Imani & Etola - [2023] FedCFamC1F 905

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Imani & Etola [2023] FedCFamC1F 905

File number: MLC 4188 of 2015

Judgment of: AUSTIN J

Date of judgment: 23 October 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the applicant father filed two Applications in a Proceeding – Where the senior judicial registrar (“the registrar”) referred discrete parts of the second application to a judge for determination and otherwise dismissed the balance of the two applications – Where the father now seeks review of the registrar’s decision and 103 separate orders – Where orders were made in 2018 to finalise proceedings between the father and the respondent mother – Where the father’s appeal from those orders was dismissed – Where the father will need to file an Initiating Application and demonstrate a material change in circumstances since the orders were made to warrant revision of them – Where the review application is plainly an abuse of process – Where the review application and the interlocutory applications which preceded it are summarily dismissed – Where the second respondent did not seek costs.

Legislation:
Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) Pt VII

Judiciary Act 1903 (Cth) s 40

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09

Cases cited:
Etola & Imani [2018] FamCAFC 196

Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84

Division: Division 1 First Instance

Number of paragraphs: 33

Date of hearing: 23 October 2023

Place: Newcastle (via Microsoft Teams)

The Applicant: Litigant in person (did not participate)

The First Respondent: Litigant in person (did not participate)

Solicitor for the Second Respondent: Mr Smith
ORDERS

MLC 4188 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ETOLA

Applicant

AND:
MS IMANI

First Respondent

AA AGENCY

Second Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

23 OCTOBER 2023

THE COURT ORDERS THAT:
1.The orders made by the senior judicial registrar on 15 September 2023 are discharged.
2.The orders made by Strum J on 17 October 2023 are discharged and the court event before his Honour on 27 November 2023 is vacated.
3.The following applications filed by the applicant are dismissed:
(a)the Application in a Proceeding filed on 11 July 2023;
(b)the Application in a Proceeding filed on 14 September 2023; and
(c)the Amended Application for Review filed on 20 October 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Imani & Etola

Details

AGLC: Imani & Etola [2023] FedCFamC1F 905
Case: [2023] FedCFamC1F 905
Decision Date: 23 October 2023

CaseChat Overview and Summary

In the case of Etola v Imani, the father, Mr. Etola, sought review of the decisions made by the senior judicial registrar and the judge, Strum J, regarding his parenting applications. The mother, Ms. Imani, and the AA Agency opposed the father's applications. The father filed two applications in the proceeding, and the registrar referred certain parts of the second application to a judge for determination while dismissing the rest. The father now sought to review the registrar's decision and 103 separate orders. The court needed to determine the validity of the father's claims and whether the review application was an abuse of process.

The court held that the father's review application was an abuse of process and dismissed it. The court noted that the father's review application and the interlocutory applications that preceded it were summarily dismissed. The court also found that the father's appeal from the orders made in 2018 had been dismissed, and he would need to file an Initiating Application and demonstrate a material change in circumstances since the orders were made to warrant revision of them. The court concluded that the review application was plainly an abuse of process.

The court ordered that the orders made by the senior judicial registrar and Strum J be discharged, and the court event before Strum J on 27 November 2023 be vacated. The court also dismissed the father's applications filed on 11 July 2023, 14 September 2023, and 20 October 2023. The court did not award costs to the second respondent. The court's reasons for judgment were subject to review for minor typographical or grammatical errors or to record a variation to the order. The father's review application was an abuse of process, and the court dismissed it accordingly.

Orders

Orders of the court

MLC 4188 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ETOLA

Applicant

AND:

MS IMANI

First Respondent

AA AGENCY

Second Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

23 OCTOBER 2023

THE COURT ORDERS THAT:

1. The orders made by the senior judicial registrar on 15 September 2023 are discharged.

2. The orders made by Strum J on 17 October 2023 are discharged and the court event before his Honour on 27 November 2023 is vacated.

3. The following applications filed by the applicant are dismissed:

(a) the Application in a Proceeding filed on 11 July 2023;

(b) the Application in a Proceeding filed on 14 September 2023; and

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The second respondent appeared and opposed the relief sought by the father.Application and evidence The review application (in both its original and amended form) asserts it is brought in respect of all orders made by the registrar. Interpreted literally, that means the father wants to review not just the orders dismissing those parts of the two applications dismissed by the registrar, but also the orders referring parts of his second application to another judge for hearing. In his amended review application, the father seeks 103 separate orders, which replicate those sought in his second application filed on 14 September 2023. Evidently, he abandons the 21 orders separately sought in his first application filed on 11 July 2023. In support of his amended review application, the father relies upon only his affidavit filed on 11 July 2023. The affidavit begins by referring to another affidavit he swore on 17 November 2021 for use in appellate proceedings before the Victorian Court of Appeal, apparently on appeal from a VCAT decision. The relevance of that historical affidavit for present purposes is unclear. The father then alleges “deceptive and misleading conduct” by two professionals in the original proceedings heard before this Court. He additionally alleges signatures were forged on certain documents which were tendered in evidence in other proceedings conducted before a State magistrate’s court, along with other errors in the evidence placed before the State magistrate’s court. The father filed a Case Outline document by email at 2.04 am this morning, the submissions within which have been taken into account. The father seems to be labouring under the misapprehension that he must demonstrate the registrar fell into error, but that is not so. The review hearing is an original hearing of the relief he seeks, without reference to the correctness of the registrar’s decision. How the father’s affidavit is, in any way, supportive of the orders now sought by him remains completely elusive. The conundrum is not cured by his written submissions. The review application is dismissed for lack of merit, rather than because of the father’s failure to appear and prosecute it.Relief sought The relief sought by the father in the review is extensive and broad. In summary, it includes:(a)a request for permission to apply on short notice to challenge some or all of the final orders made on 1 February 2018 (Order 1); (b)an application to set aside selected orders made by the primary judge on 1 February 2018 (Orders 87 and 88);(c)an application for the disqualification of the primary judge (Order 96);(d)an application to re-list the original proceedings for re-trial before another judge (Order 98);(e)an application for an order commanding the primary judge to be present at the re‑hearing, presumably as a spectator (Orders 99 and 100);(f)numerous demands that the primary judge publish written reasons for these following things (Orders 2–84, 101 and 103):(i)certain procedural and evidentiary decisions in the original proceedings;(ii)interlocutory orders made in the original proceedings;(iii)findings made in the original proceedings;(iv)explaining why the mother and other persons might have made certain decisions or acted in certain ways during the course of the original proceedings;(v)explaining why the father cannot understand something;(vi)explaining why VCAT took certain action; and(vii)explaining why the primary judge did not recuse herself.(g)demands that a certificate be urgently issued under s 128 of the Evidence Act 1995 (Cth) (Order 85);(h)demands that certain documents be “expunged” from the file in the original proceedings (Order 86);(i)an application for the release of all audio recordings of court events in the original proceedings so the transcript can be corrected (Order 89);(j)an application for the release of all audio-visual recordings and documents held by an expert witness pertaining to a family assessment conducted in the original proceedings (Order 90);(k)the referral of certain persons for criminal prosecution and professional discipline (Orders 91, 92, 93, 94 and 95);(l)the release of complete court files of other unrelated litigants and written correspondence between the Court, AHPRA and other regulatory bodies (Order 97); and(m)an application that the “matter” be referred to the High Court of Australia for advice about certain issues (Order 102).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	MLC 4188 of 2015
Judgment of:	AUSTIN J
Date of judgment:	23 October 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the applicant father filed two Applications in a Proceeding – Where the senior judicial registrar (“the registrar”) referred discrete parts of the second application to a judge for determination and otherwise dismissed the balance of the two applications – Where the father now seeks review of the registrar’s decision and 103 separate orders – Where orders were made in 2018 to finalise proceedings between the father and the respondent mother – Where the father’s appeal from those orders was dismissed – Where the father will need to file an Initiating Application and demonstrate a material change in circumstances since the orders were made to warrant revision of them – Where the review application is plainly an abuse of process – Where the review application and the interlocutory applications which preceded it are summarily dismissed – Where the second respondent did not seek costs.
Legislation:	Evidence Act 1995 (Cth) s 128 Family Law Act 1975 (Cth) Pt VII Judiciary Act 1903 (Cth) s 40 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09
Cases cited:	Etola & Imani [2018] FamCAFC 196 Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84
Division:	Division 1 First Instance
Number of paragraphs:	33
Date of hearing:	23 October 2023
Place:	Newcastle (via Microsoft Teams)
The Applicant:	Litigant in person (did not participate)
The First Respondent:	Litigant in person (did not participate)
Solicitor for the Second Respondent:	Mr Smith

MLC 4188 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ETOLA Applicant
AND:	MS IMANI First Respondent AA AGENCY Second Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	23 OCTOBER 2023