CR v O'CALLAGHAN
[2011] WASCA 205
•29 SEPTEMBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CR -v- O'CALLAGHAN [2011] WASCA 205
CORAM: NEWNES JA
MURPHY JA
HEARD: 22 SEPTEMBER 2011
DELIVERED : 22 SEPTEMBER 2011
PUBLISHED : 29 SEPTEMBER 2011
FILE NO/S: CACV 68 of 2011
BETWEEN: CR
Appellant
AND
KARL JOSEPH O'CALLAGHAN
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram :CRISFORD J
Citation :[2011] FCWA 42
File No :PTW 3417 of 2002
Catchwords:
Jurisdiction - Appeal from Family Court of Western Australia exercising federal jurisdiction - Family Law Act 1975 (Cth), s 112AP - No jurisdiction in Court of Appeal to hear appeal
Legislation:
Family Court Act 1997 (WA), s 210
Family Law Act 1975 (Cth), s 94(1), s 112AP
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 7
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: No appearance
Case(s) referred to in judgment(s):
Rossi & Commissioner of Police [2011] FamCAFC 162
JUDGMENT OF THE COURT: This matter comes before the court on a registrar's notice to attend to determine whether this court has jurisdiction to hear the appeal.
The appeal is against a decision of the Family Court of Western Australia which sentenced the appellant to a total effective term of 6 months' imprisonment on three counts of contempt of court.
On 22 September 2011, we ordered that the appeal be dismissed. These are our reasons for doing so.
Relevant facts
The appellant married in 1997 and a child of the marriage was born in 2000. The appellant and the father of the child divorced in 2003. There is a long history of litigation between them in the Family Court of Western Australia in relation to the child.
Relevantly, on 15 September 2008 the court ordered that the child live with the father. On 9 February 2009, orders were made to the effect that only the father was permitted to remove the child from school. On 9 April 2009, orders were made that appellant was not permitted to approach the child, his school or any place she knew the child would be without the consent of the child's father or a court order.
On 9 November 2009, the appellant, in contravention of those orders, approached her son at his school, removed him from the school and took him to South Australia. The appellant and the child were located in Adelaide on 23 November 2009.
The appellant was found guilty by Crisford J in the Family Court of Western Australia of three counts of contempt of court, brought pursuant to s 112AP of the Family Law Act 1975 (Cth), and sentenced to a total effective term of 6 months' imprisonment.
The appellant's appeal to the Full Court of the Family Court against the sentences imposed by Crisford J was dismissed: Rossi & Commissioner of Police [2011] FamCAFC 162. The appellant was represented by counsel on the appeal.
In the meantime, the appellant, who did not then have legal representation, filed an appeal notice in this court. The appeal notice was filed on 5 July 2011, five days outside the 21‑day period required for an appeal to this court: Supreme Court (Court of Appeal) Rules 2005 (WA), r 26. Moreover, the appeal notice has not been served on the respondent.
On 8 July 2011, a letter was sent to the appellant informing her that the appeal notice had been accepted for filing, notwithstanding that it was, in one respect, incomplete. The letter also stated that the appeal was filed out of time and therefore the appellant was required to file and serve an amended appeal notice together with an affidavit explaining why the appeal was not commenced within time. There was no response from the appellant.
On 1 August 2011, a letter was sent to the appellant from the Court of Appeal Registrar stating that it appeared the Court of Appeal did not have jurisdiction to hear the appeal, and referring to the appellant's appeal to the Full Court of the Family Court. The letter enclosed a notice of discontinuance in case the appellant did not wish to continue the appeal. If the appellant did wish to continue the appeal, she was asked to write to the court explaining why the court had jurisdiction, as well as providing an appellant's case. Again, there was no response from the appellant.
On 12 August 2011, another letter was sent to the appellant reminding her to file a notice of discontinuance if she did not wish to continue with the appeal, or to respond to the court if she did wish to continue the appeal. Again, that evoked no response.
On 1 September 2011, a registrar's notice to attend was issued in order to consider whether the Court of Appeal has jurisdiction to hear the appeal.
Disposition of the appeal
On the hearing of the notice to attend, the appellant confirmed that the appeal was intended to cover the same ground as the appeal to the Full Court of the Family Court. It was apparent that the appellant had filed appeals in both courts out of an excess of caution. The appellant did not dissent from the proposition that, in light of the decision of the Full Court of the Family Court, this appeal no longer served any purpose. In any event, in our view this court has no power to hear the appeal and it must be dismissed.
In dealing with the appellant's contempt under s 112AP of the Family Law Act, the Family Court of Western Australia was exercising federal jurisdiction vested in it under the Family Law Act. Section 210 of the Family Court Act 1997 (WA) provides:
In respect of the federal jurisdiction of the Family Court of Western Australia … the appeal provisions of the Family Law Act apply.
Section 94(1) of the Family Law Act provides, relevantly:
[A]n appeal lies to a Full Court of the Family Court from -
(a) …
(b)a decree of -
(i)a Family Court of a State …
(ii) …
exercising original or appellate jurisdiction under this Act.
(A 'decree' includes a judgment or order: Family Law Act, s 4.)
See also s 93A(1)(a) of the Family Law Act.
It is also necessary to mention the Jurisdiction of Courts (Cross‑vesting) Act 1987 (Cth). Section 7 of that Act (relevantly) provides:
(5)Subject to subsection (7) …, where it appears that a matter for determination in a proceeding by way of an appeal from a decision of a single judge of [the Family Court of Western Australia] (not being a proceeding to which subsection (6) applies) is a matter arising under an Act specified in the Schedule, that proceeding shall be instituted only in, and shall be determined only by:
(a)the Full Court of the Federal Court or of the Family Court, as the case requires; or
(b)with special leave of the High Court, the High Court.
(6)A proceeding by way of an appeal from a decision of a judge of a State Family Court, being a proceeding involving the determination of:
(a)a matter arising under an Act specified in the Schedule; and
(b)another matter;
may be dealt with as if no matter for determination in the proceeding were a matter arising under an Act specified in the Schedule.
(7)Where:
(a)the Full Court of the Supreme Court of a State or Territory commences to hear a proceeding by way of an appeal; and
(b)before the Court determines the proceeding, it appears to the Court that the proceeding is a proceeding to which subsection (5) applies;
the Court shall, unless the interests of justice require that the Court proceed to determine the proceeding, transfer the proceeding to the Full Court of the Federal Court or of the Family Court, as the case requires.
The Family Law Act is an Act specified in the Schedule.
Provisions identical in substance to those provisions are contained in s 7(5), s 7(6) and s 7(7) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA).
It follows that this court has no jurisdiction to hear an appeal from the decision of Crisford J. Her Honour was exercising original jurisdiction under the Family Law Act and any appeal lay only to the Full Court of the Family Court. The fact that an appeal notice was filed by the appellant cannot confer on this court a jurisdiction it does not have.
We should add that no question arises of a transfer of the appeal to the Full Court of the Federal Court under s 7(7) of the Cross‑vesting Acts. This court has not 'commenced to hear' the appeal under s 7(7) of that Act. Pursuant to r 27 of the Court of Appeal Rules, an appeal itself is not commenced until the appeal notice has been both filed and served. The appeal notice has not yet been served, so the appellant would require an extension of time to commence the appeal to the date upon which the appeal notice is served.
Clearly, such an extension of time should not be granted in circumstances where it is clear that the appeal is a proceeding which falls within the exclusive jurisdiction of the Full Court of the Family Court. Indeed, no purpose would be served by granting such an extension of time. If the appeal were to proceed it would simply mean that, pursuant to s 7(5) of the Cross‑vesting Acts, the court would be required to transfer it to the Full Court of the Family Court, where it ought to have been commenced in the first place - and, indeed, where an appeal against the decision was in fact commenced and determined.
Conclusion
The appeal is dismissed.
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