Driscoll and Driscoll - [2008] FamCAFC 185

FAMILY COURT OF AUSTRALIA

DRISCOLL & DRISCOLL

[2008] FamCAFC 185

FAMILY LAW - APPEAL – from decision of a Federal Magistrate – application to reinstate Notice of Appeal – dismissed.

APLICANT:

Mr DRISCOLL

RESPONDENT:

MRS DRISCOLL

FILE NUMBER:

MLC

3792

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

6 August 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Mushin J

HEARING DATE:

6 August 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

29 February 2008

LOWER COURT MNC:

[2008] FMCAfam 336

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms M.L. Mandelert

SOLICITOR FOR THE RESPONDENT:

Prior & Prior

Orders

The husband's application on form 2 filed on 27 May 2008, seeking the reinstatement of his notice of appeal filed on 28 March, his notice of appeal against the orders of Riethmuller FM made on 29 February 2008, filed on 28 March 2008 be dismissed.
The husband pay the wife's costs of this application as follows:
(a) $1000 in respect of the hearing on 30 June 2008;
(b) $1500 in respect of the hearing on 6 August 2008;

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Driscoll & Driscoll is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3792 of 2007
APPEAL NUMBER: SA 18 of 2008

MR DRISCOLL

Applicant

And

MRS DRISCOLL

Respondent

REASONS FOR JUDGMENT

On 29 February 2008, Riethmuller FM made orders between the parties by consent. The proceedings in respect of which those orders were made were in respect of the parties' child who was aged 15 years pursuant to Part VII of the Family Law Act 1975 and also for alteration of property interests pursuant to Part VIII of the act.
On 28 March 2008, the husband filed a notice of appeal against all the orders. That notice of appeal in its first instance asserted that the orders made -
were based on fraudulent claims made by the wife's solicitors and barrister. The children's lawyer and my solicitor saw to it that I would not be able to have an opportunity to give evidence for fear that their corrupt practice would come to light.
Essentially the assertion of the applicant husband was that he had signed those orders under duress and that they should therefore be the subject of appeal.
The matter first came before me on 6 May 2008 at which time the respondent wife was represented by counsel and the husband failed to appear. I dismissed the husband's appeal for want of appearance and ordered that he pay the respondent wife's costs thrown away fixed in the sum of $1000. I reserved him liberty to apply to vary or set aside the orders and provided that any application be filed and served no later than 27 May 2008.
The husband filed an application to reinstate his appeal and that application came before me on 30 June 2008. After a discussion with the husband as to whether the process which he was employing was the correct process to achieve the result which he sought for the reasons that he sought and recommending to him that he obtain legal advice with regard to those and any other relevant matter, I ordered that he file an amended notice of appeal containing any amended grounds on which he sought to rely, reserved questions of costs and also reserved liberty to apply.
The husband filed an amended notice of appeal in accordance with that order on 28 July 2008. He set out amended grounds of appeal in accordance with my order of 30 June 2008 which were as follows:
I wish to appeal against the orders made on the 29^th of February 2008 under Section 79A of the Family Law Act 1975.
1.There was a miscarriage of justice by way of fraudulent evidence provided to the Court.
2.There was a suppression of evidence which would have altered the Courts [sic] findings.
3.I was forced to sign illegible minutes of consent under duress, which were in fact misrepresented to me.
4.There was false evidence provided to the Court by the Independent Childrens [sic] Lawyers [sic].
5.There was vital information which I had made known to the I C L [sic] with regards to the welfare of our children which was suppressed. As a consequence the children have been made to suffer.
6.Rulings were made against me by the Federal Magistrate based on lies with which he was unknowingly furnished with.
7.I had been represented by unscrupulous law practitioners whose sole intent was to drag out the proceedings in order to maximize [sic] their service charge ($35,000.00) Bearing in mind the I [sic] was at all times represented by a 1^st year Law Clerk…[name omitted]
8.My lawyers deliberately kept me out of the witness stand for fear that their corrupt practices would not [sic] come under the scrutiny of the Court.
9.My lawyers provided me with misinformation and withheld information from me in order to keep me away from Court orded [sic] conciliation meetings.
10.My children are suffering as a consequence of my ex wifes [sic] manipulation of them. She has ignored the Orders that she fraudulently obtained, and continues in her quest to alienate my sons from me.
It will be seen from the grounds that the primary challenge to the orders remains similar to that which it was in the original notice of appeal, although they have been significantly expanded. They continue to assert a miscarriage of justice by reason of fraud, suppression of evidence, duress, false evidence, unscrupulous practices by legal practitioners and improper representation of him by his own practitioners.
It will also be seen that paragraph 10 asserts a ground which would apparently go to the best interests of the subject child. My discussion with the applicant husband, both on 30 June and today, has centred on the proposition that the course of appealing against his Honour's orders is not the appropriate course to follow in these circumstances.
With regard to the applications pursuant to Part VIII of the act seeking an alteration of property interests, in the earlier hearing, I referred the applicant to section 79A of the act which I put to him seemed to afford him the appropriate vehicle by which he could agitate the issues which he raised in his grounds of appeal.
In today's hearing, the applicant had with him a copy of that section and there was extensive discussion between he and I on that topic. As a result of that discussion and the submissions on behalf of the respondent wife by her counsel, I am satisfied that the matters raised by the applicant in his proposed notice of appeal are appropriately agitated at first instance pursuant to the provisions of section 79A of the act, rather than by way of appeal to the Full Court.
Accordingly, insofar as the proposed appeal seeks relief under Part VIII of the act, I am of the view that it has no reasonable prospect of success and accordingly it is appropriate to refuse leave to reinstate the appeal.
Turning to the proposed appeal insofar as it seeks relief under Part VII of the act relating to the subject child, while that part does not contain a precisely similar provision to section 79A in Part VIII, the concession made on behalf of the wife by her counsel that the same principles would apply is in my view appropriately made and correct. In my view, the issues raised by the proposed appeal insofar as they deal with matters pursuant to Part VII are similarly inappropriate for appeal to the Full Court and are appropriate to be agitated at first instance.
Accordingly, I find that insofar as that appeal deals with matters under Part VII, it similarly has no reasonable prospect of success and in those circumstances it is also appropriate that leave be refused to reinstate the appeal. I will order accordingly.

This application, having been dismissed as without merit, it is appropriate that the husband pay the costs as sought. The amount of those costs is reasonable.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate:

Date: 28 November 2008