Rmp v BSP

[1998] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B35 of 1997

B e t w e e n -

R.M.P.

Applicant

and

B.S.P.

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 9.36 AM

Copyright in the High Court of Australia

KIRBY J:   By consent of the parties, this matter has been dealt with on the papers.  The Court has considered the written submissions of both parties. 

The applicant, RMP, seeks special leave to appeal to this Court from the Family Court of Australia.  The Full Court of that Court, on 8 July 1997, dismissed an appeal from an order of Justice Lindenmayer given on 10 June 1997.  It also refused to grant a certificate under the Family Law Act 1975 (Cth), s 95B, for leave to appeal to this Court. Hence this application directly to us.

The order of Justice Lindenmayer had dismissed an application by the applicant by which he sought, in effect, an extension of time within which to institute an appeal from earlier orders of Justice Hilton given on 25 July 1994.  By the last mentioned orders the applicant, by his then counsel, agreed with the representatives of his former wife and with counsel for the separate representative of the children of the marriage as to the custody and other matters involving the children.  The orders made by Justice Hilton conform precisely to the arrangements to which all parties and the separate representative of the children gave their consent.  Under the Family Court Rules, any appeal from that order was required to be lodged within one month.  See Family Law Rules - O32, r2(2).  The applicant apparently now regrets entering into that consent arrangement.  He suggests that he was poorly advised. 

The reasons for Justice Lindenmayer’s order included that:

(a)  the applicant had demonstrated no real grounds for an extension of time to appeal from the orders made three years previously;

(b)  the applicant had not, by evidence, explained the three year delay;

(c)  he had not shown substantial issues to be raised on an appeal; and

(d)  he had not persuaded him of any basis on which a Full Court might hold that Justice Hilton had made an error in the exercise of his discretion in entering orders to which the parties had consented.

The applicant appeared in person before the Family Court. By his written submissions to this Court he argued that the Full Court, like Justice Lindenmayer, had denied him justice, did not listen to him, prejudged his application and failed to determined the application by reference to the welfare of the children. He also made complaints of unelaborated wrongdoing by officers of the Family Court and by others, and unspecified violations of the Constitution and of religious principles.

It may be that the impression of prejudgment arose from the speed with which the judges of the Full Court of the Family Court came to their decision and the brevity of the reasons of the Full Court, being but 10 lines of transcript.  However, the reasons of Justice Lindenmayer were very full, detailed and accurate, being 13 pages.  Whilst keeping an open mind and avoiding prejudgment, it is ordinarily the duty of judges today to read the materials relating to proceedings before they sit.  Otherwise, they could not complete their lists.  To a lawyer looking at this case, it is obvious, as Justice Lindenmayer expressed it, that the applicant is “barking up the wrong tree”.  He may have remedies to seek a variation of the custody orders or their substitution by other orders.  But his efforts to appeal, so long out of time, against orders to which he gave his consent, are futile.  Perhaps a little professional assistance explaining this, and the reasons for it, and calling to his notice the proper procedures quietly and away from courtrooms might have saved the applicant a lot of frustration and anguish and the courts a lot of time.

The application for special leave is refused on the ground that the appeal would have no prospect of success.  A copy of these reasons is to be supplied to the parties.

AT 9.42 AM THE MATTER WAS CONCLUDED