Leone & Cino (No 2)

[2015] FamCA 724

FAMILY COURT OF AUSTRALIA

LEONE & CINO (NO 2) [2015] FamCA 724

FAMILY LAW – COURTS AND JUDGES – Bias – oral application by the husband for the trial judge to disqualify herself on the basis of a previous ruling unfavourable to the husband and a lack of confidence in the judge – test in Johnson & Johnson considered –orders made dismissing the husband’s oral application

FAMILY LAW – CHILDREN – Independent Children’s Lawyer – application by the Independent Children’s Lawyer to secure payment of his costs by the parties – where the Independent Children’s Lawyer is privately funded – where the parties agreed to the terms of the retainer – where the husband has failed to make payment to the Independent Children’s Lawyer in accordance with that retainer – where the husband alleges that he did not agree to pay half of Independent Children’s Lawyer’s costs – where the husband has previously consented to orders that he pay the Independent Children’s Lawyer’s costs – interim orders made for the purposes of securing current and ongoing funding for the Independent Children’s Lawyer

FAMILY LAW – CHILDREN – Evidence – oral application by the husband that the Independent Children’s Lawyer be prohibited from solely relying upon a family report and a psychiatric assessment of the parties at the final hearing – oral application by the husband that there be a further family report and psychiatric assessment of the parties – where the husband has previously sought to obtain a second expert opinion and orders were made against the orders sought by the husband – where the production of a new family report and psychiatric assessment would cause undue delay and hardship to the parties and the children – orders made dismissing the husband’s oral application

Family Law Act 1975 (Cth)

Johnson & Johnson (2000) 201 CLR 488

APPLICANT: Mr Leone

RESPONDENT: Ms Cino

INDEPENDENT CHILDREN’S LAWYER: TJ Mulvany & Co

FILE NUMBER: MLC 3172 of 2013

DATE DELIVERED: 28 August 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 28 August 2015

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Glass

SOLICITOR FOR THE RESPONDENT: Lawcorp Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Beckett

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

No. 1 Orders

1. That the oral application of the husband that I disqualify myself on the ground of bias be and is hereby dismissed.

2. That my Reasons for Judgment be transcribed and remain on the Court file.

No. 2 Orders

1. That for the purposes of securing current and ongoing funding for the Independent Children’s Lawyer for the purposes of the final hearing listed to commence on 7 September 2015, each of the father and the mother shall meet the costs of the Independent Children’s Lawyer in accordance with the estimate set out in his letter to the parties dated 18 August 2015, such costs to be met firstly by the father as to $4000 and thereafter equally apportioned between the parties or otherwise as directed by the Court.

2. That liberty be reserved to the Independent Children’s Lawyer to make any submissions in relation to subsequent orders for securing such costs.

3. That until further order each of the mother and the father by themselves, their servants and agents be hereby restrained from further encumbering and/or pledging and/or mortgaging any interest which he or she may have in the former matrimonial home.

4. That my Reasons for Judgment be transcribed and remain on the Court file.

No. 3 Orders

1. That the oral application of the husband that:-

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

   (b)There be a further Family Report and psychiatric assessment of the parties

   be and is hereby dismissed

2. That my Reasons for Judgment be transcribed and remain on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leone & Cino (No 2) 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

1. This matter comes before me today for mention.  The purpose of the mention hearing was, in essence, to ensure that the matter was ready to proceed to trial, which is listed before me on 7 September 2015.  The proceedings relate to the parenting arrangements in respect of the parties’ two children.  There are also property proceedings on foot.

2. The husband has this day sought and been granted leave to file an affidavit sworn by him 28 August 2015.  Paragraph 23 of that affidavit says as follows:-

   Orders to have the hearing listed in front of another judge.

3. At the commencement of the mention hearing, having read the husband’s affidavit, I raised with him the question of whether he sought to make any application with respect to the matter continuing to be heard before me.  The husband indicated that he did seek an order to the effect that I not hear the matter and that the matter be transferred for hearing before another judge.  There are a number of other issues raised in the husband’s affidavit; however, before I can consider those matters, in my view the question of my continuing involvement in the proceedings needs to be determined. 

4. I should provide some procedural history insofar as my involvement in the proceedings is concerned as a background to my decision.  The matter was allocated to my docket of cases in November 2014.  Orders were made in chambers in November 2014 requiring the parties to file an amended application and response and to file a bullet point summary of issues in dispute in anticipation of the first day of the hearing before me, which was listed on 17 February 2015. 

5. On 17 February 2015, I conducted the first day of hearing.  That was predominantly a procedural hearing to ascertain the matters that required attendance in order to ensure that the matter was ready to proceed to trial.  An issue was raised at that hearing as to the identity of the family consultant to prepare a family report with respect to the parenting issues.  That day, I made orders reappointing Dr J to prepare an updated family report, she having previously prepared an earlier family report in this matter.  I also made orders listing the matter for final hearing before me on 25 May 2015.  There was no challenge to those orders.

6. On 23 April 2015, the matter was listed for mention before me.  On that occasion, I was informed that due to delays in the preparation of the family report by Dr J, the matter could not proceed as listed on 25 May 2015.  Accordingly, that day I made orders vacating the original listed trial date and I made further procedural orders which included a listing of all extant applications for final hearing before me on 17 August 2015. 

7. In the week prior to the listed trial date, emails were received in my chambers from the father requesting an adjournment of the listed trial date due to his ill health.  There was no consent by all parties to the vacating of the trial date.  Accordingly, I listed the matter for a mention hearing before me on 13 August 2015.  That day, there were appearances by the Independent Children’s Lawyer (“the ICL”) and counsel appearing for the respondent wife.  There was no appearance by the husband at that mention hearing. 

8. The matter was stood down so that the ICL could communicate or attempt to communicate with the husband by telephone.  The ICL was able to speak with a friend of the husband that morning and ascertained that the husband was in attendance at hospital due to his ill health.  Fortuitously for the parties, I had another matter listed for trial some three weeks later which resolved that day, so I was in a position to adjourn these proceedings to a trial date commencing on 7 September 2015. 

9. On 14 August 2015, I made orders vacating the original trial date listing of 17 August.  An order was made listing all extant applications for trial on 7 September 2015.  I also made an order that the husband file and serve an affidavit which set out his reasons for non-appearance before me at the mention hearing and, further, to provide evidence of his attendance upon medical practitioners that day.  That order was made in circumstances where there was no direct communication between the husband and the Court and where the Court was relying upon communication between the ICL and a person who was said to be a friend of the husband.

10. The principles in relation to applications for a judicial officer to disqualify themselves on the basis of apprehended bias are set out in the decision of Johnson & Johnson (2000) 201 CLR 488 (“Johnson & Johnson”). In that decision, their Honours Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ discussed the grounds upon which a judge should accede to a disqualification application. Their Honours said as follows at paragraph 11:-

    [T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case was said to take the form of prejudgment) is 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 the judge is required to decide.

11. Their Honours also said at paragraph 12 that:-

    At the same time, two things need to be remembered:  the observer is taken to be reasonable; and the person being observed is a “professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.

12. I provided the husband with the opportunity to make submissions as to the matters upon which he relied upon in support of his application that I disqualify myself.  The husband pointed to two matters.  The first matter relied upon was the ruling made by me in February 2015 with respect to the reappointment of Dr J.  The essence of the complaint seems to be that my determining to reappoint Dr J in the face of the husband’s opposition to an order in those terms in some way indicates bias on my part.  I do not accept that submission.  The husband appeared at that hearing.  He made detailed submissions in opposition to that order and I ruled accordingly. 

13. Some six months have now elapsed since that decision was made.  The parties and the children of the marriage have attended upon Dr J and her report has now been released.  There was no challenge to my decision in the months following that ruling.  Counsel on behalf of the wife submits that a ruling of itself does not indicate apprehended bias.  I agree with that submission. 

14. The second matter raised by the husband is that he lacks confidence in me.  In particular, he focused his submission on paragraph 3 of the orders I made on 14 August 2015 wherein I required that he provide evidence to the Court as to the reasons for his non-appearance at Court that day.  As I have already indicated in these oral reasons for judgment, those orders were made as a result of the husband’s non-appearance; he did not avail himself of the opportunity of appearing by telephone and the only means of communication the Court had with him that day was through his friend.  In those circumstances, I ordered that he provide, on his oath, evidence as to his whereabouts that day. 

15. I am satisfied that a fair-minded lay observer would have no issue with that order and I do not accept that it is a basis for disqualifying myself in accordance with the principles enunciated in Johnson & Johnson.  Accordingly, I will dismiss the husband’s oral application that I disqualify myself.

RECORDED  :  NOT TRANSCRIBED

1. A further issue has been raised on behalf of the ICL in respect of arrangements for payments of his fees.  The matter is listed for a final hearing before me on 7 September 2015 in relation to both parenting and financial matters.  The parenting proceedings relate to the two children of the marriage, B, who is aged six, and C, who is aged four.

2. Pursuant to orders made on 22 May 2013, Mr Mulvany was engaged on a private basis to act as ICL in the proceedings.  He has filed an affidavit on 25 August 2015 which sets out the background to his involvement in the proceedings thus far.  His affidavit details the terms of his engagement.  He refers at paragraph 4 of that affidavit to a meeting held at his offices with the lawyers for the husband and the wife.  Annexure TJM-1 of that affidavit is a letter Mr Mulvany forwarded to the parties’ lawyers on 17 May 2013.

3. The first numbered paragraph of that letter is headed “Consent and Remuneration”.  The letter details, at paragraph 1.2 on page 2, the fees payable to his firm, he sets out his current hourly rate, confirms that all other fees are rendered in accordance with the Family Law scale of costs and also indicates that disbursements will be payable.  The last sentence of that paragraph confirms as follows:-

   Your respective clients are to meet one half each of the fees of the Independent Children’s Lawyer and accounts will be forwarded to you on a regular basis.

4. In his submissions before me today, the husband has indicated that he has no prior knowledge of that correspondence and, indeed, the first occasion upon which he sighted that letter was when he read Mr Mulvany’s affidavit filed this week.  Subsequent to that letter being sent, the parties have been engaged in various interim hearings before the Court.  Significantly, in my mind, there have been two occasions when the matter was before the Court and when the husband has consented to orders which include orders with respect to arrangements for payment of Mr Mulvany’s fees. Such conduct is at odds with the husband’s submission that he was unaware of the terms of Mr Mulvany’s engagement.

5. On 17 December 2013 orders were made by consent before Senior Registrar FitzGibbon which provided inter alia at paragraph 4 that:-

   … the parents ensure that all invoices for the fees for the Independent Children’s Lawyer are paid by the 28^th February 2014.

6. Paragraph 5 of those same orders provided that:-

   … on or before the 28^th February 2014, the fixed cost of the Independent Children’s Lawyer reserved on the 3^rd December 2013 at $1,500.00 be paid by the husband such payment to be made on or before the 28^th February 2014.

7. The notation to those orders includes at paragraph 1:-

   The father has this day paid the Independent Children’s Lawyer his proportion of invoice fees.

8. Subsequent to those orders at a further hearing before me on 17 February 2015 orders were made by consent which again make arrangements for the payment of Mr Mulvany’s outstanding fees.  Paragraph 1 of those orders provides that:-

   … on or before the 17^th March 2015 the father pay to the Independent Children’s Lawyer $8,800.00 being the costs of Mr Mulvany to the 17^th February 2015.

9. Paragraph 2 of the orders made 17 February 2015 provide that:-

   … on or before the 30^th April 2015 the parents pay to Mr Mulvany the sum of $4,000.00 each to assist in funding the Independent Children’s Lawyer in the trial of this matter.

10. Mr Mulvany deposes in his affidavit that the father has not complied with the order that he pay to him $4,000 in respect of trial fees, as set out at paragraph 2 of the orders of 17 February 2015.  He deposes at paragraph 6 that he agreed to an extension of time for the husband to pay those fees.  The orders of both 17 December 2013 and 17 February 2015 were orders made by consent.  The original minute of each of those orders bears the husband’s signature.  The husband has confirmed in the course of his submissions before me that the signature on the minute dated 17 December 2013 is his signature.

11. The father has also confirmed to me during the course of his submissions that he has received at least three invoices from Mr Mulvany.  He has confirmed that he has met payment of those invoices.  The submission of the father seemingly is that he now takes issue with the terms of appointment of Mr Mulvany.  The thrust of his submissions seems to be that he did not agree to the original terms of retainer, particularly that he would be responsible for one half of Mr Mulvany’s fees.  The submission of the father was to the effect that he understood that Mr Mulvany would be paid by Victoria Legal Aid.

12. In light of the history which I have detailed, particularly with respect to previous orders made by consent which clearly indicate that the father accepted responsibility for payment of Mr Mulvany’s fees, I do not accept those submissions.  What is proposed by the ICL and is supported by the mother is that I make orders that the further fees likely to be incurred by the ICL for the purposes of the final hearing be secured and ultimately met from the parties’ property settlement.

13. The order that is sought will effectively defer the apportionment of responsibility for those fees until the final determination of the property proceedings.  Both counsel for the ICL and the mother submit that to have Mr Mulvany withdraw at this late stage in the proceedings would likely jeopardise the conduct of the hearing.  It was submitted that a delay of the proceeding due to the ICL’s withdrawal could have only a significant detrimental effect to the welfare of the children the subject of the proceedings.  These proceedings have been ongoing since 2013.

14. As I have already observed today, this matter is highly conflictual.  Currently, the father is having only supervised time with the children. A delay of the proceedings would be contrary to the children’s best interests.  In all of the circumstances, having regard to the history of the matter, and particularly the history of the arrangements with respect to Mr Mulvany’s payment, I am satisfied that it is appropriate that orders be made in the terms of the minute that has been prepared on behalf of the ICL.

RECORDED  :  NOT TRANSCRIBED

1. The husband has this afternoon made an oral application seeking that the ICL not be permitted to rely upon the evidence of the independent single experts Dr J, who has prepared a family report, and Dr K, psychiatrist, who has prepared psychiatric assessments of the parties.  The husband seeks a further order that there be second opinions obtained in relation to the family report and the psychiatric assessment of the parties.

2. In support of his position, the husband relies upon his affidavit sworn 28 August 2015 and filed this day.  The husband clearly sets out his position at paragraphs 14 to 16, inclusive, of that affidavit.  He deposes as follows:-

   14. I DO NOT CONSENT TO THE REPORT OF [DR J] AND [DR K] TO BE USED AS SOLELY RELIED ON EVIDENCE IN COURT AND FOR THE ICL’S ATTEMPT TO ACT AS AN “HONEST BROKER”.

   15. THAT THE APPOINT (sic) OF [MS L] as a family consultant and that as previously agreed to engagement of the ‘Parenting Enhancement Program’ (PEP) commence without delay.

   16. I REQUEST THAT THIS COURT APPOINT A SECOND OPINION OF A FAMILY REPORT WRITER THAT BOTH PARTIES AGREED TOO (sic). [DR M] AND [MR N] HAVE ALREADY BEEN STRUCK OUT BY THIS COURT PREVIOUSLY AND SO TO SAVE COSTS [DR H] IS WHOM I CONSENT TO HAVING ALREADY CONDUCTED A VERY RECENT AND COMPLETE MMPI-2 TEST AND ACCOMPANYING REPORT FOR THE BENEFIT OF THIS COURT. IT IS UNDERSTOOD THAT [DR M] CAN ASESS (sic) [THE MOTHER] UNDER A MENTAL HEALTH PLAN AND ALTHROUGH MEDICARE FOR 10 SESSIONS AT NO COST TO [THE MOTHER].

3. The application of the husband is opposed by the mother and the ICL.  It was submitted on behalf of the wife that, as to the first order sought, the question of what the ICL relies upon in formulating his recommendations and in the manner in which he conducts the case on behalf of the children is a matter for him.  That is so.  The role of the ICL is to represent the interests of the parties’ children.  It is for him to ensure that all relevant evidence is properly put before the Court so the Court is armed with all information necessary to enable it to make a determination that is in the children’s best interests.

1. As to the question of whether or not there should be a second opinion report obtained from Ms L  or any other expert for that matter, – those are issues that have already been ventilated before me at the hearing on 17 February 2015.  At that time, it was submitted on behalf of the wife and the ICL that Dr J, who had prepared the first family report, should be engaged to prepare an updated family report.  The husband, at that hearing, made careful submissions opposing an order in those terms.  At the conclusion of submissions, I ruled that Dr J should be the expert engaged to prepare a report.

2. There has been no challenge to the orders that I made on 17 February 2015.  The parties and the children have participated in the assessment with Dr J.  Dr J has prepared a report, and it has been released to the parties.  The trial is due to commence before me in 10 days.  The orders sought by the father would necessitate a significant and lengthy adjournment of the proceedings.  The proceedings have been on foot since 2013.  The children are currently spending supervised time with the husband.  Were I to accede to his application, the matter would not likely be listed for hearing until the middle of 2016.

3. The proceedings have been highly conflictual thus far.  There have been intervention order proceedings in the Magistrates’ Court.  There are also pending property proceedings.  The husband lives in the former matrimonial home, which is the parties’ principal asset.  A delay in the proceedings would also mean that the wife would be deprived of the opportunity of concluding the financial aspects of the case also. 

4. Having regard to all of those matters, I am satisfied that there is no basis for making orders in the terms sought by the husband.  Nothing in his affidavit material indicates to me that there is any proper basis for making orders in the terms sought by him.  I am satisfied that were I to accede to his application, that would be contrary to the interests of the children.  At this stage, a delay of the finalisation of the issues before the Court would likely have a detrimental impact upon their emotional and psychological welfare.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 28 August 2015.

Associate: 

Date:  28 August 2015