Do v Attorney-General (Cth)
[2021] NTSC 5
•22 January 2021
CITATION:DO v Attorney-General (Cth) & Ors [2021] NTSC 5
PARTIES:DO
v
ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
and
ATTORNEY-GENERAL OF THE STATE OF VICTORIA
and
ATTORNEY-GENERAL OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA
and
TRAPSKI, Alison
and
AT
TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2021 – 00021 - SC
DELIVERED ON: 22 January 2021
HEARING DATE: 13 January 2021
JUDGMENT OF: Brownhill J
CATCHWORDS:
COURTS AND JUDICIAL SYSTEM – abuse of process – matters to be
taken into account when determining occurrence of an abuse of process -
relitigation of issues raised in earlier proceedings or which ought to have
been raised in earlier proceedings – principle of finality of judicial
determination – public confidence in the administration of justice
JUDICIAL REMEDY – writ of habeas corpus – interlocutory writ on
urgency
FAMILY LAW – jurisdiction - Federal Circuit Court jurisdiction to make
parenting orders – order in favour of a person who is not a parent of the
child
Australian Constitution ss 75, 76, 77
Commonwealth Powers (Family Law – Children) Act 1986 (Vic)
Family Law Act 1975 (Cth) ss 31, 61C, 64B, 64C, 65C, 65D, 65M, 65N,
65NA, 65P, 67ZC, 69H, 69ZE, 69ZH, 121, Part VII
Family Violence Protection Act 2008 (Vic)
Judiciary Act 1903 (Cth) 78B
Supreme Court Rules, r 57
Antunovic v Dawson (2010) 30 VR 355; Minister for Immigration and Multicultural and Indigenous Affairs v B(2004) 219 CLR 365; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699, applied.
Dale v Western Australia (2011) 191 FCR 521
Department of Human Services v Tran (2010) 242 FLR 1; Faulkner v Rugendyke (1995) 120 FLR 64; Re Judiciary and Navigation Acts (1921) 29 CLR 257;
Olman & Teitzel [2018] FamCAFC; Olman & Teitzel [2018] FCCA 2006;
Olman v Teitzel [2018] HCASL 156, referred to;
State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust
Torts Reports 81-423; Teitzel & Olman & Anor (No 2) [2019] FCCA 3518; Teitzel & Olman & Anor [2019] FCCA 718; Teitzel v Olman & Anor (No 2) [2019] FCCA 3518, referred to.REPRESENTATION:
Counsel:
Plaintiff:Self-Represented
Judgment category classification: B
Judgment ID Number: Bro2102
Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINDO v Attorney-General (Cth) & Ors [2021] NTSC 5
No. 2021 – 00021 - SC
BETWEEN:
DO
Plaintiff
AND:
ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
First Defendant
ATTORNEY-GENERAL OF THE STATE OF VICTORIA
Second Defendant
ATTORNEY-GENERAL OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
ALISON TRAPSKI
Fourth Defendant
AT
Fifth Defendant
CORAM: BROWNHILL J
REASONS FOR RULING
(Delivered 22 January 2021)
Background
On 6 January 2021, the plaintiff filed a summons seeking the issue of a writ of habeas corpus. In support of the summons, the plaintiff filed an affidavit made by him on 6 January 2021. On 11 January 2021, the plaintiff filed a further affidavit, which contained less information than the first affidavit. He initially sought to rely on the later affidavit rather than the earlier one. His rationale was to “condense” the factual material before the Court. Ultimately, the plaintiff agreed to rely on the earlier affidavit rather than the later one.
Rule 57 of the Supreme Court Rules (‘SCRs’) prescribes the way the Court is to proceed on an application for a writ of habeas corpus. It provides that the application is to be made on notice to the defendant, which shall be by summons and (subject to rule 57.05 of the SCRs) service of the summons is to be personal (subject to rules 57.02(4) and 57.02(5) of the SCRs). Rule 57.02(8) of the SCRs provides that, in an urgent case, the Court may dispense with compliance with a requirement of subrules (4) to (7).
On 12 January 2021, I heard the plaintiff’s argument ex parte for the issue of the writ on urgency, ie seeking to dispense with compliance with the requirement of rule 57 of the SCRs to serve the summons on the defendants. In effect, the plaintiff sought the issue of an interlocutory writ of habeas corpus following which it would be on the defendants to establish the lawfulness of the “detention” of the child.
After lengthy argument about the merits of the claim for the writ, I refused to proceed on urgency and make any interlocutory order for the issue of a writ. I adopted the views expressed in Antunovic v Dawson[1] by Bell J to the effect that justice must be done to all sides and the Court is obliged to give every party, including the party carrying the onus of justifying the legality of the restraint, a fair opportunity to be heard. In that case, his Honour refused to grant an adjournment and dealt with the application for a writ of habeas corpus on the first return date. However, that occurred in circumstances different to the present, namely the summons was served, the respondent appeared, the legal and factual issues were fully canvassed on the first return, and the detention appeared clearly to lack lawful justification.[2] Instead, I made orders removing the first to fourth defendants as parties, requiring the service of the summons on the remaining defendant and requiring the giving of a notice under s 78B of the Judiciary Act 1903 (Cth) to Attorneys-General, noting that the matter was listed for mention on 10 February 2021.
The following background is obtained from the plaintiff’s affidavit dated 6 January 2021.
The plaintiff is the father of a child, XO, who is 11 years old (‘the child’). The child’s natural mother is MS, a citizen and resident of Papua New Guinea. The child was born in, and is a citizen of, Papua New Guinea. The plaintiff is a permanent resident of Australia.
The child is presently in the custody and care of the fifth defendant, who is an Australian citizen. She was initially named as the fifth defendant in the plaintiff’s summons. From this point, I will refer to her simply as “the defendant”. She and the plaintiff met and commenced a relationship in East Timor in 2009. In July 2011, the plaintiff moved to Melbourne to live with the defendant. They were never married, but they were in a de facto relationship. In February 2012, MS gave permission for the plaintiff to have custody of the child so the child could live with the plaintiff in Australia. The defendant agreed to this arrangement and agreed to “sponsor” the child’s visa application. On 22 October 2012, the child was granted a temporary visa permitting the child to stay in Australia indefinitely. On 23 October 2013, the child moved from Papua New Guinea to Australia to live with the plaintiff and the defendant.
On 5 November 2016, the plaintiff and the defendant separated. Thereafter, the child was in the custody and care of both the plaintiff and the defendant. From late December 2016, the child was in the custody and care of the plaintiff, although it appears that was contrary to the wishes of the defendant.
On 17 November 2016, the defendant was granted an interim Intervention Order pursuant to the Family Violence Protection Act 2008 (Vic) (‘FVPA’) by the Magistrates Court of Victoria. It prohibited the plaintiff going within 200 metres of the family home. On 9 January 2017, the plaintiff consented to the making of a final Intervention Order. I am not aware of the terms of that Order.
On 20 January 2017, the defendant made an application to the Federal Circuit Court of Australia pursuant to the Family Law Act 1975 (Cth) (‘FLA’) for various orders, including an urgent order that the child be immediately placed on the airport watch list to prevent the child’s removal from Australia. That order, and an injunction preventing the child being taken or sent from Australia was made ex parte on 20 January 2017. The application also sought the making of a parenting order about the child’s care and with whom the child was to live pursuant to the FLA.
On 14 February 2017, the Federal Circuit Court made a parenting order providing that the child live with the defendant. From that time on, the child has been residing with the defendant, and she has had the child’s care and custody, in accordance with the order. I note that the plaintiff did not provide a copy of the parenting order in either of his affidavits.
The plaintiff has been residing and working in the Northern Territory since October 2018. He has had little to no contact with the child since around that time or shortly after.
On 19 September 2019, the Magistrates Court of Victoria made an Intervention Order against the plaintiff pursuant to the FVPA. The order was made ex parte and was served on the plaintiff on 20 September 2019.
On 6 December 2019, the Federal Circuit Court made a parenting order giving sole parental responsibility of the child to the defendant, providing that his passport and birth certificate be handed to the defendant, and making an airport watch list order and injunction preventing the child being taken from Australia for two years. Again, the plaintiff did not provide a copy of the parenting order in either of his affidavits.
The plaintiff claims that the Federal Circuit Court did not have jurisdiction to make the parenting orders and that they are consequently invalid. The plaintiff also claims that the Magistrates Court of Victoria did not have jurisdiction to make the 2019 Intervention Order and that it is consequently invalid.
The plaintiff argues that the parenting orders were made without jurisdiction and are invalid because, firstly, they were not within s 31 of the FLA and, secondly, the child is not the defendant’s child, nor is the child a child of a marriage between the plaintiff and defendant or the defendant’s de facto child. Amongst other things, the plaintiff raised arguments based on the terms of the FLA, particularly s 67ZC and s 69ZH of the FLA, and the proper construction of those terms in light of the provisions of ss 75, 76 and 77 of the Constitution, particularly the issue of whether there was a “matter” within the meaning of those provisions, and relied heavily upon the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v B.[3]
Without finally determining those arguments, I note that:
(a)The FLA provides that a parenting order in relation to a child may be made in favour of a parent of the child or some other person (s 64C) and that a parenting order may be applied for by: (a) either or both of the child’s parents; (b) the child; (ba) a grandparent of the child; or (c) any other person concerned with the care, welfare or development of the child (s 65C).[4]
(b)Regardless of the effect of s 69ZH,[5] s 69ZE of the FLA provides that Part VII extends to (ie applies in), inter alia, Victoria for so long as there is in force an Act of the Parliament of that State which refers to the Parliament of the Commonwealth, relevantly, parental responsibility for children, and only in so far as Part VII of the FLA makes provision with respect to the matters that are referred by that State or matters incidental thereto. By the Commonwealth Powers (Family Law – Children) Act 1986 (Vic), Victoria referred to the Parliament of the Commonwealth, relevantly, the custody and guardianship of, and access to, children. Consequently, Divs 5 and 6 of Part VII, which deal with parenting orders (defined by s 64B) apply in relation to all children in Victoria, whether they are children of a marriage or not.
(c)The FLA creates obligations on persons, including parents, in relation to the provisions of a parenting order (ss 65M, 65N, 65NA, 65P). A “matter” within the meaning of ss 75-77 of the Constitution can arise in respect of both a right and a duty or liability.[6] A parenting order, as the subject for determination in a legal proceeding, thereby constitutes a “matter” within the meaning of ss 75-77 of the Constitution.[7]
(d)The Federal Circuit Court has jurisdiction to make parenting orders under the FLA pursuant to ss 65D and 69H(4) (as well as s 31(1)(d)) of the FLA. Given the application of Part VII effected by s 69ZE, that jurisdiction extends to ex-nuptial children in Victoria.
Further background
At the hearing on 12 January 2021, the plaintiff informed me that, when I was the Solicitor-General for the Northern Territory, I wrote a letter to him about correspondence he had sent to the Attorney-General of the Northern Territory in relation to the Federal Circuit Court proceedings in June 2019. I had no recollection of that correspondence, but suspected it to be a letter written on behalf of the Attorney-General in response to notice to her under s 78B of the Judiciary Act 1903 (Cth) about constitutional issues arising in the Federal Circuit Court proceeding. Despite raising questions about the potential for an apprehension of bias on my part in proceeding to determine his application, the plaintiff did not ask that I recuse myself from hearing the matter. I indicated that, on the basis that my involvement with the matter was nothing more than advising the Attorney-General not to intervene in a family parenting matter in the Federal Circuit Court, I saw no need to recuse myself and would not have recused myself had he asked.
In order to confirm my suspicion as to the nature of the correspondence, I located in my emails a copy of a s 78B notice circulated by the plaintiff in relation to an appeal by him to the Full Court of the Family Court from the Federal Circuit Court’s parenting orders. Paragraph [50] of that notice provided a citation for the decision made by the Federal Circuit Court on the defendant’s application for parenting orders as [2019] FCCA 3518.
I located that decision via the citation, noting that the decision is reported, pursuant to s 121(9)(g) of the FLA, under the pseudonym title Teitzel v Olman & Anor (No 2).[8] Given the use of pseudonyms in these proceedings and the provisions of s 121 of the FLA, I have anonymised the names of the plaintiff and the fifth defendant in these reasons.
That decision indicates that there is a lengthy history of proceedings as follows:
(a)Olman & Teitzel[9] – an application by the plaintiff for Judge Williams of the Federal Circuit Court to recuse herself from dealing further with the matter. The application was refused.
(b)Olman & Teitzel[10] – an application by the plaintiff for an extension of time to appeal to the Full Court of the Family Court from the interim parenting orders made by the Federal Circuit Court on 20 January 2017, 14 February 2017, 7 April 2017 and 25 October 2017. The application was dismissed for reasons including because none of the proposed appeals had any merit or reasonable chance of success.
(c)Olman v Teitzel[11] – an application for special leave to appeal to the High Court by the plaintiff from the decision of the Full Court of the Family Court. The application was dismissed on the papers.
(d)Teitzel & Olman & Anor[12] – an application by the defendant for orders suspending the plaintiff’s time with the children as allowed to him under the parenting orders made on 7 April 2017. The application was granted.
(e)Teitzel & Olman & Anor(No 2) [2019] FCCA 3518 – the application by the defendant for final parenting orders. That proceeding itself had a lengthy history and included the plaintiff sending a notice of constitutional matter under s 78B of the Judiciary Act to Attorneys-General of the Commonwealth, States and Territories shortly before the trial and seeking an adjournment to enable intervention, in relation to which the Court refused to adjourn the final hearing for a fourth time at the request of the plaintiff.
The latter decision sets out (at [53] and following) the various arguments, including constitutional arguments, which the plaintiff raised in the various proceedings listed above, including that decision. They included issues relating to the “alien” status of the child and the child’s natural mother, that the Federal Circuit Court orders replaced the child’s natural mother with a non-parent which was impermissible under the FLA, that the FLA did not permit the defendant to seek or obtain parenting orders as she was not a parent, and reliance upon the decision of the High Court in Minister of Immigration and Multicultural and Indigenous Affairs v B. It was the view of the Federal Circuit Court in Teitzel & Olman & Anor(No 2) (at [77]) that the issues previously raised by the plaintiff in his s 78B notice were raised before the High Court and the Full Court of the Family Court in proceedings between him and the defendant.
Having become aware of the above, it appeared to me that the proceedings before me may constitute an abuse of process. Consequently, on 13 January 2021, I made an “in chambers” order vacating the orders made on 12 January 2021 and had my associate inform the plaintiff of that vacation, of my concerns that the proceedings may constitute an abuse of process, and of my wish to call the matter back on so that the plaintiff might address those concerns.
The plaintiff responded indicating that he did not agree with my vacating the orders, that my concern that the proceedings may constitute an abuse of process was misconceived, and indicating that, as he intended to seek leave to appeal against the orders made on 12 January 2021, he would not appear to address the abuse of process issue.
Given the plaintiff’s waiver of his right to be heard in relation to this issue, I determined to proceed in his absence. The plaintiff was informed of my intention to do so on 13 January 2021. The plaintiff did not seek to be further heard.
On 14 January 2021, I made an “in chambers” order dismissing the plaintiff’s summons dated 6 January 2021 and the proceedings generally, and vacating the mention listed for 10 February 2021. These are my reasons for doing so.
Abuse of process
In my view, by these proceedings, the plaintiff seeks to re-litigate issues which were ventilated and determined, not only by the Federal Circuit Court, but also by the Full Court of the Family Court, and the High Court of Australia, or alternatively, seeks to litigate issues which he reasonably ought to have raised in those other proceedings.
The Supreme Court has an implied incidental power to prevent abuse of its processes. One form of abuse of process is to invoke the procedures of the Court to attempt to re-litigate controversies which have already been decided by the Court or another court. I adopt the discussion of the matter by French J in Spalla v St George Motor Finance Ltd (No 6),[13] noting that that discussion was adopted and applied by the Full Court of the Federal Court in Dale v Western Australia.[14]
At [68], French J set out a non-exhaustive list of matters to be taken into account in determining whether there was an abuse of process in connection with an issue to be litigated in subsequent proceedings.[15] Taking those matters into account, I consider that the present proceedings do constitute an abuse of process.
First, the essential issue that the plaintiff seeks to agitate is the same, namely the capacity of the defendant (who is not the child’s natural parent) to seek and obtain a parenting order under the FLA, and it is an ultimate issue in the proceedings, not merely an evidentiary issue. The plaintiff also argues that the Intervention Order was made without jurisdiction and is therefore invalid. Only a copy of the first page of the Intervention Order was placed before me, so its precise substantive content is not known. The plaintiff informed me that the Intervention Order prevents him from having any form of contact with the child. The plaintiff submitted that this effectively “made the child the defendant’s child”. I reject that submission because it is the orders of the Federal Circuit Court which have given the care and custody of, and parental responsibility for, the child to the defendant. The Intervention Order does not interfere with the plaintiff’s parental responsibilities under s 61C of the FLA because any rights he has as a parent are subject to any court order (s 61C(3)), including the parenting orders. If the parenting orders stand, there is no foundation to challenge, in this Court, the Intervention Order and its existence has no bearing on the entitlement of the plaintiff to the relief he seeks, namely the issue of a writ of habeas corpus.
Secondly, there was ample opportunity for the plaintiff to run the constitutional arguments he now seeks to run (to the extent they differ from the earlier arguments) on that issue. The plaintiff ran his case that the parenting orders were invalidly made all the way to the High Court.
Thirdly, the parenting orders made by the Federal Circuit Court at the end of the course of the proceedings are final orders that bind the plaintiff.
Fourthly, as I have already said, the essential issue is the same in both proceedings, and there is clear overlap in the kinds of arguments the plaintiff made then and wishes to make now.
Fifthly, there is no plea of fresh evidence. The plaintiff simply wishes to run the same or new legal arguments about the issue.
Sixthly, I consider it would be oppressive and unfair to the defendant if the issue, and the jurisdiction of the Federal Circuit Court to make the parenting orders, were re-litigated. To permit it would also have a negative impact upon the principle of finality of judicial determination and public confidence in the administration of justice.
Seventhly, on balance, I consider that the justice to the plaintiff does not outweigh the matters supporting the conclusion of abuse of process.
Disposal
For these reasons, the summons of the plaintiff filed on 6 January 2021 and the proceedings generally were dismissed.
-------------------------------------
[1] (2010) 30 VR 355 at [82].
[2] At [86].
[3] (2004) 219 CLR 365.
[4]It is well-settled that the Family Court may make orders giving what was termed “custody” but is now referred to as “parental responsibility” to persons other than the parents of a child: see Faulkner v Rugendyke (1995) 120 FLR 64; Department of Human Services v Tran (2010) 242 FLR 1 at [67]-[68].
[5] See Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at [103], [111]-[112] per Gummow, Hayne and Heydon JJ.
[6] Ibid at [7] per Gleeson CJ and McHugh J, citing In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
[7] Ibid at [6]-[13] per Gleeson CJ and McHugh J. See also at [28], [39] and [53] where their Honours observe that Part VII is concerned with the obligations of parents towards their children, and that a parenting order can be made to bind a parent.
[8] [2019] FCCA 3518.
[9] [2018] FCCA 2006.
[10] [2018] FAMCAFC 11.
[11] [2018] HCASL 156.
[12] [2019] FCCA 718.
[13] [2004] FCA 1699 at [59]-[70].
[14] (2011) 191 FCR 521 at [112]-[113].
[15] The list was identified by Giles J in State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81-423 at 64,098.
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