Graft & McCormick
[2018] FamCAFC 49
•14 March 2018
FAMILY COURT OF AUSTRALIA
| GRAFT & MCCORMICK | [2018] FamCAFC 49 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the mother filed three Applications in an Appeal – where the mother sought the children be brought before the appeal judge – where the mother sought for a contravention application to be heard by the appeal court – where the mother sought a review of an Appeals Registrar’s procedural order listing the appeals together – where the mother effectively sought to reopen the parenting proceedings – where each application was dismissed. FAMILY LAW – APPEAL – LEAVE TO APPEAL – where the mother required leave to appeal a procedural order setting a matter down for hearing – where the mother did not object at the time to the matter being set down – where there is not merit in any of the asserted grounds seeking leave to appeal – where there is no substantial injustice – where no error of principle is involved – where leave to appeal is refused. FAMILY LAW – APPEAL – PARENTING – where the mother appeals the summary dismissal of four contravention applications – where the mother appeals the summary dismissal of an Application in a Case – where there was no substantive case before the Court – where the mother appeals a costs order in relation to the summary dismissal of her contravention applications – where the mother seeks orders that the substantive final parenting orders be rescinded – where the appeals lack each or both particularity and foundation – where each appeal is dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Bondelmonte v Bondelmonte (2016) 259 CLR 662 |
| APPELLANT: | Ms Graft |
| RESPONDENT: | Mr McCormick |
| FILE NUMBER: | CSC | 301 | of | 2009 |
| APPEAL NUMBERS: | NOA | 32 | of | 2017 |
| NOA | 59 | of | 2017 | |
| NOA | 9 | of | 2018 | |
| NOA | 17 | of | 2018 |
| DATE DELIVERED: | 14 March 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 14 March 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 July 2017; 18 October 2017; |
| LOWER COURT MNC: | [2017] FCCA 2828; [2017] FCCA 3281; [2018] FCCA 321 |
REPRESENTATION
| FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Pack |
| SOLICITOR FOR THE RESPONDENT: | Collier Lawyers Pty Ltd |
Orders
Review
The Review of the Appeals Registrar’s orders of 27 February 2018 is dismissed.
Applications in an Appeal
The Application in an Appeal filed 6 November 2017 is dismissed.
The Application in an Appeal filed 30 January 2018 is dismissed.
The Application in an Appeal filed 22 February 2018 is dismissed.
The Application in an Appeal filed 5 March 2018 is dismissed.
Appeals
Leave to appeal the orders of Judge Coker made 10 July 2017 is refused.
The appeal, number NOA59 of 2017, is dismissed.
The appeal, number NOA9 of 2018, is dismissed.
The appeal, number NOA17 of 2018, is dismissed.
Costs Submissions
Within seven (7) days of the date of these orders, the father file and serve any submissions in relation to costs of the appeals.
Within twenty-one (21) days of the date of these orders, the mother file and serve any submissions in reply to the submissions of the father.
The father file and serve any reply to the mother’s submissions in reply within seven (7) days of receipt of the mother’s submissions.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Graft & McCormick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: CSC 301 of 2009
APPEAL NUMBER: NOA 32 of 2017
NOA 59 of 2017
NOA 9 of 2018
NOA 17 of 2018
| Ms Graft |
Appellant
And
| Mr McCormick |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT[1]
[1]On 31 January 2018, 20 February 2018 and 2 March 2018 the Chief Justice made orders pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) that it was appropriate for the jurisdiction of the Family Court in relation to each of the appeals to be exercised by a single judge and they were heard by me today on that basis.
The fact that I have before me one review; four appeals from a decision of Judge Coker; and three applications in an appeal (in addition to the father’s application for summary dismissal of NOA32 of 2017) is testament to the relentless litigation to which the parties’ two children, now aged 12 and 11, have been exposed, directly or indirectly, since final parenting orders were made by Tree J on 26 November 2015, after a four-day trial.
His Honour ordered that the children live with their father and that the mother should spend time with them on school holidays and communicate with them by telephone.
His Honour said, relevant to issues sought to be agitated by the mother since and the subject of today’s proceedings:[2]
105.The mother contends that the father was violent towards her during the course of the relationship. Whilst it is perhaps unnecessary to determine by way of a finding of fact whether or not that is so, the psychiatric admission notes from 5 March 2007 plainly detail the father telling the psychiatrist that two days earlier he had attempted to harm the mother by putting his hands around her throat following an argument. I wholly reject the father’s suggestion that those notes were compiled by the psychiatrist in a conversation with the mother or maternal grandmother. I say so because the psychiatrist commences some of the relevant history with the pronoun “I” and under the heading “history of illness” relates “very reluctant to give .. information. He is not keen for me to ring his wife for further information”.
PARENTAL RESPONSIBILITY
106.There are reasonable grounds to believe that there has been family violence, comprising the father placing his hands around the mother’s throat during the course of an argument. The presumption of equal shared parental responsibility therefore does not apply. In any event, not only does neither party seek equal shared parental responsibility, but both concede it would be wholly unworkable given their appalling communication. Parental responsibility must go to whoever is the primary residence parent. The circumstances of this case necessitate that there be a primary residence parent, because of the distance between the respective households.
[2]As indicated orally during the delivery of the reasons, the settled reasons will contain the quotations mentioned orally and citations for any cases, legislation or rules will be included. Headings were also added for ease of reference.
…
TIME AND COMMUNICATION WITH MOTHER
110.Notwithstanding Ms D’s concerns, I do not assess that the mother presently is an unacceptable risk of harm to the children if they were to spend unsupervised time in her care. The suspicion that the mother may not be travelling well psychologically is nothing more than a suspicion. Any risk of harm she thereby poses to the children is not such that supervision of her time is required.
…
112.On the other hand, there is substance to the concerns that the mother’s most recent communication with the children was not particularly child focussed or appropriate, and there is every reason to think that the mother would benefit from a condition being imposed upon her commencing to spend time with the children again, namely that she undertake a course of the kind such as Focus on Kids, to improve her capacity to think and behave in a child focussed manner. I am satisfied therefore that there should be an order to that effect. [3]
[3] Reasons for Judgment, Tree J, 26 November 2015, [2015] FamCA 1043.
Each of the applications in an appeal will be dismissed. So too will each of the appeals and the review of the Appeals Registrar’s order. My reasons for those conclusions follow. By way of broad summary:
a)Each is, with respect, misconceived in one form or another;
b)No ground of appeal in any of the appeals illuminates any recognisable appellable error;
c)Conversely, many so-called grounds of appeal are bald assertions of criminality, illegality, bias, or asserted misapplications of the law lacking in either or both foundation and particularity;
d)The applications and appeals taken together seek not to establish error in respect of the orders to which they relate, but to re-agitate, by reference to broad assertions, the issues determined by Tree J after a four-day trial; and
e)All lack discernible merit.
How Do The Current Proceedings Arise?
It is unfortunately necessary to outline the procedural history leading to the orders the subject of appeal and underpinning the applications brought before me by the mother.
The mother filed four contravention applications (on 3 May 2017, 15 June 2017, 4 July 2017, and 3 October 2017) alleging numerous instances of the husband contravening those orders.
On 10 July 2017 Judge Coker made an order adjourning the contravention applications for a half-day hearing on 18 October 2017. On 3 August 2017 the mother filed a Notice of Appeal, number NOA32 of 2017, to appeal that order. The husband seeks summary dismissal of this appeal pursuant to s 96AA of the Family Law Act 1975 (Cth) (“the Act”).
The contravention hearing went ahead on 18 October 2017, and his Honour made orders dismissing each of the four contravention applications. The 18 October 2017 orders also provided an opportunity for the father and mother to file written submissions in relation to costs regarding the contravention applications.
His Honour’s Reasons of 18 October 2017 record:
12.I make reference to those various matters because of a concern that I have with regard to these proceedings. I say that in the sense that the applicant mother has filed material which indicates that she is seeking special leave of the High Court to proceed with regard to a challenge in relation to all orders that have previously been made by this Court and by the Family Court of Australia. And there are various comments contained within the affidavit material with regard to the complicit nature of actions on the part of Tree J of the Family Court of Australia and Judge Willis of this Court.
In the same reasons his Honour went on to say:
16. I have given significant thought to the applications that are before the Court. There are considerable difficulties, in relation to all such applications before the Court. I say that in the sense that they lack precision and they lack any real explanation of what the breaches might be. More particularly, they appear, with respect, to all be based on a misapprehension on the part of the mother as to what is required in relation to the actions on the part of the father.
17.I say that in the sense that the recurring and repeated theme in the contravention applications before the Court is that in breach of order 3 of the orders of 26 November 2015, the father has failed to advise the mother and to consult with her. There is no obligation pursuant to the orders that were made by Tree J on 26 November 2015 for any form of consultation or discussions with the mother, prior to any action being taken.
Later his Honour found specifically in respect of the asserted contraventions:
23.I have read the contravention applications filed on 3 May 2017, 15 June 2017, 4 July 2017, and 3 October 2017 very closely. I have also read the accompanying affidavits though, with respect, they are almost incomprehensible and certainly there is a distinct effort required to even try and connect what is said to be relied upon by the mother as supportive of the suggested contraventions on the part of the father.
24.I am absolutely satisfied that there is no prospect whatsoever of the mother successfully prosecuting the proceedings, in relation to the four contraventions that are presently before the Court. They fail to provide particularity or precision, in relation to the terms of any alleged breach and as I have hoped to emphasise already, more particularly refer directly to an entirely misunderstood application of what is required pursuant to the provisions of order 3 of the orders of the Family Court of 26 May 2017.
25.The applications, in their entirety, are in my assessment, based on a premise that is false and accordingly, there is no prospect of successfully prosecuting or proceeding with the contravention actions before the Court.
I will say immediately that each and all of those findings are, in my respectful view, well open to his Honour.
On 26 October 2017 the mother filed a Notice of Appeal, number NOA59 of 2017, appealing his Honour’s orders made on 18 October 2017.
On 21 December 2017 the mother filed in the Federal Circuit Court an application in a case seeking the following orders:
(1)The two children of matter CSC301 of 2009, [named], be placed in front of a judge in a closed court to provide which parent they wish to live with and report any abuse and order violations.
(2)The current family law orders be vacated due to aiding and abetting long term child abuse and the non-compliance by the father.
(3)The children’s time with the judge be recorded due to misconduct claims by both sides of this matter and the long term Family Law Act violations and perjury.[4]
[4] As quoted in the Reasons for Judgment of Judge Coker, 21 December 2017 at [1].
No application for final orders was on foot at the time. No proposed basis was given by the mother for reopening or re-agitating the final parenting orders made two years previously. Probably as a consequence of that, the application in a case was referred to the primary judge for consideration in chambers. That occurred, I assume, because in light of the matters to which I have just referred the Appeals Registrar considered that the application should not be accepted for filing.
On 21 December 2017 the primary judge made orders summarily dismissing that application by the mother.
Reasons for Judgment were delivered by his Honour on 21 December 2017. What his Honour there said permeates other applications and orders made in respect of them:
2.Accompanying that application in a case is an affidavit under the hand of [the mother]. The affidavit retraces matters that have been the source of litigation in this Court and in the Family Court of Australia, for some eight years or more. There have been trials and a number of appeals that have flowed in relation to the litigation and it should specifically be noted that following a four day trial in the Family Court, his Honour Justice Tree made orders with regard to the parenting of the children, placing them in the care of the father, providing the father with sole parental responsibility and limiting the opportunities for the mother’s interaction and influences upon the children.
3.Since that time there have been a number of appeals and as best I understand it the ultimate determination with regard to the appeal by the mother remains outstanding. But what is clear is that the mother through some suggestion of the filing of an application in a case when there is no case before this Court, seeks to reopen all of those issues that have been the subject of both determination and appeal over a considerable number of years. The respondent is [the father] … He has been put to enormous cost and expense over the years as a result of the applications that have been brought by the mother, and to the best of my understanding there has been little, if any, success in any application that has been made by the mother.
Later in the Reasons at [8] his Honour says this:
Incredibly and rather fancifully there is a PS attached to the correspondence [that had been forwarded to the Court by the mother] that has been provided to the registrar of the Court. It is in these terms:
The blocking at the High Court backfired. The Family Law Courts are now under review, I believe as a result of my complaints and the High Court application to support.
…
On 18 January 2018, the mother filed a Notice of Appeal, number NOA9 of 2018, seeking to set aside the orders of 21 December 2017.
On 30 January 2018 the mother filed an Application in an Appeal (NOA9 of 2018) seeking essentially that the appeal be expedited and that the parties’ children: “be heard by Justice Murphy on the 13\2\18 at the Brisbane Registry” (as per original).
The first two appeals – numbers NOA32 and NOA59 of 2017 – were listed to 13 February 2018. That listing was vacated by the Appeals Registrar, and all appeals were then listed to 14 March 2018.
Following the written submissions as to costs in relation to the contravention applications which were dismissed by Judge Coker on 18 October 2017, his Honour made an order on 13 February 2018 that the mother pay the father’s “costs of an incidental to the contravention applications of 3 May, 15 June, 4 July, and 3 October 2017 in the sum of $3,480.50”.
In the primary judge’s reasons for judgment of 13 February 2018, his Honour records:
10.It is also necessary, however, to note that correspondence was forwarded to the applicant [mother] on 5 June 2017 addressing specifically the first of the contravention applications filed on 3 May 2017. In that correspondence from Preston Law, reference is made to the alleged contravention of the orders of 26 November 2015, as detailed in the first of the contravention applications, and there is a specific opportunity given to the applicant [mother] to withdraw the application. At page 2 of the letter of 5 June 2017, reference is made to the contravention application filed on 3 May 2017, and it goes on to say:
We also take this opportunity to invite you to withdraw the contravention application filed on 3 May 2017. From what we apprehend from that application, you allege that our client has “stopped” email communication, and failed to provide new information regarding the children. You also allege that the children moving to [Property Q] and changing schools somehow amounts to a contravention of the orders.
11.Thereafter the solicitors for the respondent detail a response in relation to each of the areas of alleged contravention that are referred to in the quotation. They specifically make reference to the orders of 26 November 2015, and the obligations and responsibilities that arise pursuant to those orders. It is contended on the part of the respondent, that there is no evidence of the breach that is alleged. I found that to be the case but what is, of course, particularly relevant in relation to that correspondence is that there was direct notice given to the applicant [mother] that, from the respondent’s perspective, and it was found to be the case by the court, there was no contravention as alleged.
His Honour then considered each of the matters relevant to s 117(2A) of the Act, refused the husband’s application for indemnity costs, and made an order for party and party costs fixed in the sum that I have earlier referred to.
On 22 February 2018 the mother filed a Notice of Appeal, number NOA17 of 2018, appealing the costs order made by his Honour on 13 February 2018.
The mother also filed an Application in an Appeal on 22 February 2018 in appeal number NOA17 of 2018 seeking that the matter be expedited and listed to 14 March 2018 alongside the other appeals (NOA32 of 2017; NOA59 of 2017; and NOA9 of 2018) and that the children “be placed before the appeal judge on the 14\3\2018”. The wife also seeks by this application that her contravention application filed 23 November 2017 also be heard at the hearing on 14 March.
On 5 March 2018 the mother filed a further application in an appeal in respect of appeal number NOA17 of 2018 seeking to admit further evidence in the form of the children “be[ing] heard before Justice Murphy on the 14\03\2018” and seeking a “review of the decision of the registrar” which appears to be referring to Appeals Registrar Kane’s orders of 27 February 2018 to which I have earlier referred.
In summary, this tortuous history reveals that the matters before me today can be summarised briefly as follows:
a)The appeal of Judge Coker’s procedural orders made 10 July 2017 (NOA32 of 2017) and the father’s application for summary dismissal of this appeal;
b)The appeal of Judge Coker’s dismissal of the contravention application on 18 October 2017 (NOA59 of 2017);
c)The appeal against Judge Coker’s orders made in chambers summarily dismissing the application in a case filed by the mother on 21 December 2017;
d)A subsequent Application in an Appeal that the children be heard by me at the hearing of the appeal;
e)An appeal against Judge Coker’s orders with respect to costs relating to the dismissed contravention applications;
f)An Application in an Appeal that the children be heard by me at the hearing of the appeal, and that I also hear a contravention application filed by the mother in November of 2017;
g)An Application in an Appeal that the children be heard by me at the hearing of the appeal; and
h)A review of Appeal Registrar Kane’s order made 27 February 2018 consolidating the appeals.
Various Applications In The Various Appeals
I turn first to the mother’s applications in appeals.
At the outset of the hearing before me this morning, the mother made two things very clear.
The thrust of most, if not all, of the various appeals and applications that she brings before me today are directed towards two purposes. The first is having me hear from the children in a closed court at which time, it would seem, I am to require the children to tell me their views and to detail to me what the mother asserts is abuse of them by the father. Indeed the mother said before me this morning that the various appeals and applications were “simply designed to remove these orders” (that is the orders of Tree J) which are “aiding and abetting child abuse”.
The second and broader purpose is to (as the words from the mother which I have just quoted make clear) re-agitate issues that were heard and determined before Tree J, and to have the orders made by his Honour rescinded (and presumably replaced by other orders).
Those important considerations should be seen as crucial background to all of the submissions, and indeed the various documents, filed by the mother in respect of each of the various appeals and applications to which I have made reference.
The mother seeks in each of her applications in an appeal that the children be given the opportunity to be heard by me in closed court in relation to the determination of the issues before me. As has been seen, that application mirrors an appeal from a similar application made to Judge Coker which his Honour refused. The mother asserts the children will give evidence which will have relevance to the hearing of the appeals, and that such evidence should be given in the absence of the father and his legal representatives. Again what I have said earlier in these reasons with respect to the ongoing statements, issues and considerations that the mother continues to agitate are relevant.
Section 60CC(3)(a) includes as an additional consideration for the Court when making parenting orders: “any views expressed by the child and any factors … that the Court thinks are relevant to the weight it should give to the child’s views.” Section 60CD prescribes how the Court is to obtain any views of the child. It provides, relevantly, as follows:
(2) The Court may inform itself of views expressed by a child:
(a)by having regard to anything contained in a report given to the court under subsection 62G(2); or
(b) by making an order under section 68L for the child’s interests in the proceedings to be independently represented by a lawyer; or
(c) subject to the applicable Rules of Court by such other means as the court thinks appropriate.
In addition to this, though, it is important to emphasise, particularly for the self‑represented mother, that section 60CE of the Act prohibits requiring the children to express their views:
Nothing in this part permits the court or any person to require the child to express his or her views in relation to any matter.
In Bondelmonte v Bondelmonte[5] the High Court held that s 60CD(2):
…provides a mechanism by which the Court may inform itself of the views expressed by a child, but it does not do so in terms that would oblige the Court to do so in every case.
(Emphasis added)
[5] (2016) 259 CLR 662.
In addition, the terms of subparagraph (1) refer to where the Court is determining “whether to make a particular parenting order in relation to the child.” It should be noted that the provisions of subsection (2) are limited by subsection (1), which precedes it.
The mother refers both specifically and inferentially to practices which she asserts occur in other countries with respect to children being interviewed, in one form or another, by judicial officers. That practice, consistently eschewed in this Court since the commencement of the Act over 40 years ago, excites, I think it is fair to say, debate. That debate, I think it is also fair to say, has been agitated in more recent times in a wide variety of different places by a wide variety of people.
For present purposes, whatever might be said about the merits or demerits of judicial officers directly interviewing children at a parenting trial (or rather more exceptionally it might be thought, in respect of an application to adduce further evidence on an appeal or upon the re-exercise of a discretion by an appeal court) it has no place in the context of these particular appeals which cannot challenge the parenting orders made by Tree J. It is the procedural and dismissal orders made by Judge Coker which are the subject of the instant applications and appeals.
The consequence is that, to the extent that a challenge is made to Judge Coker’s orders with respect to refusing the application, that challenge is dismissed.
The applications before me to have me conduct an interview of the child for the purposes of these appeals is also dismissed. It is, with respect, misconceived and inappropriate in the context of the matters which I am charged to decide.
The Registrar’s Procedural Orders
I turn to the review of the Appeals Registrar’s procedural orders. Pursuant to r 18.10 of the Family Law Rules:
A court must hear an application for review of an order of a Judicial Registrar, a Registrar or a Deputy Registrar as an original hearing.
The orders the mother seeks to review appear to be the orders made by Appeals Registrar Kane on 27 February 2018. Substantively, those orders list paragraphs 2 and 3 of the Application in an Appeal to be heard by me today. The remaining orders are directions relating to filing and serving relevant documents and the like. The Application in an Appeal filed 22 February 2018 was before the appeals registrar on that day, and in the first paragraph of that application the mother sought “[t]hat appeal of 13\2\18 orders [NOA17 of 2018] be added to appeals to be heard on the 14\3\18”. The remaining two paragraphs were also listed to 14 March 2018.
The application for review is otiose. The proceedings have been heard together by me today. The mother asserts no disadvantage or prejudice in that occurring.
In any event, the mother made it clear that her concern in reviewing the Appeals Registrar’s decision was to have me interview the children in the proceedings today. Further, given the protracted nature of these proceedings; the similarity of the issues; and the underlying “theme” of the mother’s challenges in all of the applications and the appeal, it was effectively inevitable that a decision would and should be made that the appeals be heard together. It is significant to note that doing so is advantageous to the mother and seeks to protect her, at least in some respects, from potential liability to costs in separate proceedings. Quite why the decision would be reviewed by her remains a mystery, but might be seen perhaps in the context of the totality of the litigation to which I have earlier referred.
Further Order The Subject Of Application In An Appeal
As I have said, the mother seeks by her Application in an Appeal filed 22 February 2018 that I hear the contravention application filed by her in November 2017.
That application is, with respect to her, entirely misconceived. It will be dismissed.
Appeal NOA32 of 2017
On 10 July 2017 Judge Coker made an order adjourning “the matter … for a half day hearing commencing … 18 October 2017”. This is a procedural order, and the transcript of the proceedings of 10 July 2017 serve as his Honour’s reasons for making that order. It is clear that, at the hearing, his Honour was seeking to determine the time which would be required to hear the contravention application before the Court. At pages 4 to 5 of the transcript there is an exchange as follows:
HIS HONOUR: All right. What I need to know is how long is it going to take for the application to be heard? In other words, how long do I need to allocate in court time for it? [Counsel for the Father], if all three applications are the subject of contest by your client, I take it that there would be steps intended to be taken with regard to cross-examination of Ms [Graft].
[COUNSEL FOR THE FATHER]: Yes, your Honour.
HIS HONOUR: All right. What’s your estimate of the time required for the matter to be heard?
[COUNSEL FOR THE FATHER]: It would be no more than half a day, your Honour.
HIS HONOUR: All right. And Ms [Graft], obviously you anticipated that it would be - - -
MS [GRAFT]: Yes. The last - - -
HIS HONOUR: - - - listed on a date to be fixed in relation to the matter. I know it’s very difficult. It’s difficult for lawyers, but do you have any idea how long you think it might take? You would obviously be subject to cross-examination on behalf of Mr [McCormick]. If I found that there was what’s called a prima facie case, you would have the opportunity to ask questions of him. Have you thought about those issues and aspects of the matter and how long it might take?
MS [GRAFT]: The last contravention was a couple of hours, but I must admit the father did plead guilty after denying the claims for two years, so - - -
HIS HONOUR: All right.
MS [GRAFT]: Half a day sounds reasonable.
HIS HONOUR: So if I list it for half a day, that would be obviously what I will have to do. All right. If you will just bear with me for a moment, I will see what I can come up with as soon as possible. Please take a seat for a moment, thank you, Ms [Graft]. All right. Well, in the circumstances, unfortunately, with the volume of work that there is in this court, what I will do is direct that the matter be listed to proceed for a half day hearing commencing not before noon on 18 October 2017.
[COUNSEL FOR THE FATHER]: Thank you, your Honour.
HIS HONOUR: All right. And obviously you will be ready to proceed at that time Ms [Graft].
MS [GRAFT]: Yes. …
In her amended Notice of Appeal filed 3 November 2017 the mother seeks leave to appeal. She is, with respect, correct that leave to appeal is required.
In support of her application for leave the mother includes a number of assertions. I will quote those assertions because, as it seems to me, they give a proper flavour to the entirety of the mother’s challenges and what I have earlier called the “underlying theme” to them.
The “facts” asserted by the mother to support her application for leave to appeal are as follows:
1. The current family law orders were illegally obtained and are currently aiding and abetting child abuse criminal and law offences
2. The court and parties actions and delays are a serious error of law and have criminal implications
3. The judgement of the 26\11\15 clearly provides these errors and non compliance of the orders
4. The current family law orders are currently aiding and abetting child abuse, criminal and law offences and have serious legal and cost implications while they remain in place
5. The parties since the 2\2\15 have had Justice Trees permission to lie, this alone a serious error of law
6. The children are currently not even in the fathers care and he has not amended the orders and claims sole parental responability and the orders to justify his conduct
7. The orders are currently also claimed to exempt this parent from providing information regarding the children to their mother and the disclosing of family violence inculding when police are involved
8. The children have been unable to report their abuse and order violations since sept 2014 as they have been witheld against orders from their Mother
9. The court and orders are currently witholding the children from their mother until a coarse is completed ,this coarse then exempts the court and orders from any liability
10 decisions and orders are currently being made not in the best interests of the children and within law requirement but to protect the parties of this matter from criminal ,law and order violations
11. The only viable legal option is the family law orders be vacated
12. Judges, ICL and report writers cannot be removed ,disciplined and or even named as respondents in an appeal ,this is a serious flaw in the family law system and has lead to the long term abuse of the two children of this matter since 2009 and as a direct result of the family law orders and parties non compliance
13. The Judges and courts of this matter clearly supporting the Father and His legal representatives criminal ,family law act and law offences and non compliance, they also continue to make very serious and false claims against the Mother and the orders themselves
(As per original)
The mother makes no further submissions in relation to leave to appeal in her written Summary of Argument. The application for leave to appeal is otiose; the proceedings continued on that day. No disadvantage or prejudice is evident to the mother in them so doing. No disadvantage or prejudice to the mother is claimed by her in them so doing. The mother did not object at the time to the matter being set down. There is no merit in any of the so-called grounds seeking leave to appeal. There is no substantial injustice. No error of principle is involved. Leave to appeal should plainly be refused.
For the sake of completion and, again, to highlight the true purpose of the appeal as agitated by the mother, I mention here that the order sought by the mother if her application for leave to appeal was successful was an order that the November 2015 orders be vacated, that the Full Court report “criminal offences in this matter to police”, that the children be removed from their father’s care, and that the matter be transferred to the High Court.
In short, as I said at the outset of these reasons, the mother wishes to revisit the matters which were before the Court at the time of trial and which were determined by the Court at that time after that trial.
I refuse leave to appeal in respect of appeal NOA32 of 2017.
Appeal NOA59 of 2017
As has been seen, on 18 October 2018 Judge Coker heard four contravention applications filed by the mother in respect of the final parenting orders made on 26 November 2015. Each of those applications was dismissed, and reasons were given by his Honour that day.
The mother has, perhaps out of caution, sought leave to appeal, however this appeal is against orders summarily dismissing four contravention applications. Counsel for the father does not make any submissions relating to leave to appeal. My inclination is that the orders are final orders. In any event, I will proceed on the assumption, favourable to her, that the mother has a right of appeal and that leave is not required.
Again, however, the grounds comprise assertions, statements, and comments of the type earlier set out in respect of the other appeal. None of the grounds can be described as grounds of appeal properly so-called. Only ground 7 addresses, in my view, the decision made by the primary judge dismissing the contravention applications. It provides: “The 18\10\17 a serious legal error ,it also has criminal implications” (as per original).
Again, with respect to the mother, that is not a proper ground of appeal, nor does it assert any discernible appealable error as far as I can see.
The other grounds, once again, refer back to the final parenting orders made 26 November 2015 and, once again, are essentially blanket assertions of criminal offences and effectively corruption on the part of the Court.
In the father’s amended written submissions, which I gave leave for him to rely upon this morning, he addressed the primary judge’s summary dismissal of the contravention applications. He argues that the primary judge was “satisfied the mother had no prospect of successfully prosecuting the contraventions” and that decision was plainly open to his Honour. I agree.
Counsel also refers to a number of decisions familiar to this Court in respect of the summary dismissal of applications. I agree they have application to this case, and that the decision his Honour reached was well open on the evidence before him.
Further and in any event, the grounds, as I have said, lack particularity, and the arguments made by the mother do not assist in identifying any appealable error. Once again, the arguments contain broad assertions of impropriety. Nothing said by the mother, with all respect to her, specifically demonstrates any error on the part of the primary judge. Appeal number NOA59 of 2017 will be dismissed.
Appeal NOA9 of 2018
On 18 January 2018 the mother filed a Notice of Appeal with respect to orders made by Judge Coker on 21 December. Those orders dismissed the application that the parties’ children be “placed in front of a judge in a closed court to provide which parent they wish to live with and report any abuse and order violations”.
My earlier comments pertain. It is clear from his Honour’s reasons that he found the mother “does not have any appreciation of the process or the proper applications that should be made”. His Honour was clearly correct, in my view, in so finding.
Once again, the mother seeks leave, and the father, through his counsel, makes no submissions with respect to leave. I will assume in the absence of argument again favourably to the mother that leave to appeal is not required and she appeals by way of right.
The grounds of appeal do not reveal any appealable error, nor do any written or oral arguments made by the mother illuminate any appealable error, and accordingly the appeal should be dismissed.
Given those comments, I feel I should, for the sake of clarity in these reasons, quote the grounds of appeal as drafted by the mother:
1. The orders are a breach of the family law act and have criminal implications
2. The family law orders need to be vacated
3. This matter cannot continue or be held in the family law courts due to parties non compliance of the family law act
4. The orders of the 21\12\17 are a serious legal error and grounds for the removal of Judge Coker from this matter and my seeking this parties disbarment
5. The Father is in breach of the orders and plead guility to non compliance 11\11\15 ,the claims made in the orders and judgement of the 21\12\17 are false and perjury
6. Under section 60CC of the family law act and the file CSC 301\2009 the family law court judges cannot refuse to place the two children of this matter before a judge
7. There is simply no reasonable excuse or reason for the orders of the 21\12\17 and the claims provided
8. They are almost direct quotes of the hearing of the 18\12\17 with registrar Boyd and the Fathers barrister [Counsel for the Father],this alone has serious legal and criminal implications.
(As per original)
In my view, counsel for the father submits correctly that as there were no existing proceedings before the Court, there could be no Application in a Case. His Honour was correct, then, to reject the Application in a Case on that basis alone.
However, as I have sought to demonstrate, in my view there were good grounds for his Honour rejecting the Application in a Case as having no proper foundation and for his Honour to conclude that the filing of the application and consequent proceedings would expose the father – and indirectly the children – to yet further litigation in circumstances where the application had no substance.
There is no merit in this appeal. Appeal number NOA9 of 2018 will be dismissed.
Appeal NOA17 of 2018
The final appeal before me relates to the order for costs made against the mother by Judge Coker on 13 February 2018.
Again the mother seeks leave to appeal. Again, however, in my view, she appeals by way of right and leave is not necessary. I will take her submissions in respect of leave to appeal as being, in effect, additional grounds of appeal and will quote both.
In respect of leave to appeal, the mother says:[6]
1. This is a serious legal error
2. The parties including a Judge cannot claim the father has not breached the orders.
[6] Notice of Appeal filed 22 February 2018, Part C.
Specifically under what the mother calls “grounds” she asserts:[7]
1. This order made on the 13\2\18 is a serious legal error
2. It also clearly shows the corruption in this matter and that the Judges and family law courts can no longer claim to be complying with the family law act
3. The parties are clearly making false and misleading claims and law referances
4. This matter should not continue in these courts or with the judges
(As per original)
[7] Notice of Appeal filed 22 February 2018, Part E.
Once again the mother makes broad complaints about the way in which various courts have conducted various proceedings in which she is involved; and broader allegations about the conduct of judicial officers. None of what the mother says has any relevance whatsoever, in my view, to the matters which the Court is bound to consider pursuant to s 117 of the Act.
Reference to his Honour’s reasons reveals a careful consideration of each of the relevant matters pursuant to s 117(2A) of the Act. I am unable to see how his Honour took account of any irrelevant considerations or failed to take account of relevant considerations. All of the matters taken into account by his Honour were, with respect, entirely appropriate and entirely open on the evidence before him.
I have earlier quoted from his Honour’s reasons with respect to correspondence sent by the solicitors for the father ahead of the proceedings. This Court has said on more than one occasion that, because of the provision of s 117(1) of the Act, a party seeking to avoid the costs of litigation has a very limited armoury with which to protect themselves. Filing a timely written offer to settle or, as occurred here, a timely invitation to a party to resist from pursuing an application which is asserted to have no merit is part of – and an important part of – that very limited armoury. That is what occurred here.
The solicitors acting for the father acted entirely correctly and appropriately in seeking to protect him from an order for costs. His Honour appropriately took that matter into account as an important consideration.
There is no merit in this appeal. Appeal number NOA17 of 2018 will be dismissed.
Costs
Counsel for the father seeks the opportunity to make written submissions as to costs. Directions permitting both parties to do so will be made.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 14 March 2018.
Associate:
Date: 29 March 2018
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