Do v Attorney-General (Cth)

Case [2021] NTSC 5

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 DARWIN

DO 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

  1. 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…

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AGLC
Do v Attorney-General (Cth) [2021] NTSC 5
Case
[2021] NTSC 5
Decision Date

CaseChat Overview and Summary

The plaintiff, Do, brought an application against the Attorney-General of the Commonwealth of Australia, seeking relief in relation to proceedings before the Federal Circuit Court. The primary legal issues before the court were the jurisdiction of the Federal Circuit Court to make parenting orders in relation to ex-nuptial children in Victoria, and whether the judge's prior involvement in the matter amounted to a bias. The court examined the relevant sections of the Family Law Act 1975 and the Commonwealth Powers (Family Law – Children) Act 1986 to determine the applicability of the Federal Circuit Court's jurisdiction. The court also assessed the judge's impartiality based on the plaintiff's concerns about the judge's prior involvement in the matter.

The court found that the Federal Circuit Court had jurisdiction to make parenting orders in relation to ex-nuptial children in Victoria under the Family Law Act. The court considered the provisions of the Family Law Act and the Commonwealth Powers (Family Law – Children) Act, which provide for the application of the Family Law Act to children in Victoria. The court also determined that the judge's prior involvement in the matter did not amount to a bias, as the judge's involvement was limited to advising the Attorney-General not to intervene in the family parenting matter. The court held that the judge's prior involvement did not give rise to an apprehension of bias, and therefore the application was not dismissed on those grounds.

The court dismissed the plaintiff's application for relief in relation to the Federal Circuit Court proceedings, finding that the court had jurisdiction to make parenting orders in relation to ex-nuptial children in Victoria and that there was no bias on the part of the judge. The court also noted that the plaintiff had not provided any evidence to support his claims of bias or lack of jurisdiction, and that the judge's prior involvement in the matter was not sufficient to give rise to an apprehension of bias. The court found that the plaintiff's application was an abuse of process and made orders for the plaintiff to pay the costs of the application.

The court ordered the plaintiff to pay the costs of the application, finding that the application was an abuse of process. The court held that the plaintiff had not provided any evidence to support his claims of bias or lack of jurisdiction, and that the judge's prior involvement in the matter was not sufficient to give rise to an apprehension of bias. The court found that the application was an abuse of process and made orders for the plaintiff to pay the costs of the application.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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