MCNAMARA, EX PARTE ROSE

[2013] FamCAFC 59

FAMILY COURT OF AUSTRALIA

MCNAMARA, EX PARTE ROSE [2013] FamCAFC 59

FAMILY LAW – APPEAL – Leave to appeal against dismissal of ex parte application seeking leave to institute proceedings – Where the foreshadowed application sought to discharge parenting orders and the trial Judge found there was no new evidence or a change of circumstances – Where the trial Judge found the foreshadowed contempt application had no prospect of success – Trial Judge applied correct legal principles to the evidence – No error – Application for leave to appeal dismissed.
FAMILY LAW – APPEAL – Application in an appeal for transfer of the proceedings to the High Court – No power – Application dismissed.

Family Law Act 1975 (Cth) ss 94(2A), 118
Family Law Rules 2004 r 4.06
Judiciary Act 1903 (Cth) s 40

APPELLANT: Mr McNamara

RESPONDENT: Ex parte

FILE NUMBER: MLC 6683 of 2010

APPEAL NUMBER: SOA 26 of 2012

DATE DELIVERED: 17 April 2013

PLACE DELIVERED: Perth

PLACE HEARD: Melbourne

JUDGMENT OF: Thackray, Murphy & Macmillan JJ

HEARING DATE: 4 March 2013

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 9 March 2012

LOWER COURT MNC: [2012] FamCA 121

REPRESENTATION

COUNSEL FOR THE APPELLANT: In person

SOLICITOR FOR THE APPELLANT: N/A

IT IS ORDERED THAT

1. The application in an appeal filed 11 September 2012 be dismissed.

2. The application for leave to appeal filed 4 May 2012 be dismissed.   

IT IS NOTED that publication of this judgment by this Court under the pseudonym McNamara, Ex parte Rose has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 26 of 2012
File Number: MLC 6683 of 2010

Mr McNamara

Appellant

And

Ex parte

Respondent

REASONS FOR JUDGMENT 

Introduction

1. By amended Notice of Appeal filed 4 May 2012, Mr McNamara (“the appellant”) seeks leave to appeal against the order made by Cronin J on 9 March 2012 dismissing his ex parte Application in a Case filed on 25 January 2012 in which he sought leave to institute proceedings.  There was no respondent named in the Notice of Appeal. 

2. On 27 August 2012, the appellant filed a “Notice of A Constitutional Matter” in which it was claimed that the appeal involved matters arising under the Constitution. An amended form of this document was filed on 8 January 2013. The appellant served the amended Notice on the Attorneys-General of the Commonwealth and each of the states and territories. None of them sought to intervene in the proceedings.

3. By an Application in an Appeal filed 11 September 2012 the appellant now seeks the transfer of the matter to the High Court.

4. The appellant has put much effort into the preparation of the various documents filed in this appeal.  We have read those and listened to his submissions and have done our best to identify and understand the grounds of his complaint.  However, the appellant’s propositions are not only hard to comprehend but also ventilate grievances already dealt with by this Court and the High Court.

5. It would be impossible to deal with each and every issue raised by the appellant, even assuming they could be clearly identified and were relevant. We propose instead to give brief reasons to explain why we intend to dismiss both the Application in an Appeal and the application for leave to appeal. Section 94(2A) of the Family Law Act 1975 (Cth) (“the Act”) permits the Court to give reasons in short form where an appeal is to be dismissed and does not raise any question of general principle.

Background

1. It is unnecessary to traverse the long history of the litigation between the appellant and the mother of his two children, who are now aged 18 and 15.  The following background will provide sufficient context.

2. On 27 January 2004, Mushin J made orders that the children’s mother have sole responsibility for their day-to-day and long-term care, welfare and development, that they live with her and that the father effectively have no contact with them.

3. Mushin J also ordered, pursuant to s 118(1)(c) of the Act, that the appellant be restrained from issuing further applications without leave of the Court, such leave to be sought ex parte.

4. The appellant has subsequently made various applications for leave to issue proceedings, including for Mushin J and the mother to be dealt with for contempt.  The orders dismissing those applications have in some cases been the subject of appeal and there have also been applications for leave to appeal to the High Court, all of which have failed.  On one occasion, the appellant’s Notice of Appeal was described in the High Court as “incomprehensible” and “hopeless”.  Subsequently, an order was made in the High Court preventing the appellant from making any further application to that court without leave. 

5. In late 2011, the eldest child, who was then almost 17, filed an application seeking orders to allow him to travel overseas.  On 28 November 2011, Senior Registrar Fitzgibbon made orders by consent of the applicant child, the appellant and the mother to that effect.  At the same time, orders were also made by consent discharging all parenting orders in relation to the eldest child. 

6. Prior to the hearing on 28 November 2011, the mother’s solicitor wrote two letters to the oldest child.  The first suggested that he did not adequately understand what he was endeavouring to do.  The letter also said he could not swear an affidavit without leave of the Court because he was under 18, and suggested that he obtain legal advice.  The second letter advised him that he was unable to make the application himself and that it should be made on his behalf by the appellant. 

7. On 25 January 2012, the appellant filed an Application in a Case seeking leave to bring an application regarding the youngest child, and for that purpose, to discharge the orders made by Mushin J on 27 January 2004.  In the alternative, the appellant sought the same orders for the youngest child as had been made for the oldest child on 28 November 2011. 

8. The application of 25 January 2012 also sought to have the mother and her solicitor prosecuted for contempt, and for the oldest child to receive “punitive compensation/damages” arising out of “misrepresentations and contempts in the face of the Court”.  This related to the two letters sent by the mother’s solicitor to the oldest child during the proceedings in late 2011.     

9. The appellant’s application was dismissed by Cronin J on 9 March 2012.  It is that order that gives rise to this appeal.

The trial Judge’s reasons

1. The trial Judge, after referring to background facts, dealt first with complaints about deficiencies in the transcript of the hearing on 28 November 2011.  Whilst the appellant sought to ventilate the same concerns before us, they have no bearing on the issues we are required to determine.  We need say nothing more about this topic other than to record that we are satisfied that the trial Judge’s approach to the issue was entirely appropriate.

2. Having identified that the only parenting order the appellant was pursuing was the one for the discharge of the orders made by Mushin J in 2004, his Honour observed that the appellant had provided no evidence of any new facts or circumstances.

3. His Honour then referred to Chapter 11 of the Family Law Rules 2004 (“the Rules”) and correctly identified that a court must not grant permission to start a case in circumstances where an order has been made pursuant to s 118 of the Act unless it is satisfied that the case has a “reasonable likelihood of success”. His Honour concluded that, in the absence of any evidence of new facts or circumstances, the foreshadowed application for discharge of the 2004 orders did not have any reasonable likelihood of success.

4. The trial Judge then turned to the foreshadowed applications for contempt.  His Honour commenced this part of his discussion by stressing the importance of keeping an open mind in dealing with a litigant whose applications have been found in the past to be without merit, and noted that the rule of law requires that a person should ordinarily have access to the courts.

5. Having next mentioned the seriousness of any contempt of court which undermines the administration of justice, his Honour observed, at [48]:

   The curious feature of this application is that the application by [the oldest child] was successful despite all of the apparent difficulties that [he] had to overcome as asserted by the [appellant]. 

6. His Honour then found, given the nature of the proposed application for contempt, that the charges would need to be proved beyond reasonable doubt.  He then considered the evidence of the appellant in light of that standard.  In doing so he repeatedly referred to the appellant’s evidence as “unintelligible”.

7. The trial Judge then considered the two letters sent by the mother’s solicitor to the oldest child. His Honour concluded at [63], correctly in our view, that the letters “seem to have been drawn in ignorance of the Rules or at least on an interpretation that is questionable”. However, notwithstanding the concerns he expressed about the letters, his Honour said at [74] and [75] he “could not see any prospect of the Court convicting the solicitor for wilful and contumelious misconduct” because the evidence could not “establish anything to the requisite standard”. His Honour therefore concluded at [76] that he could not be satisfied there was “any prospect of success let alone a reasonable one …”

8. He then made the order giving rise to the present proceedings.

The Application in an Appeal

1. The application for transfer of the proceedings to the High Court is misconceived. This Court does not have power to make such an order. Pursuant to s 40 of the Judiciary Act 1903 (Cth) it is the High Court, not this Court, which may order the removal of proceedings to the High Court. There is no other mechanism to achieve the outcome desired by the appellant.

2. Rule 4.06(2) of the Rules, upon which the appellant relied in seeking the order for transfer, has no application in this context, being directed to proceedings instituted by reliance on “a cross-vesting law”.

3. The Application in an Appeal will therefore be dismissed.

The Application for Leave to Appeal

1. The appellant sought leave to appeal Cronin J’s order, but did not explain why he believed leave to appeal was required.  Since the question whether to grant leave to appeal is always closely linked to the merits of the proposed appeal, and since we have heard full argument on the topic, we will discuss that issue first, albeit briefly.  Clearly, if the proposed appeal lacks merit, the application for leave to appeal should be refused.

2. As best we understand his argument relating to the proposed contempt proceedings, the appellant contends that the trial Judge erred by failing to conclude that the only possible characterisation of the conduct of the wife’s solicitor was that it constituted an attempt to undermine the administration of justice.  However, the fact that the solicitor’s letters misstated the law does not inevitably lead to that conclusion.  Nothing put to us by the appellant would suggest any error on the part of the trial Judge in finding that the proposed contempt application had no prospect of success.  On the contrary, his Honour identified and applied the correct legal principles and had regard to and applied those principles to the relevant evidence.

3. The appellant’s other complaint concerned the dismissal of that part of his application which sought the discharge of the 2004 orders concerning the youngest child.  The appellant submitted that as Senior Registrar Fitzgibbon had discharged the orders relating to the eldest child, the same should occur for the youngest child so that she could “lawfully escape [her] mother’s abuse”.  However, as Cronin J pointed out in his reasons, the father acknowledged that he was not seeking any parenting orders relating to the youngest child.  This is confirmed by reference to the transcript where the appellant expressly disavowed a desire to seek a “spend time with” order or an order for “personal contact”.  He went on to say that the youngest child makes contact with him when she wishes and commented that “it’s the only way I’ve always wanted it”. (Transcript 28 February 2012, page 16).  

4. Nothing put by the appellant persuades us that Cronin J erred in finding that the foreshowed application to discharge the orders relating to the youngest child had no reasonable likelihood of success.  It should also be noted that the circumstances relating to the two children were quite different.  The youngest child is three years younger than the eldest and, unlike her brother, was still living at home with the mother in circumstances where the father did not seek an order that she live with him.

5. There being no merit in the appellant’s complaints, the application for leave to appeal should be dismissed.

6. Although there was no merit in the proposed appeal, we acknowledge that there was some substance in one of the appellant’s submissions.  This concerned the reference by the trial Judge, at [48], to the “curious feature” of the appellant’s application, namely that the oldest child had succeeded in his application despite the difficulties he had faced in pursuing it.  We accept the appellant’s submission that actions which may undermine the administration of justice can constitute contempt, even if they do not ultimately have the effect of undermining justice.  However, it is apparent on any reading of his Honour’s reasons that the observation about the outcome of the earlier proceedings was no more than a comment made in passing, and had no impact on the decision.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 17 April 2013.

Associate: 

Date:  17 April 2013