Mawby & Mawby - [2008] FamCAFC 212

FAMILY COURT OF AUSTRALIA

MAWBY & MAWBY

[2008] FamCAFC 212

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Federal Magistrate dismissed several of the father’s applications, both interim and final, relating to the child on the basis that they were frivolous or vexatious – Federal Magistrate enjoined the father from instituting proceedings in relation to the parenting of the child without leave pursuant to s 118 – Father appealed – Father argued that the Federal Magistrate had failed to comply with Rice v Asplund – Application before the Federal Magistrate was not an application for parenting orders therefore Rice v Asplund did not apply – Whether the Federal Magistrate considered the welfare of the child in making the s 118 order against the father – Whether the Federal Magistrate demonstrated an apprehension of bias or actual bias against the father – Whether the Federal Magistrate failed to ensure that the Litigants in person guidelines were met – Whether the Federal Magistrate was wrong in dismissing the father’s applications on the basis that there was no evidence before him in relation to some of the assertions made by the father, when the father asserted he would produce evidence at a later date – No merit in appeal – Appeal dismissed

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Application to adduce further evidence – Application brought belatedly – Contains material likely to be highly contentious – Application dismissed

Family Law Act 1975 (Cth), s 118

Attorney-General v Wentworth (1988) 14 NSWLR 481
Rice and Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363
Vlug & Poulos (1997) FLC 92-778

APPELLANT:

MR MAWBY

RESPONDENT:

MS MAWBY

APPEAL NUMBER:

2008

FILE NUMBER:

TVM

3107

2001

DATE DELIVERED:

23 December 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick J

HEARING DATE:

11 September 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

2 April 2008

LOWER COURT MNC:

[2008] FMCAfam 304

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr G Burridge

SOLICITOR FOR THE RESPONDENT:

Mr S

Orders

That the appeal be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Mawby & Mawby is approved pursuant to s 121(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 47 L of 2008
File Number: TVM 3107 of 2001

MR MAWBY

Appellant

And

MS MAWBY

Respondent

REASONS FOR JUDGMENT

Since at least 2002, Mr and Ms Mawby have frequently litigated issues concerning the parenting arrangements for their child, B, born in 2000. The father is aggrieved by a great many things that have happened in the litigation in courts exercising jurisdiction under the Family Law legislation, but also in criminal proceedings against him. He seeks to raise many of those complaints now, though the proceeding with which these reasons deal is his appeal against orders made by Federal Magistrate Coker on 2 April 2008. Those orders firstly dismissed several applications by the father relating to the child, on the basis that they were frivolous or vexatious and secondly, enjoined the father from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) in relation to the parenting of the child, without the leave of a Judge, Federal Magistrate or Judicial Registrar.
The father, who is without legal representation, has drawn his own Notice of Appeal and his initial Summary of Argument, and has made oral submissions. Despite explanation by me of the available avenues of challenge to orders of the nature of those appealed, during the oral hearing the father did not precisely identify any error of law or fact on the part of the Federal Magistrate, though in his material he broadly asserted both.
Some of the assertions as to error of fact relied on material (not necessarily established as existing) that was not before the Federal Magistrate. Initially, there was no attempt to put further evidence before me. No assertion of error identified a particular factual finding in the Federal Magistrate’s reasons and contrary evidence, or an absence of evidence, that might have demonstrated the finding was wrong.
As to assertions of legal error, the only argument of any moment was the father’s complaint that, in concluding that the father’s then pending applications were vexatious, the learned Magistrate paid insufficient regard to the best interests of the child and thus, or otherwise, failed “to comply with the measure of Rice and Asplund”. There was no other complaint of error of law that was coherent.
The mother, represented by Mr Burridge of counsel, supplied a summary of argument of just over four pages, but not until late on the day before the hearing. However, after listening to the father, I allowed Mr Burridge to rely on the summary, which essentially recognised the assertion of legal error as outlined above as “The heart of the Appeal” and questioned the validity of most other grounds.
At the completion of the oral hearing of the appeal, on 11 September 2008, I nominated 10.00am the following day for the delivery of judgment. However, on that next day the father asked for an opportunity to reply to Mr Burridge’s written summary and for that purpose to seek legal advice. I granted him that opportunity.
The direction then made in so far as it related to the father, was that he:
2.File and serve within 21 days of the date hereof such written submissions as he wishes to make in reply to the summary of argument filed on behalf of the respondent.
On 3 October 2008, a document entitled “Submission on behalf of the father” was filed. On its face it was “Prepared by Mr [Mawby] with the assistance of Mrs [P] (BSoc.SC). The introductory words described the submission as “…in support of the father’s appeal against FM Coker’s decision…”. Thus, on its face the document is not in reply at all and this conclusion is reinforced by its contents which seek to raise arguments going beyond the grounds of appeal, certainly beyond the arguments identified by the father orally. In addition, the document referred to various annexures, including one described as annexure A being “…an affidavit from Mrs [P]…”.
Counsel for the mother indicated that he did not wish to avail himself of an opportunity, also supplied by the directions I made on 12 September 2008, to make any further submissions.
In my view, I ought not receive the further submissions, except in so far as they amount to reply. However, in case I am wrong in this treatment of the document forwarded on 3 October 2008, I intend to deal with its content, but after I have dealt with the arguments as presented up to the conclusion of the oral hearing of the appeal.
It seems that the Appeals Registrar rejected annexures to the father’s further submissions, and that as a consequence the father filed an application for leave to adduce further evidence. I will also discuss that application later.
Before returning to the one argument identified earlier, I set out some context in which Coker FM addressed the particular issue before him, an outline of his reasons for the orders made and further clarification of the position taken by the father at the oral hearing of the appeal.
On 16 January 2003, Coker FM had made parenting orders, following a contested hearing in 2002. He ordered that the child live with the mother, that the mother have sole responsibility for decision-making in relation to the child’s long term welfare and development, that the father have contact with the child, depending on where the father was residing, each alternate weekend if the father was living within 150 kilometres of the mother’s residence, and during school holidays. Different provisions were made if the father resided outside the proximity referred to.
In August 2006, Coleman J heard proceedings instituted by the mother in the Family Court of Australia for an order that she be permitted to remove the child from the jurisdiction and take him to Russia for a visit (the mother being a Russian national by birth, though by then with permanent residency status in Australia) and for ancillary orders. By a cross-application, the father sought that the child primarily live with him in the Philippines. Coleman J dismissed the father’s application and in respect of the mother’s application, permitted her to take the child to Russia for a period of two months. His Honour also made ancillary orders and altered the terms of the alternate contact which the father was to have, if living more than 150 kilometres from the residence of the mother.
By applications filed on 11 January 2007, for both final and interim orders, the father sought a stay in respect to the mother:
…being allowed by Court order to take [the child] to Russia until all proceedings covering the matter of her perverting the course of justice are satisfied, and further appeals involving the low flying case have been heard.
[The reference to “the low flying case” related to a prosecution of the father for flying an aeroplane over or near the mother’s residence.]
An order be made [the child] is not to travel to Russia until sometime after Spring in that Country.
It was in her response to that application, filed in April 2007, that the mother sought dismissal of the father’s applications, both interim and final, on the basis that they were vexatious, ill-founded and in relation to the first order sought, related to a matter in respect of which the court had no jurisdiction. She also, in her response, sought an order preventing the father from instituting further proceedings without leave.
As Coker FM described in his reasons for judgment, within a few days of the mother’s response, the father filed another application for final orders and another application in a case. These further applications had been prepared by solicitors on his behalf and sought the following orders:
1.That Clause 4(a) of the Orders made by Federal Magistrate Coker on 16 January 2003 [the order providing for the father’s contact if living within 150 kms of the mother’s residence] and amended on 8 September 2003 and further, ratified by Justice Coleman on 15 September 2006, be discharged.
2.That whilst the father resides within 150kms of the Mother’s residence, the Father shall spend time with the child [B] born [in] 2000 every second week on a shared care arrangement.
3.Handovers shall take place at the front of the [X] Police Station at 3:00pm on each Friday commencing on Friday 20 April 2007, with the Mother delivering [B] to the Father on that date.
4.The Father shall notify the Mother two weeks in advance as to when he will be residing within 150kms of the Mother’s residence and wishing to spend time with [B] in accordance with these Orders.
Thus, the hearing that took place before Coker FM on 8 February 2008, resulting in the orders appealed, was in respect of the mother’s application (in her Response) for orders pursuant to s 118 of the Act that the applications of the father filed 11 January 2007 and in April 2007 be dismissed as frivolous or vexatious and that the father be restrained from bringing any further proceedings against the mother, without leave of the court.
In his reasons, Coker FM set out the term of s 118 of the Act as follows:
The Court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious –
(a)dismiss the proceedings;
(b)make such order as to costs as the court considers just; and
(c)if the court considers appropriate, on the application of a party to the proceedings – order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order,
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
Coker FM reminded himself of the serious nature of an order limiting a party’s capacity to institute proceedings. He referred himself to comments made by the Full Court of the Family Court in Vlug & Poulos (1997) FLC 92-778 about the matters likely to fall for consideration on such an application. He next referred to the decision of Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 and quoted that judge’s formulation of the principles applicable to applications that a litigant be declared vexatious, as follows (at paragraph 11):
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes and not for the purpose of having the Court adjudicate on the issues to which they give rise.
3. They are also to be properly regarded as vexatious if irrespective of the motive of the litigant they are so obviously untenable or manifestly groundless as to be utterly hopeless.
4. In order to fall within the terms of the rules (a) proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement); (b) the proceedings must have been habitually and persistently instituted by the litigant.
Whether this last requirement is necessary when applying s 118 of the Act was not raised before us. Save for his argument involving the principles derived from Rice and Asplund (1979) FLC 90-725, the father has not argued that in respect of the mother’s application before him, Coker FM identified or applied the law incorrectly.
Returning to the Federal Magistrate’s reasons, after setting out the applicable principles, Coker FM posed for himself the question:
11.…The question here is whether there is a persistent institution of proceedings by the husband as well as consideration of the motive for their institution.
The Federal Magistrate then recounted a history of proceedings, leading up to the applications by the father, dismissal of which the mother sought. He said:
19.… The father's allegations in relation to this further Application are considerable but they are almost completely without base. They appear to have a real element of control still sought to be made over the mother. The father, for example, seeks equal shared parental responsibility and the opportunity to spend time with the child, at times suitable to him. There is no consideration whatsoever of issues in relation to the mother having some settled arrangements with regard to the care of the child.
The following discussion of the father’s allegations in Coker FM’s reasons, has particular relevance to the father’s assertions in this appeal, that Coker FM paid insufficient regard to the child’s best interests:
20.The father says that there should be a re-opening because the mother suffers from Munchausen's Syndrome. There is not a skerrick of evidence in relation to that. …
21.The father alleges that the mother has mental problems. When asked what evidence there was of that, he indicated that it arose from his own observations and from the fact that the mother was, according to the father, seeing a psychologist in [X]. Again, there is not a skerrick of evidence in relation to such matters.
…
23.The father says that he will be living 75 per cent of the time in the Philippines. He is unable to provide any specific indication of when he would be in Australia and living in [X] but requires the mother to be present for the purposes of him having time with the child.
24.The father continuously raises allegations in respect of the mother's relationship with [a sect] and the fact that the father says that that is a cult and that the operator of that, Mr [Z], has an undue hold over the mother. Such matters were of course the subject of lengthy hearing in relation to proceedings, both before this Court and as I understand the matter, before the Family Court when Coleman J heard the matter.
25.They are matters which have been repeatedly raised by the father, they are matters which are been repeatedly dealt with by the Court and they are matters upon which the husband makes assertions without a skerrick of evidence. It is contended on the part of the father that he, as he said in his address to me:
Knew what's going on with this son
but was unable to provide any clarification whatsoever in that regard. The father said that he did not present well in Court and that that was one of the reasons that the matter should be re-opened. That of course is not a basis upon which there could be any reconsideration of the matter.
26.Most interestingly in relation to these proceedings, the original application filed by the father sought orders that the mother not be allowed to remove the child to Russia or one would assume to any other place until all proceedings covering the matter of her,
Perverting the course of justice
were satisfied and that further appeals involving the low flying case have been heard. The interesting aspects of that are two-fold. Firstly, the matter has on appeal gone all the way to the High Court where special leave has been sought and refused. Secondly, there is no evidence whatsoever of any proceedings in relation to perverting the course of justice.
27.The father's response when queried in relation to that particular aspect of the matter was that there was new evidence but none presented. It had been researched and that all evidence, when considered, would lead to the conviction being overturned. The indication was given that the matter was with the Attorney General. Again, there was not a skerrick of evidence.
28.The father suggested, incredibly and most maliciously and hurtfully, that the mother had,
Screwed the Court interpreter.
The father indicated that he had evidence of that on tape from the mother's own admission. No tape has been produced. No transcript has been provided. The father says that all other witnesses in relation to proceedings with regard to the conviction for low flying have given statements as to why they lied. Not a skerrick of evidence has been produced in that regard.
29.The best that the father could indicate in relation to the matter was that the statements were with his solicitor in Sydney, but no information was provided in relation to that, and that if the matter presently with the attorney general was unsuccessful, then there would be a petition to the governor in counsel, seeking a pardon.
30.Finally and most concerning of all is the suggestion of there being some form of sexual relationship between the mother and her solicitor, Mr [S]. The father was asked by me, what relevance in any way there could be in respect of that particular matter, but more specifically what evidence there was in relation to such matters. The father says that he knew that there was a relationship and that he had evidence. He said that he had prepared subpoenas in relation to the proceedings. Again, there is not a skerrick of evidence as to the position in relation to the matter.
31.The father, it would appear, has used a scattergun approach. He suggests that the mother is involved in criminality. He suggests that the mother suffers from Munchausen's Syndrome. He suggests that the mother has mental illness problems. He suggests that the mother is involved in a cult and that the cult is poisoning the child against him. He suggests that the mother is of low morals and that she, for her own purposes, had a sexual relationship with the interpreter, apparently called in relation to previous proceedings, and a sexual relationship with her solicitor.
32.Of course, as I have repeatedly indicated, there is not a skerrick of evidence in relation to those matters. I am mindful of the various principles for determining whether a matter or a party to proceedings is vexatious, as set out in the Attorney General v Wentworth (supra). The first of those considerations was whether the proceedings are instituted with the intention of annoying or embarrassing the person against whom they are brought. I cannot imagine a clearer example of manipulation and control than that which is sought to be instigated by the father in these proceedings.
…
35.The father has had six days of hearings. The father has had two trials. The father has had numerous other incidental appearances before the Court, all of which have, almost in their entirety, been unsuccessful. The father has continued to humiliate, harass and denigrate the mother, both on a personal level and through the continued institution of proceedings and suggested involvement of other persons. There is no evidence whatsoever which would give rise to any finding other than that the husband has set out specifically to act in a malicious and hurtful way. He has set out to embarrass the mother. He has set out to humiliate her, and of course most significantly, to affect her in relation to her capacity to parent the child.

I return to the father’s argument that the learned Magistrate failed to “comply with the measure of Rice and Asplund”. This is a reference to the decision by the Full Court of the Family Court of Australia in In the Marriage of Rice and Asplund (1979) FLC 90-725. I have previously described the rule in SPS and PLS (2008) FLC 93-363 as “where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance”.
The application before Coker FM – that of the mother – was not an application for parenting orders pursuant to Part VIII of the Act. Thus, it was not an application to which the principles set out in Rice and Asplund (supra) applied.
But that does not mean that the welfare of the child did not properly and, in fact, feature in the Federal Magistrate’s decision. As seen from the quoted passages of Coker FM’s reasons for judgment, the very examination of the question of motivation for, and substance of, the father’s applications, for the purpose of determining whether they were frivolous or vexatious, focused on whether any real concern for the child’s welfare arose on the father’s material. Resisting a claim that his applications were frivolous or vexatious was a less demanding position than the father would have been in if the principles in Rice and Asplund (supra) applied. Yet, on Coker FM’s findings, the father’s applications failed to achieve even the lesser standard.
For the reasons given, there is no merit in the father’s argument that Coker FM misapplied the rule in Rice and Asplund (supra).

The written submissions on behalf of the father

As stated, I comment on these submissions only in case I should be found wrong in rejecting them.
At the outset of the submissions the following points were identified:
1.An apprehension of bias/actual bias
2.Are the Applications referred to Frivolous or Vexatious?
3.Breach of LIP Guidelines: Federal Magistrate’s failure to ensure LIP guideline [sic] were met
4.FM Coker’s “not a skerrick” of evidence findings
5.Conflict between S118 [sic] of the Family Law Act or R.13.11 of the Federal Magistrates Court of Australia Rules: Which take precedence?
6.Other considerations for this Appeal
7.Conclusion
I deal with them in turn.

An apprehension of bias/actual bias

The first argument here is that such an apprehension derives from the fact that in the hearing of parenting issues in 2002, Coker FM made findings critical of the father and that begs the question in relation to the hearing leading to the orders under appeal “…whether the decisions made by his Honour at that stage were influenced by his dislike of the father’s manner towards the mother…”.
In a parenting case, a judge is obliged to consider parenting capacity, including the attitudes of one parent to the other, often among many other factors, during the course of which assessments are made about attributes of parents. That such findings are made does not of itself mean that that judge has a bias or prejudice against or towards a parent in respect of whom findings have been made.
Secondly, the father argues that the fact that in the 2002 case, Coker FM ordered that the mother have sole responsibility for decision-making in relation to the child’s long term care, welfare and development was indicative of the Federal Magistrate’s bias against the father. I reject that proposition for the reason just stated.
In arguing that the order in the mother’s favour for sole parenting responsibility could not be justified except as a result of bias or prejudice, the submissions themselves point out that some findings were favourable to the father. What the submissions seem to overlook is the question that, if a finding critical of a parent indicates bias, what conclusion is to be drawn when positive findings are also made?
Thirdly, the father compared a paragraph of Coker FM’s judgment in respect of the orders under appeal with a paragraph in his 2003 judgment. In the earlier judgment he had said of a relationship between the child and a Ms E, that she appeared “to have taken on with [B] a grandmotherly role. She is obviously a significant person in the child’s life.” Yet, in his later reasons he said:
17.Incredibly an order was also sought with regard to Ms [E]. Ms [E] had previously given evidence in support of the mother in the first hearing but by the time the second proceedings being under way, there was an application that Ms [E] should receive "grandmother status" and that if residency was to remain with the mother then there should be an order made that the child [B] be given regular access or contact with the “grandmother”.
The father submitted:
There can be no clearer illustration of bias than giving one opinion concerning the same issue when presented by the mother in the first instance and a different opinion when the same issue was presented by the father in the second.
The point, I think, is not one of which much can be made. Whilst obviously Coker FM thought the application for the order in respect of Ms E had something of “incredibility” about it, he does not say what that was. The passage occurs in the recount of a chronology of proceedings. I do not say that it is unimportant, but do not think any significance that it had in the mind of the learned Magistrate is clear enough to indicate bias or prejudice.
The balance of the submissions under this heading rely upon the soundness of other submissions made in respect of Coker FM’s conclusions that a number of assertions made by the father were not supported even by “a skerrick of evidence”. These assertions will be discussed later.

Are the applications referred to frivolous or vexatious?

The argument put forward in respect of the first application filed by the father which Coker FM found to be frivolous and/or vexatious was that:
…to describe the father’s claims to be vexatious would mean anyone being the subject of child abuse for example, could avoid exposure by claiming the proceedings were vexatious. His concern about the wellbeing of his son is evident. …
These arguments are not directed to the findings of the Federal Magistrate earlier set out, paragraphs 26 and 27 in particular. The learned Magistrate’s observation was that there was no evidence in relation to proceedings in relation to perverting the course of justice. This is not shown to be incorrect by arguments that steps were being taken by the father to obtain a pardon in respect of his conviction.

Federal Magistrate’s failure to ensure LIP guidelines were met

The main complaint here is that the father did not appreciate that he would not have a chance at a trial to prove certain assertions. I reject this submission. The transcript discloses:
FEDERAL MAGISTRATE: All right, I appreciate that. The issue today as I’m sure you’re aware Mr [Mawby], is the application by [Ms Mawby] for an order pursuant to the provisions of section 118 of the Family Law Act, which is in relation to whether you should be declared a frivolous or vexatious litigant.
And is contended that if that is found to be the case then all proceedings before the Court should be dismissed. And obviously you wish to be heard in relation to that and then depending upon the outcome, I’ll be making orders with regard to the listing of the matter for a hearing in relation to your proceedings with regard to the child.
MR [MAWBY]: Yes, your Honour, I’m aware of that but what I don’t understand is how that’s being heard before the matters that I’ve brought before the Court, first.
FEDERAL MAGISTRATE: Well, I assume no doubt Ms [D] will elaborate upon that particular aspect of the matter. But as I understand it the allegation or the suggestions is: that the proceedings are without any merit; that they are frivolous; that they are vexatious; that they are malicious or whatever other adjective you might wish to use in relation to the matter.
And if the Court was satisfied that that was the case, then the appropriate course would be for all applications to be dismissed and not to go through the process of the further hearing. But certainly once I hear from Ms [D] in relation to the matters, I can of course hear from you in relation to any counter proposal and any suggestion as to what you say is the appropriate course to follow, before I would make any decision in respect of the matter. …

FM Coker’s “not a skerrick” of evidence findings

As the submissions in support of the attack on this aspect of the Federal Magistrate’s approach point out, in response to questions about whether he had any evidence in support of various assertions, on several occasions the father indicated that he would put evidence before the court at a later date. For example, he indicated he would subpoena a Dr T or obtain an affidavit from him about telling the father that the mother had or might have Munchausen’s Syndrome. Another example is that the father indicated that he possessed a tape recording from a woman to whom the mother apologised for having “sex” in her house with the court interpreter who interpreted for the mother when she gave evidence in the District Court of Queensland in relation to the charges arising out of the operation by the father of an aircraft. The woman is the daughter of Ms E, earlier referred to.
While a court ought be careful, when considering what support there is for an application for parenting orders to ensure that the applicant for the parenting orders has been given a proper opportunity to put forward evidence in support of it, once that opportunity has been afforded, dismissal of an application as frivolous might be appropriate notwithstanding that a person claims to be able to produce further evidence.
Here, the father had filed two applications and material in support of those applications. The application of the mother for the dismissal of the proceedings had been made many months beforehand. Coker FM was entitled to scrutinise the claims of the father in relation to evidence that he said he could produce and weigh up their seriousness and likely relevance to the applications the father wished to prosecute.

Conflict between S118 of the Family Law Act or R.13.11 of the Federal Magistrates Court of Australia Rules: Which take precedence?

The decision of Coker FM is clearly, in the light of the terms of the orders made, one of an exercise of power under s 118 of the Act. In the circumstances, I see no need to address the arguments put under this heading.

Other considerations for this appeal

In his reasons, FM Coker said:
10.What needs to be considered in such an application are a considerable number of matters. I am mindful particularly of the comments made by the Full Court in Vlug & Poulos [1997] FCA 92-778. In that case a history had developed similar to the proceedings here, where there had been proceedings, appeals, further appeals as in this case seeking special leave to appeal to the High Court, all of which was refused and then further proceedings. The Court there commented upon the manner in which orders in relation to a declaration that one party or the other is vexatious.
The father argues that Coker FM was mistaken because there were no appeals in family law proceedings to the High Court. The appeal in relation to the conviction was separate from the proceedings under family law. The father argues that Coker FM should have kept the two lines of proceedings separate. I reject this argument, in circumstances where the father seeks the amendment of a family law order pending the result of further steps he wishes to take in relation to the conviction arising out of the operation of an aircraft.

Conclusion (to the written submissions for the father)

Under this heading the complaint is made that the orders will effectively prevent the father from easily accessing the judicial process in his attempts to protect his son from harm. The simple answer is that, unless error is shown in the learned Magistrate’s reasons for the orders he made, then the requirement that the father seek leave before instituting proceedings of the type described, was an appropriate exercise of the power.

The application for leave to adduce further evidence

The further evidence was described as an affidavit from Mrs P, annexing a copy of a video depicting activities during seminars conducted by the sect, and correspondence between Mrs P and an “Arch Priest), concerning the sect; a statutory declaration from Ms E identifying certain people in the video; an affidavit from Ms E “detailing a very recent conversation with the parties’ child in which he describes the mother masturbating whilst frequently sharing the bath with him”; a statutory declaration by the father identifying the appearance of the mother and her son, S in the video excerpt; an affidavit from the father’s wife detailing her concern about the child and his seemingly adult sexual behaviour towards her; and a letter from Sydney solicitors Spence Ferrier updating the progress of the father’s petition to seek a pardon in the matter of his low flying conviction.
I reject the application to adduce further evidence. It comes most belatedly. It is a mix of material, some of which appears to long predate the hearing before Coker FM, and others of which relates to matters said to arise a day after I was to deliver judgment. The material is likely to be highly contentious. I do not say that the material could not raise matters of significance relating to the child’s welfare but the father is not prevented from placing such evidence as he has before a court on an application for leave to institute proceedings for parenting orders. That is the proper venue for such matters, not as a very belated attempt to support an appeal, the only possible ground in which has no merit.

Conclusion

The father has failed to demonstrate any appellable error on the part of Coker FM in making the orders of 2 April 2008. Accordingly, the appeal should be dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate:

Date: 23 December 2008