KT v KJ & TH
[2000] FamCA 831
•20 June 2000
[2000] FamCA 831
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No SA17 of 2000
AT MELBOURNE File No ML9417 of 1999
BETWEEN:
KT
Appellant Father
- and -
KJ
and
TH
Respondents
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: KAY, HOLDEN & MULLANE JJ
DATE OF HEARING: 20 June 2000
DATE OF JUDGMENT: 20 June 2000
APPEARANCES: The Appellant Father in person.
Mr Holmes of Counsel, instructed by Barker Gosling, Solicitors, DX 402, Melbourne, appeared on behalf of the Respondents.
KT V KJ AND TH
SA 17 of 2000
Coram: Kay, Holden & Mullane JJ
Date of hearing: 20 June 2000
Date of judgment: 20 June 2000
CATCHWORDS: COURTS AND JUDGES- Judges- disqualification- appellant contesting trial Judge’s decision to disqualify herself- effect of section 94 (1AA)
COSTS-Circumstances justifying order
F and M had a short marriage. M had apparently suffered from depression throughout the marriage and after the birth of the child, B (April 1999), M suffered post-natal depression, which exacerbated her prior existing mental illness. In July 1999, M committed suicide.
B resided with her maternal grandmother until August 1999 whereupon she moved to her maternal aunt and uncle’s home (the respondents).
Consent orders were made by Registrar Benjamin in November 1999 providing inter alia for B to remain in the respondents’ care with H to have contact. There were a number of current extant proceedings brought by the parties. F had 10 current applications including Form 44 and 41B applications.
Frederico J was listed to hear the Form 44 and Form 41B applications. F was self-represented but sought to have a Mr Schorel appear as his McKenzie friend, but that application was refused by Frederico J as Mr. Schorel had been declared a vexatious litigant by the Court. His Honour disqualified himself from hearing the proceedings and adjourned the matter.
The matter came on before Morgan J whereupon F again sought leave for a Mr. Schorel to appear as his McKenzie Friend.
Her Honour noted that Mr. Schorel had been declared vexatious in Court. She refused to allow Mr. Schorel to act as F’s McKenzie Friend. Her Honour noted that H sought to rely upon an affidavit sworn by Mr. Schorel. Given that there was an appeal by Mr Schorel before the Full Court against her Honour in his own matter raising the similar issues to those wanting to be argued by the applicant, and upon the applicant's own application her Honour disqualified herself. She granted the respondents a costs certificate for the aborted hearing.
On appeal, F appealed on 32 grounds, most of which were unintelligible. It appeared that F essentially contested her Honour’s powers to disqualify herself and the grant of a costs certificate to the respondents.
Held, in dismissing the appeal:
The effect of s 94(1AA), is that an appeal lies from a decree or decision of a judge exercising original or appellant jurisdiction under the Act refusing an application that he or she disqualify himself or herself from further hearing a matter. It does not extend to a decision by a judge accepting such a submission. Such a decision is not a "decree, judgment or order."
The issue as to whether or not a costs certificate should have been granted is an issue as between the Court, the applicant for the certificate and the Attorney-General who has to meet the certificate. There is no issue to be raised by the appellant in this case as to the propriety of that certificate, and as such that part of the appeal was incompetent.
Costs
Notwithstanding the economic imbalance between the two households, given the Court’s view that this appeal was hopeless and should not have been brought, it is appropriate that there be a costs order.
(Per Holden J)
Much of the appellant's supporting material was incomprehensible. This is a clear warning that straitened financial circumstances of an appellant in this type of appeal will not necessarily afford protection against a costs order where costs are blown out by the filing of such material.
APPEAL DISMISSED
COSTS ORDERED AGAINST F
REPORTABLE
KAY J: This is an appeal against orders made by Morgan J on 7 March 2000. The appellant is the father of [B]. The respondents are the maternal aunt and uncle of the child. [B]'s mother died in July 1999 and the child currently lives with the respondents to these proceedings.
On 5 November 1999 consent orders made by Registrar Benjamin provided for the child to remain in the care of the respondents and for the father to have contact. There were further contact orders made by Registrar Harold on 20 December 1999.
Current extant proceedings brought by the aunt and uncle include a Form 7 application and a Form 8 application seeking interim orders. The father has 10 current applications, including responses to those applications, and a review application in respect of the orders made on an interim basis in these proceedings. Allied to the review application filed 28 January 2000, is a Form 41B, Notice of Constitutional Matter filed the same day.
On 18 February Frederico J was listed to hear the Form 44 and Form 41B applications. The husband was self-represented. He sought to have a Mr Gerrit Hendrik Schorel appear as his McKenzie friend but that application was refused by Frederico J. His Honour disqualified himself from hearing the proceedings as Mr Schorel was a witness in the proceedings, and then adjourned the matter.
The matter came on before Morgan J. By coincidence, when the matter came on before Morgan J, there was an appeal going on before the Full Court involving Mr Schorel appealing against orders of Morgan J in his own proceedings. Mr Schorel had sworn an affidavit in the proceedings in the [KT] matter. For reasons which appear from the transcript, and at the invitation of [KT], her Honour determined in the circumstances, that she would not hear the matter and decided that she would have the matter referred to another judge at an appropriate time.
At the outset of the proceedings before her Honour an application was been made by [KT] to have Mr Schorel appear as a McKenzie friend and her Honour declined that application, saying that Mr Schorel was a known vexatious litigant. The following exchange took place:
"HER HONOUR: [KT], you are appearing for yourself?
[KT]: And also with my McKenzie friend, Mr Schorel.
HER HONOUR: Is there leave for Mr Schorel to act as McKenzie friend?
[KT] : I request leave for Mr Schorel.
HER HONOUR: All right, I will deal with that in a moment. Is it your application, is it?
[KT] : Yes.
HER HONOUR: What is the application? Now, [KT], it is your case. You tell me what the application is.
[KT]: Objection to jurisdiction..."
There is then some discussion between counsel for the wife and her Honour regarding the fact that Mr Schorel had been denied the status of a McKenzie friend by Frederico J. Her Honour then said:
"...I have a difficulty, insofar as Mr Schorel is concerned, in that I have not realised that Mr Schorel was a deponent in the proceedings..."
And then she asked [KT] if he understood what the role of a McKenzie friend was. It was at that point that her Honour decided that having regard to the matter before the Full Court involving Mr Schorel as a litigant and herself as the trial Judge:
"...it is my view that prima facie I should not hear a matter in which - in those circumstances in which Mr Schorel is a deponent."
There was further discussion about whether Mr Schorel should act as a McKenzie friend. Her Honour, having regard to the fact that Frederico J had already declined to allow him to do so, and having regard to the fact that Mr Schorel was a witness in the proceedings, said as follows:
"Well, in my view, [KT], given that Mr Schorel has been declared vexatious in this court, given that there is currently a matter raising the same issues, which is an appeal against me before the Full Court, I am not going to give leave to Mr Schorel to act as your McKenzie friend. Now, do you wish to continue to represent yourself?"
[KT] said:
"I seek the judge to disqualify."
Her Honour:
"Well, I am intending to do that, [KT]..."
And she did.
There was then a discussion about the grant of a certificate to the aunt and uncle in the proceedings under the Federal Proceedings (Costs) Act.
The order of the court as published is as follows:
"1.That all extant applications be adjourned to the Listings Registrar to be fixed for hearing;
2.That the father's application for leave to have Mr Gerritt Hendrik Schorel assisting as a McKenzie Friend be dismissed.
3.That a Costs Certificate issue to the Applicant aunt pursuant to the Federal Proceedings Costs Act in relation to the hearings on 18 February 2000 and 7 March 2000.
4.That the father's costs of this day be reserved.
AND THE COURT NOTES
That the Honourable Justice Morgan has disqualified herself in this matter."
The appeal to the court purports to be against the whole of the decree. The orders sought in the appeal are as follows:
"1.It is declared that the proceedings instituted by [KJ] and [TH] were outside the legal jurisdiction of the Family Court.
2.That the orders of Registrar Harold of 20 December 1999 be declared NULL AND VOID and discharged/set aside.
3.That the Orders of Morgan J of 7-3-2000 be discharged and the cost certificate also hereby is revoked.
4.That [KJ] and [TH] be ordered to hand over the child [B] to her father (the appellant) immediately and failing such compliance a WaRRANT (sic) be issued to secure the child [B] and further Warrant be issued for the arrest of [KJ] and [TH].
5.That this Court recommends for the Department of Public Prosecution to investigate the case of alleged kidnapping by [KJ] and her husband [TH].
6.Cost ordered against [KJ], [TH], and their lawyers."
There are 32 grounds of appeal most of which are unintelligible. When asked to address the Court today as to what the appeal was about, [KT] indicated that he wished Mr Schorel to act as a McKenzie friend and sit at the bar table. We indicated that Mr Schorel was at liberty to sit in the body of the court, make notes, and provide advice, providing that process did not unduly disrupt the proceedings. Ultimately, [KT] appeared to be unable to make any submissions whatsoever without Mr Schorel first writing out word-for-word the submission that was to be made. I have significant doubts as to whether or not the person making the submissions understood what it was he was seeking to argue.
An appeal lies under s 94 from a decree of the Family Court. An appeal lies under s 94(1AA) from a decree or decision of a judge exercising original or appellate jurisdiction under this Act, rejecting an application that he or she disqualify himself or herself from further hearing a matter. This legislation was enacted to overcome the dicta of the High Court In re Watson; ex parte Armstrong (1976) FLC 90-059 at 75,274 that a judge who sits on after it is submitted that the judge should disqualify himself or herself is not making a decree within the meaning of s 94.
The effect of s 94(1AA), in my view, is that an appeal now lies from a decree or decision of a judge exercising original or appellant jurisdiction under the Act refusing an application that he or she disqualify himself or herself from further hearing a matter. It does not extend to a decision by a judge accepting such a submission. Such a decision is not a "decree, judgment or order."
Her Honour was asked to disqualify herself and she did exactly that. In my view, not only does no appeal lie from that decision, but it is arrant nonsense to suggest that the applicant for disqualification can now complain about achieving what he sought at first instance.
Next, a complaint was made that her Honour ought not in the circumstances have granted a certificate under the Federal Proceedings (Costs) Act 1981 in favour of the respondent aunt and uncle. That certificate was granted under the provisions of s 10(3) of the Act, which says:
"Subject to this Act, where -
(a)the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and
(b)the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings,
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings."
The issue as to whether or not such a certificate should have been granted is an issue as between the Court, the applicant for the certificate and the Attorney-General who has to meet the certificate. In my view, there is no issue to be raised by the appellant in this case as to the propriety of that certificate, and as such this part of the appeal is incompetent.
Even if I am incorrect as to the status of the appellant to complain in respect of the grant of the certificate, no intelligible issue is raised by the rather copious pleadings as to why it would be appropriate for this Court to interfere with the grant of the certificate.
There is no other order that was made by her Honour that was not appropriate in the circumstances, they being procedural orders that are attendant upon her Honour's disqualification.
Accordingly the appeal should be dismissed.
Each party has filed a Form 42A in this appeal. The Form 42A filed on behalf of the appellant was not addressed in any way by the appellant and, having regard to the relief sought in it, that is understandable. The application by the respondent was effectively abandoned.
HOLDEN J: I agree and have nothing to add.
MULLANE J: I agree.
KAY J: There is an application for costs. Having regard to the matters set out in s 117(2) of the legislation particularly, notwithstanding the economic imbalance between the two households, given our view that this appeal was hopeless and should not have been brought, it is appropriate that there be a costs order and we fix those costs in the sum of $2,500.
HOLDEN J: I just want to say before we rise that the cost order that has just been made should be seen as one of the perils of bringing totally misconceived appeals, supported by a great volume of papers, most of which, if not all of which, were absolutely irrelevant to the matters that were the subject of the appeal and were prepared obviously by someone other than the appellant. I think it is a clear warning that straitened financial circumstances of an appellant in this type of appeal will not necessarily afford protection against a costs order.
KAY J: The formal orders of the court are:
(1)That the appeal be dismissed;
(2)That the Form 42A applications of the Appellant Father filed on 6 June 2000 and of the Respondents filed on 9 June 2000 be dismissed without prejudice to the right of either party to renew the applications contained therein before a judge sitting at first instance as may be appropriate.
(3)That the Appellant Father pay the sum of $2,500 towards the Respondents' costs.
I certify that the preceding
25 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
Associate
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