Howard & McGrath [2012] FamCAFC 74; (4 June 2012)

Last Updated: 14 June 2012

FAMILY COURT OF AUSTRALIA

HOWARD & MCGRATH

[ 2012] FamCAFC 74

FAMILY LAW – APPEAL – CHILDREN – Where the father’s application before the Federal Magistrate sought orders including orders which the Federal Magistrate did not have jurisdiction to make – Where the orders dismissing the father’s application, the subject of the appeal, were reasonably made by the Federal Magistrate based on what was said on the father’s behalf by the duty lawyer – No appealable error – Where the evidence sought to be adduced in the father’s application in an appeal was not relevant to the appeal – Appeal and application dismissed.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Howard

RESPONDENT:

Ms McGrath

FILE NUMBER:

DNC

130

of

2011

APPEAL NUMBER:

NA

21

of

2012

DATE DELIVERED:

4 June 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

4 June 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

28 February 2012

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

In person

ORDERS

(1) The appeal NA 21 of 2012 be dismissed.
(2) The application in an appeal filed 16 May 2012 be dismissed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 21 of 2012
File Number: DNC 130 of 2011

Mr Howard

Appellant

And

Ms McGrath

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The father appeals against the orders of Federal Magistrate Turner made in Darwin on 28 February 2012. The father describes himself as disabled and dyslexic. For that reason I permitted a “McKenzie friend”, Mr K, to sit with the father to assist him during the appeal proceedings.
2. In the orders made on 28 February 2012 the Federal Magistrate dismissed the father’s application filed 27 February 2012, allocated final hearing dates to
   26 and 27 September 2012, and ordered the father have liberty to file an application for further orders that a case guardian or McKenzie Friend be appointed. The matter is listed for mention and trial directions on
   7 August 2012.
3. In the application in a case before the Federal Magistrate (the subject of this appeal), the father sought orders that provided for a stay of the proceedings pending a hearing of matters of “legal negligence”, which the father alleged against both parties’ solicitors. The father’s solicitor earlier filed a notice of intention to withdraw on 7 February 2012. The father specifically sought orders that “take note” of the alleged legal negligence by the solicitors, and “take whatever actions and make whatever orders upon the said solicitors for indulging in such legal negligence”.
4. The father’s application also sought orders that the parents attend post separation counselling before the proceedings were further heard, and interim orders for the father to spend time with the child “of a nature to restore in Darwin as much as possible of their former day to day relationship”, and “including as much compensatory and ‘make up’ missed contact as can be reasonable achieved”.
5. The focus of these reasons will be on the grounds of appeal, the submissions of the appellant and the proposed orders sought by him in the appeal. Pursuant to
   s 94 (2A) of the Family Law Act 1975 (Cth) (“the Act”), as this appeal does not raise any question of general principle, it is appropriate to give reasons for judgment in short form.
6. Central to this determination also is the utility of the appeal, being an appeal from interlocutory orders.
7. The grounds of appeal are incomprehensible, but do reveal the considerable difficulty for the appellant in appreciating the proceedings. The father complains that he has no longer the assistance from the Legal Aid office because they have “prejudged his case as a ‘loser’ because of lack of legal merit based only on the mother’s affidavit that he will not be awarded any contact with the child”.
8. It is also claimed in the grounds that the Family Court of Australia does not have jurisdiction because child welfare is a state matter. It is alleged by the father that the mother illegally removed the child from the father’s care.
9. The father claims generally that the Federal Magistrate was “negligent” in failing to make appropriate orders.
10. It is asked by the father that this Court make orders on an interim basis so that he have time with the child.

BACKGROUND

11. The parties married in 1989 and separated finally in 2006. They have two children, a now adult daughter, and a son the subject of the current parenting proceedings, born in February 1997.
12. The parties lived together for the duration of the relationship in Darwin. A short time after separation, the father moved to Queensland. An informal arrangement was made for the child to live with the father in Queensland, which continued for approximately three years. It is important to appreciate that there have never been any orders made in relation to the child.
13. In early April 2011 the mother, without consulting the father, collected the child from Queensland and returned to Darwin with the child. The father subsequently relocated to Darwin to maintain a relationship with his son. However, the father has only seen the child on one occasion since his relocation to Darwin.
14. The child is now aged 15 years and attending high school in Darwin.
15. The mother filed an initiating application in the Darwin registry of the Federal Magistrates Court on 13 April 2011. She sought interim and final orders that she have sole parental responsibility for the child, that the child live with her in Darwin, and that the child spend time and communicate with the father as agreed to between the parties and in accordance with the child’s wishes.
16. The father filed a response on 9 June 2011. He sought interim and final orders that the parents have shared parental responsibility for the child, that the child live with the mother, and that the child spend time with him during the school terms on an alternating two week basis, and for half of the school holidays.
17. On 13 September 2011 the Federal Magistrate ordered that the parties and the child attend upon a family consultant for the purposes of the preparation of a family report. The report was prepared by family consultant Mr V, and delivered on 16 November 2011.
18. The family consultant noted the following evaluations:
    59. ... it would be important for the father to seek medical assistance for his seeming symptoms of stress (his pains in the chest and his overly emotional profile). It would benefit him to discuss with his GP strategies for managing such stress. There could be a referral by the GP to a psychiatrist, psychologist or counsellor, as well as medical interventions. I have a concern that Mr [Howard] could be moving to realms of suicide ideation, so prompt action by him would be appropriate. For him to rebuild [the child’s] trust in him it would behove him to address proactively his severely intense emotional manner of relating to [the child]. Psychological intervention would be highly recommended for him to achieve a recalibration of how he could relate appropriately to [the child].
    60. Both parents have experienced disempowerment or powerlessness about each other in relation to the parenting arrangement. Both of them appear to be essentially accurate in their depictions from their own viewpoints. Certainly, there have been extremely powerful emotional forces at work for some years (arising from the assaults and their place in the context of what was a rapidly deteriorating relationship between the parents). I do not envisage that the parents would be able to construct a relatively placid and cooperative parenting relationship in the future, unless the father’s proposed psychological interventions bear fruit over and above assisting him rebuild his relationship with [the child] on a positive footing.
    61. [The child]’s 2010 Father’s Day picture and last comment perhaps encapsulates this sad matter: he loves his father despite the ‘tears, anger and yelling’. However, [the child] has learned that expressing that love appropriately must mean for him suspension indefinitely of spending time with a father whose ‘tears, anger and yelling’ became too much for an adolescent to bear on a daily basis.
19. It is apparent from the father’s material that he does not support or accept the conclusions of the family consultant in relation to his emotional state. At the appeal hearing the father said that he recently attended a psychiatrist and last week obtained a report. The opinion of the psychiatrist, as reported by the father, is that the he does not need treatment so far, and there is no reason that he cannot be in a parenting position.

DISCUSSION

20. There are no separate reasons for judgment other than those provided by the Federal Magistrate on the day as contained in the transcript. As will become apparent, there was no need for discrete reasons.
21. The mother was represented and a Ms M appeared for the father as a duty lawyer. The trial was adjourned by consent. Ms M asked that the application of the father be withdrawn or discontinued. This was the order made by the Federal Magistrate.
22. The basis stated by the duty lawyer for the withdrawal/dismissal was that the Federal Magistrate lacked jurisdiction. It is also apparent from the transcript that what the father was asking in his application was the appointment of a McKenzie friend. Directions were made to allow the father such an application.

Father’s summary of argument

23. The contents of this document provide no basis for an appeal. It contains a number of assertions and complaints which can be summarised as follows:
    1. The father should have legal assistance and has been denied legal aid as a result of the family report.
    2. The mother has illegally abducted the child and the Federal Magistrate has not given sufficient weight to the best interests of the child.
    3. The application was designed to correct the wrongful conduct of the mother and restore time between the father and the child.
    4. Ms M, the duty lawyer, was told by the father that he wanted orders for time with the child, and the appointment of a McKenzie friend.
    5. Ms M “falsely” told the Federal Magistrate that the father wished to withdraw the application.
24. It is also argued by the father that there have been a number of people who have acted wrongfully in this matter and he seeks to subpoena them to produce documents as further evidence.
25. This allegation is directed to Mr V, the author of the family report to which reference has already been made. There is no need to subpoena Mr V upon the request of the father, he will no doubt be available to give evidence at the trial.
26. There was no hearing in relation to interim arrangements for the father to have time with the child. It became apparent during the appeal hearing that the dismissal of this part of the father’s application is the primary complaint in the appeal.
27. As mentioned above, the father has only seen the child on one occasion since his relocation to Darwin. It is unfortunate that the duty lawyer did not understand or otherwise pursue the part of the father’s application relevant to interim orders for time with the child. It was explained to the father during the appeal hearing that the Federal Magistrate reasonably acted on what the duty lawyer represented to her Honour, that the father wished to withdraw the application, as demonstrated by the transcript. It therefore could not be said that the Federal Magistrate made an error in ordering that the application be withdrawn and dismissed.
28. It was also explained to the father at the appeal hearing that he could bring another application for interim orders for time with the child, which could be heard by the Federal Magistrate at the next scheduled hearing on
    7 August 2012.

Application in an appeal

29. The father filed an application in an appeal and a supporting affidavit seeking leave to issue a number of subpoenas on 16 May 2012. The father seeks to issue subpoenas to a number of government agencies such as the Queensland Police Service, the Queensland Department of Public Prosecutions, the Queensland Legal Commission and the Law Society of the Northern Territory. These persons and files may be of some relevance in a trial of the children’s proceedings but not in an appeal. The father agreed in oral submissions that such matters were not relevant to the purposes of this appeal.

CONCLUSION

30. On the next date this matter is heard the Federal Magistrate should consider the appointment of an Independent Children’s Lawyer who could best consider the use and relevance of such material. This is particularly so as it seems
    the father has exhausted all appeals in an endeavour to obtain legal aid.
31. Given the age of the child it is important that any expressed wishes be taken into consideration and in circumstances such as these where emotional stress is clearly high, an Independent Children’s Lawyer could be an appropriate way of ensuring the child’s views are independently presented. Understandably, the mother expressed her wishes not to put more pressure on the child and for him not to be involved in the proceedings. It was explained to the mother that the child would not be required to appear in Court. Both parties expressed support for the appointment of an Independent Children’s Lawyer.
32. In the absence of any grounds of appeal and in the circumstances of how the orders were made, the appeal and the application in an appeal should be dismissed.
    

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 4 June 2012.

Associate:

Date: 4 June 2012