Cousins and Peake (No 2)

[2018] FamCA 729

FAMILY COURT OF AUSTRALIA

COUSINS & PEAKE (NO 2) [2018] FamCA 729

FAMILY LAW – STAY PENDING APPEAL – interim parenting decision.
FAMILY LAW – CASE MANAGEMENT – a number of outstanding applications.
FAMILY LAW – COURTS AND JUDGES – Recusal of judicial officer.

APPLICANT: Mr Cousins

RESPONDENT: Ms Peake

INDEPENDENT CHILDREN’S LAWYER: Ms Ham

FILE NUMBER: MLC 4941 of 2014

DATE DELIVERED: 29 August 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 29 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: No Appearance

SOLICITOR FOR THE APPLICANT:

THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Southern Family Law

Orders

1. I refer this matter to the Case Management Judge, to be fixed before another Judge on the issue of the mother’s application for the stay of my orders made on 31 July 2018.

2. I recuse myself from further dealing with this matter.

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 Cousins & Peake 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 MELBOURNE

FILE NUMBER: MLC 4941 of 2014

Mr Cousins

Applicant

And

Ms Peake

Respondent

AND

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

REVISED FROM EX-TEMPORE

Introduction

1. This matter comes before me as an urgent matter initiated by the mother’s application in a case filed on 7 August 2018 (“the mother’s application”) and her amended application filed today (“the mother’s amended application”).

2. The mother appears in person.

3. The father does not appear. At 6:48 am today the father sent an email to the Melbourne Case Co-ordinators stating[1] “I won’t be able to attend the hearing today as I have interstate travel for work. I note that [Ms Peake] only served me with her amended application at 11:55 p.m. last night”. The mother’s amended application is stamped as having been lodged on the Portal at 11.50 p.m. last night and, by operation of Rule 25.05(2) of the Family Law Rules 2004, is taken to have been filed today. The mother assures me that the father was punctually served with the application filed 7 August 2018 so I accept that the father has adequate notice of orders sought in the mother’s application filed 7 August 2018. No request been received from the father to appear by electronic means.

   [1] Exhibit “C4”

4. Ms Kristy Hams, solicitor, appeared in her capacity as newly appointed independent children’s lawyer without having had an opportunity to familiarise herself with the matter.

5. In the result, I have not stayed any orders and referred the mother’s application to the case management judge for fixing before a judge other than myself and have recused myself from further hearing the matter.  These are my reasons for doing so.

Background

1. The parents have been separated since 2015. Their sons are aged 10 and eight years respectively and live primarily with the mother and spend time and have communication with the father. The father has re-partnered and has young twins of that relationship. There is an extensive history of litigation in the family courts, now up to eight volumes of files. The parental relationship is very highly conflictual.

2. Final parenting orders were made, by consent, on 13 October 2015 by Judge Bender. On 11 April 2018 the mother filed an application to relocate the children’s residence to the United States of America where she has employment or the prospect of employment. On 2 July 2018 Johns J declined the mother’s application for an expedited hearing of the relocation proceedings. The mother also seeks sole parental responsibility. It is not certain when the mother’s relocation application will be heard.

3. The parents demonstrate a strong appetite for litigation. The mother, at least, seems not to grasp that continual applications brought to the Court are likely to delay, rather than facilitate, the hearing of the relocation application.

4. The immediate context of the mother’s application and the mother’s amended application is that on 31 July 2018:-

   a)I heard a contravention application by the father. I found that the mother had contravened orders in two respects and dismissed ten other counts.  By way of a consequential order, I required the mother to attend a post separation parenting course and enjoined her from denigrating the father by sending any further inappropriate correspondence to schools at which the children attend or have attended. I requested that the school remove such correspondence from the children’s files.

   b)I varied parenting orders in light of the mother’s impending absence from Australia, between 16 August and 16 September, and the controversy around the father saying that he could not attend to all of the child related tasks that the mother specified must be attended to whilst he cared for the children in her absence.

   c)I acceded to an application by the mother for a s11F assessment. The parents’ appointments are on 26 September 2018 with the assessment of the children to follow.

   d)I requested the appointment of an independent children’s lawyer which had also been a specific application of the mother. 

   e)The mother has appealed the Order on 31 July in all respects save for the appointment of the independent children’s lawyer.

5. My reasons for decision for 31 July 2018 appear as case neutral citation [2018] FamCA 671.

6. The mother cancelled her trip to the United States. Paragraphs 12 to 16 of my Order were time specific and, given that the mother remained in Australia between the dates specified, paragraphs 12 to 16 will never operate.

7. As directed by paragraph 9 of the Order made 31 July 2018, the Registrar informed the relevant schools of the non-denigration order and the request that prior denigrating communications received from the mother about the father be removed or from the children’s files. This was by correspondence sent on 6 August 2018 which is now in evidence as Exhibits “C1”, “C2” and “C3”. The mother’s application was filed the next day. Accordingly, the mother seeks a stay of an order which has already been executed.

8. Ms Kristy Hams, solicitor, was appointed as the independent children’s lawyer (“ICL”) on Friday 24 August 2018. Correspondence on the Court file indicates that the relevant documents were sent by email to Victoria Legal Aid on 3 August 2017. On 23 August 2017 my Associate sent a follow-up email to Victoria Legal Aid querying whether the request had been actioned. Today the mother said that the court had not actioned the request in a timely way. That is not correct.

Stay of orders

1. I have, in discussion with the mother, clarified that she does not, in fact, seek a stay of all orders made on 31 July 2018, apart from the order of appointing the Independent Children’s Lawyer.  The orders of which she does apparently seek a stay are paragraphs 7, 8, 9, 10 and 17. I consider that she may also want a stay of paragraph 20.

2. Paragraph 7 required the mother to attend a post-separation parenting program at an advanced level. I made provision for the s11F family consultant to have some input into the identification of an appropriate course for the mother, hopefully one which will provide insight into and strategies to ameliorate the impact on children of high conflict parenting relationships. The mother does not oppose going to a post-separation parenting program, but says that the father should also attend a post-separation parenting program, and she will not go unless he has to go too.

3. Paragraph 8 was a restraint by injunction against the mother from writing or in any way communicating with the proper officer of any school or organisation or activity in which the children are enrolled “in terms which are denigrating, belittling or insulting of the father or any member of the father’s household”. 

4. Paragraph 9 of the order provided for the Registrar to send to the proper officer of schools at which the children attend or have attended, a copy of the order and a request that they quarantine denigrating or belittling remarks by the mother about the father. As indicated, I am satisfied that that order was, in fact, acted on and implemented by correspondence sent from the court on 6 August 2018 (see Exhibits C1, C2 and C3) which was the day prior to the mother filing her application. The mother states that she wants a letter sent to the schools, saying that there is an appeal pending by her against the Order.  That was not an application of which the father had any notice so I will not make an order or direction in those terms. The mother is a vigorous correspondent. The mother did not identify an impediment to her informing the schools, in neutral and respectful language, that she has filed a Notice of Appeal.

5. Since my discussion with the mother, I notice that paragraph 20 may be a provision that she wants stayed. It prohibits complaints being made against single expert witnesses without leave of the court. It is designed to protect the process of the court from interruption by the withdrawal of a single expert witness who feels compromised by a complaint made against them in the course of proceedings and/or to protect a single expert witness from facing a complaint on material which is one sided or selectively submitted.

S11F Parent and Children’s Issues Assessment (interviews commencing 26 September 2018)

1. The mother’s grounds for the stay of the s 11F order is that she does not think she will be fairly assessed by a Family Consultant who is attached to this Registry.

2. The mother agreed that she specifically sought an 11F assessment and, now that one is arranged, she does not want to proceed with it. The mother still wants a reportable assessment but one which is prepared by a private family report writer, necessarily funded by her and the father or one of them.

3. The s 11F assessment was scheduled to follow the children’s month with the father whilst the mother was in the United States. However, the mother has now cancelled that trip and the children won’t be staying with the father for an extended period.

4. Now there is also the additional complication of the mutual contravention applications filed by the father against the mother and the mother against the father. These will not be determined before 13 November 2018. Parents who are facing a contravention application, would not ordinarily be compelled to submit to a process, such as a reportable child assessment, which could expose them to a risk of self-incrimination or being the subject of incriminating remarks made by the children.

5. It appears that the father does not oppose the stay of the s 11F assessment.

6. The Independent Children’s Lawyer wants to consider the matter before she either opposes or chooses not to oppose the Application for a stay of the s 11F assessment. The independent children’s lawyer is to advise the parties as soon as practicable of her attitude to the order for s11F assessment being vacated.

Case management

1. There are a number of interim applications to be dealt with.

2. The mother’s amended application in a case needs to be set down for hearing. Apart from the recusal application and the stay application, the mother seeks “suppression orders”, child support orders and indemnity costs for the hearing on 31 July 2018 (at which she was not represented by lawyers).

3. As I have said, it appears to me that the most pressing issue in the mother’s amended application is whether the s11F Child and Parent Issues Assessment, which has appointments scheduled for 26 September 2018, is to proceed.

4. Other applications filed since 31 July 2018 are:-

   a)The mother’s other application in a case filed 7 August 2018 [Folio 142] in which she seeks to take the children to the United States of America from 27 December 2018 to 5 January 2019. This application is listed before Registrar J. George on 21 September 2018.

   b)The father’s contravention application filed 10 August 2018 [Folio 146], alleging five (5) counts against the mother. This is listed to the Judicial Duty List on 13 November 2018.

   c)The mother’s contravention application filed 28 August 2018 [Folio 148], alleging fifty (50) counts against the father. This is also listed to the Judicial Duty List on 13 November 2018.

Recusal

1. I have heard submissions from the mother in relation to me recusing myself. There are various basis for seeking a judge’s disqualification. I take the mother’s to be based on an apprehension of bias.

2. The mother did not engage with the relevant test which is whether, in the circumstances of this case, a fair-minded, fully informed observer would have a reasonable apprehension that I might not bring an impartial mind to the resolution of the question I am required to decide. The standard is one of “real and not remote possibility”, rather than probability.

3. There are two stages. First, what it is that might possibly lead to a reasonable apprehension by a fully informed observer that I might decide the case other than on its merits. Second, whether there is a “logical and sufficient connection” between those circumstances and that apprehension.

4. I have made a number of findings which are adverse to the mother.

5. My manner with the mother has been terse. She is a difficult litigant in that she constantly interjects, interrupts and makes inflammatory statements tangentially. I get no pleasure from directing her to sit down or to be quiet but, if I did not do so, no-one else would have a say and I do not have unlimited time.  All judges have a duty to sit to hear cases.  Litigants cannot pick their judges and judges cannot select those who appear before them.  Any disqualification of a judge passes a burden onto other judges to take up work that they might not otherwise have had. The smaller the number of judges in a Registry, the more significant that burden may be as well as the possibility that a necessitous occasion may arise and there is no judicial officer to sit. One or other of the parents may experience disadvantage as a result of there being no available judicial officer but the children may suffer the greatest disadvantage.

6. The mother says that she has made two complaints about me to the Chief Justice of this Court. That does, per se, persuade me to disqualify myself.

7. The fact the best interest of the children are to the forefront of my mind and paramount in my considerations, requires me to focus on their interests rather than the mother’s behaviour. Her behaviour influences the manner in which I can interact with her but it does not impact on my ability to assess her case. That said, I cannot ignore my finding that she is a difficult personality and that I have found her to be so.

8. I have not heard submissions from the Independent Children’s Lawyer nor asked her for any.  I doubt that at this very early stage in her involvement in the case, she could make submissions. 

9. I have not heard from the father - because he isn’t here. A recusal application is not an application on which I would necessarily hear from any other party in any event.

10. Recusal is a nuanced issue in this case. I do not want any grievance which the mother bears me to make the parenting proceedings more complicated than they need to be. The final determination of the mother’s application for relocation will include an assessment of the mother’s personal qualities and her commitment to permit and encourage the children to have an ongoing and meaningful relationship with the father per se and across international borders.   In all the circumstances of this case, I am prepared to find that a fair-minded, fully informed observer would have a reasonable apprehension that even before the proceedings commence I have considered the mother’s presentation to be difficult and, accordingly, might conclude that I would not bring an impartial mind to the resolution of the question I am required to decide.

11. I will recuse myself.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 29 August 2018.

Associate: 

Date: 14 September 2018