Collins and Ricardo

[2016] FamCA 996

FAMILY COURT OF AUSTRALIA

COLLINS & RICARDO [2016] FamCA 996

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings

FAMILY LAW – PRACTICE AND PROCEDURE – Recusal

APPLICANT: Mr Collins

RESPONDENT: Ms Ricardo

FILE NUMBER: SYC 4959 of 2009

DATE DELIVERED: 27 October 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 27 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self represented

COUNSEL FOR THE RESPONDENT: Self represented

Orders

1. The application by the father that these proceedings be transferred from Cairns to Sydney as sought in the Application in a Case filed by him on 21 October 2016 is dismissed.

2. The application by the father that the Honourable Justice Carew disqualify herself as sought in the Application in a Case filed by him on 21 October 2015 is dismissed.

3. The Application in a Case filed by the father on 21 October 2016 is otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Ricardo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 4959 of 2009

Mr Collins

Applicant

And

Ms Ricardo

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me generally today as a result of this matter first being dealt with by me on 1 September 2016. 

2. It became apparent on that date that there were still many applications that had not yet been resolved for the parties.  Most importantly, there is an outstanding Initiating Application that was filed by the father on 21 January 2014 and amended by him on 28 July 2014 seeking to revisit the Order of the Honourable Justice Watts dated 12 January 2012 (“the primary parenting Order”).  That Order was made after a nine day hearing of this parenting matter. 

3. As a result of the number of outstanding applications, the parties were notified in writing that this matter would be listed today for the purposes of a case management hearing.

4. The parties were each invited to attend today’s hearing via video link.  A letter from the Court to the parties on 19 September 2016 advised them that the matter had been listed before me for a case management hearing, that the parties had leave to appear via video link and that they should contact the Cairns Registry to make those arrangements.  That letter further notified the parties that if they had difficulty attending the Cairns Registry in person, they could attend the hearing by telephone and the parties were invited to call the Cairns Registry to make such arrangements.

5. On 18 October 2016 it was confirmed to the parties by written correspondence that this was a case management hearing and that the purpose of the hearing was to establish which applications remain outstanding and to make further directions to progress the matter to trial.  Parties were again reminded that they had leave to appear by video link and that they should contact the Cairns Registry to make those arrangements.

6. I mark the letters dated 19 September and 18 October 2016 as Exhibit 1.

Application for Carew J to disqualify herself

1. On 21 October 2016, the father filed an application which inter alia seeks that I disqualify myself from hearing this matter and “from any proceedings with the father until the appeal is finalised inappropriate orders already made”.  The appeal to which he refers is the appeal against my Order dismissing his applications filed on 8 and 18 August 2016 due to his failure to appear at the hearing of those applications on 1 September 2016. 

2. In support of the application for disqualification, Mr Collins (“the father”) relies on an affidavit filed 21 October 2016 and at paragraph 13 under the heading ‘Application for Justice Carew to disqualify herself from further proceedings’ deposes as follows:

   There is already one appeal on foot over Justice Carew’s ill thought out orders and demands on the applicant to attend Brisbane courts.  Justice Carew will not allow the applicant to attend the Brisbane Registry by phone having already rejected two applications to do so.  It is the only option for the applicant.  It is my application that Justice Carew disqualify herself until completion of this appeal.

3. Under another heading, ‘Basis of appeal’ the father states:

   a) Brisbane Registry has no right to conduct the proceedings under the current orders;

   b) Justice Carew’s setting down of hearing dates not suitable to the applicant and clearly he cannot attend;

   c) Justice Carew conducting hearings without the applicant present.

4. It should be noted that no application came to my attention that the father appear by telephone at the hearing today.  Regardless, as it was to be a case management hearing he was contacted by telephone and is able to attend by telephone for this purpose.

5. He also consented to the hearing of the application that I disqualify myself today rather than having it put off to another time.

6. It is not readily apparent from the father’s material why it is sought that I disqualify myself.  I assume, and it has become clear from his submissions today, that the father asserts that there is an apprehension of bias on his part and that I will not bring an impartial and unprejudiced mind to the resolution of this case.

7. The law relating to an application that a judge disqualify herself or himself is well known.[1]  The test is whether a fair minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the case.  It is an objective test and the mere fact that a party considers the judge to be biased or has prejudged an issue is not in itself sufficient. 

   [1] See Edgar & The Official Trustee in Bankruptcy (2000) 205 CLR 337 at pages 344 - 349

8. There are two steps to be addressed in such an application.  The first requires the father to identify what it is said might lead me to decide a case other than on its legal and factual merits.  The second step requires the father to articulate the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

9. It would appear from the father’s submissions to me this morning that the basis upon which he submits I should disqualify myself relates to a decision to list his application filed on 8 August 2016 to a hearing date on 1 September 2016. 

10. The application filed 8 August 2016 sought significant variation to the primary parenting Order.  That Order provides for the father to have very limited time with his daughter, S viz four occasions each year for two hours at a time at a contact centre.  It is common ground that the father has spent almost no time with S since her birth.  The reason for this minimal contact is disputed between the parties.

11. In the father’s application he was seeking two periods of overnight time with S while he was holidaying with his wife in the Cairns area.  That presented a significant change to the primary parenting Order and would require considerable evidence and submissions from the parties to determine such a matter. 

12. On that basis, the matter came before me on 1 September 2016 and arrangements had been made for the parties to attend via video link from the Cairns Registry, knowing that the father would be in Far North Queensland at that time from communications he had with the Court.  Given the nature of the application, it was determined that a hearing by telephone was not a suitable means to hear the evidence and submissions that would be required to be presented to justify a decision for such a significant change in parenting arrangements.

13. I note the father’s indication to me this morning that he in fact was in Cairns and filed an application in the Cairns Registry on 29 August 2016, only a few days before the hearing of this matter listed for 1 September 2016.

14. On the basis of the material contained in the father’s affidavit and his submissions made to me today I can determine nothing that could constitute a basis for his application that I disqualify myself.  It appears that he is under the misapprehension that the proceedings are being conducted in Brisbane and that he is or will be required to attend the Brisbane Registry. 

15. As is apparent from the transcript of the proceedings on 1 September 2016, which have now been provided to each of the parties, the proceedings were conducted via video link between the Cairns and Brisbane Registries, as is this hearing, with the father attending by telephone. 

16. The fact that a date was set for the hearing of his application that was unsuitable for the father is regrettable but the Court cannot conduct its business by reference only to parties’ convenience.  This is a very busy court and the date allocated was one in reasonable proximity to the date of filing of his application and indeed earlier than it would otherwise have been in the normal course due to priority being given considering the orders the father was seeking in relation to him spending time with his daughter.

17. The father had and has had the opportunity to appear at another Registry that could be connected to the Brisbane and Cairns Registries via video link.  Indeed the father was advised that he could appear at the hearing on 1 September 2016 via a computer application called Cisco Jabber which connects a person to the Court via their own personal computer.  I include as Exhibit 2 in these proceedings that communication between the Court and the father in relation to the option of connecting by Cisco Jabber.

18. It is unfortunate for the father, the mother and particularly for S that the father’s application could not be properly heard on 1 September 2016 given his unavailability due to his holiday in that general area at that time.

19. For those reasons, I dismiss the father’s application that I disqualify myself.

Application for proceedings to be transferred to Sydney Registry

1. The father, in his application of 21 October 2016, also seeks that this matter be transferred from Cairns back to Sydney.  The parties each previously filed applications to transfer the matter from Sydney – the father sought that it be transferred to Wollongong and the mother sought that it be transferred to Cairns. 

2. The mother’s application was heard and she was successful in having the proceedings transferred to the Cairns Registry by Order of Rees J dated 17 September 2015.  The father appealed against that decision.  That appeal was unsuccessful and judgment was delivered in the appeal on 20 June 2016. 

3. Tree J, who regularly sits in the Cairns Registry, recused himself from hearing any applications arising in these proceedings because he was a member of the Full Court that determined the father’s appeal against the 2012 primary parenting Order in which the father was unsuccessful.

4. The case has been added to my docket for management but any final hearing will occur in the Cairns Registry.

5. The father, by his application filed 21 October 2016, has sought that the matter be transferred back to the Sydney Registry.  He relies on an affidavit that he has filed in support of that application. 

6. I do not find any basis upon which I could accede to that request and the father’s application to have the proceedings transferred is dismissed.

Application that there be no hearings of this matter in the Brisbane Registry

1. As has been addressed in these reasons, this matter is listed to the Cairns Registry and all substantive hearings will be dealt with at the Cairns Registry.

2. The father mentioned on several occasions during his submissions today that he would not be able to attend in person at the Cairns Registry for family report interviews or for the final hearing of this matter because of the financial burden such travel would impose on him and his family.

3. What is occurring at this point is the management of this matter and the costs associated with me travelling to the Cairns Registry for every procedural or interlocutory hearing are prohibitive for the Court.

4. As the matter has been transferred to the Cairns Registry, the final hearing of this matter will occur in the Cairns Registry.

All other matters in the application filed by the father of 21 October 2016 are dismissed

1. The father further sought in his application of 21 October 2016 that the matter be expedited and that my reasons for judgment from the hearing on 1 September 2016 be released so his appeal against that decision could be advanced.

2. The matter has been set down for a final hearing from 21 to 23 December 2016 in the Cairns Registry and the parties concede that the issue of expedition has therefore been dealt with.

3. The transcript of the hearing before me on 1 September 2016 has been released to the parties and as that forms my reasons for judgment, the appeal is able to advance as requested by the father and that element of his application has also been dealt with.

4. For those reasons the father’s application filed 21 October 2016 is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 27 October 2016.

Associate: 

Date:  27 October 2016