Kettle and Baker
[2012] FamCAFC 73
•1 June 2012
FAMILY COURT OF AUSTRALIA
| KETTLE & BAKER | [2012] FamCAFC 73 |
| FAMILY LAW – APPEAL – Consideration of dismissal of appeal – Where the Full Court had previously adjourned the appeal and made orders to enable the father to listen to audio recordings of the proceedings, and ordered the father file and serve a document identifying the portions of the transcript which he intended to rely on in the appeal – Where the father had already been granted an extension of time in which to comply with those orders –Where the father had neither applied nor sought to apply at the hearing for a further extension of time in which to comply with the orders – Where the father was notified in time of the consideration of dismissal of the appeal – Where the orders the subject of the appeal were procedural in nature – Where there was no substance in any of the grounds of appeal – Appeal dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Batey-Elton & Elton (No 2) [2008] FamCAFC 202 CDJ v VAJ (1998) 197 CLR 172 Forbes & Bream (2008) 222 FLR 96 Gallo & Dawson (1990) 93 ALR 479 Sampson & Hartnett (Provision of Transcript) [2010] FamCAFC 220 |
| APPELLANT: | Mr Kettle |
| RESPONDENT: | Ms Baker |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Berck |
| FILE NUMBER: | BRC | 6532 | of | 2009 |
| APPEAL NUMBER: | NA | 3 | of | 2011 |
| DATE DELIVERED: | 1 June 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Coleman, May & Strickland JJ |
| HEARING DATE: | 28 May 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 December 2010 |
| LOWER COURT MNC: | [2010] FamCA 1164 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
The appeal numbered NA 3 of 2011 is dismissed pursuant to rule 22.45 of the Family Law Rules 2004.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kettle & Baker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 3 of 2011
File Number: BRC 6532 of 2009
| Mr Kettle |
Appellant
And
| Ms Baker |
Respondent
REASONS FOR JUDGMENT
Coleman & May JJ
Introduction
As the appellant failed to comply with an order in relation to an appeal, this matter was listed for dismissal pursuant to r 22.45 of the Family Law Rules (“the Rules”).
On 10 August 2011 the appeal together with an application of the appellant was listed for hearing. The order made on 10 August 2011 by the Full Court was as follows:
(1)That the Notice of Appeal filed 18 January 2011 be adjourned to a date to be fixed.
(2)Note the undertaking given to the Court by [Mr B] that:
“I will not, by any means communicate, publish or disseminate to, or discuss with or otherwise reveal to any person or entity the content of audio recordings of proceedings in the Family Court of Australia before Murphy J on 2 November 2010, 8 December 2010 and 9 May 2011 or anything said therein other than to [Mr Kettle].”
(3)That to the extent necessary, the appellant and [Mr B] have leave to listen to audio recordings of the proceedings before Murphy J on 2 November 2010, 8 December 2010 and 9 May 2011.
(4)That within 42 days of this date the appellant file and serve a document identifying the portions of the transcript of proceedings before Murphy J on 2 November 2010, 8 December 2010 and
9 May 2011 upon which the appellant relies by reference to the date and times of the proceedings on those dates.The order of a Registrar extended the time for the appellant to comply with order (4) to 25 November 2011.
There is no doubt that the appellant has not complied with order (4) of the orders of 10 August 2011.
At the outset of this hearing we enquired whether the appellant had sought a further extension of time to comply with the orders. He had not and did not seek such an extension in his oral submissions.
The substantive proceedings between the parties concern the parenting arrangements for their child B born in August 2000.
This is an appeal from procedural orders made in those proceedings by
Murphy J on 8 December 2010 after hearing the appellant’s application filed
25 November 2010. In that application the appellant sought:
1.That Dr [G] be appointed to prepare a further family report with special reference to the further evidence of sexual abuse of the child [B] by the Respondent mother and her considerations to include interviews with the parties and [Mr H] if he is available.
2.Justice Murphy be disqualified from further hearing any matter in these proceedings and the determination of Orders Sought numbered 3(a), 5 and 7, below, be adjourned until another judicial officer is presiding.
3. a) The Independent Children’s Lawyer be discharged but
b)The father have access to copies of any subpoenii issued by her whilst she may act.
4.The father has Leave to issue such subpoenii for production of documents as he determines are relevant, each with an early return date and further, the scope of such subpoenii as may be issued to the Queensland Police Service or Department of Child Safety, may include the identity of departmental officers and informants and information given to those bodies.
5.The father has Leave to inspect and copy such subpoenaed documents as he determines may be relevant to his case and may, in that inspection, have another person, namely [Mr B] with him to lend legally qualified expertise to that forensically evaluative process PROVIDED THAT any material disclosed in that process is to be held as Confidential and not disseminated or used except for the purposes of hearing or preparation for hearing in this matter in a court of competent jurisdiction.
6.The father has Leave to subpoena such witnesses as he may chose.
7.The dismissal in Order 4 made on 2 November 2010 of the father’s application in a case filed on 20 August 2010 is reversed and that application be listed before this court on the next occasion.
8.The father has Leave to obtain from Auscript, at his own expense, such audio copies of hearings in this court or in the court below as he may require.
9.There be no order as to the costs of today.
In relation to the orders from which the appellant appeals, made on 8 December 2010, an order was made permitting Mr B to act “as a silent McKenzie Friend for the father”, as he had also been allowed on a previous occasion.
Also on 8 December 2010, the judge dismissed paragraphs 3 and 8 of the application, and struck out paragraphs 2, 4, 5, 6 and 7. The substantive proceedings were set down for trial commencing 25 July 2011. There were also orders made adjourning the matter to the Magellan Registrar for directions on 30 March 2011.
Leave was granted to the parties to inspect the subpoenaed documents. It was ordered that no person other than an admitted legal practitioner assist the appellant with inspecting the subpoenaed documents or act as his agent to do so. Mr B is not in that category.
Only one month earlier on 2 November 2010 the judge heard similar applications by the appellant. It was ordered:
1.Mr [B] is permitted to act today as a silent McKenzie Friend for the father.
2.The oral application by the father that Justice Murphy be disqualified from hearing this matter is dismissed.
3.The oral application by the father that Mr [B], or any person other than a properly-qualified person admitted to practice as a legal practitioner in Queensland, assist him with inspecting subpoena documents, or acting as his agent to do so, is dismissed.
4.The Application in a Case filed on 20 August 2010 in respect of Mr [B] acting as an advocate for the father is dismissed.
AND IT IS NOTED THAT such application is dismissed in respect of any procedural hearings as part of the court’s case management system, but does not preclude any application being made as to whether Mr [B] be permitted to act as an advocate for the father in any interim or final hearing for parenting orders, with any such application to be heard by the judge sitting at any such hearing.
…
11.The Independent Children’s Lawyer is granted leave to issue subpoenae directed to the Commissioner of Police and the Director General, Department of Communities.
There is no appeal from the 2 November 2010 orders.
It is apparent from the orders and reasons of 2 November 2011 that the issues raised in the application had been disposed of, and that the issue at the next hearing was to be the “proposed direction sought by the Independent Children’s Lawyer that the Family Consultant [Ms S] prepare a full family report after viewing the subpoenaed materials and further interviewing the parties, the child and any other significant person” (order 5).
A psychiatric report was ordered to be prepared for the Court by Dr G. It was requested that Dr G express an opinion, should she consider it appropriate, as to whether:
(i)The child should be interviewed at all by anyone for the purposes of the upcoming trial; and
(ii)If so, whether she has an opinion whether the person who interviews the child, and prepares a report in respect of same, should be her, or Ms [S], or some other person.
The appellant, who has always appeared in person, appeals from all of the 8 December 2010 orders. The mother and the Independent Children’s Lawyer informed the Registry that they do not wish to be heard in the appeal. They did not file written submissions and did not appear at the hearing of the appeal.
Consistently they have indicated that they do not wish to be heard in this hearing, having been given notice that the appellant’s appeal may be dismissed.
In this appeal, the appellant seeks that Murphy J be disqualified from further hearing the matter, that the orders made on 8 December 2010 be set aside and that the matter be remitted to a trial judge other than Murphy J. The appellant also asks for a costs certificate.
In deciding the question of whether the appeal should be dismissed it is necessary that we consider the merits of the appeal.
In essence, the grounds asserted that the judge had demonstrated bias against the appellant in the hearings and should have allowed the application that he disqualify himself and otherwise have made different orders. It is the appellant’s submission that the bias was demonstrated in the previous hearing, thus the need to have the transcripts of that hearing before the Full Court, in addition to that related to the order under appeal.
Allegations of bias are contained in the written submissions provided for the appeal. As we understand the appellant, this is his principle complaint. The appellant does however complain about all the other orders by made by the judge.
Reasons of the trial judge
In respect to the appellant’s application for disqualification before him, it was said by the trial judge:
2.It seems to me that paragraph 2 of the orders sought in the Application in a Case filed by [the father] on 25 November 2010 is in the nature of an appeal from orders made by me on the last occasion.
3.On that occasion, [the father] sought that I disqualify myself. The basis upon which that submission was made, which, as I said during my reasons, was with great respect, a very confused one, was set out in those reasons and, as it seems to me, had four bases, which I have set out in those earlier reasons. [The father] says that he renews the application today before me on the basis of further evidence.
4.The further evidence, taken together, relates to precisely the same bases agitated before me in the proceedings on 2 November 2010. That being the case, paragraph 2 of the Application in a Case filed on 25 November 2010 is in the nature of an appeal, and I dismiss it.
We will also refer briefly to his Honour’s reasons in relation to the other orders about which the appellant appeals.
In dealing with paragraph 4 of the appellant’s application for leave to issue subpoenas to the Queensland Police Service and the Department of Child Safety, his Honour found that he had “no power to make orders, at least without hearing from each of those relevant departments, to make the orders sought by [the father]”. It was also found that the order sought was so wide and
non-specific that it would be incapable of enforcement.
In response to the appellant’s application in paragraph 5 regarding Mr B it was noted by the trial judge that the appellant sought “precisely the same order” on 2 November 2010. The application was rejected by his Honour and reasons were provided at that time. It was said at paragraph 13 of the reasons:
13.It is not suggested by [the father] that any fresh evidence should be considered by the court in respect of a fresh application in that respect. Paragraph 5 is in the nature of an appeal against an order already made. I dismiss it.
In considering paragraph 6 of the appellant’s application that leave be given to issue subpoenas at large it was said:
15.The provisions of Division 12A of the Act impose obligations upon a court to conduct parenting proceedings in a particular form and, specifically, to conduct those proceedings as expeditiously as possible and in a way which predominates the issues of direct relevance to the best interests of a child.
16.The order sought by [the father] is, in my view, so broad and non-specific as to be meaningless.
17.As indicated during the course of argument, the court must exercise control over the issue of subpoenae; they form part of a court’s process. The court controls its process. It is necessary for [the father], or, indeed, any other litigant in the court, to establish that the issue of an important document, such as a subpoena, and, specifically (it seems) a subpoena to give evidence, is necessary. The proposed evidence must be relevant to the issues in the proceedings.
18.It also needs to be borne in mind that this is an affidavit court, and the primary obligation upon [the father], and, indeed, any other litigant in this court, is to obtain an affidavit from any witness upon whom he would seek to rely.
19.In the usual course of events, [the father] would need to satisfy the court that a subpoena needs to issue in respect of a relevant witness who has relevant evidence to provide to the proceedings, but in respect of whom he has been unable to obtain, or a witness is unwilling to provide, an affidavit.
20.For those reasons, paragraph 6 of the Application in a Case is, in my view, incompetent. It is struck out.
Addressing paragraph 7 of the application it was said:
22. It is plain that, on its face, that order is in the nature of an appeal.
23.When asked to explain the basis for the order, [the father], in effect, conceded that it is in the nature of the appeal, because he says that the application is applicable only in circumstances where I would disqualify myself from the hearing of these proceedings, such that (implicitly) the same application that was made before me could be made before another judge.
24.In my view, the order sought in the application is incompetent. It is struck out.
In dealing with paragraph 8 of the application seeking audio copies of “hearings in this court” the judge said:
26.Again, the very broad terms of that unparticularised order will be noted. I have asked [the father] to refer me to any parts of the four affidavits filed by him in support of his Application in a Case that contain evidence in support of that application. He has been unable to do so. For my own part, I cannot see any evidence that pertains directly to that application.
27.[The father] first submits that the order should be made, in effect, by way of either further direction or further enforcement of an order made by O’Reilly J over three years ago, on 7 September 2007. That order provides, at paragraph 9:
The Regional Registry Manager of the Brisbane Registry of the Family Court of Australia make all necessary arrangements with the National Transcription Service (NTS) for [the father] to purchase from it audio CDs of any proceedings in which [the father] is or has been a party, which [the father] may in writing request, the cost of such purchase or purchases to be paid by [the father] to NTS.
28.Reference to the box of files in this matter reveals that [the father] has been involved in proceedings of one sort or another in this court now for some years. “The proceedings” to which O’Reilly J refers have been completed. I cannot imagine that her Honour purported in that order to bind a future court in respect of that issue in any future proceedings. It seems to me that, to the extent that her Honour purported to do so (and I do not for one moment suggest that her Honour did), the order would be beyond power, the power of the court being only to make orders in “proceedings” before it.
…
33.Doing the best I can, it seems that there is a current (or intended) application for special leave to the High Court of Australia which has, or will have, as its foundation the “judicial review” referred to by [the father]. It is said that, in order to properly prosecute that application for judicial review in the High Court of Australia, [the father] needs the audio of earlier proceedings.
34.When I asked [the father] to identify the proceedings in which the audio recordings were sought, he replied by saying, “All that are relevant to the intended application to the High Court.” [The father] indicated that he had some difficulty in properly preparing his case to the High Court by reference to the materials that he already had.
35.When I asked him why that could not be effected by reference to a written transcript, his response was that he “could not afford” to obtain a written transcript.
36.It seems to me that the only purpose for which [the father] requires the relevant audio records, is for the purposes of preparing an application for special leave (in one form or another) to a different court, namely, the High Court of Australia.
37.Whether or not a written transcript is sufficient for the purposes of preparing any such application for special leave (or other application to that court) or whether in fact reference to audio recordings is necessary for that purpose is, as it seems to me, integrally connected with the appeal process governed by the rules and procedures of the High Court of Australia.
38.It seems to me that any application that [the father] makes for the purpose for which he says it is made, is a matter to be taken up with the High Court in accordance with that court’s rules and procedures.
39.Accordingly, in my view, paragraph 8 of the application is incompetent. I strike it out.
In dealing with paragraph 1 of the appellant’s application his Honour noted that it was the Independent Children’s Lawyer’s intention to obtain a psychiatric report from Dr G, a specialist psychiatrist.
The appellant did not directly oppose the preparation of the report. Rather the issue was whether Dr G, who prepared a report in 2006, should prepare a “further family report”, as requested by the appellant, or whether
Dr G’s report should be confined to the preparation of a psychiatric report as asked by the Independent Children’s Lawyer.
The appellant strongly opposed any further report by Ms S, a family consultant who prepared a short report for the interim proceedings in the Federal Magistrates Court. Ms S is the expert to have most recently spoken to the child.
The judge summarised the appellant’s objections to Ms S in his reasons for judgment.
The judge was troubled by the nature and extent of the interviews to which the child has been exposed as a result of the court proceedings. His Honour made reference to a statement made by the child on the last occasion he saw
Ms S, where it was said, quoting from his Honour “he was sick of these proceedings and simply wanted them to come to an end”.
His Honour concluded:
64.The facts and circumstances of this case, including, not least, its very long history, and the issues that have been raised by each of the parties during that long history, make it plain that the court should have available to it a psychiatric assessment of each of the parties to these parenting proceedings. Dr [G] is suggested, including by [the father], as a psychiatrist who should see each of the parties, and I see no reason why Dr [G] ought not prepare a psychiatric report.
65.What I propose to do, in order to balance the considerations to which I have just made reference, is this: I propose that Dr [G] see each of the parties and to conduct all such interviews as she might consider necessary, so as to provide an appropriate psychiatric opinion about each of them. Further, I will direct the Independent Children’s Lawyer to forward to Dr [G], in consultation with both [the mother’s solicitor] and [the father], all such documents considered relevant for Dr [G]’s consideration.
66.I will direct the ICL to request that Dr [G] express an opinion, if she considers it appropriate to do so, based on her interviews with the parties and the material read by her, as to whether:
(a)[The child] should be interviewed at all by anyone for the purposes of the upcoming trial; and
(b)If so, whether she has an opinion whether the person who interviews [the child], and prepares a report in respect of same, should be her, or alternatively Ms [S], or other appropriately qualified expert.
As to paragraph 3 of the appellant’s application in relation to the Independent Children’s Lawyer his Honour said:
73.The submission that the ICL should be discharged is interesting, in the first instance, because she has only recently been appointed. The affidavit material filed in support of that part of the application refers to a number of matters, some of which can, as I suggested to [the father] during argument, be described by way of summary as saying that earlier ICL have been crook, and therefore this one should be presumed to be crook as well. To the extent that this assertion is made in the affidavit material, I reject it.
…
83.The fact that one or both parties may disagree with the views and opinions expressed by an ICL is, insofar as no proper allegation is made of impropriety, irrelevant.
84.I dismiss the application for the order sought at paragraph 3 of the orders sought in an Application in a Case filed 25 November 2010.
To the extent to which it is necessary to conclude in this hearing, it can be seen that there is very little merit in the appeal.
Orders of the Full Court 10 August 2011
On 9 June 2011 the appellant filed an amended application in an appeal asking that the Court obtain any transcript that is required for the hearing, to be provided to the appellant. In the alternative, a costs certificate was sought so that the appellant can purchase the transcript. The appellant also sought leave to adduce further evidence of the hearings on 2 November 2010, 8 December 2010 and 9 May 2011.
It was also asked that Mr B, “who is legally trained and of good character” assist the appellant at the hearing of the appeal.
On 10 August 2011, the Full Court made orders as set out at the commencement of these reasons.
Also as mentioned, further orders were made by the Regional Appeals Registrar on 11 October 2011 extending the time for the appellant to comply with order 4 of the Full Court orders to 25 November 2011.
The appellant was apparently in touch with Auscript after the order was made on 10 August 2011. We have been provided with letters between the appellant, the Court and Auscript.
On 28 November 2011 the appellant wrote to the Court with concerns in relation to the content of the Auscript audio recordings. On 6 December 2011 these concerns were referred to Auscript, who reviewed and re-burnt the audio record and provided it to the Court.
On 31 January 2012 the Court advised the appellant that the audio recording was available and that an appointment could be made by him to listen to the recording at the Court. The appellant’s request that a copy of the audio record be sent to him was declined by the Regional Appeals Registrar in a letter to him dated 9 February 2012, in which reference was made to the reasons for judgment of the Full Court of 10 August 2011.
The Regional Appeals Registrar advises that more than 42 days have elapsed since the last correspondence with the appellant and that he has not made an appointment to listen to the audio, filed the document required pursuant to order 4 of 10 August 2011, responded to the last correspondence that was sent by the Court, or filed any application to either extend time or seek further orders of the Full Court in relation to the provision of the audio.
On 9 May 2012 the Regional Appeals Registrar provided notice to the appellant and the other parties that the matter was listed for consideration of dismissal for failure to comply with the order of 10 August 2011.
The notice is in accordance with r 22.45(3) of the Rules being 14 days before making an order to dismiss an appeal.
The mother and the Independent Children’s Lawyer have advised that they do not seek to be heard in this hearing for dismissal.
Before concluding this matter we would make some reference to the provision of the transcript for appeals in the Family Court of Australia.
Rule 22.18 of the Rules provides the requirements for the preparation of appeal books:
(1) The appellant or, if so ordered, the cross-appellant is responsible for preparing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.
(2) If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare the appeal books:
(a) a respondent;
(b) the Regional Appeal Registrar.
Note If the Regional Appeal Registrar prepares the appeal books, the appellant or cross-appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.27).
(3) When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal books.
Note 1 The party filing the appeal books must file and serve the number of copies ordered to be filed (see paragraph 22.17 (2) (c)). The number to be filed will include enough copies for each member of the Full Court. In addition, the number required to be served will be 2 copies for each other party.
Note 2 A party may apply for an extension of time (see rule 1.14).
Note 3 If a party fails to comply with the requirements for filing and serving the appeal books, the appeal is taken to be abandoned (see rule 22.21).
As said by the Full Court (Bryant CJ, Boland and Stevenson JJ) in Forbes & Bream (2008) 222 FLR 96 there is no legislative basis within the Family Law Act 1975 (Cth) (“the Act”) or the Rules providing that a transcript be provided by the court:
28.From the inception of the operation of the Family Court in 1976, transcript has not been routinely provided to parties. The cost is not provided for in the budget of the Court, and the cost of doing so routinely, would impinge on other necessary expenditure for the proper operation of the Court. Thus in hearings of matters at first instance parties will be responsible for the cost of transcript if they wish to obtain it. However, the Court has from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so. A common example is the provision of transcript of the evidence of an expert witness in a parenting case.
…
35.If the interests of justice require it, and the appellant or cross-appellant or party seeking it cannot afford the cost of transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed. In Fortnum & Fortnum (No 2) [2008] FamCAFC 73 Finn J described this as part of the “supervisory role of the Full Court”. We would add to her Honour’s explanation the “supervisory power of the Court” may necessarily, in a particular case, require the Court to have transcript to fulfil its statutory function under s 94(2) of the Family Law Act. Thus the Court hearing an appeal may order the provision of transcript as an exercise of its incidental powers.
36.We do not need to define the circumstances in which the discretion may be exercised. Suffice it to say that we doubt whether it would be exercised in anything other than exceptional cases. Furthermore, we consider that the vast majority of such cases will relate to parenting orders, where the necessity to arrive at a result in the best interests of the child may provide compelling reasons for transcript to be provided at the Court’s expense if the parties are impecunious.
Although in Forbes & Bream the Full Court indicated that it did not need to define the circumstances in which the discretion of the court to provide a transcript may be exercised, the Full Court (Bryant CJ, Finn & Ryan JJ) in Sampson & Hartnett (Provision of Transcript) [2010] FamCAFC 220 said that it would be of assistance to the applicant in that case, who also was
self-represented, to have some framework as to the matters which the court would need to be satisfied.
Those factors which were said to be “common factors identifiable in many such cases” were:
a)Whether the case is a financial or parenting case.
b)Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal.
c)The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript.
d)The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s).
e)The prima facie merits of the appeal.
f)Whether the question of providing a transcript can be left to the Full Court hearing the appeal.
g)Any other relevant facts or circumstances.
It was acknowledged that the weight to be attributed to any particular factor will vary on a case by case basis.
It is said by the appellant in his Outline of Argument filed 9 June 2011, when the orders of 2 November 2010, 8 December 2010 and 9 May 2011 are considered with the reasons and the transcript of proceedings that:
… a picture will emerge which will evidence the nearly complete commonality of the factual matrix and course of conduct across the three hearings such that surely Justice Murphy will surely not continue to again preside in this matter. The commonality of the issues – raised again and again, is overwhelming. Why there were three hearings is because Justice Murphy engaged in what the transcripts will evidence is crass and intransigent duplicity across a litany of issues. Has bias not been present, no second and third court date would have been required. The second and third hearings are not comprehensible and no proper picture of the evident bias could be formed other than by taking in all three hearings together.
The appellant submits that “[w]ithout those transcripts, no fair hearing of this appeal can proceed”.
It was for that reason this court made the orders on 10 August 2011 in an endeavour to assist the appellant. He has not complied.
Conclusion
The orders made were procedural in nature. In addition we are of the view that there is no substance in any of the grounds of appeal.
The application should be considered in the light of the well known discussion in Gallo & Dawson (1990) 93 ALR 479. The appellant has not complied with the orders, it is not simply a matter of delay. No attempt has been made by him to seek an extension of time. Nor it is apparent that he would ever comply with the orders. The other issue in considering whether the appeal should be dismissed is the lack of merit in the appeal. Apart from the allegation of bias which could only be exposed by reference to transcript, the other claims in relation to the orders made by the judge appear baseless. The appellant has failed to comply with the orders and thus it is not apparent how any appeal could sensibly be argued by him. The positions of the respondent mother and the Independent Children’s Lawyer should not be ignored especially as the final hearing has not yet commenced.
The appeal should be dismissed.
Strickland J
I have had the considerable benefit of reading the reasons for judgment of Coleman and May JJ. I agree that the appeal should be dismissed pursuant to
r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).
Introduction
This appeal was listed before the Full Court for consideration of dismissal of the appeal pursuant to r 22.45 of the Rules.
The father had failed to comply with paragraph 4 of the orders made by the Full Court on 10 August 2011 within the time ultimately provided for in the subsequent order of the Regional Appeals Registrar made on 11 October 2011. The orders made on 10 August 2011 were as follows:
(1)That the Notice of Appeal filed 18 January 2011 be adjourned to a date to be fixed.
(2)Note the undertaking given to the Court by Mr [B] that:
“I will not, by any means communicate, publish or disseminate to, or discuss with or otherwise reveal to any person or entity the content of audio recordings of proceedings in the Family Court of Australia before Murphy J on 2 November 2010, 8 December 2010 and 9 May 2011 or anything said therein other than to [Mr Kettle].”
(3)That to the extent necessary, the appellant and Mr [B] have leave to listen to audio recordings of the proceedings before Murphy J on 2 November 2010, 8 December 2010 and 9 May 2011.
(4)That within 42 days of this date the appellant file and serve a document identifying the portions of the transcript of proceedings before Murphy J on 2 November 2010, 8 December 2010 and
9 May 2011 upon which the appellant relies by reference to the date and times of the proceedings on those dates.The order made on 11 October 2011, on the application of the father, extended the time for compliance with paragraph 4 of our order to 25 November 2011.
The father appeared before us in person, assisted by a Mr B. Neither the mother nor the Independent Children’s Lawyer appeared before us having indicated to the Court beforehand that they would not be taking any part in the hearing. Indeed, neither appeared at the initial hearing of the appeal on
10 August 2011, having also indicated beforehand that they would not be taking any part in the appeal.
Background
As Coleman and May JJ identify in their reasons for judgment, the substantive proceedings between the parties concerned the parenting arrangements for the child B born in August 2000.
On 2 November 2010 Murphy J made the following orders on the application of the father filed on 20 August 2010:
1.Mr [B] is permitted to act today as a silent McKenzie Friend for the father.
2.The oral application by the father that Justice Murphy be disqualified from hearing this matter is dismissed.
3.The oral application by the father that Mr [B], or any person other than a properly-qualified person admitted to practice as a legal practitioner in Queensland, assist him with inspecting subpoena documents, or acting as his agent to do so, is dismissed.
4.The Application in a Case filed on 20 August 2010 in respect of Mr [B] acting as an advocate for the father is dismissed.
AND IT IS NOTED THAT such application is dismissed in respect of any procedural hearings as part of the court’s case management system, but does not preclude any application being made as to whether Mr [B] be permitted to act as an advocate for the father in any interim or final hearing for parenting orders, with any such application to be heard by the judge sitting at any such hearing.
IT IS FURTHER ORDERED THAT
5.The Father file and serve, by 4.00pm on 26 November 2010, an Application in a Case supported by such affidavit material as he might consider appropriate, setting out the order that he seeks in respect of the proposed direction sought by the Independent Children's Lawyer that the Family Consultant [Ms S] prepare a full family report after viewing the subpoenaed materials and further interviewing the parties, the child and any other significant person.
6.The hearing of the Application in a Case referred to in the previous paragraph of these Orders, be listed for hearing in the Magellan Directions List at 11.00am on 8 December 2010 in the Brisbane Registry of the Family Court of Australia.
7.All outstanding applications are adjourned for directions to progress the matter to final hearing, to the Magellan Directions List at 11.00am on 8 December 2010.
IT IS DIRECTED THAT
8.A copy of the s 69ZW Report by the Department of Communities (Child Safety Services) be provided to the solicitor for the mother and to the father.
9.Subject to the Independent Children's Lawyer identifying any documents which include objection to inspection, the Independent Children's Lawyer alone is granted leave to copy, and the solicitors for the mother, and Mr [Kettle] are granted leave to inspect, the documents produced pursuant to subpoenae directed to the Commissioner of Police and the Director General, Department of Communities.
10.Leave is granted to the Independent Children's Lawyer and the parties (or any properly qualified person admitted to practice as a legal practitioner in Queensland acting on their behalf), to inspect the court files BRF2360/2002 and/or BRC6532/2009.
11.The Independent Children's Lawyer is granted leave to issue subpoenae directed to the Commissioner of Police and the Director General, Department of Communities.
On 25 November 2010 the father filed an application purportedly in compliance with paragraph 5 of the orders made on 2 November 2010. It is apparent though from that application that the father was attempting to revisit many of the issues raised in his application filed on 20 August 2010 and which were dealt with by the orders made on 2 November 2010.
On 8 December 2010 his Honour heard and determined the father’s further application and made the following orders:
1.Mr [B] is permitted to act today as a silent McKenzie Friend for the father.
2.Paragraphs 3 and 8 of the Application in a Case filed on
25 November 2010 are each dismissed.3.Paragraphs 2, 4, 5, 6 and 7 of the Application in a Case filed on
25 November 2010 are each struck out.4.The matter is set down for a five day final hearing commencing at 10.00am on Monday 25 July 2011 in the Brisbane Registry of the Family Court of Australia.
5.The matter is adjourned to the Magellan Registrar at 12.00 noon on Wednesday 30 March 2011 for the making of all such directions as might be necessary to prepare the matter for final hearing on 25 July 2011.
6.The matter is further adjourned for a directions hearing to be listed before the trial judge, in the week commencing 16 May 2011 at a time and on a date to be advised, for the purpose of considering all matters relevant to the conduct of the final hearing.
7.Leave is granted to all parties to inspect and to the Independent Children's Lawyer alone to copy documents produced pursuant to subpoenae, save any document in respect of which objection to either inspection or copying is made, in which case an application is to be brought before Justice Murphy.
AND IT IS NOTED THAT Mr [B] or any person other than a properly-qualified person admitted to practice as a legal practitioner in Queensland, is not permitted to assist the father with inspecting subpoena documents or acting as his agent to do so.
8.The costs of today be reserved.
IT IS FURTHER ORDERED THAT
9.A psychiatric report be prepared for the Court by Dr [G], and for the purpose of completing the report:
a)The report writer has permission to inspect the Court file and all documents/documents related to this matter.
b)The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.
c)The Independent Children's Lawyer is requested to forward to Dr [G], in consultation with both Ms [E] and Mr [Kettle], all such documents considered relevant for Dr [G]’s consideration.
d)The parties shall do all such things, sign all such documents, pay equally all such reasonable fees and attend all such appointments as are reasonably necessary for the preparation of the report.
AND IT IS REQUESTED THAT Dr [G] express an opinion, if she considers it appropriate to do so, based on her interviews with the parties, and the material read by her, as to whether:
(i)The child should be interviewed at all by anyone for the purposes of the upcoming trial; and
(ii)If so, whether she has an opinion whether the person who interviews the child, and prepares a report in respect of same, should be her, or Ms [S], or some other person.
AND IT IS NOTED THAT interviews are available with Dr [G] for the mother on 8 April 2011 and for the father on 11 April 2011, with a report available approximately three weeks after such interviews, and it is anticipated that such report will be available to the trial judge at the directions hearing in the week commencing 16 May 2011.
It is these orders which are the subject of this appeal. The father’s Notice of Appeal was filed on 18 January 2011 and the orders that he sought therein were as follows:
1.Justice Murphy is disqualified from further presiding in this matter.
2. All of the orders made on 8 December 2010 are quashed.
3.The matter be remitted to an unbiased judge for directions and hearing.
4.Costs to the appellant pursuant to a costs certificate for a lump sum in the discretion of the Court.
On 9 June 2011 the father filed an Amended Application in an Appeal in which he sought the following orders:
1.The court provide and provide copy to the appellant of any transcript required for the hearing, well prior to any hearing or in the alternative a costs certificate issue to the appellant forthwith.
2.Appellant has leave to adduce further evidence inter alia or hearings on 2 November, 8 December last and 9 May 2011.
3.Appellant has leave to have Mr [B] who is legally trained and of good character to assist him at hearing of this application at the hearing of the appeal.
That application was heard by us at the commencement of the hearing of the appeal on 10 August 2011 and resulted in the orders made on that day and set out above.
Following the making of those orders there was contact, including email contact, between the father, Auscript and the Court as to the audio recordings.
As identified by Coleman and May JJ in their reasons for judgment, on
28 November 2011 the father wrote to the Court with concerns in relation to the content of the audio recordings. These concerns were referred to Auscript on 6 December 2011 following which Auscript reviewed and re-burnt the audio record and provided it to the Court.
Further, as also referred to by Coleman and May JJ in their reasons for judgment, on 31 January 2012 the Court advised the father that the audio recording was available and that an appointment could be made by him to listen to the recording at the Court. The father’s request that a copy of the audio record be sent to him was declined by the Regional Appeals Registrar in a letter to him dated 9 February 2012, in which reference was made to the reasons for judgment of the Full Court of 10 August 2011.
We are advised by the Regional Appeals Registrar that the father has neither made an appointment to listen to the audio recording, nor responded in any way to the letter of 9 February 2012, nor filed any application to either further extend the time to comply with the orders of 10 August 2011 or to seek any other order from the Full Court in relation to the audio recording, and nor filed the document required pursuant to paragraph 4 of the orders made on
10 August 2011.
In compliance with sub-rule 22.45(3) of the Rules, on 9 May 2012 the Regional Appeals Registrar gave notice to the father and to the other parties that the appeal was listed on 29 May 2012 for consideration of dismissal of the appeal for failure to comply with the order of 10 August 2011.
Discussion
At the hearing before us the father conceded that he had not responded to the last correspondence from the Court, that he had not made an appointment to listen to the audio recording, that he had not filed any further application either seeking an extension of time or any further orders in relation to the audio recording, and that he had not complied with paragraph 4 of the orders made on 10 August 2011.
The father further conceded that given what he had put to us on 10 August 2011 about the need to identify the relevant passages from the transcript of the hearings before Murphy J in order to pursue his appeal against his Honour’s refusal to disqualify himself, the fact that he had not sought a further extension of time, and he had not complied with the order inevitably meant that his appeal against that refusal would have to be dismissed.
In any event, the fact of the matter is that there is no doubt that the father has failed to comply with paragraph 4 of the orders made on 10 August 2011, and he has had ample opportunity to bring an application before the Full Court either to extend the time to comply or to seek other orders in relation to the audio recording, and he has not done so.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Strickland JJ) delivered on 1 June 2012.
Associate:
Date: 1 June 2012
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