On 27 August 2013, Judge Burchardt sitting in the Federal Circuit Court of Australia, Melbourne, handed down judgment following an extraordinary situation where a litigant in person refused to acknowledge the jurisdiction of the court or to answer questions from the bench based on his religion.<\/p>\n
The case is Irvine & Irvine<\/em> (No.2) [2013] FCCA 2076.\u00a0 His Honour was clearly exasperated by the behaviour in his court.<\/p>\n His Honour\u2019s opening comments were \u201cThis is a wholly extraordinary case.\u00a0 I hope I never have another like it.\u00a0 For reasons which I hope will become apparent, it has been a proceeding almost impossible properly to control, essentially because of the position adopted by the respondent husband, a position unique in my experience on the court.<\/em>\u201d<\/p>\n Mr Irvine had commenced living in Australia in 1989 and was an Australian citizen but had not lived in Australia for the last 12 months nor considered it his home.\u00a0 There were four children under 18-years-old and four older children.<\/p>\n This application was for property settlement and children\u2019s orders.\u00a0 Mrs Irvine had already applied for a divorce and sought an order dispensing service as she thought the husband was avoiding service on religious grounds.\u00a0 We do not know the religion.<\/p>\n Mr Irvine appeared on the first date (22 May 2013) for the property matters.\u00a0 His attitude was that the court did not have jurisdiction as \u201chis marriage was governed by a contract entered into pursuant to (religion omitted), and it was not open to this court to interfere with it.\u201d\u00a0 Mr Irvine refused to answer \u201cvery straightforward direct questions\u201d.\u00a0 The 16-year-old son had to be removed from the court and affidavits of him and his younger brother were refused filing.<\/p>\n Mr Irvine was given opportunity to file an affidavit.\u00a0 That affidavit clearly told the court that he considered the court did not have jurisdiction and that if the court proceeded it would be a \u201ctort\u201d.\u00a0 Judge Burchardt sought to resolve the matter on 29 May 2013 by way of undefended hearing, following the difficulties that had arisen on 22 May 2013.<\/p>\n On 29 May 2013, Mr Irvine attended court.\u00a0 When asked whether he was appearing for himself he said \u201cI\u2019m just \u2013 simply here regarding the matter<\/em>\u201d.\u00a0 Again, the 16-year-old son was ejected from court.\u00a0 Mr Irvine is an apparently educated man with an \u201cexcellent command of English\u201d yet he argued that he did not understand the proceedings.<\/p>\n Judge Burchardt observed that \u201ceverything Mr Irvine did and the way that he did it suggests to me that he is a highly intelligent man who is engaged in an extensive filibuster with a view to enforcing his basic position that the Court does not have jurisdiction.\u201d\u00a0 Mr Irvine asked for a copy of the transcript and was allowed a copy and a further two weeks to co-operate.\u00a0 He was asked to make up his mind as to whether he was going to participate in the proceedings.<\/p>\n Mr Irvine had filed an affidavit on 29 May 2013 opening with the words \u201cI, appearing as, Mr Irvine, by special invitation and not appearing generally before this honourable court\u2026\u201d didn\u2019t advance his case in any way.<\/p>\n At 9.30am on 14 June 2013, Mr Irvine was not in court.\u00a0 The matter proceeded undefended, however, at 10.00am Mr Irvine appeared.\u00a0 He sought to file an affidavit which purported that the marriage contract was a binding financial agreement and thereby outside the court\u2019s jurisdiction.<\/p>\n In light of the behaviour demonstrated by Mr Irvine, the parties\u2019 child in court and evidence before the court of their behaviour away from court, equal shared parental responsibility was not granted.\u00a0 Mr Irvine\u2019s affidavit material indicated that Mrs Irvine had \u201cno capacity or entitlement to make any decisions, although she is required to be consulted.\u201d\u00a0 No evidence was put before the court regarding the religion.\u00a0 On 14 June 2013, Mr Irvine had sought a six month adjournment.\u00a0 Judge Burchardt considered that the position taken by Mr Irvine was \u201cdesigned to defeat the court\u2019s processes\u201d.<\/p>\n His Honour found that Mr Irvine\u2019s behaviour had \u201calready succeeded in alienating the children in age order down to and including X and is no doubt actively seeking to suborn the rest.\u201d<\/p>\n There were eight children of the marriage.\u00a0 Mr Irvine had transferred property and appeared to have four overseas properties.\u00a0 A taxi license and vehicle was ordered to be transferred to Mrs Irvine.\u00a0 It is clear from the judgment of Burchardt J that he was frustrated by Mr Irvine\u2019s refusal to participate in the court processes.<\/p>\n On 1 August 2013, the matter was listed for hearing.\u00a0 Mr Irvine failed to attend.\u00a0 On 6 August 2013, Mr Irvine contacted Mrs Irvine and advised he had just heard of the hearing date for 1 August 2013.\u00a0 By 27 August 2013, the court had not heard further from Mr Irvine despite indicating to the contrary.\u00a0 Mrs Irvine had sought spousal maintenance.\u00a0 In the circumstances, it was apparent there would be no co-operation.\u00a0 Mrs Irvine sought the taxi license and vehicle and was granted this as the only real option available for property settlement.<\/p>\n So, what do we learn?<\/p>\n Stay true to the path, dot the \u2018i\u2019, cross the \u2018t\u2019 and be patient but firm with self-represented parties but take no nonsense from them.\u00a0 The court has jurisdiction, as evident in this case, despite a determined attempt to thwart the Australian judicial system \u2013 which came at a significant cost to Mrs Irvine.<\/p>\n Title: Irvine & Irvine (No.2) [2013] FCCA 1076 RMO Lawyers are highly experienced with all types of family law matters, including matters where the other side might be unrepresented and deliberately trying to thwart the proceedings. We aim to resolve a matter before going to court or if this is not possible to assist our clients in achieving a successful outcome as soon as possible.<\/p>\n Get the best representation. Contact RMO Lawyers on 1800 957 936<\/a>, email\u00a0mail@rmold.newwebsite.live<\/a>, or submit an enquiry below.<\/p>\nOutline Of Proceedings<\/h3>\n
Conclusion<\/h3>\n
Judgement Mentioned<\/h3>\n
\nDate: 27 August 2013 Court:
\nFederal Circuit Court of Australia<\/p>\nHow We Can Help<\/h3>\n
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