MG & MG
[2000] FamCA 893
•20 June 2000
[2000] FamCA 893
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No SA16 of 2000
AT MELBOURNE File No ML7656 of 1996
BETWEEN:
MG
Appellant Husband
- and -
MG
Respondent Wife
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: KAY, HOLDEN & MULLANE JJ
DATE OF HEARING: 20 June 2000
DATE OF JUDGMENT: 20 June 2000
APPEARANCES: The Appellant Husband in person.
The Respondent Wife in person.
MG and MG
SA 16 of 2000
Coram: Kay, Holden & Mullane JJ
Date of hearing: 20 June 2000
Date of judgment: 20 June 2000
CATCHWORDS: COURTS AND JUDGES-Judges- Power to control proceedings-McKenzie Friend
H filed a Form 44 application seeking a review of consent orders made by a Registrar in October 1999. Those orders provided inter alia that parentage testing be undertaken by H, W and three children.
H sought orders requiring inter alia that W swear an affidavit setting out persons with whom she had a sexual relationship at the time of the conception of each of the children and that at W’s cost, each of the named persons undergo parentage testing. H also sought a specific order for a named person to undergo testing.
W sought that the Form 44 be deemed out of time pursuant to Order 36A Rule 5(2) and be dismissed. W deposed that for various reasons delays had occurred in arranging the parentage testing and further, that she could not afford to pay for the tests.
At the commencement of the proceedings, H sought leave to have a Mr Schorel represent him or assist him as a "McKenzie Friend". Mr Schorel sought to intervene in the proceedings. Morgan J refused those applications on the basis that Mr Schorel was a vexatious litigant.
Her Honour explained that she could not make orders against persons who were not parties to the proceedings without giving them an opportunity to be heard. In addition, there was no evidence to support the orders that he sought in his application.
On appeal, H listed many grounds of appeal essentially alleging that her Honour erred in not allowing Mr Schorel to assist the appellant as a McKenzie Friend and this refusal denied H a fair and proper trial.
Held (per curium) in dismissing the appeal:
Save for the leave of the Court to be granted usually only in exceptional circumstances, no person may appear as an advocate before the Court on behalf of another person unless they are admitted to practice, and in this Court have signed the High Court roll of practitioners. R v The Bow County Court; Ex parte Pelling [1999] 4 All ER 751.
A litigant may seek assistance from any person providing that in so doing the orderly and expeditious conduct of proceedings is not interrupted. That assistance would usually mean being able to consult some person sitting in the body of the court from time to time. It would normally not mean allowing that adviser to take over the case and suggest every word that should be spoken.
It was common knowledge to the Court by reason of its own records that Mr Schorel is a person who is the subject of an outstanding order under s 118 of the Family Law Act 1975, prohibiting him from commencing any proceedings under the Act without the leave of the Court. It would seem a most unusual and anomalous situation if a person who is prohibited from bringing his or her own proceedings without the leave of the Court could act as the advocate of other persons in the Court, when such a person is not a qualified practitioner.
The Review application was filed out of time. It had not been served on the third party against whom some orders were sought. Before the application could even be entertained, it was necessary to demonstrate that there was a basis for extending the time. There was no material at all before her Honour other than statements from the bar table, and it was quite appropriate for her Honour to dismiss the application in its entirety, save to the extent that the parties reached some agreement about what the real issue was, namely, determining the parenting matters.
APPEAL DISMISSED
REPORTABLE
KAY J: Before the Court is an appeal brought by the husband against orders made by Morgan J on 8 March 2000. Amongst what are mostly unintelligible grounds, he complains that he did not get a fair hearing, was improperly denied the assistance of a Mr Schorel as a "McKenzie Friend", and that her Honour ought not have summarily dismissed his application to review the consent orders referred to below.
The litigation that had brought the matter before Morgan J concerned issues about the parentage of three children born during the course of the marriage between the appellant husband and the mother of the children. Those three children are A, H and B.
It would appear from the material that child support issues had arisen between the parties and those issues led to questions of parentage. Orders were made by consent, on 26 October 1999, when each of the parties was represented by a solicitor. Those orders were as follows:
"1.That pursuant to Section 69(W)(1) of the Family Law Act, the wife, the husband, and the children, [A], [H] and [B] undertake a parentage testing procedure for the purpose of obtaining information to assist in determining the parentage of the said children.
2.That each of the aforementioned submit to the prescribed medical procedure to provide a bodily sample and to furnish information relevant to their respective medical and family history.
3.That the costs of such parentage testing procedure be paid by the husband no later than seven (7) days prior to the date of testing.
4.That should the husband not be shown to be the father of the said children or any one of the said children, then he be granted leave pursuant to Order 31B, Rule 10(1)(b) of the Family Law Rules to file an Application seeking a declaration pursuant to Section 107 of the Child Support (Assessment) Act 1989."
I interpose to say that such a declaration would be to the effect that he would not be a liable parent in respect of the children of whom it had been demonstrated that he was not the father.
On 8 February 2000 an application was filed by the husband seeking to review the orders made by consent by the Registrar on 26 October 1999. That application was outside the time prescribed by the Family Law Rules (Order 36A rule 5(2) - 7 days after the Registrar made the orders). Unless the review fell within the inherent power of the Court to remedy an obvious error by a person exercising delegated judicial power (see Murray and Tam; Director, Family Services ACT (Intervener) (1993) FLC 92-416; (1993) 16 Fam LR 982, at FLC 80,250; Fam LR 990) it became necessary to have such time extended before the Court could entertain the application for review. No formal application was made for the extension of time in respect of that application, nor was anything demonstrated that would have shown some error by the Registrar in having made the consent order.
The application to review the making of the consent orders was not supported by any affidavit material, but ultimately a Response and an affidavit in response were filed by the mother.
In the application itself, the applicant father sought the following 14 orders:
"1.That pursuant to Section 69(W)(1) of the Family Law Act the wife, the husband, and the children, [A], [H] and [B] undertake a parentage testing procedure for the purposes of obtaining information to assist in determining the parentage of the said children.
2.That the wife shall file within 2 weeks of these orders an affidavit setting out the identities of each person she had a sexual relationship with at the time of conception of each of the children of the marriage (see SCHOREL v SCHOREL, Treyvaud J 3-3-1986 Family Court of Australia) and the wife shall arrange at her cost for each named person she identifies in her affidavit, other than otherwise stated in these orders, to provide samples for paternity testing purposes as might be directed by Simons Genetype Diagnostics.
3.That the wife shall notify each and every person she identified in her affidavit, other than her husband, about her having implicated them and provide them with a copy of these orders.
4.That the person known as [D] is ordered to provide samples as may be required by Simons Genetype Diagnostics and/or otherwise as directed by these orders for the purpose of determining paternity of any and/or all of the children of the marriage.
5.That all adults referred to in these orders, including all and any person referred to in the affidavit the wife is to file in accordance to these orders, shall be obligated to sign all documents so required to be signed for the said paternity testing within two weeks of these orders.
6.That each of the aforementioned, including any person identified by the wife in her affidavit submit to the prescribed medical procedure to provide a bodily sample and to furnish information relevant to their respective medical and family history.
7.That the cost of parentage testing of the husband and [D] be paid by the husband no later than seven (7) days prior to the date of testing but where the testing result to a finding by the Court that one or more of the children is/are not the biological child(ren) of the husband then the wife shall have to compensate the husband all and any costs incurred in regard of the parentage testing procedure within two weeks of the date the orders are handed down finding one or more of the children not to be a biological child of the husband.
8.That the wife shall pay any testing cost associated to the testing of herself and the children.
9.That the wife in the proceedings and/or [D] and any other person referred to by the wife in her affidavit shall attend to the paternity testing procedure within four weeks of these orders or otherwise as may be directed by Simons Genetype Diagnostics for the purpose to provide samples as may be required.
10.That a decIaration pursuing (sic) to s113 of the Family Law Act 1975 is made declaring the paternity of each child according to the testing results and further evidence presented before this court.
11.That where the wife and/or [D] and/or any other person the wife may refer to in her affidavit (as ordered in these orders) fails to comply with the above orders the husband is entitled for an urgent hearing for the wife and/or [D] and/or any of the other persons referred to by the wife in her affidavit to be dealt with for contempt of court.
12.That subject to a finding of paternity against the husband that one or more of the children of the marriage are not declared to be his biological children the husband is given leave to apply, out of time to appeal to a judge of this court the "debt to the Commonwealth" assessed by the Deputy Child Support Registrar so far for the purpose to immediately have the assessed debt amended and, if applicable, be given a refund of any overpaid past collected child support charges. That the husband shall be entitled to file a Form 8 Application in this Court seeking a review of the previous decisions of the Deputy Child Support Registrar as to assessments made and this Form 8 application for all purposes shall be deemed to constitute a proper application for such appeal/review.
13.That the wife be ordered to pay all costs of these proceedings.
14.Such further and other orders as this Honourable Court may deem fit and proper to assist the husband in these proceedings."
The first of those orders sought to repeat one of the orders already made.
The next series of orders sought to require the wife to provide information about another particularly named person who might be the father of the child, and to require that person to undergo some parentage testing by providing bodily samples.
Order 10 sought a declaration pursuant to s 113 of the Family Law Act, declaring the paternity of each child according to testings result, and further evidence. [I should interpose to say that s 113 of the Family Law Act, a section speaking of the power to make declarations, is limited in its application to the making of a declaration of the kind referred to in paragraph (b) of the definition, of "matrimonial cause", namely a declaration as to the validity of the marriage or the dissolution or annulment of the marriage. That section has no application in respect of a declaration as to paternity of children.]
Order 11 sought to create a regime for dealing with an anticipated potential breach of an order that had yet to be made, and as such, was an order that was clearly inappropriate.
Order 12 sought to deal with giving the husband leave to appeal in respect of child support matters. Those matters are already covered by the existing orders.
Order 13 sought an order that the wife pay all of the costs of the proceedings. I should say that order 8 specifically asked the wife pay the testing costs associated with testing herself and the children, that issue already having been covered by the orders made in October.
When the matter came on for hearing before her Honour, the following interchange took place:
"HER HONOUR: [The husband], I have read the file in this matter and I want to make some preliminary observations. It is your form 44 application to review consent orders made on 26 October 1999. Is that correct?
[THE HUSBAND]: Yes.
HER HONOUR: And I notice you have Mr Schorel seated next to you at the bar table. What is the purpose of that?
[THE HUSBAND]: I would like to take leave for Mr Schorel to represent me.
HER HONOUR: I refuse that application. Mr Schorel is a vexatious litigant and your application is refused.
MR SCHOREL: Your Honour, may I make an application for leave to intervene.
HER HONOUR: No, you cannot.
MR SCHOREL: Can I give you the reasons why?
HER HONOUR: No, you may not at this stage, Mr Schorel."
Her Honour indicated that she was happy to hear from [the husband] whereupon Mr Schorel sought to interpose himself. Her Honour indicated that if [the husband] wanted time to talk to Mr Schorel out of the courtroom, she would shortly give him that time:
"...But, Mr Schorel, your position at the bar table - would you leave the bar - Mr Schorel, I said that I would give [the husband] an opportunity to talk to you out of court, but - - -
[THE HUSBAND]: Your Honour, I would like to tell you that I am under general sickness benefit."
There was then further discussion about the role of Mr Schorel, [the husband] saying he wished Mr Schorel to speak on his behalf. And her Honour said:
"[The husband], even if I had given leave to Mr Schorel to act as your McKenzie friend, he would not be entitled as a McKenzie friend to speak on your behalf. Do you understand that?"
After further discussion her Honour again indicated that if [the husband] wanted to talk to Mr Schorel outside the court he is welcome to do so. The matter was then stood down for about an hour and a half. Ultimately, her Honour concluded, with the consent of the wife, that there should be some adjustments to the orders so as to fix a time for the taking of the paternity test, but otherwise she dismissed the application.
She delivered very short reasons for judgment, which occupy some three pages. It is convenient to now set them out:
"1.Before the Court is a form 44 application filed by the husband on 8 February 2000 by which he seeks detailed orders by way of a review of orders made by consent by a Registrar of this Court on 26 October 1999. Those order(sic), in brief, were orders for parentage testing in respect of the three children, [A], [H], and [B]. The orders also provided that each of the husband, the wife and the children provide body samples, etcetera, relevant to their respective medical and family history.
2.The orders also provided that the costs of the parentage testing be paid by the husband no later than 7 days prior to the date of the testing. As I said, those orders were made on 26 October 1999, but the husband's form 44 was not filed until 8 February 2000, which is well outside the time for the filing of such applications provided for in order 36A, rule 5(1). The husband originally filed a form 49 alleging, as I understand it, that the wife was in breach of those orders. Upon receiving advice from a friend, Mr Schorell (sic), the husband withdrew that application which was filed on 7 February 2000. I mention that because in any event that application, if it were construed as an application to review the orders of the Registrar was also clearly well out of the time prescribed by the rules. In his form 44, the husband seeks detailed orders, several of which are directed towards persons who are not parties to the proceedings. For example, he seeks and order that one, [D], provide samples in relation to parentage testing.
3.He seeks orders that the cost of parentage testing be paid by [D] and other orders in respect of [D]. I explained to [the husband] that I could not make orders against persons who were not parties to the proceedings without giving them the opportunity to be heard in relation to these matters. I also explained to [the husband] that he had not filed an affidavit in support of his application, so that insofar as his form 44 application sought orders which were substantially different to the orders of 26 October, 1999, there was no evidence before the Court as to the basis upon which he sought those orders.
4.However, it appeared from what [the husband] said to me that his real concern was that no time limit had been placed on the order for parentage testing. The wife then informed me that she had in fact made an appointment for parentage testing to take place on 7 February 2000. She filed an affidavit on 8 March 2000, referring to that. She said the husband did and that that appointment was cancelled at the request of the husband.
5.As I understand, his reason for that was that he was, by inference, required to have seven days notice of the appointment in order that he could comply with the orders of 26 October 1999.
6.That being, as I understood it, the real thrust of the husband's concerns, I asked the wife whether she had any objection to an order being made imposing a time limit upon the making of an appointment for parentage testing. She said she did not. In those circumstances I propose to order that the orders of 26 October 1999, be varied to provide for a time limit.
7.There is one other matter I should refer to. At the commencement of the hearing, [the husband] made an application for leave to have Mr Schorell (sic) seated with him at the bar table as his McKenzie Friend. It appeared that [the husband] did not have a clear understanding of the role of a McKenzie Friend and in particular that a McKenzie Friend is entitled to assist by remaining at the bar table, but is not entitled to actually speak for the applicant. I refused that application for another reason, which is that Mr Schorell (sic) has been declared a vexatious litigant by this Court."
When the matter commenced today, [the husband] asked the Court whether Mr Schorel could speak on his behalf and the Court refused to allow that to occur, but indicated that Mr Schorel or any other person was free to sit in the body of the court and provide advice to [the husband], providing that that did not disrupt the proper conduct of the proceedings. The Court emphasised that the role was to be that of adviser not an advocate.
In Smith v R (1985) 159 CLR 532, on an application for special leave before the High Court, an issue arose as to whether or not an accused person was allowed to have a McKenzie friend at a trial. Gibbs CJ, whom Wilson, Brennan, Dawson JJ agreed, indicated as follows:
"The question whether an accused person should be allowed to have a "McKenzie friend" present at his trial is very much a matter of practice and procedure, within the discretion of the trial judge to decide. It would be far too absolute to say that an application to have a "McKenzie friend" should always be refused. All the circumstances of the case must be considered in deciding upon the application."
The issue of the role of a McKenzie friend, at least in its practice and application in the United Kingdom has been fully discussed in a recent decision of the Court of Appeal in R v The Bow County Court; Ex parte Pelling [1999] 4 All ER 751. Dr Pelling, it would appear, is a professional McKenzie friend, that being a person who, not being a qualified lawyer, makes a living from seeking to appear and assist other people in their litigation. The English cases are replete with references to Dr Pelling. In R v Bow County Court, the role of the person acting as what is known as McKenzie friend is significantly discussed.
In Collier v Hicks as far ago as (1831) 2 B & Ad 663, Lord Tenterton CJ said:
"Any person whether he be a professional man or not may attend as a friend of either party and may take notes, may quietly make suggestions and give advice. But no-one can demand to take part in the proceedings as an advocate contrary to the regulations of court as settled by the discretion of the justices."
Extrapolating that into contemporary language, save for the leave of the Court to be granted usually only in exceptional circumstances, no person may appear as an advocate before the Court on behalf of another person unless they are admitted to practice, and in this Court have signed the High Court roll of practitioners.
R v Bow County Court (supra) further limits the right of audience in cases that are heard in chambers, in saying that in chambers, as no member of the public has a right to be present, no person has a right to be there as an adviser, and that a judge may simply refuse to allow anybody in without giving reasons, although generally it is preferable to give reasons.
I think the dicta in the Bow County Court case is compelling. A litigant may seek assistance from any person providing that in so doing the orderly and expeditious conduct of proceedings is not interrupted. That assistance would usually mean being able to consult some person sitting in the body of the court from time to time. It would normally not mean allowing that adviser to take over the case and suggest every word that should be spoken. In some cases, where appropriate the judicial officer may allow the adviser or assistant to sit at the bar table and even speak to the Court (see Cooke and Stehbens (1999) FLC 92-839; (1998) 24 Fam LR 5).
In this case, what was sought both before her Honour and before us was for Mr Schorel to appear as an advocate and to speak to the Court on behalf of the litigant. It is common knowledge to the Court by reason of its own records that Mr Schorel is a person who is the subject of a current order under s 118 of the Family Law Act, prohibiting him from commencing any proceedings under the Act without the leave of the Court. It would seem a most unusual and anomalous situation if a person who is prohibited from bringing his or her own proceedings without the leave of the Court could act as the advocate of other persons in the Court, when such a person is not a qualified practitioner.
I see no reason to interfere with the exercise of discretion by the trial Judge in the circumstances in refusing to allow Mr Schorel to appear on behalf of the applicant in this case, or to partake in the proceedings beyond that manner in which her Honour described, namely, to allow the applicant to consult with Mr Schorel from time to time during the course of the proceedings, and to take such advice as he thought was appropriate.
It is suggested that the orders the subject matter of the appeal should include, amongst their substance, the rulings by her Honour that Mr Schorel neither be allowed to intervene in the proceedings nor be allowed to appear on behalf the appellant. I have significant doubt as to whether either of those rulings is an appellable decree within the meaning of s 94 of the Family Law Act. To the extent that they are appellable, in my view, in the circumstances of the case, no basis has been demonstrated for allowing an appeal in respect of those matters. There is no suggestion, in my view, that [the husband] has been denied any sense of appropriate justice, namely, a fair hearing in the proceedings.
Turning to the more substantive aspect of the appeal, namely the assertion that her Honour was in error in dismissing the review application. It needs to be emphasised this was an application out of time. Before the application could even be entertained, it was necessary to demonstrate that there was a basis for extending the time. There was no material at all before her Honour other than statements from the bar table, and in my view it was quite appropriate for her Honour to dismiss the application in its entirety, save to the extent that the parties reached some agreement about what the real issue was, namely, determining the parenting matters.
In respect of the other aspects of the application, namely, the making of orders against an as yet to be served or joined third party, it was clearly within her Honour's purview to appropriately refuse to make any such orders. Documents had never been served upon [D]. There was no evidence before her Honour to make it appropriate, even if they were served, to grant the orders as sought. There was already a consent order in respect of the costs of the parentage testing.
There is possibly still available some relief to the father in respect of recovery of any such costs now that the material demonstrates that he is not the father of two of the children. However, regard must be had to the decision of the High Court in Cachia v Hanes (1994) 179 CLR 403 as to the extent to which a litigant in person may recover costs in any event.
For these reasons, I would dismiss this appeal.
HOLDEN J: Yes, I also would dismiss the appeal for the reasons given by the presiding judge, and I have nothing to add.
MULLANE J: I agree with the order proposed by Kay J and the reasons he has given.
KAY J: The formal order of the court is that the appeal be dismissed.
I certify that the preceding
35 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
Associate
36