McNamara and Rose
[2012] FamCA 121
•9 March 2012
FAMILY COURT OF AUSTRALIA
| MCNAMARA & ROSE | [2012] FamCA 121 |
| FAMILY LAW – PRACTICE and PROCEDURE - Transcript |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Re Attorney-General (Commonwealth); exparte Skyring [1996] HCA 4; [1996] 135 ALR 29 Slater and Slater [2004] FamCA 990 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 |
| APPLICANT: | Mr McNamara |
| RESPONDENT: | Ms Rose |
| FILE NUMBER: | MLC | 6683 | of | 2010 |
| DATE DELIVERED: | 9 March 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 28 February 2012 |
REPRESENTATION
| THE APPLICANT: | In person |
Orders
That the application in a case filed 25 January 2012 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McNamara & Rose has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6683 of 2010
| Mr McNamara |
Applicant
And
| Ms Rose |
Respondent
REASONS FOR JUDGMENT
On 25 January 2012, Mr McNamara (“the applicant”) filed an application in a case which the Registry made returnable on 28 February 2012 in the Judicial Duty List. It was an exparte application for reasons which will follow.
The applicant sought orders which in essence may be described as:
(a)leave pursuant to s 118 of the Family Law Act 1975 (Cth) (“the Act”) to bring an application regarding a child A now aged 14 years and for that purpose, to discharge orders of Mushin J made on 27 January 2004;
(b)alternatively, that the same orders that were made in respect of a child K on 28 November 2011 be made in respect of A;
(c)that the Court cause the Marshal to prosecute the solicitor for the applicant’s former wife for contempts in the face of the Court;
(d)alternatively, for the Court to grant leave for the applicant to bring the contempt application against the solicitor for the wife; and
(e)leave under s 118 of the Act (or s 117) on behalf of K to seek punitive compensation/damages for misrepresentations and contempts in the face of the Court committed by the wife’s solicitor.
In relation to the contempts, the applicant particularised them as follows:
i.that the solicitor wilfully wrote a letter to [K] regarding his application to the court without instructions which was thereupon a wilful misrepresentation of the law;
ii.that the solicitor in contempt of her duty to the Court, attempted to pervert the course of justice by making a personal wilful misrepresentation to [K] that he could not swear an affidavit without leave of the Court;
iii.that the solicitor committed a contempt of court by attempting to pervert the course of justice by wrongly causing undue duress to [K] that [K] could not make any application to the Court.
iv.that the solicitor to be found to have been in contempt of court for making a wilful misrepresentation by wrongfully referring to the father as having been barred from making applications to the Court and causing undue duress to a child who was a party to the proceedings and seeking that [K] withdraw his application;
v.that the solicitor was in contempt of court by making a wilful misrepresentation that Victoria Legal Aid should give [K] legal advice well-knowing that there had been a conflict of interests there because the wife had attended Victoria Legal Aid in the past; and
vi.that the solicitor had committed a contempt of court in making a personal wilful misrepresentation offering legal advice to a child in a contest involving her own client and knowing that the child had been unable to obtain proper legal representation.
The background of the s 118 order
It was not in dispute that the applicant is the subject of an order pursuant to s 118 of the Family Law Act 1975 (Cth) (“the Act”) made on 27 January 2004 by Mushin J precluding him from making an application in the proceedings.
One of the questions (although not argued by the applicant) was whether he needed leave at all to bring the contempt application to which I have referred.
A transcript problem
This matter was listed in a Judicial Duty List at the commencement of which virtually all parties in other matters requested time for discussion leaving the applicant alone in the courtroom when his case was called. He expressed surprise, if not disappointment, that there were not other people around and he remarked that I had cleared the court. I had not done so at all.
The reason for his concern was that he said he wanted to raise a problem relating to some transcript and although none of this material was referred to in his application, I allowed him to canvas that issue before I dealt with his application.
The applicant handed to the court three versions of transcript concerning proceedings before Senior Registrar FitzGibbon at a hearing on 28 November 2011.
The versions of transcript are clearly different to each other although they relate to the same hearing. Transcript had been ordered by the applicant and the Court had not been provided with a copy; at least, there was none on the file.
The applicant said that he was raising the subject for a particular reason. He thereafter used expressions such as his concerns were about people tampering with evidence, someone altering transcripts, past judicial conduct and that a document in a proceeding was a false document within the meaning of the Commonwealth Criminal Code 1995.
It took some time to get to the bottom of the matter but it appears that the applicant sought and obtained the 28 November transcript and it was immediately obvious to him that it did not accurately reflect the proceedings that had occurred. He apparently contacted the court’s transcription service provider with his query and a revised version was provided to him. Having received that, it appears that he was still not satisfied. Another version was then prepared. This variety of alterations to the transcript gave rise to his concerns and the use of the language to which I have just referred.
I have examined each of the printed transcripts.
The hearing on 28 November 2011 before Senior Registrar FitzGibbon concerned an application by the child K. K was one of two children of the applicant to whom the 2004 proceedings related.
The first revision (or the second transcript) and the original are the same until page 8 except for the use of the word “contests” which in the revised version was changed to “contempts”.
The third transcript (or the second revision) also demonstrates some differences. Words clearly not picked up in the first revision had been listened to and were added by the second revision. For example, there is a difference on the 9th page where a question mark is included but in the second revision, it is missing.
Notwithstanding the concerns expressed by the applicant, all differences appear to be of a minor nature. All of the errors are acknowledged by the court’s transcription service provider and outlined in an email to the applicant from their quality assessor.
I too expressed concerns about the inaccuracies but to the extent that had something to do with the language used by the applicant that I have earlier mentioned, I do not accept there is any evidence of impropriety or conspiracy to pervert or interfere with the administration of justice. I am satisfied that when a careful examination is made of the differences between the transcripts, it is obvious they came about by human error. The original transcript omitted that part of the proceedings following the conclusion of the initial application relating to K when a further discussion apparently took place about the applicant bringing a separate application in relation to K’s sister who is now the subject of the proceedings before me. I do not know why that was not included but I cannot imagine that there is any illicit purpose involved.
The two revised versions do not seem to me to affect what was really said.
Unlike the applicant, my concern is about the issue of the accuracy bearing in mind the reliance that the Court has on the contractor. Even taking that into account, what occurred before the Senior Registrar is not relevant to the application before me.
Accordingly I propose to have this judgment brought to the attention of the Registry Manager to take up my concern with the court’s transcription service provider.
History of applications
I have already mentioned the order made by Mushin J on 27 January 2004. To make sense of the background of this matter, because the applicant’s material was disjointed and confusing, I have examined only the history of the proceedings. It is not necessary or appropriate for me to contemplate the rights or wrongs of the previous orders notwithstanding the applicant might consider otherwise.
Subsequent to the orders of Mushin J in 2004, proceedings were brought by the applicant that were heard before Bryant CJ on two occasions. Subsequent proceedings were heard before Carter J. Those matters, inter alia, related to the Court hearing a contempt application against Mushin J for his handling of parenting proceedings involving the applicant and at least one application for leave to bring proceedings because of the s 118 order.
In 2007, dissatisfied with the decisions of this Court, including presumably the Full Court, the applicant filed an application for leave to appeal in the High Court of Australia. That came before Kirby and Callinan JJ on 1 August 2007. In his judgment, Kirby J referred to the applicant’s proposed Notice of Appeal as incomprehensible and said that it was “hopeless”. His Honour said that the applicant had no basis for his claims and any appeal would be bound to fail. The application was dismissed. Callinan J apparently agreed.
On 1 August 2008, in the High Court, Heydon J had an application before him brought by the applicant which culminated in an order that the Registrar of the High Court of Australia refuse to issue or allow the applicant to file, any application without leave of a justice of the High Court.
On 16 October 2008, presumably on the basis of Heydon J’s order, the applicant brought an exparte application for leave to issue a proceeding in the High Court. That application was heard by Kiefel J. Leave was refused.
In 2011, an application came before me wherein the applicant sought leave under s 118 of the Act to bring a parenting application. The transcript which I have read noted that in the discussion that ensued, the applicant withdrew his application.
Section 118 application relating to parenting issues
In the proceedings in this Court in November 2011, the issue was an application by the applicant’s child K to travel internationally in circumstances where he was under the age of 18 years. Senior Registrar FitzGibbon granted the application and was satisfied that not only was the s 118 order not relevant to the determination he had to make but also that all parenting orders in respect of K should be discharged.
The applicant now makes a similar application relating to his other child A.
However, in discussions, the applicant told me that he was not seeking any parenting order relating to A. What he wanted was an order discharging the orders of Mushin J relating to A.
No new facts or circumstances were provided by the applicant.
Section 118 of the Act provides that an order can be made at any stage of the proceedings preventing a party from bringing further proceedings if the Court is satisfied that the proceedings before it are frivolous or vexatious. The section provides that a court may discharge or vary an order which has been made precluding a person from instituting proceedings without leave of the Court.
Chapter 11 of the Family Law Rules 2004 sets out the procedures relating to such an application to discharge an order. The application must be an application in a case accompanied by an affidavit setting out the facts relied upon to establish the need for the order so sought. Importantly, the Rules provide that the Court must not grant permission to start a case unless it is satisfied that the case has a reasonable likelihood of success.
In Slater and Slater [2004] FamCA 990, O’Ryan J referred to the fact that the reason why this procedure was necessary was to prevent a respondent from needlessly suffering the time and expense of coming to court to oppose numerous unmeritorious applications. His Honour said that if the Court decided that the application had merit, only then should the requisite notice be given to the respondent.
When I asked the applicant what orders about A he wanted, his reply was as indicated. There is no order he is seeking of a parenting nature other than to discharge the existing orders. He does not want “contact” with his daughter. There are no new facts or circumstances set out in his affidavit. There is no prospect that on any of the evidence presented, such an application as the applicant foreshadows could have any reasonable likelihood of success.
Accordingly, paragraphs 1 and 2 of the application must fail.
The contempt application
The fourth order sought by the applicant which is in the alternative, seeks leave presumably under s 118 of the Act to bring the application for contempt against the solicitor who acted for the wife in the proceedings before the Senior Registrar.
The order of Mushin J on its face, was limited to the proceeding before his Honour. An argument might have been raised by the applicant that this was a different proceeding because it did not specifically involve the wife.
When I examined the judgment of Mushin J, it became apparent that the applicant had sought orders against the same solicitor requesting the Court deal with her for contempt on the basis that she had encouraged the wife to breach court orders. As such, it could be said that the action against the solicitor for contempt was part of the proceeding before Mushin J and therefore affected by his Honour’s order under s 118.
Section 4 of the Act defines proceedings to mean a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connection with a proceeding.
Having regard to the definition and clearly what had happened before Mushin J, I am satisfied there is power in the Court, inherent or otherwise, to control the bringing of applications in the course of one cause. That must be so if the Court has power to prevent a party abusing the process of the Court in circumstances that must be seen as a side issue. The definition in s 4 should be construed as referring to the original proceeding as well as anything connected to it. I am satisfied that this is still the same proceeding in one form or another.
In my view therefore, the argument, albeit not raised by the applicant, does not arise that this is a separate proceeding not caught by the s 118 order. Accordingly, leave is needed.
The applicant needs to show on the evidence that the case that he wishes to bring has a reasonable likelihood of success.
I am very conscious of the words of Kirby J in Re Attorney-General (Commonwealth); exparte Skyring [1996] HCA 4; [1996] 135 ALR 29 in which his Honour said that it was always important for every judge to keep an open mind in case the person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. His Honour went on to say:
Vigilance, and not impatience, is especially required where that person is not legally represented.
Kirby J also referred to the fact that it was a serious thing in this country to keep a person out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order to evoke their jurisdiction and as such, it was a rare thing to declare a person a vexatious litigant. I am mindful here that a justice of the High Court of Australia has recently done just that in respect of applications to that court.
Kirby J then said that the court must never shy away from the determination of a point sought to be argued simply because it may have major ramifications.
Because of the fact that the applicant was without legal representation, I endeavoured to read wider than his application and affidavit so that I could understand what his point was. Accordingly, I have read the document of the hearing before the Senior Registrar in November 2011 and in particular the final version of the transcript. This is not a case about keeping persons out of the court but rather whether the court ought to inconvenience the solicitor against whom allegations of contempt of court are made. There are clearly major ramifications in this case for a solicitor so found to be in contempt but that does not influence the decision I have to make.
In my view, the question is whether or not there is a prima facie case against the solicitor. In criminal law terms, a prima facie case would exist if a properly instructed jury hearing a charge such as contempt of court would permit a conviction bearing in mind that the standard of proof is beyond reasonable doubt.
Contempt of court is extremely serious. It is seen in a number of forms. The particular one alleged by the applicant is that the asserted conduct undermines the administration of justice. Anything which undermines the administration of justice must be seen as serious. The curious feature of this application is that the application by K was successful despite all of the apparent difficulties that K had to overcome as asserted by the applicant.
In Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, the High Court considered an appeal relating to contempt of court. Brennan, Deane, Toohey and Gaudron JJ discussed the distinction between criminal and civil contempt and said that a criminal contempt was committed either where there was a contempt in the face of the court or an interference with the course of justice. Their Honours said that the distinction between civil and criminal contempt lay in the difference between remedial and coercive proceedings. It is clear that at least from the perspective of the applicant, he intended for the Court to punish the solicitor if she was found guilty of contempt and to award damages against her rather than to stop her doing whatever it was said to be wrong.
Importantly, the High Court held that the consequence was that all charges of contempt had to be proved beyond reasonable doubt and that is the standard that I must examine when I contemplate each of the charges that the applicant wishes to bring against the solicitor bearing in mind that he faces the onus of establishing that leave should first be given in his favour.
Leaving aside the rules to which I have referred, as a superior court of record, this Court also has the inherent power to prevent an abuse of its process by striking out or staying proceedings which are clearly vexatious on their face (see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91).
In this case therefore I need to consider not only whether the applicant has a reasonable likelihood of success but in so contemplating that, whether this is also an abuse of the process.
The facts relating to the contempt
In his application filed 25 January 2012, the husband referred to an affidavit filed 18 November 2011. He referred specifically to paragraphs 2, 2(a), 3 to 3(e). Paragraph 2 of the affidavit referred to Mushin J “causing harm to the children”. He went on to make statements such as that the “dishonourable” orders of Mushin J had a purpose which was to conceal crimes committed by Bryant CJ and Mushin J “to name a few of the dishonest and dishonourable judges” involved in the cover-up of Mushin J’s crimes at the Bench. The rest related to the issue of the right of K to travel. He complained about the letters of the solicitor for the wife and other solicitors in the past relating to the
business of misrepresenting the law and fabricating financial income from Legal Aid, the wrongful duties performed/or duties not preformed (sic) in the name of a client.
As a statement of evidence, most of that was unintelligible.
In the affidavit filed 20 January 2012, the husband referred to the wrongful exercise of judicial power. This, he said, was consistent with the wrongful purpose and use of s 118 of the Act. Again, even taking into account the grammatical construction, the affidavit was unintelligible.
He referred to matters in 2003 relating to a demonstration of judicial abuse of power and “ill-will”.
He alleged that there were wilful breaches of the laws of Commonwealth for the judge’s own purpose and other unintelligible claims.
I do not propose to give air to matters that have been previously determined by not only this Court but by the High Court of Australia. The applicant referred to Kiefel J making “numerous falsehoods in her Honour’s reasons for judgment”. To the extent that this was material that might have suggested this Court had a power to review what had happened, the applicant was grossly misguided. Ironically, Kiefel J said that it was “difficult to discern” all the relief that the applicant would seek from the High Court if leave was granted. Her Honour said that it was not possible to discern the basis for the areas of relief identified. All of this information (because it was not evidence) apart from being unintelligible, did nothing to prove the matters that he asserted. I am conscious of the fact that s 55 and 56 of the Evidence Act 1995 (Cth) describes evidence as admissible if it is relevant for the purposes of having some probative effect on the decision that is to be made. Accordingly, most of what the applicant set out in his affidavit could not possibly be seen as evidence to support any application either relating to the parenting proceedings or that concerning the alleged contempts.
Being conscious of what Kirby J said in Skyring, I then turn to see whether there is something in the material that might justify the assertions against the solicitor relating to the contempt of court matters such as to warrant service upon the respondent.
The applicant asserted that the solicitor had attempted to pervert the course of justice by causing undue duress to K by making false claims that K could not file an application or swear an affidavit in the court without leave of the Court. Attached to the affidavit filed on 18 November 2011 was a copy of the relevant correspondence from the solicitor to K. On 7 November 2011, the solicitor wrote that the application had been referred to the wife for instructions. It was suggested by the solicitor to K that he did not adequately understand things he was endeavouring to do and that in several areas, he had been misdirected. The letter said that because he was under the age of 18 years, he could not lawfully swear an affidavit without leave of the court. The letter suggested that K obtain legal advice and suggested the local Victoria Legal Aid office or the local Community Legal Centre.
Section 100B of the Act provides that a child other than a child who is or is seeking to become a party to the proceedings must not swear an affidavit for the purposes of proceedings, unless the Court makes an order allowing the child to do so. To the extent that an applicant is under the age of 18 years, s 100B provides an exception in relation to a child who is already a party. It has nothing to do with the case where a party seeks to lead evidence from a child. To the extent that the letter dated 7 November 2011 asserts otherwise, the solicitor could be said to be wrong.
On 10 November 2011, the solicitor wrote to K again and said that because he was under the age of 18 years, he could not make the application himself. It was the solicitor’s view that the applicant had to make the application on behalf of K. Nothing in Chapter 4 of the Family Law Rules 2004 precludes a child making an application. However, Rule 6.08 provides that a child may start a case only by a case guardian. The rule goes on to provide that such a restriction does not apply if the Court is satisfied that a child understands the nature and possible consequences of the case and is capable of conducting it.
Both the letters of 7 November 2011 and 10 November 2011 seem to have been drawn in ignorance of the Rules or at least on an interpretation that is questionable.
According to his affidavit, the applicant said that the Senior Registrar wrongly claimed that the child needed leave of the Court. I am unable to discern what actually happened and the Senior Registrar may very well have been right not so much that K needed the leave of the Court but that he needed a case guardian. The applicant however said that when he heard what had been said in the courtroom, he was offended by what was in his view, a wrongful claim of power to overturn the law of the Commonwealth at s 100B(1).
The transcript of the hearing on 28 November 2011 shows that it was the solicitor who said that her client’s issue was that the Court would need to give K leave to swear his affidavit and leave to proceed. Nothing that I can find in the transcript certainly up to page 7 of the ultimate revised version indicates that the Senior Registrar was at all concerned about the capacity of K to understand the nature and possible consequences of what he was doing nor that he was not capable of conducting the case himself. It is quite clear from the transcript that the Registrar was referring to the applicant (before me) as the respondent. In the latter part of the transcript beyond page 8, there are further discussions which clearly indicate that the Senior Registrar had determined the issue of K’s application favourably to K.
Accordingly, I do not understand what it is that is alleged as against the Senior Registrar (notwithstanding that there is no application before me that he acted in any contemptuous way).
I return then to the affidavit of the applicant.
I have already indicated that the applicant did not assert that he was seeking parenting orders other than a discharge of the existing orders and that in fact, he was not seeking contact. Accordingly, much of the affidavit was irrelevant to any fact in issue.
In his affidavit, the applicant referred to s 117 of the Act which he purported to use as a basis to make a costs application on behalf of K. This he somehow looped into the contempt issue on the basis that the solicitor’s directions to K were “dishonest” having regard to her duty to the Court of being “an Honest and Honourable broker of the Law of the Court”.
In whatever way I examine the reference to the costs application on behalf of K, there is no basis for me to treat the applicant as the agent of K. He has no parenting responsibilities under any order and having regard to the fact that the Senior Registrar treated K as an applicant in his own right, it is hard to see how that issue arises.
I turn then to the contempt issues against the solicitor.
The applicant seeks to have the Marshal of the Court prosecute the solicitor. I do not presume to determine how the Marshal might act. A court might charge someone with contempt in the face of the court and have the Marshal prosecute it if there was a ground to do so. Such a ground could only be asserted by the court if the facts were such that the court felt that there had been an affront to the dignity of the court and that such wilful conduct could be proved beyond reasonable doubt. Nothing here that I can see would satisfy me that the Court should do anything about this matter because I could not be satisfied that the evidence presented by the applicant would prove that the solicitor had done something in a wilful and contumelious way.
In my view, there is no logical reason under the Act or the rules of court why an applicant in any proceedings cannot bring a contempt of court application. In the applicant’s case however, he needs the leave of the court because of the order under s 118 of the Act. Therefore, the only issue now remaining is whether or not I can be satisfied that there is a reasonable basis to say that an application brought by the applicant himself has a reasonable likelihood of success.
I have set out the test for contempt of court above. I have set out the allegations in the first part of these reasons. Whilst I might have some concerns about the advice (to the extent that it was advice) given to K, I could not see any prospect of the Court convicting the solicitor for wilful and contumelious misconduct in writing the letters of 7 November and 10 November 2010. Nothing that I can see in the transcript indicates any similar conduct by the solicitor. In respect of the statement by the solicitor that K should get advice from the local Legal Aid office or the local Community Legal Centre, nothing could satisfy me at this stage that there was any prospect of a court finding beyond reasonable doubt that that was done by the wife’s solicitor wilfully knowing that Victoria Legal Aid would have a conflict of interest. I am convinced of that by virtue of the alternate suggestion that K go to the local Community Legal Centre. I would expect Victoria Legal Aid to indicate if such an approach was made that they had such a conflict. Thus, to suggest that the solicitor made the statement wilfully is stretching the English language too far.
It must be remembered that the onus of proof lies with the applicant. The standard of proof is beyond reasonable doubt. A respondent to such an application is not obliged to disprove anything. None of the evidence in my view would establish anything to the requisite standard.
I could not in the circumstances be satisfied that there is any prospect of success let alone a reasonable one in this case.
The applicant has been in and out of courts since 2004. Presumably, he has missed the best part of the lives of his children. He left the courtroom in 2004 before the conclusion of the proceedings. It must now be obvious that his grievances as articulated in his affidavit will never be able to be redressed in the legal system. He has been in the highest court in the country and lost. That is not unusual. What is unusual in this particular case is that a justice of the High Court of Australia precluded the applicant from bringing further applications without leave. It clearly indicates a concern of the High Court of Australia about what the applicant has been endeavouring to do not only in the past but also the future. His applications therefore have clearly been futile. He has sought prerogative writs from the High Court and been unsuccessful. The very litigation from which he absented himself is now, in one form or another, the targets of his complaint. There is an irony in that. He wants the courts, which can no longer help him, to right the wrongs in circumstances where he abandoned the hearing.
These views are not intended to exclude the applicant from making further applications in the future. To the extent that he has a reasonable application which has a prospect of success, he may make further applications. To do otherwise, is a complete waste of this Court’s time. It is perhaps obvious to say that his redress lies elsewhere in the political forums.
On the basis of the material before me, his application must be dismissed.
I certify that the preceding Seventy Nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 March 2012.
Associate:
Date: 9 March 2012
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