Xuarez & Vitela (No. 2)
[2017] FamCAFC 236
•10 November 2017
FAMILY COURT OF AUSTRALIA
| XUAREZ & VITELA (NO. 2) | [2017] FamCAFC 236 |
| FAMILY LAW – APPEAL – Appeal against dismissal of recusal application – Where the primary judge found that the fictional bystander would not apprehend bias – Procedural fairness – Interpreters – Appellant able to understand and engage with the hearing – Appeal against dismissal of recusal application dismissed. FAMILY LAW – APPEAL – LEAVE TO APPEAL – Appeal against dismissal of application to review a registrar’s decision refusing to immediately list application for undefended hearing – Appeal against dismissal of review application incompetent – Whether order for dismissal is a decree – Order is not amenable to appeal – Application for leave dismissed. |
| Family Law Act 1975 (Cth) ss 94, 102QB, 118, 121 Judiciary Act 1903 (Cth) s 78B(1) Family Law Rules 2004 (Cth) rr 1.06(h), 11.02(1), 11.03, 11.06 |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Kioa v West (1985) 159 CLR 550 National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296 Tallant & Kelsey (2016) FLC 93-742 Xuarez & Vitela [2017] FamCAFC 139 |
| APPELLANT: | Mr Xuarez |
| RESPONDENT: | Ms Vitela |
| INDEPENDENT CHILDREN’S LAWYER: | Anthony Kingston |
| FILE NUMBER: | BRC | 7312 | of | 2007 |
| APPEAL NUMBER: | NA | 20 | of | 2016 |
| DATE DELIVERED: | 10 November 2017 |
| PLACE DELIVERED: | Sydney |
| 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
| 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 Andrews and Ms Christie |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Norman and Kingston Solicitors |
Orders
The application for leave to appeal against Order 1 of 14 March 2016 is dismissed.
The appeal against the refusal of Forrest J to disqualify himself from the further hearing of the matter is dismissed.
There be no order as to costs.
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 (No. 2) 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 Xuarex |
Appellant
And
| Ms Vitela |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
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 primary judge recuse himself. The appellant also seeks leave to appeal in relation to that aspect of his Honour’s order which dismissed the appellant’s application to review the decision of a registrar refusing to list the matter before a judge for an undefended hearing.
On 21 June 2017 the appellant filed a Notice of a Constitutional Matter and one week before the scheduled hearing of the appeal he applied to adjourn the appeal hearing. In support of the application for an adjournment the appellant invoked s 78B(1) of the Judiciary Act 1903 (Cth). Ms Vitela (“the respondent”) and an Independent Children’s Lawyer (“ICL”) appointed to represent the parties’ children who are the subject of these proceedings opposed the adjournment application. The adjournment application was dismissed and oral reasons for that decision were given. In the interests of brevity, these reasons should be read in conjunction with our reasons given on 17 July 2017 (Xuarez & Vitela [2017] FamCAFC 139).
The appellant was then asked to make submissions in relation to the appeal, including his application for leave to appeal. He declined and walked out of the hearing. Before the appellant departed he was informed that even if he failed to remain and prosecute the appeal, the hearing would continue and his appeal and application for leave would be determined in his absence.
The possibility that the court would take this course could not have come as a surprise to the appellant. By way of example, the compliance hearing conducted by Registrar Stoneham by telephone on 27 October 2015 continued after the appellant hung up on the Registrar and, upon the Registrar calling him back, informed the Court that he did not wish to participate further in the hearing. The appellant also walked out of the hearing before the primary judge which is the subject of this appeal, in circumstances where the trial transcript makes it clear that the appellant understood the hearing would continue in his absence, which it did.
The respondent and ICL both argue that the appeal and application for leave to appeal should be dismissed.
The order under appeal
On 14 March 2016 the primary judge ordered:
1.That the applicant’s Applications in a Case filed 20 November 2015 and 15 February 2016, are dismissed for want of prosecution.
The words “for want of prosecution” are somewhat misleading. By reference to the trial transcript it is apparent that by the use of these words, the primary judge intended to convey that the order was made after the appellant walked out of the hearing. However, it is clear that both applications were determined on their merits and not by reference to r 11.06 of the Family Law Rules 2004 (Cth) (“the Rules”). Thus notwithstanding the challenge raised by ground 5 (misuse or misinterpretation of the Rules), nothing turns on the point.
The Applications in a Case
By his Application in a Case filed on 20 November 2015 the appellant sought to review procedural orders made by Registrar Stoneham on 27 October 2015 (“the review application”). The effect of those orders was to provide directions as to the steps needed to prepare the matter for trial. It can be inferred from this that the Registrar rejected the appellant’s application for his amended Initiating Application filed on 17 June 2015 to be immediately listed for an undefended hearing by a judge. It can also be inferred that the failure of the respondent to file her trial affidavit in accordance with the previous orders was excused by the Registrar and that, by implication at least, she extended by three days the time within which the respondent was required to file her trial affidavit. The implication arises from the fact that the Registrar gave each of the parties liberty to apply to the trial judge for permission to file “a further” affidavit of evidence in chief “by way of update”. The use of the words “further” and “update” presuppose an extension of time to rely on the affidavit in chief which was filed three days late. Directions were also made in relation to an application of the appellant filed on 16 October 2016 for the respondent to file a response and for the matter to be adjourned to chambers. As we understand it a Response was not filed.
So as to place the Registrar’s orders in context, it needs to be understood that the appellant had commenced proceedings in the Federal Circuit Court to change the operative consent orders. That application was eventually transferred to the Family Court and on 19 May 2015 Registrar Stoneham made a suite of procedural orders designed to prepare the proceedings for trial. Relevantly, the parties were ordered to file and serve their trial affidavits by no later than 28 August 2015. By Order 20, the Registrar noted that in the event a party failed to comply with the orders made that day, “the matter may proceed on an undefended basis and the other party be at liberty to seek orders by default”.
The appellant filed his affidavit of evidence in chief by the due date. However, the respondent filed hers on 1 September 2015. By operation of r 11.02(1) of the Rules, if a step is taken after the time specified, relevantly, in a procedural order, the step is of no effect. Thus, when the matter next came before the Registrar for a compliance check, the respondent in effect sought relief pursuant to r 11.03(1) that the time within which she was required to file her affidavit be extended to 1 September 2015. On the other hand, it was contended by the appellant that on the basis of the respondent’s non-compliance with the procedural orders made on 19 May 2015, his amended Initiating Application filed on 17 June 2015 should be listed before a judge to be heard on an undefended basis. As has already been mentioned, the Registrar declined to list the matter in the manner contended for by the appellant.
In his amended Initiating Application that the procedural orders made by the Registrar related to, the appellant abandoned his application to spend time with the children and in lieu, sought orders for the respondent to be prosecuted for the offence of “Emotional and Psychological Child Abuse/Harm” by “knowingly implanting Parental Alienation on the children” and “destroy[ing] the present and future relationship” between the children and the appellant. In addition, he sought a suite of orders including that the respondent be prosecuted under state and federal law for perjury, contempt of court and otherwise under ss 118 and 102QB of Family Law Act 1975 (Cth) (“the Act”). In relation to those matters within the court’s jurisdiction, given that the orders sought were in response to the appellant’s application and in effect appeared to reflect his contention that the parties were unable to communicate about the children and his relationship with them had broken down, on the basis of the evidence then filed by the appellant the Registrar would have well understood that his entire application was doomed to fail.
In any event, on the review application the primary judge took the view that the matter was plainly defended and that the trial judge, whoever that might be, would himself or herself consider the evidence upon which the parties could rely. The primary judge found that the appellant’s application to review the Registrar’s decision was misguided and, as we have said, it was dismissed. For reasons we will shortly give, leave to appeal that decision will not be granted.
By his Application in a Case filed on 15 February 2016 the appellant sought that the primary judge be disqualified from hearing proceedings between the parties and that the review application be adjourned pending determination of the disqualification application. By this stage, the review application had been listed for hearing before the primary judge on 14 March 2016. For reasons which are unclear the disqualification application was initially listed on 18 April 2016. It should have been listed on the same day as the review application.
That listing notwithstanding, at the commencement of the hearing on 14 March 2016, the primary judge explained that before he could determine the review application, the disqualification application had to be addressed. Thus, his Honour indicated he would deal with the disqualification application later that day, and, depending on the outcome, the review application would be heard or adjourned. The appellant, who had filed a 45 page summary of argument addressed to the disqualification application, did not object to that course and at 10.08 am the matter was stood down. When the hearing resumed at 3.18 pm the appellant applied for an adjournment on the basis that he required the assistance of an interpreter. However, it transpired that the appellant had not on this occasion asked to have an interpreter provided for the hearing, and the application was refused. As was mentioned earlier, the appellant then departed and the hearing continued in his absence.
His Honour considered the appellant’s contention as to apprehended bias and noted that the appellant submitted in his summary of argument that the test referred to in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) was satisfied. His Honour correctly identified that in support of his application the appellant relied on the fact that on 25 July 2012 the primary judge ordered the appellant to remove information in relation to the proceedings from the internet and referred him to the Commissioner of the Australian Federal Police for consideration of whether the appellant had contravened s 121 of the Act. The appellant argued that the failure of the primary judge to similarly refer a mother in a different case would create apprehension in the fictional bystander and demonstrated gender bias. In rejecting the argument, the primary judge recorded uncontroversially that he brought the other proceedings to the attention of the authorities for consideration of possible prosecution arising from an apparent breach of s 121 of the Act. Thus, his Honour found that neither element of the test propounded in Ebner was established and the application was dismissed.
The appeal and application for leave to appeal
The grounds of appeal are more in the nature of assertions than articulated errors of law. The grounds of appeal (including leave to appeal), as listed by the appellant, are:
1.Apprehended Bias;
2.Denial of the Right to a Fair Hearing;
3.Racial and Gender (Male) Discrimination;
4.Misuse of Judicial Powers, Duties and Responsibilities; and
5.Misuse/Misinterpretation/Application of the Family Law Rules 2004 and Family Law Act 1975.
To the extent that these matters did not adequately address the question of leave, the appellant also relied on:
1.Apprehended Bias and Denial of the Right to a Fair Hearing are substantial miscarriages of justice;
2.With a Judiciary acting with Apprehended Bias, Denying the Right to a Fair Hearing, there is NO Due Process. Due Process is fundamental to an individual Right to a Fair Hearing.
Doing the best that we can with the appellant’s summary of argument, the gravamen of the appeal appears to be that the primary judge erred by:
·Refusing the appellant’s application for an adjournment so that a Spanish language interpreter could be provided;
·Refusing to disqualify himself;
·Determining the applications on the basis of want of prosecution;
·Bringing the disqualification hearing forward to 14 March 2016; and
·Tolerating perjury by counsel for the respondent.
The appeal against the review application is incompetent
Appeals to the Full Court of the Family Court from a judge exercising original jurisdiction are governed by s 94 of the Act. Relevantly the effect of s 94(1) is that an appeal lies against a “decree”. The dismissal of the review application did not determine an identifiable part of the proceedings and is not a “decree” as that word is defined in s 4(1) of the Act. It follows that an appeal, even with leave, does not lie against the dismissal of the review application (Tallant & Kelsey (2016) FLC 93-742).
The absence of an interpreter
It is the appellant’s contention that the lack of an interpreter occasioned a denial of procedural fairness. It is also argued that his Honour’s decision to proceed without an interpreter lends support to his case that the fictional bystander would be concerned about apprehended bias.
Turning to the question of procedural fairness, in National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296 at 312 Gibbs CJ explained that:
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
Ultimately, questions of procedural fairness turn on their own facts.
As to the lack of an interpreter, this raises the fundamental principle of a person’s right to be heard when an order is to be made which will deprive a person of some right or interest. Such a person is entitled to know the case against him or her and is to be given the opportunity of replying to it (Kioa v West (1985) 159 CLR 550 at 582).
The appellant’s first language is Spanish and, as was apparent during the hearing before the primary judge and us, he is also competent in written and spoken English. An interpreter was available to the appellant for the appeal, however the appellant dispensed with his services and spoke to us in English. We understand that some time has passed between the hearing and the appeal and accept that during the intervening period the appellant’s command of spoken English may have improved. We will therefore measure the procedural fairness question by reference to the transcript before the primary judge and the documents upon which the appellant relied in the court below.
The trial transcript demonstrates that the appellant was fully able to engage with the proceedings. Indeed, in the first tranche of the proceedings, the appellant raised matters of substance with the primary judge concerning the disqualification application and other matters of interest to him. There is no evidence of any misunderstanding by the appellant of the matters which his Honour raised and it is clear that the appellant was able to understand what was said and to communicate his position effectively.
The same must be said of the trial transcript of the afternoon session. The only exception might be when the primary judge asked the appellant to speak slower so as to assist his Honour’s understanding of their exchanges. The appellant obliged and his Honour acknowledged that, at a slower pace, his Honour understood the appellant.
In short, having read the trial transcript we are satisfied that the appellant demonstrated sufficient ability to understand what was put to him and to answer and engage in the process without the aid of an interpreter. We are fortified in this view by the fact that the appellant was able to attest to affidavits upon which he relied which were completed without the need for an interpreter. Furthermore, the appellant presented lengthy and complex documents which he prepared in the English language and without the need for an interpreter. An example of this is his 45 page summary of argument relied on in the disqualification application, replete as it is with voluminous references to authorities published in English language texts.
The absence of an interpreter did not occasion unfairness to the appellant or impede his ability to engage in the proceedings. Nor, in these circumstances, would his Honour’s decision to proceed with the hearing in the absence of an interpreter occasion disquiet in the fictional bystander.
The disqualification application was brought forward
We agree with the submission by counsel for the respondent that before his Honour considered the review application it was necessary for him to deal with the disqualification application. The only question was whether the disqualification application would be dealt with that day or on the date allocated by the registry. In and of itself, his Honour’s decision to bring that application forward is unremarkable, all the more so given that the appellant had filed comprehensive written submissions in support of it and in his opening remarks provided supplementary addresses on the point.
In our view, his Honour was quite correct when he discerned that the appellant appeared to be ready to prosecute the disqualification application and to thus bring it forward. The approach adopted by the primary judge was efficient, consistent with r 1.06(h) of the Rules which required him to deal with as many aspects of the case as possible on the same occasion and thus spared the parties and the court the expense of an additional, and in our view unnecessary, appearance. The fictional bystander would appreciate the reasons for the approach adopted by the primary judge. His Honour did not err in the manner suggested.
Was the case for recusal made out?
As we said earlier, the primary judge was satisfied that the appellant failed to establish either element of the test for recusal set out in Ebner. His Honour was entirely correct.
Want of prosecution
The applications were determined on their merits and not by reference to
r 11.06 of the Rules. This challenge is without foundation.
The alleged perjury
It seems to us that the appellant makes allegations of misconduct and perjury with an abandon that would be denied to a practitioner. He has been criticised before for making allegations of this type without proper foundation by other courts. According to the appellant the respondent’s counsel perjured himself before his Honour about the hearing before Registrar Stoneham which led to the review application. The primary judge did not take evidence from counsel and the accusation of perjury is without foundation. If his point is that the Registrar did not formally extend time pursuant to r 11.03(1) of the Rules he is correct; however, as we said earlier, the three day delay was in effect forgiven and the extension effectively given.
Not only has the appellant failed to establish his allegation of perjury, his failure to remain and participate in the hearing before the primary judge makes it difficult to establish that his Honour was not entitled to accept what was placed before him. The point being, the appellant had the opportunity to challenge what was said but chose not to, and it is too late to attempt to do so now.
Conclusion and Costs
As we have already explained, an appeal, even with leave, does not lie against the dismissal of the review application. Further, even if leave could be given, the appellant failed to raise sufficient doubt about the trial reasons to justify consideration by this court of his Honour’s decision to dismiss the review of the Registrar’s decision. He also failed to demonstrate that he would suffer substantial injustice were leave to be refused, supposing the decision to be wrong.
As to the recusal aspect of the appeal, the appellant failed to establish error in his Honour’s decision and that aspect of the appeal will also be dismissed.
Neither the respondent nor the ICL sought costs against the appellant and we will order accordingly.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Cronin JJ) delivered on 10 November 2017.
Associate:
Date: 10 November 2017
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