Firmin and Curtin (No 2)

[2019] FamCA 225

FAMILY COURT OF AUSTRALIA

FIRMIN & CURTIN (NO. 2) [2019] FamCA 225

FAMILY LAW – PRACTICE AND PROCEDURE – Recusal application in a parenting matter following judge refusing to make orders as consented to by the parties – Application dismissed.

APPLICANT: Mr Firmin

RESPONDENT: Ms Curtin

INDEPENDENT CHILDREN’S LAWYER: Ms K Hams

FILE NUMBER: MLC 7934 of 2016

DATE DELIVERED: 20 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 20 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: Ms Tulloch

SOLICITOR FOR THE RESPONDENT: MST Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Jenkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Southern Family Law

Orders

IT IS ORDERED THAT

1.The mother have leave to make an oral application that I recuse myself from further hearing this matter and the application be and is hereby 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 Firmin & Curtin 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 7934 of 2016

Mr Firmin

Applicant

And

Ms Curtin

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. The mother, through her counsel, makes an application that I recuse myself from further hearing this matter, including the final determination of parenting proceedings concerning X, who is six and a half years old.  I have and will make other orders in this matter today.  These reasons relate only to the recusal motion by Ms Tulloch.

2. The basis of the recusal application, as best I understand it, is that on Wednesday 13 February 2019 I was handed minutes of orders which the parties had contingently agreed be sought to be made, by consent, and that I did not make orders in those terms.  I say “contingently agreed” because the minutes were handed to me on the basis that they represented agreed terms but that the parents wanted me to fill in the gaps by deciding other issues upon which they could not agree.  After the matter had been stood down for extensive negotiation over two days, the parties, through their respective lawyers and with the assistance of the independent children’s lawyer, reached agreement on a number of issues, including the primary care of X, and disagreement on some discrete issues, including when the father’s time with X would increase from four nights per fortnight to five nights per fortnight, the father having the whole of the Easter school holidays.

3. Last Wednesday, I heard submissions and some oral evidence from the mother who was also cross-examined.  Ultimately, I was not satisfied that X’s best interests could be ascertained without a supplementary or alternative Family Report and, accordingly, I was not prepared to make the orders which were sought by consent.  The father then withdrew his consent to the minutes containing terms to which he had previously agreed.

4. I construe counsel’s submission as being largely based on the fact that that I know about terms on which the parents were at one stage (last Wednesday) prepared to agree upon but are no longer agreed.  In particular, that in the face of a report by Dr J which supported a 4/10 division of nights in favour of the mother, the mother was prepared to agree to a 5/9 arrangement with the only issue being the date upon which the 5/9 arrangement should commence.  The father sought an immediate start and the mother sought some delay.  Of course, with the ambit of the dispute reduced thus it was also clear that the father was not pursuing his application for a change of residence for X and that X reside with him and his wife and their baby on a final order basis.

5. Counsel submits that it is inappropriate for me to proceed to determine the father’s application for a change of residence on a final basis.  Ms Tulloch submits that it is equally inappropriate for me to determine her client’s application (by response) in its soon to be amended terms, that the child live with her and spend four nights a fortnight with his father on a final basis, and that the mother move the child and child’s residence down to Suburb G and have the child attend Suburb K Primary School.  There is also some dispute about Easter that may, or may not, have been agreed but which I never did get to the bottom of given my lack of satisfaction around the Family Report and my refusal to make orders, as sought, at that time.

6. Counsel stated:

   “if this matter is now to proceed as a full-blown trial and all issues are to be determined by the Court, then given that your Honour has been advised of the concessions that my client was prepared to make to settle the matter – and equally, I would have thought this would have applied to the husband as well, but that’s a matter for him and his counsel.  In my submission, it – and, your Honour, based upon some of the evidence that your Honour heard last week in a rather ad hoc fashion, because of the way the parties presented the case to you, the – it would be best, in my submission, for the matter to be listed for trial not before your Honour but before another judge who has not been advised of the concessions that the parties were prepared to make.”

7. Counsel continued:

   “There may be a perception that your Honour having been privy to that information about the concessions that the parties were prepared to make, there may be a perception that your Honour may have already formed views about this case that may make it difficult for your Honour to consider all of the evidence”

   I assume, about matters on which the mother was once, but is no longer, prepared to make certain concessions.  I do not accept that submission.

8. I will make orders that accord with X’s best interests, following the legislative pathway and based on the evidence then before me.  What the parties were, or were not, prepared to agree to as a component of an incomplete compromise which did not proceed on one day in February this year, is not particularly relevant.  Relevant evidence is that evidence which, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

9. The other matter which seemed to underpin Ms Tulloch’s preference for another judge was that I heard the mother give evidence last week.  After two days of negotiation the mother filed an affidavit in which she provided some detail around matters which should have been, but which were not, included in her trial affidavit.  Non-disclosure and misleading evidence by the mother seemed to have involved a serious lack of judgment on the part of the mother’s solicitor.  The evidence which the mother gave, both in affidavit and orally, left many questions about her case unaddressed.  However, the evidence is a matter of record.  After hearing the evidence I indicated that I would not make the orders sought on that day without further social science evidence.  I did not indicate that my mind was closed to making the orders at all, in the future, after further evidence is submitted and tested.

10. Counsel for the mother seems concerned that, having had an opportunity to observe the mother give evidence, I might not bring an impartial mind to bear on my determination down the track at the fully contested hearing.  I am not persuaded that there is cause for concern.  First, the ground for recusal is a reasonable apprehension that the judge will not decide the case impartially rather than she will decide it adversely to one party.  Second, a poor witness does not necessarily make a poor mother.  I expect some of the final hearing time will be devoted to the extent to which material non-disclosures in the mother’s case were her doing or the product of professional judgment by her solicitor.  Otherwise, I expect that there will be comprehensive evidence about the practical circumstances of the mother and the predicament in which she finds herself.  My mind is not closed and I await the further evidence and, of course, argument.

11. Counsel did not articulate her case in line with authorities which are binding on me or the often stated test of the fair-minded lay observer who is reasonable and understands the role and responsibilities of a judge.

12. I do not say I might never recuse myself, but I will not do so at this point.  To do so would disadvantage X in an extreme way.  This case would go into a pool of cases yet to be allocated to a Judge, and I anticipate that it could take anywhere from six to 18 months to be re-listed.  In the vexed circumstances, and on either party’s case, that is not a tolerable nor proper result for this child.

13. I dismiss the mother’s application that I disqualify myself from further hearing proceedings.

    RECORDED:   NOT TRANSCRIBED

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 20 February 2019.

Associate:  

Date:  15 April 2019