Tamlyn & Tamlyn
[2024] FedCFamC2F 43
•22 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tamlyn & Tamlyn [2024] FedCFamC2F 43
File number(s): PAC 1404 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 22 January 2024 Catchwords: FAMILY LAW – Application for Review – Review of Deputy Registrar’s decision to refuse filing of an Initiating Application – where final parenting and property orders made by a Judge of the Court in 2020 – finding that the Initiating Application deficient and not suitable for filing – application dismissed Legislation: Family Law Act 1975 (Cth) ss 117, 117(1), 117(2A)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 56, 174, 192(2)(f), 192(4)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sch 1 item 13, ch 2 pt 2.5, ch 14, rr 1.02, 1.04,2.14(1), 2.14(2), 2.18, 2.24, 2.24(3), 5.08(1)(b), 5.08(3), 6.06(5)(a), 8.15, 13.03, 14.05, 14.05(2), 14.07
Central Practice Directions 3.6
Cases cited: Kennon & Kennon [1997] FamCA 27
Walton v Gardiner [1993] HCA 77
Division: Division 2 Family Law Number of paragraphs: 30 Date of hearing: 17 January 2024 Place: Hobart For the Applicant: In person Solicitor for the Respondent: Mr Beckman, VRT Lawyers ORDERS
PAC 1404 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TAMLYN
Applicant
AND: MS TAMLYN
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
22 JANUARY 2024
THE COURT ORDERS THAT:
1.The Application for Review filed 5 January 2024 is dismissed.
2.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
This judgment concerns an Application for Review filed 5 January 2024 (“the Review”).
The Applicant Mr Tamlyn (“the Applicant”) seeks review of a decision of a Deputy Registrar made on 20 December 2023, rejecting for filing his Initiating Application of 15 December 2023 and an Affidavit filed in support (“the documents”). The Respondent is Ms Tamlyn (“the Respondent”).
At the time of rejecting the documents for filing, the Deputy Registrar gave written reasons which are contained in a letter dated 20 December 2023 (“the decision”). The reasons were in the following terms:
1.In relation to the Initiating Application document, the orders sought are not drafted in a manner capable of being made as enforceable orders of this Court.
2.In relation to the Affidavit:
a.Your evidence must be contained within the body of the Affidavit form at Part D (see r8.15(1)(a). Documents that you seek to rely on upon to support the information contained in your Affidavit must be clearly identified within your Affidavit and must be filed as an Annexure to the Affidavit (see r8.15(3) of the Rules).
b.The Affidavit must be confined to facts about the issues in dispute and admissible evidence (see r8.16(1) of the Rules). Your attention is also drawn to r8.18 of the Rules.
c.The Affidavit is not properly sworn/affirmed, noting that you (as the Deponent) have not signed each and every page of the substantive portion of the document at Part D (see r8.16(1)(c) & (d) of the Rules); and
dThe Affidavit does not comply with rule 5.08(2) of the Rules (as modified by rule 2.02 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021), noting that the Affidavit must not exceed ten (10) pages in length and must not contain more than five (5) annexures).
3.You have not filed a completed Financial Statement form despite seeking orders relating to property matters. A party starting, or filing a response to, a financial proceeding must file at the same time a Financial Statement (see r6.06(5)(a)).
The Applicant seeks review of all orders made on 20 December 2023, but there were none made. Despite this, for the reasons below, there is jurisdiction and power to hear the Review, although it is misconceived in that it seeks various substantive property or parenting orders in Part D. It is misconceived because there is no valid application before the Court pursuant to which such orders could or should be made.
JURISDICTION AND REVIEW
The decision to reject the documents for filing was self-evidently pursuant to Rule 2.24 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). A decision of this nature is amenable to review given the provisions of Rule 2.24(3) and Chapter 14 of the Rules, particularly Rule 14.05.
The Review was brought within time and is compliant with Rule 14.05(2). I infer it had been served as the Respondent appeared and was represented by a lawyer at the review hearing on 17 January 2024.
Accordingly, the Court has jurisdiction to hear the Review.
I have conducted an original hearing on the Review, standing in the shoes of the decision‑maker who initially made the decision to reject the documents for filing. The Court’s task is to decide on merit if the decision to reject the documents was the correct one.[1]
[1] Rule 14.07 of the Rules.
I have considered all documents that the Applicant sought to file with the Court,[2] including those referred to in the decision of the Registrar. I have also heard oral submissions from the Applicant and from the lawyer for the Respondent. No other documents were relied upon by the Applicant.
[2] Initiating Application (Family Law); Notice of Child Abuse, Family Violence or Risk; Parenting Questionnaire; Genuine Steps Certificate; Financial Statement; Affidavit – Non-Filing of Family Dispute Resolution Certificate; Affidavit – Family Law and Child Support Proceedings; Credit Card Payment Form.
EVALUATION
The terms of the final and interlocutory orders sought in the Initiating Application that was rejected are imprecise, vague, ambiguous and prolix. They are expressed in terms that are not reasonably capable of rational or legal comprehension, nor are they expressed in terms that reflect enforceable orders a court should make.
Further the prolix and ambiguous nature of the terms of the Initiating Application means that a reasonable person would be significantly constrained, frustrated, and potentially prejudiced in answering the Application and filing a Response as required under the Rules.[3]
[3] Rule 2.18 of the Rules.
It can be gleaned superficially from the documents that the Applicant sought to file and the oral submissions at the review hearing on 17 January 2024, that he seeks to challenge and overturn final orders that were made on 17 January 2020 concerning property and parenting matters. The effect of what he stated during the hearing was that the Deputy Registrar was wrong to reject his documents on the grounds that they exceeded 10 pages, because he needed to file the pages he did to demonstrate the perjury by the Respondent in the previous proceedings and at the hearing in 2019.
The purpose referred to at [12] of these reasons is clearly improper because the property and parenting disputes between the parties have been finally determined three years ago.[4] The Applicant’s dissatisfaction with the judgment of Humphreys J and the orders he made are not issues capable of being before me or determined on this Review.
[4] Which is well outside the time for appeal as set out in Rule 13.03 of the Rules.
Although a parent may seek to pursue different parenting orders following final orders being made by a judge, the Applicant is still required to comply with the requirements of the Rules of Court.[5]
[5] In particular those in Part 2.5 of Chapter 2 of the Rules.
The Affidavit the Applicant sought to file consists of 217 pages in total, including annexures. Review of it reveals that pages 1 to 13 attempt to be an affidavit according to Rule 8.15 of the Rules, but only page 3 of the document is set out in numbered paragraphs. The text on all other pages is not set out in numbered paragraphs and:
·Largely comprises mere assertions without supporting facts capable of being understood;
·Makes allegations about the conduct of lawyers;
·Makes assertions about false disclosure or evidence; and
·Complains about how the Court dealt with the previous proceedings.
The content of the Affidavit confirms the improper purpose of the Initiating Application sought to be filed.
Pages 14 to 217 of the Affidavit appear to be annexures, including extracts from affidavits filed in earlier proceedings that are marked up by hand, highlighted and not consecutively numbered. None of the annexures are signed and dated at the time the rejected Affidavit was purported to be sworn on 14 December 2023.
As the length of the Affidavit with annexures is 217 pages, it is obviously in breach of the requirements limiting the length of affidavits.[6] Further, the Affidavit does not consist of facts capable of being admitted in evidence,[7] and its form offends the requirements of Rules 2.14(1) and 2.14(2) of the Rules in many respects.
[6] Rule 5.08(3) of the Rules.
[7] Rule 5.08(1)(b) of the Rules.
The Initiating Application also purported to seek some kind of property orders and the Applicant was required to contemporaneously file a Financial Statement.[8] The Applicant did submit a form of Financial Statement, but it was totally deficient as it stated “I won’t be providing a financial statement to the court for the following reasons …”. The submitted Financial Statement form was neither affirmed or sworn, and it omitted most of the required details about income, expenditure, property, liabilities and resources.
[8] Rule 6.06(5)(a) of the Rules.
Apart from non-conformance with the Rules, which is expressly required,[9] for the reasons at [12] to [16], in seeking to file the documents the Applicant was engaged in an abuse of process within the established principles discussed in Walton v Gardiner [1993] HCA 77.[10]
[9] Section 174 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) as it relates to Division 2 and s 56 of the FCFCOA Act as it relates to Division 1.
[10] Per Mason CJ, Dean and Dawson JJ from [23].
The Applicant, as a non-legally qualified person, stated that the Court should accept the documents for filing despite the defects referred to in the reasons above and the Registrar’s decision. The effect of this statement was to submit that the Court should exercise its powers to dispense with compliance with the Rules and excuse the defects in his documents. I decline to do so for the following reasons:
(a)Although the Court and the Deputy Registrar[11] have power to excuse non-compliance with the Rules and other shortcomings in the content of the documents sought to be filed, in this case the defects are so serious and widespread that it was not reasonable or in the interests of justice to do so;
(b)If the Court did accept the documents, it would need to make numerous orders to correct defects and irregularities, which I infer that the Applicant will not follow because he did not follow the instructions in the last two paragraphs of the decision of the Deputy Registrar but instead chose to file the Application for Review; and
(c)That permitting filing of the documents would serve to wrongfully promote an abuse of process;
all of which is inconsistent with the Court’s Overarching Purpose[12] in that it would likely lead to subsequent misconceived proceedings. Such proceedings are costly, inefficient and unjust.[13]
[11] Section 192(2)(f) of the FCFCOA Act as it relates to Division 2.
[12] Rule 1.04 of the Rules.
[13] Rule 1.02 of the Rules; 3.6 of the Central Practice Directions.
CONCLUSION
I have arrived at the conclusion that the decision to reject the documents for filing was correct for all the above reasons.
The Application for Review is dismissed.
The Respondent applied for an order that the Applicant pay her costs in the sum of $1,155 should the Review be dismissed. Although it was submitted that this sum was a fixed scale amount, this figure does not directly correspond with the fixed sum in the scale. I have inferred that the intention was to seek the fixed sum for a half-day hearing, which is $1,255.75.[14]
[14] Schedule 1 of the Rules at Item 1.
A Division 2 judge of the Federal Circuit and Family Court of Australia has a wide discretionary power to make a costs order.[15] When exercising family law jurisdiction, the provisions of s 117 of the Family Law Act 1975 (Cth) are directly relevant.
[15] Section 192(4) of the FCFCOA Act.
I have had regard to the considerations in ss 117(1) and (2A) of the Family Law Act 1975 (Cth). The issue in this case was exceptionally narrow. The reasons for rejecting the documents for filing were given in writing and the solicitor who appeared at the hearing merely adopted the reasoning and said he agreed with remarks I had made to the Applicant.
The Respondent did not file a response or prepare and file any written documents for the hearing of the Review. The submission made on her behalf could easily and economically have been made by a simple letter with a request it be treated as a submission and considered. An appearance was not necessary or required.
I reject the submission that the Respondent needed a solicitor to appear on her behalf due to Kennon[16] and family violence arguments that had been accepted by the judge at the final hearing. A written submission would have sufficed and involved minimal cost. Further, the hearing was by audio-visual means and did not involve any direct contact between the parties.
[16] Kennon & Kennon [1997] FamCA 27.
Although the Review was misconceived and I have found it to have no merit, in exercising my wide discretion, I am not persuaded to make an order for costs based on the fixed scale amount for a half day hearing, being the sum claimed. The hearing did not entail half a day and was brief and no preparation was necessary for it.
I decline to make any order for costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 22 January 2024
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