Leone and Cino (No 3)

[2015] FamCA 757

FAMILY COURT OF AUSTRALIA

LEONE & CINO (NO 3) [2015] FamCA 757

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings pending appeal – where the appeal is against an order dismissing the husband’s application that the trial judge be disqualified for bias  –  interim orders made granting the stay on condition that the husband prosecutes his appeal expeditiously – interim orders made that the question of the costs of the wife and the Independent Children’s Lawyer be reserved

Family Law Act 1975 (Cth)

Jackson & Balen [2009] FamCAFC 131
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
Kelly & Kelly (1981) FLC 91-007
Molier & Van Wyk (1981) FLC 91-011

APPLICANT: Mr Leone

RESPONDENT: Ms Cino

INDEPENDENT CHILDREN’S LAWYER: TJ Mulvany & Co

FILE NUMBER: MLC 3172 of 2013

DATE DELIVERED: 15 September 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 7 September 2015

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Harris

SOLICITOR FOR THE RESPONDENT: Lawcorp Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Tesoriero

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: TJ Mulvany & Co

Orders

1. That until further order, the hearing of the husband’s Amended Application for Final Orders filed 20 January 2015 and the wife’s Amended Response to Initiating Application filed 10 February 2015 be stayed.

2. That the stay of the final hearing pursuant to order 1 hereof is conditional upon the husband doing all such acts and things as may be required to prosecute his Notice of Appeal dated 4 September 2015 expeditiously.

3. That in the event the husband does not fulfil the condition of the stay set out in order 2 hereof, the wife has liberty on 14 days’ notice to relist the matter before Johns J for a consideration of discharge of order 1 hereof.

4. That the question of the costs of the wife and the Independent Children’s Lawyer of and incidental to the husband’s application for a stay of the proceedings be reserved.

5. That the husband’s Application in a Case filed 7 September 2015 be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3172 of 2013

Mr Leone

Applicant

And

Ms Cino

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This matter was listed for final hearing before me on 7 September 2015.  The proceedings relate to both parenting and financial matters and the matter was listed for four days.

2. The hearing had originally been listed to commence on 17 August 2015.  However, as a result of the husband’s request for an adjournment of the final hearing due to ill-health, I listed the matter for mention before me on 13 August 2015.  The husband did not appear at that mention hearing. 

3. On 14 August 2015 I made orders vacating the final hearing date and adjourned all extant applications for final hearing before me to commence on 7 September 2015.  Further orders were made requiring the husband to file and serve an affidavit explaining his non-appearance at the mention hearing before me on 13 August 2015.  The matter was otherwise listed for mention before me on 28 August 2015. 

4. At the mention hearing on 28 August 2015 the husband was granted leave to make an oral application seeking orders that:-

   (a)I disqualify myself from hearing the matter on the ground of bias;

   (b)The Independent Children's Lawyer be prohibited from relying solely upon the evidence of Dr J and Dr K; and

   (c)There be a further Family Report prepared by a family consultant other than Dr J, who prepared a Family Report for the final hearing, and a further psychiatric assessment of the parties.

5. Upon hearing submissions from the parties with respect to those matters I dismissed each of those applications of the husband. 

6. In addition to the matters raised by the husband at that mention hearing the Independent Children’s Lawyer (“the ICL”), who was engaged by the parties on a private basis, sought orders to secure payment of his fees to enable him to continue to act in the proceedings and to appear at the final hearing listed to commence on 7 September 2015.  Upon hearing submissions, I made orders with respect to the funding of the ICL.

7. On 4 September 2015, being the Friday immediately preceding the commencement of the final hearing listed on 7 September 2015, the husband filed a Notice of Appeal in which he sought to discharge the orders made by me on 28 August 2015.  The grounds of appeal relied upon by the husband are as follows:-

   The orders as made by Justice Johns on the 28^th August 2015, in this matter are Oppressive, Unjust, Discriminatory, and a Denial of Natural Justice against the Applicant, and also they are an Obstruction and a Perversion of Justice in these proceedings, because they seek to restrict the evidence in the proceedings to outdated and innacurate [sic] material that is, incomplete, discriminatory, incompetent and to the detriment of the applicant and a fair trial.

8. At the hearing on 7 September 2015 the husband informed the Court that in addition to filing a Notice of Appeal in this Court, he had filed a “Charge-Sheet and Summons” in the Magistrates’ Court of Victoria naming me as the accused. The charge levelled against me by the husband in those proceedings is that I have breached s 43(1)(a)(b) of the Crimes Act1914 (Cth) insofar as:-

   The Accused, on the 28^th Day of August 2015, whilst acting in a judicial capacity under federal jurisdiction, and with the judicial power of the Commonwealth, did attept [sic] to pervert the Course of Justice by denying [the husband] the opportunity to introduce important evidence in a court proceeding, and which evidence was absolutely essential the conduct of a fair trial and in the interests of Justice. 

9. On 7 September 2015 the husband sought and was granted leave to file an Application in a Case and affidavit sworn by him that day.  The husband sought six orders in his Application in a Case.  I do not intend to repeat each and every one of those orders sought as they are repetitive insofar as paragraphs 2, 4, 5 and 6 essentially restate the orders sought in paragraph 1.  Paragraph 3 of the orders sought is not an order, but rather a statement that the husband has filed a Notice of Appeal on 4 September 2015.  Paragraph 1 of the husband’s Application seeks an order as follows:-

   1.      An proceeding to commence 7 Sept 2015 in front of Justice Johns untill [sic] such time as the appeal as was filed 4^th September 2015 and is fully heard and fully determined by the Court of appeal.  This proceeding of 7^th Sept 2015 is to be STAYED perminatly [sic] until the appeal is fully determined.

10. The husband’s application for a stay of the proceedings pending a determination of his appeal is opposed by the wife and the ICL. 

11. These are my reasons for judgment with respect to that application. 

Background

1. The husband is aged 42 years.  His occupation is tradesman.  He currently resides in the former matrimonial home in Suburb O. 

2. The wife is aged 31 years and her occupation is home duties.  She also has casual employment as an administrative assistant.  The wife lives with the children of the marriage in rental accommodation. 

3. The parties married in 2007 and final separation occurred in 2012 when the wife and the children vacated the former matrimonial home. 

4. There are two children of the marriage, B (aged 6 years) and C (aged 4 years).  The husband filed his Initiating Application seeking parenting orders in April 2013.  The wife filed her Response to Initiating Application seeking parenting and property orders in June 2013. 

5. The parties have also had on-going court proceedings in the Magistrates’ Court of Victoria as a result of the wife’s application for intervention orders against the husband, and charges arising from the husband’s alleged breach of intervention orders made against him.

6. On 22 May 2013, orders were made for the appointment of the ICL.  That day, orders were made by consent that the husband spend supervised time with the children for specified periods. 

7. On 17 December 2013 further orders were made by consent that the children spend supervised time with the husband for six hours each alternate weekend, that time to be supervised by either Mr P, Mr Q Leone or Ms R Leone. 

8. In March 2015, the husband’s time commenced being supervised by workers with S Family Services.

Material Relied Upon

1. The husband relied upon the following material in support of his application for a stay of the proceedings pending the determination of his appeal:-

   ·Application in a Case filed 7 September 2015;

   ·Affidavit of the husband filed 7 September 2015;

   ·Exhibit A1 (Charge-Sheet and Summons directed to the accused Sharon Johns dated 4 September 2015);

   ·Exhibit A2 (documents confirming receipt by the Regional Appeal Registry of Notice of Appeal filed 4 September 2015);

   ·Exhibit A3 (copy of the Notice of Appeal dated 4 September 2015);

   ·Exhibit A4 (copy of Reasons for Judgment dated 28 August 2015);

   ·Further affidavit of the husband sworn 7 September 2015 (annexing medical certificate dated 6 September 2015); and

   ·Further affidavit of the husband sworn 4 September 2015 (containing four typed paragraphs).

The Hearing

1. The husband represented himself at the hearing.

2. The wife was represented by counsel as was the ICL. 

3. The matter was conducted on the papers.  The husband relied upon the material referred to above and made brief oral submissions.  Submissions were made by counsel representing each of the wife and the ICL.  Given the nature of the hearing, contentious facts cannot be determined without evidence being properly tested.  Accordingly, in determining the matter I have relied upon those facts which are agreed or not in issue. 

4. The husband was accompanied to Court by a number of friends and/or associates who sat in the body of the Court during the hearing.

5. At the commencement of the hearing I invited the husband to identify the documents upon which he sought to rely.  During the course of discussion in relation to those preliminary matters, a friend of the husband seated in the body of the Court stood and sought to interject on behalf of the husband.  When I directed that person to sit down, he refused and persisted in seeking to be heard.  I requested the person to leave the Court.  When he refused that request, I directed that the person be removed from the Court and otherwise adjourned the matter temporarily.  The hearing resumed approximately 30 minutes later. 

6. Shortly after the hearing commenced the husband sought leave to have one of his associates sit with him and support him at the bar table.  Neither counsel for the wife nor the ICL took objection to that course.  Accordingly, I granted leave for the husband’s associate, Mr T, to sit next to the husband at the bar table.  In granting that leave I informed the husband that Mr T could not speak on his behalf but would be able to assist him at the Bar table. 

7. Notwithstanding the directions given to the husband and Mr T that Mr T was not permitted to make submissions on behalf of the husband, Mr T interjected at various stages during the hearing.  When I invited the husband to commence his submissions in support of his stay application the husband stated that he would be taking instructions “word by word” from Mr T.  When informed that I would not permit Mr T to make submissions on behalf of the husband, the husband responded as follows:

   My first and last application and I read it for the court’s record.  Your Honour… I have no confidence in you, your Honour.  I believe you are biased against me.  I cannot get justice for my children before you.  If you do not withdraw, I will not participate in this show trial and I will walk out of this court and appeal to the Full Court and the High Court in disgust absolutely.  Are you ready?  Thank you.

8. Having made the above statement the husband and Mr T left the Court.  Almost immediately after leaving the Court room, Mr T returned to observe the hearing.  The husband did not return to Court.

9. The submissions of counsel appearing for the wife and the ICL were made in the absence of the husband.

The Law

1. The power to grant a stay is discretionary.  The authority for that proposition is Kelly & Kelly (1981) FLC 91-007; Molier & Van Wyk (1981) FLC 91-011; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681.

2. The principles relevant to the determination of an application for a stay of the operation of an order pending appeal were identified by the Full Court in Jackson & Balen [2009] FamCAFC 131 at paragraph 28 and include:-

   ·       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 application must be bona fides;

   ·       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 a stay;

   ·       some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.

3. Whilst that decision considers an application for the stay of an order pending appeal, the principles identified above are also relevant to the determination of an application for the stay of proceedings pending an appeal, as is sought by the husband.

The Husband’s Application

1. The husband appeals against all of the orders made 28 August 2015.

2. In his Notice of Appeal the grounds for appeal are that my orders of 28 August 2015 are oppressive, unjust, discriminatory and a denial of natural justice against the husband and also that they are an obstruction and perversion of justice in these proceedings insofar as they restrict the evidence to the proceedings to out-dated and inaccurate material that is incomplete, discriminatory, incompetent and to the detriment of the husband and a fair trial.  The husband does not set out the facts relied upon by him to support those assertions. 

3. The principal ground of appeal as best can be gleaned from the Notice of Appeal would seem to be directed to my order refusing the husband’s oral application that I disqualify myself from hearing the parties’ substantive applications. 

4. The order made dismissing the husband’s application that there be a further Family Report prepared and a further psychiatric assessment of the parties is also a focus of complaint; the husband alleges that he has been denied natural justice insofar as there has been a restriction of the evidence to be relied upon in the proceedings and that the evidence before the Court is “outdated and inaccurate”.

5. In the event that the husband’s appeal against my decision to refuse his application that I disqualify myself is successful, the parties’ competing applications for final orders will be heard and determined by another judge.  Refusing to grant the stay pending appeal in those circumstances gives rise to a risk that there will be a re-hearing of the parties’ competing applications for final orders.  Costs expended by the parties in conducting a hearing before me would likely be lost and the parties would incur significant further legal costs in preparing and conducting a hearing before another judge.  In determining the husband’s application for a stay, I must balance those risks, which will impact on all parties, against the prejudice to the wife occasioned by the delay of the proceedings pending the appeal.  

6. In addition to the matters raised in the husband’s Notice of Appeal, in his affidavit filed 7 September 2015 the husband deposes that he seeks to vacate the commencement of the final hearing so as to adduce further evidence and also to avail the parties of an opportunity to resolve their differences “as amiably and harmoniously as possible”. 

7. The husband also filed an affidavit to which he annexed a medical certificate dated 6 September 2015 from a locum medical practitioner upon whom he attended earlier that day.  The husband did not seek to adjourn the hearing of his stay application, albeit he appeared to rely upon that medical certificate as a basis for the trial being unable to proceed.  Although I enquired as to what application the husband sought to make having regard to the affidavit annexing the medical certificate, the husband did not make any application for adjournment of the proceeding.

The Wife’s Response

1. The wife opposed the application for a stay of the proceedings.  In support of that position it was submitted that to stay the proceedings would visit hardship upon the parties and particularly the children of the marriage. 

2. The concern raised on behalf of the wife was that in circumstances where there had already been one adjournment of the proceedings at the request of the husband (from 17 August 2015 to 7 September 2015) and where the parties have incurred the expense of preparation of a current Family Report (being the report of Dr J dated 22 June 2015 annexed to her affidavit filed 30 June 2015) and filed trial affidavit material, a stay of the proceedings would result in costs expended by the parties in preparation for the trial being thrown away. 

3. Further, it was submitted that the children had been the subject of intense conflict between the husband and the wife since their separation in September 2012 and that a delay of the proceedings would likely expose the children to a continuation of that conflict. 

4. It was submitted on behalf of the wife that the husband’s appeal lacks merit.  Focussing on the grounds of appeal relied upon by the husband, it was submitted that assertions that the orders the subject of the appeal are “oppressive, unjust, and discriminatory” are not grounds of appeal.  Further, it was submitted on behalf of the wife that the husband adduces no evidence to support those allegations; the fact that the husband perceives that the Court is against him is not a ground upon which to found an appeal. 

5. It was also submitted on behalf of the wife that the application for a stay was simply an exercise on behalf of the husband to delay the finalisation of the proceedings. I was informed that the husband, who is in occupation of the former matrimonial home, has made no mortgage payments for the past eight months and indeed the mortgagee has filed and served a writ in the Supreme Court of Victoria seeking rights of possession to the property.  Hence, it was submitted that there is now a real urgency for the finalisation of the property proceedings given those actions by the mortgagee. 

The ICL’s Position

1. The ICL supported the submissions of the wife insofar as he opposes the application for a stay.  The concern raised on behalf of the ICL is that the children are affected by the on-going Court proceedings and that the matter should be heard and determined without further delay so as to minimise the distressing impact of the proceedings upon the children.

Fairness of Granting a Stay

1. The husband submits that I am biased and that were the hearing to proceed before me he would suffer a significant injustice.

2. If the proceedings were to continue before me notwithstanding the husband’s appeal and the husband was ultimately successful in his appeal, such outcome is likely to necessitate a re-hearing of the matter.  That outcome would be unfortunate for the parties and the children; the parties would endure the financial and emotional pressures of a second hearing and the children would be exposed to the impact of those proceedings upon their parents.

1. The husband’s appeal is drawn in general terms; whilst assertions are made as to the unfairness of the orders made, the husband does not particularise the circumstances giving rise to those allegations. 

2. I accept the submission of the wife that the husband would appear to have little prospect of success having regard to the Notice of Appeal in its current form.  However, I am mindful that the husband is self-represented and has filed an appeal against my orders within a week of those orders being made.  The primary concerns raised by the wife and the ICL are the potential damaging consequences upon the children if the appeal cannot be determined within a reasonable timeframe.

3. I understand that the husband’s appeal is able to be accommodated in the October 2015 Full Court sittings.  I would not be in a position to relist the matter for hearing until after those sittings in any event.  Accordingly, delaying the proceedings until after the determination of the appeal is likely to be a delay of only short duration.     

4. The husband is a self-represented litigant.  He currently is in occupation of the former matrimonial home which is the most significant asset of the parties.  The wife and the ICL have raised serious questions as to the bona fides of his appeal and his application for a stay.  Based on the conduct of the husband and his associates during the hearing of his stay application, as noted earlier, there may be some force to those submissions.    

5. However, the husband is entitled to have the Full Court consider the contentions he raises in relation to his appeal.  To allow the final hearing to proceed in the face of an appeal against my refusal to disqualify myself, particularly having regard to the husband’s assertions as to my bias, and in circumstances where the Full Court is able to entertain the appeal within a matter of months, would not in my view be appropriate.

6. Having regard to the concerns raised by the wife as to the husband’s bona fides and his desire to delay the proceedings, as well as the ICL’s concerns as to the impact of the litigation upon the children, I am satisfied that it is appropriate that I order the husband to do all such things as may be required to prosecute his appeal expeditiously. 

7. Accordingly, I will order, pending further order, a stay of the final hearing but only upon condition that the husband at all times prosecutes his appeal to the Full Court expeditiously.  Should the husband not fulfil the conditions of the stay, I will provide the wife with liberty to apply to have me consider as to whether or not the stay of the final hearing should continue.

8. The allegations raised on behalf of the wife that the husband has failed to meet the mortgage payments on the former matrimonial home and the mortgagee has commenced proceedings for possession are matters that can be dealt with by another judge upon application by the wife.  I have made orders that the wife have leave to file such application and affidavit in support.

Costs

1. The wife sought an order for costs arising from the husband’s application.  Counsel for the ICL sought that the costs of the hearing be reserved.  The husband left the Court before those applications were made and was not heard in relation to those matters.

2. The question of costs is governed by s 117 of the Family Law Act 1975 (Cth). It provides that save for specified circumstances each party shall bear his or her own costs. Section 117(2A) sets out the considerations that must be taken into account in determining an application for costs.

3. In circumstances where the husband has been successful in his application for a stay, I am satisfied that it is not appropriate that an order for costs be made at this time.  However, the question of costs may be relevant in the event that the husband’s appeal fails.  Issues with respect to the manner in which the proceedings have been conducted by each of the parties may be matters which require determination by the trial judge. Accordingly, I will reserve the question of costs of the husband’s application for determination by the trial judge.

4. The orders I make therefore are as follows:-

   1.That until further order, the hearing of the husband’s Amended Application for Final Orders filed 20 January 2015 and the wife’s Amended Response to Initiating Application filed 10 February 2015 be stayed.

   2.That the stay of the final hearing pursuant to order 1 hereof is conditional upon the husband doing all such acts and things as may be required to prosecute his Notice of Appeal dated 4 September 2015 expeditiously.

   3.That in the event the husband does not fulfil the condition of the stay set out in order 2 hereof, the wife has liberty on 14 days’ notice to relist the matter before Johns J for a consideration of discharge of order 1 hereof.

   4.That the question of the costs of the wife and the Independent Children’s Lawyer of and incidental to the husband’s application for a stay of the proceedings be reserved.

   5.That the husband’s Application in a Case filed 7 September 2015 be otherwise dismissed.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 15 September 2015.

Associate:

Date:  15 September 2015