Coleman & Hindle and Ors (Disqualification)
[2010] FamCAFC 29
•5 March 2010
FAMILY COURT OF AUSTRALIA
| COLEMAN & HINDLE AND ORS (DISQUALIFICATION) | [2010] FamCAFC 29 |
| FAMILY LAW - APPEAL – COURTS AND JUDGES – DISQUALIFICATION – In an appeal from the Family Court of Australia – Whether the judge erred in failing to disqualify himself for apprehended bias – Where the proceedings have a complex history – Where the appellant is self-represented and has been since the inception of proceedings – Where the reasons for judgment and transcripts of proceedings do not reveal an apprehension of bias – Where the judge showed restraint and considerable effort in dealing with a difficult litigant – Where the orders made were correct on the evidence and entirely proper – Appeal dismissed Child Protection Act 1999 (Qld) Family Law Rules 2004 |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 C and C (1996) FLC 92-651 CAO v Department of Child Safety & Ors [2009] HCASL 259 CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Goode and Goode (2006) FLC 93-286 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Johnson v Johnson (2000) 201 CLR 488; Johnson v Johnson (No 3) (2000) FLC 93-041 Johnson v Johnson (No 1) (Bias Issue) (2000) FLC 93-039 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Re F: Litigants in Person Guidelines (2001) FLC 93-072 Re JRL; Ex Parte CJL (1986) 161 CLR 342 Strahan & Strahan (Disqualification) (2009) FLC 93-414 |
| APPELLANT: | Ms Coleman |
| 1ST RESPONDENT: | Mr Hindle |
| 2ND RESPONDENT: | Ms Hindle |
| 3RD RESPONDENT: | Department of Communities (Child Safety Services) |
| INTERVENER: | Mr Coleman |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Carter |
| FILE NUMBER: | BRC | 5431 | of | 2008 |
| FIRST APPEAL NUMBER: | NA | 42 | of | 2009 |
| SECOND APPEAL NUMBER: | NA | 78 | of | 2009 |
| DATE DELIVERED: | 5 March 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, May & Thackray JJ |
| HEARING DATE: | 18 November 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 April 2009 |
| LOWER COURT MNC: | [2009] FamCA 361 [2009] FamCA 1039 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Ms Coleman appeared in person |
| ADVOCATE FOR THE 1ST RESPONDENT: | No appearance |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Balzamo |
| SOLICITOR FOR THE 2ND RESPONDENT: | Bridges Family Law Specialists |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Selfridge |
| SOLICITOR FOR THE 3RD RESPONDENT: | Crown Law Queensland | |
| ADVOCATE FOR THE 4TH RESPONDENT: | No appearance | |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Kirkman-Scroope | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Carter Farquar Mediation and Family Law |
Orders
The appeals NA 42 of 2009 and NA 78 of 2009 are dismissed.
The appellant’s application in an appeal filed 12 November 2009 is dismissed.
The appellant’s application in an appeal filed 4 December 2009 is dismissed.
The appellant’s application in an appeal filed 17 February 2010 is dismissed.
The appellant pay the costs of the second and third respondents and the Independent Children’s Lawyer of and incidental to the appeals as agreed and failing agreement, as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Coleman & Hindle and Others (Disqualification) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 42 of 2009 and NA 78 of 2009
File Number: BRC 5431 of 2008
| Ms Coleman |
Appellant
And
| Mr Hindle And Ms Hindle And Department of Communities Services (Child Safety Services) |
Third Respondent
And
Mr Coleman
Intervener
And
Mr Carter
Independent Children’s Lawyer
REASONS FOR JUDGMENT
FINN J
I agree with May J and Thackray J that the appeals against the orders made on 29 April, 22 October and 23 October 2009 should be dismissed and that the appellant’s applications to adduce further evidence (filed on 12 November and 4 December 2009) and for the issue of subpoena (filed 17 February 2010) should also be dismissed. I further agree that the appellant should pay the costs of the second respondent mother, the third respondent Department and the Independent Children’s Lawyer.
My reasons for dismissing the appeals and the applications and for determining that the costs orders should be made, accord generally with the reasons of May J, which I have had the benefit of reading in draft form.
MAY J
Introduction
These proceedings involve two boys, aged thirteen and nine, their parents and their maternal grandparents. A number of procedural hearings took place before Murphy J to prepare for the trial of the application for final orders filed by the mother. The trial is yet to take place and is listed for hearing on 8 March 2010.
Two appeals have been filed by the grandmother, Ms Coleman, in relation to a number of procedural orders made by Murphy J on 29 April 2009 and the 22 and 23 October 2009. An appeal is also from interim parenting orders made by the judge on 23 October 2009. Those orders provided that the grandparents have no communication or time with the children other than by letter or card.
The grandmother also wishes to appeal against part of a proposed minute of order handed up by the Independent Children’s Lawyer, Mr Carter, during the hearing on 29 April 2009. As those orders were not adopted, I will not consider that aspect any further.
The principal argument advanced in the appeals is, as I understand it, that Murphy J and the registrar concerned with the case management of these proceedings, Registrar Turner, have acted in such a way as to give rise to an apprehension of bias.
The orders of 29 April 2009 dismissed two applications made by the grandmother and provided directions for the preparation of a Family Report. The applications of the grandmother included the transfer of the proceedings to a registry outside of Queensland and the removal of Mr Carter as the Independent Children’s Lawyer.
The orders of 22 and 23 October 2009 dismissed several applications made by the grandmother, another made by the mother and one by the grandfather. The grandfather, Mr Coleman, was granted leave to intervene in the parenting proceedings. Interim parenting orders were made in relation to the two children in favour of the parents: that the children live with the mother and spend time with the father as agreed.
Other parties in the proceedings are the mother, the father, the Independent Children’s Lawyer and the Department of Communities (Child Safety Services) (“the Department”). The mother opposed the appeals. The father adopted the arguments of the mother and the Department in each appeal. Neither the Independent Children’s Lawyer nor the Department supported the appeals.
On 4 December 2009 the grandmother filed an application in an appeal seeking to adduce further evidence. She filed a further application on 17 February 2010 seeking, inter alia, that the Court grant her leave to issue a subpoena for various telephone records held by Telstra. At the time of filing both applications, the appeals had been heard although judgment in the appeals was reserved.
A brief background to this matter will be provided before considering the legal principles to which reference must be made in determining the appeals.
Background
The children were born in 1996 and 2001. Their mother is the second respondent in the appeals and their father is the first respondent. The parents live separately. The mother lives with her new partner. As I have already mentioned, the appellant is their maternal grandmother. She and the grandfather separated some years ago and divorced in November 1991.
I have been assisted by the chronology provided by counsel for the Department, attached to his written submissions filed 17 November 2009.
The uncontested essential facts seem to be as follows.
Court orders were made in the local court at St James in Sydney on 21 October 2002. Those orders provided for the children to live with the grandmother and spend time with their mother and father. Prior to that date, the mother had been living with the grandmother in New South Wales. In an affidavit filed 16 October 2009, the father deposed that he believed the grandmother had “kicked [the mother] out of the house” the day before the hearing.
In February 2003, the grandmother moved to R, south of Brisbane, taking the children with her. It is not clear what the mother’s situation was at this time. In March 2003, following complaints to the Department, the children were removed from the grandmother’s care and placed into foster care. They were returned to her sometime in May 2003. The mother moved to live with the grandmother and the children in May 2004.
On 22 February 2008, pursuant to s 82(2) of the Child Protection Act1999 (Qld), the children were placed in the care of the mother by the Department. They have since lived with the mother and her partner, and spend time with the father as agreed.
From 11 November 2008 until 11 November 2009, the children were the subject of a child protection order made in the Children’s Court of Queensland. That order granted short term custody of the children to the Chief Executive Officer of the Department. The Department is the third respondent in the appeals.
The child protection orders have been the subject of numerous unsuccessful appeals by the grandmother in the District Court of Queensland, to a single judge of the Queensland Court of Appeal, the Full Court of the Queensland Court of Appeal and the Supreme Court of New South Wales.
On 17 June 2008, the mother filed an application in the Federal Magistrates Court seeking final orders in relation to the children. The matter was transferred to the Family Court on 15 October 2008. On about 29 October 2008, because of the complex issues, the matter was designated a “Magellan matter” and has been in the Magellan list of the Family Court since that time.
By way of background, I mention that the Magellan case management system was nationally introduced within the Family Court of Australia in July 2003. It relates only to cases involving serious allegations of sexual or physical abuse of a child. The Magellan system is designed to ensure that such complex cases are dealt with as effectively and efficiently as possible. To that end, each case is generally managed by the same judge for the duration of the matter.
There have been domestic violence proceedings involving the parties. In particular, as I understand it, there is a current domestic violence order which requires that the mother and the grandmother should not come within 100 metres of each other.
The child protection order ceasing to have effect on 11 November 2009, the interim parenting orders made by Murphy J on 23 October 2009 now apply. Those orders are:
15.Upon the cessation of the order made under a State child welfare law currently applicable in respect of the children …, the following orders shall take [effect]:-
15.1 the children shall live with their mother,
15.2the children shall spend time with their father as agreed between the father and the mother,
15.3the children shall spend no time with their maternal grandparents;
15.4the mother and father have equal shared parental responsibility for the children;
15.5the maternal grandparents not communicate with the children in any manner or by any means without further order of the court;
15.6the children be permitted, and the mother encourage the children, to contact the maternal grandparents by card or letter at all such times as the children might express a desire to do so.
Procedural history
The matter first came before Murphy J as the Magellan judge on 29 January 2009.
On 11 March 2009, the grandmother filed an application which sought a stay of the proceedings and for suppression orders to be made against all parties preventing the release and use of any medical documentation pertaining to her. She also asked for an order that the interviews arranged with the social worker, Mr M, for preparation of a Family Report, be delayed.
On 17 March 2009, Murphy J dismissed the application. In doing so, he made orders requiring the grandparents to attend upon Mr M to participate in interviews for the purpose of preparing a family report. Murphy J also made directions allowing the grandmother to “provide to Mr [M], ahead of any interview … such documentation as she considers appropriate … so as to give to Mr [M] a picture of those medical and other matters which she considers relevant and accurate.” The parties were given leave to inspect all documents produced pursuant to subpoena.
Mr M had previous experience with the family. He prepared a social assessment report dated July 2008 for the Children’s Court proceedings, where he also gave evidence. He later prepared a report, dated 16 July 2009, annexed to his affidavit of 19 October 2009 for this Court. Despite court orders, the grandparents did not attend the interviews for the Family Court report.
In the Family Report dated 16 July 2009, to which I shall later at greater length refer, Mr M said:
36.Both boys remarked positively about their circumstances in living with their mother. Their views about their past life with their grandparents has not changed markedly from the previous assessment, this being a unilaterally negative depiction of an environment of physical and emotional abuse. They stated definitively in their separate interviews that they did not wish to have any contact with their grandparents.
37.Irrespective of the credibility of the children’s information about their grandparents relating to the quality of the care that existed at that time, it is evident that the relationship between [Ms Hindle] and her parents is so dysfunctional and conflicted that any arrangement between the two households would be extremely difficult.
38.I am of the view that – in the current environment – both boys have derived needed emotional security. It is difficult to see that any arrangement which involved visits to their grandparents seemingly against their wishes – or living with their grandparents against their wishes – would be to their benefit within the current context of discord. I am of the view that any such arrangement would rather tend towards conflict than not and would destabilise the current security of the children.
On 29 April 2009, Murphy J dismissed two of the grandmother’s applications, and it is those orders which are the subject of the first appeal (NA42 of 2009).
On 9 October 2009, his Honour dismissed two further applications by the grandmother. Those applications related to the eldest child giving evidence in the proceedings. As the grandmother does not appeal from these orders I will not deal with them further.
On 22 and 23 October 2009, Murphy J again determined a number of applications made by the parties. These orders are the subject of the second appeal (NA78 of 2009). I will describe those proceedings in more detail later.
On 11 November 2009, his Honour heard the grandmother’s application for a stay of his earlier orders made on 23 October 2009. That application was dismissed and the transcript provided to the parties at no cost.
On 12 November 2009, the grandmother filed an application seeking leave to rely on the transcript of proceedings of 11 November 2009 in the appeal. She also seeks an order granting leave to “Adduce fresh and / or new evidence to be adduced in the proceedings” before the Full Court. This application together with the applications filed after the hearing of the appeal will be considered in the context of the two appeals.
Legal principles
Those principles which demand the most attention in disposing of this appeal are set out below under their relevant headings.
Bias
A central theme in these appeals is that the judge and registrar exhibited bias against the grandmother, and that the appeals should be allowed. It is noted the grandmother only made one oral application that Murphy J be disqualified, on 22 October 2009. His Honour determined that application on the morning of 23 October 2009.
The law with respect to judicial bias is well settled by the High Court. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality held at 344-349:
6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7.The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
…
The principle to be applied
19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20.This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21.It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22.The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23.Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
24.In Webb v The Queen, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference.
(footnotes omitted)
In an earlier decision of Johnson v Johnson (2000) 201 CLR 488, an appeal from the Full Court of the Family Court of Australia, the High Court considered whether a judge erred in declining to disqualify himself for apprehended bias resulting from a comment made by him during the hearing.
The Full Court of the Family Court affirmed his Honour’s decision, and emphasised that offending remarks “need to be read as a whole and in context”: Johnson v Johnson (No 1) (Bias Issue) (2000) FLC 93-039 at 87,618.
The plurality of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), in dismissing the appeal said at 492-493:
10.The disposition of this appeal depends upon the application of principles which are well established and which neither party disputed. The contention was that there had been a departure from those principles which the Full Court of the Family Court had wrongly failed to correct, thus calling for the intervention of this Court, if only to emphasise the importance of intermediate courts applying these principles. In these circumstances it is neither necessary nor appropriate to undertake any detailed analysis of the principles or their basis.
11.… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: 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”.
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (footnotes omitted, emphasis added)
I would also make reference to the comments of Mason J in Re JRL; Ex Parte CJL (1986) 161 CLR 342, where he said at 352:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. (footnotes omitted)
Self-represented litigants
The grandmother is self-represented. Given that part of the argument in the appeal relates to how she has been treated by the trial judge and the registrar, I also have regard to the principles relevant to procedural fairness and self-represented litigants, which were outlined by the Full Court in Re F: Litigants in Person Guidelines (2001) FLC 93-072.
A reading of the transcripts of the proceedings before Murphy J in April and October 2009 illustrates that his Honour was conscious of the difficulties faced by the grandmother as a litigant in person. To demonstrate his Honour’s management of the proceedings I will later set out some extracts from the transcripts.
Appeals from discretionary decisions
The grandmother’s grounds of appeal mostly concern judicial bias. This is not a matter of judicial discretion. I refer to the recent decision of the Full Court of the Family Court in Strahan & Strahan (Disqualification) (2009) FLC 93-414 at paragraphs 52 to 58.
However, to the extent that the grandmother’s grounds of appeal may encompass broader assertions of discretionary error, the principles relevant to an appeal from a discretionary judgment are well known.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (emphasis added)
As to those orders related to the applications of the grandmother, not being the contravention applications, they are in the category of procedural orders of an interlocutory nature. It is useful to refer to Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170. That decision concerned an appeal from an order for an injunction, but the principles outlined are applicable to appeals from interlocutory decisions generally. Gibbs CJ, Aickin, Wilson and Brennan JJ at 177 said:
An interlocutory order for an injunction is a matter of practice and procedure. See McHarg v. Universal Stock Exchange Ltd.; Minister for The Army v. Parbury Henty and Co. Pty. Ltd.; White v. White.
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd.; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd.. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.):
‘... I am of the opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.’
See also Brambles Holdings Ltd. v. Trade Practices Commission; Dougherty v. Chandler. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration. (footnotes omitted, emphasis added)
First Appeal – NA42 of 2009
Grounds of appeal and orders sought
In an amended notice of appeal filed 9 July 2009, the grandmother appeals against the orders made on 29 April 2009. She lists twelve grounds of appeal.
Ground 1 is:
His Honour, on 29th April 2009, erred in not making an order relating to having Registrar Turner removed as the “Magellan Registrar” and substituting another Registrar, pending investigations by Australian Federal Police over alleged “Death threats” on Registrar Turner’s voice-mail that purported to be made by the Appellant. The Appellant is of the belief that “Perceived Bias” exists towards the Appellant by Registrar Turner;
Ground 2 is:
On 29th April 2009, His Honour erred in that he showed “Perceived Bias” towards the Appellant and should have removed himself from hearing any further proceedings involving the Appellant and he should have appointed another Judge either from the Brisbane Registry or alternatively by transferring the proceedings to a Registry outside of Brisbane, to hear the further proceedings;
In relation to the second ground, a number of assertions are made in subsequent grounds of appeal (grounds 2 – 11) about of his Honour’s conduct on 29 April 2009. These are:
· His Honour’s remarks and “allegations of impropriety” during the hearing which “put a slur on the good character and name” of the grandmother;
· The orders made on 29 April 2009, which “stem from a review of Registrar Turner’s orders” made 29 October 2008, in that the directions hearing of the matter was delayed until 29 April 2009;
· The acceptance into evidence of the reasons for judgment of Justice McMurdo (the President of the Queensland Court of Appeal);
· The orders that the interviews with Mr M take place on 2 and 3 June 2009 in circumstances when there was an existing domestic violence order;
· That orders were made despite pending welfare proceedings in the Supreme Court (being proceedings which were to be held on 9 June 2009);
· His Honour’s denial of the inference that he “works day in and day out” with Registrar Turner in his position as “Magellan Judge”;
· The “misstatement of fact” that the children were removed from the grandmother’s care in March 2003 and returned in May 2003;
· The incorrect rejection of the submission that the Family Court has no jurisdiction to change or vary domestic violence orders issued in the Magistrates Court of Queensland;
· The dismissal of the grandmother’s applications;
· The order that Mr M conduct a Family Assessment meeting with reference to the Report of 2 July 2008, prepared in relation to the welfare proceedings, such report prepared in the absence of the Colemans;
· His Honour’s statements with respect to the action taken by Registrar Turner in alerting the Australian Federal Police of the death threat received by her.
Ground 12 claims that a further instance of “perceived bias” was that Murphy J allowed Mr Carter to “breach” s 121(9)(g) of the Family Law Act 1975 (Cth) (“the Act”), in that the Independent Children’s Lawyer “disclosed the names of the parties to the current case, contrary to the pseudonym names” and this “breach was published and put into public record through the Supreme Court of Queensland Court of Appeal”.
In the event the appeal is successful, the grandmother seeks a number of orders, including that Murphy J and Registrar Turner be disqualified from further involvement in proceedings. She also seeks an order pursuant to s 69ZK(3) of the Act that any Family Report “not be published in proceedings” until any state welfare proceedings are determined, including an application for special leave to appeal to the High Court. Further orders sought include that the grandmother is not required to participate in any Family Report until the High Court and state proceedings are determined, an order that the parenting proceedings be consolidated into the contravention proceedings, and costs.
Reasons for judgment – 29 April 2009
Given that a number of issues raised in the grounds of appeal concern the conduct of the proceedings, it is necessary to set out in some detail his Honour’s reasons for judgment and some references to the transcript of the hearing.
Dates for the interviews with Mr M
At the outset of the hearing, there was some discussion between Murphy J, Mr Carter and the grandmother about prospective dates for the interviews with Mr M. These interviews eventually took place on 2 and 3 June 2009 but the grandparents did not attend. This was despite the orders made on 17 March 2009, to which I have referred above.
One of the concerns raised by the grandmother in relation to the interviews was an existing domestic violence order with respect to herself and the mother. In order to allay those concerns, Mr Carter had arranged for two interview dates and alerted Mr M to the existence of such an order, if not the specifics of it. The grandmother also objected to the June interview dates, stating:
…I just want to point out that basically I’ve had to come up here today for this, I’ve got to come up again on 9 June, I’ve got to attend an immunologist on 6 June in Sydney.
In response to this complaint, the following exchange took place:
HIS HONOUR: Okay. Well, let me be clear about this. I have now made arrangements on at least three occasions for the preparation of a report. Mr Carter has told the Court about a number of changed arrangements designed to suit your convenience…
…
[MS COLEMAN]: I can’t be in Queensland on 2 or 3 June.
HIS HONOUR: [Ms Coleman], don’t interrupt me, please. The interviews will take place on 2 and 3 June. If you choose not to participate, that’s a matter entirely for you.
The grandmother again raised her concerns about the domestic violence orders, stating that after consulting the police in Queensland and New South Wales, she had been told “if I attend I will be arrested.” It is clear that his Honour was alive to this issue, as he made the following directions in paragraph 1(c)(ii) and (iii) of his orders:
ii.In respect of any process conducted by [Mr M], including any interviews with the Maternal Grandmother and/or Grandfather and any other party, it is directed that such process comply in every respect with any existing domestic violence order, including any provisions of any such order in respect of any person the subject of such orders coming into contact with or being in the vicinity of any other person named in the order.
iii.It is directed that the Independent Children’s Lawyer make [Mr M] aware of any existing domestic violence orders involving the participants, or any potential participants to the assessment.
During the hearing the grandmother indicated that she wished to appeal that order because his Honour had “not got the jurisdiction over the Domestic Violence Act”. To this, Murphy J replied:
Thank you. Whether you choose to appeal my order or any other order is entirely a matter for you to exercise such democratic rights as is available to you, [Ms Coleman].
This issue was also canvassed in his reasons, where his Honour said at paragraph 29:
I have by order made it clear that the parties, and those associated with these proceedings, should comply with the existing domestic violence order. There has never, at any stage of the proceedings, been any suggestion by me (nor any order or direction made by me) which would remotely suggest any alteration to the terms of the domestic violence order. Every order made contemplates adherence to it. (original emphasis)
The death threat received by Registrar Turner
The next issue which arose during the hearing concerned a death threat apparently received by Registrar Turner. As is evident from his Honour’s reasons and the transcript, the grandmother was considered a “person of interest” by the Australian Federal Police in relation to this matter. During the hearing, his Honour raised the issue thus:
HIS HONOUR: Speaking of ringing up, did you make contact with Registrar Turner by telephone, [Ms Coleman]?
[MS COLEMAN]: No, I did not.
…
HIS HONOUR: Not on the weekend? Never at any stage?
[MS COLEMAN]: No. Well, I have in the past. She knows when I’ve talked - - -
…
HIS HONOUR: I see. All right.
[MS COLEMAN]: Just like Registrar Turner sent New South Wales Police out saying I rang and made a death threat to her when I didn’t.
From the transcript, it is obvious that the grandmother perceived Murphy J’s inquiry as an accusation. In support of her application to have the proceedings transferred out of the Brisbane registry (a matter I will shortly address), she stated:
[MS COLEMAN]: Well, basically I feel that is an extra reason why this case should be transferred out of your Court because I have a feeling that because of Registrar Turner believing, for whatever reason she wants to think, that I said it and then having me accused from the Bench of ringing her on the weekend because any calls to her would be STD. I can prove, because I - - -
HIS HONOUR: Just so the record is clear, obviously the matter will be on transcript, as you know, but you weren’t accused of anything. You were asked a question.
[MS COLEMAN]: Well, I take it as accusing me.
HIS HONOUR: Well, you may.
[MS COLEMAN]: The way you said it, it sounded like I was accused and it will be on transcript, yes.
The first application – removal of the proceedings
Murphy J considered the merits of the grandmother’s application filed 28 April 2009 and summarised the orders sought by her as (Reasons, [14]):
(1)An order that these proceedings be transferred to another Registry outside of Queensland;
(2) That the matter be assigned to a Registrar other than Turner R;
(3)That the current proceedings be stayed pending the completion of an investigation by the Australian Federal Police into death threats made to Turner R;
(4)As drafted, ‘an order of the Court that the parties to these proceedings produce to the Court what they claim to be evidence or persist from the continual malicious vexatious persecution that they persist in’;
(5)An order that [Mr M] explain to the Court why he failed to comply with this Court’s (order) of 29 January 2009.
His Honour gave the grandmother an opportunity to explain what was meant by paragraph 4 of her application and the following exchange took place:
HIS HONOUR: …What does that mean? What does paragraph 4 mean, [Ms Coleman] because I haven’t the faintest idea?
…
[MS COLEMAN]: Well, basically, what that means is in my affidavit that’s there, [Ms C] was the applicant in the proceedings at the time [Mr M] did the interviews in the Children’s Court.
HIS HONOUR: Yes.
[MS COLEMAN]: And [Ms C] went as a support person for [the children] and under the Act or under the section of support people, if she’s going to give evidence in a Court case she’s not permitted to be the support person, plus the fact that it wasn’t an impartial interview because you’ve got one side there – well, you know, you’re used to mums and dads.
HIS HONOUR: Yes, I understand that.
[MS COLEMAN]: And if mum sits there and says, you know, ‘They’re going to be a bit wary saying something against dad,’ that type of thing.
HIS HONOUR: Yes, I think I understand now.
Finding that that explanation did not reframe the order sought in a “form which might sound in relief”, Murphy J struck out that paragraph.
His Honour then dismissed paragraph 5, finding that “if the grandmother alleges failures (in whatever respect) with the process conducted by [Mr M], then she can do so as can any other party, by cross-examination at the trial of this matter”. (Reasons, [17])
Murphy J then considered paragraphs 1 and 2 of the application together. He first made some observations about the assertions raised in her supporting affidavit, and noted:
19.I found the affidavit filed by the grandmother on 28 April 2009, which I have read, to be very difficult to understand and, for the most part, to not relate to, or be probative of, any of the orders sought by her in her application.
20.That being the case, and despite the attitude displayed by her while making submissions, I attempted to give [Ms Coleman] ample opportunity orally to expand upon all such matters as she considered relevant in respect of the application.
21.Notwithstanding that many of the matters referred to by her orally were not the subject of evidence, I propose to treat them as such, having had regard to the provisions of Division 12A of the Act and, in particular, the statutory edicts as to the manner in which proceedings involving parenting orders ought be dealt with.
22.Accordingly, those matters raised from the Bar table by [Ms Coleman] (in what were effectively submissions), I intend to treat as evidence in support of her application. I do so primarily because I think it fairer to her, given her self-represented status, and because doing so represents the best chance of focussing upon the children’s best interests.
His Honour detailed in full the various matters raised by the grandmother, including her assertions about the death threat to Registrar Turner and the issue of domestic violence orders and the Family Report interviews. He further outlined her argument that the proceedings ought to have been stayed pursuant to s 69ZK of the Act, but noted:
31.No evidence before me suggests that any order within the meaning of that section, relevant to any of the children in respect of which orders are sought in the parenting proceedings here are covered by any such order.
32.It seems to me that to the extent that s 69ZK is called in aid of any proposed stay or any allegation of lack of jurisdiction, that assertion is misconceived.
Murphy J also dealt with what he described as the grandmother’s “broad, but unspecified and unparticularised, allegation of bias”. During the proceedings, the grandmother said:
Basically the other order is that I feel that because under 69ZK and because there have been allegations made, and for whatever reason Registrar Turner believes it, that it should also be – this case should be stayed because of the fact that that will give everybody a chance to clear the air, and then when the Federal Police come back and say it wasn’t me, well then, you won’t automatically think badly of me in your decision which has to be tainted by the fact that you work day in and day out with Registrar Turner.
In response to this, his Honour found that there was “no evidence deposed to…that provides any substance to any such assertion.”
Murphy J further emphasised that the “best interests of these children remain the predominant consideration in these proceedings and the predominant concern of this Court.” He continued:
46.It is for that reason, and that reason alone, that I indicated earlier that a family report is to be prepared by [Mr M] and that my order include a notation that it be prepared irrespective of the attendance of [Ms Coleman] for the purposes of that report. Every attempt has been made previously by this court to facilitate and encourage her involvement in that process.
47.Furthermore, whilst I consider there is no proper foundation whatsoever for either the transfer of the proceedings from the Brisbane Registry or the removal of Turner R, I consider, additionally, that either or both of those events would be highly likely to very significantly impact upon this matter being heard and determined, which such delay I consider to be utterly contrary to the best interests of these children.
…
52.For those reasons, but primarily because I consider it fundamental to the best interests of these children that these proceedings conclude and orders be made at the earliest possible opportunity, I dismiss the application in a case filed by the grandmother on 28 April 2009.
The second application – removal of the Independent Children’s Lawyer
Murphy J then considered the second application brought by the grandmother, filed 30 March 2009, which sought the removal of the Independent Children’s Lawyer and that the mother undergo psychiatric assessment.
During the hearing before Murphy J it became apparent that none of the respondents had seen a copy of this application or the supporting affidavit. However, after some consideration, each of the respondents felt they were able to deal with the application immediately after the grandmother’s submissions.
His Honour noted that the application for the removal of the Independent Children’s Lawyer was based on ten assertions. He listed them at paragraph 69 of his reasons:
(1)He is “not doing the right thing by not passing on relevant correspondence to [Mr M]”;
(2)That he is “not passing on” information in relation to the domestic violence order;
(3)That [Ms Coleman] “doesn't think” he has explained to [Mr M] the domestic violence order [I interpose here that Mr Carter is subject to direction by me as a result of Court orders made by me on an earlier occasion];
(4) She does not trust Mr Carter;
(5)That he has been “sending strange emails”. When asked to explain what “strange emails” were she said they were emails that “leave everything up in the air”;
(6)She asserts that, in an email communication (which I should add was a communication directed by me to occur by email), the email address used by Mr Carter was in fact an email address belonging to her husband. She received the email. [Mr Coleman] lives in the same house. Quite why this should be the subject of objection utterly escapes me.
(7)She claims that Mr Carter “made a claim for costs when he has moved out to [N]”. I am not sure what that assertion is supposed to mean. I suspect it means that, in the course of these proceedings, Mr Carter has left the firm with which he was formerly connected and now, apparently, is asserted to be practising from [N]. Quite what that has to do with the application also remains a mystery;
(8)That the Court was being “led to believe that [the grandmother] had delayed these proceedings and caused trouble”. I have been the Judge managing this case since the matter came into the Magellan list but nothing that I have seen, heard or read emanating from Mr Carter, sustains that assertion. I reject it utterly;
(9)“He does not have the best interests of the children at heart”. That is an assertion which not only remains completely unparticularised but is not supported by any evidence to which I have been referred;
(10)Some assertion is made in respect of documents purporting to form part of a medical file which it is said are forged.
During the course of the hearing, the father sought leave to hand up a copy of the reasons for judgment of Justice McMurdo. Pursuant to s 69ZX(3) of the Act, Murphy J accepted those reasons and he noted that the “allegations made in the Court of Appeal of the Supreme Court of Queensland mirror precisely the allegations made in respect of Mr Carter in this Court.”
At paragraph 15 of the reasons of McMurdo P, repeated in the reasons of Murphy J, her Honour stated:
The application filed on 3 March 2009 also requested that the second respondent be removed as the children’s independent representative and that disciplinary action be taken against him. The applicant filed no material to support this extraordinary application. In these circumstances, I could only conclude that in seeking those orders her application [is] mischievous, vexatious, an abuse of process and must be refused.
Of the Independent Children’s Lawyer, Murphy J said:
67.…[I]n my view Mr Carter, in what I can only describe as extraordinarily difficult circumstances in dealing with an extraordinarily difficult person, has behaved commendably.
68.He has attempted at all times to arrange such matters as this Court has considered appropriate as matters for investigation by an independent expert in order to ascertain, or should I say attempt to ascertain, in the midst of this ridiculous litigation, those matters that are in the children’s best interests.
…
74.The Independent Children's Lawyer occupies a significant and important role in the context of children’s proceedings. That is all the more so when allegations are made by litigants, frequently without foundation, about matters that might be described as factual but which have very little relevance, if any, to the best interests of children.
75.One of the specific roles of the Independent Children’s Lawyer is to marshal such evidence as is considered appropriate and for that evidence to be put before the Court as expeditiously as possible.
76.It is a serious matter, then, to make allegations … against an Independent Children's Lawyer, including, significantly, allegations that an Independent Children’s Lawyer has lied and lied to a Court.
77.No doubt [Ms Coleman] will make those allegations during the course of the trial and factual findings will be made by the trial Judge about those allegations.
78.If, however, pending a trial, an Independent Children's Lawyer who has had a long involvement in this very unsatisfactory case (both in this Court and in other Courts in the State jurisdiction) is to be removed, then a compelling case would need to be made out consistent with the best interests of the children for that to occur. [Ms Coleman] makes out no such case.
Having so found, his Honour dismissed the grandmother’s second application.
I am of the view that the first appeal should be dismissed. I will explain my reasons for so finding in conjunction with my consideration of the second appeal.
Second Appeal – NA78 of 2009
Grounds of appeal and orders sought
In a notice of appeal filed 3 November 2009, the grandmother continued the claim of “perceived bias” on the part of Murphy J in ten grounds of appeal. Additionally, it is claimed that there was a denial of natural justice. In summary, those grounds are:
· Refusing the grandfather’s application to intervene in the contravention proceedings;
· Dismissing the grandmother’s contravention application;
· Not ordering a stay of proceedings pending the outcome of the grandmother’s appeals in the High Court and the Full Court of the Family Court;
· Failing to call “physical evidence” from the mother, the Department and the Independent Children’s Lawyer with respect to the “Vexatious, Scandalous and Defamatory” remarks made against the grandmother;
· Refusing to dismiss the Family Report;
· Dismissing the grandmother’s application to have the Independent Children’s Lawyer “punished” by the Department of Public Prosecutions;
· Dismissing the contravention proceedings, being BRC 1353 of 2008;
· Dismissing the grandmother’s oral application for a stay of the 23 October 2009 proceedings;
· Rejecting the grandmother’s submissions in relation to the presence of a Department employee as a support person for the children during their interviews with Mr M; and
· Insisting that the grandmother had “refused and failed to attend” the social assessment meetings in preparation for the Family Report.
In the event this appeal is successful, the grandmother seeks that the orders made by Murphy J on 22 and 23 October 2009 be set aside, and a recovery order made in her favour, such order to take effect from 12 November 2009 so that the children are returned to her. She also asks for an order that “makes the Substantive matter BRC 1353 of 2008 [being the contravention proceedings] and not BRC 5431 of 2008”. Finally, she asks for costs.
The grandmother’s application for special leave to appeal to the High Court of Australia (B25/2009) was dismissed on 9 December 2009: CAO v Department of Child Safety & Ors [2009] HCASL 259. It is therefore unnecessary to deal with that part of the appeal related to proceedings in the High Court.
Reasons for judgment – 22 and 23 October 2009
There were a number of different applications to be dealt with during the October proceedings. Murphy J explained his management of the proceedings thus in his reasons:
14.The wide ranging nature of the applications, the discursive and difficult-to-follow affidavit material, and the self-represented status of the maternal grandmother, have led me to attempt to deal with the applications one by one.
15.Although, obviously enough, assertions and counter-assertions in respect of each of the separate applications are not easily compartmentalised. I decided, primarily for the above reasons, to make orders and deliver reasons as the proceedings progressed.
16.I indicated during the course of those proceedings that I would consolidate, in one set of edited reasons, the basis for making each of the orders which I made during the course of the proceedings on each of 22 and 23 October.
17.I do so for the specific purpose of making it easier for all parties, three of whom ([Mr Hindle] and each of [Mr and Ms Coleman]) represent themselves and also because [Ms Coleman] has indicated a wish to appeal some, if not all, of the orders made.
18.It seems to me that it would be helpful and convenient, in the event of an appeal, for the Full Court to have a consolidated set of reasons (although, of course, it may be necessary for the parties and for the Full Court to look at the transcript lying behind those reasons in due course).
For similar reasons, his Honour delivered one set of orders which “delineate between each of the respective applications made and the orders made by me in respect of them.” (Reasons, [19])
In the judgment Murphy J identified the ten applications of the grandparents which required determination. These were:
· An application for contravention and an “Amended Application for Contravention” filed by the grandmother;
· Applications by the grandfather to intervene in both the contravention proceedings and the substantive proceedings;
· An application by the grandmother for a recovery order;
· An application by the grandmother for a stay of orders made by Murphy J on 29 April 2009 pending appeal;
· An application by the grandmother that there be a stay of the 23 October 2009 proceedings, such an application being made “before the proceedings have even commenced”;
· An application by the grandmother that the “Independent Children’s Lawyer be ‘punished’ pursuant to section 121 of the Act”;
· An application by the grandmother that the Independent Children’s Lawyer be removed;
· An application seeking an order that the Department provide to the grandmother the enrolment information of one of the children; and
· An application by way of response “seeking to have all of the respondents declared vexatious” and an “order that the mother be ‘charged for perjury’ and an application for the mother’s solicitor to be dismissed”.
In addition, there was also an application filed by the mother that the grandmother be “declared vexatious” and an application for interim parenting orders.
The grandmother appeared by telephone having informed the judge’s associate that she was too ill to appear in person. Leave was granted.
The applications to intervene
Murphy J first dealt with the grandfather’s application to intervene in the contravention proceedings. The first application, titled “Notice of Intervention by Person Entitled to Intervene” and dated 24 September 2009, contained the assertion that the grandfather ought to be a party to the contravention proceedings under s 92A of the Act and r 6.02(2)(c) of the Family Law Rules 2004 (“the Rules”).
After reading the affidavit in support of this application and hearing the grandfather’s submissions, Murphy J said:
There is not one scintilla of evidence contained within that affidavit that could justify his intervention in the contravention proceedings. It does not refer to any matters, the subject of the purported contravention charges. And the matter raised by him pursuant to section 92A of the Act, which deals with substantive issues and relating to the best interests of the children, has no relevance to the application for contravention, in which he seeks to intervene. For those reasons, I dismiss the application to intervene in the contravention proceedings.
His Honour made the same references to the absence of evidence in paragraph 41 of his judgment.
With respect to the application to intervene in the substantive proceedings, his Honour noted:
44.It seems to me that, for the reasons advanced by [Mr Coleman] in respect of the application to intervene in the contravention proceedings, that his application to intervene in the substantive proceedings ought be granted.
After considering the submissions made on behalf of the Department and by the Independent Children’s Lawyer in opposition to the application to intervene, his Honour determined that it was “appropriate to grant leave…for the paternal [sic] grandfather to intervene in the substantive proceedings”.
The contravention applications
Murphy J then dealt with the grandmother’s contravention applications. The mother was the respondent to the first application, filed 14 February 2008. The mother, the father and members from the Department were the respondents to the second application, titled “Amended Contravention Application” and filed 6 July 2009. His Honour first explained the nature of contravention proceedings, and particularly the application of the rules of evidence. He said:
The process is a distinct process from the other processes that occur in respect of proceedings in this court. In particular, they are separate from proceedings with respect to orders relating to children which now must have regard to division 12A of the Act, all right? …
…[I]t is important for you to understand that the rules of evidence apply in respect of these applications, and because potentially, at least, punishment might flow from an established contravention … I intend to apply the rules of evidence strictly. It is entirely appropriate that I should do so, all right.
…
One of the things you need to understand, then, is that the evidence I shall rely upon in support of the applications for contravention is the evidence which is strictly admissible relied upon by you. … [Y]ou need to understand that if you rely on an affidavit filed by a certain person … then the whole of the evidence in that affidavit by that respondent goes in, in this application.
His Honour reiterated that it was “necessary” for the grandmother to “prove on the balance of probabilities” that a contravention had occurred. He further explained that:
I do not intend to provide you with any advice in respect of your applications for contravention. You have now appeared before me on at least four occasions, and I have told you at each and every one of those occasions that it is not appropriate for me to give you advice. I certainly do not intend to give you advice in respect of an application, one of the ramifications of which might be the punishment of individuals.
With respect to the first application, filed 14 February 2008, the contravention alleged was:
The Respondent without reasonable excuse [has contravened] paragraphs (2,3) of the Order under the Family Law Act 1975, dated 21st. October, 2002, by removing the 2 children from the care and control of the maternal grandmother without permission and the 2 childrens [sic] whereabouts and safety is still unknown.
In dismissing the application, Murphy J said:
55.It seems to me that the contravention there described contains insufficient particularity by which any respondent to such application could meet the charge made against them.
56.I would therefore dismiss the application for contravention filed 14 February 2008 on that basis. However, and in any event, the grandmother indicated that the Amended Application for Contravention filed 6 July 2009, incorporates the incident asserted to lie at the heart of that contravention.
57.In those circumstances, it is not appropriate that two applications for contravention should proceed in respect of the same incident. Also, the application filed 14 February 2008, whilst purporting to relate to the same incident as that to which the Amended Application filed 6 July 2009 refers, contains a different time for the contravention. Both cannot stand, when it is said by the maternal grandmother that they relate to the same incident.
The second contravention application, filed 6 July 2009, alleged three contraventions. Those were:
1.On the 12th February 2008, [the mother and the Department] with the assistance of [the father], without reasonable excuse or lawful authority did remove the 2 subject children from the guardianship and care of the [grandmother] in contravention of Orders made on the 21st October 2002, under the Family Law Act 1975;
2.On the 19th February 2008, [the mother and the Department] with the assistance of [the father], without reasonable excuse or lawful authority did remove the 2 subject children from the guardianship and care of the [grandmother] in contravention of Orders made on the 21st October 2002, under the Family Law Act 1975;
3.On the 19th February 2008, [the mother and the Department] with the assistance of [the father], without reasonable excuse or lawful authority did remove the 2 subject children from the guardianship and care of the [grandmother] in contravention of Recovery Orders made on the 14th February 2008 by Federal Magistrate Wilson under the Family Law Act 1975.
During the proceedings, the grandmother indicated that she wished to rely on four affidavits. Counsel for the mother submitted that “the affidavits relied upon are, in large parts, not relevant, confusing, and nonsensical, [and] do not deal with … the subject matter of the contravention itself”.
Murphy J dealt with the evidence upon which the grandmother wished to rely. His Honour made findings as to the probative value of such evidence and, for the most part, found the affidavit material irrelevant to the contravention application. He determined:
65.As a result of those rulings, the evidence relied upon by the maternal grandmother in support of her application for contravention, consists of paragraph 40 of an affidavit filed by the mother on 17 June 2008 and paragraphs 1, 2 and 5 of an affidavit filed by her on 14 February 2008.
Counsel for the Department relied upon an affidavit of a Departmental officer, Ms F. In that affidavit, Ms F deposed to the fact that a child protection order was made on 12 February 2008, copies of which were annexed to the affidavit.
Wilson FM made a recovery order on 14 February 2008 in the grandmother’s favour. As Murphy J stated in his reasons, this order was apparently made “in circumstances where there was an existing state, ‘child welfare law.’” After setting out the provisions of s 69ZK, his Honour said:
74.…In my view, a recovery order is caught by … s. 69ZK.
75.If that is right, then what is clear from [Ms F’s] affidavit is that the order made by Wilson FM on 14 February 2008 was ultra vires. At that time there was an order made under a child welfare law, within the meaning of section 69ZK, and His Honour did not have jurisdiction to make the order which he made on 14 February 2008.
76.I hasten to say that, by reason of the highly confused factual circumstances pertaining at that time, it is far from clear that Wilson FM was ever made aware of the existence of the order made pursuant to the child welfare law two days previously. Indeed, it is noted in the affidavit of [Ms F] that the face of the order made by Wilson FM records that [Ms Coleman] was the only party present upon the application for recovery orders.
Having so concluded, his Honour found that “a person cannot be in contravention of an order which is made ultra vires” (as asserted in paragraph 3 of the application) and therefore he struck that part out.
With respect to the first alleged contravention, Murphy J found that an examination of the evidence indicated that there was “no admissible evidence before [him] that any removal took place by anyone on the day alleged” and he dismissed that part of the application.
With respect to paragraph 1 of the contravention application, Murphy J said that it was clear that the “children came into the care of the Department by reason of actions taken by them”. He continued:
92.The placement of the children with the Director of the Department was ordered by (State) Magistrate Baldwin on 12 February 2008. Inferentially - and I say inferentially because it is by no means clear from the affidavit material adduced by the mother in support of the application, but seems clear from the affidavit sworn by [Ms F] - the children came into the Department’s care by reason of that order.
93.It seems to me that the officers of the Department were plainly acting in accordance with the lawful authority granted (and pursuant to obligations created) under the Child Protection Act 1999 (Qld). It seems plain on the face of the material that the four named individuals were ‘authorised officers’ within the meaning of that State Act and that any ‘removal’ as asserted in the alleged contravention occurred by reason of the lawful authority granted to those people, and the Department, pursuant to state legislation.
Having so found, his Honour dismissed that paragraph and whole of the amended contravention application.
Application for “punishment” of the Independent Children’s Lawyer
In an application filed 16 June 2009, the grandmother sought an order that the Court refer the Independent Children’s Lawyer to the Department of Public Prosecutions “for punishment” for alleged breaches of s 121 of the Act. She also sought his removal for “incompetence and inappropriate behaviour”.
With respect to the first point, the grandmother complained about the fact that Mr Carter, in his capacity as Separate Representative for the two children, had provided documents to the Supreme Court of Queensland when those documents were not used by the Court.
In dismissing this part of the application, Murphy J referred to the specific provisions of s 121 and found that the provision of documents to the Supreme Court was not a “‘dissemination’ to, relevantly, a ‘section of the public’” within the meaning of s 121(1). He also noted that the “circumstances of this case are plainly caught by the exception” contained within s 121(9)(a), being a communication to “persons concerned in proceedings in any court.”
With respect to the second part of her application, it emerged that the grandmother’s complaint arose from inappropriate pictures she had apparently received attached to emails from Mr Carter. She objected to some of the material relied upon by Mr Carter in response, in particular the late receipt of some of the affidavits relied upon by him and his reliance on two expert witnesses. Murphy J adjourned that aspect of the application until the next day to afford the maternal grandmother time to read material.
When Murphy J returned to consider the second part of this application on 23 October 2009, the grandmother requested a further adjournment. When asked how she was disadvantaged if proceedings continued, she said:
[MS COLEMAN]: Well, I am disadvantaged because we were in court yesterday, so technically the affidavits were not received until late yesterday afternoon. And, then, basically I am disadvantaged by the fact that because he had 11 weeks in which to file documents and serve documents, he has given them to me at a position whereby I am not able to prepare a submission to dispute or to counteract any of those documents.
HIS HONOUR: And what do you have in mind as being what you would want to do in response to those six affidavits that you have referred to?
[MS COLEMAN]: I have to research certain evidence. I just cannot pick it up off the top of my hat. …
Mr Carter objected to any further delay. When questioned by his Honour as to the reason for the delay in filing his material, he explained that it “was [his] understanding that Ms Coleman was to discontinue her application”. Annexed to his affidavit filed 15 October 2009 was a copy of an email from the grandmother to Registrar Turner which stated:
After discussion with Mr. Carter, who was not present on the 17th March 2009 and who did not understand fully what was meant by the pictures that were received by me with e-mails that came predominately from his company e-mail. I am intending on advising you that I will not be proceeding with the Application to have him charged by the DPP for breach of Sec. 121 or to have him removed as Solicitor for the 2 subject children.
I take it that the easiest thing to do would be to wait until the 22nd October, but also decided it only fair to let you and His Honour know of my intentions. …
Although he could not say exactly when, Mr Carter explained to Murphy J that it “became clear to me that her position had changed” sometime around the 9 October 2009, at which time he began preparing his material “in earnest”.
With respect to his reliance on expert evidence, Mr Carter submitted that r 15.51(2) of the Rules allowed him, as the Independent Children’s Lawyer to engage an expert of his choosing. He also acknowledged that he “respect[ed] the fact that [the grandmother] might herself want to put on some expert evidence”.
In any event, as was clear from the transcript and the reasons, the grandmother indicated that she would be content with an assurance from Mr Carter that “he would do everything within his power … to ensure that no such images were communicated to [the grandmother]”. After Mr Carter made that assurance and it was accepted by the grandmother, Murphy J dismissed that part of the application.
It is important to repeat here Murphy J’s comments at paragraph 145 of the reasons:
I am at pains to emphasise that truth and integrity of the sworn evidence of Mr Carter and his staff is maintained by him and the assurance, although given freely and in expansive terms, is given without the slightest admission of any wrongdoing or any intentional – or inadvertent – behaviour causing, or permitting or facilitating the dissemination of the alleged material.
Recovery Application
The grandmother filed a recovery application for the two children on 18 August 2009. However, as Murphy J correctly noted, the “uncontradicted facts … are that the two children … are, consequent upon earlier intervention by the Department … and a court order made in a State court under a ‘child welfare law’, in the care of the mother”.
In dismissing the recovery application, his Honour stated:
112.Mr Selfridge, who appears as counsel for the Department of Communities (Child Safety Services), this morning informs the court that, if this court contemplated placing the children in the care of the maternal grandmother (consequent upon the cessation of the State order), the Department would take action under State legislation by seeking to continue the State order.
113.Further, and in any event, the children have now been in the care of the mother, on any view of the uncontradicted evidence, for a considerable period of time. Whilst perhaps not strictly applicable to an application for a recovery order, if there was a proper foundation for it which, in this case there is not, "best interests considerations" nevertheless play a part here and there is no evidence before me which would remotely satisfy me that it is in the best interests of these children on an interim basis to make the order sought by the applicant grandmother.
Application for stay of 29 April 2009 orders
The grandmother filed an application on 2 June 2009 seeking a stay of the orders made on 29 April 2009. This was filed pending the hearing of the appeal before this Court.
The application was dismissed. Murphy J found that none of the evidence filed by the grandmother in support of the stay application contained any basis for granting the stay. He said:
117.Further, and in any event, an important consideration in respect of whether a stay pending an appeal ought be granted is the merits of the appeal. I note that the appeal here is in respect of interim procedural orders made by me. Particular considerations apply to appeals from interlocutory orders. By reason of that fact alone the appeal enjoys limited prospects of success.
Application for information from the Department
By an application filed 6 August 2009, the grandmother sought the provision of the school enrolment information of the eldest child from the Department. As emerged in proceedings, the grandmother wanted to know, for “cultural and religious” reasons, whether the child was attending a Catholic school. As she explained to Murphy J:
[The child] has been very interested in his religion and I am objecting to the fact that, because the Department of Child Safety have become involved, he is suddenly stuck in a State school.
Counsel for the Department objected to the grandmother’s application. As he succinctly said “if we disclose the nature of whether [the school] is either/or, it would, in effect, determine which school they are at.” He further submitted that he believed it was a “deliberate ploy” by the grandmother to determine which school the children were attending. In that respect, he referred to parts of Mr M’s report.
The grandmother objected to the reliance placed on Mr M’s report as she claimed that she had not received it. However, as is evident in the transcript, Mr Carter submitted that he had emailed the report and the grandmother admitted that she had deleted an email from Mr Carter, although she did not know whether that particular email had the attached report.
In any event, Murphy J noted that he had not “for the purposes of reaching this decision … had regard to that report.” He further made directions which would ensure that the grandmother received a copy of the report before the second day of proceedings. This issue gains some significance in the grandmother’s appeal, as I will outline below.
His Honour said:
126.I have, as I indicated earlier, dealt with this matter on many occasions since January of this year, and have delivered at least two earlier sets of ex tempore reasons in and about the facts and circumstances of this complex case. In circumstances where, at some point - if the stream of interim applications in this matter would only cease - the matter will soon proceed to a final hearing, it seems to me entirely inappropriate to arrive at a decision about the issue the subject of this application.
127.The resolution of it requires findings directly relevant to the children’s best interests. Mr Selfridge submits that, potentially, there is a risk to the children associated with time between, or contact or communication between, the grandmother and the children. That assertion, together with all other aspects of the children’s best interests, requires a trial and the findings emanating from it.
128.The restrictions inherent in interim decisions in this court are well known and have been commented upon by earlier decisions of the Full Court. Not infrequently, it is necessary to make orders within those confined circumstances by reason of the circumstances then pertaining. But, in my opinion, this is not such a case. I can see no evidence which persuades me that such a decision needs to be made ahead of a trial and I am not … prepared to make the order sought by the maternal grandmother on an interim basis.
Oral application that Murphy J be disqualified for bias
At the commencement of the second day of proceedings, the grandmother made an oral application that Murphy J disqualify himself for bias. She had previously alluded to such an application on 22 October 2009, when she said:
… [W]ith your appeal coming up on 18 November to have you removed from the case you have deliberately tried to rush this case through to close it down, and I will, therefore, be appealing any decision you make. Because it is quite obvious, given this morning’s service, that you do not intend on letting me have any say in your court. … Well, quite obviously, you have tried and convicted me from day one.
It is clear from the transcript that the thrust of the grandmother’s case for disqualification was that Murphy J’s failure to grant the grandfather leave to intervene in the contravention proceedings meant that evidence relevant to those proceedings was not before the Court and therefore the grandmother believed she had been treated unfairly. None of the other parties made any submissions in relation to this application.
In dismissing the application, Murphy J noted that “a judge is not biased merely because he or she disagrees with what is being submitted”. He further noted that the matters raised by the grandmother were “matters for appeal” rather than grounds for judicial disqualification and:
… in any event, it seems to me that none of the matters raised by [Ms Coleman] are matters which would cause a reasonably informed objective observer to the proceedings to consider that I had brought other than an appropriately open and objective mind to the adjudication of the proceedings before me.
Application for stay of October proceedings pending High Court appeal
By the application filed 6 August 2009 which sought information from the Department, the grandmother also sought:
That the Court places a “STAY OF PROCEEDINGS” on the interim hearing of the Respondents Application in Support of Interim Custody Orders for the Second Respondent on 23rd October 2009. To preserve the integrity of both the hearing of Appeal B25 of 2009 in the High Court of Australia, and also of N42 of 2009 in the Full Court of the Family Court of Australia.
The grandmother had filed an application seeking special leave to appeal against the decision of the Queensland Court of Appeal.
The mother’s application for interim parenting orders was due to be heard on 23 October 2009 by Murphy J. Thus, the order sought by the grandmother was for a “stay” of proceedings that had not yet occurred.
I have already referred to the decision of Heydon and Bell JJ dismissing the grandmother’s application for special leave to appeal.
At the hearing on 23 October 2009, after noting that the application in its original form was likely to be incompetent, Murphy J “reframed” it on the grandmother’s behalf so as to view it as an application seeking an adjournment of the interim parenting proceedings. This was done after discussion with the grandmother and with the consent of the parties.
In support of her application, the grandmother referred to s 69ZK(3) of the Act. She submitted that because her application to the High Court related to an order made under state law, the Family Court did not have jurisdiction to make the interim parenting orders sought by the mother. She further complained that his Honour was “trying to gazump the Full Court” by making a decision which would render the utility of her appeal nugatory.
As Murphy J correctly identified, the mother’s application for interim parenting orders was to come into effect after the child protection order had elapsed, falling within the purview of s 69ZK(1)(a). He further noted:
159.Further, and in any event, it needs to be observed that the success of an application for special leave and, ultimately, a successful appeal to the High Court of Australia, would be to declare, as I gather it, the actions of the Department and/or orders made under State legislation invalid. If that was to be successful, then proceedings properly instituted in this court would have no jurisdictional impediment. This court would be able to deal with all issues relating to parenting proceedings, there being no, then, valid order with respect to state legislation.
160.Further, it seems to me that the appeal currently pending in the Full Court of this court, due, I gather, to be heard on 18 November, is in respect of orders made by me dismissing the applications in a case earlier filed by the mother. I can see no evidence, and no submissions have been addressed to me, which would indicate that the continuation or, rather, the interim parenting proceedings going ahead would in any way impede that appellate process.
His Honour was clearly correct.
Mother’s application that the grandmother be “declared vexatious”
On 6 October 2009 the mother filed an application which sought to have the grandmother “declared vexatious” and an order that the grandmother be prevented from instituting further proceedings without leave of the Court.
Counsel for the mother referred Murphy J to the decision in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 and noted that “a relevant consideration is whether the proceedings are, in fact, vexatious, not whether they have been instituted vexatiously.” It was further submitted that the many applications brought by the grandmother:
… disclose no reasonable cause of action, were supported by affidavits containing allegations that were scandalous, and thereby annoying or embarrassing, and were so obviously untenable with no hope of success that they are prima facie doomed to fail.
The father adopted submissions made by counsel for the mother. Counsel for the Department made one submission about the significant costs associated with meeting the grandmother’s various applications.
It is clear from his reasons that Murphy J was cognisant of the very serious nature of an application to declare proceedings vexatious and order that a person shall not, without leave, institute proceedings. He said:
177.In my view, the question which needs to be asked is, are the current proceedings attended by a lack of bona fides on the part of the grandmother, or can they be described as patently lacking in substance or ‘utterly hopeless’ or some such similar epithet. It seems to me that proceedings designed to prevent the continuation of frivolous or vexatious proceedings, can be viewed as a subset of the prevention of the abuse of the court’s process – proceedings which, as it were, mock or pay scant regard to the important democratic right to pursue legal remedies in properly-constituted courts.
178.That right underpins an important corollary to arguments in support of any such application. In this democracy, parties have a right to pursue bona fide legal remedies by reference to the courts. That bona fide right extends across all such causes of action as might be reasonably available to that person. The fact that those various causes of actions are, as a result of Australia’s federal system, confined in some respects to State jurisdiction, and, in other respects, to federal jurisdiction, and in yet other respects to specific courts within State jurisdiction, might be the cause of legitimate frustration, but it does not alter that fundamental right enjoyed by all citizens of this country.
179.It seems to me that the considerations just referred to are powerfully important in considering the granting of the sort of orders sought by the mother. To deny – or significantly restrict – the right of access to the courts of this country, is a very serious matter, and should not be entertained except on very strong evidence. It is, in my view, partly at least, for that reason why courts of high authority have emphasised the necessity to establish lack of bona fides or futility or absurdity, or matters of that type, prior to making such orders.
His Honour noted that the sheer number of applications brought by the grandmother, and the fact that such applications involved material which was “discursive and often irrelevant to the specific issue”, could impact on whether proceedings are frivolous or vexatious. He continued:
181.But, in my view, great care should attend a finding to that effect, in circumstances where, however imprecisely they might be expressed (by a self-represented litigant), are, nevertheless, an expression of a sincere pursuit of a legitimate ‘cause of action’ and what that person perceives to be justice.
Murphy J noted that the substantive proceedings concern the best interests of the two children, who had lived with the grandmother for a period between 2002 and 2008, before their removal by the Department. That fact is “a highly relevant matter in respect of the ultimate issue to be made at a trial about [the children’s] best interests”. His Honour continued:
188.… I have no doubt that, right or wrong, justified or not (each of which will be undoubtedly significant matters to be determined at a trial) [the grandmother] is sincere in her perceptions of what is in the children’s best interests and in the pursuit of what she considers to be appropriate remedies. Whether or not, ultimately, a court will agree with her, is an entirely different matter altogether.
Accordingly, Murphy J dismissed the mother’s application.
The grandmother’s response to the mother’s application, filed 21 October 2009, sought orders that the mother’s application “be declared an abuse of the court’s process” and that it be “struck out as incompetent and without merit”.
For similar reasons to those set out above, Murphy J dismissed this application. At the commencement of his giving oral reasons, the grandmother hung up the telephone and withdrew from the hearing, after calling his Honour “corrupt” and labelling the Court a “kangaroo court”.
Application for interim orders
The application which Murphy J determined on 23 October 2009 was the mother’s application for interim parenting orders, filed 17 June 2009. At the outset, the grandmother made an oral application for an adjournment. Her reasons for seeking an adjournment were that she had only received Mr M’s report the previous day and that she was suffering from a medical condition.
Murphy J refused the grandmother’s application for an adjournment. First, he stated that he was “not persuaded that she [was] in any way disadvantaged by reason of that medical condition”, as evidenced by her conduct throughout the two days of proceedings.
Secondly, Murphy J noted that an application for interim parenting orders are “not proceedings in which findings about contested factual matters can be made”. He referred to the decisions in C and C (1996) FLC 92-651 and Goode and Goode (2006) FLC 93-286 and said:
207.Relevantly, the nature of the hearing is a curtailed one and inherent in it is a restriction on the capacity of the court to make findings of fact save in very limited circumstances. Indeed, the court is directed to less contentious facts, issues not in dispute, existing care arrangements and current circumstances and the parties’ respective proposals.
Accordingly, the judge was “not persuaded” that any injustice was caused to the grandmother by hearing the interim proceedings. He further observed:
217.Amidst the extraordinary number of factual allegations and counter-allegations made by or on behalf of each of the parties, what is abundantly plain to me is that these proceedings need to be heard and determined at the earliest possible time, so that this litigation involving these two still young children can mercifully be brought to an end.
The judge’s reliance on Mr M’s report is one of the key issues raised by the grandmother in the appeal, and I will deal with this topic below in the context of her submissions.
Murphy J then considered the interim parenting application in considerable detail with reference to s 60CC of the Act. The grandmother’s grounds of appeal do not directly challenge his Honour’s findings in this respect. However, for completeness, I will briefly outline some of his key conclusions.
It is evident that at the time of the interim hearing, a successful co-parenting arrangement had been operating for some eighteen months between the mother and the father. Such arrangements “have occurred by consent and mutual cooperation between the mother and the father”. Furthermore, counsel for the Department submitted that the children had “thrived” in the care of the mother.
All parties, with the exception of the grandparents, agreed on what interim parenting orders should be made.
With respect to the Family Report, Murphy J observed that Mr M had been making observations of the family “for some time”. Of the report, Murphy J observed:
259.For reasons about which I propose to make no findings, and in circumstances about which I propose to make no findings, in the context of these proceedings, the maternal grandmother has not attended for interview by [Mr M], as requested by the Independent Children’s Lawyer, and has been the subject of orders made by me on 29 April 2009.
260.Notwithstanding that absence, by reason of the significant connection that [Mr M] has had, in a forensic sense, with this family, and his observations over a period of time, and the fact that [the eldest child], in particular, is now in his teens, it seems to me that I should attach significant weight to the opinions of [Mr M] in these interim proceedings.
261.In very broad terms, the report of [Mr M] can be seen as making positive remarks about each of the mother and father and the interactions of the children with them.
262.Significantly, as it seems to me, [Mr M’s] report can also be seen as recording a positive attitude on the part of the father towards the mother and a positive attitude on the part of the mother towards the father. The report is redolent of the mother and father being able to co-parent in a cooperative, under-stated and intelligent way. If that continues to be the case, in my view, it can only be of great benefit to the children.
His Honour identified two key considerations to which he had regard:
274.The children, in my view, will clearly benefit from having a meaningful relationship with both of their parents, and I have no doubt that this is likely to best be promoted in circumstances where the children continue to live with the mother.
275.A second, and equally important, primary consideration is the need to protect children form [sic] physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence. I am acutely aware that the facts and circumstances surrounding the assertions of risk that founded the action by the Department in February 2008 are the subject of significant dispute by [the grandmother]. She was at pains to outline, at very considerable length, in her submissions exactly what her position was in respect of that. Ultimately, this is a matter for trial.
276.Equally, I am cognisant of the fact that the mother makes assertions that the children are at risk if they spend time with their grandparents or, indeed, have any contact with them.
277.Again, it is important to emphasis [sic] that, in respect of such an important matter as risk to a child from whatever harm might be asserted, that the court proceed cautiously and conservatively. In the murky facts and circumstances of this case, on an interim basis, I propose to place significant reliance upon both the report of [Mr M] and the assessments of risk undertaken by professional officers within the Department of Communities (Child Safety Services) who are charged with statutory responsibilities in that respect.
278.There is unanimity about the position adopted by each of the Departmental officers and by [Mr M]. There is risk to the children, they each assert, if the children were to be placed into the care of their maternal grandparents, or if they were to spend time with the maternal grandparents.
279.[Mr M] is quite specific about the children’s view in his report, and he is quite specific in ultimately recommending that the children live with the mother, see their father in accordance with the agreement reached between the mother and father, and neither spend time with, nor communicate with, the maternal grandparents.
280.On the current state of the evidence before me, again emphasising the interim nature of these proceedings, I can see no benefit to the children in them living with their maternal grandparents or spending any time with them.
His Honour also considered the submissions of the grandparents, but was “not persuaded … that any [c]onsiderations relevant to the best interests of these two children should result in them either living with the maternal grandparents, or spending any time or communicating with them.” (Reasons, [292])
At the conclusion of his lengthy and considered reasons, his Honour determined that, upon the cessation of the orders under state welfare law, the children live with the mother and spend time with the father as agreed. He ordered that the children spend no time with the grandparents and that the grandparents were not to communicate with the children without leave of the Court. The judge did order that the children were permitted, and the mother should encourage them, to contact the grandparents should they express a desire to do so.
Submissions
At the appeal hearing, there was no appearance by the children’s father, the first respondent in the appeals. However, in a letter received by the Registry on 6 November 2009, the father advised that he wished to “support and adopt the arguments” of the second and third respondents.
There was no appearance by the fourth respondent, the grandfather. In a letter to the Appeals Registrar received the day before the hearing, the grandfather advised that he wanted his “Summary of Argument for the Intervener”, a document accompanying the letter, read by the Full Court. He also affirmed:
That I support the Applications and the orders sought by the Appellant in the Appeal proceedings.
I will first deal with the application by the grandmother to rely on further evidence in support of her appeal filed 12 November 2009. The evidence sought to be relied on included a transcript of the hearing before Murphy J of the grandmother’s stay application on 11 November 2009 and four affidavits filed in support of that stay application (two filed 3 November 2009, one filed 9 November 2009 and one filed 10 November 2009). All four affidavits were sworn by the grandmother.
In the supporting affidavit filed with her application to adduce further evidence on 12 November 2009, the grandmother deposed that she “required this affidavit evidence and the transcript of proceedings” because it would “show the ‘Perceived Bias’ of both His Honour and Registrar Turner of the 29th April 2009 and since towards [the grandmother] and [the grandfather]”.
This application is governed by s 93A of the Act, and I have regard to the principles espoused by the High Court in CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828, particularly at paragraph 109, where the Court held:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
There is nothing in this further material which would “demonstrate that the order under appeal is erroneous” and consequently I would dismiss this application.
The two appeals, as I have already observed, are similar in substance, being challenges directed at the impartiality of his Honour. During the hearing before us, the matters raised by the grandmother were repetitive and largely unhelpful. I will focus on her key arguments.
The grandmother submitted that there was some error in the manner in which her medical information was used in the interim proceedings. It was submitted that the mother was trying to prove to “the Court that [the grandmother] has a mental illness”. In particular, the grandmother objected to medical information which was provided to Mr M by one of the parties prior to the interviews.
I am not persuaded by this argument. There is nothing in Murphy J’s reasons to indicate that he attached any significance to the grandmother’s health. Furthermore, it is clear that his Honour was cognisant of her objections; order 2 of the orders of 17 March 2009 provided:
UPON NOTING THAT the Maternal Grandmother takes issue with the matters contained in documents forwarded to [Mr M]
IT IS DIRECTED THAT the Maternal Grandmother shall be at liberty to provide to [Mr M], ahead of any interview by him with her, such documentation as she considers appropriate, including her affidavit filed on 17 March 2009, so as to give to [Mr M] a picture of those medical and other matters which she considers relevant and accurate.
A second complaint of the grandmother concerned Murphy J’s reliance on Mr M’s report in determining the mother’s application for interim parenting orders. The grandmother submitted that the report “should not have gone ahead” without her participation. It was further submitted that Murphy J had said that he would not place any weight on the report after the grandmother had indicated that she had not had an opportunity to read the report during the hearing on 22 October 2009.
The grandmother did not attend the interviews with Mr M, despite the orders made by the judge on 17 March 2009. During the appeal hearing, the Independent Children’s Lawyer provided to us an exchange of emails between himself and the grandmother in relation to the dates for the interviews and the grandmother’s concerns about the existing domestic violence order.
It transpired that the Independent Children’s Lawyer had suggested that the domestic violence order could be varied with the consent of the parties so that the grandmother could attend the interviews without fear of prosecution. This was rejected by the grandmother by an email dated 24 June 2009.
With respect to the grandmother’s receipt of a copy of the report by Mr M, counsel for the Department, counsel for the mother and counsel for the Independent Children’s Lawyer each made various submissions on this issue and the somewhat unusual form of service adopted in this case.
The grandmother lives in rural New South Wales. She has elected to be served through a post office box and not her home address. As I understand it, there is also an agreement that each of the parties email her copies of the unsealed documents which are being sent by post. Email has been used throughout the history of this matter.
Counsel for the Independent Children’s Lawyer in particular made submissions about the service of the Family Report on the grandmother. An email dated 16 July 2009 was tendered as an exhibit during the hearing before the judge on 23 October 2009. This email indicates that a copy of Mr M’s report was emailed to all the parties on 16 July 2009.
Counsel further submitted that a copy of Mr M’s affidavit, which annexed the Family Report, was also emailed to the grandmother on the same day it was filed, being 19 October 2009. During the proceedings on 22 October 2009, the grandmother admitted that she had deleted an email from the Independent Children’s Lawyer received “the other day”, but she did not know if this was the email with the report attached. She said:
Yes, your Honour. I was about to say to you that I said to you earlier that I received quite a lot of emails from Mr Carter that have “Images” written and I dispose of them. So I do not know whether he sent me the report or not. I cannot guarantee either which way.
At that point in the hearing of 22 October 2009, Murphy J made directions for the Independent Children’s Lawyer to re-send the report to the grandmother by 4pm AEST.
During his consideration of the grandmother’s oral application for an adjournment on 23 October 2009, Murphy J made the following observations:
208.[The grandmother] submits, in support of her application for an adjournment, that it is necessary for her to, ‘supply a transcript of a taped interview with [Mr M].’ I cannot see how that can be relevant save in circumstances where [the grandmother] would make submissions as to credibility or findings of fact in respect of the evidence in [Mr M] (and perhaps others).
209.Moreover, she herself says, during discussions on this topic, that [Mr M’s] report is, ‘substantially a carry over of his affidavit from last year.’ Accordingly, by her own words, [the grandmother] acknowledges that the matters discussed by [Mr M] in his most recent report, are, largely, a repetition of matters – or a further amplification of matters - outlined by him in a report which is now some twelve months old.
210.Furthermore, the later report from [Mr M] has been compiled in circumstances where [the grandmother’s] refusal, or failure, to attend at interviews with [Mr M], has been the subject of earlier interim proceedings decided upon by me and the subject of earlier material.
Clearly the grandmother had received and read a copy of Mr M’s latest report by the time of the hearing of the mother’s interim parenting application. Although it is unfortunate that she may have only received a copy the day before, this was not the fault of either the Court or the Independent Children’s Lawyer.
A third matter raised by the grandmother concerned a letter dated 28 July 2009 sent from the Department addressed directly to Murphy J. The grandmother submitted that this letter was evidence of “private communication” between the judge and a party which raised an apprehension of bias.
Counsel for the Department apologised for the letter being addressed directly to his Honour and acknowledged that all correspondence should have been addressed to Murphy J’s associate. He explained that the orders of 15 July 2009 required the grandmother to serve on the parties’ four applications within seven days, and any non-compliance of service would lead to the dismissal of the applications. Mr Selfridge submitted that the letter from the Department merely made enquiries about the dismissal of the applications in order to “avoid incurring unnecessary legal costs”.
Counsel for the Department provided us with a copy of a letter dated 3 August 2009 from Murphy J’s associate addressed to all the parties, which attached a copy of the letter from the Department. He submitted that this indicated that his Honour had dealt with the matter in an appropriate manner and no apprehension of bias could arise from the correspondence.
I am not persuaded that the letter from the Department addressed to Murphy J raises an apprehension of bias. As was indicated during the appeal hearing, it is important that all boundaries are observed and there should be no direct communication between a party and a judicial officer. This is especially so where one party is self-represented. However, the nature of the communication in question, and the manner in which his Honour dealt with it, fall short of the test raised in Ebner and Johnson.
Applications filed 4 December 2009 and 17 February 2010
In an application filed on 4 December 2009 the grandmother seeks to place “fresh evidence” before us on the appeal. This application was filed after the hearing. It was said by the grandmother in her affidavit that this evidence had not been available to her at the time of the hearing of the appeal. The documents annexed, it is asserted by the grandmother, demonstrate that Registrar Turner falsely claimed that the grandmother made a death threat to her by telephone and that the children should immediately be returned to the grandmother. Other documents obtained from the police and transcripts of hearings in State Magistrates Courts are also annexed to her affidavit.
We have received submissions from the mother, the Department, the Independent Children’s Lawyer and the intervenor. The grandfather supported the grandmother’s application. It was submitted by the other three respondents that leave to adduce the further evidence should not be granted.
In my view, the submissions on behalf of the third respondent, the Department, succinctly explain why this application should be dismissed. An application for the costs of preparing these submissions was made.
None of the material filed in support of the 4 December 2010 application would render erroneous the procedural and interim parenting orders which are the subject of the appeal. Some of the material may be relevant to the final parenting proceedings.
In relation to the application filed on 17 February 2010 which seems to be an application for leave to issue a subpoena to Telstra, leave to issue a subpoena for the purpose of obtaining further evidence for an appeal is only granted in exceptional cases and I am not persuaded that this is such a case. The grandmother makes reference to the trial of this matter in paragraph 2 of the application. No doubt the application can be renewed before the trial judge.
Conclusions
I have above set out at considerable length the reasons for judgment of Murphy J, and where possible, have attempted to link them to the grandmother’s grounds of appeal. I did so because from those reasons and the extracts of the transcript above, it is clear that the test for establishing an apprehension of bias, as set out in Ebner and Johnson, have not been met by the grandmother.
In my view, as can be seen in the transcript and the various reasons, Murphy J demonstrated both restraint and considerable effort in dealing with a persistent and difficult litigant in person.
In relation to the other aspects of the two appeals it can be seen that they are in two categories. First, the various orders which I would describe as interlocutory and secondly those relating to the contravention applications.
It is unnecessary for me to say a great deal more about the first category other than to refer to the decisions in relation to discretionary judgments, especially those related to interlocutory orders. The orders made by Murphy J were within his power to make, correct on the evidence before him and entirely proper to do justice to all the parties.
In relation to the contravention applications, the reasons given by Murphy J demonstrate that he was utterly correct. The applications should have been dismissed.
It follows that the grandmother’s appeals should be dismissed.
Costs
At the conclusion of the hearing we heard oral submissions as to costs. The second and third respondents and the Independent Children’s Lawyer each made applications that the appellant pay their costs.
Section 117 provides that each party to proceedings under the Act shall bear their own costs unless there are circumstances that justify an order for costs. Subsection 117(2A) lists a number of factors which the Court shall have regard to in considering whether to make an order for costs.
Counsel for the third respondent submitted that although the Department is not legally aided, their involvement in these proceedings was an impost on public monies. The Independent Children’s Lawyer and the second respondent are both legally aided, at considerable cost to the public purse.
Counsel for the Department further submitted that the grandmother’s conduct in the proceedings also warranted an order for costs. In particular, he referred to the ill-conceived nature of the appeals and the protraction of litigation by the grandmother both in this Court and in state courts, almost entirely unsuccessfully.
I note that the appeal books for the second appeal were prepared by the Brisbane Registry at no cost to the grandmother. That appeal was heard within one month of the filing of the notice of appeal.
In my view, the proceedings before us were wholly unsuccessful. There was no merit in either of the appeals. Considerable public resources have been expended. Under these circumstances, I am of the view that it is appropriate to make an order that the grandmother pay the costs of the second and third respondents and the Independent Children’s Lawyer, to include the costs of the further written submissions provided in response to the application of the grandmother filed 4 December 2009.
THACKRAY J
I have had the benefit of reading in draft the judgment of May J in which her Honour has dealt with the complicated background to these appeals and the many complaints made by the appellant grandmother.
I respectfully agree with May J that the appellant has failed to demonstrate any appealable error on the part of Murphy J. I agree the appeal should be dismissed with costs in favour of the first and third respondents and the Independent Children’s Lawyer.
I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 5 March 2010
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