McMillan & McMillan
[2008] FamCAFC 195
•25 November 2008
FAMILY COURT OF AUSTRALIA
| MCMILLAN & MCMILLAN | [2008] FamCAFC 195 |
| FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – Father filed initiating application in Federal Magistrates Court seeking various parenting and interim orders – Father appealed against the orders made by the Federal Magistrate after refusing to disqualify himself – Whether the Federal Magistrate wrongly refused to entertain an application by the father that he disqualify himself, because he wrongly thought that he had dismissed an application to disqualify himself on a previous occasion – Alternatively, whether the Federal Magistrate should have disqualified himself because what transpired between the Federal Magistrate and counsel for the mother during the father’s absence for part of an earlier hearing indicated bias and prejudgment – Whether the Federal Magistrate should not have entertained the father’s application for disqualification of the mother’s counsel because that issue had “resolved” itself as that counsel did not appear – Alternatively, whether the Federal Magistrate should have disqualified counsel because he had earlier acted in litigation against the father and because of what transpired at court in the father’s absence – Consideration of the Federal Magistrate’s exercise of discretion as to costs and whether the costs order made against the father should be set aside – Whether the Federal Magistrate had failed to appreciate that the real issue raised by previous applications was about time to be spent by the father with the children and was thus wrong to categorise them as vexatious – Appeal allowed FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – The mother’s application for summary dismissal of the father’s application for reopening of property matters and the question of further interim parenting orders came before the Federal Magistrate –The Federal Magistrate summarily dismissed the father’s application for reopening of property matters and made orders; discharging all previous parenting orders; providing that the children live with the mother and she have sole parental responsibility for them and that they spend time with the father; the appointment of an Independent Children’s Lawyer and adjourning the matter for mention – Father appealed – Whether the Federal Magistrate wrongly refused the father leave to file and rely on further affidavit material – Whether the Federal Magistrate should have allowed cross-examination of the mother – Whether the Federal Magistrate failed to consider the real basis of the father’s case, namely that the parties had by their actions after the consent orders were made, impliedly consented to those orders being set aside FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – Father filed initiating application in Federal Magistrates Court seeking various parenting and interim orders – Whether the Federal Magistrate was wrong in relying on the Family Report – Whether the Federal Magistrate should have permitted cross-examination of the Family Reporter and the mother – Appeal allowed FAMILY LAW - APPEAL – From decision of Federal Magistrate – Appeal allowed – Costs certificates under Federal Proceedings (Costs) Act 1981 granted to both parties and for the re-hearing of the matter |
| Family Law Act 1975 (Cth), s 79A Federal Proceedings (Costs) Act 1981(Cth) |
| In theMarriage of Sommerville (2000) FLC 93-042 |
| APPELLANT: | Mr MCMILLAN |
| RESPONDENT: | Ms MCMILLAN |
| APPEAL NUMBERS: | NA | 60 | L | of | 2008 |
| NA | 82 | of | 2008 |
| FILE NUMBER: | CSC | 462 | of | 2007 |
| DATE DELIVERED: | 25 November 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick J |
| HEARING DATE: | 30 October 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 9 May 2008 10 June 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 444 [2008] FMCAfam 675 [2008] FMCAfam 946 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr McMillan appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr G Page, SC |
| SOLICITOR FOR THE RESPONDENT: | The Law Office |
Orders
That the appeals be allowed.
That orders 1, 2 and 3 of the orders of the Federal Magistrates Court of Australia made 10 June 2008 (as amended 16 June 2008) be set aside.
That orders 1 to 4 and 10 to 12 inclusive of the orders of the Federal Magistrates Court of Australia made 1 September 2008 be set aside.
That the father’s applications for a restraint upon Mr Jacobs of counsel appearing for the mother in litigation between the father and the mother and for interim parenting orders AND the mother’s application for summary dismissal of the father’s application to set aside the consent orders of 5 October 2000 and for an order that the father remove a caveat and for release of the mother from an undertaking not to deal with certain real property, be remitted for re-hearing before a Federal Magistrate other than Coates FM.
That the Court grants to the appellant husband 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 husband in respect of the costs incurred by him in relation to the appeal.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 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 respondent wife in respect of the costs incurred by her in relation to the appeal.
That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.
IT IS NOTED that publication of this judgment under the pseudonym McMillan & McMillan 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 Numbers: NA60L of 2008 and NA82 of 2008
File Number: CSC462 of 2007
| Mr McMILLAN |
Appellant
And
| Ms McMILLAN |
Respondent
REASONS FOR JUDGMENT
Mr and Ms McMillan have two children, L born in December 1998 and K born in May 2004. On 5 October 2000, following a breakdown of their marriage, the parents obtained orders by consent relating to alteration of property interests and to the child, L. The order provided that the child reside with the mother and that the parents have joint responsibility for her care, welfare and development. There was no order in relation to contact between father and child. However, the father asserts that, though the parties had separated in September 1999 and the consent orders were made a year later, some contact continued between the parties and by May 2002 they had reconciled and resumed cohabitation. The father says that final separation occurred in October 2006.
On 16 January 2008, the father filed an initiating application in the Federal Magistrates Court in Cairns. He sought various parenting orders, in particular for a shared care arrangement. Among interim orders that he sought, was a restraint on removal of the children from Australia to Japan, the country of the mother’s birth. The father also sought that the consent order of 5 October 2000 “be vacated” and, as interim measures, that the mother be restrained from dealing with a particular property, in respect of which he sought a right of occupation.
From this point, applications and issues blossomed, as will be explained later, so far as is necessary. These reasons are in respect of the disposition of two appeals by the father, against two sets of orders made in respect of some of the issues.
The first orders appealed were made by Coates FM after he had refused to disqualify himself as the father sought on 10 June 2008 (amended on 16 June 2008). The Federal Magistrate:
·dismissed the father’s application that the counsel for the mother be “disqualified” from acting for her;
·ordered that the father pay the mother’s costs in the sum of $750.00;
·declared the father a vexatious litigant in relation to the then current proceedings and enjoined him from instituting further proceedings without leave of the court; and
·made directions, relating to an application by the mother for summary dismissal of the father’s application for reopening of property matters and in respect to interim children’s issues, including an order for the preparation of a family report.
The essential arguments of the father in relation to this first set of orders are:
1(a)that his Honour wrongly refused to entertain an application by the father that he disqualify himself, because he wrongly thought that he had dismissed an application to disqualify himself on 9 May 2008, or alternatively;
1(b)that his Honour should have disqualified himself because what had transpired between the Federal Magistrate and counsel for the mother during the father’s absence for part of a hearing on 6 March 2008, indicated bias and prejudgment.
2.that his Honour should not have entertained the father’s application for disqualification of the mother’s counsel because that issue had “resolved” itself, as that counsel did not appear or alternatively;
3.that his Honour should have disqualified counsel because he had earlier acted for a bank in litigation against the father and mother and because of what transpired at court in the father’s absence in March 2008;
4.that because of the errors relating to the substantial issue determined on 10 June 2008, the costs order should be set aside;
5.that his Honour had failed to appreciate that the real issue raised by previous applications was about time to be spent by the father with the children and was thus wrong to categorise those applications as vexatious.
The mother’s application for summary dismissal of the father’s application for reopening of property matters and the question of further interim parenting orders came before Coates FM on 5 August 2008. On 1 September 2008 the learned Magistrate summarily dismissed the father’s application for reopening of property matters and made orders; discharging all previous parenting orders; providing that the children live with the mother and she have sole parental responsibility for them and that they spend time with the father each alternate weekend from 2.00pm to 5.00pm on Saturday and from 11.00am to 2.00pm on Sunday; relating to counselling for the child L, the appointment of an Independent Children’s Lawyer and adjourning “the matter … for mention at 9.30am on 2 December 2008”.
The essential arguments of (or adopted by) the father in respect of these orders are:
In respect of the summary dismissal
(1)That his Honour wrongly refused the father leave to file and rely on further affidavit material (which the father now seeks to put before me as further evidence in the appeal).
(2)That his Honour should have allowed cross-examination of the mother.
(3)That his Honour failed to consider the real basis of the father’s case, in respect of the prior property orders, namely, that the parties had, by their actions after the consent orders were made, impliedly consented to those orders being set aside.
In respect of children’s issues:
(4)That his Honour should not have relied on the family report, as it was tainted.
(5)That his Honour should have permitted cross-examination of the family reporter and the mother.
In respect of all applications before the court on 5 August 2008:
(6)That his Honour should not have entertained them while an appeal was pending, against the 10 June 2008 orders in which appeal in particular his refusal to disqualify himself was challenged.
I deal firstly with the arguments that Coates FM should have disqualified himself. Irrespective of the outcome of that argument, I will deal with the other arguments as well, should any conclusion in favour of the first argument be wrong or, in the event that I reject the first argument, of necessity.
1(a) that his Honour wrongly refused to entertain an application by the father that he disqualify himself, because he wrongly thought that he had dismissed an application to disqualify himself on 9 May 2008, or alternatively;
1(b) that his Honour should have disqualified himself because what transpired between the Federal Magistrate and counsel for the mother during the father’s absence for part of a hearing on 6 March 2008 indicated bias and prejudgment.
The history of the litigation before Coates FM is pertinent to these arguments.
The father’s initiating application came before Coates FM on 4 February 2008. The father was then legally represented. He sought interim orders for equal shared care of the children and a restraint on the mother from selling a parcel of real estate. For the mother, Mr Jacobs of counsel indicated that, in accordance with prior notice, an adjournment was sought because the mother, who had remarried, was due to give birth to another child and had not prepared material.
Coates FM made an order that both children spend time with the father each Saturday from 9.00am to 4.00pm. It appears from what the solicitor for the father said to the Federal Magistrate when the matter returned before him on 6 March 2008, that the order for contact made 4 February 2008 was made in circumstances where the mother had raised allegations of domestic violence, but had consented to the father spending time with the children for the period ordered.
On 6 March 2008, Mrs Reaston, the solicitor for the father, informed the court that she had given a Notice of Ceasing to Act, but appeared out of a duty to the court and to her client. She further informed the court that the father wished to file an affidavit relating to the allegations of domestic violence and that the father sought orders allowing him to spend time with the children over the coming Easter break. As well, he sought occupation of the home which had been transferred to the mother pursuant to the consent orders. Mr Jacobs, for the mother, requested more time to prepare material because of the recent birth of a further child to the mother.
Mrs Reaston then raised the question of a restraint on the mother selling the property in relation to which orders were sought in the application for reopening the consent orders (which in discussion that day was identified as an application pursuant to s 79A of the Family Law Act 1975 (Cth)). Mr Jacobs indicated that he had no instructions from his client in respect of the matters raised that morning. After a considerable discussion about when various matters might be heard and the question of an address for service for the father, Mrs Reaston also pointed out that the father was seeking that counsel for the mother be disqualified, due to a conflict of interest. Mr Jacobs said:
As much as I wish to be respectful, your Honour, that’s utter nonsense. I appeared on behalf of the Commonwealth Bank some years ago in the proceedings brought by the bank against [Mr McMillan] to recover possession of the house, which is the subject of the consent orders, …, for failure of [Mr McMillan] to meet with his mortgage commitments.
When Mr Jacobs continued, the Federal Magistrate said:
You don’t have to say anything further because I think a conflict of interest is when you actually act for someone and then against them.
Mr McMillan said:
Well we were married at the time, your Honour. So it was a husband and wife and the subject matter of that application is the subject of these applications. Now if that order of 2000 is set aside then clearly she is a joint marital property of the property retrospectively dealt with and I’m pending an appeal, your Honour, I can assure you. Now Mr Jacobs will come against that in another month and he will have to pick between the Commonwealth Bank and – I’ll be asking the Civil Court that [Ms McMillan] –
Shortly after, Mr Jacobs said:
…[Ms McMillan] was never a party, a) to those proceedings and b) never a party to that mortgage.
Returning to discussion of when issues might be dealt with, the Federal Magistrate said:
The only thing that I am going to do in the week before Easter is to decide whether I restrain the mother from selling the house.
Mr Jacobs said that if that was the only issue he might be able to get instructions to consent, to which the Federal Magistrate responded that he didn’t think he could deal with any other issue and Mr Jacobs said that if the Federal Magistrate was prepared to stand the matter down for some minutes, he would seek instructions. Mrs Reaston then said the only other issue was the time with the children over Easter. The Federal Magistrate said:
No I’m not going to. There are too many other issues. I mean its one issue after another. When I came in here this morning, looking at perhaps what needs to be done with the children and a restraining order but then there are all these other issues coming up. [Mr McMillan], of course brings his application, his application will be heard. But there are so many complications in this application that I cannot devote the time in that week before Easter to giving him the hearing, which he deserves. He may well be right on many matters, I’ve got no idea but it seems to me that if I rush through all of that I’m going to make a mistake which will only cost the parties more when they go off to appeal. And it does, it costs the parties time and money and effort.
Shortly after, the following exchange occurred:
MR JACOBS: Can I ask your Honour if we were to obtain those instructions would be still be required to file an affidavit by the 17th?
FEDERAL MAGISTRATE: No, I’ll give you a fortnight because it seems to me I don’t need to have to rush through it.
MR JACOBS: Very well your Honour, I’ll get those instructions.
FEDERAL MAGISTRATE: I mean all that is going to take a good half-day or longer in determining whether there’s a conflict of interest and everything else. All right we’ll stand the matter down, just come back in and tell me.
MR JACOBS: Thank you your Honour.
Mrs Reaston then asked to be excused and was, and the matter was stood down at 10.09am.
When the matter was recalled at 11.32am the father did not reappear. The Federal Magistrate enquired as to whether Mr Jacobs knew anything of that fact. He did not. He did indicate that he had instructions to give an undertaking not to dispose of the subject property pending the resolution of the proceedings. He then said that he had had a glance at the father’s affidavit and that it would not be feasible to respond to it in the time that had been discussed. The Federal Magistrate said:
That’s OK, [Mr McMillan] was to stick around and he doesn’t seem to be interested despite the more than reasonable position of your client.
I observe at this stage that the cause of the father’s absence was not known. To the legally trained observer it might have been obvious that when the matter was stood down, it was not adjourned for the day. In respect of the lay litigant, the position may not have been that clear, particularly following various discussions about various issues and if and when they might be dealt with. The adjournment was for nearly an hour and a half. Alternatively, Mr McMillan’s non-appearance might have been due to misadventure or ill health. After Coates FM had expressed the view that the father did not seem to be interested, discussion continued as follows:
MR JACOBS: Your Honour I’ve had numerous dealings with [Mr McMillan] in respect to the previous proceedings which were very lengthy and involved and I think it ran for something, the proceedings from commencement to the end was more than a year. Attempting to serve [Mr McMillan] and to locate [Mr McMillan], which is why I was concerned in relation to the address for service for [Mr McMillan] in these proceedings.
FEDERAL MAGISTRATE: Well, he said in open Court where he’s at. What was it, [… Street]? That’s right, I heard him say that.
Mr Jacobs said:
MR JACOBS: Yes.
FEDERAL MAGISTRATE: And I told him that he has to fix that address up and he said that he would.
MR JACOBS: Yes, so as far as our position is concerned your Honour, in terms of filing and material and serving it upon [Mr McMillan], until such time as he does file an address for service it’d be difficult for us then to be sure that if any documents were in fact served at the address he’s nominated, it would be acceptable service.
FEDERAL MAGISTRATE: No, no, no, but can’t I rule what’s acceptable because he told me that’s where he resides and he said he would fix it.
MR JACOBS: If your Honour makes an Order that service would be - - -
FEDERAL MAGISTRATE: I’ll make a rule that you can serve him at [… Street].
MR JACOBS: Thank you, your Honour.
FEDERAL MAGISTRATE: In fact, I will put that into an Order.
MR JACOBS: As your Honour wishes. Does your Honour propose to make any orders in relation to [Mr McMillan’s] initiating application and any response that we may wish to file in respect of that application?
FEDERAL MAGISTRATE: No, you just file your response in the normal course of events. You just need some time don’t you?
MR JACOBS: That’s do your Honour, as I indicated I don’t believe we’ll be able to do that by the 17th because there’s issues he raises about statements he’s obtained from people in Japan. He’s obtained a statement ‑ ‑ ‑
FEDERAL MAGISTRATE: Just hearsay isn’t it?
MR JACOBS: Yes, it is.
FEDERAL MAGISTRATE: Just hearsay isn’t it?
MR JACOBS: It is hearsay but in this jurisdiction some weight can be given to statements in circumstance.
FEDERAL MAGISTRATE: No, no, he’d have to ask me to give that weight, and the safest thing is not to rely on hearsay evidence.
MR JACOBS: We would certainly wish to make our own enquiries about what’s being alleged against us and to respond to him. We don’t wish to leave anything unsaid.
FEDERAL MAGISTRATE: No, no, that’s fine. That’s fine. I leave that you have to take care of your clients’ interests on that basis, you asked for a month. He walked out of the Court knowing that it was to come back, knowing that I was going to set at date. I don’t see why that if he’s going to treat the Court like that then it’s only by, really, the fact that your client has been good enough to agree to something, at this stage I’ll keep the matter on foot.
MR JACOBS: As your Honour pleases.
FEDERAL MAGISTRATE: I’m not going to do it constantly if he is not going to prosecute his case. Simple as that, and I am making a note to that effect.
MR JACOBS: This will be an interesting case your Honour.
FEDERAL MAGISTRATE: Be interesting if it goes and doesn’t get it dismissed beforehand. I have just made a note that he walked out of Court before I gave an adjournment date. I was bending to assist him and he doesn’t seem to have realised the difficulties in hearing at least the short matter before the Easter break.
MR JACOBS: The other thing, I wish your Honour to make an Order is that we would ask for costs for today to be reserved because I came here on the understanding there was to be a mention. As a result of [Mr McMillan’s] application, which is filed today in the affidavit and the Orders which he was seeking, it’s taken much more time than it ought to have taken.
FEDERAL MAGISTRATE: Yes, I’ll reserve the costs. All right, how long do you want then?
MR JACOBS: 28 days your Honour to file affidavits in relation to the initial application filed by [Mr McMillan].
FEDERAL MAGISTRATE: All right, so you want to the 6 April, something like that?
MR JACOBS: Today being the 6 March, yes, your Honour.
FEDERAL MAGISTRATE: Yes, 6th is a Sunday so we will make it on a Monday - - -
MR JACOBS: 7 April, okay?
…
ORDERS DELIVERED
…
FEDERAL MAGISTRATE: So we don’t touch on the Easter issues.
MR JACOBS: That’s so, your Honour. Thank you, your Honour.
FEDERAL MAGISTRATE: Thank you.
MATTER ADJOURNED [11.41 AM]
In my view, the exchanges quoted give rise to considerable concern. Taken literally, Mr Jacobs’ early comments upon the “numerous dealings” with the father do not expressly say that Mr McMillan was difficult or unco-operative, though I think, particularly in light of the tone that develops, the remarks might reasonably imply criticism of the father.
The exchange makes it obvious that the learned Magistrate formed a view that the father had unreasonably absented himself from the continuation of the proceedings. Then, in the father’s absence the Federal Magistrate expressed various conclusions and views. I will return to further consider these observations later.
On 17 March 2008, the father filed an application for an order that the children spend time with him at Easter. Good Friday was 21 March 2008. School holidays commenced Monday 7 April 2008. Transcript of a hearing on 1 April 2008 discloses that the father and Mr Jacobs for the mother were again before Federal Magistrate Coates. It appears from that transcript that the father’s application filed 17 March 2008 had been mentioned the day before but adjourned to 14 April 2008. Some of what occurred on 1 April 2008 is relevant to the question of whether there was an application before the Federal Magistrate that day to disqualify himself and some has relevance to the question of disqualification of the Federal Magistrate raised on 10 June 2008. Towards the outset of the hearing on 1 April 2008 the Federal Magistrate enquired as to what the application was before him and the father said:
…The matter was set down for hearing yesterday and you adjourned it to the 14th.
The Federal Magistrate responded:
It was set down for a mention date because you brought on another application having previously walked out of this Court having obtained part of the transcript because the court resumed later …
The father responded:
I’d agree, sir, there’s no question but what I’m saying is as a self rep litigant, sir, you really should have indicated to me – I’m standing the matter – “Don’t go away, [Mr McMillan], we’ll be back at”, and from the manuscript it was an hour later.
FEDERAL MAGISTRATE: [Mr McMillan], I stood it down. You have been in and out of these Courts for years haven’t you?
After a few further questions and answers, during which the father suggested that the Federal Magistrate “might talk about a duty of care to assist me” there was the following exchange:
FEDERAL MAGISTRATE: What duty of care was there, you walked out of Court. You were here for an application, I stood it down, you knew it was coming back and you took off.
[MR McMILLAN]: I had no indication of …
FEDERAL MAGISTRATE: Come off it.
[MR McMILLAN]: Well that’s what I am saying- - -
The father then appears to endeavour to suggest that he thought that the matter had been adjourned to 17 March 2008 before he left the court on 6 March, but the Federal Magistrate says that the transcript does not show that. That gave rise to this exchange:
[MR McMILLAN]: I know but it does show there’s some confusion on the day.
FEDERAL MAGISTRATE: There’s no confusion whatsoever, [Mr McMillan]…none whatsoever.
The debate continued for some time, but then took a twist:
FEDERAL MAGISTRATE: But all you want is Mr Jacobs disqualified, you want – I take it you want me to disqualify myself.
[MR McMILLAN]: Sir, that’s not the matter before you today.
FEDERAL MAGISTRATE: No.
Some rather disjointed and ill-disciplined discussion followed, but after a while the father indicated that;
The urgent application is that the school holidays this Friday and I sent the thing saying, look, can you just deal with that one single issue.… The application is that the matter listed for 31st of the third, which was yesterday be transferred for urgent hearing to the Family Court in Brisbane at a date prior to the Friday, 4/4/08, school holidays commencement.
FEDERAL MAGISTRATE: So you want me to transfer the matter to the Family Court?
[MR McMILLAN]: No, no, no. I was asking the Brisbane Court to just hear that one issue that you had adjourned until the …
FEDERAL MAGISTRATE: The 14th.
[MR McMILLAN]: Yes. And I’m saying just the one issue that this Friday, the school holiday, can we just have that one issue addressed. I have had no contact at all – school holidays with my kids for all of this year. Now I’d like to take them to Brisbane to see my mother who may – look it may be too late. It could be a funeral visit the way things are going, sir, and I’m not joking.
Further discussion, to which Mr Jacobs contributed, seems only to have added to or regenerated confusion, leading to the following:
FEDERAL MAGISTRATE: …You told me a minute ago you wanted me to decide an issue that the child spend time with you at Easter.
[MR McMILLAN]: Yes, that’s right.
FEDERAL MAGISTRATE: Now there are interim orders in place but are you telling me now that’s not what you’re wanting me to hear, you want me to transfer the matter. What are we here to do?
Shortly after, Mr McMillan said:
[MR McMILLAN]: My application is just the one issue of this coming Friday’s April school holidays. Can we deal with that so that, “Yes, I can take the children to Brisbane”, “No, I cannot”, that’s all. I don’t want to take any time of the Court. I only ask for that one issue to be deal with, that’s all, just that one issue, can I take the kids, this weekend. We’ll come back on the 14th for all the others, I agree. Just that one issue can – this weekend when the school holidays start can I take my children to Brisbane to see my dying mother, their grandmother, they haven’t seen for three years sir, they’ve been in Japan. That’s the only one issue I’d like you to resolve for me please.
FEDERAL MAGISTRATE: Well, what’s this thing about – look, what’s this application about then?
[MR McMILLAN]: Sir, I wrote it in a scribble as you can see because I urgently wanted to get it up here.
FEDERAL MAGISTRATE: No, no, no. I want to know what this is about. Do you want me to consider a transfer?
[MR McMILLAN]: Of the whole of the file?
FEDERAL MAGISTRATE: Yes.
[MR McMILLAN]: Yes, I do and, as well, I would like you to make a ruling on this.
FEDERAL MAGISTRATE: No, I’m either going to consider a transfer or I will be asked whether I’m going to consider the other issue which I had adjourned to 14 April because you had left the Court. Now that’s what I’m going to do. What do you want me to do, consider a transfer of the whole of the issues because I’m not going now decide - - -
Upon the father indicating, not for the first time, that he was disadvantaged as an unrepresented litigant, the Federal Magistrate stood the matter down. When he returned, there was some considerable exchange about the way in which court matters proceeded and court room etiquette. But, ultimately, the question of what matters were before the court for decision that day was revisited:
FEDERAL MAGISTRATE: So I think we’ve got an initial problem, haven’t we? You say you want me to decide that the child spend time with you at Easter but you also tell me that you’ve got no faith in anything I’m doing.
[MR McMILLAN]: Sir, that’s not - - -
FEDERAL MAGISTRATE: I can’t do it, can I?
[MR McMILLAN]: Exactly, and that’s – I was going to say that’s not correct, I had no faith in you that’s why I said this on the understanding it was going to be heard in Brisbane by somebody other than you, sir. I’m – I’m – it obviously came back to you so we do have a dilemma – a problem, yes.
…
FEDERAL MAGISTRATE: …You tell me you want to transfer and then you tell me you want me to decide a parenting issue for Easter. Now which do you want me to decide?
…
FEDERAL MAGISTRATE: All right. So the issue is, you’ve already said this morning that I would as though I have prejudged the matter.
[MR McMILLAN]: No, …
FEDERAL MAGISTRATE: So you don’t say that you have formed the opinion that I have prejudged the matter?
[MR McMILLAN]: Not in general, sir, no, just that I’m – as good as these guys here and you don’t need to assist me, that’s what I’ve said by you seemed to have prejudged that I’m so astute.
FEDERAL MAGISTRATE: Well, than we assume though the other issue that you said yesterday you have no confidence in me making a decision on the parenting orders.
[MR McMILLAN]: Yes, that’s correct, sir, and that still stands.
FEDERAL MAGISTRATE: That still stands?
[MR McMILLAN]: Yes. At this stage I guess I would ask you to – I was asking the Court at a late application to transfer the whole mater and, as I said yesterday, that would be an application I would be making.
FEDERAL MAGISTRATE: Yes, but I’m not going to hear individual or discreet matter and then transfer it.
[MR McMILLAN]: All right.
FEDERAL MAGISTRATE: It’s either going to remain here or going to be transferred.
[MR McMILLAN]: All right. In that case, your Honour, I’ll ask that you transfer it and yesterday there was some kind of dispute arose over the – the way in such a matter would proceed – could you be a little bit more clearer to us on that now.
FEDERAL MAGISTRATE: I don’t understand that.
[MR McMILLAN]: Well, I said I would be making an application to the Court – to the Family Court – that they take the matter over as it’s so complex issues and such and such.
FEDERAL MAGISTRATE: Right.
[MR McMILLAN]: The matter may well be your decision alone, sir.
There was then a rather wide ranging discussion about the characterisation of the issues, before the question of the application before the court that day again rose up:
FEDERAL MAGISTRATE: So just so I’m clear what you are asking me to do today?
[MR McMILLAN]: Well, I guess, sir, today I’m asking you to use your own judgement to hand the matter over to the Family Court on the basis of the complexities that being that there’s a Japanese side to it that is very closely related and there will be compensation issues regarding that which maybe offset against any divisions in the property, all that type of stuff.
The question of what sort of compensation the father had in mind was then explored, before, once again, the question of bias or prejudice on behalf of the Federal Magistrate was raised by him:
FEDERAL MAGISTRATE: What you’ve told me so far is you have no faith in anything I do, that’s what you told me yesterday and you haven’t really withdrawn from that.
[MR McMILLAN]: No, sir.
FEDERAL MAGISTRATE: I’ve got to decide really whether I disqualify myself on that basis.
…
FEDERAL MAGISTRATE: And have you brought other applications in the Family Court that you have no faith in the Judges of that Court?
[MR McMILLAN]: Yes, I did, sir, and they were upheld. In fact - - -
FEDERAL MAGISTRATE: Were they?
After receiving his answer to that question, the Federal Magistrate said:
FEDERAL MAGISTRATE: Mr Jacobs, we’re here to determine, I think, whether I transfer the matter today rather than consider the transfer on 14 April.
MR JACOBS: I’m prepared to deal with that today, your Honour. Do you wish to hear some submissions?
FEDERAL MAGISTRATE: Well, I just want to make sure of what we’re here for, so do you want to make any further submissions, [Mr McMillan]?
Ultimately, the father made some submissions which, though I do not say so with much confidence, seem to say that all matters should be transferred to the Family Court but, possibly, that he wished before that was done, a decision from the Federal Magistrate on the application for contact at Easter. However, after discussion about the health of the father’s mother and whether there was evidence in relation to it, of itself an exchange of some length, the Federal Magistrate said:
FEDERAL MAGISTRATE: In view of the complexity, I’m not convinced that it’s a complex issue. Tell me about why you have no faith in me doing it that’s what I want to know about.
After some digression, the Federal Magistrate said:
FEDERAL MAGISTRATE: [Mr McMillan], you said you had no faith in me sitting here and please address that issue.
[MR McMILLAN]: Okay.
FEDERAL MAGISTRATE: Because that’s the issue I’m going to consider as to whether I transfer it.
[MR McMILLAN]: I’ll try and shorten it. Basically his Honour had restricted my contact, as I understand it, for no other reason other than there was an allegation of domestic violence. Now that has since been (a) not evidenced by the respondent and (b) it has been dismissed by the police. Now as a result of that his Honour has yet to take that into consideration and relinquish his prior orders that restricted me and, for that reasons, I have – I mean I have little confidence – and we may adjourn this until – you know till six months later before I actually get to tuck my kids in at night and read them a bedtime story, you know, we need to resume our life.
I have no confidence in you immediately and urgently putting out lives back together, sir. That’s all. I think as a Judge and that you’re perhaps very – you know, you know your stuff but I just don’t think you’re considering the best interests of the children first and foremost and that’s of a great concern to me, sir.
FEDERAL MAGISTRATE: Yes, all right. Mr Jacobs.
During Mr Jacobs’ attempts to clarify what it was the Federal Magistrate needed to address, Coates FM said:
FEDERAL MAGISTRATE: … I’ve clarified what the application is and I’m satisfied that the application was brought on to transfer it.
Mr Jacob addressed the application for transfer to the Family Court. He referred to the matters normally considered on an application for transfer between the courts. He submitted that the question of disqualification by Coates FM from further involvement was not relevant to the question of transfer. However, he later submitted that there was no basis for a disqualification arising simply from dissatisfaction with the result of proceedings. During this exchange, relevantly to his view of the father leaving the court on 6 March 2008 Coates FM said:
FEDERAL MAGISTRATE: Both parties are to assist in the expeditious matter of the hearing leaving a Court part way through is not assisting a Court in the expeditious matter of a hearing. [Mr McMillan] says, “Well, I was self-represented, I didn’t know”. I don’t have the second part of the transcripts so I’m at a bit of a loss to really judge what else was said at the time but anyway.
On 9 May 2008, Coates FM made orders dismissing the father’s applications of 17 March and 1 April 2008. In his reasons for those orders, he recorded that the first issue for decision was whether, on the father’s application, he should disqualify himself and/or transfer the matter to the Family Court of Australia. In the course of recording the history of the litigation before him, Coates FM said:
40.Because he left the Court, I made orders different to those I indicated. I ordered the mother to file and serve her material by 7 April 2008. I took the view, on record at line 1, page 15, that he did not appear to be interested. …
…
43.The father stated then that I should have told him not to leave the Court on the 6 March 2008 as he was a self-represented litigant. That ignored the fact that his former solicitor was present when I stood the matter down
…
71.That I did not make orders or hear an application in relation to the Easter break merely when the father stated it should be heard, and being an application outside his original application, is not an issue of fairness or ground upon which I consider I should not hear the case. I had attempted to deal with matters in a less adversarial manner in a timely manner however the father is the litigant who now wants counsel for the mother removed.
…
76.The transcript in this case indicates that I may well be critical of the mother, especially over service and delay and that I have “had words” with the father. However, that does not go to the essential issue - can I bring an unprejudiced mind to what parenting orders I will make bearing in the mind the test, that the best interests of the children is the paramount consideration? I can only do that when the case is ready to be heard and it will be ready to be heard with not only management but when the parties are ready. On the ground of apprehension of bias, I hold that the fair-minded observer would take into account the manner in which the proceeding has run, the conduct of the father, the conduct of the mother and the legal issues to be decided.
…
79.In any case he has not shown me that any ignorance on his part has resulted in unfairness or lack of natural justice or procedural fairness afforded to him at this stage of the proceeding.
…
83.The father left the Court in the second instance claiming that he did not know he had to be in Court.
84.I do not accept that the father had no understanding of what was occurring.
…
90.I cannot now hear an interim children’s issue until I determine whether counsel for the father has a conflict of interest as alleged by the father. Despite that, the father still wanted me to grant him time at Easter when Mr Jacobs was present. That raises the question of why Mr Jacobs presence was not raised as a preliminary issue on the first day in Court.
…
96.… I need to hear that first. I do not think I can set both applications down for the same hearing because if I disqualify Mr Jacobs, then the mother would be left without legal representation.
…
99.I attempted to consider the Easter time using such procedures. It was the father’s solicitor who pointed out the application to disqualify counsel representing the mother.
100.The only complexities are those being generated by the parties and particularly by the father in bringing application after application.
101.For the above reasons I am not going to disqualify myself or transfer the matter.
On 9 May 2008, Coates FM set down for hearing on 10 June 2008 the father’s application “to disqualify both counsel and the solicitors acting for the mother, on the grounds of an alleged conflict of interest”. In the reasons he gave on 10 June 2008 for the orders made that day, Coates FM referred to the matter of an application to disqualify himself, the refusal of which is attacked by the arguments currently under consideration. The learned Magistrate said:
5.… The father … attempted to file another application today and that it was one to disqualify myself.
6.On 9 May I delivered reasons on a number of subjects including the same or a similar application whereby I either disqualify myself or transfer the matter to the Family Court. I am not going to repeat the reasons I gave then as to not disqualifying myself and as to not transferring the matter because in my opinion nothing has changed.
7.I will say the father, when I asked him to take me to evidence, took me to parts of a transcript of a previous hearing of this matter where he says that both myself and Mr Jacobs colluded against him. That is something I reject. That is an allegation I reject. The circumstances were that the father had left the Court and Mr Jacobs had certainly said things which are on the public record. I made no findings as to any matters, which he put onto the public record, particularly in relation to the alleged conflict of interest.
As seen, the father argues that Coates FM wrongly refused to entertain the father’s application made 10 June 2008 because he wrongly thought that he had dismissed an application to disqualify himself on 9 May 2008. While, in my view, there was much confusion on 1 April 2008 as to just what the father sought that day and while, for the most part, it was the Federal Magistrate who raised and revisited the question of disqualification, even after the father had not included it in some of his descriptions of what he wanted the Magistrate to deal with that day, I am not satisfied that the Federal Magistrate was wrong in regarding the issue as one to be determined. On occasion, the father did say that it was an issue. In any event, Coates FM clearly determined the issue on 9 May 2008.
However, as to the application that the father sought to make on 10 June 2008 that Coates FM disqualify himself, in my view the Federal Magistrate was in error in thinking that nothing had changed since the application made to him on 1 April 2008. The basis upon which the application rested had changed. By then, the father had obtained the transcript of what had happened in his absence on 6 March 2008. I have already expressed concern about what transpired on that occasion. In the father’s absence:
· Coates FM formed the view that the father had deliberately declined to appear further that day;
· the time within which the mother was to file material in response to the father’s application was extended beyond what had earlier been indicated;
· an order was made that service at his residential address be good service, notwithstanding that the father had agreed that he would file an address for service;
· the learned Magistrate appears to have pre-determined that he would not admit certain material proferred by the father because the “safest thing is not to rely on hearsay evidence” and, perhaps the most concerning of all;
· the Federal Magistrate alluded to the prospect that the father’s application might be dismissed before a final hearing.
Then, on 1 April 2008, the Federal Magistrate rejected the father’s explanation for his failure to reappear on 6 March 2008, following an exchange between the father from the bar table and his Honour. This view was later transformed into factual findings in the reasons of 9 May 2008.
In O’Chee & Anor v O’Chee (2006) FLC 93-275, at paragraph 198 the Full Court of the Family Court of Australia said:
198. Recently, in the presently unreported decision of Keating v Morris [2005] QSC 243, Moynihan J, having referred to the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 suggested the test for present purposes to be:
[43] … whether the court is satisfied that the circumstances are such as to give rise, in the mind of a fair minded and informed member of the public, or party, to a reasonable apprehension that the decision maker’s mind is so prejudiced by conclusions already formed that the conclusion will not be altered irrespective of the evidence or arguments put forward and that:
[44] … The relevant consideration is that the decision will not be seen to be impartial rather than that it will be adverse to a party.
In my view, the fair minded informed member of the public would have a reasonable apprehension that by 10 June 2008, decisions by the Federal Magistrate on issues involving the father would not be impartial.
Thus, in my view, Coates FM ought have entertained and granted the father’s application on 10 June 2008 that he disqualify himself.
It follows that both sets of orders appealed ought be set aside and the relevant applications remitted for rehearing before another Federal Magistrate.
that his Honour should not have entertained the father’s application for disqualification of the mother’s counsel because that issue had “resolved” itself, as that counsel did not appear or alternatively;
that his Honour should have disqualified counsel because he had earlier acted in litigation against the father, and because of what transpired at court in the father’s absence in March 2008;
Of the application that the counsel for the mother be disqualified from representing her, the learned Magistrate said:
3.… On 9 May 2008 I set today’s date being 10 June 2008, for the hearing of the application to disqualify both counsel and the solicitors acting for the mother, on the grounds of an alleged conflict of interest. I ordered that the father file and serve his affidavit in support of that application by 26 May 2008 and ordered the mother file and serve her affidavit in reply by 2 June 2008.
4.And I made subsequent orders for the parties to give me an outline of their submissions. None of the orders have been complied with. The mother says she has not complied because she could not comply because the father did not comply and file his affidavit of material. I accept that. The father on being afforded the opportunity on numerous occasions today, failed to take me to his sworn material going to a conflict of interest as alleged.
…
7.I will say the father, when I asked him to take me to evidence, took me to parts of a transcript of a previous hearing of this matter where he says that both myself and Mr Jacobs colluded against him. That is something I reject. That is an allegation I reject. The circumstances were that the father had left the Court and Mr Jacobs had certainly said things which are on the public record. I made no findings as to any matters, which he put onto the public record, particularly in relation to the alleged conflict of interest.
Mr Jacobs did not appear to represent the mother on 10 June 2008. Ms Wilson of counsel appeared for the mother. She explained that Mr Jacobs’ absence that day should not be taken as being on account of the issues raised by the father.
Merely because Mr Jacobs did not appear for the mother on 10 June 2008 does not mean that he would not appear for her in the future. His absence did not mean that the issue raised by the father’s application that he be enjoined from representing the mother was “resolved”. There is no merit in this argument.
So far as what transpired at court in the father’s absence on 6 March 2008, while (and in the circumstances I refrain from expressing any concluded view) at the most, Mr Jacobs may have been unwisely critical of the father and have pursued procedural orders in terms not raised while the father was present, these actions would not amount to grounds upon which the court should have prevented Mr Jacobs appearing for the mother.
As best I can judge from exchanges on 6 March 2008 the conflict of interest asserted by the father would not arise unless he appealed the decision in the litigation in which Mr Jacobs represented the Bank. There was no evidence before the Federal Magistrate that he had done so. It seems also to have been a matter of contest, at least at the bar table, as to whether the mother was be involved in any such litigation or would be in any appeal.
There seems to have been no reason to think that Mr Jacobs would necessarily again represent the Bank on any appeal.
I am not satisfied that in dismissing the father’s application for disqualification of Mr Jacobs that the Magistrate made any error.
that because of the errors relating to the substantial issue determined on 10 June 2008, the costs order should be set aside;
As I am not satisfied that Coates FM made any appellable error in relation to the application to disqualify Mr Jacobs from representing the mother, this argument fails.
However, as the father is unrepresented, I will also give my view of the Federal Magistrate’s exercise of discretion on costs.
In relation to the costs of the father’s application for disqualification of the mother’s counsel, the learned Magistrate said:
23.Finally I am asked to make a costs order in the sum of $750 against the applicant. Under section 117(2)(A) matters are set out which I must consider although my understanding of the law is my discretion is not otherwise fettered. The financial circumstances of each of the parties, the mother who looks after her children, as far as I know, and that she has under the consent orders of 2000, a property. I am not aware of other properties which she owns. I am aware that that property is in dispute and I am aware that she gave an undertaking not to deal with that property until I hear [Mr McMillan's] application.
24.She has been represented in these matters on all occasions.
[Mr McMillan] is not employed. He tells me he is receiving what he called "major crisis" assistance from Centrelink. I do not know otherwise his issues in relation to work, what he is trained in and what he can do, whether he holds any professional or trade qualifications.…
27.As I have stated [Mr McMillan] has failed to comply with the orders. [Mr McMillan] may say that he is not really up with Court proceedings and the conduct of Court proceedings and the conduct of Family Law litigation. But, as I stated in my Judgment on 9 May, [Mr McMillan] informed the Court he has been involved in matters in this jurisdiction since 1995. …
…
29.My view is that he has been involved in litigation for a long enough period to know that he must comply with orders of the Court.
30.We are going to look at whether the proceedings were necessitated by the failure of the party to the proceedings, compliance with previous orders. I have already referred to the fact that [Mr McMillan] failed to comply with orders of 9 May that he file material. It's a simple matter. If he says there is a conflict of interest all I want to know is what that conflict is.
…
32.I have got to look at whether he has been wholly unsuccessful and that goes without saying. He has not only been wholly unsuccessful, the fact that he continued to prosecute this case, despite what I said on 9 May, has now resulted in the order I am going to make under 13.11 of the Federal Magistrates Court Rules that he be declared a vexatious litigant, in relation to this proceeding only.
33.So I am going to make a costs order. I have got to consider an offer in writing. He says he made an offer in writing but he says it did not go to matters of settling the matter except that I think it was just that the other side withdraw from the matter. In any case I am not satisfied that I should not be making a costs order. If costs orders are not made in these types of matters, regardless of the financial status of a party, the other party will be put to great costs.
Leaving aside the conclusion that I have reached in relation to the question of Coates FM’s disqualification of himself, I am not otherwise satisfied that in ordering that the father pay the mother’s costs fixed in the sum of $750.00, that the learned Magistrate made any appellable error.
that his Honour had failed to appreciate the real issue raised by previous applications was about time to be spent by the father with the children and was thus wrong to categorise them as vexatious.
As to his reasons for the order which this argument attacks, Coates FM said:
9.That is his view but clearly I have stated on 9 May and I am stating again today, if the Court was not flooded with applications the children's matters would have been heard prior to any date I can set today to hear those matters, because of the number of applications the father is making and for example, he filed a new application today and he attempted to file a second application today which I understand was not accepted by the Registry. And because of other applications he has filed in this matter, both in this Court and I understand in the Family Court, and because of the nature of those applications which do not appear in many instances to go to the very heart of the issues he says he wants adjudicated, and that is on the children and on the reopening of the property orders, I put to both the father and counsel for the mother whether under section 13.11 of the Federal Magistrates Court Rules 2001, I should not on the Court's own motion, declare that the father is a vexatious litigant.
10.Now, the section says:
If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds, instituted other vexatious proceedings in the Court or any other Australian Court whether against the same person or against different persons. The Court may order that any proceeding instituted by the person may not be continued without leave of the Court and that the person may not institute a proceeding without leave of the Court.
11.I have come to the view on looking at the applications being made and I am talking about the number of applications, particularly in relation to the issue of an alleged conflict of interest, particularly in relation to having me disqualify myself or transferring the matter to the Family Court, and particularly because of the costs on the mother appearing every time in Court, that the father is making applications habitually and persistently without reasonable grounds.
12.Having stated that, it is obvious that I am finding today's application to have been a vexatious application in that the father has not not only complied with my orders to file the material going to his allegations, but has not even pointed in any of the material which he has filed, to evidence which goes to an alleged conflict of interest. That type of application is costing the mother money.
…
19.The other issue, which has influenced me of course, I should refer to this, is the fact that [Mr McMillan] attempted to serve on me in Court what is called a Final Notice. That is some type of document which holds no legal status whatsoever, but has been a document which in one form or another has been used by some unrepresented litigants in the Federal Magistrates Court at Cairns.
It follows from my conclusion in relation to the application that he disqualify himself that in partly relying on the fact that the father had unsuccessfully sought that he disqualify himself as a reason for categorising applications by the father as vexatious, the learned Magistrate was wrong.
However, the particular argument raised before me by the father, namely that the Federal Magistrate had failed to appreciate that the real issue raised by previous applications was about time to be spent by the father with the children is, in my view, without merit. While it may be that another approach would have seen the question of interim parenting arrangements and, in particular, Easter contact, dealt with more promptly than has been done, from what has already been set out from the learned Magistrate’s reasons and exchanges during hearings, I am not satisfied that the Federal Magistrate has overlooked or has wrongly characterised the various applications including applications, for parenting orders, brought by the father.
THE APPEAL AGAINST THE ORDERS OF 1 SEPTEMBER 2008
In respect of the summary dismissal of the father’s “s 79A” application:
That his Honour wrongly refused the father leave to file and rely on further affidavit material (which the father now seeks to put before me in the appeal).
That his Honour should have allowed cross-examination of the mother.
That his Honour failed to consider the real basis of the father’s case, namely that the parties had by their actions after the consent orders were made, impliedly consented to those orders being set aside.
In his reasons of 1 September 2008, in relation to the mother’s application to summarily dismiss the father’s application to set aside the consent property orders, Coates FM said:
157.I had also issued directions that he file material in relation to the matter and on 11 July 2008 I told him, again, he should file material otherwise the matter may or would be dismissed.
158.The applicant filed no new material.
159.The husband finally relied on his affidavit filed 16 January 2008, paragraphs 1 to 11, in support of his application. Given that the rules state that an application must be supported by evidence, that should have contained all of the evidence he relied on.
The learned Magistrate then set out the terms of s 79A(1)(a)-(e). He then reviewed the father’s evidence and that of the mother. He referred to some cases which he described as assisting “…in understanding decisions under the section.” In the course of this discussion he said:
189.On the fact’s alleged, the husband is basing his case on a reconciliation between the parties.
190.In the Marriage of Sommerville (2000) FLC 93-042, the Court looked for express or implied consent to set the orders aside. In that case, Nicholson CJ stated the principles were conveniently set out in McCabe and McCabe (2000) FLC 93-042. At 116 he stated:
“The recent decision of the Full Court in Bourke v Bourke (No. 2) (1994) FLC ¶ 92-479 establishes that the ''consent'' referred to in that provision is not confined to a consent given at the time of the hearing of the application in question; the consent may be established by evidence of a prior consent of the parties which remains binding upon them...
117. In cases of this nature conclusions about intention which should be attributed to the parties will depend upon the particular circumstances of each case. That material would not necessarily be confined to the initial decision to reconcile or, as in this case, to write to the Court. Their intention may crystallize into a more precise form as time progresses and as the parties' reconciliation continues and they conduct their lives together, including their financial affairs, so that it becomes inconsistent with any other conclusion…
There is no reason to doubt that parties can expressly or by their conduct consent to the discharge of prior orders so as to enable the Court to make a fresh property order. Indeed, this would be a more likely conclusion in most cases of this type. The conclusion contended for by Mr Sofronoff would produce a situation where the previous orders were unenforceable but neither party could seek new orders (other than orders under s. 78) and would be inhibited from taking proceedings in another court because such proceedings would inevitably constitute a ''matrimonial cause'' .
191.The Chief Justice also referred to the intention of the legislation to bring financial proceedings to an end. In that case he referred to the parties not only reconciling but setting up business interests together.
What the learned Magistrate did not note was that the husband’s case based on reconciliation between the parties and Sommerville’s cases involved a consideration, not of subsections 79A(1) (a)-(e), but s 79A(1A) which reads:
[Variation, setting aside or new order] A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
Coates FM next applied each of the subsections (a) to (e) of s 79A(1) to the facts asserted by the father in the light of such submissions as the father made.
Those subsections are:
Setting aside of orders altering property interests79A
(1)[Grounds on which order set aside, varied] Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on him by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA) ), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
Coates FM concluded that none of the subsections was engaged by the facts alleged.
The learned Magistrate said:
227.I must then be cautious not to do the husband an injustice and I have intentionally kept in mind that he is unrepresented and is up against counsel. I took him to s79A so that he could address the issues required in that section.
228.As there can be reasonable prospects of success, even if the evidence is of an ambivalent character, if such could be reasonably believed, the law, or specifically the elements of s79A must be applied to the husband’s alleged facts.
229.The case he makes out under s79A(1)(d) based on a reconciliation makes the slightest of references to the sharing of property in the marital sense in relation to children. However, there are no material facts stated which go to or make out the elements required being - since the Order was made, the circumstances that have arisen, their exceptional nature and how they relate to the care welfare and development of the children, his caring responsibility and hardship he will suffer.
230.That he cannot address the elements makes his case hopeless and bound to fail and whether it could meet the test of being reasonably believed is now not a consideration. If I needed to consider evidence on this basis, the correspondence referred to by the wife regarding threats to keep her in Court for years may well have been the type of evidence fitting this category, keeping in mind the husband’s statement that it was taken out of context. I do not consider that further evidence, given the directions and warnings I have given to file material and given his manner or conduct of the proceeding, could save his case.
231.Further, that he did not address what appears to be his non-compliance with indemnifying the wife under the 2 October 2000 Order is an aspect of concern because he seeks to be relieved of that compliance by having the orders set aside.
232.Therefore, pursuant to s17A(2), I give judgment for the wife and the order she seeks, that is a dismissal of the husband’s application to set aside the orders made on 2 October 2000.
Coates FM did not set out s 79A(1A). He did not discuss its application to the father’s case.
However, Mr Page, Senior Counsel for the mother argues that by referring to the decision in In the Marriage of Sommerville the learned Magistrate can be seen to have considered and rejected the case of implied consent. I disagree but even if so, there is no process of reasoning which would explain the result; in other words, there is no explanation of why the application of the law, such as set out in the subsection and Sommerville, to the facts, did not result in the application for summary dismissal being rejected.
In Re F: Litigants in person guidelines (2001) FLC 93-072 two of the guidelines for a judge, dealing with an unrepresented litigant, are described as follows;
where the interests of justice and the circumstances of the case require it, that the judge may identify applications or submissions which ought to be put to the court and clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
In my view, in failing to correctly address what he had identified as the basis of the father’s case, the learned Magistrate fell into appellable error.
As to the other points raised by the father, in my view, the learned Magistrate did not err in refusing to accept the father’s further affidavit material. In so far as the father seeks to put that before me, in my view he had every opportunity to put it before the Federal Magistrate and, in any event, its contents are of much the same effect as the material that was already before the Federal Magistrate. I would not receive it on appeal.
As to the assertion that the Federal Magistrate should have allowed cross-examination of the mother, the application for summary dismissal focuses attention on the case of the father. In my view, Coates FM did not err in not permitting cross-examination of the mother.
In respect of children’s issues:
That his Honour should not have relied on the family report as it was tainted.
That his Honour should have permitted cross-examination of the family reporter and the mother.
The Federal Magistrate placed considerable reliance on the recommendations of the Family Reporter. The father made submissions to the Federal Magistrate critical of the Family Reporter’s impartiality and that of an interpreter assisting in the interviews. The Federal Magistrate referred to those arguments in his reasons. Before me, the father pointed to nothing that shows any error in the Federal Magistrate’s treatment of the father’s submissions or of the Family Report.
In circumstances where, at an interim hearing, there is conflicting evidence of the parties on many points of importance, placing weight on the reporter’s recommendations was a course well open to Coates FM.
Nor was he wrong not to permit cross-examination of the Family Reporter and the mother. Hearing interim applications “on the papers” is a well-established practice which recognises the limitations that arise where time and the state of preparation do not permit a full trial. Limited cross-examination may well not be helpful and could even be harmful in such situations. I am not satisfied that cross-examination should have been allowed in this instance.
I would also not receive any further evidence as sought by the father in respect of the appeal against parenting orders, for the same reasons as I rejected the application in respect of the appeal against summary dismissal.
In respect of all applications before the court on 5 August 2008:
That his Honour should not have entertained such applications while an appeal was pending, in which, in particular, his refusal to disqualify himself was challenged.
The mere fact of an appeal against a refusal to disqualify himself did not render it inappropriate for the learned Magistrate to entertain applications that came before him while an appeal was pending.
Conclusion
The orders of 10 June 2008 (as amended 16 June 2008) and of 1 September 2008 cover various procedural steps as well as those issues which have been agitated in these appeals.
I do not intend to set aside the orders for the Family Report and separate representation of the children. As the issues of declaring the father a vexatious litigant was raised by the Federal Magistrate, there is no application in that regard to remit.
I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 25 November 2008
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