WALKER & PAGE
[2019] FamCAFC 101
•13 June 2019
FAMILY COURT OF AUSTRALIA
| WALKER & PAGE | [2019] FamCAFC 101 |
| FAMILY LAW – APPLICATION IN AN APPEAL – PRACTICE AND PROCEDURE – Inspect Court File – Where the appellant sought to inspect the correspondence on the Federal Circuit Court file – Knox & Knox [2017] FamCAFC 93 considered – Where this Court does not have the jurisdiction or power to make such an order – Application dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – PRACTICE AND PROCEDURE – Review of Registrar’s Decision – Where the appellant sought to review two decisions of a Registrar on the basis that the time allocated for the respective hearings was insufficient – Where a review of a Registrar’s decision proceeds by way of a hearing de novo – Where a Registrar need not give reasons for administrative decisions – Where there is no error on the part of the Registrar – Applications dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 1.12, 22.37, 22.40 Federal Circuit Court Rules 2001 (Cth) r 2.08 |
| Bele & Vaughan (No 2) (2012) 268 FLR 411; (2012) FamCAFC 125 Brott and Abeles (2007) FLC 93-310; [2007] FamCA 28 Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Knox & Knox [2017] FamCAFC 93 Walker & Page (2018) FLC 93-882; [2018] FamCAFC 264 Wellington & The Child Support Registrar [2012] FamCAFC 34 |
| APPELLANT: | Mr Walker |
| RESPONDENT: | Ms Page |
| FILE NUMBER: | BRC | 1066 | of | 2017 |
| APPEAL NUMBER: | NOA | 95 | of | 2018 |
| DATE DELIVERED: | 13 June 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 13 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 July 2018 |
| LOWER COURT MNC: | [2018] FCCA 3032 |
REPRESENTATION
| THE APPELLANT: | Self-represented |
| THE RESPONDENT: | Self-represented via telephone |
Orders
The wife be given leave to appear by telephone at the hearing today.
The husband’s Application in an Appeal filed on 25 February 2019 be dismissed.
The husband’s Application in an Appeal filed on 24 April 2019 be dismissed.
The husband’s Application in an Appeal filed on 22 May 2019 be dismissed.
The wife’s costs of and incidental to the husband’s Applications in an Appeal filed on 25 February 2019; 24 April 2019 and 22 May 2019 be reserved to the substantive appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walker & Page has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 95 of 2018
File Number: BRC 1066 of 2017
| Mr Walker |
Appellant
And
| Ms Page |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Mr Walker (“the husband”) has appealed from property settlement orders[1] made by Judge Vasta in the Federal Circuit Court of Australia on 17 July 2018.
[1] Pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).
The hearing of that appeal is listed before me on 23 July 2019. It is to be heard by me as a single judge exercising the appellate jurisdiction pursuant to a direction made in accordance with s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
Ms Page (“the wife”) opposes the appeal.
Before me today are three Applications in an Appeal filed by the husband. Those three applications are:
a)An Application in an Appeal filed on 25 February 2019 to view the Federal Circuit Court file including the correspondence relating to the proceedings BRC 1066 of 2017;
b)An Application in an Appeal filed on 24 April 2019 to review the decision of a Registrar made on 15 April 2019; and
c)An Application in an Appeal filed on 22 May 2019 (but lodged with the Court on 13 May 2019) to review the decision of a Registrar made on 1 May 2019.
The husband represents himself in these proceedings. He has no relevant legal training or experience. It is to be noted that the husband has long suffered from health conditions including anxiety and major depression.
Whilst the wife represents herself on the hearing of these applications today she is a professional.
I record that the wife sought to appear via telephone today and, there being no objection to that course by the husband, and no reason to suppose that it was necessary to have her appear in person, leave is given to the wife to attend via telephone.
Application in an Appeal filed on 25 February 2019 – application to view the Federal Circuit Court file
The husband filed an Application in an Appeal on 25 February 2019 to inspect the Federal Circuit Court file including correspondence. He sought the following orders:
1.The Court Order the Appellant is granted permission to inspect the Case File including Correspondence, File Notes and All Documents in Case BRC 1066/2017.
2.Any further or such Order as the Court sees fit.
In his supporting affidavit, filed on 25 February 2019, the husband outlines two main reasons for his seeking to view the correspondence:
1.The husband claims the trial was originally meant to be heard by Judge Egan and that, consequently, Judge Vasta did not have “a properly constituted authority to hear the Case”. The husband argues the correspondence will support this claim.
2.The husband claims he was allowed to view the correspondence notes on the file in the Family Court of Western Australia and that to deny him access to the Federal Circuit Court file is to ignore precedent and disadvantages the husband.
The husband also noted that:
This matter commenced in the Family Court of Western Australia as Case PTW 2156/2015 on the 14 April 2015 under the Family Law Act 1975, the Family Law Rules 2004 and Family Court Act 1997 (state) and Family Court Rules and Regulation 1998 (state).
(As per the original)
It is unclear how that is relevant as none of those pieces of legislation provide a right for the husband to view any correspondence notes on file.
This application confronts what is, in my judgment, an insurmountable obstacle. It is the Federal Circuit Court, and not this Court, which controls access to any court record held by the Federal Circuit Court. In short, this Court does not have the jurisdiction or power to make the orders for inspection sought by the husband.
In Knox & Knox[2] the Full Court of this Court considered an appeal by a party from a decision of a Federal Circuit Court judge refusing that party access to a trial transcript held as part of the court record held by the Federal Circuit Court. The Full Court determined in that case that the appellate jurisdiction of this Court was not engaged because the relevant decision was not made in the exercise of original jurisdiction under the Act. In the course of providing reasons the Full Court observed as follows:
13.Section 89 of the Federal Circuit Court of Australia Act 1999 (Cth)(“the FCC Act”) provides that the Chief Judge is responsible for managing the administrative affairs of the Federal Circuit Court of Australia and s 93 of the FCC Act provides that the Chief Judge may appoint committees for the purpose of advising the Chief Judge in relation to the management of the administrative affairs of the Federal Circuit Court.
…
15.However, s 43 of the FCC Act provides that the practice and procedure of the Federal Circuit Court of Australia is to be in accordance with Rules of Court made under the FCC Act. Section 81 of the FCC Act contains the rule making power for the rules of court of the Federal Circuit Court. Notably, subsection (2) of s 81 provides that “Rules of Court have effect subject to any provision made by another Act, or by rules or regulations made under another Act, with respect to the practice and procedure in particular matters”…
[2] [2017] FamCAFC 93.
The Full Court also there referred to the relevant rule of the Federal Circuit Court relating to the searching of records in family law proceedings held by the Federal Circuit Court, being r 2.08 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).
Subparagraph (1) of r 2.08 sets out the persons who may search a court record held by the Federal Circuit Court and this includes, in (b), a party in the case. The following parts of r 2.08 provide:[3]
[3] Rule 2.08 has been amended since Knox & Knox [2017] FamCAFC 93 to repeal r 2.08(4).
(2) For subrule (1), the parts of the court record that may be searched, inspected and copied are:
(a) court documents; and
(b) with the permission of the Court, any other part of the court record.
(2A) A permission:
(a)for paragraphs (1)(c) and (d) and (2)(b) - - may include conditions, including a requirement for consent from a person, or a person in a class of persons, mentioned in the court record; and
(b)for paragraph (1)(d) - - must specify the research to which it applies.
(3) In considering whether to give permission under this rule, the Court must consider the following matters:
(a) the purpose for which access is sought;
(b) whether the access sought is reasonable for that purpose;
(c) the need for security of court personnel, parties, children and witnesses;
(d) any limits or conditions that should be imposed on access to, or use of, the court record.
(5) In this rule:
“court document” includes a document filed in a case, but does not include correspondence or a transcript forming part of the court record.
Note 1: Section 121 of the Family Law Act restricts the publication of court proceedings.
Note 2: Access to court records may be affected by the National Security Information (Criminal and Civil Proceedings) Act 2004.
It can be seen that under the terms of the rule correspondence held on the file is specifically excluded from the definition of “court document” as expressed in sub-rule (5).
The short point with respect to this application before this Court is that this Court does not have jurisdiction or power to make the order sought by the husband with respect to inspection of records held by the Federal Circuit Court and on that basis the application must be dismissed.
Whether or not the Federal Circuit Court grants permission to the husband to inspect its court record, including the correspondence, is a matter to be determined in the Federal Circuit Court upon an appropriate application being made by the husband, should he make such an application.
Whilst not necessary to the determination to dismiss this application, I would only add the following to the extent that it may assist the husband in considering the utility of any application to the Federal Circuit Court.
It appears the husband is operating under a misconception that, because his property trial was originally “meant to be heard by Judge Egan”, it follows that Judge Vasta, who ultimately heard the case, did not have “a properly constituted authority to hear the Case.”
With all due respect to the husband, that proposition is entirely misconceived.
As is clear from the reasons for judgment delivered by Judge Vasta on 17 July 2018 with respect to the property orders under appeal, it is clear that judges other than Judge Vasta dealt with the case in the Federal Circuit Court in the lead up to the trial.[4]
[4] See, for example, [82]-[84] of those reasons.
It is thus readily apparent, without resorting to any correspondence held on the Federal Circuit Court file, that it is the fact that these proceedings were in the docket of, or dealt with by, judges other than Judge Vasta prior to the matter being listed to Judge Vasta for trial. There is nothing unconventional or untoward about that. As is recorded at [83] and [84] of the reasons for judgment of Judge Vasta, the matter was dealt with on 3 July 2018 by Judge Jarrett when his Honour set the matter down for trial for final hearing on 16 and 17 July 2018. As his Honour records at [84] Judge Jarrett listed the hearing of the trial before Judge Vasta.
It is well known that during 2018 in the Brisbane Registry of the Federal Circuit Court, what has been referred to as the “Brisbane pilot”, being a trial of a different style of case management for cases in that court, came into operation. In summary, cases previously held in dockets of individual judges were brought into a centralised system with one of the results being that matters previously set down for trial in the docket of a judge were delisted and brought into the centralised call over system. This saw cases being allocated for trial before an available judge on the set date. It is clear that that is what happened in this case.
There is nothing untoward or unconventional about that. No judge other than Judge Vasta was seized of the trial of this matter prior to that trial occurring. It is Judge Vasta who was seized with hearing and determining the property proceedings once his Honour commenced the trial.
The point of these observations is to emphasise to the husband that there is no utility in him obtaining correspondence from the Federal Circuit Court file, assuming such correspondence exists, as it would simply confirm that at one point this case was docketed to a judge other than Judge Vasta. That is, that does not, as the husband would have it, demonstrate that Judge Vasta did not have the authority to hear and determine the trial.
Shortly stated, the jurisdiction of the Federal Circuit Court is conferred by the Federal Circuit Court of Australia Act 1999 (Cth) including that court’s jurisdiction with respect to property proceedings under the Act. That jurisdiction is exercisable by a judge of the Federal Circuit Court and Judge Vasta exercised such jurisdiction for the purpose of the trial of the property settlement proceedings.
In summary, this Court does not have jurisdiction to make the orders sought on this application and in any event it would seem that the access the husband seeks to correspondence (if it exists) on the Federal Circuit Court file lacks any utility.
Application in an Appeal filed on 24 April 2019 – to review the Registrar’s decision made on 15 April 2019
The husband’s second application in an appeal was filed on 24 April 2019 and seeks the following orders:
1.The Court Order the review of the Exersize of Power by the Northern Region Appeals Regristrar made on the 15 April 2019 be allowed
2.The Court Order the Exersize of Power by the Northern Region Appeal Registrar made on the 15 April 2019 be set aside
3.The Court Order the Application in an Appeal filed on the 25 February 2019 be listed for a time of not less than four hours
4.The Court Order the Notice of Appeal filed 07 January 2019 be listed for a time of not less than two days.
5.The Court Order there be a time of not less than four weeks between the hearing of the Application in an Appeal and the hearing of the Notice of Appeal
6.The Court Order the Respondent pay the Appellant the amount of $1,500.00 for expences or in the alternative such other amount as the Court sees fit.
7. Any further or such order as the Court sees fit.
(As per the original)
By way of background, the orders made on 15 April 2019 by the Registrar listed both the Notice of Appeal from Judge Vasta’s orders filed on 7 January 2019 and the Application in an Appeal filed on 25 February 2019 to view the Federal Circuit Court file to be heard by me sitting as a single judge at 10.00 am on 23 July 2019. They also contained the usual orders regarding the filing of transcript, each party’s Summary of Argument, List of Authorities and submissions regarding costs.
Rule 22.40 of the Family Law Rules 2004 (Cth) (“the Rules”) provides:
A party may apply for a review of a Regional Appeal Registrar’s order relating to the conduct of an appeal by filing an Application in an Appeal in the Regional Appeal Registry, within 14 days after the order is made.
A review of an Appeal Registrar’s decision proceeds by way of a hearing de novo.[5]
[5] Harris v Caladine (1991) 172 CLR 84; Bele & Vaughan (No 2) (2012) 268 FLR 411; Wellington & The Child Support Registrar [2012] FamCAFC 34.
In his affidavit filed in support, the husband claims a denial of procedural fairness, insufficient reasons, error of law and apprehended bias in relation to the Registrar’s decision.
The husband contends that a listing of four hours, as he claims was indicated by the Registrar, is insufficient considering:[6]
The complex nature of the submission, the number of grounds to be argued, the judgement of 114 Paragraphs, the exhibit of more than 360 pages …
(As per the original)
as well as his being a self-represented litigant with an “acknowledged disability”.
[6] Husband’s affidavit filed on 24 April 2019.
Further, the husband contends that once he is granted permission to view the correspondence on the court file, he will require time between that permission being granted and the hearing of the appeal to view the material and compile his submissions. I have already made a number of observations about that which need not be repeated.
The husband also highlights r 22.37 of the Rules which states:
Hearing date for application
On the filing of an Application in an Appeal, the Regional Appeal Registrar must:
(a) fix a date for a hearing of the application; or
(b) refer the application to a Judge in chambers if:
(i)the applicant has asked the court, in the application, to determine it without an oral hearing and the respondent has not objected to the request (see Part 5.4); or
(ii) the Regional Appeal Registrar considers it appropriate.
The husband contends that the use of the word “must” in that rule is a “clear direction for the appeals registrar to act” and that there were 50 days between filing his Application in an Appeal and it being listed on 15 April 2019.
The husband states that, at the procedural hearing when these orders were made, the Registrar asked each party how long they believed the hearing of the Notice of Appeal would take. The wife replied “four hours” and the husband replied “four days”. The husband contends that the Registrar then stated “I have seen the court file and read the documents; four hours should be more than sufficient”. The husband contends that those reasons are insufficient. I disagree. I note in passing that there is a notation on the Registrar’s order made on 15 April 2019 stating that the husband asserts the hearing requires four days.
Further, the husband argues that the Registrar has not given the parties notice of the Chief Justice’s decision regarding whether the appeal is to be heard by a single judge or a Full Court. He also argues that the Registrar erred at law in ordering that “[t]o the extent these orders do not comply with the Family Law Rules 2004 there be dispensation from such compliance”. Rule 1.12 of the Rules clearly provides for dispensation with the Rules:
Court may dispense with Rules
(1)These Rules apply unless the court, on application or its own initiative, orders otherwise.
(2)The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.
Events have somewhat overtaken one aspect of this Application in an Appeal in that the husband’s Application in an Appeal filed on 25 February 2019, dealt with already, has been listed (and now determined) well in advance of the listing of the appeal as earlier referred to.
In my judgment, there is no merit in the contention of the husband that four hours hearing time is required for his Application in an Appeal filed on 25 February 2019. In short, there is no error on the part of the Appeals Registrar with respect to the hearing time.
The same can be said with respect to the listing of the appeal. I have had the opportunity to consider the issues of fact and law raised by the husband’s appeal in circumstances where I dealt with an earlier application by the husband for an extension of time to file his Notice of Appeal and when I delivered orders and reasons in respect of that application on 21 December 2018.[7]
[7]Walker & Page (2018) FLC 93-882.
Undoubtedly the appeal is important to the husband, as indeed it is important to the wife. However, the level of importance does not dictate the time necessary to hear and determine an appeal. There is no identifiable feature in terms of the issues of fact or law raised in this appeal from the property proceedings as would dictate the need for anything like two days of hearing time for the appeal. I reiterate that whilst the Appeals Registrar listed the Application in an Appeal filed on 25 February 2019 for hearing at the same time as the appeal being heard on 23 July 2019, in the events that have unfolded, including by reason of the need to deal with the review application, the husband’s Application in an Appeal filed on 25 February 2019 (to view the court file held by the Federal Circuit Court) has now been dealt with.
I am not satisfied of any merit in the husband’s claims of denial of procedural fairness or other errors or the like on the part of the Appeals Registrar for which he contends. The husband’s reference to r 22.37 of the Rules and the mandatory effect of that rule for the fixing of dates for hearing of applications is a sterile complaint. The rule does not mandate a time or period for fixing a date for hearing and in the ordinary dispatch of the business of a busy Court, with all of the cases before a Court with finite resources, there is nothing untoward in the manner of listing undertaken by the Appeals Registrar.
It was plainly open for the Appeals Registrar to dispense with compliance with relevant rules. Rule 1.12 of the Rules clearly expressly provides for the power to dispense with application of relevant rules.
There being no merit in this application it will also be dismissed.
Application in an Appeal filed on 22 May 2019 – to review the Registrar’s decision made on 1 May 2019
The decision made by the Registrar on 1 May 2019 was by way of correspondence and not formal Court order. On that day, the Registrar listed the husband’s Applications in an Appeal filed on 25 February 2019 (to view the Federal Circuit Court file) and 24 April 2019 (review of the Registrar’s first decision) to be heard by me as a single judge today. The husband claims a denial of procedural justice, insufficient reasons and apprehended bias.
The husband claims that by changing her orders made on 15 April 2019, the Registrar denied him procedural fairness. However, I note that the husband’s complaint with respect to the 15 April 2019 orders was partly that he wished to have time between the hearing of his application to view the Federal Circuit Court file and the hearing of the Notice of Appeal. The decision he proposes to review here has given him that time because, prior to the making of this decision, that application remained listed with the substantive appeal.
The husband contends that this changing of the Registrar’s 15 April 2019 orders despite the husband having filed an application to review those orders meets the test set out in Johnson v Johnson[8] to establish apprehended bias. That contention has no merit.
[8] (2000) 201 CLR 488.
The husband otherwise repeats his submissions from the affidavit filed in support of his Application in an Appeal filed on 24 April 2019.
The husband seeks each of his Applications in an Appeal and his Notice of Appeal be listed on separate days with there being a minimum of six weeks between the hearing of his Applications in an Appeal and the hearing of his Notice of Appeal. The husband also seeks $1,500 from the wife.
I note that in the orders sought in the husband’s application filed on 22 May 2019, the husband refers to an Application in an Appeal filed on 10 May 2019 – no such application has been received or filed.
I will not repeat the applicable principles of law already referred to.
There is no substance to the husband’s complaints in support of this application. I reiterate that there is now, by reason of the events which have unfolded a time gap between the hearing and determination of the husband’s Applications in an Appeal and the listing of the hearing of the substantive appeal in July 2019.
It was entirely proper for the Appeals Registrar to list these applications for hearing in advance of the appeal hearing given their nature and potential effect upon the hearing of the substantive appeal.
There is no legitimate basis for this Court, on an Application in an Appeal, to make an order for the wife to pay the husband $1,500 for his “expenses” by way of spousal maintenance or litigation funding. The question of costs of the appeal proceedings will fall to be determined at their conclusion.
There is no merit in the contentions of the husband that he has somehow been denied procedural justice or that he has been subjected to bias on the part of the Registrar or the provision of “insufficient” reasons.
It is unnecessary for a Registrar, undertaking purely administrative functions such as the listing of applications or appeals, to provide formal reasons for the listing dates given. The Registrar is performing an administrative, not a judicial, function in undertaking such tasks and no formal reasons are required.[9]
[9]Brott and Abeles (2007) FLC 93-310 and the authorities cited at [50] and [51].
There being no substance in this application it likewise is to be dismissed.
The formal orders of the Court will be as follows:
(1) The wife be given leave to appear via telephone at the hearing today.
(2)The husband’s Application in an Appeal filed on 25 February 2019 be dismissed.
(3)The husband’s Application in an Appeal filed on 24 April 2019 be dismissed.
(4)The husband’s Application in an Appeal filed on 22 May 2019 be dismissed.
(5)The wife’s costs of and incidental to the husband’s Applications in an Appeal filed on 25 February 2019; 24 April 2019 and 22 May 2019 be reserved to the substantive appeal.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 13 June 2019 edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 14 June 2019
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