Jenna & Jenna (No 2)
[2024] FedCFamC1F 667
•2 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jenna & Jenna (No 2) [2024] FedCFamC1F 667
File number(s): SYC 5611 of 2020 Judgment of: HARPER J Date of judgment: 2 October 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Applications in a Proceeding – Where the husband files an Application in a Proceeding seeking that final orders are made ex parte – Where a formal order has been made requiring the husband to seek leave before filing any Application in a Proceeding – Where no such leave is sought – Where Applications in a Proceeding have no reasonable prospects of success – Applications in a Proceeding determined on the papers in Chambers. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 46, 67, 69(2)(f)
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) rr 1.31, 5.13, 5.15
Cases cited: Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Jenna & Jenna [2024] FedCFamC1A 121
Jenna & Jenna [2024] FedCFamC1F 253
Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: Determined on the papers in chambers Place: Sydney Solicitor for the Applicant: Did not participate Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Did not participate ORDERS
SYC 5611 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JENNA
Applicant
AND: MR JENNA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
2 OCTOBER 2024
THE COURT ORDERS THAT:
1.Leave be refused to bring the Application in a Proceeding filed by the Respondent Husband on 29 July 2024, as amended on 5 August 2024 and the application is dismissed.
2.Leave be refused to bring the further Application in a Proceeding filed by the Respondent Husband on 29 July 2024, as amended on 7 August 2024 and the application is dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 pseudonyms Jenna & Jenna have been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
These are parenting and property proceedings under Pts VII and VIII of the Family Law Act 1975 (Cth) (“the Act”) between the applicant wife, Ms Jenna (“wife”) and the respondent husband, Mr Jenna (“husband”).
The proceedings are listed for final hearing commencing on 18 November 2024 with an estimate of 5 days, although a longer time may be necessary.
According to the parties’ different positions, the property pool is estimated to be worth anywhere between about $2 million and $30 million depending upon the success of the husband in patent litigation in the Federal Court of Australia. Numerous allegations of family violence, coercive control and fraud have been made between the parties.
There is one child of the relationship, X, born 2011 and currently 13 years old. The child is currently spending no time with the husband, apparently at the husband’s election.
The husband, who is self represented, has already filed in excess of seven interlocutory applications in these proceedings including amendments and numerous attempts have been made with the Sydney Registry to file Amended Responses to Final Orders.
On 17 April 2024 I delivered an ex tempore judgment Jenna & Jenna [2024] FedCFamC1F 253 requiring that the husband seek the Court’s leave to file any further interlocutory applications in these proceedings.
He filed an Application for Extension of Time to appeal orders made by me on 17 April 2024 and 30 April 2024 and sought that such Application be heard in the absence of the parties. This Application was summarily dismissed by an appeals judicial registrar on 24 June 2024. He then filed a Notice of Appeal on 24 June 2024 which was summarily dismissed by Austin J on 19 July 2024: Jenna & Jenna [2024] FedCFamC1A 121.
On 29 July 2024 two further Applications in a Proceeding were filed by the husband. No leave was sought either prior to filing, or within, either application.
Since both applications were filed on the same date, I will refer to them as “Application A” and “Application B” for clarity throughout these reasons.
The failure of the husband to seek leave to file these applications justifies their dismissal. But as will explained, no leave would be given in any event.
In order to understand this judgment and the inherent problems that appear on the face of these applications it is necessary to set out the orders sought as follows:
In Application A, as amended on 5 August 2024, the husband seeks the following orders:
1.That given evidence of the Husband/father (“father”) of his affidavit 22 July 2024 (“the Affidavit”) of corruption involving the Court in relation to proceeding SYC5611/2020 (“the Proceeding”) including the Court’s corrupt removal of the father’s evidence from the Court file proving major fraud (“Fraud”) by the Wife/mother (“mother”) of the Proceeding involving Commonwealth Bank and coercive control comprising or relating to the mother’s falsely and/or deceptively and/or corruptly obtained control or ownership of the child (“child”) (“Coercive Control”) of the Proceeding and/or the father and/or family finances and/or assets (“Financial Coercive Control”), the Fraud, Coercive Control and Financial Coercive Control having been respectively committed or obtained and enforced prior to the initiating application (“Initiating Application”) of the Proceeding and concealed since then, the Court makes this order and orders 2 to 10 below of its own motion on an extremely urgent basis in accordance with Rule 5.11 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“Rules”) ex parte without notice to the respondents.
2.That the Registry is to file the Affidavit and suppress it on the Court file so that it is not accessible by the parties through the Commonwealth Courts Portal.
3.That the Court is to provide the Affidavit to the Australian Federal Police, the Major Fraud Group of NSW Police Force, Queensland Police Service and the National Anti-Corruption Commission along with the Court files of the Proceeding and proceedings NAA128/2024 and NAA155/2024 for investigation and prosecution of any offences which the Affidavit defines (“Offences”).
4.That further to order 3 above, pursuant to 10.09(1)(c) and 10.10 of the Rules, the Proceeding is summarily dismissed on the ground the Initiating Application and the Proceeding are vexatious or an abuse of process due to them being instituted, conducted or pursued in the Court to harass or annoy or cause delay or detriment or for another wrongful purpose or to achieve a wrongful purpose, or without reasonable ground, the Initiating Application and Proceeding having been instituted, conducted or pursued in the Court to conceal the Offences, including the Coercive Control and Financial Coercive Control, and through so concealing to continue to cause corresponding and consequential psychological, emotional, mental and financial harm.
5.That further to order 4 above, pursuant to one or more of Section 67ZBA, 67ZBB and 67ZC of the Family Law Act 1975 (Cth) (“Family Law Act”), the Crimes Legislation Amendment (Coercive Control) Act 2022 (“Coercive Control Act”) and the Child Protection Act 1999, by way of protection of the child and the father from the Offences and corresponding damage the mother is removed from the child and the child is provided in the father’s sole custody and lives with the father, the mother is evicted from the property at [B Street, Suburb C NSW] (“[Suburb C] property”) and prevented from entering that property or the property at [D Street, Suburb E QLD] (“[Suburb E] property”) or coming within 50 metres of the child, the father or the [Suburb C] property or the [Suburb E] property, with this order to be enforced by the Court against the mother prior to, or simultaneously with, the provision of these orders to the parties.
6.That the mother has treated the Court with contempt and is referred by the Court to the Australian Federal Police for sentencing in relation to her contempt of court.
7.That further to order 4 above, pursuant to one or more of Sections 67ZBA, 67ZBB and 67ZC of the Family Law Act, the Child Protection Act 1999 and the Coercive Control Act, the mother is referred to the Australian Federal Police for sentencing for the Coercive Control and Financial Coercive Control.
8.That further to order 5 above, pursuant to Section 79 of the Family Law Act by way of property alteration, the father has sole legal ownership of the [Suburb E] property free of its encumbrance to Commonwealth Bank, full access to that property’s equity and, to enable this order to be given effect, leave of the Court to provide these orders to Title Queensland and finance organisation(s).
9.That further to orders 1 to 8 above, pursuant to Section 79 of the Family Law Act by way of property alteration, the father has sole legal ownership of the [Suburb C] property and, to enable this order to be given effect, leave of the Court to provide these orders to NSW Land Registry Services.
10.Other or alternate orders to one or more those of orders 1 to 9 above as seems appropriate to the Court.
11.That orders 1 to 10 above remain upon summary dismissal of the Proceeding and are incorporated into orders of order 12 below.
12.Other orders not in accordance with Rule 5.11 of the Rules as seems appropriate to the Court.
In Application B, as amended on 7 August 2024, the husband seeks the following orders:
1.That given evidence of the Husband/father (“father”) of his affidavit 22 July 2024 (“the Affidavit”) of corruption involving the Court in relation to proceeding SYC5611/2020 (“the Proceeding”) including the Court’s corrupt removal of the father’s evidence from the Court file proving major fraud (“Fraud”) by the Wife/mother (“mother”) of the Proceeding involving Commonwealth Bank and coercive control comprising or relating to the mother’s falsely and/or deceptively and/or corruptly obtained control or ownership of the child (“child”) (“Coercive Control”) of the Proceeding and/or the father and/or family finances and/or assets (“Financial Coercive Control”), the Fraud, Coercive Control and Financial Coercive Control having been respectively committed or obtained and enforced prior to the initiating application (“Initiating Application”) of the Proceeding and concealed since then, the Court makes this order and orders 2 to 5 below of its own motion on an extremely urgent basis in accordance with Rule 5.11 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“Rules”) ex parte without notice to the respondents.
2.That the Registry is to file the Affidavit and suppress it on the Court file so that it is not accessible by the parties through the Commonwealth Courts Portal.
3.That the Court is to provide the Affidavit to the Australian Federal Police and the National Anti-Corruption Commission along with the Court files of the Proceeding and proceedings NAA128/2024 and NAA155/2024 for investigation and prosecution of any offences which the Affidavit defines (“Offences”).
4.That further to order 3 above, the Honourable Justice Harper is disqualified as the presiding officer of the Proceeding due to his possible implication or perceived implication in the concealment of the Offences, including the Coercive Control and Financial Coercive Control, and through so concealing continuing to cause corresponding and consequential psychological, emotional, mental and financial harm, and consequently, having an actual or perceived bias.
5.Other or alternate orders to one or more of orders 1 to 4 above as seems appropriate to the Court.
6.That orders 1 to 5 above remain upon the disqualification of Harper J as the presiding officer of the Proceeding and are incorporated into orders of order 7 below.
7.Other orders not in accordance with Rule 5.11 of the Rules as seems appropriate to the Court.
In support of both applications, the husband filed an affidavit comprised of 1683 pages, including 10 annexures.
For the reasons which follow I have determined that, pursuant to r 5.13(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), subject to one matter, it is appropriate to rule upon Applications A and B in the absence of the parties and dispense with the requirements of r 5.13(a) and r 5.15 pursuant to r 1.31 and s 69(2)(f) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) in the interests of justice.
Order 4 of Application B seeks that I recuse myself from hearing the proceedings further. Since actual or apprehended bias strike at the validity and acceptability of a trial and its outcome (Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at [117]) I formed the view that the husband’s application in this regard should be dealt with in open Court, unless the husband declines to press this part of his application. The proceedings were listed for mention on 26 September 2024, for the purpose of ascertaining whether the husband pressed this part of his application. Leave was granted for him to file and serve written submissions in support within 7 days, if the application for recusal was pressed. However, by email to my Chambers on 1 October 2024, the husband confirmed the application for recusal was no longer pressed. Accordingly, no more need be said about it, and it will be dismissed.
However, the balance of the applications can be dealt with in chambers, for the reasons given.
Orders 1, 2 and 3 are in almost identical terms in each application. It can be seen that Order 1 presupposes a finding of corruption involving the wife and the Commonwealth Bank, coercive control and the making of further orders ex parte. On its face this is not a proposed order at all, and clearly not an order this Court could ever make within power.
Orders 2 seeks suppression of the affidavit upon which the husband purports to rely and order 3 proposes a referral of the affidavit to the Australian Federal Police and the National Anti‑Corruption Commission on the basis of alleged “offences”. The references to offences are not only impossible to understand, they render the proposed orders plainly outside any authority to decide enjoyed by this Court. To the extent the formulation of Orders 2 and 3 can be understood, there is no conceivable basis disclosed in the husband’s affidavit, beyond fanciful assertion, which could justify the Court making them. Again, these are not orders the Court can make.
Orders 1, 2 and 3 in both applications are incompetent.
Order 4 of Application A seeks summary dismissal of the wife’s applications on the basis they have been brought to conceal “the Offences”, including “Coercive Control and Financial Coercive Control”. For reasons already given, the wording of these orders demonstrates they are incompetent. Furthermore, given the proximity of the final hearing, the Court would not contemplate acceding to such an order, especially where the husband’s own evidence, which he seeks to suppress, demonstrates so many contentious factual allegations that he could not persuade the Court the wife has no reasonable prospects of success.
Order 5 of Application A invokes ss 67ZBA, 67ZBB and 67ZC of the Act together with other criminal legislation, none of which confers jurisdiction on this Court. To the extent the proposed order can be understood at all, it is plainly incompetent.
Order 6 of Application A alleges contempt by the wife and again referral to the Federal Police, while order 7 seeks referral to the Federal Police for “sentencing”. Both orders are incompetent.
Orders 8 and 9 of Application A seek final property adjustment orders pursuant to s 79 of Act, including the eviction of the mother from the former matrimonial home. The Court would not entertain making such orders summarily at this stage of the proceedings, with a final hearing listed in less than two months.
Orders 10, 11 and 12 of Application A, and 5, 6 and 7 of Application B are consequential and as formulated could not be made.
Section 46 of the FCFCOA Act empowers the Court to give summary judgment where the Court is satisfied that the prosecuting party has no reasonable prospect of success. Aside from Order 4 of Application B, I am satisfied that neither application has any reasonable prospect of success.
The parties and the Court have a duty to promote the overarching purpose set forth in s 67 of the FCFCOA Act to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.
Taking account of those matters and the lack of any prospect of success, it is not in the interests of justice or consistent with the overarching purpose to require, or put any party to the expense of, an oral hearing of the husband’s applications other than in relation to Order 4 of Application B. For the same reason leave should be refused, and because even if leave was granted no basis for any of the other proposed orders has been demonstrated.
Conclusion
Leave will be refused for the husband to bring Application A and it will be dismissed. Leave will be refused to bring Application B, other than order 4, and it will be dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 2 October 2024
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