McMillan & McMillan (No 3)
[2020] FamCAFC 256
•16 October 2020
FAMILY COURT OF AUSTRALIA
| MCMILLAN & MCMILLAN (NO. 3) | [2020] FamCAFC 256 |
| FAMILY LAW – APPEAL – RECUSAL APPLICATION – COSTS – Appeal against the primary judge’s refusal to recuse himself and in making an order for costs – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Where the appellant husband uses the grounds of appeal as a vehicle to make broad, unspecified and unsupported criticisms of the primary judge, respondent wife and her legal representatives – No error in the primary judge’s exercise of discretion – No error of fact or law established – Appeal dismissed – Husband to pay the wife’s costs of this appeal in a fixed sum. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Adjourn proceedings – Challenge to the completeness of documents in the Appeal Book – Orders sought by the husband cannot be made by the Full Court – Adduce further evidence – Documents sent by the husband on the afternoon before the appeal hearing – Documents not relevant to the appeal – Leave refused. |
| Family Law Act 1975 (Cth) ss 80, 94(2A), 97, 117 Family Law Rules (Cth) Sch 3, r 22.20 |
| Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 |
| APPELLANT: | Mr McMillan |
| RESPONDENT: | Ms McMillan |
| FILE NUMBER: | CSC | 355 | of | 2015 |
| APPEAL NUMBER: | NOA | 1 | of | 2020 |
| DATE DELIVERED: | 16 October 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane (via video link) |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Ryan JJ |
| HEARING DATE: | 25 September 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 December 2019 |
| LOWER COURT MNC: | [2019] FamCA 928 |
REPRESENTATION
| THE APPELLANT: | Litigant in person |
| SOLICITOR ADVOCATE FOR THE RESPONDENT: | Mr Lago |
| SOLICITOR FOR THE RESPONDENT: | WGC Lawyers |
Orders
The Application in an Appeal seeking to adduce further evidence filed on 7 September 2020 be dismissed.
Leave to file two Applications in an Appeal dated 24 September 2020 be refused.
The appeal against the orders of a judge of the Family Court made on
5 December 2019 be dismissed.
The husband pay the wife’s costs of the appeal fixed in the sum of $3,898.23 within forty-two (42) days of the date of this order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McMillan & McMillan (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A (b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 1 of 2020
File Number: CSC 355 of 2015
| Mr McMillan |
Appellant
And
| Ms McMillan |
Respondent
REASONS FOR JUDGMENT
Mr McMillan (“the husband”) and Ms McMillan (“the wife”) have been litigating for years. By an Application in a Case filed on 3 September 2019, the husband sought that the primary judge recuse himself from further hearing the matters between the parties. On 5 December 2019, the primary judge declined to recuse himself, and it is from this order that the husband now appeals. The primary judge also ordered that the husband pay the wife’s assessed costs of that application. The husband also appeals that order.
It would not give the proper context to a discussion of the points presently on appeal if an abbreviated history of the litigation between the parties was not first set out.
Over the years in which the husband and wife have been litigating, and from 1998 until 2008, a number of costs orders in the total amount of about $19,000 were made in the wife’s favour. For reasons not apparent, she chose not to enforce those orders until 15 June 2015 when she obtained a warrant to enforce the payment of those orders. That warrant sought the costs ordered together with interest of about $27,000.
The husband responded seeking that the warrant be “dismissed, struck out or stayed” and that the costs orders themselves be set aside by reason of fraud on the part of the wife and her legal representatives and, equally fraud in obtaining the warrant.
The primary judge permanently stayed that warrant finding that, given the wife’s delay in seeking to enforce the costs orders, it was not appropriate that she include a claim for interest.
Thereafter the litigation continued. It is unnecessary to traverse all of the various applications which then ensued but we note that on 16 June 2016, a further enforcement warrant was issued seeking a sum comprised of just the ordered costs. In August 2017, the wife, through her lawyer, sought to withdraw that warrant on the basis that the amounts claimed in it were inaccurate, a course objected to by the husband who wanted it dismissed or struck out. On 28 September 2017 at the wife’s request, the primary judge permanently stayed the enforcement warrant of 16 June 2016. However, on 9 October 2017 the wife sought a further warrant to enforce the costs orders to correct the earlier amount said to have been inaccurate. In response, the husband opposed the issuing of a further warrant.
The litigation between the parties continued both at first instance and on appeal. As we have said, on 5 December 2019, the primary judge declined to recuse himself from further hearing the matters and made the order for costs.
The application before the primary judge
The husband’s application was supported by an affidavit and written submissions. His Honour’s reasons capture the basis on which the husband sought his recusal and it is of assistance to set them out here:
5.… Many of the allegations are difficult to follow, but helpfully the wife in her written submissions filed 23 September 2019, distilled the matters of complaint as follows:
6.The Husband’s case as stated in his Submissions is as follows:-
(a)The Judge has shown bias from the outset by allowing such a matter to proceed.
(b)The Judge made comments that show him to be totally unsuitable to continuing in this matter when he said “It seems probable that in fact the Husband and his second Wife continued to cohabit after those orders” and that he made a finding of fact echoing the [wife’s] lawyer’s lies to the court.
(c)The Judge to date has shown an inability to bring these matters to a finality. He has prolonged these matters for his own entertainment and to the detriment of all parties. He has wasted more of the court’s and the [husband’s] time and resources by not “striking out” the matter “forevermore.”
(d)The Judge is aware that the [wife] is liable for prosecution for making false and misleading statements, misleading a Federal Court, obtaining financial gain by deceit and perjury. The Judge is aware that the Wife’s lawyer is liable for prosecution because he ought to have known that the Wife’s sworn statement to the court were false and misleading. It follows that the Judge has shown himself to be biased in protecting the Wife and the Wife’s lawyer by failing to refer them for further investigation by a suitable criminal investigation body and in doing so has assisted in the concealing of a crime.
6.2The Husband makes further submissions in relation to Res Judicata but [it] is submitted that those submissions do not and can not relate in any way to the recusal application.
(As per the original)
His Honour said:
10.However now the [husband] has gone one step further, and in his submissions has accused me also of being corrupt, assisting to conceal a crime, and acting to pervert the cause [sic] of justice. Those are, of course, perhaps the most serious allegations that a litigant can make against a judicial officer. There is absolutely no factual or legal basis to them. Although not raised by the [husband], I have nonetheless given some thought as to whether or not the fact that he has made such serious allegations directed towards me may, of itself, reasonably suggest to a fair minded lay observer that, in some generalised way, I may not bring an impartial mind to bear in determining questions of fact and law as between the person who has made those allegations against me, and another party.
His Honour declined to recuse himself and further, ordered the husband to pay the wife’s costs of meeting that application, those costs to be assessed on a party/party basis.
Before turning to the grounds of appeal, it is necessary to consider a number of applications in the appeal made by the husband.
Application to adjourn the appeal hearing
On the afternoon before the appeal hearing the husband attempted to file two Applications in an Appeal. Although the husband sought to move on two applications, the orders sought in each are broadly similar and it is not entirely apparent why he chose to seek those orders in two applications. In general terms he sought the following orders:
·That the appeal be adjourned to afford the husband time to argue his application to seek a judicial corruption investigation, a crime and corruption investigation and obtain legal advice and legal representation in seeking a publication order;
·That the Full Court make a publication order; “[s]o that I may Publicise My 25 Years of Hell, Dealing with The Crime and Corruption in The Family Court of Australia and Seek to Bring about some Much Needed changes such as Those Identified in the Matter of [McMillan]”;
·That the Full Court transfer “these Matters” to the criminal courts or “other Suitable Jurisdiction” with the power to hear and determine the “Criminal aspects of these Matters and with The Power to Punish and Deter for These crimes Identified in the Matter of [McMillan]”;
·That the Full Court order a “Full Investigative Inquiry” into the conduct of the primary judge and three judges of appeal;
·That the Full Court order a “Full Investigative Inquiry” into the conduct of the wife and her solicitor;
·That the Full Court conduct a “Proper Separate Costs Hearing” at some later date after all the matters are resolved;
·That the appeal be adjourned to allow the husband to take legal advice about “Reopening or Reviewing” earlier appeals (Appeal Nos. NOA 11 of 2017, NOA 12 of 2017 and NOA 42 of 2017);
·That the appeal be adjourned to enable the husband to comply with the Court’s request to supply “Costs/Financial Documents for a ‘Complete Schedule of Costs’” for the Court;
·That the appeal be adjourned to permit the husband to obtain an accountant to calculate his “Costs Wasted to date”; and
·That the appeal be adjourned because the husband has been suffering from “Mental Stress, Depression and Anxiety” which he says is directly related to the “Fraudulent Litigation” and is mentally unfit to participate in a “Full Hearing of Costs and other Matters to be Heard at this Time”.
(Husband’s Applications in an Appeal and supporting affidavits dated 24 September 2020) (Quotations as per the original)
So far as the references to a costs schedule are concerned, it appears that the husband is referring to the direction, usually made, in preparation for appeals in which the parties are directed, that if an application for costs of the appeal is to be made, that party is to file and serve a schedule of the claimed costs, calculated by reference to Sch 3 of the Family Law Rules (Cth) (“the Rules”). That is the limit of any costs schedule required by the Court. In fact, the husband had filed a schedule of costs which span the entirety of the litigation, not merely the preparation for the instant appeal.
Further, in oral submissions, the husband contended that notwithstanding sending complete documents supporting his applications, he discovered that pages of those supporting documents were missing. That led him to submit that the proceedings should be adjourned to enable him to ensure that all of the documents on which he sought to rely, were before the Court. Further, he submitted that he needed an order that he could publish to the legal profession the failure of the Court to properly deal with documents filed electronically.
However, in preparation of the appeal, the husband, as appellant, was required to certify the completeness of the Appeal Book pursuant to r 22.20(2) of the Rules, which he did on 28 May 2020. Thus, while documents relevant to the applications the husband wished to pursue in this Court may (or may not) be complete, as we have concluded that none of the orders he seeks are within the power of this Court to make, those applications will not be considered, and leave to file those applications will be refused.
Equally so, the husband’s application for an adjournment in order to prepare to argue for those orders was dismissed during the appeal hearing.
Application to adduce further evidence in the appeal
On 7 September 2020, the husband sought to adduce a great deal of evidence in the appeal being his Application in a Case and supporting affidavit filed in June 2017, and an Application in a Case and supporting affidavit filed in July 2017. The basis on which the husband sought to adduce this material was set out in his affidavit in support of the application to adduce further evidence as follows:
3.I consider that this Further Evidence will assist The Court Greatly in Determining if [the primary judge] has acted at all past times in accordance within The Laws of The Commonwealth and within The Principles of Justice and Equity and is a Fit and Proper Person to Continue having Conduct and Control of This Matter.
4.In The Best interest[s] of Preserving Confidence in The Family Court Judiciary, I ask that The Court Enter into the Appeal Records, These aforementioned and listed Documents, as Hereto Attached with this Affidavit and read them thoroughly in [sic] Use them in Conjunction with All other Documents and All other Things to be Considered in This Appeal.
(As per the original)
The documents sought to be adduced and the purpose to which the husband would put them are irrelevant to any issue to be considered on this appeal and the application will be dismissed.
The appeal
The husband acts for himself and drew the grounds of appeal in the Notice of Appeal filed on 2 January 2020. The grounds are difficult to understand however, more importantly, rather than assert a proper legal challenge to his Honour’s orders, the husband uses the grounds as a vehicle through which he makes broad, unspecified and unsupported criticisms of the primary judge, the wife and her lawyer, and the general conduct of the proceedings over the years.
For example, Ground 1 contends that the primary judge denied the husband procedural fairness and natural justice:
… because of the conduct of The Preciding [sic] Judge, the conduct of the Respondent Ex-wife and the conduct of [the] Lawyer [for the wife] from the outset of and throughout the entirety of these proceedings.
(As per the original)
Grounds 2 and 3 contend that the primary judge failed to act in accordance with the Family Law Act1975 (Cth) (“the Act”) in failing to acknowledge that he had the power pursuant to s 80(1)(k) to make “any other order… which it thinks it is necessary to make to do justice”, and pursuant to s 97(3) to proceed without “undue formality” and to “endeavour to ensure that the proceedings are not protracted”.
Grounds 4 and 5 contend that the primary judge erred in not dealing with the wife’s enforcement summons in the way contended for by the husband. Ground 8 argued that the primary judge erred in not making a costs order against the wife because of her past fraudulent conduct.
Only Grounds 6 and 7 bear any relation to the appeal before the Court, namely his Honour’s refusal to recuse himself and in making a costs order in the wife’s favour on the husband’s unsuccessful application.
No illumination is gleaned from the husband’s Summary of Argument filed on 22 June 2020 which, like the grounds, is rambling, unfocussed and occasionally ventures into ad hominem attacks on the primary judge, the wife and her legal representatives.
What was said by the Full Court of the Federal Court in Bahonko v Sterjov (2008) 166 FCR 415 is apposite here:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error… This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable [sic] error.
(Citations omitted)
Pursuant to s 94(2A) of the Act, this Court is entitled to give its reasons in short form in the event that the appeal is to be dismissed and if, in the opinion of the Full Court, the appeal does not raise any question of general principle. As these conditions are fulfilled here, we propose to give reasons in short form.
In essence, the husband’s grounds devolve to complaints that the primary judge had not acceded to his requests to bring a halt to the wife’s attempt to enforce costs orders against the husband, and that the primary judge did not find, as the husband contends, that the wife and/or her solicitor had sworn false affidavits in order to secure the costs orders and the enforcement summons. The husband, after reiterating his position about the false basis on which the orders were made, said:
Therefore the continuation of these matters any further is a futile exercise where the [wife’s] ongoing claims that ancient costs still remain unpaid cannot succeed if justice equity common sense are to prevail.
Given the evidence presented to [the primary judge] to date and now here before this [F]ull [C]ourt the very fact [the primary judge] intends to maintain conduct and I say rather misconduct of these matters is evidence in any fair minded person’s view that [the primary judge] is intending to award costs already paid to the [wife] and allow further costs to accumulate as a reward for the [wife’s] deceitful conduct.
(Husband’s Summary of Argument filed 22 June 2020, p.4) (As per the original)
There is little point in attempting to parse the balance of the grounds and the arguments, because, as we have said, they are little more than abuse and allegations unsupported by evidence and bear no relationship to the points being argued on appeal.
However, as we have also said, Ground 6 is relevant to the appeal and contends that the primary judge erred in not recusing himself because of what had been happening whilst his Honour has had the conduct of the matter. Nothing in his Honour’s recitation of the relevant law, or his reasons for judgment for dismissing the application, reveal any appealable error. As for Ground 7, that asserts that his Honour erred in making the order for costs, given that the conduct of the wife and her lawyer, had allegedly caused the litigation. However, that was an order well within his Honour’s discretion and no error has been demonstrated.
The appeal will thus be dismissed.
Costs
The wife sought an order for costs in the sum of $3,898.23. The husband’s appeal has been wholly unsuccessful (s 117(2A)(e) of the Act) and it is appropriate that he pay her costs of the appeal.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Ryan JJ) delivered on 16 October 2020.
Associate:
Date: 16 October 2020
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