Xuarez & O’Halloran And Anor - [2014] FamCAFC 68

FAMILY COURT OF AUSTRALIA

XUAREZ & O’HALLORAN AND ANOR

[2014] FamCAFC 68

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – STAY – Where the applicant seeks to stay orders previously made to await the outcome of investigations by the Australian Federal Police and costs assessments by Legal Aid – Where the applicant failed to file appeal books as ordered and his appeal was deemed abandoned – Where the application in an appeal brought by the applicant cannot be pursued because there is no appeal on foot – Where the application is devoid of merit in any event – Application dismissed.

Family Law Act 1975 (Cth) – s 94(2D)(c), s 121

Family Law Rules 2004 (Cth) – r 19.21, r 19.22 and r 22.21

APPLICANT:

Mr Xuarez

FIRST RESPONDENT:

Ms O’Halloran

(Independent Children’ Lawyer)

SECOND RESPONDENT:

Ms Vitela

File Number omitted to comply with s 121 Family Law Act 1975 (Cth)

APPEAL NUMBER:

2012

DATE DELIVERED:

24 April 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Strickland & Ainslie-Wallace JJ

HEARING DATE:

28 November 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

25 July 2012

LOWER COURT MNC:

[2012] FamCA 574

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE FIRST

RESPONDENT:

MTM Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Ms S. O’Halloran,
Solicitor Advocate

SOLICITOR FOR THE SECOND

RESPONDENT:

Sarah Cleeland Lawyers

COUNSEL FOR THE SECOND

RESPONDENT:

Mr Pedder

Orders

The application in an appeal filed by the father on 25 September 2013 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xuarez & O’Halloran and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 76 of 2012
File Number omitted to comply with s 121 Family Law Act 1975 (Cth)

Mr Xuarez

Applicant

And

Ms O’Halloran (Independent Children’s Lawyer)

First Respondent

And

Ms Vitela

Second Respondent

REASONS FOR JUDGMENT

Before us is the application in an appeal filed by Mr Xuarez (“the father”) on 25 September 2013.
In that application the father seeks that “the operation” of the orders made by Murphy J on 9 April 2013, Registrar Kane on 25 February 2013 and May J on 15 February 2013 be “stayed until the Australia [sic] Federal Police (AFP) finalize the investigation of the alleged offences/breaches to section 121 of the Family Law Act 1975” and “until Legal Aid Queensland (LAQ) finalize the costs assessments under the Legal Aid Queensland – Scale of Fees – Family Law.”
The application is opposed by the Independent Children’s Lawyer (“ICL”), the first respondent named in the application, and by Ms Vitela (“the mother”), the second respondent named in the application. Indeed, the mother filed a response on 18 November 2013 seeking an order that the application be dismissed.
In order to put this application into context it is necessary to recite the history of the proceedings between the father and the mother since the orders made by Forrest J on 25 July 2012, but commencing with those orders.
In the course of parenting proceedings between the parties Forrest J made the following relevant orders on the application of the ICL:
(1) That the father forthwith remove from the website … [domain name omitted] all references to these proceedings … [file number omitted], including but not limited to all references to the mother’s name, the father’s name, the names and any details of the single experts Mr [N] and Dr [R], the names, photographs and any details of any of the solicitors (and the firms for which they work) and the barristers who represent, or who have represented, the mother and/or the father in parenting proceedings pursuant to the Family Law Act 1975 (“the Act”), the name and any details of the Independent Children’s Lawyer and the firm for which she works and the barristers who represent, or who have represented, her in these proceedings, and all references to judicial officers of this Court or the Federal Magistrates Court in respect of decisions or determinations they are said to have made or not made.
(2) That within 21(twenty-one) days of the date hereof each of the parties to these proceedings serve on each of the other parties a list of documents to which the duty of disclosure applies pursuant to Rule 13.07 of the Family Law Rules 2004.
IT IS DIRECTED THAT
(3) The Marshall of this Court take all such steps as might be required so as to ensure that any breach of section 121 of the Act revealed by the material specified in paragraph 5 of these Orders is investigated fully and, if appropriate, thereafter prosecuted.
IT IS RESPECTFULLY REQUESTED THAT
(4) The Commissioner of the Australian Federal Police take all such steps as might be reasonably required to investigate whether any indictable offence prescribed by s 121 of the Act in respect of proceedings involving the children, [L] born … 1995, [C] born … 1998, [B] born … 2000 and [D] born… 2003, has been committed by the father as revealed by, or indicated in, the documents authorised to be published by paragraph 5 of these Orders.
IT IS FURTHER ORDERED THAT
(5) Pursuant to s 121(9)(g) of the Act, an account of these proceedings, namely:
(a)The affidavits of the Independent Children’s Lawyer filed 4 April, 2012 and 16 July, 2012;
(b)The affidavit of the father filed 18 April, 2012;
(c)These orders;
(d)The Reasons for Judgment delivered today
be approved for publication to the Commissioner of the Australian Federal Police and all such police officers and persons as the Commissioner might reasonably permit or authorise.
…
On 16 August 2012 the father filed a Notice of Appeal against the orders made by Forrest J.
On 5 September 2012 the father filed a draft appeal index.
On 22 October 2012 Registrar Kane ordered, inter alia, that the father file and serve the appeal books for the purposes of the appeal by 1 February 2013.
On 8 November 2012 the father filed an application in an appeal seeking, inter alia, orders that the mother or the Appeal Registrar prepare the appeal books.
On 21 December 2012 Registrar Kane dismissed the father’s application and extended the time for the filing and serving of the appeal books to 1 March 2013.
On 3 January 2013 the father filed an application in an appeal seeking to review the orders made by the Registrar Kane on 21 December 2012.
On 15 February 2013 May J dismissed the father’s application for review, and ordered that the father pay the costs of the mother and the ICL each fixed in the sum of $1,320 plus GST.
On 21 February 2013 the father filed an application in an appeal seeking an extension of time to file the appeal books to the year 2847 (i.e. 833 years later).
On 25 February 2013 Registrar Kane dismissed the father’s application but extended the time for the filing and serving of the appeal books to 22 March 2013, set up a new timeframe for the filing of summaries of argument, and ordered that the father pay the sum of $437.20 plus GST to the ICL by way of costs, within two months.
On 8 March 2013 the father filed an application in an appeal seeking to review the orders made by Registrar Kane on 25 February 2013.
On 9 April 2013 Murphy J varied the orders made by Registrar Kane on

25 February 2013 to provide, inter alia, that the appeal books be filed and served by 11 October 2013, the summaries of argument be filed and served by 8 November 2013, varied the order for costs made by Registrar Kane on

25 February 2013 to provide that the costs be paid by 8 November 2013, and varied the order for costs made by May J on 15 February 2013 to provide that those costs be paid by 8 November 2013. Importantly, his Honour ordered that in the event that the father failed to comply with any of these orders the father’s appeal would be deemed abandoned without further order.
We observe that there is no appeal available to the Full Court from these orders (s 94(2F)) of the Act.
On 26 August 2013 the father sought to file an application in an appeal seeking directions that each respondent file an itemised costs account pursuant to Rules 19.21 and 19.22 of the Family Law Rules 2004 (Cth) (“the Rules”) in relation to the costs orders made by May J and Murphy J. The registrar declined to file this application on the basis that the orders made were for specific lump sum amounts and the requirement for an itemised costs account did not apply.
On 3 September 2013 the father filed an application in an appeal seeking to review the decision by the registrar not to file his previous application.
On 11 September 2013 May J dismissed the father’s application for a review and made no order as to costs.
On 17 September 2013 the father sought to file a Notice of Appeal against the order made by May J on 11 September 2013, but the registrar declined to file that Notice on the basis that, as we have observed above, there is no appeal to the Full Court from an order of a single judge on an interlocutory matter.
On 25 September 2013 the father filed the application in an appeal that is before us now.
The father failed to file the appeal books by 11 October 2013 and thus as a result of paragraph 3 of the orders made by Murphy J on 9 April 2013 the appeal was deemed abandoned. We observe that whether that order was made or not, Rule 22.21 of the Rules provides the same result.
Thus, as at 11 October 2013 there was no longer an appeal on foot, and as a consequence it is not open for the father to pursue his application in an appeal. That application is clearly dependent on the appeal being on foot, and thus we are not able to grant the relief sought by the father in that application, and it must be dismissed.
We observe that it has always been open to the father to file an application seeking an order reinstating the abandoned appeal (s 94(2D)(c) of the Act). However, the father has not made such an application, and we note that on

2 December 2013 the Regional Appeal Registrar wrote to the parties confirming that the appeal was deemed abandoned, and referring the father to the relevant section of the Act if he wished to apply to reinstate the appeal.
Given that the letter was sent after the hearing of this application we have delayed delivering these reasons for judgment to allow the father time to file an application to reinstate the appeal if that was his wish. He has still not filed such an application, and thus we are now delivering these reasons for judgment and dismissing the application before us.
In the event that we are wrong about whether we can entertain the father’s application in an appeal we observe that in any event there is no basis demonstrated by the father for making the orders that he seeks in the application.
In particular there is no reason proffered by the father in his affidavit in support of the application, or in his oral submissions to us, as to why it is appropriate or necessary for the orders made by Forrest J, Murphy J and Registrar Kane to be stayed pending the finalisation of any investigation by the Australian Federal Police (“AFP”). Certainly, Forrest J directed the Marshal of this Court to ensure that any breach of s 121 of the Act was fully investigated and thereafter prosecuted (Order 3), and requested the AFP to investigate whether any indictable offence prescribed by s 121 had been committed by the father (Order 4), but his Honour determined on the evidence before him to order that the father remove material from his website and that was not dependent on, or subject to, the investigations that his Honour directed and requested.
Further, as to the issue of the orders for costs made by May J, Murphy J and Registrar Kane, they comprise lump sum amounts determined by each of those judicial officers respectively to be appropriate and reasonable in the circumstances. There was no need, requirement, or basis, for any of those lump sum orders to be assessed by Legal Aid Queensland. We also observe that, as can be seen from paragraphs 17, 18 and 19 above, that issue has previously been addressed and determined against the father.
Accordingly, apart from there being no appeal on foot, we would also be disposed to dismiss the application before us on the basis of it being devoid of any merit.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Strickland & Ainslie-Wallace JJ) delivered on 24 April 2014.

Associate:

Date: 24 April 2014