Xuarez & Vitela (No 2)
[2017] FamCA 1028
•30 November 2017
FAMILY COURT OF AUSTRALIA
| XUAREZ & VITELA (NO 2) | [2018] FamCA 1028 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where the Applicant has filed a Notice of Constitutional Matter -–Where the notice is incompetent and almost certainly frivolous – Where the Applicant seeks a stay of previous orders made – Where the applicant seeks an adjournment of the final hearing – Applications dismissed. |
| Judiciary Act 1903 (Cth) |
| Xuarez & Vitela [2017] FamCAFC 139 |
| APPLICANT: | Mr Xuarez |
| RESPONDENT: | Ms Vitela |
| FILE NUMBER: | BRC | 7312 | of | 2007 |
| DATE DELIVERED: | 30 November 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 30 November 2017 |
REPRESENTATION
| THE APPLICANT: | Self-Represented |
| COUNSEL FOR THE RESPONDENT: | Ms Bertone |
| SOLICITOR FOR THE RESPONDENT: | Sarah Cleeland Family Lawyers |
Orders
That the Application in a Case filed by the Applicant on 16 November 2017, seeking a stay of the Order made on 29 September 2017, be dismissed.
That the Application in a Case filed by the Applicant on 16 November 2017, seeking an adjournment of the substantive proceedings, be dismissed.
That judgment be reserved in relation to the competing substantive applications
(i)
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).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 7312 of 2007
| Mr Xuarez |
Applicant
And
| Ms Vitela |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
On 27 September 2017 I listed this matter for a final hearing on 30 November 2017.
Mr Xuarez filed several interim applications which were listed for hearing on 27 November 2017. Two applications were dealt with on that date and the remaining applications were adjourned to 30 November 2017, following a telephone disconnection between the Court and Mr Xuarez. On 27 November 2017 I dismissed Mr Xuarez’s application to appear today by telephone. Mr Xuarez has failed to appear today.
I am satisfied that Mr Xuarez was aware that he was required to appear at the hearing today because he has filed an appeal against the order made on 27 November 2017 dismissing his application to attend at the final hearing today by telephone and requiring the parties to attend personally.
The remaining interim applications filed by the applicant that are before the Court today are:
a)An Application in a Case filed on 16 November 2017 to stay the Order made on 27 September 2017; and
b)An Application in a Case filed on 16 November 2017 for an adjournment of the final proceedings.
Application for a Stay
The submissions of Ms Bertone, counsel for the mother, in relation to the stay application were that it should be dismissed because Mr Xuarez was not here to prosecute his application and the application is incompetent as there are no operative orders that he is seeking to be stayed. There is no utility in granting the stay.
I accept those submissions and I will dismiss Mr Xuarez’s application for a stay.
Adjournment on the basis of a Notice of a Constitutional Matter
The content of the Notice of Constitutional Matter filed by Mr Xuarez on 14 November 2017 is as follows:
1.The Applicant gives notice that this proceeding involves a matter arising out of the Constitution or involving its interpretation within the meaning of Section 78B of the Judiciary Act 1903.
2.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.
3.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, 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.A Royal Commission of Inquiry into the Family Court of Australia must be ordered as a Constitutional matter and in the public interest.
5.The Circumstances in this Notice of a Constitutional Matter is issued are set out in all documents above mentioned at 1.
6.The matter has been listed for 30 June 2017 at 10.00am Event type: Hearing Registry Duty List. Presiding Officer: Senior Registrar Spink.
Section 78B of the Judiciary Act 1903 (Cth) provides:
12. (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.
13. (2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
14. (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;
15. (b) may direct a party to give notice in accordance with that subsection; and
16. (c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
17. (3) For the purposes of subsection (1), a notice in respect of a cause:
18. (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
19. (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.
20. (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.
21. (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.
In a recent appeal involving the same parties, Mr Xuarez sought the adjournment of the appeal on the basis of a similarly worded Notice and I adopt, with respect, the discussion regarding s 78B as set out in the judgment of the Full Court of 17 July 2017:[1]
[1] Xuarez & Vitela [2017] FamCAFC 139
23.The application of s 78B
24. 8. 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:
25. 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.
26. 9. 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.
27. 10. 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:
28. 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).
29. 11. 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)).
30. 12. 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).
Mr Xuarez is not here to prosecute his application before me, but I assume that if he were, he would make submissions similar to those that he made to the Full Court which were summarised by the Full Court as follows:
32. 14. As to the factual matters in relation to which the constitutional question was said to arise the appellant said:
33. Facts showing that section 78B of the Judiciary Act 1903 applies
34. 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).
35. 2. The Family Court of Australia is a Constitutional Matter.
36. 3. The Family Court of Australia is a Constitutional Issue/Matter for the Attorneys-General for the Commonwealth and all States and Territories.
37. 4. The Circumstances in this Notice of a Constitutional Matter is issued are set out in all documents above mentioned at 1.
38. (As per original document)
There is no evidence before me that provides any factual basis for the content of the notice filed by Mr Xuarez in the proceedings before me. I adopt, with respect, the reasons, of Ryan J:[2]
[2] Xuarez & Vitela [2017] FamCAFC 139
40. 15. 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.
41. …
42. 19. 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).
43. 20. 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.
44. 21. 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.
45. 22. 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.
I find myself faced with a very similar situation to that faced by the Full Court and in my view, the Notice filed in this case is incompetent and almost certainly, frivolous.
I do not propose to adjourn the proceedings on the basis of the Notice of a Constitutional Matter.
In relation to the adjournment application generally, Mr Xuarez is not here to make any submissions to support that adjournment application. Mr Xuarez filed an affidavit on 16 November 2017 in support of his application for an adjournment. There is nothing in the content of that affidavit which persuades me that it is appropriate to adjourn the proceedings.
I accept the submission made by Ms Bertone that any application to remove these proceedings from this Court to the High Court, pursuant to section 40 of the Judiciary Act 1903 (Cth) is an application properly made to the High Court and not to this Court.
Accordingly, the application to adjourn is dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 30 November 2017.
Associate:
Date: 18 December 2017.
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