Grant and Aiden (No. 6)

[2017] FamCA 1159

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN (NO. 6) [2017] FamCA 1159

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Disqualification – Adjournment.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106
Bowcott & Welling (2016) FLC 93-723
Minister for Immigration & Jia Legeng (2001) 205 CLR 507

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 14 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 13 and 14 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Trapski Family Law

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Colla

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

IT IS ORDERED THAT

1. The mother’s oral application for a stay of the proceedings be dismissed.

IT IS FURTHER ORDERED THAT

1. The mother’s oral application for disqualification made this day be dismissed.

IT IS FURTHER ORDERED THAT

1. The mother’s oral application for an adjournment of the final hearing made this day be 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 Grant & Aiden (No. 6) 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 5094 of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On what I believe was day nine of the final hearing, the mother’s application for leave to file a further Application in a Case was dismissed. She then made an oral application for a stay of the final hearing before me pending the outcome of her application for special leave to appeal to the High Court, against the decision of the Full Court of this Court, dismissing her appeal against the orders made by Cronin J in April 2016, and her appeal against the orders made by Austin J on 1 September 2017 dismissing her application in a case filed on 23 August 2017.

2. As referred to in my ex tempore reasons, delivered on 13 November 2017, the final hearing which involves competing parenting applications by the parties with respect to the child of their relationship, commenced in March 2017. The parties in this case separated when the child was an infant.  That child is now 11 years of age and has been the subject of proceedings for a significant part of her young life.

3. I will turn first to the mother’s application for special leave to appeal to the High Court. As referred to by the Full Court in its judgment delivered on 24 March 2017, the mother appealed against the finding made by Cronin J on 22 March 2016 that she had contravened the parenting orders made 4 February 2011, as varied in February 2013, in that she had failed to make the child available to spend time with the father in accordance with those orders. It was also revealed, during that hearing, that the mother had unilaterally moved the child from Victoria and taken her to Queensland. Cronin J made orders for the preparation of a section 11F report to determine what, if any, order for compensatory time should be made, having regard to the child’s best interests.

4. On 29 April 2016, Cronin J made orders that the child spend 21 days compensatory time with the father and that the child be brought to the Court to give effect to that order. The mother also appealed this order.  She did not seek a stay of His Honour’s orders pending appeal to the Full Court.

5. The proceedings were otherwise listed for hearing on 4 August 2016, when the Senior Registrar hearing the matter made interim orders providing for the child to live with the father.  Although the mother filed an application for a review of the Senior Registrar’s orders on 19 August 2016, on 6 October 2016, she sought and was granted leave to withdraw that application.

6. The child has lived with the father since mid‑2016. The mother’s appeal was listed for hearing before the Full Court on 20 February 2017, as the Full Court noted, a month prior to the date fixed for the commencement of the final hearing. On that date, the Full Court determined that, in circumstances where the orders the subject of the appeals had substantially altered, the child had been living with the father pursuant to those orders, and a final hearing was to commence in less than a month, there was no utility in the mother’s appeals.  Notwithstanding what the Full Court identified as the lack of utility of her appeals, the mother insisted on proceeding and the Court determined that, in any event, those appeals had no merit.

7. The mother, in her application for leave to appeal to the High Court, identified four proposed grounds of appeal.  They were that there had been a denial of natural justice, an abuse of process, that the principle of law involved is one of major public importance and that the case involved unsettled questions of law.

8. The mother does not identify any principle of law of major public importance or what unsettled questions of law there may be. In argument, the mother contends that there was no error of law made by the Full Court and that her case relies upon the Court receiving fresh evidence and that had that evidence been available, it is very likely that her appeal would not have been dismissed.  Firstly, this ignores the Full Court’s observations as to the utility of the mother’s appeal and its findings, but also the fresh evidence to which the mother appears to be referring, is that the recovery order made on 20 April 2016 had not been carried out.  Logically speaking, this could not be relevant for the purposes of an appeal from Cronin J’s decision, as it was his order that she asserts was not carried out. 

9. A consistent thread throughout the mother’s case with respect to the grant of leave to file a further Application in a Case is that the abuse of process lies in the orders made by the Senior Registrar, rather than the orders made by Cronin J, from which she appealed and to which the application for special leave to appeal relates.  As previously referred to, it was open to the mother to seek a review of the Senior Registrar’s orders, and she did so, later seeking leave to withdraw that application.

10. In my view, there is little merit in the mother’s application for special leave to appeal to the High Court.  In any event, even if the mother were to be granted special leave and that appeal were to succeed, or for that matter, she sought and obtained a stay of the operation and/or execution of the Full Court’s order that, in my view, would not preclude the Court proceeding with the final hearing listed before me, or necessarily render a successful appeal nugatory, in circumstances where the Court must determine the competing parenting proceedings, having regard to the best interests of the child, and the circumstances which give rise to that appeal have been largely overtaken by the passage of time.  In particular, the fact that the child has now been living with the father for a significant period of time, with no face to face contact with the mother during that time, would mean that there would likely be little or no utility in the outcome of the appeal, insofar as it relates to the matters I must determine in the parenting proceedings.

11. Although the mother also seeks a stay of the final parenting proceedings to await the outcome of her appeal from the orders made by Austin J on 1 September 2017, her submissions suggest that she may not appreciate the distinction between an application for a stay of the execution or operation of the orders, which arguably should be made to the judge who made those orders, as provided by the Family Law Rules 2004 (Cth), and an application for a stay of the proceedings themselves. The focus of the mother’s submissions was that she has a right to appeal, but also that by virtue of that appeal having been filed, it follows that it would be an abuse of process to continue the proceedings until her appeals have been heard and determined. Whilst it is certainly correct that the mother has a right of appeal, it is not correct, as a matter of law, that as a consequence the orders or the proceedings should be stayed pending that appeal. The mother’s submissions ignore the fact that the father is entitled to rely upon the fruits of his judgment until there is a proper basis for a stay, the rights of the child and the necessity for her to establish that it would be an abuse of process to continue the proceedings before me.

12. In the Application in a Case determined by Austin J, the mother sought orders, inter alia, that the Independent Children's Lawyer be discharged, that the family report, dated 24 February 2017, and the single expert psychiatric assessment of the father (the mother not having attended for assessment) prepared by Dr Z be struck out, that the interim parenting orders be discharged, thereby reviving the orders made in February 2011, and significantly, that there be a stay of the proceedings.

1. The basis of the application for a stay of the proceedings, as deposed to by the mother in support of that application, was as follows:

   ·The father has provided no evidence to substantiate his initiating application before this Court to warrant any change in a residence order.  The residence order has been in place since 4 February 2011, that provided that the child lives with me.  Considerable time has elapsed since these final orders were made.  This is an abuse of process.

   ·There are factors that have not been disclosed to this Court at previous hearings which would have been material.  The father is in contempt of this Court and I have made an application to this Court for a stay of proceedings until this injunction is heard and my application for contempt of Court.

2. Austin J in his reasons observed as follows:

   ·First, the father is providing evidence in the trial to prove the basis for the relief he seeks.  The mother is free to test the evidence as she sees fit.

   ·Second, the orders made in February 2011 were fundamentally breached by the mother and the orders were suspended.  Fresh interim orders were made in 2016 reversing the child’s residence pending the outcome of the current trial.

   ·Third, the mother has not demonstrated any abuse of process.

   ·Fourth, if factors were not disclosed at previous hearings the trial gives the mother the opportunity to rectify the deficiency.

   ·Fifth, yesterday it was found the father was not in contempt.

3. The Application for Contempt referred to by the mother in her affidavit was dismissed by Austin J on 31 August 2017.  In the decision of Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court reiterated the principles that give rise to the Court’s power to stay the operation and execution of orders. They include the following matters:

   ·The onus to establish a proper basis for the stay is on the applicant for the stay.  However, it is not necessary for the applicant to demonstrate any special or exceptional circumstances.

   ·A person who has obtained a judgment is entitled to the benefit of that judgment.

   ·A person who has obtained a judgment is entitled to presume the judgment is correct.  The mere filing of an appeal is insufficient to grant a stay.

   ·The bona fides of the applicant.

   ·A stay may be granted on terms that are fair to all parties.  This may involve a Court weighing the balance of convenience and the competing rights of the parties.

   ·A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted.  This will be a substantial factor in determining whether it will be appropriate to grant the stay.

   ·Some preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case.

   ·The desirability of limiting the frequency of any change in a child’s living arrangements, the period of time in which the appeal can be heard, whether existing satisfactory arrangements may support the granting of the stay for a short period of time and the best interests of the child, the subject of the proceedings are a significant consideration.

4. The difficulty in this case is that on what on my calculations is day 10 of the final hearing, the Court’s time has been taken up with numerous interlocutory applications by the mother which have both delayed and added significantly to the length of the substantive proceedings. Whilst that is not the only reason the hearing has not been concluded, with that delay in mind and having regard to the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”), significantly, these are parenting proceedings and the best interests of the child are a significant consideration.

5. As referred to in my ex tempore reasons delivered on 13 November 2017, the opinion of the family consultant, albeit yet to be tested, is that the ongoing conflict between the parties and the proceedings themselves, have placed a significant emotional burden on this child. I am satisfied that in those circumstances, it is in the child’s best interests for these proceedings to be concluded.

6. The mother informed the Court that her application for special leave to appeal to the High Court was to be determined this week.  Although the mother has not made any enquiries as to when her appeal against the orders made by Austin J might be heard, as a date has not been fixed, it is reasonable to assume that it will be, at the very least, some months until the matter can be heard.

7. It is difficult to understand why, in circumstances where the mother seeks orders for the child’s return to her care, she would pursue an application which would inevitably delay the child’s return, in circumstances where it is common ground that the mother has not had any face to face contact with the child since she was placed in the father’s care, except at her appointment with the family consultant.  This lends some weight to the observations of the family consultant that the mother is unable to prioritise the child’s needs over her own need for control, and, in my view, gives rise to significant questions about the bona fides of the mother’s appeals.

8. Counsel for the father and the Independent Children's Lawyer both submitted that the mother’s appeal against the orders made by Austin J lacked merit.  In my view, it is difficult to make sense of the mother’s grounds of appeal, or to glean any challenge of any substance to His Honour’s findings or the orders he made.

9. Counsel for both the father and the Independent Children's Lawyer conceded that if the mother’s appeal against the orders made by Austin J, in particular with respect to the discharge of the Independent Children's Lawyer, and if the reports of the family consultant and Dr Z were to be struck out, that any decision made on the basis of evidence presented or submissions made by the Independent Children's Lawyer, or based upon those reports, might be the subject of challenge.  However, as Austin J observed, the mother’s case, at its highest, was that the Independent Children's Lawyer’s conduct might cast doubt on her ability to act independently in the interests of the child.

10. Austin J also observed, in my view correctly, that any complaints the mother might have in relation to the way in which the family consultant conducted her interviews with the parties, or any lack of professionalism on her part could only be made out through cross‑examination which has not yet occurred, and which the mother now seeks to delay. The mother’s complaints about Dr Z could similarly be dealt with by cross‑examination.  As previously referred to, it is not clear from the grounds of appeal what the challenge is, other than in general terms, to His Honour’s orders.

11. I have also had regard not only to the impact of the ongoing uncertainty for the child if the proceedings are delayed, but also the significant inconvenience and likely added cost to the father, of having to recommence proceedings after a significant delay, in the event that the mother’s appeals are not successful, and the impost upon the Court’s resources.

12. In the matter of Bowcott & Welling (2016) FLC 93-723, the Full Court, whilst referring to a trial judge’s decision to stay proceedings after one of the parties lodged an appeal against the judge’s refusal to disqualify himself said as follows:

    [79] We have earlier recorded that the trial judge stayed the proceedings after the mother lodged her appeal in relation to the disqualification issue.  Had the appeal not been expedited, thereby giving it priority over many other pressing cases, the matter would have been left in abeyance for a very long time.  We do not have the benefit of His Honour’s reasons, but it would be unfortunate if a practice developed of postponing trials after an appeal is lodged against a refusal decision made at a very advanced stage of the proceedings.

    Having refused the disqualification application, a trial judge should give careful thought before deciding to postpone the conclusion of the trial.  We do not suggest that His Honour did not do so here, but important matters to be taken into account, in arriving at the decision, “would include the stage the proceedings had reached…and the consequences that would follow from leaving appellant determination of the issue of disqualification until after trial” Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [84].

13. Whilst this is not a disqualification application, there are similarities.  In this case, the proceedings are at a very advanced stage and the consequences, in particular for the child, if they were to be further delayed, are significant.

14. Insofar as the mother seeks a stay of the proceedings, rather than to stay the execution or operation of the orders made either by the Full Court or Austin J, based upon the fact that their appeals are pending, I am not satisfied that she has demonstrated that there has been an abuse of process, or that to continue the proceedings would be unfairly or unjustifiably oppressive, as to constitute an abuse of process.

15. The tenor of the mother’s submissions is that to continue proceedings when appeals are on foot or pending is, of itself, likely to constitute an abuse of process; that is not the case and the mother has not, in my view, satisfied the test she must meet with respect to what she says would be an abuse of process if the matter were to proceed.  I am satisfied to the contrary that to stay the proceedings would be unfairly and unjustifiably oppressive to both the child and the father.

16. I am satisfied that having regard to all of the circumstances in this case, I should dismiss the mother’s oral application for a stay of the proceedings, and complete the parenting proceedings.  So the order I make in the matter of Grant & Aiden, file number MLC5094 of 2008 is as follows.  The mother’s oral application for a stay of the proceedings be dismissed.

17. I do not propose to go through the procedural history in any detail, save and except to say that following the luncheon adjournment on what I think is day 10 of the proceedings, the mother has made an application that I should disqualify myself from the further hearing of this matter.

18. It is the mother’s case that there has been actual bias based upon two matters.  The first of those matters is that in my previous decisions (referring to the reasons I delivered this morning, dismissing the mother’s application for a stay of proceedings), I read previous decisions of both the Full Court and of Austin J, and relied upon them in my reasons, and secondly, that I have allowed the applicant father to re‑litigate matters relating to the contravention proceedings in March/April 2016, in circumstances where that matter, although subject to appeal, was concluded, clearly some time ago.

1. The evidence of actual bias is considered to be difficult to prove.  That evidence must be clear and not simply based upon an assertion of bias, or the possibility that a decision may be biased.

2. In Minister for ImmiGrant & Jia Legeng (2001) 205 CLR 507 Gleeson CJ and Gummow J said in relation to actual bias as follows:

   [71]…Decision makers, including judicial makers, sometimes approach their task with a tendency of mind or predisposition, sometimes one that has been publicly expressed without being accused or suspected of bias.  The question is not whether a decision maker’s mind is blank, it is whether it is open to persuasion.  The fact that in the case of judges it may be easy to persuade one judge of a proper position than it is to persuade another, does not mean that either of them is affected by bias.  The state of mind described of bias in the form of pre‑judgment is one so committed to a conclusion already formed, as to be incapable of alteration, whatever evidence or arguments may be presented.  Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

   [78]…In considering whether conduct of a decision maker indicates pre‑judgment, or in some other respect constitutes a departure from the requirements of natural justice, the nature of the decision making process and the character of the person upon whom Parliament has conferred the decision making capacity, may be of critical importance.

3. The matter I was required to determine this morning, and the subject of my reasons in relation to which the mother complains, was her oral application for a stay of the proceedings, on the basis that there were appeals pending from the decision of the Full Court and the decision of Austin J.  As part of that process, the Court must consider, and in fact it is the mother who is asking the Court to consider, those reasons for judgment.  Reference to those reasons, in my reasons, does not meet the test of actual bias.  It does not lead to a conclusion, in my view, that I have not considered the matter, or that I was not open to persuasion.

4. The second matter, about which the mother complains, is that the father has been permitted to re‑litigate the contravention applications dealt with by Cronin J in March/April 2016, because counsel for the father has cross‑examined her, with respect to those contraventions and the outcome of those contraventions.  Those contraventions are relevant to the determination of the parenting proceedings.  The fact that she was found to have contravened those orders, will no doubt be put that it demonstrates the mother’s lack of bona fides with respect to the child having an ongoing relationship with the father. It will also probably be put by counsel for the father, and the Independent Children's Lawyer, that the mother’s answers to the questions about those contraventions demonstrate a lack of insight on her part into the needs of the child.

5. This does not, in my view, demonstrate that I am not open to persuasion, or was not open to persuasion, with respect to the application determined this morning, or on an ongoing basis, not open to persuasion, with respect to the parenting proceedings.  To ask questions about proceedings that have been determined, and the orders that were made, is not a re‑litigation of those proceedings.  It cannot result in a different result to the outcome of those proceedings, as the mother submits.

6. In a previous decision, with respect to an earlier application by the mother made for disqualification, I noted that the mother might not understand the distinction between actual bias and what is referred to as, “apprehended bias”; applications which are more commonly made, and said to be less difficult to prove.  The difficulty, in my view, with this application, whether it is actual bias or apprehended bias, is that the mother has not established a connection between the actions and the asserted bias. 

7. I am also satisfied that even if it were to be asserted by the mother that this demonstrates apprehended bias, there is no connection between the actions of which she complains and what she would say is the deviation that might follow in terms of whether I am able to decide the case on its merits. The test lies in 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 that judge is required to decide.  The reasonableness of any suggested apprehension of bias must be considered in the context of ordinary judicial practice.

8. I am not satisfied, firstly, that the mother can demonstrate that a fair minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of these proceedings, or the logical connection between the actions, about which she complains and the alleged bias.

9. In all the circumstances, I propose to dismiss her application.  So, in the matter of Grant & Aiden, file number MLC5094 of 2008, the mother’s oral application for disqualification made 14 November 2017 be dismissed.

10. After almost two days of hearing, most of which has been taken up by applications made by the mother which, if not directly for an adjournment, would inevitably have resulted in an adjournment, if they had been successful, the mother now makes an oral application for an adjournment of the matter, she says, to enable her to obtain legal representation.

11. The mother has represented herself in these proceedings since the commencement of the final hearing in March of this year.  Significantly, we are in the latter stages of the case, in that the mother is now in the middle of cross‑examination.  She has other witnesses, who are on affidavit, some who she may seek to adduce oral evidence from, although it is not totally clear which of those witnesses she proposes now to rely upon.

12. The mother has cross‑examined the father, and his new partner, at some length.  The father’s case is complete, save and except for final addresses and cross‑examination of the mother’s witnesses.

13. The mother says she has spoken to a duty lawyer during the luncheon adjournment. She asserts that she is eligible for legal aid, based upon her financial circumstances, and that she may qualify for legal aid, based upon the fact that although there have been some 10 contravention applications, she was only found to have contravened previous orders on three occasions.  She says she has a tentative appointment to see a solicitor on Thursday morning, but does not provide any details as to who that might be and it is not possible to speculate, firstly, whether she will get legal aid, and it is fairly clear, based upon her own submissions and the financial statement she has filed, that she would not have a capacity to privately fund legal representation.

14. The mother has had months during which she could have, had she chosen to do so, pursued an application for legal aid.  Insofar as she submits that she now seeks to be legally represented, because it has been found in the various applications she has sought to bring, that she has been able to demonstrate the necessary evidence in support of that application, the mother has been making similar applications for quite some time.  Insofar as the conduct of the matter (now to its conclusion), the mother is under cross‑examination, she is required to answer questions, she has been making notes and I am satisfied understands that she will be able to clarify some of the answers she gives in cross‑examination, if necessary, and fair to say, makes submissions with respect to quite complicated legal concepts.

15. The mother’s desire now, some 10 days into a trial, to seek legal representation, where cross‑examination of the father’s witnesses is already complete, in my view, must be weighed up against the prejudice to both the father, if this matter were to be further delayed, and more importantly, the child.

16. The mother’s focus appears to be on the litigation, rather than the need of the child to have that litigation concluded.  One might wonder if in fact lawyers were to be engaged by the mother, assuming that she was able to get legal aid (and I cannot make that assumption given that all I have is the mother’s assertion that she may be eligible for legal aid), what role the mother’s legal representatives would then play in the proceedings, in circumstances where the father’s case is complete and the mother simply has to call her witnesses and produce them for cross‑examination.

17. I do note that, clearly, there will be final addresses, that may be somewhat more challenging for the mother, but she will be given the opportunity to prepare.  She has had many, many months to anticipate the case she is required to meet and to prepare for it and, as previously mentioned, the mother does appear able to address quite complicated legal concepts.

18. As I previously referred to in my earlier reasons, there would be likely to be significant costs associated with a further delay of the matter, and its recommencement, some time from now.  The mother offers no timeframe as to when that should occur, other than to say that she does not want to just do nothing. She does not explain why, if she seeks legal aid and legal representation, that has not been done before now.

19. I am satisfied that the mother is able to conduct her own proceedings.  Whilst it is not perhaps a preferred position, legal representation is a privilege, not a right and in circumstances where all I have is vague assertions that she may be eligible for legal aid and would like legal representation, the prejudice to the father and the child far outweighs the prejudice to the mother in this case.

20. The Court must be able to conduct proceedings in an orderly manner. Division 12A of the Act requires the Court to conduct child related proceedings without unnecessary delay. That delay and a delay caused by the mother seeking to obtain legal representation at this late stage of the hearing, would almost certainly be prejudicial to the child, who all agree, is aware of these proceedings. So I propose to dismiss the mother’s application.

21. So in the matter of Grant & Aiden, file number MLC5094 of 2008, the mother’s oral application for an adjournment of the final hearing made 14 November 2017 be dismissed.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 10 May 2017.

Associate: 

Date:  6 July 2018