has been involved in proceedings before various courts and tribunals over the years, and in recent years, has made complaints to the International Criminal Court with respect to perhaps 20 judges of Australian courts. The maternal grandfather has “lodged a complaint” against Watts J because of his Honour’s alleged “apprehended bias” and “intransigence”. As we have already observed his Honour said at [52]: “It seems beyond doubt that [the maternal grandfather] is significantly obsessional about litigation and his involvement in court cases”.
Then after a delay in excess of ten years the maternal grandfather made an application seeking to spend time with his grandchildren. The maternal grandfather gave no adequate explanation as to why it took so long for him to take steps to see his grandchildren. However, in that ten year period the maternal grandfather complains that the mother would not give evidence in litigation in the Probate Division of the Supreme Court of New South Wales between the maternal grandfather and the estate of the late Ms NH who the maternal grandfather contended he had been in a de facto marriage relationship with. Next, and more significantly, in October 2007 an AVO was made in the Local Court against the maternal grandfather for the protection of the father and the mother and their children. These Local Court proceedings lead to a flurry of activity including applications in the Supreme Court. However, more relevantly in February 2008 when the AVO was in force the maternal grandfather commenced proceedings in the Family Court in relation to his grandchildren.
We have read all of the material including the recent affidavit of the maternal grandfather and we observe that very little was said by the maternal grandfather as to why it would be in the best interests of the four children that they spend time with the maternal grandfather and the maternal great grandparents. It is our observation that the attention of the maternal grandfather is more directed to various other matters identified by the trial Judge and various complaints the maternal grandfather has made about others including the mother. For example, the trial Judge said:
70. [The maternal grandfather] says the nature of [the mother]’s allegations of violence, hurtful comments and incest from when she was between the ages of 3 and 14 years stem from psychiatric illness and this Court has a primary responsibility to investigate such grave allegations and, if proved to be frivolous and vexatious of its own motion, to order medical treatment for the afflicted [Mrs Swallow].
We accept the submission of the father and the mother in relation to what was identified as “the motivation” of the maternal grandfather.
In our view, it is clear that the reinstatement of the appeals would have a financial impact on the father and the mother. The father and the mother have always been legally represented and thus have incurred significant costs and expense. The prospects of successful recovery of any costs order against the maternal grandfather and/or the maternal great grandparents are probably remote given the contentions by them as to their impecunious financial circumstances. This is clearly a case where the notion of any prejudice being overcome by an order for costs is probably academic.
There is a further very important matter in relation to the father and the mother and that is the emotional impact on them and in particular the mother. We refer to the various findings made by the trial Judge. It is relevant to consider the matters raised by the maternal grandfather and what he proposes would be the issues the subject of inquiry at an ultimate hearing. For example, we refer to his contentions about a psychiatric assessment of the mother, the mother’s sister and the maternal grandmother. We have no doubt that this is a case where the current proceedings are having a significant deleterious effect on the mother and her immediate family. We accept the submission on behalf of the father and the mother that the institution of the proceedings “creates an oppressive and cruel impact” on the “family unit” of the father and the mother.
We also take into account what we would refer to as the public interest. The resolution of the dispute between the father and the mother and the maternal grandfather and the maternal great grandparents has already resulted in significant public cost and expense since the proceedings commenced in early 2008. We accept that there has been perhaps an inordinate delay in the pronouncement of our judgment. However, this in part has been due to the nature of the litigation and the issues. Continuation of this litigation would unquestionably involve significant public cost. If the issues the maternal grandfather seeks to agitate were pursued then it could take some very considerable time before there was an ultimate resolution. This is litigation which involves the welfare of four children who maybe much older before the litigation ended. It is not a case which could be dealt with expeditiously if it was allowed to continue within the framework contemplated by the maternal grandfather.
We then turn to the merits of the appeals. We are mindful of what has been said in the various authorities we have cited above in relation to consideration of the merits of an appeal. However, in our view, this is a case which clearly requires scrutiny of the merits of the appeals.
We have not undertaken a hearing of the “whole argument” in relation to the appeals. However, in our view, in the circumstances of this case, “the futility” of the appeal does not require a hearing of “the whole argument”: see Jackamarra v Krakouer & Anor (1998) 195 CLR 516 at 529.
We have considered all of the material including the reasons of the trial Judge and the material filed on behalf of the maternal grandfather and the maternal great grandparents, including the material filed on 30 March 2010. We are of the view that the appeals are entirely without merit and the pursuit of them would be futile.
In the circumstances of this case, even accepting the contentions of the maternal grandfather and the maternal great grandparents, no order could be made allowing the maternal grandfather or the maternal great grandparents to spend time with the children. The maternal grandfather and the maternal great-grandparents have not spent any time with the children for a number of years; the father and the mother strongly oppose the maternal grandfather and the maternal great grandparents spending any time with the children and the maternal grandfather and the maternal great grandparents have not put forward any material as to why it would be in the best interests of the children that they spend time with the maternal grandfather and the maternal great grandparents. In fact, on one view, the material put forward by the maternal grandfather demonstrates why it would not be in the best interests of the children that they spend time with the maternal grandfather and the maternal great grandparents.
We are also of the view that no appealable ground has been adequately identified in the notices of appeal originally filed on behalf of the maternal grandfather and the maternal great grandparents on 10 February 2009 nor in the proposed draft amended notice of appeal filed by the maternal grandfather on 30 March 2010.
This was clearly an appropriate case for summary dismissal of the applications of the maternal grandfather and the maternal great grandparents for parenting orders in their favour. In our view, this litigation has nothing to do with the best interests of the four children. The litigation is but one piece of litigation pursued by the maternal grandfather and he has embroiled the maternal great grandparents in his mission.
In conclusion, we propose to dismiss the applications by the maternal grandfather and the maternal great grandparents for reinstatement of their appeals. In summary, we have taken into account:
· The lack of any adequate explanation for the failure to comply with procedural orders.
· The uncertainty of the relief which is sought if the appeals were reinstated.
· The significant prejudice, both financial and emotional, that would be caused to the father and in particular the mother, if the appeals were reinstated.
· The futility of the appeals.
· The public interest in the conclusion of the proceedings.
We are also mindful of the motivation and conduct of the maternal grandfather and the maternal great grandparents in prosecuting these proceedings.
Application For Costs Of The Abandoned Appeals Filed On 3 July 2009 By The Father And Mother
Relevant Principles
Section 117(1) of the Act provides that subject to sub sec 70NFB(1), sub-sec 117(2) and ss 117AA, 117AB, 117AC and s 118, each party to proceedings under the Act shall bear his or her own costs. Section 117(2) provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to sub secs (2A), (4) and (5) and the applicable rules, make such order as to costs whether by way of interlocutory order or otherwise, as the court considers just. Section 117(2A) provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g).
In Penfold v Penfold (1980) 144 CLR 311 Stephen, Mason, Aickin and Wilson JJ said at 315 - 6:
… As sub-s (1) is expressed to be subject to sub-s (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”.
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised ...
In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ) said at p 130:
The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subsection (2A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection 2(2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
Conclusion – Application For Costs Of The Abandoned Appeals Filed On 3 July 2009 By The Father And Mother
As we have already observed, in his affidavit of 7 August 2009, the maternal grandfather disclosed that his only source of income since 30 October 2001 has been his Centrelink benefit. So also we understand that the maternal great grandparents are in receipt of Centrelink benefits. In written submissions of the father and the mother it was submitted that they have not sought nor intend to place details of their financial circumstances before the Court.
None of the parties are in receipt of a grant of legal aid.
In our view the conduct of the parties to the proceedings in relation to the proceedings is an important matter.
We are satisfied that the non-compliance with the Regional Appeal Registrar’s orders was not by reason of mistake or lack of understanding of the orders. The reasons for non-compliance focus on the assertions of being impecunious and the inability to afford the printing of the appeal books due to their impecuniosity. We agree with the submission of the father and the mother that in the circumstances of this case these matters are not persuasive.
We accept the submission of the father and the mother that the maternal grandfather and the maternal great grandparents knew or ought to have known that they were unable to pay the costs associated with the preparation of the appeal books and that they knowingly and negligently exposed the father and the mother to unnecessary legal costs. We also accept that in their impecunious financial circumstances it was careless of the maternal grandfather and the maternal great grandparents to institute appeal proceedings without informing themselves by suitable enquiry of the cost of prosecuting the appeal and an appropriate time in which to access funds to enable them to print and file the appeal books.
We are satisfied that the proceedings were necessitated by the failure of the maternal grandfather and the maternal great grandparents to comply with previous orders of the court. We are also satisfied that the maternal grandfather and the maternal great grandparents have been wholly unsuccessful in the proceedings.
In conclusion, the father and the mother have established justifying circumstances. We are also satisfied there are circumstances which warrant an order for costs, notwithstanding the financial circumstances of the maternal grandfather and the maternal great grandparents.
As to the quantum of the costs we agree with the submission of the father and the mother that pursuant to r 19.18(1)(a) of the Rules we should order that they are entitled to costs of a specific amount. We are concerned about delay and costs of any assessment proceedings.
No submissions were made in relation to the appropriateness of the amount claimed of $1,500.00. In our view, such an amount is appropriate and accordingly we propose to order that the maternal grandfather pay costs in the sum of $1,500.00 and the maternal great grandparents also pay costs in the same amount.
Application For Costs In Relation To The Application To Reopen Filed 30 March 2010 By The Maternal Grandfather And The Maternal Great Grandparents
In relation to the March 2010 application to reopen the father and mother sought that the maternal grandfather and maternal great grandparents pay the father and mother’s costs of and incidental to the application fixed at $750.00.
Although the application to reopen was successful we are of the view that in the circumstances of this case, for the reasons for which we have explained, the material made clear that the focus of the application by the maternal grandfather and the maternal great grandparents were on issues other than what is in the best interests of the four children. The material did not assist the applications for reinstatement. What the material did do was bolster the case of the father and mother. However the father and the mother had to respond to the application and in so doing they incurred cost and expense.
In these circumstances, we are of the view that it is appropriate that the maternal grandfather and maternal great grandparents pay the costs of the father and mother. We accept the assessment of $750.00.
I certify that the preceding two-hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court Coleman, May and O’Ryan JJ
Associate:
Date:11 June 2010
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