McMillan & Kato

[2007] FamCA 663

FAMILY COURT OF AUSTRALIA

MCMILLAN & KATO [2007] FamCA 663

FAMILY LAW – APPEAL FROM DECISION OF FAMILY COURT JUDGE – Failure to grant adjournment – Procedural fairness – Case management – Appeal allowed.

Family Law Act 1975 (Cth)

Federal Proceedings (Costs) Act 1981

Re: F Litigants in Person Guidelines (2001) FLC 93-072

APPELLANT: MCMILLAN

RESPONDENT: KATO

FILE NUMBER: TVF 426 of 1995

APPEAL NUMBER: NA 67 of 2006

DATE OF ORDERS:

DATE OF PUBLICATION OF REASONS FOR ORDERS:

16 May 2007

5 July 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Finn, May, Boland JJ

HEARING DATE: 16 May 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 4 August 2006

LOWER COURT MNC:

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Appellant appeared in person

SOLICITOR FOR THE RESPONDENT: No appearance for the respondent

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as McMillan and Kato.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 67 of 2006
File Number: TVF 426 of 1995

MCMILLAN

Appellant

And

KATO

Respondent

REASONS FOR JUDGMENT

1. On 16 May 2007 we made orders allowing the appeal of the father filed 31 August 2006 from the orders made by Monteith J on 4 August 2006. These are the reasons for the orders made, which were as follows:

   1.That the appeal against the orders made by Justice Monteith on 4 August 2006 be allowed.

   2.That the orders made by Justice Monteith made on 4 August 2006 be set aside.

   3.That the father’s applications dated 28 March 2001, 22 July 2002 and 31 July 2006 be listed for directions before the Honourable Justice Carmody on Monday 9 July 2007 at 9:30am (if necessary by video-link from Brisbane to Cairns).

   4.That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.

   5.That the Regional Appeal Registrar provide a copy of these orders to the father, to the solicitor for the mother and to the Principal Registrar of the Federal Magistrates Court.

2. The orders made by Monteith J on 4 August 2006 were as follows:

   1.The Application for Final Orders filed by the Applicant on 28 March 2001 be dismissed.

   2.The Application for Contravention filed by the Applicant on 22 July 2002 be transferred to the Federal Magistrates Court, Cairns, on a date to be fixed.

3. At the hearing of the appeal there was no appearance for the respondent. In a letter received by the Appeals Registrar from the respondent’s solicitors dated 14 May 2007, it was advised that she did “not propose to participate in the Appeal Hearing and will simply abide by the order of the court”.

History

1. On 28 March 2001 the appellant filed an application and asked for various orders to allow him what was then described as contact to his child, Master McMillan, born … November 1992. On 12 July 2001 Nicholson CJ made interim orders which provided for contact.

2. Included in the arrangements for contact to the child pursuant to those interim orders made on 12 July 2001 was the collection and return point being the mother’s residence. Apparently this remains a significant difficulty between the parties.

3. On 22 July 2002 the appellant father filed a Contravention Application alleging that there had been a failure by the mother to provide the child for contact on 28 March 2002 for the Easter holidays and 12 July 2002 for the weekend.

4. On 25 October 2004, May J ordered:

   “1.The Father file an updated Form 1 application within 7 days of today.

   2.The matter be listed before a Deputy Registrar on 19 January 2005 at 11.15am for the purposes of issuing a Trial Notice.

   3.The solicitors for the [mother] inform the Court and the Father 2 days after receiving the Form 1 application if it is intended to proceed with the application for Security for Costs.” (Original emphasis)

5. The mother’s solicitors filed a Notice of Discontinuance on 1 February 2005 in relation to her application for Security for Costs of the father’s applications. We discuss the father’s complaint about the filing of the Notice of Discontinuance later in our reasons.

6. On 29 June 2006 a Deputy Registrar made procedural orders in Chambers setting the father’s Application for Final Orders filed 28 March 2001 down for hearing at 10.00am on 4 August 2006 in Cairns and made various orders for further material to be filed. That order was made in the father’s absence and without considering the father’s request for a replacement Child Representative (now known as an Independent Children’s Lawyer) to be appointed in the matter, or the commissioning of a Family Report.

7. The appellant father was in Japan at the time the Deputy Registrar’s orders were made having left Australia on 29 June 2006 unaware that the directions hearing was to take place. The father did not return to Cairns until 11 July 2006. The father was unaware until his return of the date for trial on 4 August 2006 and the contents of the orders made by Registrar Victoire, which included time provided for the submission of relevant documents. The affidavits of the father were to be filed by 28 July 2006.

8. After the matter was set down for hearing by the Deputy Registrar the appellant filed an Application in a Case on 31 July 2006 asking for the following orders:

   1.That the matter be adjourned to the registry until further notice.

   2.That a Replacement Children’s Representative be appointed.

   3.That an Independent Child / Family Report be ordered.

   4.That a Directions Hearing / Conference be ordered.

   5.That the Mother Pay the Costs and incidentals to this application.

9. In his affidavit in support the appellant father said of the directions made by the Deputy Registrar and his circumstances at that time:

   2.In regard to the Order made on 29/June/2006 by Deputy Registrar Victoire in Cairns, (see attachment A) I must say that I am astounded that he managed to make an order that directs the parties to proceed directly to a Final Orders Hearing given the stage of Readiness for Trial that this matter is at.

   3.The order was made prematurely and without any proper consultation between the parties and I hereby request that the Order be stayed and the matter be adjourned until further notice for the following reasons.

   4.There are outstanding issues in this matter and I particularly brought those issues to the attention of the Court when I attended in February 2006 this year and spoke to [the Case Coordinator] about them whilst making a request for a Directions conference.

   5.My travel documentation (see attachment B) confirms that I flew out of Cairns on the 29^th/June/2006 and have just returned to Cairns on 11/July/06. So therefore, the time frame set for compliance of much of Registrar Victoire’s orders had already elapsed by the time I returned to Cairns.

   6.When I flew out, I was unaware of any application made to the Court and to be heard on 29^th of June 2006, however, I can advise that earlier this year on about 20^th-February, 4-months ago, I contacted the Family Court in Cairns and spoke to [the Case Coordinator] in the Registry about the unresolved issues that had been holding up progress of my family law matters for quite some time now.

   7.Of particular concern, was my application for Contraventions of Child Orders hearing that was still pending and an Order of the Full Court, of which has not yet been complied with by the Mother nor withdrawn from the Full Court with due process. I had always intended to bring that back to the Full Court for re-direction and that was part of my query to [the Case Coordinator] at the Court on 20^th of February.

   8.As well as all that, and more importantly, a replacement child representative needs to be appointed to replace the previous one Mr Terry Newman who resigned his post some-time ago. I received a notice from Mr Newman discontinuing his representation and I’ve received no Notice of replacement to date. I originally made application to the Court and was granted an independent Child Representative for my son in these matters and he has had 3 – in succession so far, so I can’t see why it shouldn’t be a simple matter of appointing a replacement for my sons former legal Representative who resigned his post of his own accord.

   9.        Also an updated Child/Family Report is required now that the child is 14 years old. The last Child/Family Report was compiled when he was 4-years old, some 10 years ago and a current one is Due and warranted.

   ….

   11.… the recent Family Law Act amendments of July 2006 have Now [sic] opened up new avenues of options that need to be further explored before Final Orders can be made in the Best interest of all parties and in particular, in the best interests of the Child.

   …

   13.I left some supporting documentation with [the Case Coordinator] and I was told by her that I seem to be “on the right track” and she’ll “Run it by the Registrar” and would e-mail me back with an answer to my queries. I was flying to Japan to spend some time with my 2-children who reside there just after that and it was the last I heard of the matter until the other week when I suddenly received an e-mail from the Court with an attached Directions Order.

   14.I attended the Cairns Registry as soon as I could after I returned to Cairns on (12^th July) in an attempt to find out who made the application for directions from the Court and if it was in answer to my queries of the Court. Why I was not contacted and notified or asked for any input into the matters to be considered, I don’t know. After all I was the one who approached the Court with regard to having the matter moved along.

   15.I was unable to ascertain from the Cairns Court staff any details of why the order was suddenly made listing the matter for final hearing. I had outlined to the Court in my conversation with [the Case Coordinator],  that this matter could not advance to a Final Hearing for all of these aforementioned reasons.

   16.Also I ask this matter be adjourned so I can raise in an application to the Full Court, the issue of the Mother’s non-compliance of the current Full Court Orders.

10. The solicitor for the respondent was aware the father was asking for an adjournment and the other orders sought not just because of the application but also from correspondence between them which is included in the appeal book.

11. The matter came before Monteith J on 4 August 2006 at the Family Court in Cairns with the appellant attending by video link from the Family Court in Brisbane. As already recorded, Monteith J dismissed the appellant father’s Application for Final Orders and transferred the Contravention Application to the Federal Magistrates Court at Cairns. Monteith J did not deliver reasons for judgment in making the orders on 4 August 2006. The Full Court has been provided with the transcript of the hearing.

12. The matter came before Coker FM who did not hear the contravention matter pending the hearing of the appeal to the Full Court.

Grounds of Appeal

1. In the Notice of Appeal filed on 31 August 2006 the grounds of appeal were recorded as follows:

   1.Denial of natural justice.

   2.        Denial of due process and procedure.

2. In the appellant’s Summary of Argument filed on 16 April 2007 the grounds of appeal were recorded as follows:

   1.The Appellant was denied procedural fairness and/or natural justice.

   2.The Appellant was denied a hearing of the Applications before the Court.

   3.The Trial Judge pre-judged the case, concluding that the appellant had failed to comply with orders made on 29 June 2006 by Registrar Victoire.

   4.The Trial Judge dismissed The Final Orders Application where he should have proceeded to hear the matter as an “unamended” Application.

3. The appellant appealed against both orders made by Monteith J on 4 August 2006, namely the order dismissing the application for final orders, and the order requiring that his application for contravention of orders be returned to the Federal Magistrates Court for hearing.

Proceedings before Monteith J

1. It was apparent from the transcript that the trial Judge was aware of the application filed 31 July 2006 and the contents of the supporting affidavit.

2. Despite various attempts by the appellant, Monteith J dismissed his application filed 28 March 2001 “on the basis of a failure to comply with the procedural orders made by Registrar Victoire on 29 June 2006” (Trans p.5). His Honour also relied on Rule 11.02.2 and Practice Direction 3.7.

3. His Honour then said (at Trans p.6 line 11-15):

   “In relation to the contravention proceedings filed 22 July 2002, there now being no substantive proceedings in this Court, I propose to transfer them the Federal Magistrates Court for hearing. Do you want to make any application for costs, Mr Lago?”

4. Mr Lago did not ask for costs.

Conclusion

1. The appellant argued that the trial Judge erred in failing to hear the application filed on 31 July 2006. In addition he submitted that the matter should not have proceeded in the absence of a replacement Independent Children’s Lawyer and the absence of recommendations of a Family Report writer which required an adjournment. It was apparent from the transcript that the trial Judge failed to consider the issues raised by the father in his application and affidavit and also neglected to determine the father’s request for an adjournment.

2. The appellant also argued is his submissions that the trial Judge failed to explain procedural requirements (See Re: F Litigants in Person Guidelines (2001) FLC 93-072). It was clear that the Judge did not on this occasion provide any instructions to the appellant, who was acting for himself, despite the appellant’s efforts to gain an understanding of what was needed. While we understand the difficulties in dealing with litigants who are self-acting and the father’s failure to comply with Court orders we considered that the trial Judge had a duty to clarify the substance of the submissions made to the court and to properly consider the application.

3. We allowed the appeal against the order dismissing the application for final orders on the basis that in the circumstance of this case the trial Judge ought to have given consideration to the father’s applications and in failing to do so, wrongly dismissed the application without giving reasons.

4. We also allowed the appeal against the order in relation to the contravention application and set that order aside. The order had been made consequent upon there being no outstanding proceedings in the Family Court of Australia.

5. There was another difficulty in this matter which was raised by the appellant with us. He conceded that there was no connection between this issue and the appeal with which we have dealt.

6. There is a very long history of litigation in this matter which included orders made by Barry J on 19 August 2002 inter alia that the father pay security for costs in relation to the hearing of his application for contact. The father appealed from those orders and the appeal be allowed in part and orders made that the issue of security for costs was remitted for rehearing. Paragraph 47 of the judgment of the Full Court (Ellis, Holden, Young JJ) dated 21 July 2004 in relation to costs of the appeal was relevant to the matters raised by the father.

   “47.At the conclusion of the hearing of the appeal, we heard submissions in relation to the costs of the application and appeal. In the event that leave to appeal was granted and the appeal allowed, the father sought an order that the mother pay his costs of and incidental to the application and appeal. In that event, he did not seek a certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). However, in that event, both the mother and the Child’s Representative sought certificates under that Act.

   48.In our view, having regard to the provisions of s 117 of the Act, the circumstances do not justify the making of the order for costs as sought by the father. However, we are of the view that it is appropriate to grant to both the mother and the child representative a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act.”

7. It can be seen from these paragraphs that the father did ask for an order for costs which was not allowed and orders were made for certificates in favour of the mother and the Child Representative. Paragraph six of the order made on 21 July 2004 provided “That there be no order as to costs of an incidental to the appeal.” Paragraph seven provided for the cost certificates for the mother and the Child Representative.

8. It was not open to the father to ask that this Full Court deal with any issue related to costs of that appeal. The point made by him was that the mother, having filed a Notice of Discontinuance in the Cairns Registry in respect to her security application, deprived him of an opportunity to ask for costs. It was not apparent to us how the father could then ask this Full Court for costs the Full Court having determined that issue and he having brought no further application for any other costs incurred between the time of the determination of the appeal and prior to the Notice of Discontinuance being filed.

9. It seemed that the father was concerned that the Notice of Discontinuance was filed in the Registry at Cairns rather than in the Appeal Registry. It seemed to us that such a filing venue was appropriate in view of the fact that it was discontinuance of an application for security of costs which would otherwise have been heard before a single Judge the matter having been remitted by the Full Court.

10. In relation to the costs of the appeal related to this hearing and given the basis of the success of the appeal it was appropriate that the appellant be granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate:     

Date:              5 July 2007