Ulysses & Child Support Registrar

Case •

[2007] FamCA 1395

•

23 November 2007

FAMILY COURT OF AUSTRALIA

ULYSSES & CHILD SUPPORT REGISTRAR [2007] FamCA 1395

FAMILY LAW – APPLICATION FOR EXTENSION OF TIME TO SEEK LEAVE TO APPEAL FROM FEDERAL MAGISTRATES COURT – CHILD MAINTENANCE – ENFORCEMENT ORDERS – Not established that any proposed ground of appeal of an application deemed to be an application for an extension of time in which to seek leave to appeal orders of Federal Magistrates Court had merit. Application dismissed.

JURISDICTION OF FEDERAL MAGISTRATES COURT – Assertion that Federal Magistrate either lacked jurisdiction or exercised jurisdiction in error not established. Joosse & Anor v Australian Securities and Investment Commission (1998) 159 ALR 260 discussed.
Australian Constitution Chapter III
Judiciary Act 1903 (Cth)
Family Law Act 1975 (Cth)
Child Support (Registration & Collection) Act 1988 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Federal Magistrates Act 1999 (Cth)

Gallo v Dawson (1990) 93 ALR 479
Joosse & Anor v Australian Securities and Investment Commission [1998] HCA 77; (1998) 159 ALR 260; (1998) 73 ALJR 232

Official Trustee in Bankruptcy v Udowenko [2004] NSWSC 890
APPLICANT: MR ULYSSES
RESPONDENT: CHILD SUPPORT REGISTRAR
FILE NUMBER: NCM 2994 of 2004
APPEAL NUMBER: EA 86 of 2007
DATE DELIVERED: 23 November 2007
PLACE DELIVERED: Parramatta
PLACE HEARD: Parramatta
JUDGMENT OF: Coleman J
HEARING DATE: 16 November 2007
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 30 & 31 May 2007
LOWER COURT MNC: (2007) FMCAfam 410

REPRESENTATION

ADVOCATE FOR THE APPLICANT: Self represented
COUNSEL FOR THE RESPONDENT: Mr McCulloch
SOLICITOR FOR THE RESPONDENT: Australian Government Solicitor

Orders

(1)      That the application filed 25 July 2007 be dismissed.

(2)That the applicant pay the respondent’s costs of and incidental to the proceedings assessed in the sum of $1951.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Coleman delivered this day will for all publication and reporting purposes be referred to as Ulysses & CSR.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 86/2007
File Number: NCM2994/2004

MR ULYSSES

Applicant

And

CSR

Respondent

REASONS FOR JUDGMENT

  1. On 25 July 2007 Mr Ulysses (“the applicant”) filed an application in this Court seeking orders in the following terms:-

    1.That the legitimacy and definition of a competent legal court and political system be established as according to valid Law, and recognized by majority referendum by the Independent Sovereign Citizens of the Commonwealth of Australia.

    2.That the Enforcement Summons relied upon by the Respondent that was never served upon nor received by the applicant/Appellant, be quashed, pending the resolution set out in Order 1 hereof, and/or set-aside.

    3.That in the alternative the current legal and political system in use in Australia and its States and Territories be remedied Lawful in the Commonwealth of Australia by the United Nations Charter, and exclude the authority of United Kingdom (British) Law in Australia by resolution set out in Order 1 and hereby apply Order 2 herein. (Application in a Case filed 25 July 2007, page 3).

  2. Although it is not readily apparent on its face, the application arises from orders made by Federal Magistrate Lindsay on 30 and 31 May 2007 in proceedings commenced by the CSR (“the Registrar”) against the applicant to recover arrears of child maintenance. Attached to the applicant’s application of 25 July 2007 was a document headed “Grounds of Appeal” which contained some 18 complaints. As reference will be made to each of these complaints in due course, it is unnecessary and unhelpful to set them out at this stage. As will also be seen, any attempt to summarise their content is not readily achieved.

  3. The Registrar has resisted the application. Counsel for the Registrar, sensibly in the Court’s view, invited this Court to treat the application of 25 July 2007 as an application for an extension of time in which to seek leave to appeal to the Full Court against the orders of the learned Federal Magistrate of 30 and 31 May 2007. Although the applicant may not see it thus, so doing is potentially of assistance to him.

  4. It was submitted on behalf of the Registrar, correctly in this Court’s view, that the application of 25 July 2007 in its current form was doomed to fail. That failure however would not necessarily preclude the applicant from bringing an application seeking leave to appeal out of time again the orders of the Federal Magistrate’s Court of 30 and 31 May 2007.

  5. It is in the interests of justice that the application be considered as an application to extend to 26 July 2007, the time in which to appeal against the orders of the Federal Magistrate’s Court of 30 and 31 May 2007. If leave in those terms were to be granted, the “Grounds of Appeal” annexed to the application of 25 July 2007 would be deemed to be filed as a Notice of Appeal within time.

  6. The affidavit of the applicant in support of his application, also filed 25 July 2007 expressly refers in an annexure to “Reasons for an extension of time”. It is difficult not to conclude, having read the matters detailed in the 36 paragraphs of such annexure that the applicant appreciated the need to seek an extension of time within which to appeal and was in fact doing so, albeit not in a formal sense. It is thus difficult to see how the applicant could complain about the approach which this Court has taken to his application. The Court did not understand the applicant to in fact raise any complaint of that kind on the hearing of his application.

  7. On the hearing of the application the applicant, who at all material times has represented himself, handed to the Court a document “Exhibit A1” in which he called upon the Court:-

    On request, pursuant to the United Nations Covenant on Civil and Political Rights of 1966, any court official, judge, magistrate law officer, or their agents must produce clear and valid documentation evidence which establishes their: -

    1)     Authority

    2)     Jurisdiction

    3)     Source of power

    4)     Head of power

    5) Valid and legally written Constitution relied upon, approved by the general body of people of an Independent Sovereign Nation. (Exhibit 1, page 1).

  8. On the second page of the Exhibit the applicant asserted:-

    AS AN Australian Citizen I had no business nor any arranged agreement with the Child Support Registrar nor any Australian Government Solicitor.

    IN ACCORDANCE to Fact, Truth and Law, Australia achieved the status of an Independent Sovereign Nation on Wednesday 1st October 1919.

    THEREFORE I am not obliged to any organisation, office nor person that has sworn an oath an/or affirmed allegiance to a foreign power, King or Queen, their heirs and successors initiated since 1st October 1919, thereby committing the act of treason against Australia and its People, and/or when the United Kingdom passed the “British Nationality and Citizenship Act 1948”, referring to Australians as ‘Aliens’, it became Law 1st January 1949. Australians were Stateless People from 1st January until 26th January 1949, 25 days. Therefore the Australian Political and Legal System has no basis in Law in relying on foreign statute to impose its authority, whereas imposing upon the people of Australia “The British Colony of the Commonwealth of Australia Act 1919 (United Kingdom)” and/or the “Australia Act 1986” as basis to all Australian Law, without a referendum by the general body of the Australian People humbly relying on the blessings of Almighty God.

    THE SIGNING of the Peace Treaty of Versailles in Paris France on 28th June 1919 by the then Australian Prime Minister William Morris Hughes, and the Deputy Prime Minister Sir Joseph Cook Minister for the Navy in 1919 enabled Australia to gain its Independence, which is recorded in the original transcripts and manuscripts of the “Treaty of Peace (Germany) Act 1919-1920”, (‘Treaty of Versailles’) held in the archives of the Swiss Government in Geneva, and also in Australian Parliamentary Records known as ‘Hansard’ pages 12163---71. passed 10th September 1919, in Lower House, passed in Upper House 1st October 1919, and became Law on that day. (Exhibit 1, page 2).

  9. As will be seen, though earnest, the case which the applicant seeks to present is not easily discernable, and to the extent that it can be, it is difficult to accommodate it within the framework of established legal principles and substantive law. Undoubtedly the best starting point is a consideration of the Reasons for Judgment of the learned Federal Magistrate which gave rise to the orders against which the applicant seeks to appeal.

  10. The proceedings were heard by the learned Federal Magistrate over a period of two days. The orders of the Court reveal that his Honour rejected the applicant’s assertion that the Court lacked jurisdiction to determine the Registrar’s application to enforce arrears of child maintenance on 30 May 2007. Having dismissed the jurisdictional challenged raised by the applicant, his Honour determined the merits of the case before him, as his judgment of 31 May 2007 reveals. The orders of 31 May 2007 provided, in the form sought by the Registrar in Minutes submitted to the learned Federal Magistrate, for the enforcement of substantial arrears of child maintenance, and an order for costs of the proceedings assessed in the sum of $10 127.20.

  11. It is clear that the applicant seeks leave to appeal against the order for enforcement of arrears of child maintenance and the costs of such enforcement proceedings.

  12. The basis upon which the applicant seeks leave to appeal fall into two broad categories, the first being an alleged absence of jurisdiction in the Federal Magistrate’s Court to entertain the enforcement application, the second, without conceding the first, being more in the nature of challenges to the exercise of the jurisdiction than to its existence.

  13. It is clear beyond doubt that the applicant has at all material times disputed the jurisdiction of the Federal Magistrates Court to enforce his obligations to pay child support, and, at least inferentially, the validity of any obligations which have been imposed upon him pursuant to the Child Support legislation.

  14. The applicant raised the jurisdictional challenge before the learned Federal Magistrate on the first day of the hearing. His Honour rejected the application and gave brief reasons for so doing. In such reasons, the learned Federal Magistrate identified the proceedings before him as an enforcement summons brought “pursuant to the Family Law Rules which have been adopted by this Court in respect of the enforcement of debts arising under the Child Support (Registration & Collection) Act 1988.” (Reasons for Judgment dated 30 May 2007, page 1, par 1).

  15. The learned Federal Magistrate identified the legislation by which he concluded that the Court had jurisdiction to hear and determine the enforcement summons. The relevant legislation was suggested to be the Family Law Act 1975, the Child Support (Registration & Collection) Act 1988, the Child Support (Assessment) Act 1989 and the Federal Magistrates Act 1999.

  16. His Honour added “more fundamentally…this Court exercises its power as a properly constituted Court pursuant to Chapter III of the Australian Constitution” (Reasons for Judgment dated 30 May 2007, page 1, par 1). He concluded that “nothing raised by the applicant persuaded him that the Court was “other than properly constituted” pursuant to the Constitution and the Legislation to which he referred (Reasons for Judgment dated 30 May 2007, page 2, par 2).

  17. Reference was then made to “repeated requests to put to me the basis of the constitutional or jurisdictional problem” asserted by the applicant and to the applicant’s failure to raise any matter in response to such invitation. The application to dismiss the enforcement summons for want of jurisdiction was thus refused. The matter then proceeded on the merits. (Reasons for Judgment dated 30 May 2007, page 2, par 2).

  18. The enforcement summons was identified by the learned Federal Magistrate. It had been filed by the AGS on behalf of the Registrar on 27 October 2004. The application was supported by an affidavit annexing a statement of the relevant account with the agency.

  19. The chequered history of the matter, subsequent to the filing of enforcement summons, was not detailed by the learned Federal Magistrate, for reasons which he explained. His Honour did however record that by November of 2005:-

    … the [applicant] had retained solicitors to act on his behalf in relation to these matters, and so whatever the vicissitudes associated with the service of process to that point, from that point I can be satisfied that the [applicant] was on notice of the nature of the proceedings and had the opportunity, either personally or through his solicitor, in the event that documents still had not reached him during these various processes, to procure copies of them”. (Reasons for Judgment dated 31 May 2007, pages 2 – 3, par 5).

  20. Reliance was placed upon the fact that the applicant’s solicitors filed a response to the application on his behalf. His Honour concluded that he was:-

    … entitled to infer from the filing of that process by him that he or his solicitors on his behalf were cognisant of the nature of the application that was brought. If there were any doubt associated with that, and frankly I do not think there is, is it [sic] dispelled by the contents of exhibit number 10, which is a copy of a letter forwarded by the AGS to his solicitors dated 18 November 2005; the same date at which the matter came before the Court following the filing of the response on 15 November, indicating that the original process, that is the enforcement summons and the supporting affidavit material had been forwarded to the [applicant]. (Reasons for Judgment dated 31 May 2007, page 3, par 6).

  21. Reference was made to the response filed on behalf of the applicant and to the affidavit in support of it in which the applicant deposed to not having any children to the best of his knowledge. The learned Federal Magistrate concluded that the response filed on behalf of the applicant sought the dismissal of the enforcement summons and a series of interim orders “or what were described as alternative orders which essentially sought that there be orders as to parentage testing”. (Reasons for Judgment dated 31 May 2007, page 3, par 9). That interpretation was reinforced in his Honour’s view by a document filed on 19 December 2005 by the solicitors then acting for the applicant which “sets out with a much greater degree of particularity the percentage testing procedure that is sought”. (Reasons for Judgment dated 31 May 2007, page 3, par 10).

  22. The learned Federal Magistrate concluded that:

    The orders were made for the parentage testing procedure to occur and I am told that the child and the mother participated in this process, but as I have indicated, on 7 December 2006 the Court ordered on the application of Mr Ulysses that the parentage testing procedure orders be discharged. So the only process I can identify as ever having been filed by Mr Ulysses, which positively sought orders, was that application and it was something that was dismissed on his own application. (Reasons for Judgment dated 31 May 2007, page 4, par 13).

  23. Turning to the substance of the proceedings before him, the learned Federal Magistrate considered that the legislative basis of the enforcement procedure was found in s 113 of the Child Support (Registration & Collection) Act 1988 and that the specific jurisdiction of the Federal Magistrates Court in relation to such matters was provided by s 105 of the Act. He was thus satisfied that the Court had jurisdiction to entertain the application that was made. Although those provisions were not set out in the text of the learned Federal Magistrate’s Reasons for Judgment, it may be helpful to do so at this stage.

  24. Section 105 Child Support (Registration & Collection) Act 1988 provides:-

    (1)The Family Law Act 1975 (other than Part X of that Act), the standard Rules of Court and the related Federal Magistrates Rules apply, subject to this Act and with such modifications as are prescribed by the applicable Rules of Court, to proceedings under this Act (other than proceedings under subparagraph 113(c)(i)) as if:

    (a)      the proceedings were proceedings under that Act;

    (b)the proceedings were proceedings instituted under that Act;

    (c)a court having or exercising jurisdiction in the proceedings were a court having or exercising jurisdiction under that Act;

    (d)a decree made in the proceedings were a decree made under that Act;

    (e)matters arising in the proceedings were matters arising under that Act; and

    (f)       any other necessary changes were made.

    (1A)In the application of subsection (1) to proceedings under this Act in relation to a child, references in paragraphs (1)(a) to (e) (inclusive) to the Family Law Act1975 are to be taken to be references to Part VII of that Act.

    (2)Where any difficulty arises in the application of subsection (1) in or in relation to a particular proceeding, the court exercising jurisdiction in the proceeding may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.

  25. Section 113 Child Support (Registration & Collection) Act 1988 provides:-

    Debts due by a payer may be recovered by the Registrar or the payee

    (1)A debt due to the Commonwealth under this Act in relation to a registered maintenance liability:

    (a)is payable to the Registrar in the manner and at the place prescribed; and

    (b)      may be sued for and recovered by:

    (i)the Registrar suing in his or her official name; or

    (ii)the payee of the liability suing in accordance with section 113A; and

    (c)      may be recovered in:

    (i)a court having jurisdiction for the recovery of debts up to the amount of the debt; or

    (ii)      a court having jurisdiction under this Act.

    Registrar to keep payee informed of action taken to recover debt

    (2)The Registrar may take such steps as the Registrar considers appropriate to keep the payee of a registered maintenance liability informed of action taken by the Registrar to recover debts due to the Commonwealth under this Act in relation to the liability.

  26. The basis of the liability of the applicant was considered by the learned Federal Magistrate to be “an order that was made by the Family Court on 2 October 1996 which provided for the maintenance for the child, MJVT, by the [applicant] at the rate of $180 per week from and including 2 October 1996” suspended until 30 October 1996. (Reasons for Judgment dated 31 May 2007, pages 4 – 5, pars 16 & 17).

  27. His Honour observed that:-

    The Court has a discretion in relation to the enforcement of these debts in the same way that it has a discretion in relation to the enforcement of any orders of the Court. The obligation to pay the child support arises from a curial order rather than from an administrative assessment of child support. It used to be that maintenance orders, child or spousal, were not enforced if they were stale in the sense of more than 12 months old. That rule has been abolished but there still remains a general discretion in relation to enforcement in relation to such order, and one would have thought the circumstance that sees the first process issue eight years after the order is made as carrying with it the possibility of some basis for the exercise of a discretion against the enforcement of the order for a position, perhaps even a substantial portion, of that period. But we do not get to the stage of having to consider the exercise of that discretion because the court is not put in a position by the [applicant] to undertake that exercise. (Reasons for Judgment dated 31 May 2007, page 5, par 20).

  1. Reference was made to the absence of any application by the applicant to vary or discharge the 1996 maintenance order pursuant to which arrears had allegedly accrued, resulting in the enforcement application brought by the Registrar in the Federal Magistrates Court. Reference was also made to the applicant’s election not to place before the Court any evidence in relation to events subsequent to the making of the orders in 1996, and to the fact that the only application which the applicant did make, for parentage testing orders, in 2005, was discharged on 7 December 2006 on the applicant’s application. (See Reasons for Judgment dated 31 May 2007, page 6, pars 22 – 24).

  2. The learned Federal Magistrate referred to the absence of any attempt during the hearing before him to “agitate” the merits of the enforcement application, in any of the respects earlier identified by him. (Reasons for Judgment dated 31 May 2007, page 6, par 24).

  3. His Honour referred to the “oral testimony” of the applicant before him, and observed that the applicant was the registered proprietor, with his parents, of two separate properties, one at V, the other at M. (Reasons for Judgment dated 31 May 2007, page 7, par 28).

  4. For reasons which he detailed, his Honour concluded that “there appears to be no impediment to the assumption by Mr Ulysses and his parents of the same registered proprietorship of those lands and upon the same basis as they were prior” to bankruptcy proceedings which were briefly detailed. (Reasons for Judgment dated 31 May 2007, page 8, par 29).

  5. Reference was then made to the husband’s assertion “that various other members of his family, including his brother, have claims as to interests in those properties but there is no evidence of that”. His Honour observed, “[t]hat may or may not be the case, but nothing has been put to me to indicate that the position is other than that he and his parents are in a position to assume full legal title to those properties”. (Reasons for Judgment dated 31 May 2007, page 8, par 30).

  6. On the evidence before him, his Honour was satisfied that the applicant’s interest in the properties to which he referred had a value “taking into account their unencumbered nature” which made it “expedient to proceed with the enforcement orders that are sought by the CSA.” (Reasons for Judgment dated 31 May 2007, page 8, par 31).

  7. The learned Federal Magistrate concluded that the failure to apply to seek to set aside or vary the 1996 orders was “fatal to any exercise of discretion against enforcement of the orders” particularly as the applicant had representation during 2005. (Reasons for Judgment dated 31 May 2007, page 8, par 33).

  8. The evidence given by the applicant before the learned Federal Magistrate was considered to be “evasive in the extreme”, the applicant failing to:-

    … attempt to give straightforward answers to questions, to give answers which would assist the Court in understanding his financial position or matters in the recent past which would go to his financial history. He obfuscated, he evaded, and that’s also a matter which plainly makes it inappropriate, in my view, to take all the leaps and bounds that would be necessary to attempt to exercise some discretion not to enforce the judgment in his favour. (Reasons for Judgment dated 31 May 2007, page 9, par 34).

  9. The composition of the claim made by the Registrar and the costs of the proceedings which were sought by the Registrar were then considered. Having done so, and for reasons which he then briefly detailed, the learned Federal Magistrate made the orders earlier referred to.

The basis of the application for an extension of time in which to seek leave to appeal the orders of 30 and 31 May 2007

  1. Law which governs an application for an extension of time within which to appeal is not in doubt and does not require extensive restatement for the purpose of this application. Citing briefly the decision of the High Court in Gallo v Dawson (1990) 93 ALR 479 is appropriate. In that case McHugh J said (at 480 – 481):-

    The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5 ; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935:-

    “The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”

  2. Without referring to it in detail, the applicant’s explanation of his failure to file a Notice of Appeal within time, though not overwhelming, would be adequate if it were otherwise appropriate to extend the time for appealing the orders of 30 and 31 May 2007. This is particularly so given the practical implications of the orders of the learned Federal Magistrate and the reality that the only avenue of review open to the applicant if an extension of time is refused by this Court would be by way of application to the High Court of Australia.

  3. Given that the orders which give rise to the liability which was enforced on 31 May 2007 were made in 1996, and first sought to be enforced some eight years later, and that the proceedings, for whatever reason, were then not heard until two and a half years later suggest that, if the applicant otherwise establishes grounds for an extension of time, such extension ought not be refused by reason of the adequacy or otherwise of his explanation or his delay.

  4. The extent to which the applicant was out of time (less than one month) in seeking leave to appeal is also relevant in that context, as is the apparent absence of prejudice to the recipient of the arrears of maintenance, and the reality that the recovery of such arrears would not appear to be prejudiced if an extension of time within which to seek leave to appeal were to be granted.

  5. In reality, the focus in this application is whether the applicant, however expressed, raises challenges to the decisions of the learned Federal Magistrate which he should have the opportunity to present to the Full Court. That enquiry, as identified earlier, involves considering the two broad categories of complaint agitated by the applicant.

  6. As indicated earlier, the applicant has at all material times disputed the jurisdiction of the Federal Magistrates Court to entertain the application to enforce arrears of child maintenance. It is difficult to suggest succinctly the basis, or apparent basis, of the applicant’s contention, although it seems, particularly having regard to his oral submissions on 16 November 2007, to involve assertions that, having taken an oath of allegiance to the Queen of a foreign country, Queen Elizabeth II, Australian judges have no jurisdiction to administer Australian law. If the applicant’s contention is correct, the Australian legal system as we know it would probably cease to exist, as any judge of a Federal or State Court having sworn or affirmed allegiance to the Queen would thereby be disqualified from exercising Australian Federal or State laws.

  7. Notwithstanding the gravity of his contention, which would seem to raise a constitutional challenge, the applicant has at no time given notice pursuant to s 78B of the Judiciary Act 1903 (Cth) to any Attorney General. This Court does not propose delaying the determination of this application on the off-chance that the applicant may now seek to do so. The complete absence of any substance in anything which he has presented to this Court in support of his jurisdictional challenge provides support for declining to do so.

  8. In his material the applicant relied on what he asserted the former Gibbs CJ to have said on an unspecified date in 1999 in some unidentified context. Accepting for the moment that, from somewhere, the applicant has accurately produced something which the former Chief Justice may have said, it would appear that the applicant would no doubt rely upon the words attributed to the former Chief Justice that “the current legal and political system used in Australia and its States and Territories has no basis in law” and that “[o]rdinary people have the right to expect Government Officials to consider Australia’s International Obligations even if those Obligations are not reflected in specific Acts of Parliament” (Affidavit of Mr Ulysses filed 25 July 2007, Annexure J, page 1).

  9. In what context any of this was said by the former Chief Justice, if in fact it was, is unclear. Absent far more than the applicant has placed before this Court, the extract upon which he relies does not advance his claim. There followed in the material another “Explanatory Statement” attributed to Gibbs CJ. When that statement was made and in what context is also unclear. The sentiments expressed in the document are consistent with those in the first document to which reference has been made. The document appears to be an opinion expressed by the former Chief Justice. (Affidavit of Mr Ulysses filed 25 July 2007, Annexure J, pages 2 – 5).

  10. In the absence of any decision of the High Court, and the applicant has not referred this Court to any such decision, this Court does not accept, with all due respect to the former Chief Justice, that it is bound by the views he may have expressed in 1999.

  11. There followed in the material initially relied upon by the applicant what appears to be resolutions of some international body, inferentially the United Nations, in 1965 re-affirming that no State has the right to intervene directly or indirectly for any reason whatsoever in the internal or external affairs of any other State. Presumably the applicant argues that judges of the Court swearing allegiance to Queen Elizabeth II constitutes a breach by the United Kingdom, a foreign power, in the internal affairs of Australia.

  12. In a subsequent affidavit, filed 1 November 2007, the applicant reiterated the basis of his challenge to the jurisdiction of the Federal Magistrates Court. Reference was made to the proceedings in Court and to the suggestion attributed to the learned Federal Magistrate that “the Royal Coat of Arms behind him, as he sat in Court on Wednesday 30 May 2007 was the answer for his authority, along with Chapter 3 [sic] of the Australian Constitution”. (Affidavit of Mr Ulysses filed 1 November 2007, page 2, par 2).

  13. There followed, albeit in rather more detail, the basis upon which the applicant asserted that the swearing or affirming of allegiance to “a foreign Queen, namely, Her Majesty Queen Elizabeth the Second, her heirs and successors” denied judicial office holders in this country the capacity to exercise the jurisdiction purportedly conferred upon them by the Parliament of the Commonwealth of Australia. (Affidavit of Mr Ulysses filed 1 November 2007, page 3, par 3).

  14. Commencing with references to “the Peace Treaty 1919, (Treaty of Versailles)” through events in 1984 and 1986, the applicant asserted that “regardless of the validity of The Commonwealth of Australia Constitution Act 1900 (U.K.) or the Australia Act 1986 (Cth), if the authority of the Governor-General and the State Governors is invalid, therefore the entire political and legal system in use in Australia and its States and Territories has no basis in Law.” (Affidavit of Mr Ulysses filed 1 November 2007, pages 3 – 4, pars 4 – 9).

  15. Albeit expanded further in his material, the applicant did not raise anything further of substance in support of his challenge to the jurisdiction of the Federal Magistrates Court to hear and determine the application to enforce arrears of child maintenance.

  16. Counsel for the Registrar submitted that, howsoever articulated, the jurisdictional challenges raised by the applicant have no possible merit and should not take up the time of the Full Court. Counsel for the Registrar provided the Court with the Judgment of Hayne J sitting as a single Judge of the High Court, dismissing a number of applications to remove proceedings into the High Court pursuant to s 40 of the Judiciary Act 1903 (Cth). The copy of the report provided by Counsel for the Registrar is headed Joosse & Anor v Australian Securities and Investment Commission [1998] HCA 77; (1998) 159 ALR 260; (1998) 73 ALJR 232 (21 December 1998), and is conveniently referred to for present purposes as “Joosse”. The essential issue apparently sought to be raised by the applicant in these proceedings appears not dissimilar to the issue raised in some of the five applications for removal dealt with by Hayne J in Joosse.

  17. The question of “what law is to be applied by the courts of Australia” was considered by Hayne J to be answered by reference to cl 5 of the Australian Constitution which provides “this Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and every part of the Commonwealth, notwithstanding anything in the laws of any State.” (Joosse, pars 18 – 19).

  18. His Honour observed that “[i]t is, then, to the Constitution and to laws made by the Parliament of the Commonwealth under the Constitution that the courts must look”. He observed that:-

    It is not relevant to the inquiry required by covering cl 5 to inquire how Australia has been treated by other nations in its dealings with them or to inquire whether the Westminster Parliament could or could not pass legislation that has effect in Australia. Covering cl 5 provides that the Constitution and the laws made by the Parliament of the Commonwealth under the Constitution are binding on the courts, judges, and people of every State and of every part of the Commonwealth. (Joosse, par 19).

  19. It might be noted at this point that no challenge to the jurisdiction of the Federal Magistrates Court agitated by the applicant in this Court involves any suggestion that any jurisdiction purportedly conferred upon the Federal Magistrates Court fell outside the ambit of s 51 of the Constitution. The applicant did not appear to content that the conferral of jurisdiction was invalid, but rather that no judicial officer could exercise it.

  20. Hayne J was content to dispose of the applications in Joosse while sitting as a single judge of the High Court. With all due respect to his Honour, it is improbable that he would not have referred any of the five applications before him to a Full Bench of the High Court had any of the contentions therein raised been shown to have the prospect of merit.

  21. Hayne J’s judgment in Joosse leaves no doubt that the fact that Australian judges swear or affirm allegiance to the Queen does not invalidate the exercise of jurisdiction by such judges. Hayne J concluded that none of the points raised by the five applicants in the proceedings before him made the federal laws to which they referred “any the less binding on the courts, judges, and people”. (Joosse, par 19).

  22. Having regard to Hayne J’s judgment in Joosse, there is no basis for suggesting that the learned Federal Magistrate’s appointment to that Court was other than valid, enabling him to exercise the jurisdiction invested in that Court by relevant acts of the Federal Parliament, including the Family Law Act 1975 (Cth), the Federal Magistrates Court Act 1999, Child Support (Registration & Collection) Act 1988 and the Child Support (Assessment) Act 1989.

  23. The fact that his Honour swore or affirmed allegiance to Queen Elizabeth II in no way invalidated his jurisdiction pursuant to the relevant Commonwealth statutes. Any views the Federal Magistrate may have had as to the significance or otherwise of the “Royal Coat of Arms” in the Courtroom in no way invalidated the validity of the jurisdiction conferred on him by those statutes.

  24. It should be recorded that, beyond the assertions of the applicant in that regard, there is no material before this Court that establishes that the learned Federal Magistrate misunderstood the basis of his jurisdiction, but even if he did, that would not in this Court’s view invalidate such jurisdiction which either exists or does not exist, irrespective of the perceptions of a judicial officer in that regard.

  25. The second apparent basis of the applicant’s jurisdictional challenge is that, by continuing to accept allegiance from Australian judges, the foreign Queen of the United Kingdom has breached international law, the consequence of which is that the judges thus appointed are not validly invested with Commonwealth jurisdiction. Hayne J referred to the distinction between “sovereignty” in international law and “sovereignty” as the supreme legislative authority recognised in a legal system. (see Joosse, par 21).

  26. The applicant’s contention appears to be that, by the continued allegiance of judicial officers to a “foreign Queen” Australia remains a colony over which the United Kingdom retains “sovereignty”. In Joosse Hayne J explained why that is not so having briefly examined “the emergence of what is now a sovereign and independent nation”. His Honour suggested that “[o]pinions will differ about when sovereignty or independence was attained”. The extensive material placed before this Court by the applicant provides some insight into those differing opinions. His Honour identified “some steps along that way” as being of particular importance “not the least” being “the people of the colonies agreeing ‘to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution’”. (Joosse, par 17).

  27. Hayne J then considered the “realities of the relationship” between the United Kingdom and Australia. His Honour concluded that the relevant legislative enactments during the twentieth century could be seen as “reflecting the then current view of the relationship between Australia and the United Kingdom”, each dealing with “an aspect of political sovereignty”. (Joosse, par 17).

  28. Hayne J explained the difference between the political “attributes of sovereignty” on the one hand and “the administration of justice according to law in the courts of Australia” upon the other. As was the case in Joosse, the former are not relevant for present purposes, it not being suggested by the applicant that the “foreign Queen” has sought to exercise legislative sovereignty over Australia, but rather that the continued allegiance of judges of the Commonwealth of Australia denies them jurisdiction with respect to Australian law. (Joosse, par 18).

  1. From the learned Federal Magistrate’s Reasons for Judgment, it appears likely that a number of the proposed grounds of appeal relate to matters which his Honour raised with the applicant during the proceedings. The applicant’s decision not to place the transcript before this Court denies this Court the ability to so find, but also leaves the applicant unable to establish many of his complaints.

  2. The Court has earlier referred to Hayne J’s Reasons for Judgment in relation to the laws which are to be applied by Australian courts. The Court has not been referred to any decision subsequent to Joosse, nor has it discovered any for itself in the course of brief research in relation to issues which the applicant apparently raises in his application to this Court. Sometimes the absence of cases in the High Court in relation to an issue is significant and suggestive of the absence of any doubt or uncertainty in relation to such issues. The Court perceives this is probably an instance where that is so.

  3. Nothing which the applicant has raised before this Court suggests any basis for concluding that the learned Federal Magistrate lacked the jurisdiction to hear and determine the proceedings before him. That being so, to extend time for the applicant to seek leave to appeal against such decision on that basis would be an exercise in futility. If this Court is wrong in its conclusions with respect to the jurisdictional challenge raised by the applicant, that is a matter which he could seek to agitate in the ultimate and most appropriate constitutional court in Australia. If he were to seek to do so, it would be a matter for that court as to whether, unlike the various applicants in Joosse, the applicant could raise a constitutional issue which could excite the interest of the High Court in a constitutional issue.

  4. It is appropriate to then turn to consider the other proposed “Grounds of Appeal” revealed by the application filed on 25 July 2007. Many of those complaints relate to matters which occurred during the hearing in the Federal Magistrate’s Court. It should be noted that the applicant made a considered choice not to place the entirety of the transcript of the proceedings in the Federal Magistrates Court before this Court although, from statements made by him during the hearing of his application on 16 November 2007 it appeared quite clear that he had obtained the transcript of the proceedings, and had it in his possession in the Court on that date. His placing of a selected few pages of the transcript of the proceedings in the Federal Magistrates Court before this Court also suggests that he had the transcript.

Ground 1

  1. Ground 1 of the proposed “Grounds of Appeal” provided:-

    1.The circumstances of the case gave rise to a substantial or sufficient risk of injustice to warrant the exercise of the court’s assumptions since about 1996. (Application in a Case filed 25 July 2007, page 5, par 1).

  2. The learned Federal Magistrate in fact referred to the reality that the first application to enforce the 1996 order appeared to have been made in 2004, some eight years after the making of the order. His Honour also referred to the period which elapsed between the filing of the enforcement application and its hearing (a period of more than two and a half years) and to the fact that, at least for a time in 2005, the applicant had legal representation.

  3. His Honour also referred to the fact that the applicant at no time had ever sought to vary or discharge the 1996 order. The applicant’s post-1996 circumstances were peculiarly within his knowledge. To the extent that the applicant may have sought to rely upon conduct on the part of the mother of the child, or his own financial circumstances over that period, those were matters which the applicant could have raised before the learned Federal Magistrate. Nothing to which this Court has been referred suggests that they were. To the extent that his liability for child maintenance was challenged on the basis of non-paternity, as could be inferred from the application for parentage testing almost a decade after the order was made, the applicant withdrew the application he had made in that regard, albeit after the child and the mother had submitted to parentage testing but the applicant had not.

  4. Nothing to which the applicant has referred this Court in the proceedings before the learned Federal Magistrate provides any basis for concluding that this ground may have substance. Nothing raised by the applicant in the hearing before the learned Federal Magistrate gave rise to any possible injustice or is suggested to have done so. It is also to be noted that, six months after the learned Federal Magistrate gave his Reasons for Judgment, pointing out these matters, no part of the applicant’s application for an extension of time reveals any evidentiary basis upon which this ground may be successful on appeal in reliance upon further evidence (see CDJ v VAJ (1998) 197 CLR 172).

Ground 2

  1. The second of the proposed “Grounds of Appeal” provided:-

    2.In the circumstances of the case the Appeal Court should permit the admission of fresh evidence, namely that documented evidence cited in Reasons for Judgment of Lindsay FM dated: 18 June and received 22 June 2007, disclosed for the first time that the Councel [sic] for the Child Support Registrar was associated with the same Firm of Solicitors as the former Solicitor representing the appellant, prior to the Scheduled Final Hearing on 19 May 2007. (Application in a Case filed 25 July 2007, page 5, par 2).

  2. None of the further “documented evidence” referred to in this proposed ground appears to have been provided to this Court. Moreover, assuming, which the Court would not other than for the purpose of dealing with this proposed ground, that the relationship asserted existed, how that could in any way impact upon the decision of 30 and 31 May 2007 is not apparent, or suggested.

  3. Nothing asserted by this ground could advance the applicant’s cause.

Ground 3

  1. The third ground of the proposed “Grounds of Appeal” provided:-

    3.The Court gave no or no sufficient consideration to the fact that no liability towards the boy has been entered into by the appellant. (Application in a Case filed 25 July 2007, page 5, par 3).

  2. Literally, this challenge seems to suggest that, in order for the applicant to have a liability with respect to “the boy” the subject of the 1996 orders, the applicant in some way had to consent to so doing.

  3. The applicant’s liability to pay maintenance for the child the subject of the enforcement summons arose from orders made by the Family Court in 1996. The applicant was a party to those orders. He may have consented to the orders. He may not have consented to the orders, in which case he may have accepted the orders. He may not have accepted the orders. Any appeal he may have lodged has apparently been unsuccessful.

  4. As noted earlier, to the extent that the applicant ever took steps to dispute his “liability” to pay maintenance for the child the subject of the 1996 orders, that belated step, represented by his obtaining an order for parentage testing in 2005, was abandoned by him the following year. No other challenge to the legal basis of the applicant’s liability is suggested, or apparent.

  5. On the evidence before the learned Federal Magistrate no question of the applicant’s “liability” arose. Nothing to which the applicant has referred this Court suggests that the issue could arise in the course of any application for leave to appeal which the Full Court might entertain.

Ground 4

  1. The fourth ground asserted that:-

    4.Contrary to the respondent’s evidence, the appellant was not at the time a registered proprietor of the encumbered properties in question. (Application in a Case filed 25 July 2007, page 5, par 4).

  2. Beyond the assertion of the applicant, nothing to which this Court has been referred provides the slightest basis for concluding that this complaint may have substance.

  3. The judgment of Barrett J of the Supreme Court of New South Wales of 23 September 2004 in OTB v Udowenko [2004] NSWSC 890 suggests the contrary, and that the applicant, when proceedings were before the Supreme Court pursuant to s 66G of the Conveyancing Act 1919 (NSW) in 2004, made no such complaint.

  4. In the absence of any basis upon which it could be successful, and none is established, this challenge could not possibly succeed.

Ground 5

  1. The fifth ground of the proposed “Grounds of Appeal” provided:-

    5.The Court would not allow the respondent to be examined and or cross-examined. (Application in a Case filed 25 July 2007, page 5, par 5).

  2. Nothing to which this applicant has referred this Court provides the slightest foundation for concluding that this complaint could possibly have substance. It is unclear to whom “the respondent” in the complaint relates, although it is difficult to imagine it could refer other than to the Registrar and/or the mother of the child on whose behalf arrears of child maintenance was being sought to be recovered.

  3. The Court referred specifically to this ground during the hearing on 16 November 2007 and suggested to the applicant that he would need to refer to the transcript of the proceedings before the learned Federal Magistrate in order to advance this complaint. The Court then suggested that the transcript would be likely to reveal, or fail to reveal, the truth in relation to this complaint. The applicant sought an adjournment to consider his position in relation to the transcript. Upon resumption, the applicant declined to place the transcript of the proceedings before the Court.

  4. Although the applicant may not have expressly confirmed that he held the transcript, he at no stage suggested that he did not, appeared to be examining what may have been the transcript, and was unlikely to have sought an adjournment to consider his position unless he did have the transcript. Were it necessary to do so, the Court could infer that, having reflected upon the matter, the applicant preferred not to put the transcript of the proceedings before the Court because it would not assist his complaint. It need not so infer as there is no basis upon which the Court could conclude that this complaint could have substance.

Ground 6

  1. The sixth ground of the proposed “Grounds of Appeal” provided:-

    6.The Court’s answer of assurance pursuant to Article 14 of the International Covenant on Civil and Political Rights,  definition of a “competent court”, this covenant is Schedule 2 of the Human Rights and Equal Opportunities Act  1986, failed when addressed on the question of a competent court, the Magistrate said this; Quote: “You’ve got my assurance about that and if you need any further evidence of that you can look at the Royal Coat of Arms that’s behind me as I sit in Court today”. End of Quote. The Magistrate’s answer of assurance is incorrect, and bears no weight. (Application in a Case filed 25 July 2007, page 5, par 6).

  2. The Court has earlier dealt with what appears to be the substantive challenge to the jurisdiction of the Federal Magistrate to hear and determine the application to enforce arrears of child maintenance. Whether or not this is a separate challenge is uncertain. Why it is made is even less so having regard to the concluding sentence of the proposed ground.

  3. Whether or not the learned Federal Magistrate said what he is alleged to have said, the fact is that any such statement, as the applicant’s own proposed ground makes clear, had no significance. His Honour either had jurisdiction to entertain the application to enforce arrears of child maintenance or he did not. Nothing to which this Court has been referred establishes that the learned Federal Magistrate lacked that jurisdiction.

  4. Without suggesting that any misapprehension on the part of his Honour has been established, it is quite immaterial whether his Honour thought that his jurisdiction in any way derived from “the Royal Coat of Arms”.

Ground 7

  1. The seventh proposed ground asserted that the learned Federal Magistrate erred:-

    7.By taking into account and giving weight to the respondent’s failure to duly itemise and serve the bill or bills of costs and penalties. (Application in a Case filed 25 July 2007, page 5, par 7).

  2. The learned Federal Magistrate said with respect to the costs which he was “also provided with the amount sought by the applicant in respect of costs”. What, if anything, was provided by way of itemised account to the learned Federal Magistrate or to the applicant is unclear.

  3. The transcript of the proceedings would have been revealing in relation to this proposed challenge. On its face, the sum awarded after a two-day hearing with a variety of applications, including the parentage testing application which the applicant subsequently withdrew, over a period of two and a half years does not seem unreasonable, but that is not a matter about which the Court needs to speculate. The applicant’s failure to refer this Court to any material whatsoever which might provide some basis for thinking that this challenge could have merit is sufficient basis for finding that it does not.

Ground 8

  1. The eighth ground of the proposed “Grounds of Appeal” provided:-

    8.In holding that such failure to comply with the provision of the Legal Profession Act did not amount to bills of costs within the meaning of s 192, and did not give rise to available defences to the claims of the respondent against the appellant. (Application in a Case filed 25 July 2007, page 5, par 8).

  2. As with the previous proposed challenge, nothing to which the applicant has referred the Court provides a basis for concluding that this challenge may have substance. Without expressing a concluded view, the provisions of the Family Law Act and Rules made pursuant to the Act would appear to have been more relevant than the statute to which the applicant refers.

  3. The transcript would have revealed the circumstances in which the costs issues was agitated before the learned Federal Magistrate, the material upon which he did so, and the case which the applicant sought to raise before him in relation to the costs claim. In the absence of any material which would provide a basis for concluding that this ground may have substance, the Court cannot conclude that it does.

Ground 9

  1. The ninth ground of the proposed “Grounds of Appeal” provided:-

    9.In exercising a power on the run and assumption without a certificate, and/or penalties or itemised costs duly presented. (Application in a Case filed 25 July 2007, page 5, par 9).

  2. If this refers to the costs issue, as it appears to, it does not attempt to take matters any further than the previous proposed two grounds to which reference has been made.

Ground 10

  1. Similar observations apply to the tenth ground of proposed ground of the “Grounds of Appeal” which provided:-

    10.In that there were proper grounds for questioning the derived quantum amount from the outset. (Application in a Case filed 25 July 2007, page 5, par 10).

  2. What the “proper grounds” for “questioning the derived quantum amount from the outset” is not clear. As noted earlier, the history of the litigation since October 2004 would in no way cause this Court to question the sum sought by the Registrar and awarded by the learned Federal Magistrate.

Ground 11

  1. Proposed Ground 11 provided:-

    11.In the circumstances, erred in exercising the discretion or assumption conferred by of the Legal Profession Act. (Application in a Case filed 25 July 2007, page 5, par 11).

  2. To whom this refers, and in what way, is not discernable.

Ground 12

  1. The twelfth proposed ground provided:-

    12.Pursuant to Service of Summons, order 33 rule 3 (5) of the Family Law Rules, relating to the fact that the alleged enforcement summons was not served in the manner referred to in Order 18. (Application in a Case filed 25 July 2007, page 5, par 12).

  2. This issue was addressed by the learned Federal Magistrate in some detail. Nothing to which the applicant referred this Court provides the slightest foundation for thinking that his Honour erred in concluding as he did in that regard.

  3. His Honour referred to the commencement of the enforcement proceedings by the Registrar in October 2004 and to “[d]isputes” which had “arisen from time to time as to whether or not certain process has been received” by the applicant. He referred to orders which had been made for substituted service upon the applicant. (Reasons for Judgment dated 31 May 2007, page 2, par 4).

  4. Apart from the fact that those orders for substituted service can be presumed to have been regularly made, and the applicant does not challenge the making of those orders or the circumstances in which they were made, as his Honour recorded, by November 2005 the applicant had retained solicitors to act on his behalf. Whilst those solicitors were acting, a response to the enforcement application was filed on behalf of the applicant, as was an application seeking parentage testing, no doubt in the hope that any basis of “liability” would be found to be lacking by virtue of non-paternity.

  5. The learned Federal Magistrate further referred in the context of dispelling any doubt about the applicant’s knowledge of the proceedings to an application filed on his behalf by solicitors in December 2005.

  6. Reference was then made to the withdrawal in December 2006 of the parentage testing proceedings which was the only application ever filed by the applicant “which positively sought orders”. (Reasons for Judgment dated 31 May 2007, page 4, par 13).

  7. Significantly, beyond seeking to take a technical point, the applicant does not assert that he did not know of the proceedings at all material times. The learned Federal Magistrate dealt with the question of notice in detail, and nothing to which the applicant now refers provides any basis for inferring that his Honour erred in any way in relation to that issue.

Ground 13

  1. The thirteenth ground of the proposed “Grounds of Appeal” provided:-

    13.During proceedings held before Federal Magistrate Coakes, MJB as Councel (sic) for the respondent (C.S.R.) announced to the Court, and did so accuse the Applicant/Appellant of changing the spelling of his name to avoid detection. (Application in a Case filed 25 July 2007, page 6, par 13).

  2. To what this proposed complaint relates is unclear. What is clear is that it could not possibly give rise to a successful appeal against the orders of 30 or 31 May 2007.

Ground 14

  1. The fourteenth ground of the proposed “Grounds of Appeal” provided:-

    14.Australian Government Child Support Agency – Child Support Account Statements are not in the Applicant/Appellant’s name. Refer to Documented Evidence (G). (Application in a Case filed 25 July 2007, page 6, par 14).

  2. The “Documented Evidence (G)” is not attached to the application. Nor does anything which could conceivably meet the description appear in any other material to which the applicant has referred this Court.

  3. The only statement from the Child Support Registrar to which this Court has been referred bears the name “V Ulysses”. (Affidavit of Mr Ulysses filed 25 July 2007, Annexure G). The applicant has used the name “W” in all documentation filed in this Court. There being no doubt that the applicant is the person liable to pay child maintenance pursuant to orders made in 1996, however his name may have been spelt, it is difficult to understand how this complaint seeks to impugn anything decided by the learned Federal Magistrate.

Ground 15

  1. The fifteenth proposed ground provided:-

    15.Federal Magistrates Court of Australia Court Orders: are not in the Applicant/Appellant’s name. Refer to Documented Evidence (B). (Application in a Case filed 25 July 2007, page 6, par 15).

  2. Every document filed in the Federal Magistrates Court to which this Court has been referred refers to the applicant by precisely the same name as he has referred to himself in documentation which he has prepared in this Court. Correspondence directed by him to the Court uses the same name.

  1. Whilst the Court cannot profess to understand how this complaint could possibly advance any appeal against the orders of 30 or 31 May 2007, the fact that, however named in the Federal Magistrates Court, there is no doubt that the present applicant is, and remains, the person liable to pay child maintenance under the 1996 orders denies this proposed complaint any possible substance.

Ground 16

  1. The sixteenth ground of the proposed “Grounds of Appeal” provided:-

    16.The Solicitor for the Respondent (C.S.R.) defied Order No: 2 of Federal Magistrate Lindsay’s Orders of 31 May 2007. Refer to Documented Evidence (B3). (Application in a Case filed 25 July 2007, page 6, par 16).

  2. In what way it is asserted that Counsel for the Registrar “defied” any orders made on 31 May 2007 is not clear. This complaint can have no substance.

Ground 17

  1. The seventeenth proposed challenge provided:-

    17.The Applicant/Appellant was denied his right to have legal representation in the C.S.R. 2 day proceedings. Refer to page 31 & 32 of Transcript of Proceedings (H). (Application in a Case filed 25 July 2007, page 6, par 17).

  2. In support of this proposed complaint, the applicant provided two pages of transcript of the proceedings on 30 May 2007. As with other proposed complaints, the selective presentation of transcript is significant.

  3. To the extent that one can discern to what the two pages of transcript which the applicant has provided relate, it is reasonably clear that the exchange between the Federal Magistrate and the legal practitioner then representing the applicant occurred at a time when the applicant was refusing to submit to examination by Counsel for the Registrar.

  4. His Honour referred to that in his Reasons for Judgment. The complaint appears to allege that the applicant was refused legal representation. The two pages of transcript reveal that the applicant was in fact represented.

  5. The transcript is revealing in ways perhaps unanticipated by the applicant. Counsel then appearing for the applicant referred to “instructions” given by the applicant “which would perhaps go to show that he is not the father in this matter”. (Transcript of Proceedings of 30 May 2007, page 31, lines 31 – 32). Those were curious instructions to be giving in light of the applicant having previously obtained an order for parentage testing and had such order discharged six months prior to the hearing before the learned Federal Magistrate.

  6. In the course of such submissions, Counsel then appearing for the applicant alluded to making an application for an adjournment of the proceedings, notwithstanding that the applicant had failed to attend Court on 19 April 2007. No application for an adjournment was in fact made.

  7. As is clear from his Honour’s judgment, and seemingly uncontroversial, the applicant ultimately consenting to be examined, the contempt application was withdrawn. It is probably sufficient to say that the transcript relied upon by the applicant does not begin to establish the proposed complaint.

  8. No application was made for an adjournment of the enforcement proceedings, sensibly as apparently experienced Counsel then representing the applicant, albeit only with respect to the contempt application arising out of the applicant’s refusal to be examined in the proceedings, sensibly conceded. Quite apart from the fact that the applicant had legal representation earlier, as his Honour recorded and did not seek an adjournment of proceedings to obtain legal representation, the nature of the proceedings before the learned Federal Magistrate and failure of the applicant to seek to put any evidence before his Honour in relation to relevant issues suggests that the applicant was not prejudiced in any relevant sense by the absence of legal representation.

Ground 18

  1. The proposed Ground 18 provided:-

    18.The Australian Government Solicitor Jim McCulloch did not reply to the letter sent by Express Post dated: 23 May 2007, stating the Applicant/Appellant’s defence. The letter also contained documented evidence attributed by former Chief Justice Sir Harry Talbot Gibbs. As an Australian Citizen and in the interests of the Independent Citizens of the Sovereign Nation of the Commonwealth of Australia refer to the documented evidence relied upon, and marked (I), along with the Dictum of Historical Facts, marked (J), attributed by the former Justice (1970 – 81) then Chief Justice (1981 – 87) Sir Harry Talbot Gibbs of the High Court of Australia. (Application in a Case filed 25 July 2007, page 6, par 18).

  2. Quite apart from the fact that Mr McCulloch was in this Court’s view under no obligation whatsoever to respond to the material to which the applicant refers, the substance of that material has been earlier considered.

Conclusion

  1. No proposed ground of appeal having been shown to have the prospect of success, to grant an extension of time within which to apply for leave to appeal would be an exercise in futility, wasteful of public resources and an abuse of the Court’s processes. The application filed 25 July 2007 will accordingly be dismissed.

  2. More significantly, refusing the application, and denying the applicant the opportunity to have his application for leave to appeal determined by a court would not, on the material before this Court, visit an injustice upon the applicant. As the learned Federal Magistrate noted in his Reasons for Judgment, the applicant has never applied to vary or discharge the 1996 order which gives rise to his liability for child maintenance. To the extent that the applicant has ever done anything to seek to extinguish his liability, as he did by obtaining an order for parentage testing in 2005, his withdrawal of that application prior to its outcome becoming known denied that attempt the prospect of success.

  3. Having regard to the manner in which the applicant was found to have presented his case before the learned Federal Magistrate, and how he has presented his case to this Court, particularly by withholding the transcript of the proceedings before the learned Federal Magistrate from this Court, to grant the applicant’s application would be to potentially visit an injustice upon the mother of the child for whom maintenance apparently has not been paid for a decade. The absence of injustice to the applicant is underpinned by the fact that the applicant retains the capacity to seek to vary or discharge the 1996 order, notwithstanding that he has not availed himself of that opportunity in the past.

  4. Counsel for the Registrar sought an order that the unsuccessful applicant pay the Registrar’s costs of and incidental to the application filed 25 July 2007. The application has been wholly unsuccessful, for reasons which the Court has provided.

  5. The absence of success has in no small measure been the result of earnest but misguided contentions advanced by the applicant and/or the conscious decision not to place before this Court the transcript of the proceedings before the learned Federal Magistrate, notwithstanding that a number of the proposed challenges to his Honour’s decision relate to events which occurred during the course of the hearing before him.

  6. The applicant has placed nothing before this Court in relation to his financial circumstances. Nothing to which he has referred this Court provides any basis for concluding that he is other than able to meet an order for costs, particularly in the modest sum sought on behalf of the Registrar.

  7. The Court is of the opinion that the circumstances justify an order that the applicant pay the respondent’s costs of this application.

  8. The sum sought $1951 is detailed in a statement provided by Counsel for the Registrar. On any view of party/party legal costs incurred in late 2007, the sum sought is modest. Technically, it might be thought that taxation of the costs sought would be appropriate given that the applicant is unrepresented. The modest sum sought and costs and inconvenience associated with a taxation of such costs, particularly when no basis for thinking that a different sum would result justifies the Court assessing costs as sought by Counsel for the Registrar.

  9. The orders of the Court are accordingly:

    (1)      That the application filed 25 July 2007 be dismissed.

    (2)That the applicant pay the respondent’s costs of and incidental to the proceedings assessed in the sum of $1951.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate: 

Date:  23 November 2007

Key Legal Topics

Areas of Law

  • Family Law

  • Administrative Law

Legal Concepts

  • Jurisdiction

  • Appeal

  • Costs

  • Procedural Fairness

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