Fallon and Bashandi (No 2)

[2016] FamCA 1084

FAMILY COURT OF AUSTRALIA

FALLON & BASHANDI (NO 2) [2016] FamCA 1084

FAMILY LAW – Recusal – costs certificate

APPLICANT: Ms Fallon

RESPONDENT: Ms Bashandi

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms K Hams

FILE NUMBER: MLC 6992 of 2013

DATE DELIVERED: 23 November 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr Boden

SOLICITOR FOR THE RESPONDENT:	Starnet Legal
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Hams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates

Orders

IT IS ORDERED THAT:

1.The hearing set down before me on 1 and 2 December 2016 be and is hereby vacated.

2.The further hearing of the following applications be referred to the case management judge for management and for fixing as and when appropriate:

a)     the Application Initiating Proceedings filed by the mother on 2 September 2013;

b)     the mother’s Contravention Application filed 18 March 2014 together with the mother’s application to adduce further evidence;

c)     the mother’s Contravention Application filed 5 May 2014;

d)     the mother’s Contravention Application filed 24 June 2014;

e)     the Case Application of the mother filed 2 October 2014;

f)     the Case Application of the mother filed 23 October 2014;

g)     the Case Application of the father filed 1 December 2015;

h)     the Case Application of the father filed 18 December 2015;

i)      the Case Application of the father filed 6 April 2016; and

j)      Any parenting application of the father in relation to spending time with the child Z, female, born … 2009 (‘the child”).

3.For the avoidance of doubt, the orders restricting the father’s movement out of Australia continue in full force and effect until further order they being paragraphs 2 and 3 of the Order made on 20 August 2013.

4.The applicant and independent children’s lawyer are each granted a costs certificate pursuant to s 10(2) of the Federal Proceedings (Costs) Act 1981, in relation to the proceedings on each of 29 April 2015, 7 May 2015 and 17 July 2015 (“the dates”) limited to the costs of the attendance of counsel and solicitors on the basis that I have this day disqualified myself from further hearing the matter and the mother’s contravention application filed on 18 March 2014 will have to be recommenced before another judge proceeded on the dates.

5.As between the mother, the independent children’s lawyer and the father the costs of the mother and the independent children’s lawyer of and incidental to these proceedings from 7 May 2015 to date be and are hereby reserved.

6.Liberty be reserved to the mother and the independent children’s lawyer to list the matter before me in the event that they require further orders or directions in relation to the cost certificate provided for in this Order.

7.I recuse myself from hearing any further applications in this matter.

8.My reasons for decision this day be transcribed and when settled a copy be provided to the parties and the original placed on the Court file.

AND IT IS NOTED:

A.That the Contravention Application of the mother filed 18 March 2014 was part-heard when the hearing was discontinued.

B.The application of the father to not be cross-examined any further has been abandoned.

C.The days for which the mother and the independent children’s lawyer have been granted a costs certificate are only 3 of 14 appearances in this matter since 29 April 2015.

D.The child returned to Australia with the mother on 18 March 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fallon & Bashandi 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 6992 of 2013

Ms Fallon

Applicant

And

Ms Bashandi

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me for mention. It was otherwise listed to the duty list on 1 December 2016 before me, but now will not be because I have recused myself from continuing to hear this matter.

Applications

1. There are several applications before the Court.

2. There are three outstanding contravention applications, being those filed by the mother on 18 March 2014 and 15 May 2014 and 24 June 2014. The contravention application filed 18 March 2014 is part-heard. Apart from those applications, there is a pending application by the mother to adduce further evidence in relation to the part-heard contravention application, and there was an application by the father to be excused from further cross-examination in relation to the part-heard contravention application, however, that application has been abandoned.

3. In addition, it appears the father has an outstanding application before the Court to dissolve injunctions which prevent him from leaving Australia in relation to a Watch List order made on 20 August 2013. The Watch List order was initially imposed in circumstances where the Court was concerned that the father not leave Australia pending the return to Australia of Z (the child). The child has now been returned to Australia, and she and her mother remain in this country.

4. The purpose of the father’s retention in Australia at this point is to answer the contravention applications which are part-heard. The fact that they are part-heard in no small part due to the father’s failure to attend Court or to continue cross-examination when required to do so.

5. The father also seeks to spend time with the parties’ daughter, Z, although I understand an application in that respect was only filed, or accepted for filing, yesterday and has not been served.

Recusal

1. A further application, which is made orally today, is that I recuse myself based on, as best I discern, that I am predisposed to find that the father has not told the truth, and that I would not bring an impartial mind to the case. On reflection, I am satisfied that I would have difficulty in accepting that the father is a truthful or reliable witness. That is as a result of the father’s behaviour during what has been a prolonged set of hearing days which it is not necessary or, in the circumstances desirable, that I traverse other than to say that the behaviour (words or actions) are significant but not directly relevant to the findings of fact required to be made in the contravention.

2. The matter may require some significant court time in the event that the mother and the father each wish to pursue all the applications which are currently before the Court. I will refer the matter to the Case Management Judge for allocation. This is a matter with which she has some familiarity

3. It would be preferable for all parties to consider carefully, and before the matter is next listed, what applications he/she wishes to preserve. Notably, Z is not back in Australia. If the mother does not proceed with contravention(s), she is still at liberty to rely on evidence, facts and matters in support thereof.

Costs

1. The mother seeks that the father pay her costs of all the contravention proceedings incurred since 29 April 2015, which was the date upon which the mother’s contravention application filed 23 September 2013 was dismissed. The mother’s costs were reserved on 17 July 2015, 2 December 2015 and 1 February 2016.

2. On my calculation, there have been some 13 or 14 Court appearances, not all of them for evidence and defended hearings. Some have been in relation to subpoenas and some have been mentions and some have been case management. Nevertheless, there were extended sitting hours on 29 April 2015, on 17 July 2015.

3. The mother contends that the father should be responsible for the costs of the pending contravention applications on the basis that one of them is part-heard, and my recusal in the matter means that they will have to be started again. Counsel for the mother points to my stated reasons for recusing myself, including the fact that, by virtue of the father’s behaviour in Court and his evidence in the witness box, I have formed the view that I am unable to bring an impartial mind to the determination of the contravention applications against the father.

4. The father opposes any order for costs being imposed at this stage, and says that the appropriate order is that costs be reserved.

5. The first step in any costs application is for the Court to determine whether there are circumstances which justify departure from the usual position of each party bearing their own costs. In this case, I am unable, at this point, to be satisfied that there are any such circumstances. This is not because most of what counsel for the mother, Ms Smallwood, submitted I find to be accurate, but because we are in the midst of contravention proceedings which are not yet concluded. It may be that those contravention proceedings will be dismissed whereupon the father could have some entitlement to costs. Against that, however, there may be a successful costs application in relation to costs which he caused to be thrown away in proceedings before me, notwithstanding that, ultimately, he was successful in having the application dismissed. To put it another way, and in more simple terms, the mother has been put to expense unreasonably by virtue of such matters as the father failing to attend Court, the father refusing to continue with cross-examination, the father on one occasion falling ill and being taken to hospital which was a regrettable event, but not one for which the mother should be financially responsible.

6. In the circumstances, I am satisfied that the mother’s costs ought to be reserved. When she comes to make a costs application at the end of any further proceedings, she should probably do so on notice and with some memorandum of the dates for which she is seeking costs and the amounts that she is seeking.

7. I will also reserve the costs of the independent children’s lawyer, and I do that on two bases: one for all of the reasons for which I have reserved the mother’s costs. Second, because the independent children’s lawyer is, at this moment, uncertain as to whether she will be instructed to pursue costs. It seems to me that absent those instructions, no harm is done by a reservation of costs. It brings some clarity to the situation where I will not be available in the future.

8. Further, I note that Mr Boden, solicitor, has appeared for the father on a pro bono basis. Therefore, the father has incurred no costs. That is not the case for, as I understand it, the mother and the independent children’s lawyer. In circumstances where I have recused myself and in the midst of hearing a contravention application, it seems to me that both the mother and the independent children’s lawyer should be entitled to a certificate in relation to costs that entitles them to make application to the Attorney-General’s Department for some payment in relation to costs thrown away by virtue of the judicial officer being no longer available to hear the matter, through no fault of the parties concerned. Therefore, I make the order for a certificate to issue for them.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 23 November 2016.

Legal Associate:

Date: 2 December 2016