Kahler, in the matter of Kahler [2012] FCA 1257

FEDERAL COURT OF AUSTRALIA

Kahler, in the matter of Kahler [2012] FCA 1257 Citation: Kahler, in the matter of Kahler [2012] FCA 1257

Party: KEVIN JOHN KAHLER

File number: QUD 475 of 2012

Judge: DOWSETT J

Date of judgment: 25 September 2012

Date of hearing: 25 September 2012

Place: Brisbane

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 13

Counsel for the Applicant: The Applicant appeared in person

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 475 of 2012

IN THE MATTER OF: KEVIN JOHN KAHLER

Applicant

JUDGE: DOWSETT J DATE OF ORDER: 25 SEPTEMBER 2012 WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. the application for an interlocutory injunction is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 475 of 2012

IN THE MATTER OF: KEVIN JOHN KAHLER

Applicant

JUDGE: DOWSETT J DATE: 25 SEPTEMBER 2012 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 In these proceedings the applicant has been supported by Mr Bell who has legal training but does not have a practicing certificate. He has performed the role of a McKenzie friend. I have insisted, however, that the applicant make his own submissions. 2 On 7 September 2012, the applicant filed an urgent application before the commencement of proceedings. The order sought is: An injunction issue to prohibit the sale of any real property and any action or continuation of any action related to giving effect to the enforcement of any order made by Michael Jarrett FM on 4 November 2011 which relates to the affairs of the prospective applicant, and in particular, affecting any real property the prospective applicant owns or has, until recent times owned, or has or had an interest in. 3 It seems that in proceedings pursuant to the Family Law Act 1975 (Cth) (the "Family Law Act"), Federal Magistrate Jarrett ordered the sale of property owned by the applicant. The applicant seeks to restrain Federal Magistrate Jarrett personally from selling the land. I pointed out to the applicant that for a number of reasons, no question of restraining Mr Jarrett could arise, one such reason being that he was not proposing to sell any property. I shall deal with that matter in more detail in a moment. I also pointed out the difficulties inherent in asking this Court to review a decision of a Federal Magistrate made in the exercise of jurisdiction under the Family Law Act. 4 The orders made by Federal Magistrate Jarrett on 4 November 2011 were in proceedings at the suit of two different women who are, or claim to be mothers of children of whom the applicant is the father. The orders relate to maintenance and the capitalisation of child support payments allegedly payable by the applicant in respect of the children. 5 There is a lengthy history of litigation in the Family Court and the Federal Magistrates Court in connection with these matters. Orders were made by Bell J in the Family Court on 24 November 2006. On 7 July 2009 those orders were, in relevant respects, set aside by the Full Court of the Family Court, the matter being remitted to a single Judge for further consideration. I am told that a member of the Family Court subsequently remitted the matter to the Federal Magistrates Court for consideration, resulting in the orders made by Federal Magistrate Jarrett. 6 There has recently been publicity concerning aspects of the jurisdiction of the Family Court arising out of the breakdown of de facto relationships. It seems that the commencement of legislation designed to confer jurisdiction concerning such matters had not been proclaimed. Earlier this year remedial legislation was enacted in order to validate orders which had been made in purported exercise of such jurisdiction. 7 When the matter came on before me last week, the applicant said that the basis of the application was that the Federal Magistrate, in making the orders, had exceeded jurisdiction by virtue of the fact that at the time at which they were made, he did not have jurisdiction because the relevant legislation had not been proclaimed. To the extent that the deficiency was said to have been retrospectively remedied, it was submitted that the relevant legislation did not have that effect. I pointed out the difficulties inherent in seeking review of a decision of a Federal Magistrate in this Court where the Federal Magistrate was exercising power under the Family Law Act. However a consideration of s 39B of the Judiciary Act 1903 (Cth), with the assistance of submissions provided by the applicant, has led me to conclude that this Court may have jurisdiction to review such decisions, notwithstanding the fact that they are made under the Family Law Act. However, it is not necessary that I finally determine that question. 8 The orders made in the Family Court included the appointment of Mr Sheehy, a solicitor, as trustee for sale of the relevant property owned by the applicant. The real purpose of these proceedings is to restrain such sale. Mr Sheehy has appeared today to abide the order of the Court. He has been of considerable assistance in explaining the events which have occurred and the rather complex nature of the relevant legislation. 9 Jurisdiction with respect to the maintenance of the children of a de facto relationship had been conferred in legislation prior to that which has been the subject of recent publicity. The more recent remedial legislation relates only to the question of maintenance as between former de facto spouses, and not to the maintenance of children of such relationships. The orders made by Federal Magistrate Jarrett related only to the maintenance of children. 10 I have asked the applicant to explain why he says that the magistrate had no jurisdiction. He has been unable to do so. Hence there is no basis upon which I could properly grant interlocutory relief. He made some attempt to rely on the Administrative Decisions (Judicial Review) Act 1977 (Cth), but that Act has no application to a judicial decision. There was no suggestion that this was an administrative decision. 11 There are other problems. The applicant could have sought to appeal to the Family Court. The applicant says that he has tried to appeal but has been obstructed by the Family Court Registry. He says that he filed a notice of appeal and was told that he had no appeal as of right. He also claims to have experienced difficulty in seeking to file an application for leave to appeal. Again, he blames the Family Court Registry. It is not for me to investigate those matters. If he claims to have been unfairly denied a hearing in the Family Court, then he should apply to a Judge of the Family Court or write to the Chief Justice. It would generally be inappropriate for me to intervene in the affairs of the Family Court or the Federal Magistrates Court exercising jurisdiction under the Family Law Act. Further, necessary parties have not been joined. In my view, the two mothers who sought the relief granted by the Federal Magistrate should have been joined. They have now been joined but have not been properly served. 12 I have granted leave to the applicant to read and file an application seeking final relief, conditional upon his paying the relevant fee within seven days. If he wishes to proceed with the application, then he will be at liberty to do so. I have taken into account the relatively serious consequences of not granting the interlocutory relief which he seeks. Parts of his property may be sold on Friday of this week. However the Federal Magistrate's orders were made in November last year. In the usual course, delay of that order would be, itself, a disqualifying feature in seeking interlocutory relief. I should say that I do not consider that the history of his dealings with the Family Court Registry satisfactorily explains his delay. 13 In the circumstances, the application for interlocutory relief is refused. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.