Bondelmonte and Bondelmonte (No 2)
[2016] FamCA 526
•20 June 2016
FAMILY COURT OF AUSTRALIA
| BONDELMONTE & BONDELMONTE (NO 2) | [2016] FamCA 526 |
| FAMILY LAW – PROCEDURAL – Disqualification application – dismissed |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Vakauta v Kelly (1989) 167 CLR 568 |
| APPLICANT: | Mr Bondelmonte |
| RESPONDENT: | Ms Bondelmonte |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Connor |
| FILE NUMBER: | SYC | 4839 | of | 2011 |
| DATE DELIVERED: | 20 June 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 25 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Millar |
| SOLICITOR FOR THE APPLICANT: | Karras Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | Broun Abrahams Burreket |
Orders
The father’s Application in a Case filed 16 May 2016 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bondelmonte & Bondelmonte (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4839 of 2011
| Mr Bondelmonte |
Applicant
And
| Ms Bondelmonte |
Respondent
REASONS FOR JUDGMENT
On 16 May 2016 the father filed an Application in a Case seeking an order that I recuse myself from hearing any application in these proceedings.
Rule 2.02 and rule 5.02 of the Family Law Rules 2004 (Cth) provides that a party who applies for an incidental order in an application in a case must, at the same time, file an affidavit stating the facts relied on in support of the orders sought. The father has not done that in this case. Instead, the application in a case was accompanied with a letter from the father’s lawyer in, inter alia, the following terms:
We now enclose … an Application in a Case seeking an Order that the Honourable Justice Watts recuse himself from any further hearing in these proceedings.
We seek leave to file the Application in the absence of an Affidavit given that the Application is procedural in nature and will be heard by reference to documents already on the Court file, notably, the Judgement delivered by His Honour on 8 March 2016.
Counsel for the father relied upon parts of my Reasons for Judgment dated 8 March 2016. In addition, he referred to [232] of the Reasons of the Full Court of 8 April 2016. Counsel for the father agreed that so far as they were relevant, the entirety of the Reasons of the Full Court of 8 April 2016 would be before me.
PROCEDURAL HISTORY
Final parenting orders were made on 25 June 2014.
The two elder children of the marriage (“the boys”) were retained by the father in the USA on 1 February 2016.
On 10 February 2016 the mother filed an Application in a Case seeking various parenting orders and injunctions. That application was listed on 29 February 2016.
On 26 February 2016 the father filed a Response seeking that the mother’s urgent application be dismissed.
On 2 March 2016 the mother filed a Further Amended Initiating Application seeking interim and final orders, including an order that the boys be returned to the jurisdiction.
The competing applications were heard on 2 March 2016 and I made orders and published reasons on 8 March 2016. I am told that the father has not complied with the orders that I made to surrender passports nor has he complied with the order to return the boys to the jurisdiction notwithstanding there never was any order staying the order in relation to the surrendering of passports and there is no longer any order staying the return order.
On 9 March 2016 the father filed a Notice of Appeal against the orders made on 8 March 2016. The appeal was heard on 23 March 2016. On 8 April 2016 judgment was delivered dismissing the appeal.
On 8 April 2016 the father filed an Application in a Case seeking interim parenting orders in relation to the three children of the marriage to the effect that the father have sole parental responsibility for the boys and that they live with him in the US and that the mother have sole parental responsibility for the youngest child who will live with the mother in Australia. Orders are also sought by the father for the youngest child to spend time with the father on terms specified in the application. I am told that application is returnable in a judicial duty list on 20 June 2016.
On 15 April 2016 the father filed an application for special leave to appeal to the High Court against the orders made by me on 8 March 2016.
On 4 May 2016 I heard the application of the mother for access to certain Federal Court files, such application being part of her Further Amended Initiating Application filed 2 March 2016. Judgment on that application was reserved and the delivery of judgment has been delayed as a result of this application.
On 16 May 2016 the father filed the current application for disqualification.
THE LAW
The father does not allege actual bias in this case.
Subject to any issue of waiver, the legal test in a disqualification application was stated by the majority in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 as follows:
... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
The majority in Ebner also emphasised that judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked observing “judges do not choose their cases and litigants do not choose their judges” and that there needs to be substantial grounds for contending that a judge be disqualified. The majority commented that it would be intolerable if insubstantial objection allowed a litigant to influence the composition of the bench.
In Johnson v Johnson (2000) 201 CLR 488, the High Court said:
… the test is objective … the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
The fair minded lay observer is one attributed with knowledge of all the circumstances of the case (Livesey v New South Wales Bar Association (1983) 151 CLR 288).
The relevant test is a multi-stepped process. The High Court in Johnson referred to a two stepped process. In Ebner there was a suggestion that the test is a three stepped process and in Isbester v Knox City Council (2015) 255 CLR 135 at 155-156 Gageler J identified a three stepped process, saying:
Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as a result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in any way.
Also of importance in this case is a statement made by the majority in Isbester:
The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made. (emphasis added).
The orders of 8 March 2016 were made in proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”). Accordingly, they were “child-related proceedings” (see s 69ZM(1) and (4) of the Act).
Section 69ZN of the Act imposes an obligation on the court when exercising powers in child-related proceedings to, amongst other things, actively direct, control and manage the conduct of the proceedings and conduct proceedings without undue delay (s 69ZN(4) and (7)). In furtherance of those principles, s 69ZR is in the following terms:
(1)If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c) make an order in relation to an issue arising out of the proceedings.
…
(3) To avoid doubt, a judge, .....who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
In Ebner the plurality of the High Court referred to a waiver as a counter balancing consideration to a normal circumstance where a judge might be expected to disqualify himself or herself. At paragraph 6 and also paragraph 21, the court explicitly referred to the stage at which the objection is raised as being a matter that needs to be taken into account.
In Vakauta v Kelly (1989) 167 CLR 568, Dawson J said at 579:
In my view, where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it.
The decision of Vakauta was affirmed by the High Court in Smits and Another v Roach and Others (2006) 227 CLR 423 where the majority (Gleeson CJ, Heydon and Crennan JJ) stated at 439:
It has been held in this Court, on a number of occasions, that an objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and that, if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result. The general principle is not in contest …
Kirby J stated separately at 466:
However, it is now settled law in this Court that where a litigant, aware of circumstances providing a ground for objection on the basis of disqualification, fails to object promptly, that litigant will be taken to have waived the objection and cannot later rely on it.
STATEMENTS MADE IN THE REASONS OF 8 MARCH 2016 UPON WHICH THE FATHER RELIES
The first question to consider is what factors the father hypothesises would cause a fair-minded lay observer to assume there would be a result in a future parenting application other than one based on a neutral evaluation of the merits.
In submissions, counsel for the father pointed to a number of statements made in the Reasons for Judgment of 8 March 2016 which he categorised as expressing strong disapproval of the actions taken by the father. Those statements were as follows:
· The father, by his unilateral action in breach of court orders, has taken the law into his own hands and given the boys the choice of participating in a breach of the current orders by staying in [the US]. (paragraph 30)
· Certainly the actions of the father have significantly prejudiced and almost certainly coloured any statements the boys may make whilst they are in [the US]. (paragraph 31)
· After referring to the relationships between T and her father and S and his mother, The father has significantly jeopardised both of those relationships because of what he has done. (paragraph 34)
· There is another consideration to which I give some weight. There was a proper way for the father to achieve his purpose. The father chose not to take it. The father has given the boys the option to agree to a breach a court order. That shows poor judgment by the father as a role model to the boys. For me to sanction the father’s behaviour sends a poor message about what might be considered to be appropriate parental behaviour. (paragraph 61)
Counsel for the father submits that these statements show that I had formed the view to the effect that:
30.1.The father took the law into his own hands;
30.2.The father gave the boys a choice to participate (or not) in a breach of the court’s orders;
30.3.The father by his actions, has significantly prejudiced any statements the boys might make while in the US;
30.4.The father has significantly jeopardised the relationships between T and her father and S and his mother by retaining the boys in the United States and not returning them to Australia; and
30.5.The father chose not to take “the proper way” to achieve his outcome and gave the boys the option to agree to a breach of the court’s orders and by doing so showed poor judgment and in that regard was a poor role model for the boys.
Counsel for the father submits that there is a “logical connection” between the matters identified and the possibility of a deviation from the course of deciding the case on its merits, a possibility which counsel for the father submits is real and not remote. Counsel for the father correctly submits that in determining proceedings for parenting orders the court is required to reach a conclusion as to what is in the best interests of the children and in doing so, consider matters referred to in s 60CC(2) and (3) of the Act. Among the matters to be considered are any views expressed by the children and any factors the court thinks are relevant to the weight to be given to those views, the nature of relationships between the children and their parents, the capacity of each of the parents to provide for the needs of the children including emotional needs and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents. It was submitted by counsel for the father that a fair-minded lay observer might reasonably apprehend that I would hear a case without giving any fresh consideration to whatever facts and arguments were put to me at that time because of statements that were made in the Reasons for Judgment of 8 March 2016.
I shall deal in turn with each statement made in the Reasons of 8 March 2016 with which the father says he has concern and discuss how the identified factors might cause a deviation from a neutral evaluation on the merits.
The father took the law into his own hands
I made a finding both at [30] and [61] that the father had breached court orders by not returning the boys on 1 February 2016.
It was not controversial that the orders under which the parties were operating, being the parenting orders dated 25 June 2014, had been breached by the father in a number of ways. Firstly, order 1 which provided that the parties have equal shared parental responsibility for the children had been breached by the father by firstly changing the boys’ living arrangements so that it was significantly more difficult for particularly the middle child to spend time with his mother and secondly, by changing both of the boys’ schooling without involving the mother in any way in that process. More specifically, the father breached order 3 which was the order relating to the children having an opportunity to have holidays with their parents overseas. Consequently, to assert that a statement made that the father had breached orders and as a result had taken the law into his own hands was entirely uncontroversial. Counsel for the father conceded that on its own a statement to that effect in the Reasons could not be determinative in the father’s favour in the application for disqualification.
The father gave the boys a choice to participate (or not) in a breach of the court’s orders
The statements that I made at [30] and [61] are set out above.
Counsel for the father pointed to the fact that in the Full Court’s Reasons, Justice Le Poer Trench (in the minority) at [232] had said the following:
The primary judge was entitled to form a very adverse view of the father’s actions in failing to return the children to Australia following the holiday in the United States. He was entitled to conclude that the father was flouting the Court’s order and even acting in a manner to challenge the Court’s authority, however, whatever the father’s actions, there could not be a transfer to the children of blame for the circumstance in which they found themselves. The children were not parties to the subject Court Order nor was there any evidence to establish that the children knew what the Court Orders provided. In such circumstances the primary judge’s conclusion, as stated in paragraph 61 under the heading “Another consideration”, that “The father has given the boys the option to agree to a breach a court order.” appears to be speculative at the very least.
As counsel for the mother pointed out, the first four lines of that paragraph could be read as his Honour expressing the view that I would have been entitled to say something stronger than I did in relation to the father’s actions of failing to return the children to Australia and him “flouting” (his Honour’s words, not mine) the court’s order and “even acting in a manner to challenge the court’s authority” (again, his Honour’s words not mine).
What counsel for the father relies upon however is the balance of his Honour’s impression as to what I was saying at [30] and [61].
As the majority of the Full Court, with respect correctly, observed at [116], what I was referring to, when read in its full context, was “the father’s involvement of the boys in his breach of the orders”.
The choices which the father presented to the boys are discussed in [22] and [23] of my Reasons which are in the following terms:
22.In his affidavit filed 26 February 2016, the father asserts that neither boy wishes to return to Australia. He sets out statements he says that each boy has made to him in the weeks that the boys have been in the United States. He also annexes to his affidavit, four pages of SMS text messages which he asserts [S] forwarded to his mother. The text messages express the view that [S] wishes to stay in [the US] with his father and asks his mother not to do anything to stop him from staying. He tells his mother that he loves her and asks to tell him that she will not do anything to make him come back to Australia. The mother engages with [S] in the text messages and expresses the view that the father has been instrumental in influencing what [S] has said in those text messages. On the face of it, [S] has sent a text message in the following terms:
I had 2 choices. Either I stay with you or I stay with dad in America. I choose to stay with dad in America because I have lived with him for years now and I have more opportunities in America. Yes I do have friends in Australia but I will make friends in America. It’s the same as if you move school but I am just further away than usual. But losing friends and making new friends isn’t a big concern for me. My concern is how my future will be like. I know that dad can provide a better future for me than you can, he has a place for me to stay in and he can afford to pay for the things I need in life. P/Z stop trying to get me back into Australia cause I don’t want to live with you there but Im happy to visit.
23.[S] also tells his mother in a different text that what was going on right now is because of [his father’s] work not because of things that have happened years back when the parties were an intact family.
In the Full Court’s Reasons, the majority discuss what I said about the choices the boys were given by their father at [103] and [105] in the following terms:
103.There are a number of factors which resulted in his Honour’s determination to reduce the weight he would otherwise have given to the boys’ views in favour of remaining in [the US] with the father. First, he was satisfied there had been extensive conversations between the father and the boys about the father’s desire to relocate the boys to the United States, which finding is not challenged. His Honour did not criticise the father for doing so per se but clearly formed the view that the father’s desire to live in the United States had influenced the boys. In other words this was not a case in which a parent gave effect to an idea initiated by his or her child. Given the strength of the boys’ relationship with the father, that they were positively influenced by his desire to live in the United States is simple common-sense.
...
105.His Honour criticised various actions by the father which he saw as contrived and having significantly prejudiced and almost certainly coloured the boys’ statements in favour of [the US]. His Honour’s use of the word “contrived” came under particular challenge in relation to which senior counsel for the father said there was no evidence the father “planned, plotted, or contrived a situation before the boys left Australia that [the father] never intended to return to Australia” (Summary of Argument at [24]). His Honour did not make that finding or anything like it. We understand his Honour’s reference to “contrivance” to be to the evidence (at [22] – [23]) that the father led the boys to understand they could choose between two scenarios. That is, to live with him in the United States or return to Australia and live with the mother. The point being, he did not explain that he could return them to Australia, and remain while a decision was made whether the boys would live in [the US] or Australia. His Honour’s comments about prejudice are directed to the same matters, as well as to the boys’ appreciation that this was the outcome the father hoped to achieve.
Fairly read, the Reasons of 8 March 2016 refer to what on the evidence was an uncontroversial fact, namely that the father gave the boys a choice to stay in the US. Retaining the boys in The US was a breach of the court orders.
The father by his actions has significantly prejudiced any statements the boys might make while in the US
That comment is contained at [31] of my Reasons and is dealt with by the majority of the Full Court at [103] and [105] as set out above. At [106] the majority conclude, “We perceive no error in his Honour’s approach”. As the majority pointed out, I was not for a moment suggesting that the children’s views were not genuinely held.
The father has significantly jeopardised the relationship between T and her father and S and his mother by retaining the boys in the United States and not returning them to Australia
This statement is made at [34] of the Reasons and did not seem to attract any attention in the father’s submissions on appeal. Again it seemed that statement was uncontroversial given what the father had done was to create a situation where the normal time that the middle child was spending with his mother could no longer take place on a regular basis during school term and likewise the youngest child could no longer see her father on a regular basis. Those circumstances have been brought about by the father’s actions. The statement was made in the context of proposing that a full family report be prepared in Australia which looked at not only the boys’ views but also the dynamics of the relationships and in particular the future of the relationship between T and her father and the future relationship between S and his mother.
The father chose not to take “the proper way” to achieve his outcome and gave the boys the option to agree to breach court orders and by doing so showed poor judgment and in that regard was a poor role model for the boys
In this submission, counsel for the father is referring to what was said at [61] of the Judgment. Firstly, I reiterate that there is no issue that the father breached court orders. Secondly, as the father has now acknowledged by bringing an application to do so, there is a “proper way” to obtain an order for the international relocation of children. The majority of the Full Court at [116] made it clear that there were ramifications for the father as a role model to the boys arising from his breach of orders, which ramifications were a matter of “some weight”. On this point, Justice Le Poer Trench at [232] of the Full Court’s reasons seemingly might have made stronger comments.
I shall now consider the reasonableness of an apprehension of bias.
Counsel for the father commented that there was no statement in the Reasons for Judgment of 8 March 2016 which expressed any reservation or qualification to the findings and observations that were made. Counsel for the father commented that given these were interim proceedings it would not have been unusual to see such statements to the effect that it was an interim view; that the parties had not been cross examined and other types of qualifying statements. There is no need to attempt to bullet proof an interim judgment by including such boiler plate provisions as those suggested when a fair-minded lay observer is taken to have knowledge of the nature of interim parenting proceedings that are dealt with on the papers. Counsel for the mother correctly pointed to [12] of Johnson in the context of how interim judgments are couched, namely the judges are professional and the fair-minded lay observer is taken to know that the judge is aware of the different nature of interim and final decisions. The fair-minded lay observer is taken to know there is no cross examination at an interim hearing and that contested controversial facts cannot be determined.
In the Full Court’s Reasons, the majority at [114] said:
On a fair reading of his Honour’s reasons it can be seen that he in fact differentiates between evidence which is contentious and uncontentious and, consistent with well settled authority in relation to the adjudication of interlocutory proceedings undertaken without cross-examination, he did not resolve the controversies.
Counsel for the mother submits that the Reasons of 8 March 2016 have been poured over by the Full Court and have come out intact. There was in fact no complaint as to the basis upon which I came to the views that I did. There was no assertion that the views that were formed were not impartial based on the material presented. Counsel for the mother consequently submits that it is difficult to therefore establish the necessary nexus between what is now complained of in the judgment and the assertion that that would lead to a fear that in the future an impartial mind would not be brought to bear on whatever fresh consideration is given to the facts and arguments put to the court in the future.
In this case in the Reasons for Judgment of 8 March 2016, I recorded facts which are uncontroversial and made other findings which the Full Court found were well open on the uncontroversial material (including a report from a family consultant which the father himself tendered).
No findings about the father’s credit were made. No findings were made against the father that went beyond uncontroversial facts or findings properly made based upon uncontroversial facts.
I find on the ordinary test, that a fair-minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of any future parenting dispute.
SECTION 69ZR OF THE ACT
There is a second reason why the application for disqualification fails. The findings, determinations and orders made 8 March 2016 are to be viewed in their statutory context which includes the provisions of s 69ZR(3) of the Act.
Rhetorically, the question to be asked is what findings of fact or determinations or orders could be made that might attract the protection provided by s 69ZR(3), if those in the Reasons for Judgment of 8 March 2016, of which the father complains, do not.
In the circumstances of this case, the operation of s 69ZR(3) of the Act is a complete answer to the father’s application.
WAIVER AND DELAY
There is a third reason why the father’s application for disqualification should fail.
As mentioned above, on 4 May 2016 I heard another interlocutory matter in these proceedings relating to financial rather than parenting matters. I reserved my decision. That hearing took place nearly a month after the Full Court had heard and determined the father’s appeal against the orders I made on 8 March 2016. No application for disqualification was made on 4 May 2016.
Counsel for the father suggested that because those were financial proceedings and this disqualification application related to a judgment in relation to parenting proceedings, nothing could be drawn from the fact that no application for disqualification was made in relation to the financial matter in respect of which I am currently reserved. I took it from that concession that there is no objection to me continuing to finalise that hearing by way of delivering the reserved judgment in that matter.
Counsel for the husband also suggested that if the parenting and property aspects of the proceedings were bifurcated, I could hear the property proceedings. That submission seemed to ignore the fact that the application that is actually brought by the father is for me to be excluded from hearing any further application in the proceedings between the parties, whether or not they be parenting proceedings or proceedings in relation to financial issues.
I do not, however, accept the position that I would disqualify myself in relation to hearing the parenting matter whilst at the same time continuing to be available to continue to hear any financial controversy between the parties. I accept counsel for the mother’s submission that the inference that is raised as a result of the father not raising an objection in the hearing of the financial aspect of the matter was that I would bring an impartial mind to that determination.
Counsel for the father points out the fact that the delay was only a couple of months but that is beside the point. A full interlocutory hearing has happened without any murmur in relation to the issue of disqualification. By implication the father has impliedly waived any right that he might have had to apply for me to disqualify myself based upon statements made in the Reasons published 8 March 2016.
OVERALL CONCLUSION
For each and all of the reasons discussed, the father’s application that I recuse myself, is dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 20 June 2016.
Associate:
Date: 20 June 2016
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Standing
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