Xuarez & Vitela
[2017] FamCAFC 139
•17 July 2017
FAMILY COURT OF AUSTRALIA
| XUAREZ & VITELA | [2017] FamCAFC 139 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an adjournment – Where the appellant filed a Notice of Constitutional Matter pursuant to s 78B of the Judiciary Act 1903 (Cth) – Whether the matter should be adjourned pending responses from Attorneys General – Where the notice does not “really and substantially” raise a matter under the Constitution or involving its interpretation – Whether an applicant is entitled to publicly-funded legal representation – Where the notice is incompetent and frivolous – Application dismissed. |
| Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 6(2)(b), 24(1) |
Abbott & Abbott (1995) FLC 92-582
Amrit Lal Narain v Parnell (1986) 9 FCR 479
Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 167 ALR 303
Dietrich v The Queen (1992) 177 CLR 292
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665
Johnson v Johnson (2000) 201 CLR 488
Kioa v West (1985) 159 CLR 550
Matsoukatidou v Yarra Ranges Council [2017] VSC 61
R v Bevan Ex parte Elias (1942) 66 CLR 452
Re An Application by the Public Service Association of New South Wales (1947) 75 CLR 430
| APPELLANT: | Mr Xuarez |
| RESPONDENT: | Ms Vitela |
| INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston Solicitors |
| FILE NUMBER: | BRC | 7312 | of | 2007 |
| APPEAL NUMBER: | NA | 20 | of | 2016 |
| DATE DELIVERED: | 17 July 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ryan, Aldridge & Cronin JJ |
| HEARING DATE: | 17 July 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 March 2016 |
| LOWER COURT MNC: | [2016] FamCA 159 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Bertone |
| SOLICITOR FOR THE RESPONDENT: | Sarah Cleeland Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew and Ms Christie |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston Solicitors |
Orders
That the application for an adjournment be dismissed.
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 Xuarez & Vitela has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 20 of 2016
File Number: BRC 7312 of 2007
| Mr Xuarez |
Appellant
And
| Ms Vitela |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Ryan J
Introduction
By Notice of Appeal filed on 1 April 2016, Mr Xuarez (“the appellant”) appeals against an order by Forrest J which dismissed the appellant’s application that the judge recuse himself. Leave to appeal is sought in relation to that aspect of his Honour’s order which dismissed the appellant’s application to review the decision a Registrar concerning an affidavit which was filed out of time.
The recusal and procedural issue arise in the context of an application by the appellant to vary final parenting orders made in relation to his children. The children’s mother, Ms Vitela (“the respondent”) opposes the variation application and resists the appeal.
The parenting litigation has a long and torturous history. The parties separated in 2005 and the final parenting orders were made by consent in the Federal Magistrates Court on 18 June 2007. The current application has been on foot since late 2010.
Self-evidently, the proceedings have been bedevilled by delay and in the interregnum two of the children reached their majority. The children who remain within the court’s jurisdiction are 13 and 17 years of age. Their interests are represented by an Independent Children’s Lawyer (“ICL”) who also opposes the appellant’s application and seeks to uphold the orders under appeal.
By an Application in an Appeal filed on 6 July 2017 the appellant applied to adjourn the appeal hearing. On 21 June 2017 he filed a Notice of a Constitutional Matter and, in support of an adjournment, he invoked s 78B(1) of the Judiciary Act 1903 (Cth) (“Judiciary Act”). Western Australia and the Commonwealth have advised through their respective solicitors that they do not seek to intervene in the proceedings. Nothing has been received from the other states and territories, and it is argued by the appellant that the appeal hearing should wait until we have those responses.
The question for us is whether s 78B(1) is properly invoked; and, if it is, whether it is possible to continue the hearing on matters severable from the constitutional matter.
Section 78B
Section 78B of the Judiciary Act provides:
(1)Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause 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 of the Commonwealth and of the States, 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.
(2)For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a)may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b) may direct a party to give notice in accordance with that subsection; and
(c)may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
(3)For the purposes of subsection (1), a notice in respect of a cause:
(a)shall be taken to have been given to an Attorney‑General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney‑General; and
(b)is not required to be given to the Attorney‑General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney‑General of a State if he or she or the State is a party to the cause.
(4)The Attorney‑General may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section.
(5)Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.
The application of s 78B
The cases and general principles surrounding the application of s 78B were considered by Burchett J in Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 486-489. At 489 Burchett J said:
Section 78B only operates when the circumstances it postulates are made to appear to the court; it does not operate simply because a party asserts those circumstances. It is clear, from the reference to the possibility of intervention or removal of the cause to the High Court upon the initiative of an Attorney-General, that what the section contemplates is a constitutional question which is a live issue in the proceedings.
On the basis that the ostensible constitutional point relied on an erroneous construction of the legislation under consideration, Burchett J determined that the pending cause did not “really and substantially…involve a matter arising under the Constitution or involving its interpretation.” The phrase “really and substantially” derives from Re An Application by the Public Service Association of New South Wales (1947) 75 CLR 430 at 433 per Williams J.
The application of s 78B was considered by French J in Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 167 ALR 303 (“Berbatis”). Concerning the obligation to adjourn, French J said:
14. Section 78B does not impose on the court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation: Nikolic v MGIC Ltd [1999] FCA 849; cf Australian Securities and Investments Commission v White (Fed C of A, Drummond J, 16 July 1998, unreported).
The word “matter” in s 78B has the same meaning as in Chapter III of the Constitution (Berbatis at [19]). Assertion or non-assertion of a constitutional question is not determinative of the character of the matter. Where the assertion is made, it is nonetheless a matter for the court to be satisfied that the challenge does involve a matter arising under the Constitution or involving its interpretation (Abbott & Abbott (1995) FLC 92-582; Vella (10 August 1992, unreported)).
Section 78B will not be engaged merely because a party is interested in the resolution of a particular question. For the provision to be engaged the resolution of the Constitutional question “becomes necessary upon the ascertained or ascertained facts of the case…” (R v Bevan Ex parte Elias (1942) 66 CLR 452 per Williams J at 480). In other words, the facts relied upon are raised bona fide and are sufficient to raise the question (Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665 per Latham CJ).
The nature of the constitutional matter
In the support of the application, the appellant relied on the notice as identifying the constitutional question. At paragraph 2 of the notice he said:
Nature of Constitutional Matter
1.Right to a Fair Hearing:
a.Equal access to, and equality before the Courts;
b.Right to legal advice and representation;
c.Right to procedural fairness;
d.Right to competent, independent and impartial tribunal established by law;
e.Right to a public hearing;
f.Right to have the free assistance of an interpreter where necessary.
2.Apprehended Bias.
3.Racial and Gender (male) Discrimination.
4.Misuse of Judicial Powers, Duties and Responsibilities.
5.Misuse/Misinterpretation/Application of the Family Law Act 1975 and Family Law Rules 2004.
6.Offences Relating to the Administration of Justice: Crimes Act 1914 (Cth):
a.Judicial Corruption – section 32;
b.Official Corruption in relation to offences – section 33;
c.Perjury/Giving false testimony – section 35;
d.Fabricating evidence – section 36;
e.Corruption of witnesses – section 37;
f.Deceiving witnesses – section 38;
g.Conspiracy to bring false accusations – section 41;
h.Conspiracy to defeat justice – section 42;
i.Attempting to pervert justice – section 43.
7.Abuse/Violation of Fathers’ and Children’s Human Rights: Parental Alienation. (Emotional and Psychological Abuse/Harm).
8.Implied Constitutional Right of Freedom of Political Communication.
(As per original document)
As to the factual matters in relation to which the constitutional question was said to arise the appellant said:
Facts showing that section 78B of the Judiciary Act 1903 applies
1.The nature of the proceedings and the particular facts giving rise to the Constitutional issues described at 1 to 8 above are set out in the Transcript of Proceedings before Justice Forrest dated 14 March 2016, Appeal Books Volumes 1 & 2 dated 20 February 2017, Summary of Arguments for the Appellant dated 20 April 2017 and all documents related to the proceedings BRC7312/2007 from 2007 to date (Court Documents).
2.The Family Court of Australia is a Constitutional Matter.
3.The Family Court of Australia is a Constitutional Issue/Matter for the Attorneys-General for the Commonwealth and all States and Territories.
4.The Circumstances in this Notice of a Constitutional Matter is issued are set out in all documents above mentioned at 1.
(As per original document)
By reference to the documents referred to in paragraph 3 as they relate to the hearing before the primary judge, it is said the judge was biased, misapplied the rules concerning dismissal for want of prosecution, and that the appellant did not have legal representation before the primary judge. Nothing raised in the notice or before us today justified us needing to review all documents filed in the proceedings from 2007 to date. Indeed, the suggestion that this might be done lends support to the proposition that the notice is frivolous.
Further support for that proposition can be found in the delay in filing the notice and in its service. As to the former, 13 months passed between when the Notice of Appeal was filed and the Notice of Constitutional Matter was presented. Called on to explain the delay, the appellant said no more than he was without representation. But as was mentioned by counsel for the respondent, nothing arose in the interregnum that changed the character or nature of the issues raised in the appeal. In my view, the mere suggestion of the proceedings being conducted without representation is not responsive to the question about why he took 13 months to file the notice.
Furthermore, the affidavits of service indicate that the notice was posted to the Attorneys General on 4 July 2017. The appellant did not explain why it took nearly two weeks to do so.
I take into account, in relation to the question of delay, that the appellant has considerable experience in Australian courts as a litigant. This is evidenced by the magnitude of his family law litigation and the fact that on 4 February 2010 a vexatious proceeding order was made against him by the Supreme Court of Queensland.
Turning then, to the question of whether the notice establishes a matter arising under the constitution or its interpretation. This morning the appellant emphasised his right to have legal representation at the public expense. In his list of authorities the appellant relied on Dietrich v The Queen (1992) 177 CLR 292 (“Dietrich”). That is a case concerned with representation in criminal proceedings, in relation to which the state has an onus to discharge. But the point of Dietrich is that the High Court made it clear that the common law of Australia does not recognise the right of an accused to be provided with counsel at the public expense. Of course, Dietrich went on to point out that courts have the power to stay criminal proceedings that will result in an unfair trial. Dietrich does not lend support to the appellant’s argument that there is a constitutional right to legal representation in proceedings arising under the Family Law Act 1975 (Cth).
In further support of the points said to arise, the appellant relied heavily upon the recent decision of the Victorian Supreme Court in Matsoukatidou v Yarra Ranges Council [2017] VSC 61. The proceedings were a review of an order of a County Court judge who had refused to re-institute appeals from sentence of the Magistrate’s Court of Victoria which had been struck out. Justice Bell determined that the County Court judge who heard the application did not give the applicants “such advice and assistance as would ensure their effective participation in the hearing and equality of arms with the legally represented party” ([176]) and thereby breached ss 6(2)(b) and 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This Victorian legislation does not apply to the case at hand. In any event, Bell J did not say that the applicants had a right to legal representation at the expense of the public. In my view, that decision does not assist the appellant in identifying a constitutional matter which would engage s 78B of the Judiciary Act.
It is uncontroversial that the appellant has the right to a fair hearing, both at first instance and on appeal, and the determination of his applications by an impartial judge or bench of judges. Reference need only be made to Kioa v West (1985) 159 CLR 550, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488 to make those points. They do not require further consideration by the High Court.
In short, I agree with the submission of counsel for the respondent and for the ICL that the notice does not identify a matter arising under the Constitution or involving its interpretation, nor indeed do the facts of the matter. In my view, the notice is incompetent and almost certainly frivolous.
The application for an adjournment should be refused.
Aldridge J
I agree with the reasons and the order proposed by the presiding judge.
Cronin J
I too agree with the reasons and the proposed order.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Cronin JJ) delivered on 17 July 2017.
Associate:
Date: 18 July 2017
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