McMillan & McMillan
[2023] FedCFamC1F 60
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McMillan & McMillan [2023] FedCFamC1F 60
File number(s): CSC 355 of 2015 Judgment of: BAUMANN J Date of judgment: 17 February 2023 Catchwords: FAMILY LAW – REVIEW OF REGISTRAR’S DECISION – COSTS – Where the parties have been litigating for over 20 years – Where the wife sought enforcement of costs orders made over five years ago – Where the husband has brought multiple applications of a similar nature of which none have been successful Legislation: Family Law Act 1975 (Cth) ss 102QB, 105, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.50, 19.23
Cases cited: McMillan & McMillan [2017] FamCAFC 88
McMillan & McMillan [2017] FamCA 1102
McMillan & McMillan (No. 3) [2020] FamCAFC 256
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 4 July 2022 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: WGC Lawyers ORDERS
CSC 355 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MCMILLAN
Applicant
AND: MS MCMILLAN
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
17 FEBRUARY 2023
THE COURT ORDERS:
1.That the Application for Review filed 12 May 2022 be dismissed.
2.That the Application in a Proceeding filed 17 June 2022 be dismissed
3.That the husband pay the wife the fixed sum of $2,000 for the costs of both Applications, within sixty (60) days of the date of this Order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McMillan & McMillan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
The parties in this matter, Mr McMillan (“the husband”) and Ms McMillan (“the wife”) have been litigating in this jurisdiction since before 2015. Considering the amount of judicial intervention, I chose only to deal with the Applications listed before me on 22 July 2022, however I am well aware of the history of litigation.
BRIEF BACKGROUND
This current phase of the litigation begins with a costs order made on 24 April 2017 by Justice Murphy (sitting as a single Appellant Judge) on these terms:
The applicant husband pay the respondent wife’s costs of and incidental to both Applications in an Appeal in an amount to be agreed between the parties in writing or failing agreement, as assessed.
with the costs ordered to be payed within 60 days of the date of any such assessment or agreement.
The substantive Appeal was dismissed on 24 April 2017 when leave to appeal out of time was refused.
The wife has filed multiple enforcement warrants seeking to enforce costs orders made against the husband – the last one being on 19 January 2021 seeking enforcement of various orders calculated to amount to $15,707.15 plus costs of $642.08.
The wife then sought an order, by an Application in a Proceeding, to provide itemised costs accounts in respect of the aforementioned order of 24 April 2017 and a subsequent costs order made by Justice Tree on 22 December 2017.
On 21 April 2022, a Senior Judicial Registrar ordered the husband to pay the wife $5,366.48 for the costs order made 24 April 2017 and $3,626.10 for the costs order made 22 December 2017.
On 12 May 2022 the husband filed a Review Application against the order of the Senior Judicial Registrar of 21 April 2022.
On 17 June 2022, the husband filed a further Application in a Proceeding.
On 4 July 2022, the matter came before me and I received some brief submissions, in addition to written submissions, namely:
(a)The husband’s summary of argument in support of the orders he seeks, which were expressed as follows:
1.That The Court “Refuse to Enforce” the Costs Orders, being the Costs Order made by Judge Murphy of The Full Court on 24-4-2017
2.That The Court “Refuse to Enforce” the Costs Orders made by Judge Tree on 22-12-2017
3.That The Court Order an “Investigation” into The Conduct of The Respondent: [Ms McMillan] and into The Conduct of The Respondent's Lawyer: [Mr J] with Regard to Their MisConduct throughout These Proceedings
4.That The Court Allow a “Publication Order” or that The Court Alternatively, “Refer” this Question of Law to “The High Court”
5.That The Court Order a “Costs Hearing” so ongoing Costs Matters can be Separately Litigated
6.That The Court Order a Costs Order in Favour of The Applicant, that will bring Adequate “Relief” and “Resolution” for the Costs Incurred by The Applicant to Date, in “Defending Himself” in These Ongoing Matters
7.That The Court Make any other Order that will Bring “Justice and Equity” and bring “Finality” and “Resolution” to These Matters for “Evermore”
[Sic]
(b)The wife’s written submissions dated 1 July 2022 in respect of:
(i)the Application for Review, seeking the review be dismissed, with costs estimated at $1,036.88; and
(ii)the Application in a Proceeding be dismissed with costs fixed in the sum of $1,555.32.
THE APPLICATION FOR REVIEW
The Registrar made a costs assessment pursuant to Rule 12.50 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The Application before the Registrar is to be head de novo, by me.
The evidence of the wife’s solicitor filed 24 August 2021 deposes to:
(a)on 26 May 2021, he caused an itemised costs account pursuant to the order made by Justice Murphy on 24 April 2017, to be served upon the husband;
(b)on 26 May 2021, he caused an itemised costs account pursuant to the order made by Justice Tree on 22 December 2017 to be served upon the husband; and
(c)since the delivery of the itemised costs account the husband has not served a notice disputing itemised costs account under r 19.23 which was required to be served within 28 days after the account was served.
Doing the best I can on the somewhat rambling submissions of the husband, it is my view that he does not assert he gave any notice disputing costs – but he does repeat his strongly held view that the proceedings underpinning the costs orders were corrupt and unfair. He also says he was not given his right to be heard at a directions hearing on 1 February 2022. However as this is a review application, it is not strictly necessary for me to consider the process which the Registrar adopted.
I am satisfied that an itemised costs account in respect of both orders was served as required by the Rules and that the husband did not, and has not, served a notice disputing the quantification of those costs. The husband seems to wish to attack the actual costs orders made.
In the circumstances, the Application for Review shall be dismissed and the stay order of the Senior Judicial Registrar made 20 May 2022 should be discharged. I deal with the costs applications later in these Reasons.
APPLICATION IN A PROCEEDING
Although the orders sought by the husband are set out earlier, I record the orders he sought in the Application in a Proceeding as he explained them, namely:
1.That The Court: Allow and Hear this Application Seeking The Court to Use “Judicial Discretion” in Reopening / Revisiting these Matters.
2.That The Court: Use “Judicial Discretion” in Allowing and Hearing Further Evidence in These Matters.
3.That The Court: Use “Judicial Discretion” and “Refuse to Enforce” The Costs Orders made on 24-4-2017 by Judge Murphy where it Would be “Unjust” and “Inequitable” to Do So, given The Evidence Available to The Court in Regard to These Matters.
4.That The Court: Use “Judicial Discretion” and Order an “Investigation” into The Conduct of The Respondent: [Ms McMillan] and The Conduct of The Respondent’s Lawyer: [Mr J] with Regard to Their Misconduct involving “Crime and Corruption” as “Evidenced” throughout These Proceedings.
5.That The Court: Use “Judicial Discretion” and Allow a “Publication Order” so that The Applicant can bring to Public Attention, “Crime and Corruption” in The Family Court of Australia as “Evidenced” throughout These Proceedings.
6.That The Court: Use “Judicial Discretion” and Allow a “Publication Order” so that The Applicant can bring to Public Attention, The Need for Family Law Reform and The Need for a “Judicial Corruption” Inquiry in Regard to The Family Court of Australia, as “Evidenced” throughout These Proceedings or Alternatively, “Refer” this Question of Law to “The High Court”
7.That The Court: Use “Judicial Discretion” and Make an “Order for Costs” that will bring Adequate “Relief'” and “'Resolution” for All of The Costs Incurred by The Applicant to Date, in “Defending Himself'” against “False Allegations” and “False Statements” that were “Fabricated” and were “Filed” by The Respondent: [Ms McMillan] and by The Respondent’s Lawyer: [Mr J] since the “Commencement” of These Proceedings in 2015.
8.That The Court: Use “Judicial Discretion” and Make an Order that will Bring “Justice and Equity” and bring “Finality” to These Matters for “Evermore”
[Sic]
In support of his orders, the husband filed a lengthy affidavit on 17 June 2022 comprising of 101 paragraphs and many annexures. I have read the affidavit and I would attempt to summarise the husband’s evidence as follows, noting much of the affidavit comprises statements of his concern on submission in respect of his case, namely:
(a)the enforcement warrant filed 15 June 2015 asserted many unpaid “ancient cost orders” dating back 20 years which are statute barred and is a “cold case” which he believes is a “scam” (paragraphs 4 to 15);
(b)in February 2016, the husband had an application before Justice Tree where he says he “provided to the Court quite a lot of historical documented evidence of past “fraud and perjury” committed by my estranged ex-wife and her legal team over the years, and amongst other things I sought from the Court an order that a proper “criminal investigation” be directed into the “perjury and fraud”. Whilst Justice Tree permanently stayed an enforcement warrant on 25 May 2016, the wife subsequently filed a fresh enforcement warrant on 16 June 2016, which began (what the husband described) as the “round two litigation”. The costs order made by Justice Murphy related to his decision not to grant leave to the husband to appeal out of time (paragraphs 16 to 24);
(c)the husband attacks the decision of Justice Murphy (at paragraphs 25 to 31) because he says he uncovered evidence that he had actually paid the “ancient costs orders”, and after considering an application for special leave to the High Court, he decided instead to file an urgent application in a case to bring the “evidence” of this “perjury and fraud” to the attention of the Court;
(d)this application came before Justice Tree and during the course of various mentions, the husband says it was “confessed” by the wife and her solicitor that that in fact the past costs orders had been paid – meaning, in the husband’s view, the enforcement warrants were incorrect and in a “fair minded observers view”, this was “premeditated perjury” a “calculated crime” a “fraudulent crime” intended to “deceive the Court” and “secure profit from deceit”. As a result, the husband sought orders before Justice Tree that the matter be sent to the proper investigative authorities for criminal investigation. The husband concedes no such order was made, however during the course of the proceedings before Justice Tree, his Honour dismissed, on 26 October 2016, an application by the husband that he recuse himself. As a result of an application for costs made by the wife, Justice Tree made the costs order of 22 December 2017 (paragraphs 32 to 56);
(e)because the costs orders of Justice Murphy and Justice Tree arise from the alleged “invalid” enforcement warrant, the Court should exercise its discretion and not enforce those orders;
(f)paragraphs 60 to 74 amount to submissions as to why the Court should not enforce the order, concluding with the statement that:
“The Court’s management and conduct of their matters throughout this entire 30 year period has been a complete shambles and as a direct result of the Court’s “misconduct” of the matters, I have been denied “finality” of “litigation” I have been denied “procedural fairness” and I have been denied “natural justice” and “equity” all along.”
(g)at paragraphs 75 to 85 the husband again in a form of submission seeks a publication order:
“So that I may bring these matters to “public attention” and seek change to the Family Law system, so that perhaps nobody ever again has to “go through” what I have gone through over the past thirty (30) years of Family Court litigation and a “publication order” will allow me to “expose” my “evidence” of “crime and corruption” in the Family Court of Australia and call for a “Royal Commission” of inquiry.”
The husband relevantly concedes (at paragraph 83) that he has posed the question of seeking a publication order to the Family Court judiciary on several occasions now, including in some of his Full Court appeals.
(h)Paragraphs 86 to 88 appear to be a submission that the wife be required to pay security of $200,000 for his costs of an imminent High Court appeal; and
(i)Finally at paragraphs 86 to 96, he makes submissions as to him receiving a costs order.
In response, the succinct submissions of the wife’s solicitors refer to the applications made from 14 September 2015 to 14 November 2018 where he has raised the same issues as above, none of which have been successful.
Although, at paragraph 3 of the written submissions, the wife concedes that the husband’s “conduct is vexatious” no formal application was made by the wife seeking such an order under s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”), and in those circumstances I do not consider it appropriate to entertain such a concern.
DISCUSSION
I feel that I am just the most recent judicial officer to have to deal with Mr McMillan’s heartfelt concerns. Simply stated, as he concedes, the evidence which he asserts leads to a finding of perjury, fraud, false evidence and/or corruption has been raised in numerous applications since at least 2015.
At its core seems to be the allegation that an enforcement warrant issued on 15 June 2015 claiming costs orders imposed since 12 July 2001 is a fraudulent application as all the costs have been paid, and the wife and/or her solicitor has subsequently so conceded.
However, I am not being asked to deal with the “ancient costs orders” or their enforcement. Where I have dismissed the review Application, and the costs orders of the Senior Judicial Registrar stand, it is a matter for the wife, if she chooses, to enforce their non-payment.
The husband is correct when he says he has raised all these issues before. For example, in the published decision of the Full Court (Strickland, Ainslie-Wallace & Ryan JJ) of McMillan & McMillan (No. 3) [2020] FamCAFC 256, the Full Court, in dismissing another appeal against the order by Justice Tree when he refused to recuse himself, referred, at [12], to similar orders being pursued as the husband has done now. It is clear from those Reasons, Justice Tree was asked to consider similar submissions previously.
CONCLUSION
I am sure the wife seeks finality, as does the husband, however there is no basis that would permit this Court now, as a trial division matter, to vacate or “overturn” the orders made by Justice Murphy or Justice Tree, which have been the subject of proper assessment.
Why the wife regards it as important to prolong this litigation through these Court orders is entirely a matter for her. She is entitled to do so. Whether or how, considering s 105 of the Act, those costs orders are to be enforced is not a matter for me at this time.
The husband’s Application in a Proceeding has been agitated many times before with no success. Nothing I can say is likely to change the husband’s beliefs, but there is no basis on the evidence he continues to present again and again, that would support this Court granting him the relief he seeks. As a result, his Application in Proceeding will be dismissed.
I have already indicated that, in the absence of a formal application properly heard, I am not prepared to consider making an order that the husband be declared a vexatious litigant. I accept the Court has the power under s 102QB(3) to initiate such an application. I do however make this observation, and that is almost entirely the applications made by the husband are in response to the applications for enforcement made by the wife – namely she is the initiator.
COSTS
In respect of both Applications, the wife seeks an order for costs being:
(a)$1,036.88 for the Review Application; and
(b)$1,555.12 for the Application in a Proceeding.
Whilst s 117(1) of the Act provides that each party should bear their own costs of proceedings, s 117(2) enlivens the Court to award costs if the circumstances justify a costs order and any costs order shall be at a level that is just.
It is not necessary to consider all the s 117(2A) factors, however it is clear that the husband has some assets (as he claims the wife’s intent is to take his home from him); that he has been entirely unsuccessful in this Application for Review and Application in a Proceeding, and further his Application in a Proceeding is not the first time he has sought similar relief.
In the circumstances, I propose to fix costs – but do not allow the wife to claim the appearance fee of $259.22 twice.
As the Rules permit, I fixed costs for both applications I heard on the same day in a sum of $2,000 payable in 60 days.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 17 February 2023
0