RM & LB

[2005] FamCA 1215

[2005] FamCA 1215

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA  Appeal No WA6 of 2005
AT PERTH  File No PT 4190 of 2001

BETWEEN:

RM
Appellant Husband
- and -

LB
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  KAY, HOLDEN & BOLAND JJ
DATE OF HEARING:                 22 November 2005
DATE OF JUDGMENT:             22 November 2005

APPEARANCES:  The Appellant Husband in person.

Mr Walker of Counsel, instructed by, DCH Legal Group, 15 Hay Street, Subiaco WA 6008, appeared on behalf of the Respondent Wife.

RM & LB
WA6 of 2005
CORAM:  Kay, Holden & Boland JJ
DATE OF HEARING:  22 November 2005
DATE OF JUDGMENT:                22 November 2005

Catchwords:           APPEAL –COSTS - asserted that trial Judge acted without jurisdiction and demonstrated bias when making an order for costs in a child matter – no error demonstrated – appeal dismissed.

1. KAY J:  This is an appeal against an order made by Martin J on 9 May 2005 that the appellant in these proceedings, contribute the sum of $9000 towards the respondent’s costs of the proceedings before her Honour payable in 3‑monthly instalments of $3000 each on 9 June 2005, 9 July 2005 and 9 August 2005.

1. The Notice of Appeal asserts “the Trial Judge failed to declare and prove Jurisdiction when she ruled that she had Jurisdiction”.  It asserts that she exhibited judicial bias and finally that she acted “oppressively and when interested”.

1. This is an appeal against a discretionary judgment and in order to succeed in an appeal against a discretionary judgment it is necessary to show an error of law or an error of fact or the judgment reached was effectively untenable. I refer to the matters well‑known and set out in House v The King (1936) 55 CLR 499.

1. I am of the opinion that the appeal does not raise any arguable question of general principle and accordingly I propose to give reasons for my decision in short form in accordance with the provisions of s 94(2A) of the Family Law Act 1975 (Cth).

1. As best I can understand it, the argument that is being raised principally in this appeal is that the judges of the Family Court of Western Australia and in particular Martin J do not presently have jurisdiction to deal with matters under the provisions of the Family Court Act 1997 (WA) because of amendments that were made in 2003 by the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) and in particular the removal and reference to her Majesty the Queen and replacing it with references to the State of Western Australia. This it is suggested somehow offends the principles of the constitution of the Commonwealth of Australia. As I am not persuaded that there is any conceivable merit in the argument as advanced I do not propose to further deal with it.

1. The second of the bases upon which it was argued that the orders were inappropriate and should be set aside was the Judge demonstrated bias.  Indeed, in her reasons for judgment her Honour dealt with an application for dismissal for bias concluding that no fair‑minded lay observer would reasonably apprehend that she would not bring an impartial or unprejudiced mind to the resolution of the question which she was required to decide, in particular whether the appellant should pay some of the costs of the proceedings involving the place in which the child, the subject matter of the proceedings, should be attending school.

1. The bases of bias were said to be that

·    the trial Judge had refused to admit into evidence a videotape in the substantive proceedings,

·    that because the father had commenced a private citizen's action against her asserting that somehow she had breached the criminal law of the State of Western Australia she should no longer have been heard to determine the issues in the family law proceedings and

·    finally, as best I can understand it, that there was seen by some person unknown in the course of the proceedings that some person in the body of the Court passed messages to counsel for the wife and that somehow this reflected on the impartiality of the trial judge.

1. I state the argument merely to demonstrate the reasons why this is a matter which deserves short reasons for judgment rather than extensive reasons for judgment. 

1. There is no attack upon the actual probity of the exercise of discretion under s 117 of the Family Law Act which provides the power the Court is to exercise in determining costs in family law proceedings.  Nothing has been demonstrated to us that would properly question the authority of Martin J to exercise jurisdiction under the provisions of the Family Court Act. Accordingly I would dismiss this appeal.

1. HOLDEN J:  Yes.  I agree.  The appeal should be dismissed for the reasons given by the presiding judge and have nothing to add.

1. BOLAND J:  I, too, agree with the reasons given by the presiding judge and have nothing further to add.

I certify that the 11 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate