Warner and Houseman (No 2)

[2011] FamCA 167

FAMILY COURT OF AUSTRALIA

WARNER & HOUSEMAN (NO 2) [2011] FamCA 167

FAMILY LAW – PRACTICE AND PROCEDURE - Application to review orders and judgment of Senior Registrar – Alleged factual error in judgment – Subsequent consent orders and further final defended hearing – Applicant four years out of time – No application to extend time – No merit in application which was dismissed

Family Law Act 1975 (Cth)

Family Law Rules 2004 – Chapter 18

APPLICANT: Mr Warner

RESPONDENT: Ms Houseman

FILE NUMBER: MLC 9756 of 2008

DATE DELIVERED: 10 March 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 10 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

ORDERS

IT IS ORDERED:

1. THAT the Application in a Case filed 11 February 2011 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Warner & Houseman (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9756 of 2008

Mr Warner

Applicant

And

Ms Houseman

Respondent

REASONS FOR JUDGMENT

1. The father filed an Application in a Case on 11 February 2011.  The order sought therein by him was:

   “To review the orders made by Registrar FitzGibbon on 19 September 2006”.

2. In support of that Application in a Case the father filed a brief affidavit on 11 February 2011. 

3. That affidavit alleged that Senior Registrar FitzGibbon had made a significant factual error in his extempore reasons for judgment delivered 19 September 2006, primarily in paragraph 8 thereof. 

4. In that extempore judgment the Senior Registrar had said:

   “8.On 1 November in the Supreme Court he was legally represented, pleaded guilty and received a suspended sentence and a Community Based Order, plus was required to attend an Anger Management Course.  I am unsure of the exact terms of those orders, but I understand that time for the suspension of the sentence has not elapsed”.

5. The father alleged that the above paragraph was “a fabrication and totally false as none of the above statement is true”.  He complained that the Senior Registrar had therefore defamed him and has dishonoured the Court.  More particularly he further alleged that as Mushin J “had read this document prior to the trial in May 2007, as it formed part of the file, it would have contaminated his case before the court as it was a false statement”.

6. When this matter was listed on 19 September 2006 before the Senior Registrar the father then appeared in person and Counsel represented both the mother and the Independent Children’s Lawyer.  The Senior Registrar delivered his extempore reasons for judgment that day and made orders in the terms expressed hereunder.

7. What was before the Senior Registrar was the amended Application in a Case filed by the father on 5 September 2006 and which “sought to make good” the earlier decision and orders pronounced 11 July 2005. 

8. In addition the father had earlier issued a further Application in a Case on 14 August 2006 seeking that same order but without any specific issues raised therein and that Application had likewise been made returnable before the Senior Registrar.

9. By his orders of 19 September 2006 the Senior Registrar ordered:

   “1.That paragraph 2 of the orders of Senior Registrar Fitzgibbon dated 11 July 2005 be suspended.

   2.That the applications of the father filed 14 August 2006 and 5 September 2006 be dismissed.

   3.That the respondent and the Independent Children’s Lawyer costs of and incidental of today be reserved to the trial Judge.

   4.That all extant interim applications be dismissed.

   5.That all final applications be adjourned to a Trial Notice List on 13 October 2006 at 9.30 a.m.”

10. There is a typographical error on both the coversheet and the front page of the orders of the Senior Registrar where the date is incorrectly recorded as 19 September 2005 rather than the correct hearing date of 19 September 2006.  That date can properly be corrected pursuant to the Slip Rule and it does not in any way adversely impact upon the father’s case or his argument before me this day.

11. From a reading of the file it is apparent that there have been many subsequent court hearings post September of 2006.

12. The primary hearing of this matter was the defended hearing which concluded on 3 May 2007 before Mushin J.  Final consent orders were pronounced that day with respect to the child L born in February 2001.  Those orders provided for the child to live with the mother who was to have sole parental responsibility for her long term care, welfare and development and further that the father was not to spend time with or communicate with his daughter.

13. At that hearing the father was self represented and Counsel appeared for both the mother and the Independent Children’s Lawyer.  At the conclusion of that hearing the appointment of the Independent Children’s Lawyer was then discharged.  It is a matter of fundamental importance to highlight that the orders were made by consent.

14. Subsequently there have been further and continuing hearings of and related to the child before this Court.

15. The father has filed various other Applications which were primarily heard and determined before Mushin J. A fresh appointment was made for an Independent Children’s Lawyer and ultimately the further proceedings were listed for hearing before his Honour on 27 February 2009. The orders of that date dismissed the then outstanding interim and final Applications that had been filed by the father on 27 October 2008, made various costs orders as against the father and further ordered pursuant to the provisions of s 118 of the Family Law Act1975 (Cth) that the father not be permitted to institute any further court proceedings without the leave of a Judge of the Court first had and obtained.

16. Subsequently on 11 August 2010 Justice Mushin granted leave to the father to file a further Initiating Application seeking parenting orders and that matter was then listed for hearing before his Honour on 10 September 2010.

17. On that hearing day the father was represented by Counsel as was the mother and the hearing proceeded on a defended basis before his Honour.  Reasons for judgment were subsequently delivered and orders pronounced on 10 December 2010 and the outcome of that hearing was that his Honour ordered that:

    1.That the father’s Initiating Application filed 11 August 2010 be and is hereby dismissed in its entirety.

    2.All Applications were otherwise dismissed and the proceedings were removed from the list of cases awaiting hearing.”

18. I observe that no order for costs were made against the father and that the orders of his Honour concluded all proceedings before the Court. 

19. It was subsequent to that hearing that the father filed his further Application in a Case on 11 February 2011 and that matter came before Justice Mushin on 25 February 2011.  The father appeared in person seeking leave to review the orders of 19 September 2006.  There was, of course, no need for the appearance of any legal practitioner on behalf of the mother or any other party.

20. For reasons that are now explained by his Honour in his reasons for judgment, his Honour disqualified himself from any further involvement in the proceedings and the matter was referred to a case management Judge to be relisted as appropriate.

21. It was pursuant to that relisting that the matter came before me for hearing this day. 

22. The central, indeed only argument of the father, was directed to the alleged error contained in paragraph 8 of the extempore reasons for judgment of the Senior Registrar delivered 19 September 2006. 

23. The father’s statement from the Bar Table was that he did not plead guilty in the Victorian Supreme Court to any of the then outstanding criminal charges and further that he did not receive a suspended sentence or a Community Based Order from that Court.

24. The father explained to me that he was granted bail in the Supreme Court of Victoria by Justice Nettle and the matter was thereafter transferred to and listed for a hearing at the Magistrates Court at F in or about mid 2006 before Magistrate Spillane.  Whilst he was represented at that local Court on that day the matter was thereafter transferred to the County Court of Victoria for trial and his bail was extended. 

25. Subsequently and in or about late 2008, at a date which the father could not remember, his court trial was conducted and he advised that a not guilty verdict was returned.

26. The father did not depose to any of the above facts in his affidavit and stated only that the Senior Registrar was wrong in his facts contained within paragraph 8 of his then reasons for judgment.   No County Court document identifying the outcome of the trial was presented to the Court by the father and there is no sworn or written proof of the facts alleged by the father.

27. Nevertheless, and for the purposes of the Application before me, I am prepared to accept that the father did stand trial and was found not guilty of any alleged threats to kill either or both of his former wife and his daughter.  Likewise the father also advised me that he was not convicted of any breach of any intervention order and he further advised the Court that those past intervention orders have now been discharged by an order of the Magistrates Court at E.  Again there is no proof of that submitted by the father, save for his statements which again, and only for the purposes of this interlocutory application, I am prepared to accept.

28. I further record that the father identified an incorrect date in paragraph 11 of the extempore reasons for judgment of the Senior Registrar in that he asserted that the correct date was 6 February and not 3 February, but that matters little in the over view of the issues then and now before the Court.

29. I endeavoured to highlight to the father that the previous orders of 11 July 2005 have been long since surpassed by the final consent orders pronounced by Mushin J in May 2007.  The amendment or rectification of those July 2005 orders of the Senior Registrar which focused upon supervised contact to be spent at the D Children’s Contact Service in E have been wholly overtaken by the subsequent final consent orders and therefore what the father endeavoured to inform the Court today of, that is that he had been exercising some supervised time in E, is now of no relevance and no doubt would or should have been explained to earlier Courts in previous hearings, if at all then of relevance.

30. I endeavoured, though likely I failed, to explain to the father the impact of the final consent orders of May 2007 and more particularly his failure to appeal the most recent final orders of Mushin J pronounced 10 December 2010 which finalised all matters before the Court.

31. The Court is empowered to review decisions of the Senior Registrar pursuant to Rule 18.08 of the Family Law Rules 2004. The documents identifying that review must be filed within twenty eight days of the making of the order and the father failed to file documents for any review and today makes no application to extend the period in which to review the decision of the Senior Registrar pronounced 19 September 2006. In any event on the material before me or now known to me there was no ground upon which that extension of the time table for review could now be pronounced as the impact of those earlier orders were wholly based by the final consent orders pronounced 3 May 2007.

32. Aside from the father’s failure to review that decision within time any such review of the order of the Senior Registrar would have been heard as an original hearing and as such the Court could receive evidence that was available to that earlier hearing, the transcript of the hearing or other appropriate evidence.  In that regard I have read the affidavit of the father and have incorporated as evidence his various statements from the Bar Table by way of the explanation of the court hearings in the Magistrates Court at F and in the County Court of Victoria.

33. I find that there is no merit whatsoever in the Application of the father.  Further there is no relevance to that Application in the context of the subsequent court orders that have finally resolved all proceedings before this Court.  The father was at some length to emphasise that he did not understand or read the error in paragraph 8 of the judgment of the Senior Registrar at the time that he had that judgment made available to him.  Nevertheless even if it in any unlikely way did impact upon subsequent hearings he has had every opportunity to highlight the error and to correct any “contamination”.

34. The consent of the father to the final orders of 3 May 2007 was not impacted upon by any incorrect statement contained within paragraph 8 of the extempore reasons for judgment of the Senior Registrar.  Any error did not influence or contaminate the final consent orders or the subsequent reasons for judgment and orders pronounced by Mushin J on 10 December 2010.

35. I do not have before me all of the documents and earlier reports that may have been before the Senior Registrar and which led him to the facts contained within paragraph 8 of his then judgment.  It may likely be that the contents of that paragraph are somewhat inaccurate though it is important to read and understand the qualification contained within that paragraph where the Senior Registrar stated that he was “unsure of the exact terms of those orders”.

36. There is no ongoing injustice occasioned to the father arising from any actual or implied error in paragraph 8 of that earlier judgment of the Senior Registrar.  It has not adversely impacted upon the reasoning of the trial Judge in the subsequent hearing(s) which have gone to judgment.  It most certainly did not give rise to any concern by the father when he consented to final orders on 3 May 2007.

37. The just and proper outcome of this Application is that the Application in a Case filed by the father on 11 February 2011 will be dismissed.  There are no proceedings extant before this Court consequent upon the dismissal of that Application.

I certify that the preceding Thirty Seven
(37) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 10 March 2011.

Associate: ……………………………………………………………

Date:  …………………………………………………………………