SR & SA

[2006] FamCA 586

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT MELBOURNE Appeal No. SA61 of 2005

File No. MLF4028 of 2003

IN THE MATTER OF: SR

Appellant Father

AND: SA
(formerly SR)

Respondent Mother

CORAM: KAY, COLEMAN & WARNICK JJ

DATE OF HEARING: 5-6 JUNE 2006

DATE OF JUDGMENT: 7 JULY 2006

JUDGMENT OF THE FULL COURT

Appearances: The appellant father appeared in person

The respondent mother did not appear. Address for service: Mr Colin John Twigg, Harwood Andrews, Lawyers, Suite 3, 10 Watton Street, Werribee, VIC, 3030

Name of Appeal	SR & SA
Appeal Number	SA61 of 2005
Dates of Appeal Hearing	5-6 June 2006
Date of Judgment	7 July 2006
Coram	Kay, Coleman & Warnick JJ

Catchwords: APPEAL FROM DECISION OF FAMILY COURT JUDGE – PRACTICE AND PROCEDURE – PROCEDURAL UNFAIRNESS – The parties separated in 2002 – There was one child of the marriage born in October 1999 – Proceedings about parenting and financial issues, as well as some other applications, came before a judge for final hearing – On the day listed for trial, the father initially made no appearance but did attend the Court later in the morning but informed the trial Judge that he did not submit to the jurisdiction of the Family Court – The trial proceeded on an undefended basis, with Orders made that the child reside with the mother and that the father’s contact with the child be reserved – On appeal, the father argued that although he withdrew from the proceedings at first instance, the trial Judge had a duty to not only examine the entire Family Court file but to reject the evidence of the mother and his failure to do so amounted to a denial of natural justice – There was no evidence of procedural unfairness or denial of natural justice in the manner in which the trial Judge conducted the trial nor any error of principle in the conclusions reached – Where a party appears but refuses to accept the jurisdiction of the court and in any way participate in the proceedings, the hearing is to proceed on an undefended basis – As the father did not make himself or any other of his witnesses available for cross-examination, it was difficult to perceive what reliance, if any, the trial Judge may have been able to place on whatever material he might have discovered by examining the Family Court file beyond those documents identified as being relied upon.
APPEALS – FURTHER EVIDENCE – In his application in a case, the father sought to adduce the whole Family Court file, with subpoenaed material, as evidence, as well as evidence of matters being conducted in other Federal and State courts – It would not be proper to simply order that an entire file, including all subpoenaed material, be received by the appellate court as further evidence in respect of an appeal – In any event, to allow the evidence to be put before the court would virtually permit the father to avoid the consequences of his very own deliberate choice not to participate, when invited to by the trial Judge, in the proceedings at first instance.
APPEALS – EXTENSION OF TIME TO APPEAL – The father sought extensions of time to appeal five separate orders made by the trial Judge: (a) the release to the mother of the child’s passport; (b) interim property orders; (c) the dismissal of the father’s contempt application; (d) the refusal of the father’s application to stay the parenting orders; and (e) the refusal by the trial Judge to disqualify himself from hearing the stay application – The father’s explanation for the delay was, essentially, that he did not wish to appeal to the Full Court of the Family Court, preferring instead to seek a Writ of Prohibition or Certiorari in the High Court – The father’s explanation was a most unpersuasive one – In addition, the father’s application did not disclose any proposed grounds of appeal.

Abbott and Abbott (1999) FLC 92-582

Allesch v Maunz (2000) FLC 93-033

Browne and Pederson (1992) FLC 92-271

Chang v Su (2002) FLC 93-117

Lanceley and Lanceley (1994) FLC 92-491

Neil v Nott (1994) 68 ALJR 509

Tate v Tate (2000) FLC 93-047

That the appeal be dismissed. That the application filed 12 April 2006 be dismissed.

The marriage between the parties produced one child, a girl “D”, born in October 1999. When the marriage broke down in December 2002 and the father left the marital home, D stayed living with the mother. Difficulties arose about parenting arrangements and financial issues.
Proceedings were commenced in the Family Court of Australia. Interim orders were made prior to September 2005 and though none of those are the subject of appeal or application before us, one in particular is significant to the matters which the father raises on this appeal and in an application also before us.
That order was made by Morgan J on 14 May 2004. It suspended contact between the father and D.
On 15 September 2005 all then outstanding applications went before Young J. In reasons given ex tempore his Honour recorded that the father did not appear at 10.00am, the time for which the hearing was listed, but that he did appear at 11.00am “and addressed the court but did not consent to the jurisdiction of the court and has substantially (sic) left the Court for reasons that I will hereafter outline.” After Young J dealt with parenting issues, he proceeded to deal with a contempt application filed by the father, which he dismissed primarily for want of prosecution and made orders of an interim nature relating to a property settlement application.
In his Notice of Appeal filed 11 October 2005, in response to the question at Part C, “Are you appealing all of the orders?”, the father did not mark either “yes” or “no” but inserted “2.3.4. Other orders on 15 September 2005 open to Prohibition/Certiorari in the High Court”. Orders 2, 3 and 4 of the parenting orders of 15 September 2005 provided:
“2.    THAT the child [D] born 1 October 1999 (“[D]”) live with the wife.
3.     THAT the wife be solely responsible for both the day to day and long term care, welfare and development of [D].
4.     THAT the husband’s contact with [D] be reserved.”
The orders sought in the father’s Notice of Appeal, except that he be substituted for the position of the mother, were in the same terms as the orders appealed.
Before Young J the child D was separately represented. Both the child representative and solicitors for the mother have by written communication to the Registrar of the Court opposed the appeal but each has declined to appear.
The father’s appeal seems beset by a number of misconceptions on his part. However, bearing in mind what the High Court said in Neil v Nott (1994) 68 ALJR 509 at 510, namely:
“…a frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy.”
we think it incumbent upon us to examine the proceedings on 15 September 2005 for any procedural unfairness or denial of natural justice or for that matter, any error in principle. Beyond that, however, the miscellany of arguments raised by the father may be dealt with summarily.
In addition, we have before us an application filed by the father on 12 April 2006, in which he seeks leave to adduce further evidence in support of the appeal, as well as extensions of time to appeal other orders, some also made on 15 September 2005, and others made subsequently. He also seeks orders in respect of other matters in terms which, for reasons we will give, lead inevitably to their dismissal. The mother filed a response seeking the dismissal of the application.

The appeal

The Notice of Appeal contains three grounds, which are nonsensical.
Nonetheless, they are:
“D7. Under Family law rules 2004- REG 22.58 Application for certificate to appeal to High Court of Australia is sought but procedurally frustrated by paragraph “95(b) of the Act” removed from ‘the Act’.
Enclosed exhibit ‘A” extract of regulation 22.59, exhibit ‘B’ Family law Act index, exhibit ‘C” extract of s95 of Family law Act 1975 lacking paragraph 85(b).
Thus needing leave of the Full court of Appeal of the Family Court of Australia to determine this question;
‘Is the Full Court of Appeal of the Family Court of Australia totally independent of the Family Court of Australia’
The question arising from I the father whom states he has a basis to state the Family Court of Australia is not a competent jurisdiction as detailed in his application to the High Court as exhibit ‘D’ Form 61 Application for Special Leave to Appeal signed on 03 August 2004, and that he will not submit to the jurisdiction of the Family Court until his claim is tested in the proper court of law. It remains unheard due to procedural law abuse.
If Full Court determines it to be totally independent then I the father submit to its jurisdiction to Appeal on grounds as in Part D 7.1β or in the alternative as in Part D 7α.
PART D 7α
The Full Court of Appeal determine if it an error of law for family court executing the judicial power of the Commonwealth to hear the final trial on 15 September 2005 as an undefended case with father refusing to submit to the jurisdiction on basis family court not a competent jurisdiction and
-if not then state any objection at law for the question to be resolved by the Supreme Court of Victoria which being another superior jurisdiction.
-if so to order the issue of an Certificate for Appeal to the High Court of Australia from the common practice of the Family Court.
PART D 7 β
1.   Rule of inverse relationship between wrongdoing and liberty to rights and claims violated.
2.   Risk to child not properly considered by;
a. Error in law by failing to property apply rules of evidence,
b.Resulting in major error in relation to the main material facts of the case that
-    Father has a mental illness
-    Child is well cared for by a mentally ill ex-wife
-    Child is well
c.From justice proceeding with a strongly contested application and effectively ‘non-appearance party’ though aware it a complicated file where main evidence untested and claims of Procedural and substantive law failure of family court causing the current status quo of no father-child care and relationship still unresolved and relief being sought in external jurisdictions grounds for I the father refusing to submit to the jurisdiction of family court and adjudicated thus child’s current true status untested making final verdict on child matters outside reasonable range open to the trial judge.
3.   Rules and principles at law intrinsic with family court being vested with the right to execute the judicial power of the Commonwealth to the common people of Australia was violated.”
However, from the document filed by the father on 16 May 2006, in the style of a summary of argument, and the further document entitled “RE: 14-PAGE CONTINUING SUMMARY OF ARGUMENT TO FORM 2 APPLICATION” we discern that the arguments of the father are essentially that, firstly, having become dissatisfied with the conduct of interim proceedings and in particular what he regarded as reliance then upon untested material, he determined that the Family Court of Australia was not a competent jurisdiction. Therefore, according to the father, he had reason for not participating in the proceedings on 15 September 2005.
Secondly, the father asserts that though he did withdraw from those proceedings, Young J had a duty not only to examine the entire file, but (it seems) following such examination, to reject the evidence of the mother.
There are a number of observations that may be made about the first argument.
The father did not appeal any order made before 15 September 2005 and does not seek any indulgences to do so now. Therefore, even if the validity of the father’s stated reason for not participating in the hearing before Young J was relevant to his appeal, it is not appropriate for this court to now question the correctness of those decisions.
Moreover, whatever the father’s feelings about the interim proceedings that preceded 15 September 2005, we have some difficulty appreciating, in the circumstances later described, in what way he now stands “aggrieved” by either the earlier orders or those appealed.
On 14 May 2004, Morgan J ordered, in relevant parts:
“…
2.     That until further order, all orders for contact between the husband and the child [D], born 1 October 1999, be suspended.
3.     That both the husband and the wife attend upon a psychiatrist nominated by the child representative for the preparation of a psychiatric assessment and report with all costs to be borne equally between the parties and that both the husband and the wife abide by the directions of the child representative and the appointed psychiatrist in relation to the preparation of that report.
4.     That a report be prepared by Dr [EL] pursuant to the orders of 11 July 2003 and both the husband and the wife provide authorities to the appointed psychiatrist and to Dr [EL] to consult with Dr [SDG], Dr [MD], Dr [JW] and any other person the appointed psychiatrist or Dr [EL] considers may assist him or her in completing their assessments in relation to the parties.
…”
In her Honour’s extempore reasons she noted that it was the submission of the wife and of the child representative that contact be suspended pending the preparation of reports. Her Honour said:
“5.    …I am abundantly satisfied that in the circumstances of this case I could not fulfil my responsibilities to consider the best interests of this very young child without the assistance of a report prepared by an independent expert.
6.     …
7.     More difficult is the question of whether I should make an order for a psychiatric assessment. As I understand it, Dr [EL] has indicated to the child representative that she would be unable to prepare a report to her satisfaction without the availability of either a psychiatric or a psychological report.… ”
Her Honour referred to certain matters of which she had been informed supporting an order for a psychiatric assessment, but specifically said:
“9. None of those matters have been tested by cross‑examination. However, I am satisfied that there is sufficient material before the court to support the submissions for the wife and the child representative that this is a matter which requires a psychiatric assessment.…”
Two points worthy of note are that the orders required attendances by both the father and of the mother upon a psychiatrist and secondly, her Honour specifically noted that assertions had not been tested by cross-examination and that the purpose of the orders was simply to gain professional assistance before determination of whether contact orders should be made and if so, in what terms.
In any event, order 1 of the orders of 15 September 2005 provided:
“1. That all previous residence, contact and child related orders be discharged.
As there has been no contested hearing, we could not say that the father has no arguable case for residence, nor do we say that he has no real interest in pursuing that issue. However, it appears from the father’s submission that his particular point of contention has been, and perhaps still is, the order that he undergo psychiatric examination and the suspension of contact until that examination occurred. If this is so, it begs the comment that the order for psychiatric examination has been discharged and the issue of contact stands reserved. Thus, the father may be tilting at a windmill which has already fallen.
Turning then to the conduct of the proceedings leading to parenting orders made on 15 September 2005, we commence by summarising what his Honour said in his reasons about the course of those proceedings, his findings and conclusions.
Young J recorded that the basis upon which the father appeared before him was:
“7. …not on the basis of consenting to the jurisdiction of the court but on the basis that he would provide documents to highlight the actions that he is taking in the Magistrates Court, in the County Court, in the Children’s Court, in the Supreme Court and in the High Court and at one point it was indicated by him, before a grand jury of the Supreme Court.…”
His Honour continued:
“All those matters may be ongoing by the actions of the husband, but they do not in any way cancel out or indeed negate any of the jurisdiction of this court. I regard the children’s issues, the subject of this current extempore judgment, to be wholly, absolutely and properly before the court and I indicated to [the father] that I would hear and determine those issues.
8. It was his election to leave the court.…He was invited to stay. He was invited to participate in the proceedings and to make submissions to the court but he wholly declined so to do.”
His Honour then turned to a consideration of the material put before the court by the mother. He recorded that he had also read, apart from the affidavit of the mother, reports of psychologists, Ms EL and Mr SA and of Dr E, a psychiatrist. Each of those reports indicated that despite invitation and opportunity to do so, the father did not participate in the processes, including interviews, upon which those reports were based. His Honour indicated that the father was a qualified medical practitioner who had worked up until December 2002, when he ceased work because of illness. His Honour said:
“13. The husband has dealt with his illness in his own way and to the best of his ability. That however has been highlighted by his failure to accept and follow independent medical advice and to attend upon a psychiatrist or psychologist as directed by the court or as organised by the child representative. There is background by way of exhibited documents to various Medical Board procedures taken against the husband…”
His Honour also indicated that prior to the order suspending contact in May 2004, there had been some contact between father and the child on a Saturday, for several hours. His Honour said:
“15. On the basis of those two reports and the evidence of the mother I am satisfied that [D] is very well cared for by her mother. She attends school in [HC]. There are no concerns that the school have of either the child or the mother. [D] attends regularly at school and presents well. Mr [SA] identifies that various reports or notifications have been made to the Department of Human Services That Department is no longer involved in the proceedings. There are no care issues that the Department have with the mother. The best interests of the child are being promoted by her.
16. [The father], for whatever reasons, has not in any way co-operated with the professional psychologists or psychiatrist appointed. I accept that he was both invited and encouraged to make contact and to be involved in the reports and assessments but that he has declined. Mr [SA] observes that that situation is tragic for [D] irrespective of the reasons preventing the husband from accepting or dealing with his issues with the court.
17. It does seem from the comments that [the father] made in court this morning that he is pursuing actions in the Children’s Court and elsewhere but not in this court in relation to [D]. If so that is a serious misunderstanding by him of the jurisdiction of this court which is where issues of residence, contact and related parenting and specific issues for [D] must be determined. He has now been very clearly told of that fact.”
His Honour then referred to the terms of section 65E of the Family Law Act 1975 and of s 68F(2). He said:
“21. …On the material before me I am wholly satisfied that the mother does have a very close and loving relationship with [D], that she has both the capacity and the attitude to understand the needs of her daughter and to be responsible therefore. I contrast this to the father’s current relationship with his daughter.
22. I conclude that the best interests of [D] are properly dealt with by a residence order made in favour of the mother.
23. In the particular circumstances of this case I further conclude that there should be an order confirming the mother as the sole parent responsible for the care, welfare and upbringing of [D], both long term and short term..”

His Honour also referred to the objects and principles stated in s 60B of the Act, following which he said:
“25. …Contact is clearly in the best interest of [D]. In the circumstances of this case it is not being exercised, where the child is seemingly disappointed by not having any relationship with her father. That is by the father’s own choosing.
26. What I propose to do is to reserve contact. This is what the wife requested. I emphasise however that any resumption of contact should occur only upon the husband presenting himself to a psychiatrist and having an appropriate report prepared for the court and for the wife emphasising his understanding of the needs, safety and welfare of the child and his commitment to some ongoing and meaningful relationship.”
His Honour then turned to consider the question of the release to the mother of D’s passport which to that time was held by the Registrar of the Family Court. Then, towards the end of his reasons, his Honour noted that the father had returned and sat at the rear of the court. He said:
“What I propose to do in the interests of justice is to invite [the father] to the bar table and to tell him the orders I am about to make and again to ask whether he either agrees with the orders or consents to the jurisdiction of the court.”
Finally, indicating a lack of agreement to either position from the father, his Honour proceeded to make the orders as he had proposed.
His Honour’s description of what occurred in the proceedings before him is entirely consistent with what the transcript discloses.
We perceive no procedural unfairness or denial of natural justice in the manner in which Young J conducted the proceedings on 15 September 2005 nor, in the conclusions he reached, any error of principle.
As to any duty on Young J, in the circumstances presented to him, to examine the entire file and identify material filed on behalf of the husband, we make the following observations:
(a)The proceedings before Young J clearly became undefended in view of the position taken by the husband (see Abbott and Abbott (1999) FLC 92-582).
In Lanceley and Lanceley (1994) FLC 92-491, in respect of an application that was “undefended” or “unopposed”, the Full Court said at 81,104:
“Unlike some other jurisdictions, such a circumstance does and cannot lead, in this Court, to a “judgment by default” in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief. Nevertheless, the proceedings in such a case are clearly “undefended” and it would be a misuse of language to describe them otherwise. They certainly cannot be described as “defended”.”
In Tate v Tate (2000) FLC 93-047 the Full Court said at 87,712:
“In the exercise of its jurisdiction under the Family Law Act, this Court ought in the exceptional case where a matter is ordered to proceed “undefended” not follow the approach adopted by Drummond J (above). The Family Court of Australia is all too frequently confronted with litigants who fail in their duties of full and frank (and prompt) disclosure of their financial affairs. Where such failure results in a Form 7A being struck out, as here, then that party ought have no further right to be heard without further order of the Court which is a matter for the Judge in his or her discretion.”
In our view where, as here, a party appears but refuses to accept the jurisdiction of the court and in any way participate in proceedings, that party cannot be any better off than in the circumstances referred to in Tate v Tate.
After all, as Kirby J said in Allesch v Maunz (2000) FLC ¶93-033:
“35. It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.…
…
38.    …it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39.    Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40.    Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.” (references to footnotes omitted)
(b)It would of course be required of a Judge, should that Judge peruse a file beyond documents identified as relied upon by a party, to bring any material upon which the Judge might rely to the attention of any party potentially affected by it (see Browne and Pederson (1992) FLC 92-271).
(c)Having regard to the position that the father did not make himself or any other deponent of evidence on his behalf, available for cross-examination, it is difficult to perceive what reliance, if any, Young J may have been able to place on whatever he might have discovered.
Even where a party appears and participates in proceedings, that party may not be able to rely upon deponents not available for cross-examination (see Chang v Su (2002) FLC 93-117).
We see no error in the approach which Young J took in the determination of the applications before him for parenting orders.
In his document entitled “Grounds of appeal of final order and Judicial review under Administrative Decisions (Judicial Review) Act 1977” at paragraph 4, the husband referred to a number of passages in the reasons for decision of Young J, using the terms “error of fact”, “fault” and “fact”. These however are not assertions of mistakes of fact as that term is commonly used in appeals, but vary across assertions that Young J was unaware of matters of which he might or could have been made aware, and assertions that Young J failed to take account of material relating to proceedings in other jurisdictions, which the father endeavoured to put before him in support of his challenge of the Family Court’s jurisdiction. Of the material referred to, Young J said:
“6. …Subsequently, at 11.00 a.m. or thereabouts the husband appeared at court. I invited the husband to the bar table and he addressed the court indicating that he had come from the Magistrate Court where he had filed further proceedings in that court against the wife alleging some form of financial deception. The court did not accept the documents although they were placed by the husband on my bench. The documents were not otherwise served on the wife and the child representative.”
There is no merit in any of these arguments.

The application to adduce further evidence

While the father has produced to the court many folders of documents of incredible extent and variety, his application to adduce further evidence described that evidence as follows:
“2. Include whole file MLF4028/2003 with all subpoenaed material in appeal as evidence
3. Include further relevant evidence
-High Court application for prerogative writ on same orders
-County Court hearing relating to property
-Supreme Court of Victoria directions application for relief from same orders”
As to the matters referred to in paragraph 3, the proceedings in each of the courts mentioned are to some extent matters of record.
We are aware of the failure of the father in each of the courts. However, we are unable to see, and the father was unable to show, what relevance these matters have to his proceedings by way of appeal against the orders for residence, parental responsibility and contact.
As to the receipt of the “entire file”, we do not consider that it would be proper to simply order that an entire file, including all subpoenaed material, be received by this court as further evidence in respect of an appeal. We think that what the father was really concerned with was his own affidavits, described by him as containing assertions bearing upon the mother’s parenting capacity.
We make two observations, each of which we think independently leads to the rejection of the request to use that evidence and for that matter, the “entire file” in this appeal. Firstly, we are not satisfied that any evidence of which the father has told us would show that the result ordered by Young J was wrong. Secondly, to allow the evidence to be put before us would virtually permit the father to avoid the consequences of his own very deliberate choice not to participate, when invited to do so by Young J, in the proceedings leading to the orders under appeal.

Applications for extension of time within which to appeal or seek leave to appeal

The father sought extensions of time to appeal (or seek leave to appeal):
·   a further parenting order made by Young J on 15 September 2005, essentially providing for the release to the mother of the child’s passport;
·   interim property orders made by Young J on 15 September 2005;
·   the dismissal by Young J on that day of the father’s application that the mother be dealt with for contempt;
·   an order made by Young J on 5 October 2005 refusing an application of the father for stay of the parenting orders of 15 September 2005; and
·   the refusal by Young J to disqualify himself on 5 October 2005.

The orders about the passport

The orders relating to the child’s passport were:
“5. THAT UPON the wife’s undertaking to the Court given on oath that she will at all times take or permit [D] to travel out of the Commonwealth of Australia for the purpose (only) of a holiday and not for any permanent travel and that she will then return, or ensure the return of, [D] to the Commonwealth of Australia then the Australian Passport now held by the Registrar of the Family Court of Australia, Melbourne Registry, in the name of [D] be forthwith returned to the wife.
…
7. THAT [D’s] name be forthwith removed from any Airport Watch List and that she be permitted hereafter to depart from and return to the Commonwealth of Australia.”
In his reasons for those orders, Young J noted that both parents were born in India and each had travelled widely. The wife’s parents were then living in a country not a signatory to the Hague Convention. Otherwise, members of the wife’s family lived in various countries around the world. The wife had “openly” indicated that she wished to travel with D. His Honour then discussed matters bearing upon the question of whether the passport ought be released to the mother or not, including past travel by the mother to India when it was not a convention country and return without issue, ownership of assets in Australia and other connections with this country and the mother’s evidence on oath, before his Honour discharged the order requiring the passport to be held by the Registrar of the court.

The interim property orders

The interim property orders made by Young J on 15 September 2005 provided for the sale of real property in western Melbourne, on certain terms and conditions, with the balance, after sale costs and discharge of a mortgage over the property, to be held on behalf of the husband and wife pending further order of the Court.
A further order provided for payment to the wife, from $37,750 then held in trust by the wife’s solicitors, of $30,000 by way of interim or partial property settlement. The husband was ordered to pay the wife’s costs of the day, fixed in the sum of $2,500, with payment stayed pending pronouncement of the final property orders. Other orders made were essentially procedural in nature.
In his reasons relating to the interim property orders, Young J recorded:
“12. The husband did present at Court at 11.00 a.m. this morning and thereafter represented at 2.15 p.m. when he handed to the Court and sought leave to file and rely upon an affidavit with a substantial number of exhibits. As there was no objection from counsel appearing for the wife, or counsel for the child representative then appearing, that affidavit was accepted by me with a direction that it be filed by the Court and be retained upon the Court file. I have now read and evaluated that affidavit.”
His Honour recorded that the wife in her application for property settlement sought a transfer to her of the former matrimonial home. The property of which sale was sought was the former medical clinic in western Melbourne. The property was vacant at the time. No income was derived from it and no business was conducted at it. The husband had (seemingly) not sought to deal with the property or sought any order for that property to remain in his sole name as part of a settlement of property. His Honour said:
“21. My determination in this case is that, partly because of the absence of the husband and his direct refusal to involve himself in this hearing, but more particularly in the absence of all required evidence and a more complete financial history of the equity in [HC] and [W], I should not make final orders this day. It is however not in the interests of the parties for [W] and its liability to remain as it presently stands. What I propose to do is to make an order dealing with [W] so that it can be sold. I will empower the wife to have sole conduct of sale. On the settlement of sale the […] mortgage and accrued interest can be discharged, together with proper selling costs, and the balance of moneys are to be held in an interest-bearing account by the solicitors for the wife for and on behalf of the husband and wife.
22. …
23. The reality is that the sale of [W] and then its settlement will take many months. The debt to the [bank] will likely continue to increase, but the wife must endeavour to achieve the best possible price for the sale of [W] by public auction and by a firm of real estate agents nominated by herself for that purpose.…
As to the order for partial property settlement to the wife, his Honour said:
“25. Currently, there is $37,750 in a trust account of the wife’s solicitors, realised from the sale of an earlier property. The wife is and has at all times been legally represented in these proceedings. She seeks the payment out of that sum as an interim or partial settlement of property.
26. I am aware of the substantial previous costs orders that have been made against the husband and which remain unpaid. The wife has been placed under very considerable financial pressures because of the conduct of the husband. That is a matter that specifically will have to be dealt with by the court when the adjustment of the property of the parties is completed on any adjourned further hearing. I will require the solicitor for the wife to prepare an updated statement identifying all reserved costs or costs as ordered so that can conveniently be before the court on the adjourned hearing date.”
27. The court requires any interim or partial property order to be made on the basis that it is compelling. Additionally any interim or partial order for property must be on the basis that it is just and equitable to pronounce such an order. It must not adversely impact upon the financial interests of either party. It must be a step in the progression of the final determination of property orders. It must be well within the range of any likely final property order and it must not expose the other party (who is not in the receipt of such an interim or partial order or adjustment of financial interests) to any exposed financial risk.
…”
His Honour then considered relevant case law, before saying:
“32. I have carefully read the material before the court in this case. I am aware of the financial circumstances of the wife and of the husband. I am required to specifically have regard to the financial and non-financial contributions, direct and indirect made by both parties to the acquisition, conservation and improvement of matrimonial assets. I have considered the husband’s work contributions and the wife’s work together with her home-maker and parent contributions. I have assessed the relevant s.75(2) factors and in particular sub-paragraphs (a), (b), (c), (k), (l), (na) and (o). I conclude that it is just and equitable to make the interim order for the partial property settlement in favour of the wife. I find that it is compelling that there be an order for a distribution to the wife of a sum of money to assist her with her current legal expenses. That distribution is and will be as and by way of a partial settlement of property so that it will be brought to account as moneys paid out to the wife but always subject to the court’s discretion of a just and equitable final order. However, what I propose to do is to release only $30,000 and to retain $7,750 which hereafter will be held in an interest-bearing account by the wife’s solicitors for and on behalf of the wife, but not to be expended by any person pending further hearing.”

The dismissal of the father’s contempt application

The order in respect of the father’s application that the mother be dealt with for contempt was:
“1. That the Form 47 application for contempt filed 29 January 2004 by the husband be dismissed for want of prosecution.”
His Honour delivered reasons in respect of that dismissal. His Honour said:
“3.    It is necessary for the applicant to prosecute a contempt application. There must be both evidence before the Court and an intent to prosecute and that can only be done when the applicant is present in court or legally represented and involved in the proceedings. Notwithstanding that he knew that I proposed to deal with all issues before the Court this day, the children’s issues, the property and financial issues and the contempt issue the husband has elected to leave the precincts of this Court, and for his own purpose. I initially dealt with and delivered a judgment upon the issues concerning the daughter of these parties, and her passport return and upon concluding an extempore judgment on those matters I have now before me the contempt application.”
4.     The wife, through her counsel has formally advised the court that she pleads “not guilty” to all contempt charges.
5.     On the basis of the husband’s affidavit evidence, I conclude that the application for contempt is not established. The husband did not feel fairly or properly spell out the basis on which the contempt is claimed. His affidavit evidence is inadequate and he is not in Court to supplement his evidence or additionally make any submission in support of the charges. I find that there is no requirement for the wife to answer any of the issues at this stage because of the nature and uncertainty of the charges and the husband has absented himself from the court. He is not available to and not able to press this issue, notwithstanding that I earlier had reminded him that this application was before the court and would be heard and concluded this day.”

The refusal to disqualify

As to the refusal by Young J to disqualify himself on 5 October 2005, in extempore reasons his Honour said, after summarising events on 15 September 2005:
“9.    The matter was listed today at 9.30 am for the purposes of determination of a stay application. That application was filed in handwritten form by the husband on 16 September 2005 and seeks the following order:
Stay of final orders relating to children's matters of 15 September 2005 until appeal heard before the Full Family Court of Australia.
10.    At the commencement of the 9.30 hearing this morning, the husband indicated to the court that it would be appropriate if I disqualified myself on the grounds of alleged or perceived bias and other grounds as the husband thereafter outlined, and that another judge then hear and determine this stay application. The husband has no formal application before the court. He has filed no affidavit alleging the grounds of the bias.
11.    I have asked the husband what is his issue with my determining the stay application. I have advised the husband that generally it is regarded as being appropriate for a judge who has determined a matter at first instance, and in this case they are interim orders made on an extempore basis to also hear and determine the stay application.
12.    The husband advised the court that he has written a letter to the Chief Justice requesting that I stand aside or not be involved in further determinations in this matter. Secondly, the husband advised the court, and with the consent of counsel for the wife handed to the court a copy of the letter to the Chief Justice which also involved a referral to the Federal Police of a number of court documents with a request for the police to institute some level of investigation of the disclosure and submissions made by the wife to the court on 15 September 2005, and of the reasons for judgment.
13.    The husband identified that there were six specific issues, though he did not have in court a copy of those documented as they have been handed to the Federal Police. The husband expressed that his concern was that I was not neutral in my determination of the issues, that I clearly must have commenced from a position of a perceived bias, and that he did not have confidence in the determination and process of the court. [The father] further emphasised that he has not in the past and does not now consent to the jurisdiction of this court to hear and determine any of the matters that are listed for hearing.
14.    I have carefully considered and evaluated the husband’s submissions. I do not propose to disqualify myself from the determination of the stay application today. A judge is disqualified from determining a case if there is bias or if a party in the proceedings might reasonably apprehend that the judge is biased. As I read and understand the authorities, bias exists if a judge might not bring an impartial or unprejudiced mind to the resolution of an issue.
15.    I can say - and specifically for the benefit of [the father] I emphasise - that I would be confident that I did bring both an impartial and an unprejudiced mind to the determination on 15 September 2005 of all matters that were before me. There are of course many reported cases, both of the Full Court of the Family Court and in the High Court, that have dealt with allegations of alleged or perceived or indeed actual bias.”
His Honour then turned to a consideration of cases in which there was discussion of the test in relation to bias. Young J said:
“19. A judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established. With the above limited reference to established authorities I find that there is no reasonable ground on which I could or should disqualify or even consider seriously disqualifying myself from the determination of the stay issue now before the court.
20.    Primarily my reasons are that it is a stay application for determination this day. The stay application is limited to children's issues, although the preliminary submissions of [the father] would seem to indicate that he wants to widen the breadth of that stay application to cover the various orders that I pronounced on 15 September 2005. I specifically have regard to the nature of the application before me for determination and the generally accepted procedure for a stay application to be before the trial judge who made such order.
21.    Secondly I am particularly aware of the circumstances of the hearing on 15 September 2005; that [the father] elected to come and go from the court as he chose, some of the matters that he wishes to touch upon in submissions this day were not put in evidence before the court or not the subject of submissions to the court on the previous hearing.
22.    The issue that he touches upon of the wife holding both an Indian and Australian passport were matters that he could have and likely should have developed in the earlier hearing date. The issue of the wife's current employment status is likely an issue that he should have or could have developed further to the court on that earlier date. That he elected not to do so was his choice of the way in which he conducted, or at least partly conducted, his case on that day.
23.    It may be that [the father] has written to both the Chief Justice and the Federal Police seeking some form of investigation. That cannot and should not deter a judge from properly hearing and determining matters. The judiciary is wholly independent of other arms of Government. I will not be swayed in determining a just and equitable order by the reference to an investigation by a litigant in person or indeed by a practitioner unless it were properly established that there were good reasons why a judge, in this case myself, should stand aside from the further interim hearing or any other hearing in proceedings.
24.    I find that there is simply no case made out. I do not see the slightest basis of evidence or contention that there is or should be any apprehension of alleged bias or prejudgment. Insofar as therefore I accept that [the father] has made an oral application for me to disqualify myself from any determination of the proceedings this day, I both reject that application and propose to dismiss that oral application.
25.    Accordingly the order of the court will be that the oral application for myself to stand aside is dismissed, and I will formally make that order as part of any other orders that are made today.”

The dismissal of the application for stay

In relation to the order dismissing the father’s application for stay, his Honour said:
“14. I now turn to the stay application before the court. Specifically that stay application is limited to the orders relating to children’s matters. Specifically I take that to mean [D] and, primarily, as the husband has addressed his submissions today, to the issue of a passport for her holiday between mid-November 2005 and early February of next year out of Australia with her mother.
15.    …
16.    The husband has not filed a notice of appeal. He has indicated to the court that he is drafting a notice of appeal on many issues and that his understanding was that he had a period of one month until 15 October 2005 to file that appeal. Accordingly I am considering this stay application in the absence of that document and on the basis that the husband has indicated to the court that he will be appealing various of the orders made that day in each of the three separate hearings.
17.    I proceed on the basis that the husband is likely to draft various notices of appeal and file them within the period of the month from judgment. I have certainly indicated to him that the notices of appeal should have been filed prior to the determination of the stay application.
18.    The matter proceeded today by way of somewhat lengthy submissions from [the father]. He did wish for his wife to give evidence and be the subject of cross-examination. Whilst these proceedings were on the papers I did permit the wife to be cross-examined. The evidence of the wife was important and the matters raised in cross-examination of her by the husband were also important. I have ordered a transcript of her evidence.
19.    The wife has now a firm itinerary to travel to the United States of America.…
20.    The significance of that itinerary is that the wife will not be travelling with [D] to India or to Africa.…”
His Honour then discussed at some length arguments that had been raised by the husband and relevant evidence. He addressed the relevant Family Law Rule, 22.12 and various authorities, before dismissing the application for stay.

Discussion

The explanation offered by the father for the delay in filing appeals or applications for leave to appeal and indeed in applying for extensions of time is essentially that he did not wish to appeal to the Full Court of the Family Court because of his opinion of the competence of the Family Court. Therefore he “appealed” in respect of these matters to the High Court or more correctly, sought a Writ of Prohibition or Certiorari. That process having failed, he now seeks an extension of time. This is a most unpersuasive explanation for delay.
A far more serious defect in the father’s application however is that he has not provided any proposed grounds of appeal against any of the orders. In our view, his application must for these reasons alone fail.
A further reason why it would be inappropriate to extend time within which to appeal the interim property orders is that we understand the sale of the W property to have been finalised.
We think that, by any measure, but especially in the circumstances, his Honour’s conduct of each of the hearings leading to the orders which the father seeks to appeal was sound and his disposal of each application thoroughly considered. Having made our own enquiry, we discern no errors of principle.

Other orders sought in the father’s application

The balance of the orders sought by the father were as follows:
“4.    Stay of orders being appealed from before a judge other than the issuer of orders
5.     Emotional, psychological and psychiatric assessment of child [D] by Royal Children’s Hospital MARCH 1996 Sky unit and a report to be available for appeal hearing under s102A of Act
6.     Leave to extend time to appeal from refusal of judge to hear prima facie evidence on the 17 February 2006 for court on its own motion to commit the womans counsel and legal representative, and Legal Aid counsel and proper agent of Legal Aid for contempt of court for their action and inactions during the final trial on 15 September 2005
7.     Under s94A refer the question to full court- “Should the current development in science of emotion be made intergral to the child paramountcy principle”.”
We consider the application for the orders sought in paragraph 7 misconceived. It seems to be a request that this court state for itself a question to be answered is a course not within the terms of section 94A. Moreover, the question posed is essentially nonsense.
As to the order sought in paragraph 4, the father has sought a stay and failed. It is in our view beyond power and would in any event be a wholly inappropriate exercise for this court, to order that that stay application now be heard by another Judge.
As to the order sought in paragraph 5, we do not consider that it would be appropriate to order assessments by experts of the child outside the context of some application for parenting orders.
As to the order sought in paragraph 6, in so far as the father might seek an extension of time to apply for leave to appeal against a ruling on 17 February 2006, we consider that matter properly determined by a single judge in the first instance. However, in so saying, we ought not be seen as accepting that, as framed, the father would have any prospect of achieving what he appears to seek in the paragraph under discussion.

Conclusion

It follows from the aforegoing that the appeal ought be dismissed, as ought the application filed by the father.

ORDERS

That the appeal filed 11 October 2005 be dismissed.
That the application filed 12 April 2006 be dismissed.

I certify that the 72 preceding
Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd:
Associate

[2006] FamCA 586

7 July 2006

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