VAN BROECK & WILZINK - [2012] FamCAFC 99

FAMILY COURT OF AUSTRALIA

VAN BROECK & WILZINK

[2012] FamCAFC 99

FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the appellant takes issue with the timing of events that occurred on 30 November 2011 – where that case is completely at odds with the transcript provided by Auscript – where the appellant concedes that the transcript that is before the Court is accurate insofar as it records what was said by everyone including the Federal Magistrate – where the appellant seeks orders permitting him to issue five subpoenas – where the appellant’s position is that if he is not granted leave to issue the subpoenas as sought then he is not able to pursue his appeal – where there is no justification in the circumstances of the case to allow the issue of the subpoenas as sought by the appellant – where none of the grounds of appeal have any merit – appeal dismissed.

APPEAL – NOTICE OF APPEAL – COSTS – where the respondent foreshadowed an application for costs – costs regime provided.

Family Law Rules 2004 (Cth) – r 22.34

APPELLANT:

MR VAN BROECK

RESPONDENT:

MS WILZINK

APPEAL FILE NUMBER:

SOA

2011

FILE NUMBER:

DGC

2421

2011

DATE DELIVERED:

21 June 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

21 June 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 November 2011

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Harris

SOLICITORS FOR THE RESPONDENT:

Victoria Legal Aid

Orders

IT IS ORDERED THAT:

The application in an appeal filed by the respondent mother on 29 March 2012 be dismissed.
The applications in an appeal filed by the respondent father on 3 April 2012,

7 May 2012 and 15 June 2012 be dismissed.
The amended Notice of Appeal filed by the respondent father on 23 April 2012 be dismissed.
On the oral application of the respondent mother for the costs of and incidental to this appeal, within fourteen (14) days of the date hereof the respondent mother file and serve written submissions in support of the application for costs.
Within twenty-one (21) days of receipt by the appellant father of the submissions of the respondent mother in relation to the application for costs the appellant father file and serve any written response to that application.
Within twenty-one (21) days of receipt by the respondent mother of the response filed by the appellant father the respondent mother file and serve any written reply to that response.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Van Broeck & Wilzink 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 MELBOURNE

Appeal Number: SOA 90 of 2011
File Number: DGC 2421 of 2011

MR VAN BROECK

Appellant

And

MS WILZINK

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

This is an amended Notice of Appeal filed on 23 April 2012 against orders made by Federal Magistrate Riethmuller on 30 November 2011.
The original Notice of Appeal was filed on 23 December 2011 and there have been a number of hearings since then in relation to the appeal, and a number of applications in an appeal filed by both sides.
The matter was last before me on 3 April 2012 when I adjourned it to today and ordered the father to file and serve a further amended Notice of Appeal. As I said at that time there were in effect, apart from the need for a further amended Notice of Appeal, two issues which Mr Van Broeck needed time to pursue, and they provided the reasons why I granted the adjournment. They were first, that he was in the process of obtaining legal advice and hopefully legal representation, and secondly, he wanted time to listen to the audio of the transcript of the hearing before the Federal Magistrate, given that as has become quite apparent, and I have said this in my reasons delivered previously, the principal issue for Mr Van Broeck is that he takes issue with the timing of events that occurred on 30 November 2011, and in particular, his case is that the child the subject of the proceedings before the Federal Magistrate was in fact spoken to by the Federal Magistrate before any consent was given to that process. I observe that that case is completely at odds with the transcript that has been provided by Auscript.
Today Mr Van Broeck has told me that he does not have any legal representation, and he did not see through his request to listen to the audio. He has filed though an amended Notice of Appeal. I have taken him through the grounds of appeal which he has set out in that document and invited him to make submissions, and explain to me in respect of each of those grounds of appeal, where the error is that he alleges the Federal Magistrate has made. As a result of those submissions by Mr Van Broeck it has become even more apparent to me than it previously had, that none of the grounds of appeal have any merit.
I have explained again to Mr Van Broeck as I have done previously that this is an appeal, that it is not another first instance hearing, and the principal issue that he wishes to agitate, namely allegations in relation to, and this is my word, doctoring of the timelines in the transcript relative to what occurred on
30 November 2011, is not a matter that can readily be brought before an appeal court. I have said to him that he may be able to make an application to the Federal Magistrate who heard the case, but that is a matter for him, and I make no comment about the success or otherwise of such an application. However as I have also said to him, and I repeat, that is a process which would have been open to him rather than to pursue that issue through an appeal.
I should perhaps mention one further thing at this stage, namely that in making my assessment of the grounds of appeal and their merits, a significant and important concession made by Mr Van Broeck today is that the transcript that is before me is accurate insofar as it records what everyone said, including the Federal Magistrate. The importance of that is that in almost all respects in terms of the complaints that he makes about how the timing of what happened on that day is recorded, there is an inconsistency between what appears in the transcript and those complaints.
In any event, although I have come to that view about Mr Van Broeck’s grounds of appeal, his position today is that unless he is able to obtain orders permitting him to issue a number of subpoenas, then he is not able to pursue his appeal, and he says that regardless of anything that I have said in relation to the merits of the grounds of appeal.
Those subpoenas are the subject of an application that he filed on 15 June 2012 wherein he sought leave to issue five subpoenas. The detail of those subpoenas are as follows:
1.Seeking permission from the Court to subpoena for production the relevant sections of the contract between Auscript Australasia PTY LTD and the Family Courts regarding the authorised provision, the operating, the storage and the collection procedures of the audio recording and records at Court.
2.Seeking permission from the Court to subpoena for production the entire audio recordings made by Auscript Australasia PTY LTD of all the cases heard by The Federal Magistrate Riethmuller in the courtroom of case DGC2421/2011 at the Dandenong Family Law Courts on the 30^th November 2011.
3.Seeking permission from the Court to subpoena for production the listing of all cases heard by The Federal Magistrate Riethmuller at the Dandenong Family Law Courts on the 30^th November 2011.
4.Seeking permission from the Court to subpoena for production the record of employment by the court’s family consultant Mr [M] and his attendance to the conversation between The Federal Magistrate Riethmuller with the Child [A] at the Dandenong Family Law Courts on the 30^th November 2011.
5.Seeking permission and an Order from the Court to subpoena the Child [A] to give evidence regarding times and events in relation to the Auscript transcript of the 30^th November 2011 proceedings at the Dandenong Family Law Courts.
Although it is open to an appeal court to issue subpoenas, leave is required (see Rule 22.34 Family Law Rules 2004 (Cth)), and I have explained to
Mr Van Broeck that there is no justification in the circumstances of this case to allow the issue of the subpoenas sought. For the start there is the effect of Mr Van Broeck’s concession referred to in paragraph 6 above. Second, as submitted by the respondent’s counsel, it is outrageous for
Mr Van Broeck to seek to have the child attend to give evidence about these matters. And finally, in my view it is an abuse of the appeal process to look to issue such subpoenas; the documents and evidence sought cannot go to establish any error by the Federal Magistrate, and would only serve to unnecessarily prolong this matter and turn the appeal into a fishing expedition. Thus, I have indicated to Mr Van Broeck that I propose to dismiss this application.
On that basis, namely my refusal to give leave to issue subpoenas
Mr Van Broeck says in effect that there is no point in his appeal. I have explored with Mr Van Broeck what he then wants to do and he has indicated that he wants to file a Notice of Discontinuance.
The respondent through her counsel though has sought that in the circumstances it would be appropriate to dismiss the appeal here and now, and after hearing those submissions I agree.
There is no point in prolonging this matter given Mr Van Broeck’s position, namely that there is no longer any point in the appeal. In those circumstances it is entirely appropriate that I finalise the matter today in the sense of dismissing the appeal. I put it in that way because it has been foreshadowed that there will be an application for costs made by the respondent. I note though that because of time constraints I am not able to deal with such an application today and I will provide a regime for the filing of submissions.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 21 June 2012.

Associate:

Date: 18 July 2012