Appeal - Family law - Whether reasonable prospect of success - Turns on own facts

1 PULLIN JA: This appeal has been listed to consider whether pursuant to r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) it should be dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding for failure to comply with the Rules.

2 The appeal is against an order dated 17 March 2008, made by Justice Martin in the Family Court of Western Australia.

3 The background is as follows. The appellant and the respondent met in 2002 and commenced a de facto relationship, as a result of which the respondent fell pregnant. The parties separated on 7 February 2004 and on 26 March 2004, a child of the relationship was born. There have been numerous applications and hearings in the Family Court concerning the child. The appellant was self-represented.

4 After a trial, an order was made by Justice Martin on 20 December 2006. By this order, her Honour discharged all previous parenting orders, ordered that the child live with the respondent mother and that she have sole responsibility for her day-to-day and long-term care, welfare and development, and ordered that the appellant spend time with the child at times specified in the order.

The applicant father be restrained by injunction from instituting further proceedings unless by leave of the court, except pursuant to paragraph 6.

6 Paragraph 6 was an order restraining the parties from removing the child from Australia without the prior written consent of the other party or the leave of the court and providing for one parent to notify the other parent of a contact address if the child was taken on holidays outside the metropolitan area of Perth.

7 The order in par 7, restraining the appellant from instituting further proceedings without the leave of the Family Court, was made by Justice Martin pursuant to s 242 of the Family Court Act 1997 (WA).

8 The appellant appealed to this court against the orders made by Justice Martin on 20 December 2006. It was held by a single judge that no ground of appeal had any reasonable prospect of success; that leave to appeal should be refused and that appeal be dismissed. See MTI v SUL [No 2] [2007] WASCA 240. The appellant sought a review of that decision and two judges of the Court of Appeal dismissed that application for review. See MTI v SUL [No 3] [2008] WASCA 19.

9 On or about 30 November 2007 the appellant filed a Form 2 application in the Family Court, seeking leave to apply for changes to the orders made by Justice Martin on 20 December 2006. It has been amended several times. One version which this court has and which is dated 15 April 2008, seeks the following orders:

1. Leave to apply for changes to order no 4 of 20/12/2006. The order to be modified to the applicant contact with the child be suspended with a make over allowed on the longest period between visits or contacts
2. Leave to apply for the following

A- the respondent to pick up the child after her contact with the applicant

B- family violence order against the respondent and her brother

C- the respondent's mother not to attend the handover ever again

1. Leave to apply for the applicant to have contact with [the child] on Tuesday and Thursday from 9 am to 5 pm or contact on Monday to Friday from 9 am until 5 pm
2. Contact with the child in his birthday to be modified to 10 hours from 8 am until 6 pm
3. Leave to apply for final order for the applicant to have residency of the child and the respondent to lose the child residency because of her effort to hinder the child contact with her father and his culture and to cut his ties with his daughter and her inability to look after and coach the child needs
4. Leave to apply to the court for a solicitor to be appointed for the child
5. Leave to apply for the applicant right to interfere if and when the child is exposed to violence at home
6. Leave to apply for the applicant to be listed in every organisation as the next of kin after the mother and no other person to be listed
7. Leave to apply for the respondent brother not to be left alone with [the child]
8. Leave to apply for contempt of court against the childcare manager and the child specialist Anna Khott for failure to comply with the subpoena
9. Leave to apply for court order for the child records with the speech therapist to be released to the applicant and presented to the court in relation to paragraph 5
10. Leave to apply for orders for the respondent to return any item belonging to the applicant back to him within two weeks from receiving them.

10 This application was listed for hearing on 24 January 2008. It was adjourned to 30 January 2008. According to information provided by the appellant to this court (at a hearing on 9 May 2008) it was adjourned so that the other party could be notified, although it may be that it was adjourned because Justice Martin wanted to appoint an independent children's lawyer.

11 On 30 January 2008, the appellant did not appear, apparently having made a mistake as to the time of the hearing. A lawyer for the respondent appeared. Orders were made that the child be separately represented at further hearings of the proceedings and Legal Aid be requested to arrange the representation. The proceedings were adjourned to 17 March 2008.

12 On 17 March 2008, the appellant appeared, a lawyer from Kott Gunning appeared for the respondent and a Ms Reader, as independent children's lawyer, appeared by telephone. Ms Reader advised Justice Martin that she could not act for the child as she had a conflict of interest. Justice Martin therefore adjourned the hearing to 21 April because nothing could be done in the absence of representation for the child and also by reason of a delayed response from the Child Protection Department.

13 The appellant then filed his appeal to this court on 18 March, appealing against the orders made by Justice Martin on 17 March 2008. The appeal notice to this court identifies the date of the decision as 17 March 2008, the decision details shown on the appeal notice being:

1- Refused to deal with matter in hand and

2- ordered an adjournment and

3- failed to make orders to the matter does not require the child lawyer input [sic].

14 In the appellant's case which was filed on 14 April 2008, orders the appellant wanted were:

1. - An investigation into the corrupt behaviour of the judge
2. - Compensation for the delay and the heart it causes the appellant
3. - Judge Martine to be disqualified of dealing with case 1025/04 for ever again [sic].

15 The matter was listed for a directions hearing in this court on 9 May 2008 and the appellant then explained that after 17 March 2008 a new child representative was appointed and there have been several other hearings since then. A transcript received from the Family Court relating to a hearing on 30 July 2008 reveals that Justice Martin made orders dismissing the appellant's 30 November 2007 application and various amended forms of the application which had been filed insofar as the applications sought leave to institute proceedings. The appellant confirmed at the hearing in this court on 17 October 2008 that the form 2 application was dismissed by Justice Martin on 30 July 2008.

- The Family Court Judge made an error of law and facts refusing to deal with the application four months after it was filed.

- There is no legal reason for the judge refusal to deal with the paragraphs that does not require child solicitor input.

- The application is in court for five months before it can be looked at is unacceptable by any court of law

- The Family Court Judge is trying to penalise the applicant for walking out of the trial and her action is a corrupt in it self and she has been doing this for the last year and a half.

17 Rule 43(2)(g)(i) of the Supreme Court (Court of Appeal) (WA) provides that the court may dismiss the appeal if none of the grounds of appeal has a reasonable prospect of succeeding. 'Reasonable prospects of succeeding' is a phrase explained in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

18 None of the grounds of appeal have any reasonable prospects of succeeding. The judge was entitled to deal with the form 2 application at the one time and if there were reasons for adjourning the determination of some aspects of the application, ie those requiring the input of a child lawyer, then there was no error in adjourning other aspects of the form 2 application so they could all be dealt with at the same time. The time taken to deal with the application was not excessive in the circumstances set out above. The allegation that the judge's 'action' was corrupt is

entirely unsubstantiated. The orders sought are not within the jurisdiction of this court. Finally, the appeal is futile because the appeal is against the adjournment of an application which has now been dismissed and therefore there would be no substantial injustice if the decision to adjourn remains unreversed.