WESTLAKE & WESTLAKE

[2018] FamCA 365

FAMILY COURT OF AUSTRALIA

WESTLAKE & WESTLAKE [2018] FamCA 365

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of Proceedings – Where the Father brought an Application in a Case for leave to remove this cause to the High Court of Australia – Where the father does not need leave of the Family Court of Australia to apply to the High Court as provided for in Part 25 or Part 26 of the High Court Rules (Cth).

FAMILY LAW – INTERVENTION AND COMPLAINT – Attorneys-General – Where the Father brought an Application in a Case for leave to make another request to the Attorneys-General of the Commonwealth and Queensland to complain about the Legal Aid Office and intervene in the proceedings – Where notice has already been provided and the Attorneys-General have chosen not to intervene – Where a duty imposed by s 78B of the Judiciary Act 1903 (Cth) does not arise because the proceedings do not involve a matter arising under the Constitution or involving its interpretation.

FAMILY LAW – PRACTICE AND PROCEDURE – Publication Orders – Where the Father brought an Application in a Case seeking leave to inform and discuss the matter with certain individuals – Where the father is not required to obtain leave to communicate with Her Majesty Queen Elizabeth II and the Queensland Minister for Child Safety – Where the father is not able to discuss matters with the Hon Julia Gillard and Mr Erikson that would contravene s 121 of the Family Law Act 1975 (Cth).

FAMILY LAW – COSTS – Where the mother makes an application for costs and the ICL does not – Where impecuniosity is no reason to prevent costs being ordered against a party to proceedings in this Court – Where the father was wholly unsuccessful in all respects – Where the father pay the mother a fixed amount towards her costs of and incidental to his wholly unsuccessful application.

Family Law Act 1975 (Cth), s 117, s 121
Family Court Rules 2004 (Cth), Schedule 3

High Court Rules 2004 (Cth), Part 25 and 26

Judiciary Act 1903 (Cth), s 33, s 40, s 78A, s 78B

APPLICANT: Mr Westlake

RESPONDENT: Ms Westlake

INDEPENDENT CHILDREN’S LAWYER: Mr Blayney

FILE NUMBER: BRC 6180 of 2012

DATE DELIVERED: 24 May 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 14 May 2018

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR THE RESPONDENT:

Mr Settgast

Colville Johnstone

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Blayney
Legal Aid Queensland

Orders

1. The Application in a Case filed by the father on 8 March 2018 is dismissed.

2. The Applicant father shall pay the Respondent mother the sum of $500 on account of her costs of and incidental to the dismissed Application in a Case.

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 Westlake & Westlake 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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6180  of 2012

Mr Westlake

Applicant

And

Ms Westlake

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 2 March 2017, the father of two girls who are now 8 years old and 6 years old filed an application commencing proceedings in this Court in which he seeks parenting orders that provide for those girls to be in his “majority care” and only in the supervised care of the mother. He has also applied for an order that the mother pay him $150,000 as “restitution for financial loss resulting from her abuse”.

2. The mother and the father separated in 2012 after having lived together for six years, four of which they were married. In 2014 a Judge of the Federal Circuit Court made parenting and property settlement orders after a trial. The girls had been represented by an Independent Children’s Lawyer in those proceedings, Mr John Blayney. 

3. Relevantly, the orders provided for the girls to live with the mother, for the mother to have sole parental responsibility for them and for the girls to spend time with the father on a supervised basis for two years. They also provided for the father to undertake a course of psychiatric treatment for a period of 12 months and then to provide the mother with a report about that and for the parents to participate in Family Dispute Resolution process to review the issue of the children’s supervised time with the father.

4. It is not a matter of dispute that the father has not spent any time with the girls for a long time now.

5. Whilst the fresh parenting proceedings commenced by the father are pending in this Court, the father has filed an Application in a Case. That was before me on Monday, 14 May 2018 in the Judicial Duty List. It is that application I am now determining.

6. In this Application in a Case filed by the father on 8 March 2018, the father seeks the following orders:

   1.Leave to apply for removal of this cause to the HIGH COURT OF AUSTRALIA. Under part 26 of the High Court Rules 2004

   2.Leave to present a request to intervene and legal aid complaint to Commonwealth Attorney General

   3.Leave to present a request to intervene and legal aid complaint to Queensland Attorney General.

   4.Leave to present said information and proof of leave to the Governor General and the state equivalent and Her Majesty the Queen.

   5.Leave to inform of a request to intervene and legal aid complaint to Queensland minister for child safety, Minister for prevention of domestic and family violence and former Minister for the same office, Shannon Fentiman MP

   6.Leave to discuss the matter with the Hon Julia Gillard AO, board member of Beyond Blue and Mr Leith Erikson founder of the Australian Brotherhood of Fathers..

   7.Failing response to information supplied to and/or intervention by Attorneys General within 42 days. Leave to commence application for Writ of Mandamus under part 25 of the High Court Rules 2004 in the HIGH COURT OF AUSTRALIA.

Application for Leave to apply for removal of the case to the High Court under Part 26 of the High Court Rules

1. Part 26 of the High Court Rules is headed “Applications for removal under section 40 of the Judiciary Act 1903”.

2. Section 40 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) says:

   Removal by order of the High Court

   (1)Any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in a federal court other than the High Court or in a court of a State or Territory may, at any stage of the proceedings before final judgment, be removed into the High Court under an order of the High Court, which may, upon application of a party for sufficient cause shown, be made on such terms as the Court thinks fit, and shall be made as of course upon application by or on behalf of the Attorney-General of the Commonwealth, the Attorney-General of a State, the Attorney-General of the Australian Capital Territory or the Attorney-General of the Northern Territory.

   (2)      Where:

   (a)a cause is at any time pending in a federal court other than the High Court or in a court of a Territory; or

   (b)there is at any time pending in a court of a State a cause involving the exercise of federal jurisdiction by that court;

   the High Court may, upon application of a party or upon application by or on behalf of the Attorney-General of the Commonwealth, at any stage of the proceedings before final judgment, order that the cause or a part of the cause be removed into the High Court on such terms as the Court thinks fit.

   (3)Subject to the Constitution, jurisdiction to hear and determine a cause or part of a cause removed into the High Court by an order under subsection (2), to the extent that that jurisdiction is not otherwise conferred on the High Court, is conferred on the High Court by this section.

   (4)      The High Court shall not make an order under subsection (2) unless:

   (a)      all parties consent to the making of the order; or

(b)the Court is satisfied that it is appropriate to make the order having regard to all the circumstances, including the interests of the parties and the public interest.

(5)Where an order for removal is made under subsection (1) or (2), the proceedings in the cause and such documents, if any, relating to the cause as are filed of record in the court in which the cause was pending, or, if part only of a cause is removed, a certified copy of those proceedings and documents, shall be transmitted by the Registrar or other proper officer of that court to the Registry of the High Court.

1. Section 40 empowers the High Court to remove proceedings from this Court if the proceedings or any part of them arise under the Constitution or involve its interpretation. The High Court can exercise that power, if persuaded to on application of a party or by or on behalf of the Attorney-General of the Commonwealth. The father does not need the leave of this Court to apply to the High Court under that section as provided for in Part 26 of the High Court Rules. He may apply directly to the High Court. Accordingly, his application for this Court to grant him leave is mis-conceived.

2. I do not consider it necessary at this point in these reasons to comment upon the father’s submissions in respect of the assertion that the proceedings arise under the Constitution or involve its interpretation, other than to say that to the extent I understood his submissions I do not consider that he would be able to make out a case to persuade the High Court to remove these proceedings from this Court.

Leave to present a request to intervene and legal aid complaint to the Attorneys-General of the Commonwealth and of Queensland

1. The father informed the Court that he had already written to the Attorneys-General of the Commonwealth and Queensland complaining about certain aspects of Legal Aid Queensland’s involvement in this case. Mr Blayney, who is again ICL for the children, is an employee of Legal Aid Queensland. The father also told the Court that he had asked the Attorneys to intervene having regard to his contention that the case involves points of Constitutional interpretation. He told the Court that the Attorneys-General had apparently chosen not to respond to his request nor to intervene in these proceedings.

2. When I asked the father why he then sought leave from this Court to make such a request again, he told the Court that he considered an order from this Court giving him ‘leave’ to do that would have weight, or “gravitas”, if you like.

3. Section 78A of the Judiciary Act confers a right on the Attorneys-General of the Commonwealth and the States to intervene in proceedings in this Court that relate to a matter arising under the Constitution or involving its interpretation. Though the section confers that right, it does not compel them to intervene. Clearly, those Attorneys-General will take their own advice and make their own decisions as to whether they intervene.

4. Further, the father has a right to make complaints to the Attorneys-General about the Legal Aid Office if he wants to and to request them to intervene in the proceedings. He does not need the ‘leave’ of this Court to do this. As I have just observed, he has done it already without the Court’s ‘leave’. I do not propose to give him ‘leave’ to do that again.

5. Section 78B of the Judiciary Act imposes a duty on this Court not to proceed in proceedings, if they involve a matter arising under the Constitution or involving its interpretation, unless and until the Court is satisfied that notice of the cause, specifying the nature of the matter, has been given to the Attorneys-General and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General of the question of intervention in the proceedings or removal of the cause to the High Court.

6. The father told the Court that he had already given the Attorneys-General notice and they have clearly chosen not to intervene. In any event, I am not satisfied at all that the proceedings before this Court involve a matter arising under the Constitution or involving its interpretation, so I do not consider the duty imposed by s 78B arises.

7. The father asserted that the Constitutional issue raised was the fact in the 2014 proceedings the mother disclosed a few days before the trial commenced that she had recorded certain conversations and events involving the father on her phone (or a similar recording device) and adduced into evidence both audio copies of those recordings and written transcripts. He asserted she had refused to produce the device upon which they were recorded to him. He told the Court that he had objected to the recordings going into evidence and that the Trial Judge had dismissed his objection and admitted them into evidence. He told the Court that he did not appeal against the Trial Judge’s orders after they were pronounced.

8. The father asserted that the Constitutional point raised is that the mother wrongfully and without authority exercised the judicial power of the Commonwealth in not producing the recording device to him and disclosing the recordings as late and close to the trial as she did.

9. With respect to the father, I do not accept that proposition. The judicial power of the Commonwealth was exercised by the Trial Judge when she heard and determined his objections and when she decided to allow the recordings to be admitted into evidence and when she determined the parenting orders as she did. Judicial power of the Commonwealth is conferred on the Federal Circuit Court and the father had a right to appeal against the judge’s orders if he considered her judgment disclosed errors of law or fact. He did not do that.

10. He has commenced fresh parenting proceedings as is his right. It is these fresh proceedings that he seemingly wants removed to the High Court so that he may argue his Constitutional point. It cannot be the earlier Federal Circuit Court proceedings as they were finally determined years ago. There are no proceedings left from then to remove.

11. The fresh proceedings commenced by the father will be determined on the evidence adduced at the trial when it takes place. If he has relevant evidence about the recordings made by the mother back prior to the trial in the previous proceedings he can seek to adduce it. I do not see any point in these current proceedings that involves interpretation of the Constitution.

Leave to present information and proof of leave to the Governor-General and the Governor of Queensland and Her Majesty Queen Elizabeth II

1. The father told the Court that he wants to be able to communicate to the Governor-General of the Commonwealth, the Governor of Queensland and the Queen herself about the matter as he submitted that the Queen has certain “reserved” powers to act in the event that her Attorneys-General do not.

2. I cannot say that I accept that submission that the Queen does have “reserved” powers that empower her to act in this particular circumstance if the Attorneys-General do not choose to intervene in the proceedings. In any event, I do not consider that by writing a private letter to the Governor-General, the Governor or even the Queen herself in which the father makes his complaint and gives such information as he considers necessary to inform them of his plaint that he would be breaching the prohibition against publication to the public of an account of the proceedings that identifies a party or persons related to a party or witnesses in the proceedings that is contained in s 121 of the Family Law Act 1975 (Cth) (“the Act”). I do not consider that the Queen or the Queen’s Vice-Regal representatives constitute “the public or a section of the public” as that term is used in s 121.

3. Again, I do not consider that the father needs the Court’s leave to communicate with the Queen or the Queen’s Vice-Regal representatives about these matters. 

Leave to inform the Queensland Minister for Child Safety of his request to intervene and complaint against Legal Aid Queensland

1. The father also seeks leave to be able to inform the Minister for Child Safety of his request to intervene and of his complaint against Legal Aid Queensland.

2. Again, I consider that is his democratic right and if he does write a private communication to the Minister I do not consider he will be breaching the s 121 prohibition on publication. I do not consider the Minister is “a section of the public” either. With respect to the father though, I expect his communication to the Minister might draw the same lack of response as his letters to the Attorneys-General as the Minister is also likely not to consider this a matter that she should intervene in or one in which she would encourage her cabinet colleague, the Attorney-General to intervene in. However, I do not speak for the Minister.

3. In his Application in a Case, the father incorrectly named the Minister though. If he seriously intends writing to the Minister he should just confirm the Minister’s correct title and correct identity.

Leave to discuss the matter with the Hon Julia Gillard of Beyond Blue and Mr Leith Erikson, founder of the Australian Brotherhood of Fathers

1. When I asked the father about his intentions with respect to conversations with the Honourable Julia Gillard, he told the Court that he wanted to ask Ms Gillard about Parliament’s intention when certain amendments to the Act were passed when she was a Member of Parliament and Prime Minister.

2. I am satisfied that Ms Gillard is caught by the reference to “the public or a section of the public” in s 121. I consider she is, albeit she is but one individual “section of the public”.

3. I do not consider it necessary at all to give the father leave pursuant to s 121(9)(g) of the Act to disclose anything to Ms Gillard that would contravene the s 121 prohibition of publication. The father can have a conversation with Ms Gillard, if she is willing to have one with him, about the subject matter he wishes to talk with her about without having to reveal matters that would be a contravention of s 121. I do not intend to approve of him telling Ms Gillard things that would contravene s 121.

4. The father told the Court that he wanted to be able to discuss the matter with Mr Erikson of the Brotherhood of Fathers. I understood him to assert that he gets support from Mr Erikson. I know little of the Brotherhood, but I believe it to be a support group for men, like the father, who do not see their children or who might have difficulties in getting to see them. I know nothing of Mr Erikson. I do not know if he has legal or counselling qualifications, but I have no difficulty accepting that the father may well get emotional support from Mr Erikson as well as advice on how to conduct himself in respect of these proceedings.

5. Like Ms Gillard, I consider Mr Erikson is also “a section of the public” albeit one individual section. As such, the father cannot contravene s 121 when communicating with Mr Erikson.

6. Again, I consider that the father can get the emotional support he desires from Mr Erikson without having to contravene s 121. I will not approve the publication by the father of matters to Mr Erikson that would contravene s 121.

Leave to commence application for Writ of Mandamus under Part 25 of the High Court Rules in the High Court failing response from the Attorneys-General

1. Section 33 of the Judiciary Act empowers the High Court, to the extent that legislative conferral of power was necessary, to issue writs of mandamus commanding the performance by this Court of any duty relating to the exercise of federal jurisdiction or commanding the performance of any duty by any person holding office under the Commonwealth.

1. Part 25 of the High Court Rules sets out the procedure by which applications for such relief are to be brought before the High Court. Again, this Court’s leave is not required. The father’s application seeking such leave is also misconceived. I will not make the order the father seeks.

2. I will dismiss the father’s Application in a Case filed 8 March 2018.

Costs

1. The solicitor for the mother applied for an order that the father pay the mother’s costs in the event that the father’s application was dismissed. The mother is in receipt of legal aid. The ICL said he did not apply for costs as costs orders had been made against the father before and he had never paid them and that indicated it would be unlikely that he would pay any further costs orders.

2. The father opposed costs being made against him if his application was dismissed. He asserted it was the mother’s failure to disclose in the previous proceedings that have led to this application being brought by him.

3. Pursuant to s 117 of the Act each party is to bear his or her own costs of proceedings under the Act subject to the Court having a discretion to make an order as to costs if satisfied that the circumstances justify it in doing so and that the order itself is just.

4. Impecuniosity has long been held not to be a reason why costs should not be ordered against a party to proceedings in this Court. The father was wholly unsuccessful in all respects. His application was in almost all respects entirely misconceived. He is an intelligent man having a university degree in chemistry, he told the Court. He was completely unable to make out any case as to why he thought this Court’s leave was needed for him to do the things that he apparently wants to do in respect of his Constitutional arguments. Reading s 40 of the Judiciary Act and Parts 25 and 26 of the High Court Rules makes it clear that the leave of this Court is not required to commence the applications in the High Court that the father is motivated to commence.

5. The father works and earns an income in what is, it seems, his own small business/consultancy/contracting enterprise. He told the Court that he grosses around $52,000 per year but does not have much left after expenses.

6. The wife was put to expense in having a solicitor attend Court to respond to an application that had no merit at all. I do not accept that the father could seriously consider that he had some prospect of success and I consider other motives probably drove his decision to bring this application other than a belief in the likelihood of its success.

7. I am satisfied that the circumstances do justify making a costs order. That the father might not pay it does not persuade me that it should not be made. The solicitor for the mother was at Court for at least two hours. I will fix the amount of the costs order I will make against the father. Schedule 3 of the Family Law Rules 2004 sets the scale of fees for lawyer’s work done. The hourly rate for time reasonably spent by a lawyer on work requiring the skill of a lawyer is $246.33 per hour inclusive of GST. I appreciate the solicitor did more than just appear at Court. He prepared an application and an affidavit supporting that application for the mother to be excused from having to attend and that was successful. Without going through those documents piece by piece, I am satisfied that an order that the father pay the mother $500 towards her costs of and incidental to his wholly unsuccessful application is a just order having regard to the work done and the time spent by her solicitor on this matter. I will make that order with the expectation that the mother will have to account to the Legal Aid Office in respect of the costs she is paid by that office in the event that she receives payment of the amount from the father.

8. I make the orders set out at the commencement of these written reasons.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 May 2018.

Associate:

Date:  24 May 2018