Watson & Watson
[2001] FamCA 1470
•20 DECEMBER, 2001
[2001] FamCA 1470; (2002) FLC 93-094; (2001) 28 Fam LR 481
FAMILY LAW ACT 1975
IN THE FAMILY COURT
OF AUSTRALIA
AT BRISBANE Appeal No. NA45 OF 2001
File No. ZT2223 OF 2000
IN THE MATTER OF: MR WATSON
Applicant
AND: MS WATSON
Respondent
CORAM: LINDENMAYER J
DATE OF HEARING: 25 OCTOBER, 2001 & 15 NOVEMBER, 2001
DATE OF JUDGMENT: 20 DECEMBER, 2001
JUDGMENT OF THE COURT
RE APPOINTMENT OF NEXT FRIEND
Appearances: The Applicant appeared in person
Ms Dart, Solicitor, (of Legal Aid Queensland) for the Respondent
Mrs Batenburg, Solicitor, (of Shila Batenburg, Solicitor) as the Children’s Representative
FAMILY LAW – Courts and Judges - Next Friend - The distinction between the role of a next friend and that of a “McKenzie friend”. McKenzie v McKenzie [1970] 3 All E.R 1034; Collier v Hicks (1831) 2 B & Ad. 663; KT v KJ & TH (2000) FLC 93-032 and Randall v Randall (1939) P. 131 discussed.
JUDICIAL NOTICE - Whether the Court can take judicial notice of an order made in other proceedings between other parties. Mullen v Hackney London Borough Council [1997] 2 All E.R. 906 discussed and applied.
NEXT FRIEND – Whether it is a relevant matter to be taken into account, in determining an application for the appointment of a next friend, that the person whose appointment is sought is himself/herself the subject of an order under s.118 of the FLA in other proceedings to which he or she is a party. MG v MG (2000) FLC 93-034 discussed and applied; KT v KJ & TH (2000) FLC 93-032 discussed.
On 3 September, 2001, the father filed a Notice of Appeal against the orders made by Federal Magistrate Coker on 3 August, 2001, which related to contact between the father and the four children of his marriage to the mother. In the proceedings before the Federal Magistrate the father appeared on his own behalf.
Then, on 22 October, 2001, the father filed an application seeking an order that Mr F be appointed as his next friend for the purposes of the appeal. This was a role that Mr F consented to fulfilling.
That application was opposed by the solicitor for the mother, and the children’s representative, both of whom submitted that the father was not in need of a next friend and, in the event that he was, Mr F was not a fit and proper person to fulfil that role. The solicitor for the mother submitted that Mr F had his own issues in relation to the Family Court jurisdiction which, she submitted, “would not enable him to perform his role of next friend properly”. In support of that submission the solicitor referred to and relied upon both Mr F’s affidavits, which extensively detailed his experience with the Family Court in his matrimonial proceedings, and his correspondence with the Children’s Representative.
The father relied on a doctor’s report which specified that he suffered from: “bilateral hearing loss” of unspecified degree; “chronic back pain which … limits greatly his movements and independence”; and “a depressive anxiety disorder which alters considerably his mental state and jeopardises his mental competency”. The medical evidence further noted that the father reported that he had a life-long history of dyslexia.
Mr F, who was in his fourth year of university studying law, was also a person in respect of whom an order had been made, by the Family Court pursuant to s118 of the FLA, in proceedings to which he was a party, which restrained him from filing any further applications without first obtaining the leave of the Court. The Court had knowledge of the restraining order and this raised the issue of whether the Court could take judicial notice of an order made in other proceedings between other parties.
Held: in dismissing the application:
Pursuant to the terms of Order 15 rules 14, 9 and 11, there are two essential pre-requisites to the appointment by the Court of a consenting person as next friend of the party to proceedings in the Court, where that party, if no next friend were appointed, would appear in the proceedings without legal representation. The first pre-requisite is that the party in question is “a person who needs a next friend”, which, by definition, means “a person who, because of physical or mental infirmity, does not understand the nature and possible consequences of the proceedings or is not capable of adequately conducting … the proceedings.” [Emphasis added.] The second pre-requisite is that the person to be appointed “is a fit and proper person to be next friend” and who “has no interests in the proceedings adverse to the party”.
The application was for the appointment of a “next friend”, not for the leave of the Court to employ the services of an assistant of the kind which has become known, throughout the common law world, as a “McKenzie friend”. The case of McKenzie v McKenzie [1970] 3 All E.R. 1034 was to the effect that a litigant who appears before a Court in person is ordinarily entitled, if he or she so wishes, to have the assistance, in the Court, of a friend or assistant who may sit beside the litigant at the bar table for the purpose of taking notes, handling or cataloguing documents or exhibits, making quiet suggestions to the litigant as to how best to conduct the case, and generally being of assistance to the litigant in presenting his or her case to the Court, provided that that person does not disrupt the proper conduct of the proceedings. However, an important limitation upon the role and functions of a “McKenzie friend” is that he or she may not (except, perhaps, in the most exceptional cases, and with the express leave of the Court) act as an advocate for the litigant in the proceedings. Collier v Hicks (1831) 2 B and ad. 663 at 669, 109 E.R. 1290 at 1292, and KT v KJ & TH (2000) FLC 93-032 at 87,509 cited. A “next friend” on the other hand, once appointed for a person who is a litigant, like a guardian ad litem at common law, “represents that person before the Court, and it is his duty to see that every proper and legitimate step for that person’s representation is taken”. [Randall v Randall (1939) P. 131 at 134-5.] Apart from precedent, this is made clear by O.15, r.11 which provides that the next friend appointed for a litigant in proceedings has the obligation to do everything which the litigant is required by the rules to do in the proceedings, and may do, on behalf of the litigant, anything which the litigant under the Rules has the right to do in the proceedings. In a case where the litigant, due to impecuniosity, and an inability to obtain legal aid in the proceedings (which, on the evidence, is the case here) is obliged to appear without legal representation, that must include the right to speak to the Court on behalf of the litigant, in effect as his or her advocate.
As neither the mother, nor the children’s representative, sought to cross-examine the doctor who prepared the report, the medical opinions expressed in the report were accepted. Whilst it was accepted that the father “reports a life-long history of dyslexia” [emphasis added], that report was not admissible as evidence of the fact reported. Evidence Act 1995 (Cth) s59. The evidence was sufficient, albeit it only just so, to establish that the father has “a mental infirmity”, and that it is one which, on the balance of probabilities, renders him “not capable of adequately conducting” the appeal proceedings.
It was open to the Court to take judicial notice of the order made by the Court in the proceedings to which Mr F was a party, if the fact of that order’s having been made is relevant to the issue for determination in the current proceedings, namely whether Mr F is a fit and proper person to be appointed the next friend of the father in the current proceedings. Mullen v Hackney London Borough Council [1997] 2 All E.R. 906 discussed and applied.
It is at least a relevant matter to be taken into account in determining an application for the appointment of a next friend, under O.15, r.14, that the person whose appointment is sought is himself or herself the subject of an order under s.118 of the Act in other proceedings to which he or she is a party. MG v MG (2000) FLC 93-034 discussed and applied; KT v KJ & TH (2000) FLC 93-032 discussed.
Mr F was not “a fit and proper person” to be appointed as next friend of the father for the purpose of the proceedings because, firstly, Mr F is a person in respect of whom an order has been made by the Family Court under s.118 of the Act in proceedings in which he is a party. Secondly, it is evident from some of his correspondence, that he has developed a degree of personal involvement in the issues between the father and mother in this case, going beyond the issues raised by the appeal. Thirdly, based upon his affidavits and some of his correspondence, he may not be able to focus exclusively upon the father’s interests in the proceedings, but rather has a tendency to allow his own issues, arising from his personal experience as a litigant in this Court, to intrude and cloud the issues in the proceedings. That means that Mr F lacks that degree of impartiality and absence of malice which it is necessary that a next friend should have, particularly when it is envisaged that he will become the advocate in the proceedings for the father in whose shoes he would stand. Grace and Grace (1990) FLC 92-170 cited.
REPORTABLE
INTRODUCTION
By a Notice of Appeal filed in this Court on 3 September, 2001 Mr Watson (“the father”) has appealed against orders made by Federal Magistrate Coker in the Federal Magistrates Court of Australia at Townsville on 3 August, 2001, in proceedings between the father and Ms Watson (“the mother”) relating to contact between the father and the four children of his marriage to the mother.
In accordance with a direction dated 14 September, 2001, by Ellis J, as Acting Chief Justice of the Court, pursuant to s.94AAA(3) of the Family Law Act 1975 (“the Act”), the jurisdiction of the Court in relation to this appeal is being exercised by me.
On 25 October, 2001, at a directions hearing in relation to the appeal, I made directions for the preparation of the appeal for hearing, including a direction that the appeal be listed for hearing before me at 10am on Thursday, 24 January, 2002. That date was subsequently altered, by consent, to 29 January, 2002.
The father appeared on his own behalf (without legal representation) at the hearing of the proceedings in the Federal Magistrates Court from which this appeal arises, and filed his own Notice of Appeal in this Court from the orders of the Federal Magistrate. On each occasion that the appeal proceedings have been before me, the father has appeared for himself, without legal representation.
On 22 October, 2001, there was filed by or on the father’s behalf, an application in Form 8 seeking an order in these terms:-
“That pursuant to Family Law Rules Order 15 rule 14, Mr F be appointed as my next friend for the appeal, and any rehearing of this matter as per Mr F’s sworn affidavit of the 18 October, 2001 as outlined in the affidavit.”
That application, which was returnable before the Court on 25 October, 2001, was supported by an affidavit of Mr F sworn on 18 October, 2001, to which were attached a number of annexures, including (as annexure “A”) a copy of a consent to act as next friend, signed by Mr F, and dated 8 October, 2001, the original of which was in fact filed in the Court on 16 October, 2001.
When the appeal came before me for directions on 25 October, 2001, the father sought to press his application that Mr F be appointed his next friend for the purposes of the appeal. After drawing his attention to what I perceived to be some deficiencies in the material supporting that application, and after the solicitors who appeared on that occasion for each of the mother and the Children’s Representative indicated that they had instructions to oppose the application, I adjourned it to 15 November, 2001 for hearing. At the request of the father, I made an order that on the adjourned date he have leave to appear by telephone from a telephone number to be advised to the Court prior to that date.
At the adjourned hearing of the application, on 15 November, 2001, the father appeared by telephone, from a location in North Queensland, and he had present with him there, Mr F. A further affidavit of Mr F in support of the application had been filed, in the interim, on 12 November, 2001. At the father’s request I gave leave for Mr F to address the Court on the father’s behalf for the purpose of that application only.
The mother was represented, on that occasion, by a solicitor, Ms Dart, and another solicitor, Mrs Batenburg, appeared, out of courtesy, as the former Children’s Representative, her appointment as such having formally terminated upon the making of the Federal Magistrate’s orders. However, at her invitation, and with the concurrence of both parties, I then made an order in the usual form for the children to be represented in the appeal proceedings, coupled with a request that Legal Aid Queensland arrange such representation, and a recommendation that, if possible, Mrs Batenburg be appointed to fill that role. Mrs Batenburg then stayed on to make submissions in relation the father’s application.
At the hearing of the application, the father (through Mr F) relied upon his application, the two supporting affidavits of Mr F, and the written consent of the latter to act as next friend. Ms Dart relied upon an affidavit, sworn by her on that date, annexing of series of letters passing between her and Mr F, to the reliance upon which no objection was taken on the father’s behalf.
I heard submissions by Ms Dart and Mrs Batenburg in relation to the application, which was opposed by both, and then heard submissions by Mr F, on behalf of the father, in support of it. I then reserved my decision on the application. It is to that application which this judgment relates.
THE LAW
Order 15, rule 14 of the Family Law Rules (“the Rules”) provides:-
“14(1) [Court appointment of person as next friend] If a party to proceedings is a person who needs a next friend, the court may appoint a person to be next friend of the party:
(a) on the application of a person under this Order; or
(b) if it appears to the court to be necessary, of its own motion.14(2) [Where person is not corporation] If the person to be appointed is not a corporation mentioned in subrule 15(2), before making an appointment the court must be satisfied that the person:
(a) is a fit and proper person to be next friend of the party; and
(b) has no interest in the proceedings adverse to the party; and
(c) has filed a consent in accordance with Form 29.”
Order 15, rule 9 of the Rules provides:-
“In this Division:
person who needs a next friend , in relation to proceedings, means a person who, because of physical or mental infirmity, does not understand the nature and possible consequences of the proceedings or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceedings.”
Order 15, rule 11 of the Rules provides:-
“A person appointed under this Order as the next friend of a party to proceedings:
(a) must do anything required by these Rules to be done by the party; and
(b) may do anything permitted by these Rules to be done by the party.”
It will be seen, from the above Rules, that there are two essential pre-requisites to the appointment by the Court of a consenting person as next friend of a party to proceedings in the Court, where that party, if no next friend were appointed, would appear in the proceedings without legal representation. The first pre-requisite is that the party in question is “a person who needs a next friend”, which, in this context, by definition, means “a person who, because of physical or mental infirmity, does not understand the nature and possible consequences of the proceedings or is not capable of adequately conducting … the proceedings.” [Emphasis added.] The second pre-requisite is that the person to be appointed “is a fit and proper person to be next friend” and who “has no interests in the proceedings adverse to the party”.
In this case, both the mother and the Children’s Representative, in opposing the father’s application, have contended that neither of those essential pre-requisites has been satisfied, on the evidence which is before the Court for the purposes of the application. In short, they contended that the father is not in need of a next friend, but that even if he is, Mr F is not a fit and proper person to fulfil that role.
Before examining the evidence relevant to those two issues, and the submissions made in relation to the application, it is, I think, appropriate that I make some further observations in relation to matters of the law germane to the proceedings.
Next Friend or “McKenzie” Friend?
The first point which I think it important to make is that the application here is for the appointment of a “next friend”, not for the leave of the Court to employ the services of an assistant of the kind which has become known, throughout the Common Law world, as a “McKenzie friend”, following the decision of the English Court of Appeal in McKenzie v McKenzie [1970] 3 All E.R. 1034. That decision was to the effect that a litigant who appears before a Court in person is ordinarily entitled, if he or she so wishes, to have the assistance, in the Court, of a friend or assistant who may sit beside the litigant at the bar table for the purpose of taking notes, handling or cataloguing documents or exhibits, making quiet suggestions to the litigant as to how best to conduct the case, and generally being of assistance to the litigant in presenting his or her case to the Court, provided that that person does not disrupt the proper conduct of the proceedings. However, an important limitation upon the role and functions of a “McKenzie friend” is that he or she may not (except, perhaps, in the most exceptional cases, and with the express leave of the Court) act as an advocate for the litigant in the proceedings. That limitation has been recognized at least since a statement was made to that effect by Lord Tenterden CJ in Collier v Hicks (1831) 2 B & Ad. 663 at 669, 109 E.R. 1290 at 1292, and has recently been reaffirmed by the Full Court of this Court (Kay J, with whom Holden and Mullane JJ agreed) in KT v KJ & TH (2000) FLC 93-032 at 87,509.
A “next friend” on the other hand, once appointed for a person who is a litigant, like a guardian ad litem at common law, “represents that person before the Court, and it is his duty to see that every proper and legitimate step for that person’s representation is taken”. [Randall v Randall (1939) P. 131 at 134-5.] Apart from precedent, this is made clear by O.15, r.11 (supra) which provides that the next friend appointed for a litigant in proceedings has the obligation to do everything which the litigant is required by the Rules to do in the proceedings, and may do, on behalf of the litigant, anything which the litigant, under the Rules, has the right to do in the proceedings. In a case where the litigant, due to impecuniosity, and an inability to obtain legal aid in the proceedings (which, on the evidence, is the case here) is obliged to appear without legal representation, that must include the right to speak to the Court on behalf of the litigant, in effect as his or her advocate.
I express no opinion as to whether, in a case where the litigant has the capacity (either from his or her own resources or through access to legal aid facilities) to obtain legal representation in the proceedings, a next friend appointed for the litigant would be failing in his or her duty to the litigant, or to the Court, by neglecting to obtain such representation, but instead seeking to appear as the litigant’s advocate in the proceedings. It may be that, being an officer of the Court [Rhodes v Swithenbank (1889) 22 QBD 577 at 579], and thus owing a duty both to the Court and to the litigant, a failure by the next friend to take proper steps to obtain legal representation for the litigant who can afford it or who is eligible for legal aid, would be grounds for the removal of the next friend, by the Court, of it’s own motion. However, as I have said, I express no opinion about that, since it does not arise in this case, at least not at this stage.
Other Duties and Functions of a Next Friend
Apart from his or her duty to do whatever the litigant is obliged to do in the proceedings, the next friend of the litigant has an obligation to take all necessary measures for the benefit of the litigant in the conduct of the litigation, since he or she has the burden of watching over the interests of the litigant in that litigation: [Rhodes v Swithenbank (supra) and Ex parte Davis (1901) 1 SR(NSW) 189].
A next friend appointed to represent a litigant under a disability is personally responsible to the other parties to that litigation for their costs, in the event that an order for costs is made in their favour [Ex parte Brocklebank (1877) 6 Ch. 358 at 360; Catt v Wood (1908) 2 KB 452 at 473; Huxley v Wootton (1912) 29 TLR 132; Rhodes v Swithenbank (supra)] but, if he or she has acted reasonably, the next friend is entitled to be indemnified against that liability by the litigant whom he or she represents, or out of the litigant’s estate. This is a matter to which I shall have occasion to refer again, later in these reasons.
IS THE FATHER A PERSON IN NEED OF A NEXT FRIEND?
In paragraph 8 of his affidavit filed on 22 October, 2001, Mr F says this:-
“The appellant [i.e. the father] is a disadvantaged individual who is illiterate, with poor reading, and poor writing skills. That is by no means the end of it, on top of his disability, he cannot communicate well, and is depressed. The appellant appears to be totally ignorant of the law, coupled with having no idea what so ever [sic.] on what is expected of him in an appeal matter. He presented himself initially in a stressed state, and I recommended that he avail himself of counselling at Centrecare, [Queensland] …”
Apart from the apparent inconsistency of describing the father as “illiterate” (which, by definition, means unable to read and write) and then as having “poor reading and poor writing skills” [emphasis added] most of that paragraph is obviously either hearsay or opinion, and inadmissible to prove the truth of what is asserted: Evidence Act 1995 (Cth) ss.59 and 76. It was mainly for that reason, and because there was therefore no admissible evidence of any physical or mental infirmity suffered by the father, that I declined to deal with his application on 25 October, 2001 and adjourned it to 15 November, 2001, with an intimation that it would be difficult for the Court to reach the necessary conclusion about the state of the father’s physical or mental health without some admissible medical evidence.
In an apparent attempt to remedy that deficiency (and for other purposes to which I shall subsequently refer), the further affidavit of Mr F was filed on the father’s behalf on 12 November, 2001. That affidavit, in addition to reiterating, in paragraphs 21, 22 and 24 thereof, Mr F’s inadmissible opinion that the father “is not capable of conducting” his appeal in person, also annexes (as annexure “H”) a report dated 6 November, 2001, purporting to be a medical report relating to the father. That report, which is written upon paper bearing the title and logo of the “Townsville Aboriginal and Islanders Health Service Limited”, purports to be signed by one “Dr M” who professes the following qualifications: “MD, DTM&H, MNHAA” and the “Provider Number: …4K”. In the absence of any challenge by the mother or the Children’s Representative to the authenticity of that report, or to the qualifications of it’s author, I accept its authenticity and that the author has the necessary specialised knowledge to qualify him to express the opinions of a medical nature contained in it, and therefore to make those opinions admissible, pursuant to s.79 of the Evidence Act 1995 (Cth).
That report, omitting formal parts, reads as follows:-
“Re: In the matter of Mr Watson
I have examined Mr. Watson on several occasions over the last year. He has presented himself to me that the Court seeks clarification as to whether Mr. Watson is capable of conducting his own appeal before the Family Court.
In my conscientious and professional opinion I can state with the utmost sincerety that Mr. Watson would not be capable, at present, to conduct any legal matters on his own, given the following:
He shows to have received only basic education and reports a life-time history of dyslexia.
He has also been suffering from bilateral hearing loss for over a year.
Moreover, he has chronic back pain which is deteriorating and limits greatly his movements and independence.
Finally, given his recent incarceration and subsequent return to freedom, his continuous stresses caused by the present court case and his separation from his children, he has developed a depressive anxiety disorder which alters considerably his mental state and jeopardises his mental competency.”
As neither Ms Dart, for the mother, nor Mrs Batenburg, the Children’s Representative, sought to cross-examine the author of that report, I accept the opinions expressed therein as to the father’s physical and mental health. Accordingly, I am satisfied, for the purpose of this application, that the father suffers from: “bilateral hearing loss” of unspecified degree; “chronic back pain which … limits greatly his movements and independence”; and “a depressive anxiety disorder which alters considerably his mental state and jeopardises his mental competency”. I am also satisfied that he “reports a life-long history of dyslexia” [emphasis added], but that report is not admissible as evidence of the fact reported: Evidence Act 1995 (Cth) s.59. If the evidence of Dr M that the father reported (i.e. asserted) a history of dyslexia were relevant for a purpose other than proof of the fact asserted, it would be admissible also as proof of that fact: Evidence Act 1995 (Cth) s.60. However, in the context of this case, Dr M’s evidence of that report by the father is not relevant for any other purpose.
In regard to the father’s asserted dyslexia, or illiteracy, I make the comment that the one person who could have given direct, admissible evidence of his reading capacity, is the father himself, yet for some unexplained reason, no affidavit by him was filed or “read” for the purpose of this application. The Rules contain provisions (O.16, r.3) relating to preparation and swearing of affidavits by persons who are blind or illiterate. I also make the further comment that illiteracy and dyslexia are not necessarily synonymous, and there is at least a suggestion of possible exaggeration by Mr F, in his first affidavit, when he described the father as “illiterate”.
Be that as it may, the evidence before me does not satisfy me that whatever reading disability the father may have it amounts to a “physical or mental infirmity” because of which he is either unable to “understand the nature and possible consequences of the proceedings” or incapable of “adequately conducting … the proceedings”, as required by the definition of “person who needs a next friend” in O.15, r.9 of the Rules.
As to the father’s “bilateral hearing loss”, the first thing to note about it is that the degree of loss is not disclosed, and, whatever it may be, it was certainly not sufficient to impede, in any way, his communication with me when he appeared in person on 25 October, 2001, or when he spoke on the telephone during the proceedings on 15 November, 2001. In addition, the Court has available, at this Registry, special electronic facilities to aid litigants with impaired hearing to participate in the proceedings in the Court. Accordingly, I am not satisfied that this hearing loss amounts to a “physical or mental infirmity” which is productive of either of the relevant consequences referred to in O.15, r.9 of the Rules.
In relation to the father’s “chronic back pain”, again there is no evidence as to its severity, and no evidence from which I could conclude that it is likely to impede either his capacity to understand the nature and possible consequences of the appeal proceedings or his capacity to conduct those proceedings on his own behalf. This physical infirmity therefore does not come within the scope of the definition of a “person who needs a next friend” in O.15, r.9.
That leaves, for consideration, the father’s “depressive anxiety disorder which alters considerably his mental state and jeopardises his mental competency”.
Notwithstanding the vagueness of the words in that phrase which are descriptive of the effect upon the father’s mental state of the disorder from which he is diagnosed as suffering, I consider that the evidence is sufficient, albeit it only just so, to establish that he has “a mental infirmity”, and that it is one which, on the balance of probabilities, renders him “not capable of adequately conducting” the appeal proceedings.
Earlier in his report, Dr M expressed the opinion that the father “would not be capable, at present, to conduct any legal matters on his own”. However, in the context in which it appears in the report, that opinion would seem to be based upon a consideration, in combination, of all the disabilities of the father subsequently referred to by the doctor, namely his “dyslexia”, his “bilateral hearing loss”, his “chronic back pain” and his “depressive anxiety disorder”, not just the last of those. As I have rejected each of the first three of those disabilities as being capable of amounting to an “infirmity” as defined by O.15, r.9, the question arises whether the doctor’s opinion as there expressed is sufficient to satisfy me that the father’s infirmity, constituted only by his depressive disorder, is such as to render him incapable of adequately conducting his appeal. In concluding that it is, I have given emphasis to the word “adequately” in the phrase “capable of adequately conducting … the proceedings” and I have also applied my own common sense and experience, gained from sitting constantly in this jurisdiction for almost 26 years, of the probable impact of such a disorder on the capacity of a litigant in person, of limited intellectual and literary capacity, to conduct such proceedings.
Accordingly, I find that the first of the pre-requisites to the appointment of Mr F as the next friend of the father, referred to in paragraph 15 hereof, has been satisfied.
IS MR F A “FIT AND PROPER PERSON”?
Turning to the second pre-requisite referred to in paragraph 15 hereof, Mr F, in order to satisfy me of his suitability for appointment as the father’s next friend in these proceedings, deposed, in paragraph 2 of his first affidavit, that he is “a fit and proper person” to act in the capacity, and that he has “no interest in the proceedings adverse to the appellant”. In addition, he deposed in that affidavit to the fact that he has been admitted as a “student-at-law”, under the Rules Relating to the Admission of Barristers of the Supreme Court of Queensland, and he annexed to his affidavit, inter alia, the Certificate of the Barristers Board, to that effect, dated 7 June, 2001, and the Certificate, addressed to the Board, dated 14 May, 2001, signed by two practising barristers certifying him to be a fit and proper person to be admitted as a student-at-law. He further deposed that he is a fourth year external LLB student at the [University], and annexed to his affidavit a certificate dated 10 October, 2001, by Associate Professor …, Acting Head of the [University] Law School, that he is so enrolled, and that he “successfully mooted as Senior Counsel in the … Family Law Moot in Semester 2, 2001”.
That material, on its face, and in the absence of any further material, would seem more than sufficient to establish Mr F as a “fit and proper person” to be appointed as next friend of the father in these proceedings. However, there are some further matters relating to Mr F, and his background, which call for consideration in coming to a conclusion on this issue.
The second affidavit of Mr F, and some of the annexures to it, make it clear that he has been a party to proceedings in this Court, between himself and his former wife, in relation to, inter alia, his contact with the children of that marriage, and that the Federal Magistrate from whom this appeal is brought was, when a practising member of the legal profession, involved in those proceedings as the Separate Representative for those children. That material also shows that Mr F was a self represented litigant in those proceedings, and that on at least one occasion when those proceedings were before the Court (before Joske J on 14 July, 1998) Mr Fellows of Counsel (who was counsel for the mother before the Federal Magistrate in these proceedings) was counsel for the Children’s Representative in those proceedings.
When these proceedings were first before me, on 25 October, 2001, I informed the father that I was aware, from my own knowledge of the records of the Court, that Mr F is a person in respect of whom an order has been made, in the proceedings referred to above to which he was a party, pursuant to s.118 of the Act, that he be restrained from filing any further applications in this Court (other than an appeal against that order) without first obtaining the leave of the Court. [Mr F confirmed that fact during the course of the proceedings before me on 15 November, 2001.] I flagged, then, for consideration, two questions arising in relation to that matter, namely:
Am I at liberty to take judicial notice, in these proceedings, of an order made by the Court in other proceedings between other parties?
Even if I am entitled to take judicial notice of the order against Mr F in those proceedings, is the fact that such an order has been made against him relevant to the father’s application that Mr F be appointed his next friend in these proceedings?
As to the first of those questions, I apprehend that there is no doubt that a Court exercising jurisdiction in proceedings may take judicial notice of any previous order made by the Court in those proceedings, since the previous order forms part of the record of the Court in the very proceedings in which the Court is then exercising jurisdiction. At first glance, the position seems less clear in relation to taking judicial notice of orders made by the Court in earlier but unrelated proceedings. However, there is authority from the Court of Appeal, in England, that a Court may, even in that circumstance, take judicial notice of its previous orders.
In Mullen v Hackney London Borough Council [1997] 2 All E.R. 906, a tenant of a council house brought proceedings in the County Court against the local council for compensation for breach of a repairing covenant. In the course of the proceedings the council gave an undertaking to the Court to carry out specific repair work by a stated date. When the council failed to carry out that repair work by the stated date (in fact it had not even commenced it by that date), the tenant applied to the Court for an order enforcing the undertaking. In imposing a fine of £5,000 on the council, the County Court Judge took into account the fact that the council had failed to honour previous similar undertakings given to the Court in similar cases. The council appealed, contending that the Judge erred in law in taking into consideration other unconnected instances where the council had failed to honour undertakings.
In dismissing the appeal, the Court of Appeal (Otton LJ, with whom Waite and Saville LJJ agreed) said this (at 908-9):-
“The central question is whether the court, when considering the penalty, was entitled to take into consideration other previous breaches in other cases? In order to answer that question it is necessary to look at the nature and scope of judicial notice. It is well established that courts may take judicial notice of various matters when they are so notorious, or clearly established, or susceptible of demonstration by reference to a readily obtainable and authoritative source that evidence of their existence is unnecessary (see Phipson on Evidence (14th edn, 1990) ch2/06).
Generally, matters directed by statute, or which have been so noticed by the well-established practice or precedents of the court, must be recognised by the judges; but beyond this, they have a wide discretion and may notice much which they cannot be required to notice. The matters noticeable may include facts which are in issue or relevant to the issue; and the notice is in some cases conclusive and in others merely prima facie and rebuttable (see Phipson ch 2/07).
Moreover, a judge may rely on his own local knowledge where he does so ‘properly and within reasonable limits’. This judicial function appears to be acceptable where ‘the type of knowledge is of a quite general character and is not liable to be varied by specific individual characteristics of the individual case’. This test allows a judge to use what might be called ‘special (or local) general knowledge’ (see Phipson ch 2/09).”
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“Applying these principles to the present case I am satisfied the judge was entitled to take judicial notice of his ‘special (or local) knowledge’ of how the council had conducted itself in relation to undertakings given to the court in similar cases.
His first task was to determine whether the matters (i.e. the conduct) were notorious or clearly established. By implication he decided that they were. Even if they could not be so categorised they were clearly ‘susceptible of demonstration by reference to a readily obtainable or authoritative source’, namely, the court records of those occasions where the council had given undertakings and had been brought back at the behest of an aggrieved plaintiff. It may be that on such occasions the council had only once been found to be in contempt. That was only part of the picture. The judge would have known from his own experience (or from the records at Shoreditch County Court and the Central London County court) of those occasions where breaches had been proved against or admitted by the council and where the court had been asked by either or both parties not to give a ruling as a term of the settlement to the satisfaction of the plaintiff.”
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“The matters did not fall into the category where he was obliged to take them into account. The judge had a wide discretion which permitted him to take notice if he so elected. The facts noticeable were clearly relevant to the issue of what the appropriate sanction was.”
Accordingly, I hold that it is open to me, in these proceedings, to take judicial notice of the order made by the Court in the proceedings to which Mr F was a party, if I consider the fact of that order’s having been made as relevant to the issue for determination in these proceedings, namely whether Mr F is a fit and proper person to be appointed the next friend of the father in these proceedings.
On the issue of relevance, Ms Dart referred me to two reported cases in which the fact that a person had been the subject of an order under s.118 of the Act (commonly referred to as a “vexatious litigant order”) in relation to other proceedings in the Court, was held to be relevant to the question whether that person is suitable to act as the “McKenzie friend” of another litigant in other proceedings before the Court. It was submitted that if such a fact is relevant to such a question, it must also be relevant to the question at issue in these proceedings.
The first of those cases was that of KT v KJ and TH (supra). In that case, two judges at first instance (Frederico J and Morgan J) had, on separate occasions, refused a request by KT, a party to proceedings in the Court who appeared without representation, that a Mr Schorel act as his “McKenzie friend” in the proceedings. Each judge did so on the basis that Mr Schorel “had been declared a vexatious litigant” in the Court. In fact, a computer search of the Court’s records indicates that Mr Schorel (a litigant well known to most of the judges of this Court) has been the subject of an order under s.118 of the Act on at least two occasions, in two different matters in which he was a party, the first in 1986 and the second in 1992. That search further reveals that between 1982 and 2000, matters in which the same Mr Schorel is a party were the subject of published judgments of the Full Court of this Court on thirteen occasions, and that between 1996 and 2001 only, matters in which he is a party have been the subject of published judgments by a single judge of the Court on nine occasions. Those published judgments would probably represent only a small proportion of the total number of occasions on which Mr Schorel has appeared as a litigant in person in this Court. Thus, I think it fair to say that Mr Schorel may be regarded as something of a special case, and there is certainly nothing before me to suggest that Mr F has been anything like such a constant litigant in this jurisdiction as has Mr Schorel.
In that case, although KT appealed from certain of the orders made by Morgan J, his appeal did not relate to her Honour’s refusal to allow Mr Schorel to act as his “McKenzie friend”, and the Full Court was therefore not required to consider the merits of that refusal. The Full Court certainly said nothing to cast any doubt upon the correctness of her Honour’s decision in that respect. In fact, the judgment of Kay J (with whom Holden and Mullane JJ agreed) records (at 87,509) that on the hearing of the appeal KT “indicated that he wished Mr Schorel to act as a McKenzie friend, and sit at the bar table”, and that the Court’s response to that request was to indicate “that Mr Schorel was at liberty to sit in the body of the Court, make notes, and provide advice, providing that process did not unduly disrupt the proceedings”. Thus it would seem that the Full Court refused to allow Mr Schorel to take on the full role of a “McKenzie friend” although it allowed him to take on a more limited role as assistant and adviser to the appellant. It would seem that the only basis for their Honours’ refusal to allow Mr Schorel to adopt full “McKenzie friend” status in the proceedings, was his history as a litigant in the Court in proceedings in which he was a party.
The second case referred to by Ms Dart, which came before the same Full Court on the same day as KT v KJ and TH (supra) was MG v MG (2000) FLC 93-034. In that case, a husband appealed against various orders made by Morgan J on 8 March, 2000, including her refusal to allow the same Mr Schorel to act as his “McKenzie friend” in the proceedings, and her refusal of an application by Mr Schorel for leave to intervene in the proceedings. Before the trial Judge, the husband had asked “leave for Mr Schorel to represent me”, which her Honour refused saying: “Mr Schorel is a vexatious litigant”. Subsequently, after refusing Mr Schorel’s application for leave to intervene, her Honour directed Mr Schorel to leave the bar table, when he made an attempt to interpose himself in the proceedings. But her Honour told the husband that if he wished to have time to talk to Mr Schorel outside the court room, in the course of the proceedings, she would give him that opportunity.
In his judgment in that case, Kay J (with whom Holden and Mullane JJ agreed) recorded (at 87,529) that at the commencement of the appeal the husband had asked the Court whether Mr Schorel could speak on his behalf, which request the Court had refused. However, his Honour went on to say that the Court “indicated that Mr Schorel or any other person was free to sit in the body of the court and provide advice to [the husband], providing that that did not disrupt the proper conduct of the proceedings. The court emphasised that the role was to be that of adviser not an advocate”.
Kay J then proceeded, in his judgment (at 87,529) to discuss the role and functions of a “McKenzie friend”, in the course of which he referred to and cited passages from a number of judgments, including the judgment of the Court of Appeal in R v The Bow County Court; ex parte Pelling (1999) 4 All E.R. 751 and the judgment of Lord Tenterden CJ in Collier v Hicks (supra). Having done so, his Honour continued as follows:-
“23. Extrapolating that into contemporary language, save for the leave of the Court to be granted usually only in exceptional circumstances, no person may appear as an advocate before the Court on behalf of another person unless they are admitted to practice, and in this Court have signed the High Court roll of practitioners.”
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“25. I think the dicta in the Bow County Court case is compelling. A litigant may seek assistance from any person providing that in so doing the orderly and expeditious conduct of proceedings is not interrupted. That assistance would usually mean being able to consult some person sitting in the body of the court from time to time. It would normally not mean allowing that adviser to take over the case and suggest every word that should be spoken. In some cases, where appropriate the judicial officer may allow the adviser or assistant to sit at the bar table and even speak to the Court (see Cooke v Stehbens (1999) FLC ¶92-839; (1998) 24 Fam LR 5 ).
26. In this case, what was sought both before her Honour and before us was for Mr Schorel to appear as an advocate and to speak to the Court on behalf of the litigant. It is common knowledge to the Court by reason of its own records that Mr Schorel is a person who is the subject of a current order under s 118 of the Family Law Act , prohibiting him from commencing any proceedings under the Act without the leave of the Court. It would seem a most unusual and anomalous situation if a person who is prohibited from bringing his or her own proceedings without the leave of the Court could act as the advocate of other persons in the Court, when such a person is not a qualified practitioner.”
If, as the Full Court said in that case, it would be “anomalous … if a person who is prohibited from bringing his or her own proceedings without leave of the Court could act as the advocate of other persons in the Court, when such person is not a qualified practitioner”, it must, I think, be equally if not more anomalous for such a person to seek to be appointed the next friend of a party to proceedings, particularly in circumstances where the effect of such an appointment would be to lead to that person’s becoming the advocate of that party in those proceedings. However, for present purposes, I content myself with saying that, on the authority of that case, it is at least a relevant matter to be taken into account in determining an application for the appointment of a next friend, under O.15, r.14, that the person whose appointment is sought is himself or herself the subject of an order under s.118 of the Act in other proceedings to which he or she is a party.
Apart from the fact that Mr F is the subject of a s.118 order in his own proceedings in this Court, Ms Dart, for the wife (whose submissions, in this respect, were adopted by Mrs Batenburg, the Children’s Representative) advanced three bases upon which it was submitted I should conclude that he is not “a fit and proper person” to be appointed as next friend for Mr Watson in this case. Those bases were all founded upon either matters appearing in one or other of Mr F’s affidavits, to which I have previously referred, or in his correspondence annexed to Ms Dart’s affidavit, to which I have also briefly referred.
The first basis upon which Ms Dart submitted that Mr F is not a “fit and proper person” was that his affidavits show he does not properly understand the appellate process which will apply to the proceedings in this appeal, or the concept of relevance, in the legal sense. In support of that submission, Ms Dart referred to two letters from Mr F, the first dated 13 November, 2001 and the second dated 14 November, 2001.
The earlier of the two letters from Mr F, referred to above, was addressed to Miss Lisa O’Neill who was at one time acting as locum tenens for Mrs Batenburg, the Children’s Representative, in which capacity she appeared before me on 25 October, 2001. Mr F sent a copy of that letter to Ms Dart under cover of the letter dated 13 November, 2001, a copy of which, together with copies of the enclosures, forms annexure “CD3” to Ms Dart’s affidavit. The later letter from Mr F was written to Ms Dart on the date it bears, and a copy of it is annexure “CD4” to Ms Dart’s affidavit.
In relation to the letter of 13 November, 2001, addressed to Miss O’Neill, Ms Dart directed my attention particularly to the final paragraph in which reference is made to some unsuccessful efforts on the father’s behalf to obtain legal aid funding for the limited purpose of acquiring the transcript of the proceedings before the Federal Magistrate’s Court, but wherein it is then stated:-
“Failing that, we could conduct the appeal from evidence in chief from the trial at first instance, namely the affidavit material and Federal Magistrate’s Cokers [sic.] reasons for judgment dated 3 August, 2001.”
Ms Dart submitted that this statement indicates that Mr F does not understand the nature of an appeal, pursuant to s.94AAA of the Act, in particular that he does not appreciate that the appeal stands to be decided upon the evidence which was before the Magistrate (subject to the discretion of this Court to admit further evidence: see s.93A(2) and ss.94AAA(6) and 94(2) of the Act).
I do not accept that submission, since it is not necessarily impossible to conduct an appeal without the benefit of the transcript of evidence in the Court below. It may be very difficult, but whether it would be impossible depends upon the grounds of appeal. Obviously, any grounds which require any consideration of the evidence given orally before the Court below, or any oral submissions made to or directions or rulings made by that Court in the course of the proceedings, could not be advanced without the transcript of those proceedings being available. However, grounds which challenge only the reasons for judgment in the Court below, on matters of law or principle, without also challenging findings of fact, could conceivably be advanced and adequately dealt with without reference to the transcript.
In any event, I do not see a lack of understanding of the legal principles governing an appeal as a basis for concluding that Mr F is not a “fit and proper person” to be the father’s next friend for the purpose of the appeal proceedings. I dare say that very few litigants in person are aware of those principles, yet the Court is obliged to and manages to deal with such litigants, presenting their own arguments on appeal, on almost a daily basis. I have no doubt that Mr F has, or is capable of obtaining, much greater understanding of those principles and their application than the father in whose shoes he seeks to stand.
In relation to the second of those letters, it contains references to some damage allegedly done by the mother to some premises in Brisbane previously rented by her from some named persons, and also to some premises in Collinsville previously rented by her from an unnamed person. It further contains allegations that the mother “has absconded [sic.] and given away matrimonial assets as well as personal property belonging to” the father. Somewhat inexplicably, it asserts that the father expects the mother to “rectify these damages” to the premises in Brisbane “otherwise [the named owners] will instigate proceedings against [the mother]”. Equally inexplicably, the letter further asserts that the unnamed former “landlord” of the mother in Collinsville “will be seeking restitution from [the mother]”. Finally, the letter asks Ms Dart to obtain “instructions from your client in relation to the matrimonial assets and personal property as referred to and what your client proposes to do about these matters”.
Ms Dart submitted that none of the matters referred to in that letter is relevant to the proceedings before the Court (a submission with which I entirely agree) and that as Mr F had indicated previously that this would be one of the matters he would be seeking, on behalf of the father, to lead “new evidence” about on the appeal, this again demonstrates Mr F’s lack of understanding of the relevant appellate process.
I accept that if Mr F has indicated a desire to adduce further evidence on the appeal of damage allegedly done by the mother to premises which she formerly occupied in Brisbane and/or Collinsville, it would demonstrate his lack of understanding of what is relevant to the proceedings, and of the legal principles applicable to this appeal. However, again, that would not necessarily make him not “a fit and proper person” to be the father’s next friend in the proceedings.
Of more concern to me, in the context of this application, is Mr F’s apparent adoption of the father’s position of somehow seeking to make a demand upon the mother, on behalf of some other persons, for payments of money in “restitution” for damage allegedly done to the property of those other persons. It is such an extraordinary thing to do that one is left with an uneasy feeling that it may have been done for the purpose of harassing or somehow unsettling or intimidating the mother in relation to these proceedings. Whilst I do not make that finding, I do consider that Mr F’s writing of this unusual letter does indicate a degree of undue personal involvement in the issues between the parties going beyond the issues raised by this appeal. Such personal involvement, whilst not on its own sufficient to lead to a finding that Mr F is not a “fit and proper person” to be the father’s next friend in the proceedings, is relevant for consideration as a factor in assessing his suitability for that role.
As an adjunct to this basis of Ms Dart’s objection to Mr F, she submitted that much of his two affidavits prepared for the purpose of this application addresses or seeks to address the merits of the appeal which, she submitted, is quite irrelevant to this application, again demonstrating Mr F’s lack of understanding of relevance, in the legal sense.
It is certainly correct that many paragraphs of both of Mr F’s affidavits seek to address matters relevant to the merits of the appeal. That is the case with respect to paragraphs 9 to 20 and 25 to 30 of his first affidavit, and paragraphs 13, 26 to 31 and 33 of his second affidavit. However, although I agree that most, if not all of that material is irrelevant to this application, I perceive that Mr F may have thought it relevant as demonstrating the depth of some of the legal issues which he contends will arise in the appeal, and therefore as supporting a contention that the father is unable to adequately conduct the appeal proceedings by himself. In any event, again, lack of understanding of relevant legal principles is no basis for a finding that Mr F is not a “fit and proper person” to be the father’s next friend.
The second basis of Ms Dart’s submission that Mr F is not a “fit and proper person” was that his material shows “that clearly he has his own issues in relation to this particular jurisdiction” which, she submitted, “would not enable him to perform his role of next friend properly”. In support of that submission Ms Dart referred to and relied upon both Mr F’s affidavits and his correspondence with the Children’s Representative.
The expression “fit and proper” is one well known and much used in the law in many contexts, with reference to the suitability of a person to hold a particular office. Lord Coke said that it encompassed three things: “…honesty, knowledge and ability; honesty to execute [the office] truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently and not for impotency or poverty neglect it”. [Emphasis added.] [See Dwarris on Statutes, p.685.]
In Grace and Grace (1990) FLC 92-170, Ross-Jones J was not satisfied that the mother of a husband, involved in proceedings against his former wife, could act as impartially as a next friend ought to do. He held that the mother bore malice and ill will towards the wife, and that she may have been unable to control those feelings so as to prevent them from distorting or intruding into her thought processes when considering the husband’s best interests. Accordingly, his Honour refused to appoint the husband’s mother as his next friend in the proceedings.
I think there is some substance in this basis of Ms Dart’s objection to Mr F. A good deal of his second affidavit (especially paragraphs 4 to 14 thereof) and of the annexures to it (annexures “B”, “C” and “D”) relates to the proceedings in this Court to which Mr F was himself a party. Some brief reference to the fact that Miss O’Neill, who appeared for the Children’s Representative at the hearing on 25 October, 2001, had had some involvement, in 1995 (as a Child Support Review Officer) in proceedings between Mr F and his former wife, may have been appropriate in this affidavit, given the background. However, the whole tone of that part of his affidavit (and of his correspondence annexed to Ms Dart’s affidavit), and the depth at which he saw fit to go into the details of those and related previous proceedings between himself and his former wife, seemed to me to be entirely unnecessary, and to possibly indicate something of a fixation by him on those proceedings, or at least an inability to separate his own experiences in this jurisdiction, and his feelings in relation to them, from the father’s interests in the current proceedings.
As one example of this, I instance Mr F’s assertion, in paragraphs 7 and 8 of this affidavit, that Miss O’Neill had formed her apparently adverse opinion of him on the basis of what he described as “unfounded” allegations by his former wife that he had sexually abused his children, and his subsequent complaint (in paragraph 8) about the “considerable expense and inconvenience” to which he was put in those proceedings in having to travel from Brisbane to Mackay and return, with counsel, for a 20 minute hearing before Barry J at which his former wife “caved in and did not contest contact”. A further instance is his reference, in paragraphs 9 to 11 of this affidavit, to other aspects of his personal experiences as a litigant in person in this jurisdiction, and what appears to be an attempt to draw some parallels between his case and the father’s, the purpose of which, so far as this application is concerned, entirely escapes me.
Another aspect of Mr F’s affidavits which causes me some concern as to his suitability to take on the role of next friend to the father in these proceedings, is what I perceive to be his inability to distinguish between the role of advocate and that of witness. Examples of this inability are to be found in paragraphs 8, 9, 16, 17 and 21 of his first affidavit, and in paragraphs 13, 26, 28, 30, 31 and 33 of his second affidavit. My concern in this respect is based upon the fact that the very purpose of the application is to facilitate Mr F’s appearance as the father’s advocate in the proceedings, since all other assistance which he might provide for the father, in the way of preparation of his case for the appeal, and in the presentation of his appeal, can be rendered without his becoming his “next friend”, but by acting as his “McKenzie friend”. That is a role to the filling of which by him I would take no exception, provided that he did not unduly prolong, obfuscate or disrupt the orderly conduct of the proceedings.
The third basis of Ms Dart’s objection to Mr F’s appointment as next friend for the father is her submission that, in his affidavits, and in his correspondence with Ms Dart, Mr F has exhibited a desire, intention or attempt “to further fuel dispute between these parties”. In particular, Ms Dart relied, for the purpose of this submission, upon Mr F’s letter to her of 14 November, 2001, to the contents of which I have already referred in paragraph 58 hereof.
I have also already made some comments about this letter, in paragraph 61 hereof, which are perhaps apposite to this submission of Ms Dart. Whilst I do not necessarily accept that this letter itself constitutes an attempt by Mr F to “further fuel” the dispute between the parties, I have already found that it does indicate an inappropriate level of personal involvement by him in the issues between the parties. That personal involvement could possibly lead to an exacerbation of the conflict between the parties, which is not in the interests of either of them or their children. In that sense, it is relevant to my determination of whether of Mr F is “a fit and proper person” for the appointment which he seeks.
The final matter which I mention as being relevant to my determination of this issue, is the matter of Mr F’s potential liability for the costs of the mother and/or the Children’s Representative, of the proceedings. That is a matter upon which I touched, in paragraph 22 hereof.
When I informed Mr F, in the course of the proceedings before me on 15 November, 2001, of that potentiality, I think it fair to say that he was initially taken somewhat aback by it, and that this was not a factor which he had previously considered. He informed me, and I accept, that he would not have the capacity to meet any order for costs. After some private discussion with the father, Mr F told me that he maintained his consent to act as his next friend, having been told by the father that if an order for costs were made against Mr F he, the father, would sell his motor vehicle in order to provide the funds to meet such an order. In short, the father acknowledged his obligation, referred to in paragraph 22 hereof, to indemnify his next friend against any order for costs which might be made against him in the proceedings. Since the father is, himself, impecunious, and given his acknowledgment of his obligation to indemnify his next friend in relation to costs, I do not see Mr F’s impecuniosity as a significant matter going to his suitability for appointment as next friend. In that respect, the other parties would be in no worse position, so far as any security for their costs is concerned, if Mr F were appointed next friend than they would be if no such order were made.
CONCLUSION
Taking all of the matters previously referred to into account, I have concluded that Mr F is not “a fit and proper person” to be appointed as next friend of the father for the purpose of these proceedings. I hasten to add that this conclusion is not based upon any defect which I find in Mr F’s character, and does not reflect, nor is it intended to reflect, adversely upon his honesty or integrity, in any general sense. It is arrived at simply as a result of the cumulative effect of three relevant and related matters which I have taken into account.
The first of those matters is the fact that Mr F is a person in respect of whom an order has been made by this Court under s.118 of the Act in proceedings in which he is a party. The second is my perception, arising from some of his correspondence with Ms Dart and Miss O’Neill, that he has developed a degree of personal involvement in the issues between the father and mother in this case, going beyond the issues raised by the appeal. The third matter (which is very much related to the second) is my perception, based upon his affidavits and some of his correspondence, that he may not be able to focus exclusively upon the father’s interests in these proceedings, but rather has a tendency to allow his own issues, arising from his personal experience as a litigant in this Court, to intrude and cloud the issues in the proceedings. That means that, in my view, Mr F lacks that degree of impartiality and absence of malice which it is necessary that a next friend should have, particularly when, as here, it is envisaged that he will become the advocate in the proceedings for the father in whose shoes he would stand. This conclusion in no way stands in the way of the father’s engaging Mr F to act as his “McKenzie friend” in the proceedings.
For all of the foregoing reasons, I make the following order:-
The application of the father for an order that Mr F be appointed as his next friend in the proceedings instituted by his Notice of Appeal filed on 3 September, 2001 from the orders of Federal Magistrate Coker of 3 August, 2001, is dismissed.
I certify that the preceding 76 paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Court.
Sgnd:
Associate
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