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 that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Imani & Etola has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 1 February 2018, orders were made to finalise proceedings between the applicant father and the respondent mother in respect of their children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).

2. In summary, the orders provided for the children to live with the mother and for her to have sole parental responsibility for them. The orders directed that the children not spend any time with the father and their communication with him was limited to cards and presents on special occasions. The father’s appeal from those orders was dismissed some months later in October 2018 (Etola & Imani [2018] FamCAFC 196).

3. However, more procedural orders were made in the original proceedings in response to applications brought by third parties, enabling the use of documents in professional disciplinary and regulatory proceedings.

4. In 2018, orders were made allowing a professional to provide documents from the original proceedings to the Victorian Civil and Administrative Tribunal (“VCAT”).

5. In 2019, orders were made releasing documents from the original proceedings to the Australian Health Practitioner Regulation Agency (“AHPRA”), AA Agency, and another regulatory body.

6. In 2020, orders were made giving a regulatory body permission to publish certain information about the father in a confined way.

7. In 2021, orders were made granting AA Agency and AHPRA permission to publish documents and information from the original proceedings.

8. Two Applications in a Proceeding were filed by the father on 11 July 2023 and 14 September 2023 seeking swathes of orders. He named the mother as the first respondent and AA Agency as the second respondent to the applications.

9. On 15 September 2023, the senior judicial registrar (“the registrar”) referred discrete parts of the second application to a judge for determination, but otherwise dismissed the balance of the two applications.

10. The residual portions of the second application were listed for hearing before another judge of the Federal Circuit and Family Court of Australia (Division 1) on 1 December 2023, but that judge subsequently made orders on 17 October 2023 bringing the hearing forward by several days to 27 November 2023.

11. On 15 September 2023, the father filed an Application for Review, requiring the review of the registrar’s decision made earlier in the day. He then filed an Amended Application for Review on 20 October 2023.

12. The review hearing was scheduled to start at 9.30 am on Monday 23 October 2023, to be conducted electronically. There was no appearance by the applicant father at the hearing. He connected to the Microsoft Teams environment before 9.30 am using the connection details supplied, but then disconnected shortly before the hearing commenced. Nor was there any appearance by the mother.

13. The second respondent appeared and opposed the relief sought by the father.

    Application and evidence

14. 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.

15. 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.

16. In support of his amended review application, the father relies upon only his affidavit filed on 11 July 2023.

17. 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.

18. 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.

19. 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.

20. 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.

21. The review application is dismissed for lack of merit, rather than because of the father’s failure to appear and prosecute it.

    Relief sought

22. The relief sought by the father in the review is extensive and broad.

23. 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).

24. Numerous impediments block the grant of all the father’s applications.

25. The dismissal of the father’s appeal from the final orders made in February 2018 renders his applications for the publication of reasons in relation to the final judgment and any anterior interlocutory decisions entirely moot. The February 2018 orders are final and binding, even if the father does not believe they were satisfactorily explained. Significantly, he made no complaint about the alleged insufficiency of the primary judge’s reasons in his former appeal (Etola & Imani at [52]).

26. The application for the primary judge’s disqualification is also misguided, as the original proceedings are complete. The father’s claims of the primary judge’s bias were rejected on appeal (Etola & Imani at [90]–[99]).

27. If the father’s objective is to set aside or vary the final orders made on 1 February 2018, he must file an Initiating Application setting out the new parenting orders he seeks under Pt VII of the Act and, before any such fresh application is entertained by the Court, he will need to demonstrate a material change in circumstances since the orders were made to warrant revision of them (Rice v Asplund (1979) FLC 90-725). Neither the father’s current review application, nor the anterior interlocutory applications, fall into that category.

28. Given there are no current proceedings on foot, neither the father nor any other witness currently objects to giving evidence, so he was unable to articulate how the Court is empowered to issue to him or anyone else a certificate under s 128 of the Evidence Act 1995 (Cth).

29. Nor did the father explain how the Court is empowered, either expressly or impliedly, to “expunge” certain documents from the Court file, to command a third party transcript-provider to release all audio recordings of court events in the original proceedings, to command a third party expert witness to release all audio-visual recordings and documents held by that witness as business records, to give the father unfettered access to the Court files of other unrelated litigants, or to give him unfettered access to administrative written communications between the Court and other regulatory bodies.

30. The father’s request for the Court to refer certain persons for criminal prosecution and professional discipline is misconceived. He may report any criminal conduct by any person to police for investigation at his discretion. He is also free to report any professional person to their respective regulatory body for disciplinary investigation. He does not need the Court’s imprimatur to do so. Even if he did need it, nothing before the Court vindicates his bare allegations that such orders are warranted in respect of the multiple persons he nominated.

31. The application for this Court to refer the concluded proceedings to the High Court of Australia for advice is fanciful. Federal courts, including the High Court, only have jurisdiction to entertain and determine justiciable disputes between litigants. But there are no proceedings pending before the Court and, even if there were, this Court has no power to refer them to the High Court. Proceedings could only be removed into the High Court by an order made by that court under s 40 of the Judiciary Act 1903 (Cth). Otherwise, the father could make a belated application for special leave to appeal from the Full Court’s judgment dismissing his appeal from the final orders in October 2018.

32. The review application is plainly an abuse of process. It and the interlocutory applications which preceded it should be summarily dismissed pursuant to r 10.09(1)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which means the listing before the other judge on 27 November 2023 may also now be vacated.

33. Costs were not sought by the second respondent.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       31 October 2023