BLIGH & TROTT

[2019] FamCA 414

FAMILY COURT OF AUSTRALIA

BLIGH & TROTT [2019] FamCA 414

FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – Where the father, among other Orders, sought a review of the Orders of a Registrar of this Court – Where the father’s submissions were received after hearing of the matter and were considered in addition to the oral submissions of both parties on the day of the hearing – Where the Registrar gave leave to the parties to inspect documents produced under subpoena – Where the father is currently imprisoned – Where the father made a number of assertions about the mother’s solicitor in support of his objections to the solicitor inspecting the documents but did not provide cogent evidence to corroborate these assertions – Where the application is dismissed and the father is ordered to pay the costs of the mother.

Corrective Services Act 2006 (Qld)

Dietrich v R (1992) 177 CLR 292; [1992] HCA 57
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20
Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337

APPLICANT: Mr Bligh

RESPONDENT: Ms Trott

INDEPENDENT CHILDREN’S LAWYER: John Blayney

FILE NUMBER: BRC 2766 of 2015

DATE DELIVERED: 3 July 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 June 2019

REPRESENTATION

THE APPLICANT: Self-represented
(by telephone)

SOLICITOR FOR THE RESPONDENT:

Mr Evans

Evans Brandon Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Blayney

Legal Aid Queensland

Orders

1. That the Order made by his Honour Justice Forrest on 24 June 2019 staying paragraph 3 of the Orders of Registrar Coutts made 13 June 2019, is discharged.

2. That the applications of the father contained in the Application in a Case filed by him on 19 June 2019, are dismissed.

3. That the father, Mr Bligh, shall pay the mother’s costs of and incidental to the dismissed Application in a Case fixed in the sum of $583.48.

4. That a Gaol Order issue requiring the Keeper of the W Correctional Centre in the State of Queensland, all members of the Police Forces of all the States and Territories of the Commonwealth of Australia and all members of the Australian Federal Police to be authorised to bring MR BLIGH, a person now in custody of the said Gaol, before the Family Court of Australia at Brisbane, Commonwealth Law Courts, Cnr North Quay and Tank Streets at a time and on a date to be fixed by arrangement between the Court, the Keeper of the W Correctional Centre and the said MR BLIGH for the purposes of the said MR BLIGH being able to inspect the Court’s file and documents produced under subpoena in this matter and the said MR BLIGH remain in the custody of the Officers Local Keepers and members of the Police Forces acting under this Order until the said MR BLIGH is in due course returned to the said Gaol.

5. That this order shall be deemed to be “a Notice from a Court” within the meaning of s 69(4)(d) of the Corrective Services Act 2006 (Qld) (“CSA”).

IT IS RESPECTFULLY REQUESTED:

A.That pursuant to s 69 of the CSA, the Chief Executive order the transfer of the said prisoner, MR BLIGH born in 1981, to the Family Court of Australia at the time and on the date arranged between the Court, the Keeper of the W Correctional Centre and the said MR BLIGH for the purposes referred to in Order (4).

IT IS NOTED:

That the said prisoner is currently an inmate of the W Correctional Centre.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2766 of 2015

Mr Bligh

Applicant

And

Ms Trott

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 13 June 2019, a Registrar of this Court made some procedural Orders in this longstanding matter. Those included the following Orders:

   3.That no earlier than 24 June 2019, the legal representative for the Mother and the Father have leave to inspect only:

   i.The documents produced under subpoena directed to Queensland Police Service (Serial #...) and Director of Public Prosecutions (Serial #...) and

   ii.the Federal Circuit Court record, .

   4.The Notices of Objections to Subpoena to produce documents filed by the Father are otherwise dismissed.

2. The documents referred to in paragraph 3(i) of the Registrar’s Orders had been returned in parenting proceedings pursuant to subpoenas caused to be issued by the Independent Children’s Lawyer (“ICL”) in January this year.

3. Relevantly, the documents required to be produced were described as follows:

   Queensland Police Service

   ...all documents, records, reports and writings from your custody or control including but not limited to:

   a.   Any audio tapes and/or video tapes;

   b.   Police referrals to any hospitals (including Suspected Child Abuse and Neglect Teams - SCAN), specialists including but not limited to social workers, psychologists, psychiatrists, therapists, counsellors, educational specialists and the reports, records and assessments obtained and/or provided;

   c.   Criminal histories, CRISP System Crime Reports, QP9-Court briefs;

   d.   Diary notes, police notes and signed copies of official police notebooks;

   e.   All statements and documents including but not limited to signed statements by the accused, the complainant, the informant, professional and other witnesses, police witnesses;

   f.   Drawings;

   g.   Photographs;

   h.   Bench charge sheets, running sheets, activity logs, occurrence sheets;

   i.    Domestic violence applications, protection orders;

   j.    Any Information Management System (IMS) Sheet;

   k.   Any other documents, notes, reports, records, files, memoranda, books and correspondence…

   Office of the Director of Public Prosecutions

   ...all documents, records, reports and writings from your custody or control including but not limited to:

   a.   QP9’s;

   b.   Depositions

   c.   Witness statements

   d.   Exhibits

   e.   Indictments

   f.   Criminal History

   g.   Submissions on Behalf of the Defence or Prosecution

   h.   Expert Reports / Opinions obtained either by the Defence or Prosecution

   i.    Transcripts of proceedings

   j.    Victim Impact Statements

   k.   all prosecution records and files in the possession, custody or control of the Director of Public Prosecutions pertaining to the details of criminal charges…

   (As per the originals)

4. The mother is represented in the proceedings by an experienced, accredited specialist family law solicitor.

5. The Applicant father is an unrepresented litigant who is currently incarcerated in a Queensland reception and remand prison awaiting trial on various charges that include stalking the mother, breach of family violence orders, breach of bail and some others.

6. On 19 June 2019, the father filed an Application in a Case in which he sought a number of Orders. Although he did not express his application in correct terms, what he was asking for, principally, was a review of the Registrar’s Orders. It is reasonably clear that he had told the Registrar that he would seek a review of her decision when he appeared before her (by telephone from prison) on 13 June 2019. I understand that to be the basis for the condition included in Order 3 that inspection take place no earlier than 24 June 2019, so that the father would have time to file his review application and that it might possibly be heard and determined prior to 24 June.

7. When the father’s Application in a Case was brought to my attention in Chambers just after he filed it on 19 June, the matter was listed to be heard urgently on the morning of 24 June because after that date, inspection of the documents could otherwise take place thus rendering his review application nugatory.

8. The only document the father had filed after 13 June 2019 was his Application in a Case. He filed no affidavit in support.

9. When the matter was called on by me on 24 June (after some initial technical problems with the telephone conferencing system), the mother’s solicitor appeared by telephone, the ICL appeared by telephone and the father appeared by telephone. That was by prior arrangement with the Court.

10. The father told the Court on that day that he had lodged a written Outline of Submissions in support of his application with prison authorities on Friday, 21 June for posting to the Court. He told the Court that he had not prepared an affidavit but that all of his “evidence” and submissions were included in the document that he had lodged for posting to the Court. He told the Court that the document would probably be sent by the prison to the Court on Tuesday, 25 June 2019 and that, in the ordinary course of the mail, he expected that it would arrive at the Court on Wednesday, 26 June or soon thereafter.

11. The father told the Court that he had not expected the hearing to be listed as quickly as it was and that as he was not ready to proceed with the hearing. He attributed this to the fact that the Court did not yet have his written “submissions” and that he had not seen the written Outline of Submissions that the mother’s solicitor had provided to the Court.

12. I informed the father that it was his application and that a review was a hearing de novo (a fresh hearing on the merits) of the application that was before the Registrar, namely his objection to the mother’s solicitor having leave to inspect the said documents that had been produced under subpoena. I asked him if he could tell me all of the matters that he had included in his written “submissions” and told him that I would hear the submissions of the mother’s solicitor and the ICL and then reserve my determination until I had received, read and considered his written submissions or until after the expiration of a reasonable period of time within which his written submissions could be expected to arrive at the Court whichever was the sooner. I accept that the father made it clear that he was opposed to this course, but I considered it the most appropriate course, particularly in respect of the efficient management of the judicial resources of the Court.

13. I heard the father’s oral submissions for about an hour in total. The mother’s solicitor and the ICL made their oral submissions in less than half that time. I had asked the mother’s solicitor if he could make all of his submissions that were included in his written outline orally, so that the father was not disadvantaged by not having seen them. The father was the applicant and the matter was a hearing de novo of proceedings that had already once been argued and determined before a Registrar, but I nevertheless considered it important that the father hear all of the submissions being made by the solicitor for the mother so that he would not be disadvantaged by the fact that he had not seen them in writing. I was satisfied that the solicitor for the mother orally made all the submissions that he had made in writing and that any disadvantage was therefore cured.   

14. It is fair to observe, that the father was still not happy with the course I determined to take. He maintained the submission that he was not being provided with a fair hearing in these circumstances. It seemed, though he did not appropriately articulate the fact, that he was expecting the matter to be adjourned to await hearing on a date subsequent to the receipt of his written submissions. It seemed as if he also considered the hearing should not proceed without him being physically present in the Court. That seemed to me to be a major concern for the father.

15. I respectfully do not accept that he has not been given a fair hearing in the circumstances. All the parties made their oral submissions by telephone. The mother’s solicitor submitted orally that which he had submitted in writing in his written outline that the father had not seen. The ICL did not provide any fresh written outline prepared since the hearing on 13 June.  

16. At the end of the hearing I made the following Orders:

    1.That paragraph 3 of the Orders of Registrar Coutts of 13 June 2019 be stayed until further Order of this Court.

    2.That the decision on the disposition of the application being considered today be reserved for further consideration after receipt of the written submissions posted by Mr Bligh to the Court on Friday, 21 June 2019.

    3.That should such written submissions posted by Mr Bligh to the Court on Friday, 21 June 2019 not be received by the Court by close of business on Wednesday, 3 July 2019, the Judge shall proceed to disposition of the application heard today in any event.

17. The father’s written Outline of Submissions was received by the Court on 28 June and brought to my attention by Court staff. It is a comprehensive, well-written, well-presented (typed) 14 page document. Its contents display research initiative, a good degree of expression (despite assertions by the father that he is dyslexic), references to extensive case law and many assertions of fact that can be considered the father’s “evidence” that he might otherwise have included in an affidavit.

18. I have carefully read this 14 page document. It certainly reflects many, if not all, of the matters raised by the father at the hearing before me on 24 June.

19. On Tuesday, 2 July 2019, surprisingly, the Court received a further document sent by the father. He described it as an “Outline of Further Submissions by the Applicant”. It, too, is a well-written, well-presented (typed) 11 page document. Its contents display many of the same themes that his first set of written submissions contained. However, its contents also included submissions in respect of the hearing that I conducted on 24 June 2019 and, in particular, the father’s assertions and submissions of where I fell foul in ensuring he was provided with a fair hearing.

20. I have carefully read all of that document, too. I do not consider it necessary to hear the ICL or the solicitor for the mother any further. I am satisfied, despite the father’s apparent belief, that a fair hearing has been had and that I can go on to determine the application that I heard on 24 June.

The terms of the application

1. The father’s Application in a Case sets out the Orders he was applying for as follows:

   1.The applicant is seeking review of the orders of Registrar Coutts, of the 13^th of June, 2019.

   2.The applicant respectfully requests that the orders of Registrar Coutts be stayed until the matter is re-heard.

   3.The matter be permanently stayed until such time as the applicant is in a position to receive a fair hearing, before the court.

   4.The legal representative of the mother, be prevented from deliberation with the father.

   5.Any other order that the Honourable court sees fit to make.

   6.An order for financial disclosure by the mother, or if she wishes to contest such, an order that she fun an accredited family law specialist to represent the father.

   7.The mother fund the cost of a subtitle person approved by the ICL, to bring Leo, weekly for a personal visit with his Father.

   8.The applicant receives his rights according to the international Convention on Civil and Political Rights (ICCPR), whilst self represented in this matter

   (As per the original)

2. The father confirmed that it was Orders 3 and 4 of the Registrar’s Orders that he was having “reviewed”. They dealt with his objection to the mother’s solicitor having leave to inspect the documents produced by the Queensland Police Service (“QPS”) and the Office of the Director of Public Prosecutions (“DPP”).

3. The father’s Notices of Objection, filed as long ago as 11 February this year, set out his reasons for objecting to the mother’s solicitor inspecting the documents produced by the QPS and the DPP as follows:

   [The mother’s solicitor] has previously released privileged information from the court to the press & others

   and

   [The mother’s solicitor] Has Previously Taken evidence out of Court Jurisdiction & given it to Press & OTHERS

   (As per the originals)

4. In both sets of his written submissions, the father made many scandalous allegations against the mother’s solicitor. Included in those were the bald assertions that previously “privileged court documents were released to the media, to try and have [the father] harmed whilst incarcerated” and “[the mother’s solicitor] then released privileged Family Court documents to a well known drug kingpin… Again he did this to have the applicant harmed”.

5. These appear to be the essential allegations of fact upon which he bases his objection to the mother’s solicitor inspecting the documents produced under subpoena.

6. With all due respect to the father, these are, as the ICL has pointed out, nothing but bald assertions, unsupported by any further factual particulars or detail and unsupported by any corroborative evidence that objectively supports them. The allegations are effectively allegations of serious criminal conduct on the part of the mother’s solicitor. If a legal practitioner made those allegations without cogent evidence being adduced to support them, the practitioner would be engaging in serious unprofessional conduct and would be liable to referral to the Legal Services Commission for it. Professional discipline would likely follow.

7. Of course, the father is not a legal practitioner and can be excused for not understanding what is or is not appropriate conduct in respect of the running of legal proceedings when he is unrepresented. He must now know, though, that he cannot continue to make scurrilous allegations against legal practitioners without adducing cogent evidence that objectively supports his allegations. If he continues simply to act as he has done, he does not assist his own cause.

8. In his second set of written submissions, the father asserts that the mother’s solicitor admitted at the hearing on 24 June that he had acted in contempt of court in some respect with affidavit material previously produced in these proceedings and that I condoned that contemptuous conduct. I reject that assertion categorically. It is nonsense.

9. In all the circumstances, I am not persuaded that the father’s objection in respect of the mother’s solicitor having leave to inspect documents produced under subpoena has any merit and I dismiss his application reviewing the Registrar’s decision about that. I will Order that the mother’s solicitor as well as the father have leave to inspect the documents produced under subpoena by the QPS and the DPP. All of the information contained in them is of some relevance to matters in issue in the parenting proceedings pending in this Court.

10. The second order sought in the Application in a Case is no longer necessary. The review application has now been heard.

11. The third order sought, that the “matter” be permanently stayed “until such time as the applicant is in a position to receive a fair hearing before the court”, is one that I dismiss.

12. I simply do not accept the submissions that the father is not receiving a fair hearing from the Court or that he will not receive a fair hearing when the matter comes on for trial on the substantive parenting applications. That he does not have legal representation does not equate to him not receiving a fair hearing. A very large percentage of litigants in this Court run their cases without legal representation. That does not mean they do not receive a fair hearing.

13. The father raised concerns about not being able to attend at the Court to inspect subpoenaed documents or his Court file. I told him on the day of the hearing that I will ensure that a request is made to the prison authorities for him to be brought to the Court so that he may inspect those documents and the Court file. Copies of documents on the file can also be made available to him when he comes to the Court. He may have to do the inspection in the security section in the basement of the Court but that will still suffice. I will make such a request in my orders.

1. The father sought an order that the mother’s solicitor be “prevented from deliberation” with him. He confirmed to me that he meant that the solicitor should be restrained from “communicating” with him. I am not persuaded by any oral submissions or written submissions or assertions of the father that it is appropriate and in the interests of justice to restrain the mother’s solicitor from communicating with him. Such restraint would simply make it impossible for the mother to properly engage in this litigation. Imposing such a restraint simply because the father does not like the mother’s solicitor would be an affront to the proper administration of justice. I will not order such restraint.

2. The father also sought an order for “financial disclosure by the mother” or an order that she fund an accredited family law specialist to represent the father. No submission made by the father nor evidence adduced by him provided appropriate support for the making of any such order. The matter is a parenting matter not a financial matter.

3. The father also sought an order that the mother “fund the cost of a subtitle [sic] person approved by the ICL” to take their child to visit the father on a weekly visit at the prison.

4. Though the father sent a 14 page written submission to the Court in support of his application followed up by an 11 page further written submission, he said little, if anything at all, that could be considered relevant to the determination of this issue. The application drew no support from the ICL. I do not intend to make the Order on the material that has been filed.

5. The final order the father sought is that he “receives his rights according to the international Convention on Civil and Political Rights (ICCPR), whilst self represented in this matter”.

6. In support of the application for this Order, the father said much in both sets of his written submissions about the International Convention on Civil and Political Rights (“ICCPR”) and he referred to the judgment of Justice Kevin Bell of the Victorian Supreme Court in Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337 (“Tomasevic”). I have read that judgment.

7. As Bell J pointed out in [72], the ICCPR does not “operate as a direct source of individual rights and obligations” because it has not otherwise been incorporated into Australian law (see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287, and Dietrich v R (1992) 177 CLR 292, 305; [1992] HCA 57).

8. Having said that, I am nevertheless mindful of my obligations to self-represented litigants, even those as intelligent and articulate as the father in this case. Reading Bell J’s thoughtful judgment in Tomasevic has again reinforced my prior understanding of those obligations. Save for inadvertently omitting to inform the father of my name at the commencement of the hearing, which I apologise for, I consider that the father was afforded all of the courtesy and assistance that unrepresented parties are entitled to expect.

9. I will discharge the stay of the Registrar’s Orders that I ordered on 24 June and I will dismiss all of the father’s applications for Orders contained in his Application in a Case filed on 19 June 2019.

Costs

1. At the conclusion of the hearing on 24 June, I invited and received oral submissions in respect of costs. The ICL did not ask for his costs whatever the outcome.

2. The solicitor for the mother made an application for costs in the event that the father’s application was ultimately dismissed. In the written outline he had submitted, he set those costs out in a table, by reference to the Scale of Costs, as totalling $836.48. Included in that was $503 for one and a half hours that the solicitor described as “time reasonably spent by a solicitor to prepare this Outline and for attendance at Court event on 24 June 2019”.

3. As the father did not receive the outline prior to the hearing and the solicitor made those submissions orally, I would not allow the whole $503, but rather only $250 for the time spent in the appearance.

4. I accept that the father’s application, unsupported as it was by any cogent evidence, was “destined to fail” as submitted by the solicitor for the mother. The father’s case amounted to a scurrilous, unsubstantiated attack on the mother’s solicitor’s professional and personal integrity. It had a sense of being simply an attempt to intimidate the solicitor into withdrawing from the case, as the Court was told others have done in the past. The mother continues to have the sole responsibility of caring for and supporting the parents’ seven year old child without child support from the father.

5. I am satisfied that the father should pay the mother’s costs and I will order that he do so. I will fix those costs at $583.48. I am satisfied that the circumstances justify a costs Order being made and that a costs Order fixed in that amount is a just order.

6. I make the Orders set out at the commencement of these written reasons.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 3 July 2019.

Associate: 

Date:  3 July 2019