Elmer and Elmer

[2018] FCCA 2107

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELMER & ELMER [2018] FCCA 2107

Catchwords:
FAMILY LAW – Interim ruling on father’s submission that the Court is not validly constituted because of the removal of the Queen from the Constitution – father’s submission that the judge commits an act of treason by hearing the case rejected.

Applicant: MS ELMER

Respondent: MR ELMER

File Number: DGC 1787 of 2017

Judgment of: Judge Burchardt

Hearing date: 9 July 2018

Date of Last Submission: 9 July 2018

Delivered at: Dandenong

Delivered on: 9 July 2018

REPRESENTATION

Counsel for the Applicant: Mr Schneider

Solicitors for the Applicant: Tyler Tipping & Woods

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Ms Elleray

Solicitors for the Independent Children’s Lawyer: Julie Taylor

THE COURT ORDERS THAT:

1. The matter be transferred to the Melbourne Registry of the federal Circuit Court.

2. The matter be adjourned to this Court for final hearing before Judge Burchardt on 1 April 2019 at 10.00 am in Melbourne, with an estimated hearing time of two days.

3. The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal and Federal Circuit Court Regulations 2012.

4. Pursuant to s.62G(2) of the Family Law Act 1975, the parties and children [X] born 2001, [Y] born 2006 and [Z] born 2008 (“the children”) attend upon a Family Consultant nominated by the Manager of Child Dispute Services in the Melbourne Registry of the Family Court of Australia for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties shall comply with all reasonable directions for attendance on the Family Consultant.  The report shall be released 21 days prior to the final hearing date.

5. The Family Report to deal with the following matters:

   (a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

6. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

7. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

8. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

9. Interim parenting orders are made by in accordance with the attached Minutes of proposed orders signed by the parties and placed on the Court file.

THE COURT DIRECTS THAT:

1. The solicitors for the Independent C file a clean, certified, electronic copy of the Minute in Word Format to the chambers of Judge Burchardt by way of email to within seven (7) days. 

2. There be liberty to apply.

AND THE COURT NOTES THAT:

A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 7 herein, they shall write to the Chambers of Judge Burchardt seeking that the matter be listed on short notice for their objection to be heard.

D.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

ENGROSSED MINUTE

1. That paragraphs 2, 4A and 4B of the Orders dated 14th February 2018 be discharged.

2. That the children [Y] born 2006 and [Z] born 2008 live with the mother.

3. That pending the father obtaining independent accommodation, the children spend time and communicate with the father as follows:-

   (a)Each alternate Saturday and Sunday from 10.00am until 5.00pm and for the avoidance of doubt in one weekend from 10.00am until 5.00pm Saturday and in the other weekend from 10.00am until 5.00pm Sunday;

   (b)At such other times and on such terms as agreed between the parents in writing.

4. That for the purposes of paragraph three (3) above all contact between the children (or either of them) shall be in the absence of MR D:-

5. That each of the parents, their servants and/or agents be and are hereby restrained by injunction from:-

   (a)Insulting, intimidating and/or denigrating the parent or parent’s family and/or friends in the presence and/or hearing of the children;

   (b)Discussing any Court event;

   (c)Ingesting any illicit substance or non-prescribed medication;

   (d)Administering any non-prescribed medication or medication not recognised by the Australian Medical Board.

6. That each parent forthwith enrol in and complete a Post-Separation Parenting Course and provide proof.

7. That the matter be listed for trial on the 1st day of April 2019 as a two (2) day fixture at the Melbourne Federal Circuit Court.

8. That there be the usual Orders pursuant to S.62G (Report) of the Family Law Act with reports interview to take place in Melbourne.

9. That the matter be transferred to the Melbourne Registry.

10. Liberty to apply at short notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1787 of 2017

MS ELMER

Applicant

And

MR ELMER

Respondent

REASONS FOR JUDGMENT

1. This matter is or at least ought to be a parenting dispute about three children.  [X] was born on 2001.  [Y] was born on 2006, and [Z] was born on 2008.  Orders for a live with arrangement were made following a section 11F conference earlier in the year, but the mother filed an application in a case on 13 June 2018.  She filed an affidavit in support.  On her material, all the children are now living with her and have been since April, and their arrangements for their living and schooling are entirely satisfactory.  It should be noted that in part this has been facilitated by the father.

2. The father was served the application in a case and affidavit on 28 June 2018 but has not filed any answering material. The reason for that is readily discernible. This morning, Mr Elmer has made a number of submissions, not all of which, I have to say, were entirely easy to construe. His first point was that the Queen has been removed from the Constitution. In summary – and there was reference to an application to the High Court posited – it was put therefore that it is treason for this Court to sit.

3. In his submissions, Mr Elmer said that all parties were guilty of treason, and when I asked him to tell me who he meant by all parties, he did, at the very least, expressly make it plain that that included the presiding judge myself.  He further referred to this as a vexatious Court.  In later submissions, he made reference to a section 78B notice and contended that the Court simply has no jurisdiction to entertain the matter and is acting unlawfully as a result.  It should be noted that Mr Elmer has a relatively large group of supporters with him today.  At one point – and it seemed to me obviously by prearrangement – they stood up as a group.  This was clearly an intent to either support the father and/or to intimidate the Court.

4. Neither of those are permissible.  This is not a sporting arena in which support of that order is permitted, and to the extent that it might be thought to seek to influence the Court, it is obviously totally inappropriate.  This, of course, is an open Court in the sense that justice is administered in open Court, but the Court retains a clear discretion to close the Court to either individuals or to everybody except the parties should it be necessary.  And I will do so if there are any further such demonstrations either today or in any future hearing.

5. I should deal with the father’s submissions briefly.  It is sufficient to say, I regret to say, that they are utterly misconceived.  The notion that this Court is not validly constituted and appointed is one so bereft of legal understanding as to require really no elucidation.  A number of cases have been taken over time in a number of state Supreme Courts along analogous lines, and they have invariably been summarily rejected.  There is no section 78B point in this case.  Indeed, no 78B notice has apparently yet been filed in any event.  The Court’s constitution, the fact of its existence derives from an act of Parliament establishing it.  It is plainly lawful and plainly has jurisdiction to entertain the matter.  That brings us therefore to what we really out to be about which is the parenting issues.

6. Counsel for the Independent Children’s Lawyer took the Court through what, in essence, is the matters in the mother’s affidavit.  The children have been living with the mother since April and are happy with her.  She has now obtained permanent residence near the school they attend and, I note, is now in possession of a vehicle which will assist her to take them to and from school.  The Independent Children’s Lawyer met the children last Friday.  They indicated to him their happiness with the current set of arrangements and the fact that it is now understood they are going well at school.  The parents sometimes get on but otherwise are at war.

7. It was submitted that the children were very concerned about going to see their father if it was at the paternal grandmother’s home, and counsel for the Independent Children’s Lawyer, drawing upon the mother’s affidavit materials, submitted that orders should be made to exclude Mr D from any contact with the children and that no time should be spent at the paternal grandmother’s home.  In circumstances where the father’s basis position – basal position is that the Court simply has no part to entertain the matter at all and no meaningful submissions are made as to what ought to occur with the children, it is plain that orders should be made as sought by the Independent Children’s Lawyer.  I will request the independent children’s lawyer to draw up a minute to reflect these conclusions.  It seems to me the matter, if it hasn’t been allotted a trial date, ought to be as soon as possible with a listing time of two days.  We will give you that date in due course.  That disposes of the application in the case for present purposes. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 9 July 2018