Pitman & Hynes & Anor (No 2)

[2020] FamCAFC 310

FAMILY COURT OF AUSTRALIA

PITMAN & HYNES AND ANOR (NO. 2) [2020] FamCAFC 310

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant mother seeks a transfer of proceedings from a judge of the Family Court to the Full Court for hearing – Contempt application – Application dismissed.

Children and Young Persons (Care and Protection) Act 1998 (NSW)
Family Law Act 1975 (Cth) ss 4, 69N, 94AAA

Family Law Rules 2004 (Cth) rr 11.17, 11.18, 22.38

Pitman & Hynes [2020] FamCAFC 259

APPLICANT: Ms Pitman

RESPONDENT: Mr Hynes

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: WOC 772 of 2011

APPEAL NUMBER: EAA 133 of 2020

DATE DELIVERED: 11 December 2020

PLACE DELIVERED: Sydney

PLACE HEARD: In Chambers

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: Heard by way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT ORDER DATE: 31 August 2020

LOWER COURT MNC: N/A

REPRESENTATION

THE APPLICANT: Litigant in person

THE RESPONDENT: Litigant in person (not participating in the application)

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW (not participating in the application)

Orders

1. Leave is given to the applicant to rely on the affidavit filed on 7 December 2020.

2. The Application in an Appeal filed on 16 November 2020 is dismissed.

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 Pitman & Hynes (No. 2) 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 133 of 2020
File Number: WOC 772 of 2011

Ms Pridde

Applicant

And

Mr Hynes

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By her Application in an Appeal filed on 16 November 2020 Ms Pitman (“the mother”) seeks that the Full Court hear and determine an application that

   
   

   Mr Hynes (“the father”) be dealt with for contempt.  A number of difficulties attend that application, not the least of which is that the application that the mother wishes to be determined has not, in fact, been filed.

2. On 19 November 2020 orders were made pursuant to r 22.38 of the Family Law Rules 2004 (Cth) (“the Rules”) that the mother’s application to be heard by me in Chambers without an oral hearing after receipt of written submissions from the parties. The mother filed her submissions on 2 December 2020. The Independent Children’s Lawyer advised the Court that they did not seek to be heard in relation to the application. The father filed a Submitting Notice on

   
   

   7 December 2020.

3. It is helpful to set out some background to the dispute to give context to this application taken from the earlier reasons for judgment delivered on 22 October 2020 (Pitman & Hynes [2020] FamCAFC 259 (“Pitman & Hynes”)).

4. The mother and the father commenced their relationship in 1995, married in 1999 and separated in 2011.  The parties’ two children were born in 2003 and 2004.  When the parties first separated in 2011 the father filed an Initiating Application commencing parenting proceedings.  However, the parties reconciled and those proceedings were discontinued by the father in 2012.  The parties separated on a final basis in 2013 and in July 2014 the mother commenced proceedings for final parenting orders.

5. The parenting proceedings are listed for final hearing before the primary judge on 18 January 2021.

6. On 7 July 2020 the mother filed an Application in a Case seeking that the father be dealt with for contempt of a range of orders made in both the Federal Circuit Court and the Family Court dating back to 2016.  On 9 July 2020 this application was rejected for filing by a registrar because the registrar was of the view that the mother ought to have filed an application seeking to have the father dealt with for contravening orders, rather than be dealt with in contempt.  The mother did not re-file an application in contravention rather, she filed an Application to Review the Registrar’s decision.  That application was listed for hearing before the primary judge on 31 August 2020.  The primary judge declined to consider the Application for Review on that date but instead adjourned it to be dealt with at the commencement of the final hearing.

7. On 15 September 2020 the mother appealed his Honour’s decision to adjourn the application for review to the hearing.

8. She raises eight grounds of appeal which I set out here in full:

   1.        His Hon. Justice Harper, ERRED in LAW by making NO Orders in matters that were before the Court - Monday, 31 August 2020, in realtion [sic] to the Application in a Case for Review of Registar’s [sic] Decision.

   2.His Hon. Justice Harper, ERRED in LAW by identifying under the heading “IT IS NOTED THAT: A.” the Application in a Case for Review of Registrar’s Decision as matters that were before the Court on 31 August, 2020 and making NO Order relating to the notation.

   3.        His Hon. Justice Harper, ERRED in LAW by making NO Order in realtion [sic] to the Application Contempt that was the subject in review of the Application in a Case for Review of Registar’s [sic] Decision matters before the Court - Monday, 31 August 2020.

   4.His Hon. Justice Harper, ERRED in LAW by identifying under the heading “IT IS NOTED THAT: B.” the Application Contempt as being the subject of matters that were before the Court on 31 August, 2020 and making NO Order relating to Application Contempt being a separate matter to the Application in a Case for Parenting Orders.

   5.His Hon. Justice Harper, ERRED in LAW by identifying under the heading “IT IS NOTED THAT: C.” the Application Contempt associated documentation contents of Letter of Urgency / Application Contemt [sic] (correspondence to the court provided by way of affidavit), and Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case) by identifying the content of the documents as being matters that “the Court is not satisfied they are sufficiently urgent to be dealt with prior to the final hearing listed to commence on 18 January 2021.”

   6.His Hon. Justice Harper, ERRED in LAW by identifying under the heading “IT IS NOTED THAT: D.” the Order 2. “The requirements of sub-section 102NA of the Family Law Act 1975 (Cthe) [sic] are to apply to cross-examination of both parties.” made on 10 July 2020 as being matters that are identified in the Application Contempt where the [father] is not a victim of domestic violence and therefore is not eligible to make application under s102NA.

   7.His Hon. Justice Harper, ERRED in LAW where in Orders 2.-5. (inclusive) dated 22 April 2020 made reference to subpoena material where “The Independent Children’s Lawyer to have sole viewing access...”. Subsequent orders dated 10 July 2020 where item 7. identifies “All parties and legal representatives are directed to read all subpoena material prior to the final hearing; and”, where matters before the Court on 31 August 2020, identified His Hon. refused the [mother] and the [father] access to the referred subpoena materials.

   8.His Hon. Justice Harper, ERRED in LAW commiting [sic] acts of judicial prejudice in clearly stating on multiple occassions [sic] that he did "NOT UNDERSTAND" the [mother] and not providing the [mother] the opportunity to be understood.

   (Mother’s Notice of Appeal filed 15 September 2020) (As per the original)

9. On 15 September 2020 the mother also filed an Application in an Appeal that the hearing of the appeal against his Honour’s order be expedited.  That application was dismissed on 16 October 2020 (Pitman & Hynes).

10. I note here in passing that at the hearing on the expedition application, the Independent Children’s Lawyer raised the competency of the mother’s appeal, it being contended that the challenged order being merely procedural, no appeal lies from its making, it being neither an order nor decree (see s 94AAA and definition of “decree” in s 4(1) of the Act). This issue was not explored during the hearing of the first application because the mother argued that she was not in a position to argue the point, with it to be dealt with during the appeal hearing. The competency of the mother’s appeal remains unconsidered.

The 16 November 2020 application

1. On 16 November 2020 the mother filed a fresh Application in an Appeal.  This application seeks several orders which I set out in full:

   1. The Full Court of the Family Court of Australia grant leave for the Applicant to object to the proceedings of the Application Contempt - s112AP(1)(b) being heard and determined by the Family Court of Australia; identifying s109 of the Commonwealth of Australia Constitution Act and flagrant challenge to the Family Court of Australia and for the matter to be transferred to the Full Court of the Family Court of Australia under s69N of the Family Law Act 1975 (Cth).

   2. The Full Court of the Family Court of Australia expedite the matter of the Application Contempt with utmost urgency to be listed on the first available date in the Full Court of the Family Court of Australia under rule11.17(b) of the Family Law Rules 2004 (Cth).

   3. The Full Court of the Family Court of Australia expedite the matter of the Application Contempt with the utmost urgency to be listed on the first available date in the Full Court of the Family Court of Australia under rule11.18(1)(c); and rule11.18(1)(f) of the Family Law Rules (Cth).

   (As per the original)

2. Section 69N of the Family Law Act 1975 (Cth) (“the Act”) provides for transfers of proceedings commenced in courts of summary jurisdiction to the Family Court. Section 69N(2) provides that the parties must consent to the court of summary jurisdiction hearing the matter and s 69N(3) provides that where consent is not given, the court of summary jurisdiction must transfer the matter to the Family Court or Federal Circuit Court (or other courts not relevant to this application). Rule 11.17 and r 11.18 of the Rules provides the mechanism by which such a transfer can take place.

3. Thus, it seems by this application, the mother seeks an order that the Application to Review the Registrar’s decision be transferred from the primary judge to the Full Court first to hear and determine the application to review the registrar’s decision, and presumably, allow that application to be filed and then for the Full Court to hear and determine the mother’s application that the father be dealt with for contempt.

4. Clearly by its terms s 69N has no relevance to an application filed by the mother.

5. Order 1 is difficult to understand because it appears that the mother objects to the application for review being heard by the Family Court, yet she seeks that the Full Court hear and determine that application. I assume that Order 1 reflects the mother’s objection (made pursuant to s 69N of the Act) to the primary judge hearing the contempt application as part of her application that the matter be transferred for hearing to the Full Court.

6. In any event, there is no power in this Court to remove first instance matters to itself and even if there were, there is no basis on which the mother’s Application to Review a Registrar’s decision ought not remain where it is, within the control of the primary judge.

7. It is not at all clear why or how the application involves a matter arising out of the Constitution or its interpretation, nor do the mother’s written submissions filed on 2 December 2020 clarify the issue. Apparently she has served notice on the Attorney-General. No indication has been given that the Attorney-General will appear nor do I anticipate an appearance.

8. Notwithstanding there being no leave to file any further material, on 7 December 2020, the mother filed a further affidavit in support of the application in which she said:

   4.For the information of the Court enclosed herein is a copy of an affidavit published in the NSW Children’s Court… Application Contempt matters that were submitted to the Registrar of the Family Court of Australia - Sydney Registry on 7 July 2020, and refused for filing by the Registrar on the same date.

   …

   10.Published Affidavit in the NSW Children’s Court identifying NSW Police records referencing [the mother’s] criminal record with the NSW Police, refer to the Application Contempt… subject of the matters currently on foot in the Full Court of the Family Court of Australia are in direct contravene of s121 of the Family Law Act 1975 (Cth); and s105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Documents identified herein and marked as “SMP-01”

   (As per the original)

9. Annexed to the mother’s affidavit is a heavily redacted document which appears to be an affidavit sworn by a Caseworker employed by the Department of Communities and Justice and relating to an application brought pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

10. The document, as far as can be discerned relates to the mother and her involvement in care and protection proceedings of a third person.

11. An annexure in the affidavit bears the heading: “Events Involving [the mother]”.  This part of the affidavit appears to contain information obtained by the author of the affidavit through various criminal history searches, and includes references to proceedings in the D Town Local Court against the mother.  The author also makes reference to information gleaned from files held by welfare authorities in other states.

12. Nothing apparent in that document refers to the family law proceedings now on foot.

13. Turning then to the written submissions filed on 2 December 2020, the mother refers to the proposed contempt application and submitted the following:

    ...

    The unconscionable conduct undertaken by [the father] amounts to acts that are identified as indictable offences under the Crimes Act 1900.

    These indictable offences are identified in the Application Contempt and until such time as the Application Contempt is brought before the Court the indictable offences and acts of perjury undertaken by [the father] remain on public record, and have now been published in alternative jurisdictions.

    Publication “of fact” that are the acts of perjury undertaken by [the father] identified as the acts of favorable challenge against the Court in the Application Contempt – have been identified in the affidavit accompanying this Application in an Appeal for expedition.

    For the information of the Court I have further filed a secondary affidavit in this matter that includes information published “as fact” to further identify the acts of Contempt [the father] has undertaken against this Court.

    The publication of these documents in my field of work prove [the father] has undertaken intentional acts of perjury as a vexatious and malicious campaign of deformation [sic] of character for his own personal gain.

    ...

    (Mother’s written submissions filed 2 December 2020, p.3) (As per the original)

14. Additionally, the mother, in her affidavit of 7 December 2020, attaches a number of documents including police occurrence records which the mother says demonstrates the father’s:

    11. … premeditated and purposeful intention to engage the lower courts to directly influence the natural justice of the matters… currently on foot in the Family Court, identifying the Contemp [sic] with flagrant challenge as defined under s112AP(1)(b) of the Act…

    (As per the original)

15. Whatever the documents may or may not show, they have no relevance to the application presently before the Court which, as I have identified, seeks the transfer of the mother’s Application to Review a Registrar’s order to the Full Court and for which no power exists.

16. The application has no merit and must be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

11 December 2020.

Associate:

Date:  11 December 2020