Valdez & Frazier (No 2)
[2015] FamCAFC 25
•17 February 2015
FAMILY COURT OF AUSTRALIA
| VALDEZ & FRAZIER (NO. 2) | [2015] FamCAFC 25 |
| FAMILY LAW – APPEAL – Application in an Appeal – Application to review decision of Appeals Registrar to list an application for hearing at the same time as the appeals to which that application relates – Application dismissed. |
| Evidence Act 1995 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPLICANT: | Mr Valdez |
| RESPONDENT: | Ms Frazier |
| FILE NUMBER: | SYC | 2226 | of | 2013 |
| APPEAL NUMBERS: | EA EA | 111 114 | of of | 2014 2014 |
| DATE DELIVERED: | 17 February 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 17 February 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | N/A |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| FOR THE APPLICANT: | Mr Valdez in Person |
| COUNSEL FOR THE RESPONDENT: | Mr Longworth |
| SOLICITOR FOR THE RESPONDENT: | Swaab Attorneys |
The court notes:
The application in an appeal filed on 13 January 2015 is withdrawn.
It is ordered:
That the application in an appeal filed on 20 January 2015 be dismissed.
That the applicant pay the respondent’s costs of and incidental to the applications in an appeal filed on 13 January 2015 and 20 January 2015 in the amount of $3,000 plus GST within 45 days from the date of making these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazier (No. 2) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 111 of 2014; EA 114 of 2014
File Number: SYC 2226 of 2013
| Mr Valdez |
Applicant
And
| Ms Frazier |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
This is an application to review the decision by the Appeals Registrar to list an application in an appeal, filed by Mr Valdez (“the father”) on 19 December 2014 for hearing at the same time as the appeals to which that application relates, namely, Appeal Nos EA111 of 2014 and EA114 of 2014. The father says his application should be listed before the judges who will determine these appeals as soon as possible.
Those appeals are presently listed for hearing before the Full Court on 16 March 2015. The application to review the Registrar’s decision was filed on 20 January 2015 and proposed that the review take place ex parte. At the commencement of the hearing today, because the father appears without legal representation, I explained the manner in which the Appeals Division conducts its business and importantly, that it is not until very close to any particular sitting of the Full Court that the judges who will comprise a particular bench might be known.
Even at that point, the list is fluid. As I explained to the father, in the week preceding any sitting there are often appeals listed which are withdrawn and others which are urgent are interposed. Judges sometimes having been listed become unavailable. The point I attempted to make, which is relevant to the application filed on 19 December 2014 and the review, is that a large number of the orders sought by the father specifically relate to the judges who will constitute the bench charged with determination of the two appeals already mentioned, the identity of whom cannot yet be known.
Notwithstanding that information, the father presses that, in effect, steps should be taken by the court to construct the bench now, to disclose to him now who those judges might be and to then list his application filed 19 December 2014 in advance of 16 March 2015. Suggestions by me that what he in fact invites the court to do is to construct the listing and arrangements for the disposition of these appeals, at a time and manner of his choosing and contrary to the manner in which the court conducts its business, were rejected and seen as prejudicial.
I do not understand how that proposition could be rejected, other than if he holds seemingly unshakable views that only if his application filed on 19 December 2014 is dealt with in a manner that he desires, will justice be done.
In any event, the orders sought in the application filed on 19 December 2014 are as follows:
1.That this application be heard at short notice/urgently.
2.That the appeal date for EA111/2014 & EA114/2014 be set at 19 January 2015.
3.That five (5) days be allocated to hearing the appeal, plus the time the Respondent requires.
4.That the Appellant is permitted to issue subpoena’s to [a solicitor](solicitor), his email and Internet service providers, seeking the production of correspondence the Applicant sent to the Respondent on 23 September 2013.
5.That the Respondent is ordered to disclose the names of the organizations and personnel that supervised or reviewed her provision of respite care for [Y’s] mother.
6.That the Appellant is permitted to issue subpoena’s to the organizations and individuals disclosed as a result of order 5, seeking the Respondent and their correspondence as well as file notes regarding the Respondent’s objections or concerns about [Y’s] mother seeking to relocate [Y] away from the Respondent.
7.That until further Order each party, [the parties], their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said [“the child”] from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s/children’s name/names on the Watch List until the Court orders its removal.
8.That the names of the Justices to hear this matter be disclosed.
That each of the Justices of the full court to hear this matter:
9.Disclose to both parties prior to the hearing, the “extrinsic evidence” or “research studies” (particularly Dr [M’s] publications, papers, studies, presentations or any such materials) consulted or taken into account when deciding parenting orders, including the “imaging of the brain” research the Chief Justice cites is relied on by these courts.
10.Disclose to both parties any other contractual arrangements between Dr [M] and these courts, or any other party who, acting on behalf or in consultation with these courts, has engaged Dr [M] on behalf of these courts.
11.Disclose the nature and amount of any payments, monetary or in kind, the court or any other party, acting on behalf or in consultation with these courts, made to Dr [M].
12.Disclose attendance at the seminars, presentations, conferences speeches and talks concerning “extrinsic evidence” about parents and their children, which have been attended by the Justices.
13.Disclose all correspondence between Court’s Justices and Dr [M] or any author or researcher, specifically but not limited to private or court addresses for correspondence related to this courts work or how this court works.
14.Cite the statutory or common law references from which these courts claim authority to apply evidence about third parties (“extrinsic evidence” or “research studies”) to the parties before these courts.
15.Cite the scientific theorems or results from which these courts claim the ability to apply evidence about third parties (“extrinsic evidence” or “research studies”) to the parties before these courts.
16.Cite the statutory or common law reference establishing a requirement that these courts evaluate parenting orders with reference to “extrinsic evidence” about parties not before the court.
17.Cite the statutory or common law references from which the Justices claim authority to: conduct independent inquisitions into “extrinsic evidence” or “research studies” concerning third parties, formulate pre-judice opinions and views, apply those results, opinions or views to the individuals before the court, and treat those pre-judice views or opinions as adjudicative evidence or fact about the individuals before the court.
18.Cite the scientific theorems, laws or results from which these courts claim the ability to arrive (scientifically), by deduction or induction, at pre-judice opinions and views about individuals from “extrinsic evidence” or “research studies”.
19.Cite the statutory or common law references that authorize and guide when these court’s Justices transition from being inquisitor to adjudicator concerning issues and questions before the court.
20.Cite the expertise that equips or qualifies these court’s Justices to independently inquire into or adjudicate the merit/validity of “research studies”, or otherwise hold themselves out as experts or specialists in “extrinsic evidence”. Specifically, but not limited to, independent evidence of formal training in ergodic theory, real analysis, measurable functions, theory of point estimation, model selection and multi-model inference, quasi-likelihood theory, finite sample estimation, experimental design, etc.
(as per original)
When invited to address the court in relation to the statutory provisions or principles of common law that provide the basis for jurisdiction to make orders of the type set out in proposed Orders 8 through to 20, the father named the Evidence Act 1995 (Cth). Otherwise his argument was devoid of authority.
If the father was able to demonstrate a compelling case for relief of the type identified at proposed Orders 8 through to 20 and that those orders should be made or at least considered prior to 16 March 2015, then notwithstanding the inconvenience and expense that that would have involved for the court, it might be that the review might have had some prospects of success. But the argument as advanced does not persuade me that an order other than that made by the Registrar would be appropriate.
Otherwise, as to the father’s contention that I would direct that the appeals should have five days allocated for his argument, there is nothing in the material that has been filed, including his summary of argument filed in support of the appeals, which would even begin to hint that these appeals require more than the one day that has been allocated.
Otherwise, proposed Orders 4, 5 and 6 seemed to me to be underpinned by the father’s misguided view about the nature of an appeal to this court. During oral addresses, I referred the father for his own benefit to CDJ v VAJ (1998) 197 CLR 172 to assist him to understand the nature of those appeals. In any event, as I now understand, that case is listed on the father’s list of authorities. It might behove him to read it again.
Proposed Order 7 relates to an injunction restraining the child’s removal from Australia, pending further order. There is an order of that type in existence which will continue at least until 16 March 2015 and there is no reason why that component of the application would be listed before 16 March 2015.
In short and notwithstanding the comprehensive and lengthy submissions made by the father today, I see no reason to interfere with the decision of the Registrar and the application of 20 January 2015 will be dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 17 February 2015.
Associate:
Date: 26 February 2015
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