Manuel & Pinner (No 2)
[2022] FedCFamC2F 640
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Manuel & Pinner (No 2) [2022] FedCFamC2F 640
File number(s): CAC 1658 of 2013 Judgment of: JUDGE W J NEVILLE Date of judgment: 12 May 2022 Catchwords: FAMILY LAW – Recusal of Judge – alleged contempt of other party’s solicitor – grounds for recusal of Judge are not made out – grounds for contempt are not made out – non-compliance with Orders - Application dismissed – procedural Orders made regarding costs in the light of multiple existing costs Applications to be heard at final hearing in May 2022 Legislation: Evidence Act 1995 (Cth), ss 140, 141
Family Law Act1975 (Cth), ss 102NA, 112AP
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Rule 2.01 (and the Schedule to it); Rule 5.04, Part 10.6
Cases cited: DAI v DAA (2005) 191 FLR 360; 33 Fam LR 1
Antoun v The Queen (2006) 80 ALJR 497
Australasian Meat Industry Employee’s Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Bande v Cade (2012) 45 Fam LR 376
Beckert v Beckert (2021) 64 Fam LR 218
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Isbester v Knox City Council (2015) 255 CLR 135
Johnson v Johnson (2000) 201 CLR 488
LGM v CAM (2006) 200 FLR 360; 35 Fam LR 124
Lim v Zong [2001] FamCAFC 165
Manual & Pinner [2021] FedCFamC2F 468
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Naparus & Frankham (No.3) [2021] FamCAFC 150
Nichles, In the matter of an application for leave to issue or file [2022] HCATrans 95 (13 May 2022)
Re JRL; Ex parte CJL (1986) 161 CLR 342
Smits v Roach (2006) 205 CLR 423
Tate & Tate (No.3) (2003) FLC 93-138
Vakauta v Kelly (1989) 167 CLR 568
Witham v Holloway (1995) 183 CLR 525
Division: Division 2 Family Law Number of paragraphs: 74 Date of Hearing 2 May 2022 Place: Canberra Lawyer for the Applicant Self-represented Lawyer for the Respondent Farrar Gesini Dunn Independent Children’s Lawyer Robinson + McGuinness ORDERS
CAC 1302 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MANUEL
ApplicantAND: MS PINNER
RespondentAND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
12 MAY 2022
THE COURT NOTES THAT:
A.The Applicant did not attend the Judgment Delivery; and
B.If the Applicant does not attend the Final Hearing, and continues his recent practices of non-compliance with Court Rules, directions and Orders of the Court, the matter may proceed on an undefended basis; accordingly,
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The Application in a Proceeding, filed 11th April 2022, be dismissed.
2.The Respondent’s costs of, an incidental to, the Application in a Proceeding be paid by the Applicant, with details to be finalised at the Final Hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Manuel & Pinner has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Overview
The following reasons were delivered orally on 12th May 2022. They have been revised from the script used on that occasion.
The somewhat lengthy reasons that follow may be summarised, in large part, with these overview comments.
Just as there is a profound difference between civility and rudeness, and between courtesy and insult, there is also a fundamental difference between advocacy and protest. General civility, some basic courtesy, and advocacy, which have characterised much of the litigation in this matter since 2013, over the past year or so have been replaced, on the Father’s part, by rudeness, insult and protest. The former qualities will assist his son X; the latter assist no one, least of all X.
Classic instances of advocacy, often-times passionate advocacy (as opposed to mindless, insulting protest), are readily recalled in persons like Lincoln, Martin Luther King Jr (“I have a dream”), the long silent advocacy that ultimately bellowed in Mandela, the passive resistance of Ghandi, and the profound advocacy of Desmond Tutu for forgiveness and reconciliation in the aftermath of unspeakable horror and hatred. The list is endless. The persons noted, and countless others, are remembered, and remain beacons and points of reference precisely because their conduct warranted attention and because of their outstanding example.
In order for X to benefit from this litigation, in so far as that is possible, his Father is required to stop protesting, to stop being insulting, to stop being rude, and instead to engage as a parent and to advocate for his son according to the Rules and directions of the Court. Anything less than this lets X down, and assists no one. So the basic question for the Father is whether he is going to be an advocate for his son, or simply one of the small, noisy minority, the one who remains just an angry protestor who shouts threats and insults, which do not assist X at all. We will all see quite shortly – because the final hearing takes place at the end of May – whether the Father engages in the proceeding as a parent and advocate, or whether he continues with his petulant tirades and general oppositional stance to anything and everyone – most especially the Court.[1]
[1] For a recent discussion by the Full Court regarding a parent who was described in those proceedings as “obnoxious, belligerent, disruptive and contemptuous”, see Beckert v Beckert (2021) 64 Fam LR 218.
Preliminary matters
There is one child, X, who is the main, indeed primary, focus of the substantive proceeding. I have not the slightest doubt that both parents love him immensely. Over the many years of this litigation (since 2013, on and off), the main focus has usually, but not always, been upon X. Not infrequently, like many matters, there have been a few attempted short-cuts and many unhelpful and unproductive diversions, mostly in the form of contravention proceedings.
The co-parenting relationship, especially in recent years, based upon the number of Applications and the regular litigious and other contests, is very strained. The parties have, apparently, remained mostly civil in their discourse and other things. Even in dealings with the Court, basic civility and reasonable communication have been the norm. Regrettably, things have changed in recent times, and not for the better.
As already noted, most recently, to speak bluntly and colloquially, whatever “cool-aid” the Father has begun to sip, or whatever other sources of information or support he might be getting, he needs to stop. Unlike his basic, general civility over the bulk of the litigation, in recent times, as noted in more detail later in these reasons, while I do not doubt his care and love for X, he seems hell-bent on trying to cause the most disruption and difficulty as possible. Everything is a complaint, and a significant and unpleasant contest: the Court’s IT system, seeking copies of documents, appointment of an independent expert, vaccination status pursuant to Court directions, security staff, Court staff – anything and everything is a source of contention and dispute. I cannot conceive how anyone viewing the Father’s actions and speech in recent times, notably towards the Court, could reasonably conclude that it could possibly assist his case. For his sake, and especially for X’s, he needs to dial back his rampant and unrestrained conduct and communication. It assists no one, least of all X. Indeed, if the Father’s belligerence and abuse continues, it is more likely than not that X will “vote with his feet” and reduce his contact with the Father because of the constant strain of the oppositional stance of the Father towards everything, if not towards life generally. Life is far too short to be constantly having to deal with anxiety-causing rudeness, petulance and defiance.
Orders sought by the Applicant
The Applicant Father’s Orders sought were contained in the Application in a Proceeding filed 12th April 2022; they were as follows (emphasis in original):
1.That solicitor [Ms G] be found in contempt
2.That His Honour, Warwick J. NEVILLE, recuse himself from the matter
Orders sought by the Respondent
The Respondent Mother’s Orders sought were contained in the Response to Application in a Proceeding filed 28 April 2022; they were as follows (emphasis in original):
1.That the Father’s Application in a Proceeding dated 11 April 2022 (The Application”) be dismissed.
2.That the Father pay the Mother’s costs of and incidental to the Application on an indemnity basis with such costs to be fixed in the sum of $4,400 and payable to the Farrar Gesini Dunn Trust Account BSB […66] Account Number […99] within 7 days.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer did not provide a Minute of Orders sought prior to the Hearing.
Written submissions on behalf of the Applicant
The Applicant did not file any submissions prior to the Hearing, which he confirmed to be the case in Court on 2nd May 2022.
Written submissions on behalf of the Respondent
The Respondent’s submissions were contained in a Case Summary Document which was filed on 28th April 2022; they were as follows (emphasis in original):
Extension of Time to File
1.It is acknowledged that, on 12 April 2022, the Court notified all parties of the date for the Application to be determined and that Orders setting out the timetable to file a Response and these Submissions was available on the portal. Regrettably they were not accessed until 27 April 2022, and leave is sought for the Response and these submissions to be filed on 28 April 2022.
2.In support of the request for the extension of time:
a.The Application and Affidavit filed in support was not served until 20 April 2022. Leave is sought to tender the email from the Applicant Father dated 20 April 2022. The email is attached as “[1]”.
b.On 21 April 2022 a letter was sent to the Applicant Father, highlighting the defects in the Application and Affidavit, and provided the Father with the opportunity to withdraw the Application. The time frame provided was until close of business on 27 April 2022, to provide the Father sufficient time to consider his position and seek legal advice if he wished to do so. Leave is sought to tender that letter, attached as “[2].”
c.There has been no response to that letter.
d.The ICL on 21 April 2022, also advised the Applicant Father of the defective form and invited him to obtain legal advice. Leave is sought to tender that email (that FGD were copied into), attached as “[3]”.
Contempt Application against Dr K
3.It is submitted that this aspect of the Application be dismissed on the basis that it fails to comply with the Rules.
Rule 11.71(2) provides:
An application must:
(a) be in accordance with the approved form; and
(b) state the contempt alleged; and
(c) be supported by an affidavit setting out the facts relied on.
4.The application is not made on the correct form.
a.The approved form is an ‘Application – Contempt’. This was specifically referred to in the email from the ICL and from FGD to the Father ([2] and [3]). The form is specifically designed so that any allegation of contempt is made with specific detail including details of what the allegation is, and include details of date, time and place.
5.No specific allegation is made that is capable of identifying contempt.
a.The Application as filed fails to set out with any precision what the allegation is, and include any specifics. There is no reference to time, place or location.
6.There is no evidence to support any such application.
a.An application for contempt is a quasi-criminal matter and as such the laws of evidence apply. Much of the evidence is general in nature, opinion from an unqualified witness and in an inadmissible form. Indeed, it is difficult to find any part of the affidavit that is admissible.
b.Given that there is no specification of the alleged contempt, it is difficult to ascertain what part of the affidavit attempts to address the issue.
c.Paragraph 1(a) of the affidavit is no more than a summary of the Father’s opinion.
d.Paragraph 1(b) is not in proper form and is objected to but, even if allowed, the two statements do not connect or follow one another. Even if [Dr K] indicated to the Court that [Ms D] was unaware that she had spoken to the Husband, that is entirely different to [Dr K’s] knowledge of the Father contacting [Ms D].
e.If required, specific objections to the balance of the affidavit can be made, not only in relation to the Application for Contempt, but also for the balance of the Application.
f.It is submitted that there is no admissible evidence to support any allegation on any basis, and especially on the standard of proof required.
Application for His Honour Judge Neville to Recuse himself
7.The affidavit in support of this aspect of the application is also defective as it:
a.Makes broad, generalised comments;
b.Is based on opinions of the Father;
c.Includes hearsay evidence;
d.Is not in admissible form;
e.Where there are references to “I have evidence to prove”, the evidence is then not provided or referred to in any way; and
f.It appears that part of the Father’s complaint is based on he not being allowed to provide evidence through submissions, or an assumption that email correspondence to His Honour’s associates forms part of the evidence.
8.Even if there remain parts of the affidavit, which are determined to be admissible, the evidence fails to establish any basis for recusal. There is no evidence to support the position that a fair-minded lay observer might reasonably apprehend that the Judge may not bring an impartial mind to the matter. It fails to:
a.Identify what was said that may lead His Honour to decide the case other than on its legal or factual merits; and
b.Show any logical connection between the matter and the feared deviation from deciding the case on its merits.
9.These submissions do not propose to go into any detail of the relevant authorities, as these have been clearly set out by His Honour earlier in these proceedings in the Judgment dated 2 December 2021 (“the Judgment”), in relation to an application by the Father seeking that the ICL be replaced.
Costs
10.Many costs applications have been made along the way as part of this litigation, and they have been reserved to the final hearing, but it submitted that on this occasion it is different.
11.Whilst the Husband was given the benefit of the doubt in the application for costs made as a result of his unsuccessful application to have the ICL changed (see page 27 of the Judgment) it cannot be the case on this occasion. The father was provided with the Judgment which clearly sets out the test and all the relevant authorities that must be considered.
12.In the event that the Father is unsuccessful with his Application, then costs are sought pursuant to Section 117 of the Family Law Act 1975 (Cth) with specific consideration of:
a.The father’s conduct – including the delay in serving the Application;
b.The father being wholly unsuccessful; and
c.The father, having had identified the defects in the Application, ignored the offer to withdraw the Application and was fully aware of the costs that would be incurred.
13.In the event costs are to be ordered, we seek that they be fixed in the sum of $4,400.
a.The fixing of the costs avoids the need to have an assessment undertaken causing additional costs and delay;
b.These were matter that were clearly set out in the letter to the Father tendered at 2;
c.The estimate provided in the letter endeavoured to provide a fair estimate of the expected fees. In reality, the actual fees are likely to exceed the estimate of $4,400, taking into account:
i.Reading the Father’s material and consider options - 1 hour, $770;
ii.Preparing the Response and these Submissions, including reading the Judgment - 3 hours, $2,310;
iii.Preparation for Court estimated to be 1 hour - $770; and
iv.The Court attendance estimated at 2 hours - $1,540.
TENDER BUNDLE
[1] - email from the Applicant Father to FGD dated 20 April 2022
[2] – letter from FGD to the Applicant Father dated 21 April 2022
[3] – email from ICL to the Applicant father dated 21 April 2022
Written submissions of the Independent Children’s Lawyer
The Independent Children’s Lawyer’s submissions were contained in a Case Summary Document which was filed on 29 April 2022; they were as follows (emphasis in original):
1.This outline of submissions in directed to the application in proceeding filed by the Applicant Father on or about 11 April 2022. The applicant seeks a contempt finding against the solicitor for the respondent and that his Honour Judge Neville recuse himself from further conduct of the matter. The matter is listed for final hearing for two days commencing 25 May 2022. Interviews of the parties to enable the preparation of a Family Report are to take place on 3 May 2022.
Contempt application
2.The applicant seeks a finding of contempt against the solicitor for the respondent. The affidavit filed in support makes a number of assertions.
3.An allegation of contempt is to be determined in accordance with Section 112AP of the Family Law Act which provides as follows
Subject to section (1A), this section applies to a contempt of court that:
(a) Does not constitute a contravention under this Act or;
(b) Constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
Subsection (1A) excludes the provision in circumstances of a contempt of a maintenance order and does not apply in this matter.
4.Division 11.2.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules deals with applications for contempt. The relevant rule is rule 11.71.
5.Pursuant to rule 11.71(2) an application must:
(a) Be in accordance with the approved form;
(b) And state the contempt alleged;
(c) Be supported by an affidavit setting out the facts relied on.
6. An application for contempt and the supporting affidavit must be served personally on the respondent per rule 2.28 and table 2.2.
7. Rule 11.71(6) and 11.71(7) directs the court regarding the manner in which a contempt application is dealt with.
8. Applications seeking findings of contempt, being quasi-criminal, must be pleaded with particularity, deliberation and care. It is open to the Court to dismiss the application insofar as it seeks that [Ms G] be held in contempt on a number of grounds, including:
(a) The application has not been made in accordance with the prescribed form;
(b) The application does not clearly state the contempt alleged and is completely lacking in particulars;
(c) The affidavit filed in support of the application makes assertions and submissions, however these do not constitute evidence of the case sought to be prosecuted by the Applicant;
(d) The Affidavit has not been witnessed; or signed on each page contrary to Rules 8.15 and 8.16; or signed in accordance with the FCFCOA Practice Direction – COVID-19 Special Measures practice direction;
(e) It is not known if the application has been served personally upon [Ms G] as required by the Rules.
Recusal application
9. The Applicant also seeks that his Honour, Judge Neville recuse himself from the matter.
10. The test is well established as being whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” per Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. This test and other decisions directed to apprehended bias are expounded in the recent judgement handed down by his Honour on 2 December 2021 in dealing with the Applicant’s application to discharge the then Independent Children’s Lawyer.
11. The Affidavit filed in support does not identify matters, even if established by evidence in admissible form,that could form a basis to meet the objective test laid down.
12. The Applicant appears to raise objection (Affidavit paragraph 5) to the making of a section 102NA order in circumstances where he had an opportunity to file submissions on the issue (per Orders made 20 April 2020) and where the Court’s determination is reflected in the Orders made 29 April 2020. The Applicant did not lodge an appeal to the Orders of 29 April 2020.
13. The Applicant also takes issue with proposals earlier in the proceedings regarding possible experts (Affidavit paragraph 6). In the event none of these experts are preparing a report and the parties will attend upon a court expert on 3 May 2022. The difficulties apparently attending the appointment of an expert (which predate my appointment as Independent Children’s Lawyer) do not provide a basis for recusal.
14. The Applicant also complains that the Respondent “refused” to attend mediation (Affidavit paragraph 8) and that the matter has been “dragged out” (Affidavit paragraph 11). Neither forms a basis for recusal. The matter is listed for hearing in less than a calendar month. To finally determine the present proceedings can only be in the best interests of [X] and his parents.
15. The Independent Children’s Lawyer submits it is open to the Court to dismiss the application of the Father filed 11 April 2022.
Outline of principle – Contempt
In Australasian Meat Industry Employee’s Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 the High Court noted the rationale behind any exercise of the contempt power of a Court, which in this instance, would be exercised under either common law doctrine or under s.112AP of the FLA.[2] That rationale is that such a finding, Order and penalty “is necessary to uphold and protect the effective administration of justice”.[3] Another purpose, the High Court said, is to protect the effective administration of justice by demonstrating that “the Court’s Orders will be enforced.” In the Father’s current Application, there is no suggestion that the Mother’s lawyer, Ms G, has not complied with any Order of the Court. However, clearly, the Father has done so more than once, including not complying with Orders for the filing of material for this interlocutory hearing.
[2] Australasian Meat Industry Employee’s Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98. See also s.112AP of the Family Law Act 1975 (Cth) (“the Act”).
[3] 161 CLR at 107.
There is no dispute that the standard of proof regarding contempt is at the relevant criminal level, namely beyond reasonable doubt, in contrast to the civil standard of “on the balance of probabilities.”[4] For example, in Witham v Holloway, the High Court confirmed that “… all proceedings for contempt must realistically be seen as criminal in nature. The consequence is that all charges for contempt must be proved beyond reasonable doubt.”[5] Unsurprisingly, decisions of the Full Family Court have followed the High Court’s outlines of principle in the cases referred to, among other decisions.[6]
[4] See s.140 of the Evidence Act 1995 (Cth).
[5] Witham v Holloway (1995) 183 CLR 525 at 534 and 535. See generally s.141 Evidence Act 1995 (Cth) regarding this relevant standard.
[6] See Tate & Tate (No.3) (2003) FLC 93-138; Bande v Cade (2012) 45 Fam LR 376.
It is also undisputed that the person alleging the contempt bears the onus of proof of each and every element of the charge(s) made.[7] That person here is the Father.
[7] See, among many cases, the Full Court authorities of DAI v DAA (2005) 191 FLR 360; 33 Fam LR 1; LGM v CAM (2006) 200 FLR 360; 35 Fam LR 124.
Outline of principle – Bias & Recusal
The following outline of principle was set out in my December 2021 judgment regarding the Application to recuse the then ICL.[8] It has been reproduced here but with some notable additions from more recent Full Court judgments.
[8] Manual & Pinner [2021] FedCFamC2F 468.
In Ebner v Official Trustee in Bankruptcy (“Ebner”), noted in an earlier judgement delivered in this same matter, the High Court said (internal citations omitted)[9]:
[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[9] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] – [8].
In Johnson v Johnson, at [12], the High Court confirmed the “qualifications”, so to speak, of the “fair-minded lay observer”:[10]
… 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”.
[10] Johnson v Johnson (2000) 201 CLR 488 at [12].
While these statements of principle apply directly to the conduct of judicial officers, they are also generally applied to other decision-makers and office-holders, usually with some slight adjustment so that proper regard is taken of the nature of the body or person making the decision.[11] The basal principle, however, remains the same.[12] This is to say that the essential and objective test to be applied is, for example, as stated by Nettle and Gordon JJ in CNY17 v Minister for Immigration and Border Protection at [56] (internal citations omitted):[13]
The test for apprehended bias is whether "a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide". A finding of apprehended bias is not to be reached lightly.
[11] See Ebner at [4]; and Edelman J in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 (“CNY17”) at [136].
[12] See, for example, the High Court’s comments in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, regarding alleged bias against a Minister making a decision under a particular statute; Isbester v Knox City Council (2015) 255 CLR 135, regarding alleged bias against a decision by a council officer; and CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, regarding a decision by the Immigration Assessment Authority and then by the Minister.
[13] CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [56].
At [58] in the same judgment, their Honours went on to say (internal citations omitted; emphasis added):[14]
In applying the test, "it is necessary to consider ... the legal, statutory and factual contexts in which the decision is made". It is also necessary to consider "what is involved in making the decision and the identity of the decision-maker". This draws attention to the fact that the test must recognise "differences between court proceedings and other kinds of decision-making". The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair-minded lay observer has "a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]".
[14] 268 CLR 76 at [58].
As stated by the High Court in Michael Wilson & Partners Limited v Nicholls, at [31] – [33] (internal references omitted), the relevant test is:[15]
[31] … 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.
[32] As the plurality in Johnson v Johnson explained, [“t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues."
[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
[15] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [31] – [33].
Further, as the High Court has emphasised, the application of the ‘apprehended bias’ test is an objective one. The Court also cautioned about the need to be precise and not to conflate consideration of actual bias and apprehended bias. Thus, again in Michael Wilson (244 CLR at [67]) dealing with both of these aspects, the Court said (internal citations omitted; emphasis in original)[16]:
… an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
[16] 244 CLR 427 at [67].
Further, the High Court commented in terms that, in my view, are relevant to the further conduct of the current proceeding. At [69] – [70], the Court said (internal citations omitted):[17]
[69] Here, however, it was said that “the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern". That concern was identified as the possibility “in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure”. But the existence of a “concern” described as the possibility of placing the evidence led at trial into a “pre-existing mental structure” does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
[70] The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. It may well be that the directions not to disclose material should not have been left in force for as long as they were. Perhaps they should not have been made at all. But if their making or the failure to limit their duration was wrong, that did not found a reasonable apprehension of bias.
[17] See also Heydon J’s comments, at [117], to the effect that, even on the facts of that case, “prolonged familiarity” was insufficient to establish any relevant apprehended bias.
I highlight the High Court’s comments in the hope that they assist everyone to consider, among other things, the Rules of Court in relation to proper process.
I should also observe the following comment by Kirby J in Antoun v The Queen, where his Honour repeated the earlier (and regularly repeated) caution by Mason J in Re JRL; Ex parte CJL.[18] At [34], Kirby J said (internal citations omitted):
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases.
[18] Antoun v The Queen (2006) 80 ALJR 497; (2006) ALR 51; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.
The authorities to which I have referred, in particular those from the High Court and from the Full Court, have been repeated in very recent Full Court decisions, such as Naparus & Frankham (No.3) and Lim & Zong.[19] This is also to say that the principles concerning apprehended bias remain well-established and consistently applied with no relevant deviation or amendment. It is their application to the specific facts in each case (including here), and the context of the matter at hand, that are most immediately relevant.
[19] Naparus & Frankham (No.3) [2021] FamCAFC 150, and Lim & Zong [2001] FamCAFC 165.
All of this said, in a slightly different but still related context, in Johnson v Johnson (a family law matter), the plurality of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), at [13], noted that the “rules and conventions” regarding judicial (and I interpolate, some other relevant) practices are “not frozen in time”, and that they develop “to take account of the exigencies of modern litigation.”[20] These exigencies include, the Court noted by way of example, trial judges responding to “more active case management.”
[20] Johnson v Johnson (2000) 201 CLR 488 at [13].
Consideration and disposition
On 11th April 2022, the Applicant Father filed an Application in a Proceeding in which he sought two Orders: (a) that the [Mother’s] solicitor, Ms G, be found in contempt; and (b) that I recuse myself from the proceedings. I have noted earlier in these reasons, and in earlier judgments, that litigation between these parties has been on foot, semi-regularly, since 2013. This is his first Application for recusal against me in the 9 or so years of litigation and with, literally, only a few weeks until the final hearing. Some might suggest that the timing is a tad curious.
The Schedule to Rule 2.01 prescribes that an Application for Contempt is to be filed on a specific, prescribed form. The Father has not complied with this Rule because his Application is the standard form for an Application in a Proceeding. Thus, in so far as it relates to seeking relief for alleged contempt, the Father’s Application is defective. He has not sought any relief or relaxation of the Court’s Rules.
In support of this most recent Application, the Father filed an Affidavit which was not properly sworn or affirmed. In fact, it was not sworn or affirmed at all. It is simply a signed statement by the Father. This is to say that it is simply, in form and substance, an unsworn statement in the form of an Affidavit. As such, the Application is formally unsupported by an Affidavit. Rule 5.04 of this Court’s Rules requires that an Application must be supported by an Affidavit. An unaffirmed statement does not constitute an Affidavit. As such it is defective because it does not comply with the Rules of Court.
The matter is listed for final hearing on 25th and 26th May 2022, thus in approximately 2 weeks’ time.
Like many litigants in long-running matters, there seems to be, in almost equal portion, elements of frustration (sometimes spilling over into anger) and disappointment. Throughout the overwhelming bulk of the litigation, the Father has been, almost invariably, engaging and reasonably civil in his discourse in Court (obviously when self-represented – in times past he has been legally represented), and equally reasonably civil in correspondence with the Court.
Most regrettably, for perhaps the past year or thereabouts, the Father’s conduct has become increasingly irascible, unco-operative and decidedly uncivil. In very recent times, even more regrettably, he has substituted reasoned argument (in the usual legal sense) with insult, invective and constant, but needless, confrontation with almost anyone and everyone. Even more regrettably, this obviously intelligent man presents as a perpetually angry person who somehow thinks that insult is both proper and appropriate, and that it will somehow benefit his parenting Application before the Court. Respectfully, such conduct demeans him, and wastes the time and the resources of everyone, including the Court.
Noted a little later in these reasons in more detail, his insults and accusations range from (a) the Court is, (and that in particular) I am, corrupt and lying, to (b) Ms G is lying in her statements to the Court, (c) that the previous ICL was lying and colluding with Ms G, (d) his ire has recently turned to the most recently appointed ICL, Mr Robinson, who the Father says is also lying to the Court, and (e) everything is “pre-determined” and has been “pre-determined since 1975” (when the Family Law Act came into force). Matters have also been pre-determined, he says, by virtue of his gender – he put this rather more crudely by reference to his genitalia, presumably thinking that this would add force to his unfortunately jaundiced invective. It did not.
Based upon a number of matters over the years that have involved litigants, notably Fathers, the language used by the Father here over the last 12 months or so (and his very different conduct from his earlier general civility), reflects those who have become associated with various local and international “lone Father’s groups”. Again, how such groups, or individuals influenced by them, think that yelling, insulting, and refusing to comply with standard directions and procedures, and the like, assists anyone, especially their child or children, and equally how such intemperate and ill-considered conduct assists the Court, is inexplicable. It is bizarre to have to state it, but rudeness, in any form, and offensive conduct, is inappropriate and invariably counter-productive.
“Lone Father’s groups” (and similar) effectively become protest groups predominantly of angry and disgruntled men. The like-minded seek solace and support in anonymous insults, the sanctuary and refuge of the craven, regularly ill-informed, and also regularly cowardly. They are all “victims” of the system. I am not speaking directly of the Father here. I am referring to various literature that has been put before me in other, not dissimilar cases, where a Father was even accessing online literature from overseas from similar groups during the hearing. That literature used language similar to that which the Father now uses. It is aggressive, insulting and makes outrageous and unsupportable claims. Slogans, epithets, generalised complaints and insults do not constitute submissions or evidence. Such language and actions can easily constitute contempt.
In the philosophy or mythology of such groups, the faults lay with any, or some combination, of the following: the system (always vaguely and broadly defined), the Court, the ICL, the Mother, the family consultant, the police, and government authorities. Patently, everyone else is to blame, but never the Father. Hence, he is the victim, which [apparently] also gives some form of justification for his recent shouting and protesting, declaring that he will only answer questions from the Court if the Court answers his own constantly changing questions that are not relevant to assisting the Court in making Orders that are in X’s best interests. In his own words, he now “plays by his own rules” and certainly not those of the Court.
Some of these single-interest enclaves of mutual protest and loathing for the system, and of course those who are seen as representatives of it (such as judges), are likewise captured or presented well by the studies of domestic violence, overwhelmingly against women. Studies like Look what you made me do: Fathers who kill by Megan Norris, or See What you made me do: power, control and domestic abuse, by Jess Hill, highlight relevant characteristics of the tragic actions of many who are caught up in relationship breakdown, many of whom become involved in family law litigation. Again, I do not link the Father directly with any of the matters set out in such studies.
Because I have had litigants similar to the Father over the years, what is very troubling, less for me personally but more so for my Associates, those in the Registry, and even security staff at the Court, is the historically reasonably civil, engaging and engaged Father, but in recent times and for seemingly inexplicable reasons, who has now adopted a position of abuse, insult, aggression (a form of bullying), strong protest and general non-conformity with direction and Orders of the Court. His actions, both in person, and in the length, frequency and tone of emails to Chambers (which consistently do not comply with standard and prescribed guidelines for communication with Chambers), has been very upsetting to all. For reasons passing strange, the Father seems to think that such aggressive and non-conformist conduct assists his cause or case. As he said on one recent occasion in shouting protest about the Court’s then in place vaccination-status directives, at least he “has the balls to stand up against the policy”, unlike everyone else who caves in to it, and otherwise abide by, or conform with, it. Doubtless this is of some strange comfort to him. I cannot imagine that he would promote his disruptive and disrespectful conduct as a model for his son X.
The transcripts from the two most recent attendances in Court should be taken to be incorporated into these reasons as attachments. Likewise, the Father’s “Affidavit”, in full, will be an appendix also.
Less offensive but still completely non-conformist and overtly disruptive were his actions last year in seeking to interview any and all experts who were proposed to be retained, and paid for, solely by the Mother. These actions were prominently the subject of my December 2021 judgment concerning the Father’s Application to have the then ICL be recused from the proceeding on the basis of apprehended bias. On that occasion, the Father’s contentions were very much in the form of a protest at what he perceived to be some sort of conspiracy against him. Oddly, all everyone was trying to do was get a report from an expert. For such an intelligent man, it was very odd that he thought (indeed he submitted) that if someone paid for the report, the expert would necessarily produce a report that followed the views of the piper who paid said expert. As set out in those December 2021 reasons, the Father’s arguments and actions were counter-productive, disruptive, illogical, and contrary to a wide range of standard practices and principles regarding the use of experts. His actions consumed, indeed wasted, much precious time and resources and delayed obtaining a report, which the Court has gone to great lengths recently to secure at very short notice.
Finally, the Father’s Application, especially regarding the recusal, is slovenly in every respect. Apart from his insults against both Ms G and me, and general protests and unsubstantiated assertions, in my December 2021 judgment, I set out many principles from the leading authorities on apprehended bias. Thus he had the outline of principle to which he could refer to assist in framing his Application. Clearly he has not done so. He has taken the so-called easy path; just shout and make unsubstantiated claims. That is enough, it seems, to stand up to the system. Protest and invective is always ever so much better than direct, reasoned and proper engagement.
In addition to the non-conformist, unsworn Affidavit (which strictly speaking cannot be relied upon), and the further non-compliance with the prescribed form of Application for Contempt, Orders were made on 12th April directing parties to file an outline of submissions and the time-frame for doing so regarding the Father’s Application. The Father did not comply with those Orders. As such, Part 10.6 of the Rules applies regarding default, which would lead to the Application being dismissed.
In the alternative, and in addition to the defaults already recorded, I note the following regarding each aspect of the Application. I will deal firstly with the Application for contempt.
The contempt Application
Doing the best that one can with the disparate claims made by the Father, the contentions against Ms G regarding the contempt Application, summarised, are (some comments are provided along the way):
(a)“over many years, Ms G has dragged the process out … by repeatedly failing to file paperwork on time and even presenting late paperwork during a hearing …” (par.1a). At different times, both parties have been dilatory and or negligent in the late filing of material. No details are provided by the Applicant Father. Late filing of material, on any view, is not usually regarded as a hanging offence that would require a criminal conviction for contempt. But it seems the Father considers this to be appropriate. If so, his judgment is seriously askew in this regard;
(b)“On 22nd March 2022 [she has] lied to the Court by stating that a previous report writer Ms D was unaware that she had spoken to me…” (par.1b);
(c)“Ms G is “without morals … who makes money out of lying” (par.3); no details are provided;
(d)On 22nd March Ms G (and Mr Robinson) told lies (par.4); no details provided;
(e)In 2020, Ms G (and the Mother) “made false allegations under s.102NA” (par.5); again, no details are provided. Note however that even on the Father’s material, he confirms that they are “allegations” (as opposed to established facts), which he obviously disputes. Simply because something is alleged, without more, does not make such matters true. The Father’s offence seems to be that there are any allegations at all. To state the obvious: there would be no proceedings if either parent did not make any allegations of any kind;
(f)In 2019, the Father said that he attempted to mediate the matter multiple times but that the Mother and Ms G “repeatedly refused.” (par.8). The rest of the paragraph is another attack on me ultimately for not forcing the Mother, apparently, to agree to some resolution;
(g)On 23rd October 2020, the Father said that he attempted to “have lies that were being told by Ms G [and apparently HH] about me withdrawing the contravention matter addressed …” (par.9);
(h)The Father asserts that “the evidence not only shows that Ms G lied …” (par.10). The Father proceeded to confirm that “so-called “experts”, in the form of psychologists … also lie” and that all this shows “that the entire system is corrupt right up to the judge” (par.10);
(i)The Father alleges further that because of my delay and not doing my job, this has drawn out the matter, which has resulted in “vexatious costs claims” by the Mother and Ms G (par.11);
(j)At par.12, the Father makes accusations against the Chief Judge. The rest of this short paragraph goes on to make similar assertions about delay. It is not clear if this accusation is directed to the Chief Judge or me, or both. Given that no relief is sought against the Chief Judge I will not address this paragraph further;
I will not repeat the number of times that the claim or assertion by the Father in his unsworn statement has little or no relevant detail. A mere assertion does not make something either an uncontested fact or statement of evidence that can or should be accepted by the Court. An assertion, is an assertion, is an assertion (to paraphrase a quote from famed English actor, Richard Burton, in the movie Where Eagles Dare). Assertions, without more, do not constitute evidence.
There is no doubt that parties in family law litigation regularly, and most unfortunately, wait far too long for hearings. Currently, I have a list of more than 80 matters still waiting for trial dates. The litigants in those matters are currently anticipating getting trial dates sometime next year or the following year. That is completely unsatisfactory. In the old Family Court, the current wait in Canberra for trial dates is now 3 years. For all of the trumpeting, mostly by government, of new systems, new labels, and the like, little has changed. These facts, which are borne out by any casual look at any of the Court’s Annual Reports over many years, assist no one, but they also cannot and do not lead anyone, without much more, to sheet such delay as there is, to either the Court itself (there are only so many sitting weeks every year) or to legal practitioners.
It is true that some firms are quite adept at filing documents and the like. But ultimately claims by one or other party can only be dealt with at a final hearing where evidence can be tested. This is a tedious comment especially for self-represented litigants who (somewhat understandably) see only their own matter in front of them. They do not see (or care about) the hundreds of other families (and other litigants in all areas of the Court’s wide jurisdiction) that have to be managed either by each Judge, or now by multiple various virtual registrars around the country. These are simply the facts of litigation on a day to day, week to week, month to month, basis.
In short, in so far as any of the Father’s claims against Ms G relating to delay and costs, regrettably (a) most of his claims are simply the warp and woof of the cumbersome and constantly overwhelmed Court system, and (b) delay and cost, without much, much more, cannot found any claim for contempt.
In a similar vein, the Father’s claims against Ms G regarding lying are (a) incredibly serious, and (b) do not remotely reach the relevant criminal standard. More particularly, most if not all of the multiple pieces of correspondence attached to the Father’s signed statement (i.e. purported Affidavit) were the subject of comment and adjudication in the judgment from December last year. There the Father’s focus was on the removal of the then ICL. Here, the Father uses much the same material, but unfortunately, he has no regard, or no proper regard, to the circumstances set out in the December 2021 judgment that should have informed him of many basic principles and the importance of more complete facts and circumstances. That judgment set out in summary form the Father’s role in that whole misadventure (among a number of others) regarding the selection of an expert. Further still, the focus of so much of the Father’s angst here relates to what did and did not pass in correspondence and discussion with the office of one of the nominated experts in Sydney (who ultimately saw no party or the child and took no part in the proceeding), with the then ICL, and Ms G.
It may ultimately be explained, from the proposed expert, Ms D, that she simply forgot who spoke to whom at any one time. Given how busy experts are, as are most people, it would be remarkable that, absent some particular and recorded reason, how or why an inquiry (which is what I understand occurred regarding her availability or something along those lines) would be recalled would be remarkable. Nor does anyone, including the Father, explain how, why or what relevance an inquiry to Ms D sometime in 2021 is to the current Application. Such contentious, veiled and inconclusive claims are just that – contentious, veiled and inconclusive. Doing the best that anyone can in the historical circumstances of the inquiry made, her office seems to have been the primary point of contact. If she had any direct contact with the Father, it can only have been fleeting and relatively inconsequential. Ultimately, no interviews with anyone took place with Ms D.
I have already commented briefly on the other grave and unsubstantiated claims and assertions of the Father regarding Ms G lying, and being without morals. Should it need to be recorded, this is not a Court of morals; it is a Court of law, which the Father recently has pressed that I enforce, but apparently not in relation to him.
Having regard to the criminal standard that must be met for contempt applications, the claims against Ms G are without the slightest foundation. If stated outside the Court, they would likely be libellous. That part of the Application relating to contempt must be dismissed.
The recusal Application
And as earlier noted, there is some overlap with the Father’s complaints against Ms G and the multiple complaints against me. I will not repeat matters where there is overlap.
Pars.2 and 3 of the Father’s purported Affidavit contain a range of assertions regarding my alleged biased conduct towards the Father, which included me permitting lies to be told in Court. He moves on to contend that “gutlessly” I refused to deal with his contentions about lying. This then became conflated with general assertions against registrars of the Court, contending that judges and registrars alike accept without question assertions by lawyers. He then asserts, perhaps unproblematically, that all people can lie.
The singular problem for the Father is that he consistently, notably in recent times, seems to think that the mere assertion or contention by one party or the other is either accepted (i.e. the Mother’s) or rejected (i.e. his). It has been repeatedly pointed out to the Father that it is not appropriate to make any findings about truth and other facts “on the run.” All must await the final hearing. This basic point of procedure seems to have escaped the Father. It clearly aggravates him; better to make decisions on the run, provided I accept his assertions.
The Father further contends that I have refused to listen to him (par.3). Precisely when this occurred was not specified. After litigating on and off since 2013, I suggest that he has had a reasonably fair hearing, not to mention essentially unfettered use of Court resources, thus far. True it is that, at times, time has been short, and some frustration on all sides has been evident. But the case law makes plain that nothing of that sort, without much more, constitutes bias of any sort.
At par. 4 the Father contends effectively that, at the hearing on 22nd March, I listened to the lawyers but not to him and that I “shut [him] down.” The attached transcript tells a rather different story and speaks for itself, including the number of times that the Father sought to interrupt, and effectively to disrupt, the hearing.
Par.5 refers to the 29th April 2020 Orders under s.102NA. Those Orders are prefaced by detailed notations that confirm, among other things, that such an Order reflects no finding or opinion of the Court about allegations made. The Order was made (a) in circumstances where the Father confirmed in writing (by email) his intention to cross examine the Mother, and (b) the s.102NA Order was made under the Court’s discretionary authority in the section. The Father completely mis-states the terms and circumstances of the s.102NA Order. Moreover, as he has been advised many times, he cannot cross-examine the Mother in the face of the allegations against him. It follows that the s.102NA Order was designed and intended to assist the Father. Clearly, he does not like assistance of any kind, especially from the Court.
In passing, this relatively new amendment to the Act was intended by the Parliament to protect parties from being exposed to cross-examination by their former spouse or partner. It would very likely be highly detrimental to one or both parties to cross examine the other directly in the current matter. Plus, most self-represented litigants are not conversant with the rules of evidence, and very often let emotion, anger and much else, get the better of them when facing their former spouse or partner in the witness box.
Further, the first s.102NA Order was made in 2020. The Father did not appeal those Orders. According to long-standing High Court authority, delay in bringing any apprehended bias Application is invariably fatal.[21] There is very significant delay by the Father to found a bias Application in 2022 arising from Orders made in 2020, which he did not appeal.
[21] See Vakauta v Kelly (1989) 167 CLR 568 at 579; Smits v Roach (2006) 205 CLR 423 at 439-440 & 445; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 449.
Regarding the generalised claims about Ms D, and who knew what, when and how (including me), the Father assumes that I read, or am informed about, all correspondence from all litigants and practitioners. First, given the large number of matters for which I am responsible, it is completely impossible for me to do any such thing. Secondly, it is completely inappropriate for me to know about almost everything that comes to the Court by way of correspondence. My Associates are required to act to ensure that only the most urgent aspects of any correspondence are conveyed to me. Even then, necessarily, it is quite selectively done. I understand that, even since the abortive hearing last week, the Father has continued to send lengthy emails lamenting as well as critiquing (I am using polite language) various aspects of the Court and the process. Like other correspondence, I have not seen this latest extended discourse by the Father. My long-suffering and ever-so patient Associates, both of whom have only been with me for relatively short periods of time after their graduation, have had to bear with the Father’s regular tirades. They should not have to deal with such over-bearing and often-times quite rude conduct. If the lengthy, unsolicited emails continue, they will have to be blocked and the Father will only be able to correspond with the Court via the Registry.
The anonymous contentions in par.7 are offensive and scurrilous. Again, the lawyers to whom the Father refers are not named. Presumably they are not game to be named, or sufficiently practised or experienced, to act for the Father. The Father’s unsourced and generalised claims are cowardly. Further, to run a docket of more than 300 – 400 matters year after year hardly qualifies as indolence. Again, another instance of selective trial by assertion and insult without evidence. The actions here are the refuge of the frustrated and angry. In fact, I feel quite sorry for the Father. He seems so out of sorts in recent times that his focus seems heavily on some strange course of revenge, or to attack anyone or everyone who he sees as standing in his way, on a path to who knows where.
Further, in the same paragraph, the Father contends that my comment about asking him what is to be done was in some way despicable. Ah, despicable me … It was another, albeit shorthand, way of reminding the Father that all relevant claims must wait to be determined at the final hearing. Doing things on the run is a recipe for disaster, such as at a directions hearing. In a matter where hiccups and much else have abounded, playing safe is best. The Father clearly does not approve.
Another regular complaint of the Father (see par.8) relates to his attempts to have the matter go to mediation. As he noted in his Affidavit filed 2nd May 2018, pars.7 – 10, the Mother has consistently refused such overtures. This Affidavit was prepared and filed when the Father was legally represented.
Simply directing parties to go to mediation, where there is no prospect of resolution, is a futile exercise. Courts do not, and should not, make futile Orders. A claim of bias, of any kind, arising from a Court not directing the parties to go to mediation where there is a history of failed mediation is no basis for a recusal Application.
Par.9 refers to a contention that on 23rd October 2021, relating to some contentions by Ms G relating to the Father’s contravention Application, the Father was not permitted to speak. Apart from anything else, again the delay in making a claim for bias arising out of events in October 2021 is significantly late and fatal to his bias Application. On the authorities referred to and set out in the December 2021 judgment, it amounts to waiver by the Father. In any event, it has no legs, as the saying goes. It is a bald assertion without evidence. Moreover, the contravention Application was ultimately dealt with by a Registrar. I do not understand that there has been any claim by the Father that he was not listened to at that hearing; nor has there been any appeal in relation to the Orders made by the Registrar on that occasion.
Par.10, noted in part earlier, ends with a general claim that “the entire system is corrupt right up to the Judge.” There are no particulars. The Father should report the Court to the Attorney-General, whoever that person will be shortly. It is a very grave charge that a Judge is corrupt, not to mention that the whole system is corrupt. It is also a very sad charge that, in many ways, reflects the state or disposition of the Father. In the circumstances, his disgruntlement with the system, like others before him, is no substitute for real evidence or reasoned argument. Threats and invective do not assist his cause. His claims about “the system” are rather like bellowing at the moon, as the saying goes, or railing against the night …
In a very recent judgment, Gageler J in the High Court dealt with an Application arising from proceedings against a Judge of Division 1 of this Court, which sought relief and made claims quite similar to those made here by the Father.[22] The Application was brought not by a disgruntled man but by a disgruntled Mother. In the course of his very brief reasons refusing relief, Gageler J noted the relief and grounds as follows:
Baumann J has “committed a breach of... s 5 of the Constitution” by “failing to follow the law” during the family law proceedings and has both improperly failed to recuse himself and committed a number of criminal offences; and that the Attorney‑General and other public officers have similarly committed criminal offences. These serious allegations are made in tendentious terms and are not supported on the evidence in the accompanying affidavit.
[22] Nichles, In the matter of an application for leave to issue or file [2022] HCATrans 95 (13 May 2022).
His Honour later said that such claims amounted to an abuse of process. He also said that they were vexatious. Respectfully, I accept and borrow his Honour’s comments as generally applicable to the current Application.
Pars.11, 12 and 13 are similarly general protests of disaffection and grief with the system, and/ or with me in particular. Whatever claims are genuinely made, with actual evidence as opposed to broad assertion, will be the subject of final adjudication at the hearing in a few weeks’ time. I look forward to hearing all the evidence at the end of May.
In addition to the reasons given here, I accept the submissions on behalf of Ms G and the Mother, and the ICL. There is no satisfaction of the relevant tests for apprehended bias in accordance with the High Court’s decision in Ebner and later cases. Disgruntlement, frustration and complaint, without rather more in this instance, do not translate into bias of any kind. Accordingly, the Application filed 12th April 2022, must be dismissed.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 20 May 2022
ANNEXURE A
TRANSCRIPT OF PROCEEDINGS
TRANSCRIPT IN CONFIDENCE
…
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
CANBERRA REGISTRY
JUDGE WJ NEVILLE
No. CAC 1658 of 2013
PINNER
and
MANUEL
CANBERRA
9.21 AM, TUESDAY, 22 MARCH 2022
MS G appears for the applicant mother
MR MANUEL appears in person
MR ROBERTSON appears for the independent children’s lawyer
MR LEE appears for Legal AidCopyright in Transcript is owned by the Commonwealth of Australia. Apart from any use permitted under the Copyright Act 1968 you are not permitted to reproduce, adapt, re-transmit or distribute the Transcript material in any form or by any means without seeking prior written approval from the Federal Circuit and Family Court of Australia.
THIS PROCEEDING WAS CONDUCTED BY TELEPHONE CONFERENCE
HIS HONOUR: Ms G.
MS G: Your Honour, I appear for the mother in this matter.
HIS HONOUR: Thank you. Mr Robertson.
MR ROBERTSON: May it please the court, I appear as the newly minted independent children’s lawyer.
HIS HONOUR: Thank you. And is Mr Manuel on the line there?
MR MANUEL: Yes, Mr Manuel, self-represented.
HIS HONOUR: Thank you.
MR LEE: Your Honour, if I may, this is Mr Lee. I haven’t filed a notice of address for service, but I’ve been contacted by Legal Aid to represent Mr Manuel under the Family Violence Cross-Examination Scheme.
HIS HONOUR: Okay. Have you spoken to Mr Manuel at all yet or not?
MR LEE: No, I left a message yesterday on his mobile, and sent him an email yesterday just to let him know that I’m on board, so it’s the first time I’ve heard his voice.
HIS HONOUR: Right. Okay. So, Mr Manuel, I take it this is all news to you, yes?
MR MANUEL: That’s correct. I got a voicemail very late yesterday. I’ve had no discussions with him and, at this point in time, he has no permission to act.
HIS HONOUR: So when did you first make contact with Legal Aid pursuant to the 102NA order?
MR MANUEL: Several weeks ago, probably a month ago.
HIS HONOUR: All right. Okay. Well, you know, in a case that never fails to keep on giving, the finish line is in sight. So, Mr Lee, I will just leave you to liaise with Mr Manuel, obviously, beyond the course of this morning’s brief exercise, very well?
MR LEE: I will take notes and then not participate since I don’t have strict instructions.
HIS HONOUR: No. No. Very well. So, Mr Manuel, the purpose of this direction hearing is, above all else, just simply to check that the matter is on track for the final hearing at the end of May. So I ask, basically, the same sorts of questions of everyone who is directly involved. So subject to you liaising, giving instructions, not giving instructions to Mr Lee, from your perspective, is the matter basically ready to proceed?
MR MANUEL: No. That’s the short answer. No.
HIS HONOUR: And why is that?
MR MANUEL: I’ve told yourself and everyone involved for many, many, many years, and it has been dragged out and dragged out and dragged out by certain people. Even in the last couple of weeks with the issues with the ICL. We had one ICL pack up and run. We’ve had another ICL lie to the court and say that she didn’t have a conflict of interest when she did.
HIS HONOUR: Mr Manuel ‑ ‑ ‑
MR MANUEL: We’ve just had ‑ ‑ ‑
HIS HONOUR: Mr Manuel ‑ ‑ ‑
MR MANUEL: ‑ ‑ ‑ two lies this morning.
HIS HONOUR: Mr Manuel ‑ ‑ ‑
MR MANUEL: So ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ this is meant to be a short directions hearing to find out if the matter is ready for hearing. I am just immediately struggling how or why anyone who was previously involved in the matter, who is no longer in the matter, has any relevance to the hearing going ahead at the end of May, that’s all.
MR MANUEL: Okay. Let me get on to the point, then – that being for years, it has been dragged on that we’ve got to have a family report writer, dragged on and dragged on. We’ve got to do this. Then we had Ms G fail to do her job and provide – and there’s a long history to that, and you should be well aware of it. Now, all of a sudden, Ms G has gone, “No, forget about that. Just write off the last few years. Forget about it and just run it anyway.” Well, what has the point of the last few years been? I have been speaking up and speaking up for years, and it has been dragged out by Ms G and now, all of a sudden, “Forget about it.” What’s the point?
HIS HONOUR: I’m just simply wanting to know the state of readiness for the hearing. Have there ‑ ‑ ‑
MR MANUEL: Well, I’ve just told you. It’s not ready.
HIS HONOUR: Have there been interviews with the expert?
MR MANUEL: No, because the expert lied and recused herself. She should have recused herself 12 months ago. I told Ms L. I told yourself even – your associate and yourself 12 months ago that she should have recused herself. She failed to do it. I told Ms L and you multiple times throughout last year and nobody did anything. Then Ms G contacted her without my consent, and it was left up to me to do everyone’s job for them yet again and say, “You should have recused yourself 12 months ago,” and she goes, “Yes, shit. Sorry I should have done that,” and now she has gone. It should have been done 12 months ago, and I’ve been telling everyone for 12 months, but nobody did anything.
HIS HONOUR: Well, we’re ‑ ‑ ‑
MR MANUEL: So don’t be blaming me for any dragging out. I’ve been raising issues for years.
HIS HONOUR: Mr Manuel, it’s – you know, we’re very fortunate to have all of your expertise on every front ‑ ‑ ‑
MR MANUEL: You’re welcome.
HIS HONOUR: ‑ ‑ ‑ but could someone please enlighten me have we got an expert or not? Mr Robertson, if there’s a problem, this is the first that I’m hearing about it.
MR MANUEL: Bollocks.
HIS HONOUR: Mr Manuel, be very careful, please. Mr Robertson.
MR MANUEL: I don’t like lies, your Honour. I don’t like lies.
HIS HONOUR: Mr Manuel, you’re in the fortunate position of being allowed into the court room virtually, but we are able to mute you. Please show at least the most modicum of respect with your commentary. Mr Robertson.
MR ROBERTSON: Yes. Thank you, your Honour. As you will appreciate ‑ ‑ ‑
HIS HONOUR: Yes.
MR ROBERTSON: ‑ ‑ ‑ I’ve come into this matter very recently.
HIS HONOUR: I understand that.
MR ROBERTSON: On my reading of the material, Ms D was appointed by orders made by consent on 14 September to prepare a family report with terms of reference. A conflict issue was raised by the father – and I’m not sure whether that was before or after those orders were made – in relation to his having contacted Ms D prior to her appointment. That issue came to a head last week where – in correspondence with Ms M who was, for a very brief time, the ICL. Ms M had understood that there had been no contact with Ms D’s rooms and indicated that to the parties which is the so-called lie that Mr Manuel talks to which was, in my submission, an infelicity on the part of Ms M as Ms D has since confirmed that when the bookings were made, she had not done the connection with contact Mr Manuel had made to her rooms and to which she had responded many months prior.
That being the case, the interviews that were scheduled for last Thursday did not proceed, and Ms D has sought to be discharged as expert in this matter. The long and the short of it is that we don’t have a report ahead of the hearing listed in late May.
HIS HONOUR: So – well, firstly, this is the first that I’m hearing about it.
MR ROBERTSON: Yes.
HIS HONOUR: Secondly, do I understand the sequence of events because I have some distant recollection – which, I think from memory, came up in the recusal application last year involving Ms L, then the ICL – that there were many instances of various people being proposed as experts, and that a number of those experts, at different times, were contacted directly by Mr Manuel, and that upon that contact – I’m just giving my general understanding – is that invariably when the father contacted whichever expert had been proposed, they then, if I recall correctly, invariably said, “Well, we’re not going to be involved in the matter at all,” and that I wasn’t aware until just now that, at some stage, it would seem that Mr Manuel had contacted Ms D.
And, certainly, had I known of those circumstances, I suspect there would have been some problem in her appointment pursuant to those orders that you have referred to. So is it – is my understanding correct, then, Mr Robertson, that there was a contact between the father and Ms D at some stage last year and then, as you say, that she didn’t join the dots until some more recent time?
MR ROBERTSON: That’s my understanding of the chronology, your Honour, yes.
MS G: My understanding is slightly different, your Honour, but I can speak to that later if you would prefer.
HIS HONOUR: Thank you. So where does that leave us, Mr Robertson? Up the creek without a paddle?
MR ROBERTSON: Well, your Honour, I’ve identified three issues that, in my submission, require some brief ventilation this morning. One of those is the family report. The other is the Rice & Asplund issue, and then the hearing and whether it proceeds without a report, or whether there’s some other process that’s possible. And in relation to the Rice & Asplund issue, I merely note – again this is from my very brief overview – that there were final orders made in 2018 that incorporated two other sets of final orders, and that there were then contravention proceedings in 2018 and ’19. And then the father filed an initiating application on 29 September 2020, and that appears to correlate with his withdrawal of the contravention application the following month.
Now, of course, I wasn’t present and there may be some relationship between those two things. In the father’s initiating application, he seeks what he says is some small variation of the final orders, and reflecting those orders what may previously have been reflected as notations. The mother, in her response filed on 23 December 2020 is seeking substantially different orders to those that were reflected in part consent orders and part judicially determined orders. In my submission, when the hearing occurs, that issue will need to be addressed. I don’t submit that it’s a threshold issue in the sense of being separately determined. I think the nature of the evidence that I have read lends it to being dealt with as part of a hearing of the total controversy between the parties.
However, formally, in my submission, it is an issue that your Honour will need to turn your mind to in determining the matter – being satisfied that there is that change of circumstances warranting that change of orders. Now, it may be that that’s a relatively straightforward step, or it may be that there is more that attends to that. In relation to the family report, I formally seek the discharge of Ms D pursuant to the order of 14 September 2021 in circumstances where she has indicated she is no longer in a position to proceed with the report. In my submission, upon either identifying another report writer, or – that that person could be substituted into that order should that arise, and I will come to that shortly.
It then turns to whether the hearing can or should proceed in late May. The – if it were to proceed as it presently stands, unless there is, remarkably, a 62G report writer who might be available because something else may have resolved in that very narrow window, then I apprehend there are no prospects of us having an expert report for that final hearing.
HIS HONOUR: There is – sorry, just to interrupt – there is. I’m just trying to think of her name in the same practice that Ms D is in. Is it Ms N,– something like that?
MS G: Your Honour, my understanding is that the whole practice is conflicted out as is the case with the other practices we’ve attempted to engage.
HIS HONOUR: I see. Thank you.
MR ROBERTSON: I have identified somebody who may – a private report writer who may be – may not be conflicted but, of course, I cannot be sure about that at this point. That person is in – is not in Sydney or Canberra. Should – and that person is not available till August. Should it be the case that the hearing at the end of May cannot proceed, and it is proposed that some other expert be retained or appointed for the purpose of preparing a report, in my submission, it would be appropriate that there be restraints against both parties from contacting that expert, and that I would propose a course of – course where all contact, except for the actual assessment interviews, was conducted through me as the independent children’s lawyer, and that if there be an issue as to the qualifications of that expert, then I can provide a copy of their CV.
And then it would be open to either party to bring an application before this court as to their qualifications or otherwise and the suitability of their appointment. For the benefit of the parties and for your Honour, I can indicate the person I’ve identified is somebody who prepares reports in this jurisdiction not infrequently.
HIS HONOUR: Are they in the ACT?
MR ROBERTSON: No, they’re not ‑ ‑ ‑
HIS HONOUR: I see.
MR ROBERTSON: ‑ ‑ ‑ but they would travel for that purpose.
HIS HONOUR: Right. Okay.
MR ROBERTSON: That, of course, would necessitate the vacation of the hearing dates. If the hearing dates are desired to be kept – and it may be that both parties may wish to take those hearing dates – then, in my submission, the only opportunities or options that may exist are in the event the 62G report writer is available through something perhaps having resolved elsewhere, or whether the court considers what’s now a child impact report. And in that respect, I note the contents of paragraphs 54 to 56 of the child-inclusive conference report of family consultant Swift from, I think it’s, December 2020. Those three paragraphs go fairly centrally to my understanding of the applications of each of the parties.
In relation to a full hearing, it, perhaps, is a matter for the parties as to whether they now seek that there be that expert report. There’s no question in my mind the nature of the dispute between the parties. Your Honour would be assisted by having such a report or, at least, something in the nature of a child impact report. I cannot say, but I apprehend that from my position as independent children’s lawyer, the absence of expert evidence brings into sharp relief the so-called Rice & Asplund issue in terms of, well, what are the changes, what’s the evidence supporting those changes that warrant the change to the order. And that then, in my submission, is likely to loom large in any hearing that might proceed at the end of May.
HIS HONOUR: Can I just ask this, though, Mr Robertson without getting too far ahead of things. Given what you’ve very briefly described, although perhaps more alluded to, of the different positions of the parties with them both seeking variations to the existing orders – and it might just be a question of degree as to what each is seeking, although my recollection is that the mother is seeking some rather more significant difference to the existing orders to what the father is seeking – when or how would any Rice & Asplund issue play out, or would that just almost fall away? Both are seeking changes.
MR ROBERTSON: In my submission, it doesn’t follow that just because two parties seek different changes to orders that are filed that it binds the court to change that and deal with that controversy. In the first instance, in my submission, your Honour has to turn your mind to that, and that may be a very brief initial issue saying, “In circumstances where both parties are seeking changes to the orders and where, clearly, the current orders aren’t working for X, I’m satisfied that it’s appropriate and there’s a significant enough change warranted.” I make that submission by way of seeking that – seeking to clarify that, in my submission, formally the court would be required to turn – your Honour would be required to turn your mind to that issue.
As I say, it may be – may take less time than this submission has taken for your Honour to determine that issue to your satisfaction. There’s no question, based on the material that I’ve read, that X would benefit from the proceedings coming to an end. And that is a factor, certainly, in favour of the matter proceeding at the end of May when these proceedings have been on foot, in one form or another, for many years. And it’s not a matter that, in my submission, would lend itself to going part-heard as in the hearing proceeding in the absence of a report, and then the parties being placed in a position where they then think that a report is necessary, or the court considers that that additional evidence is required before a final determination can be made.
I have not been in the matter long enough to have a firm view about the matter proceeding in May, but I’m certainly ready to proceed on that date should the court determine it will proceed on that day or those days. Unless there’s anything further?
HIS HONOUR: Thank you, Mr Robertson.
MR ROBERTSON: May it please the court.
HIS HONOUR: So, Mr Manuel, the questions really are whether or not the matter can or should proceed in the circumstances where an expert who was retained is now no longer able to provide a report, and subject to any other report being able to be obtained. What do you say?
MR MANUEL: As I said to your Honour and I’ve said for last, god knows how long, and also to Mr Robertson the other day, there’s – I’m happy, as I was with Ms L, to independently select a writer. That was not done.
HIS HONOUR: Sorry, I missed that last bit.
MR MANUEL: As I’ve said for a long time, and as I said to Mr Robertson the other day, I’m happy for him to independently select a report writer. He noted – now, I note that he just said then that Ms D was ordered by consent. That’s incorrect. She was selected by Ms L despite my numerous raising of issues with it. She still selected her anyway. Also ‑ ‑ ‑
HIS HONOUR: When did you first speak with Ms D?
MR MANUEL: At the same time that I inquired with Ms O and Ms H, like, 12 months ago. And I raised issues with not only Ms G, but your associate, Ms L – everyone at the same time 12 months ago. Your associate was well aware of it and I’ve got the emails to prove it. I then raised the issues with Ms L and Ms G three, four, five times throughout last year and still no one did anything with it. Her – Ms D’s response that she didn’t see the emails, that’s a blatant lie. I’ve got the evidence to prove it.
HIS HONOUR: Terrific. We’re in the – strange as it may seem, I’m actually really trying to bring this litigation to an end which involves problem solving, and all I keep doing is running through roadblocks that are set up by one or other, or circumstances, or whatever it is. So what’s the solution to this problem now, Mr Manuel?
MR MANUEL: Ms – your Honour, sorry, you will remember multiple years ago I suggested mediation – 10, 20 times.
HIS HONOUR: Well, it’s not going to happen. Please, what’s the solution to this hearing issue? Does the hearing go ahead or not?
MR MANUEL: No.
HIS HONOUR: Do we go with – no. So, you know, if it doesn’t go ahead, and subject to any other report writer mystically appearing – because everyone else has said, “I’m not getting involved in this for reasons that have been canvassed previously” – we could be looking at a hearing date next year.
MR MANUEL: Quite possibly, but I’ve been raising issues for years and no one has done anything about it, you know?
MS ..........: Put it on me.
HIS HONOUR: We are so fortunate to have your omniscience in all this, Mr Manuel.
MR MANUEL: You’re welcome.
HIS HONOUR: Respectfully, of course. So what is – well, you’re the one who goes round knocking on doors of family consultants.
MR MANUEL: I am quite entitled to query the ability of people who are going to speak to my son as a parent. If you don’t agree with that, we will agree to disagree.
HIS HONOUR: Well, excellent. What’s your ‑ ‑ ‑
MR MANUEL: But I have just proven that Ms D and Ms O ‑ ‑ ‑
HIS HONOUR: Mr Manuel, please.
MR MANUEL: If you let me speak, I will finish.
HIS HONOUR: Provided it’s problem solving not rehearsing matters that you hold certain views on, so problem solving.
MR MANUEL: I’ve said, I mean, 15 minutes ago when we started, I’ve always said the ICL should independently select a reporter – a report writer and they haven’t. That needs to be done. We’ve been going around in circles for 12 months and that hasn’t happened. Have the ICL, Mr Robertson, select an independent report writer, get the report writer done, go to hearing. I’ve said it time and time and time again.
HIS HONOUR: Is there anything else, Mr Manuel, in terms of the problem solving? Is there any change ‑ ‑ ‑
MR MANUEL: That’s ‑ ‑ ‑
HIS HONOUR: Let me ask you this, though. In terms of orders sought, sitting there today, what are the orders that you’re seeking in relation to X?
MR MANUEL: Largely the same as what I submitted in my application at the end of 2020 largely. There will be some tweaks given some other information, but largely will be the same. My position has always, always been X deserves two parents. End of story.
HIS HONOUR: I didn’t understand there was any opposition to that. It was really just more the configuration of the time.
MR MANUEL: No. Ms Pinner’s application is basically to take the child away from his dad.
HIS HONOUR: I didn’t understand it to be what’s called a no-contact case. Rather, I understood – and Ms G can confirm or otherwise – that the mother was seeking a reduction, but not stopping X’s time.
MR MANUEL: Let me tell you I am a victim of the child – of the Family Court as a child. I’ve been through what Ms Pinner is attempting to do. You don’t like me. I know you don’t like me.
HIS HONOUR: Sorry ‑ ‑ ‑
MR MANUEL: Guess what? I’m a result of the system.
HIS HONOUR: Sorry, who are you talking to now, Mr Manuel?
MR MANUEL: You, your Honour. You don’t like me. I’m quite happy to accept that, but I’m a result of the system. I was a child who suffered with what Ms Pinner is asking for of an every second weekend father. You don’t like what I am? You don’t like who I am? Fine, but this is what created me. It destroys children’s lives.
HIS HONOUR: I’m sorry that you have that view. I don’t have a view about either litigant. I get very concerned where roadblocks of one kind or another are put up, and people are caught in the system for infinitely longer than they should be. That’s my concern. That’s my only gripe. Whoever does it, that’s my gripe. Was there anything else, Mr Manuel?
MR MANUEL: Yes. Just on that last thing, you don’t like it being dragged out. I agree, but as you will note from my communication for many, many, many, many years, I have attempted to do everything in my power to get it out of court, and every attempt has been refused. Every – the whole contravention thing, I was – I turned up in court, I think August 2019 or whatever it was, ready to run that and be done with it, and it was then dragged out by Ms G for another two years. I have done everything in my power to resolve this matter, and pretty much everyone else has opposed it.
HIS HONOUR: Sorry. Was there anything else?
MR MANUEL: No. That’s all.
HIS HONOUR: I’ve just been provided a note to say that one of the family consultants here may be able to do interviews on 3 May, but we don’t have confirmation yet if the report would be ready in time. I’m not sure how much – or how we find out – if interviews are held on 3 May, if the report – when the report would be more likely to see the light of day. I just don’t know. So that, for example, whether or not some really limited terms of reference might, sort of, guide the report writer so that it’s a more confined report. I don’t know. I’m just thinking out loud here.
MR ROBERTSON: I would certainly to be keen to explore that, your Honour. If that were possible, then that most certainly would be beneficial to these parties and to X.
HIS HONOUR: Thank you. So nothing else, Mr Manuel?
MR MANUEL: No, your Honour.
HIS HONOUR: Just an inquiry, nothing more – you haven’t – it has been confirmed that you haven’t yet met with Mr Lee. Correct?
MR MANUEL: That’s correct.
HIS HONOUR: Right. Okay. So I will just leave it with you and Mr Lee to liaise. Ms G.
MS G: Thank you, your Honour. Just with respect to Ms D ‑ ‑ ‑
HIS HONOUR: Sorry. Can you just make sure you’re in front of that microphone.
MS G: Apologies. I haven’t been here in a while. Just to clarify, my understanding of the evidence that I’ve seen was that contact was made a significant time ago with J Psychology where Ms D was at that time.
HIS HONOUR: Sorry. Is she no longer with ‑ ‑ ‑
MS G: No. She has gone out on her own now ‑ ‑ ‑
HIS HONOUR: I see.
MS G: ‑ ‑ ‑ recently. That contact that the father made with the practice had not been brought to Ms D’s attention, and hence, she hadn’t raise a conflict issue until 10 March when the father sent an email to her, despite orders that had been made in August and September last year restraining the parties from doing this exact thing, asking her to recuse herself immediately. She then reported back to the parties that, since reading that email, it became apparent that there was an email from the father to J Psychology in 2021, and she sought to be discharged on that basis. As a result of that, we now have the whole of the experts in P Counselling, the whole of the experts in Mr Q’s office, and the whole of the experts in J Psychology who are unwilling to prepare a report in this matter. In any event, I hear that we may have moved on from that.
My client’s position today is that the hearing needs to proceed in May. It is in X’s best interests that it proceed, and she is in the court’s hands as to how that occurs, whether that’s with or without a report. In my view, given that there were orders previously made appointing an expert and restraining the parties from contacting that expert, which is what my friend has just proposed, I see the sense in that. However, that has not worked to date, and we find ourselves here again in this position in the same circumstances that we were before that order was made. So I query the utility of an order to that effect and, perhaps, if there are to be orders in that vein, they need to be quite creative in how they are drafted.
HIS HONOUR: So you confirm that I made restraining orders but they were breached, you say?
MS G: Yes. And those orders were made by consent back in August when, at the time Ms L, at the time, proposed Ms D and the parties agreed to a restraint on contacting her because of the issues we had with Dr H prior to that, if you might recall.
HIS HONOUR: Leaving to one side, just as a general proposition, although it’s now water under the bridge, it would seem, that just even on the basis of what seems to have been very peripheral contact with J Psychology, Ms D not being privy to that at the time, only much more recently becoming aware of it, I would have difficulty just as a general proposition to see how that would otherwise cause a problem.
MR ROBERTSON: Sorry, your Honour. I need to interrupt there, if I may.
HIS HONOUR: Yes.
MR ROBERTSON: Communication from Ms D to Ms M indicates that Ms D had looked at Mr Manuel’s email that he had sent initially, and she had not joined the dots when the report was being lined up. And only joined those dots on being approached by Mr Manuel this month. The infelicity to which I earlier referred was a description by Ms M in an email to the parties where it was suggested that Ms D had not had any contact with Mr Manuel.
HIS HONOUR: I see.
MR ROBERTSON: That is not – based on information that I received from Ms D, that’s not correct, and she did ask that I correct the record in that regard.
HIS HONOUR: I see. Thank you.
MR ROBERTSON: But it was – she had not joined the dots.
HIS HONOUR: I see. Thank you. Sorry, Ms G ‑ ‑ ‑
MR MANUEL: Your Honour, I need to clarify this again ‑ ‑ ‑
HIS HONOUR: No.
MR MANUEL: ‑ ‑ ‑ Ms D responded ‑ ‑ ‑
HIS HONOUR: No, no, no.
MR MANUEL: ‑ ‑ ‑ to me. She responded to me.
HIS HONOUR: Mr Manuel, fortunately, we have a mute button. Please. I will come back to you to ask you to explain and, firstly, confirm that you were aware of restraining orders on both parties not to contact any family consultant or expert. And the further question therefore will be why did you do that, assuming that you did, in breach of that order. But I will come back to you in a moment.
MS G: I apologise for the confusion. I was going off an email that was forwarded to us from Ms M from Ms D which said there was correspondence between her previous practice and the father. I wasn’t aware – and I haven’t seen any evidence of direct emails between the two. In any event, it is what it is.
HIS HONOUR: Yes.
MS G: My client’s position is that – and the evidence that she has put before the court – is that the father’s behaviour and these proceedings is having a significant impact on X, and her wellbeing and her capacity to parent, and that is one of the reasons that she is seeking that the trial go ahead. In addition to the family report issue which – I did a chronology last night, so that I could remember how long this issue has been going on for. And your Honour directed us to make inquiries about a private report back in February 2021, and here we are some 13 months later without a report, despite multiple experts having been appointed at various times. In addition to that, there have been two – the withdrawal of two ICLs following allegations of bias made by the father. X counsellor has withdrawn from treating him due to contact the father has made with that counsellor.
HIS HONOUR: I’m sorry. When did that happen?
MS G: That has happened in the past month, I would say. Allegations have been made against me and my staff on numerous occasions by the father, which your Honour has heard on multiple occasions. The father has filed a protection order against my client’s wife, which he later withdrew. He has refused for X to be vaccinated which is a significant health issue for my client. And this behaviour continues to increase my client’s costs. So in my submission, if the final hearing was to be delayed any further, that’s going to be a significant – not only emotional impact on my client but also a significant financial impact. And with respect to costs; there are two outstanding costs applications that my client has filed which were to be determined at the final hearing and, in addition to that, her costs have been reserved on three occasions.
My client has spent significant costs of this litigation already, we say, largely due to the father’s actions. I’ve heard what the father say about my contribution to that, but my client requires the court to at least determine those costs applications in order to assist her to fund the litigation moving forward. Obviously, her preference is for the hearing to proceed in May, however that may need to occur. My client is in the court’s hands about that.
HIS HONOUR: Can I ask, hopefully one of the easiest questions, who will be running it at any hearing, whether it’s in May or otherwise?
MS G: Counsel?
HIS HONOUR: Yes.
MS G: We’ve instructed Ms R for the May dates. If those dates are adjourned, I don’t have – I don’t know Ms R’s availability.
HIS HONOUR: Was there anything else?
MS G: No, the only other thing I want to flag with your Honour is that if the May dates do remain, we would seek leave with the court to amend our response, given that it is after the date that final hearing dates have been allocated.
HIS HONOUR: Right. Are you able to give any hint as to what the amendments are likely to be?
MS G: I haven’t taken instructions in relation to that yet. They’re not likely to be significant.
HIS HONOUR: Right. Okay. But obviously, sooner rather than later would assist everyone.
MS G: Of course.
HIS HONOUR: Thank you. So Mr Manuel, firstly, can you please respond to my questions about – given that you’ve already told me that if I recall correctly, you’ve said that you have a right as X’s father, effectively, to interview any expert before that expert speaks with X. Correct?
MR MANUEL: In a way. What has happened with Ms D had proven conclusively why that is the case. She has lied to you, and everyone involved. I have the email to prove it. She says that she didn’t know who I was. She replied to me. I have that – a quote from her.
HIS HONOUR: But in any event, please could you ‑ ‑ ‑
MR MANUEL: If she’s a psychologist who lies ‑ ‑ ‑
HIS HONOUR: Could you kindly respond to my questions. Given that Ms D is now out of the matter, but you were aware of the court’s orders restraining both parties from contacting any expert. Correct?
MR MANUEL: I contacted yourself, Ms L, Ms G, for twelve months ‑ ‑ ‑
HIS HONOUR: Mr Manuel, are you able to ‑ ‑ ‑
MR MANUEL: ‑ ‑ ‑ trying to get them to do their job.
HIS HONOUR: ‑ ‑ ‑ answer my question directly, please. I’m just trying to find out your response: (a) you were aware of the orders restraining you from contacting an expert and the same restraint was on the mother. Correct?
MR MANUEL: I’m sick of the double standards. Nobody’s answering my questions. Nobody is dealing with anything that I’m raising, so I’m going to decline to answer. Until my issues are addressed that I’ve been raising for God knows how long – address the issues.
HIS HONOUR: You address the issues that the court directs you to address, Mr Manuel. I’m asking a simple question. Orders were made on X date, and notwithstanding those orders, you contacted Ms D. Correct?
MR MANUEL: I decline to answer.
HIS HONOUR: Right. I will place you on mute now. Thank you. So all that can happen, I think, is that the court can make inquiries of this family consultant who may have dates available on 3 May. I propose reserving both parties costs of today. The utility of it, or otherwise, is a specific restraint upon both parties, but in particular of the father, on contacting, in any way, any expert be it employed by the court or otherwise prior to, or in the course of, this litigation. As soon as we’re in a position to know whether or not this family consultant from the court is available, and when we have a better idea if a report is going to be available even if it’s very late in the day for the hearing at the end of May, we will let everybody know.
MR ROBERTSON: May it please the court.
MS G: May it please the court.
HIS HONOUR: We can let you all go from this directions hearing of approximately 45 or 50 minutes which is, unfortunately, somewhat par for the course. You will be shocked, but there’s another matter waiting.
MS G: May it please the court.
MR ROBERTSON: May it please the court.
MATTER ADJOURNED at 10.06 am ACCORDINGLY
ANNEXURE B
TRANSCRIPT OF PROCEEDINGS
TRANSCRIPT IN CONFIDENCE
…
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
CANBERRA REGISTRY
JUDGE WJ NEVILLE
No. CAC 1658 of 2013
MR MANUEL
and
MS PINNER
CANBERRA
3.17 PM, MONDAY, 2 MAY 2022
MR MANUEL appears in person
MR ROUTH appears for the respondent mother
MR ROBINSON appears as the independent children’s lawyerCopyright in Transcript is owned by the Commonwealth of Australia. Apart from any use permitted under the Copyright Act 1968 you are not permitted to reproduce, adapt, re-transmit or distribute the Transcript material in any form or by any means without seeking prior written approval from the Federal Circuit and Family Court of Australia.
HIS HONOUR: So Mr Robinson.
MR ROBINSON: May it please the court, Robinson. I appear as the independent children’s lawyer.
HIS HONOUR: Thank you. Mr Routh.
MR ROUTH: I appear on behalf of Dr K and on behalf of the mother in these proceedings.
HIS HONOUR: Thank you. My understanding is that Mr Manuel is making some protest or a stand in the precincts of the court. I don’t know details per se.
MR ROUTH: I think he’s just outside the foyer. Just outside the door.
HIS HONOUR: Are you going to run things from there, Mr Manuel?
MR MANUEL: Apparently, I’m not allowed to cross that threshold, so ‑ ‑ ‑
HIS HONOUR: Mr Manuel, if you’re in the High Court, in the Supreme Court, in the Federal Court, you would be facing the exact same protocols there.
MR MANUEL: Protocol is not law. I keep telling you ‑ ‑ ‑
HIS HONOUR: They are protocols ‑ ‑ ‑
MR MANUEL: Protocol is not law.
HIS HONOUR: Mr Manuel, this is not a debating point.
MR MANUEL: ......
HIS HONOUR: This is a direction – this is a direction from the Chief Justice, same as there’s a direction from the Chief Justice of the High Court, the Federal Court, various state Supreme Courts. So you can ‑ ‑ ‑
MR MANUEL: It’s not law.
HIS HONOUR: Well, terrific. It’s a protocol ‑ ‑ ‑
MR MANUEL: So you’re going to break the law?
HIS HONOUR: No, no, no. Mr Manuel, you can keep going around and around in circles. You were given a direction. You made no response until you ‑ ‑ ‑
MR MANUEL: Because it’s not law.
HIS HONOUR: ‑ ‑ ‑ until you turned up this – terrific. Okay. Well, are you going to run the application from there?
MR MANUEL: That’s the way you want to run it.
HIS HONOUR: No. It doesn’t matter ‑ ‑ ‑
MR MANUEL: I’m not choosing to do so.
HIS HONOUR: ‑ ‑ ‑ what I want. You are the only litigant that I’m aware of who takes this stand, literally, from outside the court in contravention of advice from public health authorities, but in particular, from directions of the Chief Justice.
MR MANUEL: I follow law. That is – there is no law that bars me from crossing that threshold.
HIS HONOUR: Well, as soon as you do that, the court will have to adjourn. So if you want to do that ‑ ‑ ‑
MR MANUEL: I – I will stand here.
HIS HONOUR: So if you want to do that – sorry?
MR MANUEL: But I’m reiterating that there is no law.
HIS HONOUR: Mr Manuel, are you just simply trying to be, you know, oppositional to directions that everyone else seems to be able to comply with?
MR MANUEL: Just because people don’t have the balls to stand up to this corruption is not my issue.
HIS HONOUR: Corruption.
MR MANUEL: There is no law ‑ ‑ ‑
HIS HONOUR: Making a direction, that is, the Chief Justice making a direction is corruption?
MR MANUEL: If – if there’s a law.
HIS HONOUR: Well, make sure you say that to the High Court whenever you’re next there or any of the other courts. So in any event, is there any major objection to Mr Manuel attempting to run his application from the door of the courtroom?
MR ROUTH: Well, the difficulty is whether the microphones will pick up his voice or not. That’s one aspect.
HIS HONOUR: Yes.MR ROUTH: Secondly, I mean, the court issued a very clear guideline as to what should happen. It would be my submission that, in these circumstances, he should either take up the opportunity of putting his submissions via video in another courtroom or outside. As I understand, he has already been given those options. I just don’t think it’s appropriate for a court to try and conduct an interim hearing such as this – it has some serious aspects to it.
HIS HONOUR: It does.
MR ROUTH: By trying to hear submissions through a doorway, unless the matter can be heard on a – well, it could be an application on our part for a summary dismissal of the application.
HIS HONOUR: Or the alternative is just simply to determine the matter on the papers, what has been filed. Because my understanding is that you filed submissions, Mr Routh, on behalf of Ms G. Mr Robinson has filed submissions. I don’t understand Mr Manuel to have filed any submissions. That’s the case, isn’t it, Mr Manuel?
MR MANUEL: The email that I received was to file submissions when it – at your earliest convenience or when – early as possible. It hasn’t been possible for me to file submissions.
HIS HONOUR: All right.
MR MANUEL: There’s no date to do it. I didn’t have time. I’ve got other things to do.
MR ROUTH: The ‑ ‑ ‑
MR MANUEL: And do you ‑ ‑ ‑
HIS HONOUR: Sorry. You’ve already ‑ ‑ ‑
MR MANUEL: ‑ ‑ ‑ see the absurd ‑ ‑ ‑
HIS HONOUR: You’ve already said that you have not filed submissions, so I’m just recording it ‑ ‑ ‑
MR MANUEL: Do you ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ for the transcript, that Mr Manuel has said that he has been too busy because he has got other things to do, but there were orders made on 12 April saying – directing that submissions were to be filed five days prior to today, but ‑ ‑ ‑
MR MANUEL: No. I can read you the email. The email said at – at – when convenient or as early as possible. They were the words.
HIS HONOUR: Yes. Sure. Okay. Thank you.
MR MANUEL: So how – how rude do you have to be?
HIS HONOUR: No. Mr ‑ ‑ ‑
MR MANUEL: That was just rude, what you just said to me.
HIS HONOUR: Mr Manuel, you were given orders on 12 April, the same as everyone else. In any event – but why ‑ ‑ ‑
MR MANUEL: Okay. Chambers request that the same be filed by the applicant father and ICL as soon as practicable. There hasn’t been any practicable time for me to do so. I’m looking at this email. Are you telling me that I’m lying?
HIS HONOUR: No. I’m ‑ ‑ ‑
MR MANUEL: I’m reading it from here.
HIS HONOUR: I’m telling you to look at the date of the orders of 12 April.
MR MANUEL: I’m reading you the email ‑ ‑ ‑
HIS HONOUR: Mr ‑ ‑ ‑
MR MANUEL: ‑ ‑ ‑ of the associate.
HIS HONOUR: Mr Manuel, do you have some difficulty accessing orders from the Commonwealth Portal? You’re an IT professional, as you’ve told us in the past. Do you ‑ ‑ ‑
MR MANUEL: Email, 28th of ‑ ‑ ‑
HIS HONOUR: Did you not ‑ ‑ ‑
MR MANUEL: ‑ ‑ ‑ April.
HIS HONOUR: Did you not access the orders from the Commonwealth Courts Portal?
MR MANUEL: Do you see the absurdity of this protocol? I’m less than two metres from where I would normally be standing.
HIS HONOUR: Mr Manuel, would you please answer my question? Did you or did you not access the Commonwealth Courts Portal to read the orders dated 12 April?
MR MANUEL: I might start answering questions when you start answering questions. What law are you basing my refusal to access this room? I’ve asked that 20 times and nobody answers, but you demand answers from me. Why is it one way ‑ ‑ ‑
HIS HONOUR: Thank you.
MR MANUEL: ‑ ‑ ‑ and not the other?
HIS HONOUR: So why wouldn’t I deal with the matter on the basis of what has been filed? Mr Manuel has filed his material. Ms G through you, Mr Routh, has filed material, and the independent children’s lawyer has filed material.
MR ROUTH: From our perspective, your Honour, we would be content with that. My only point I was going to make, unless you wanted me to specifically take objections to the affidavit, then I have no problem at all with you – with the court determining the matter on the papers.
HIS HONOUR: Right. Mr Robinson.
MR ROBINSON: I don’t wish to be heard. I can’t oppose that course, your Honour.
HIS HONOUR: Thank you. So Mr Manuel, why don’t I deal with your application in a case on the basis of the material that has been filed? That would ‑ ‑ ‑
MR MANUEL: I think ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ save you dealing with, you know, having to answer or refusing to answer any questions that I’ve got or anyone else has got.
MR MANUEL: So you take issue with me refusing to answer questions, but you’re quite happy to refuse to answer questions yourself and the rest of the court, and you don’t take issue with that? Why is this such a double standard? I think there’s very little point in us being here today anyway, because before I stepped foot in the courtroom in March 2017, it was all pre-decided. In fact, it was pre-decided 47 years ago.
HIS HONOUR: Sorry. I don’t understand that. What does that mean?
MR MANUEL: 1975 Family Law Act. I’m sure you’re aware of it. It was predetermined. It doesn’t matter what I say, as – as showed by the last hearing. I stood there and said, “I’ve got physical” ‑ ‑ ‑
HIS HONOUR: No. Actually ‑ ‑ ‑
MR MANUEL: ‑ ‑ ‑ “frigging evidence” ‑ ‑ ‑
HIS HONOUR: Actually, you were sitting there, but still.
MR MANUEL: I’ve got physical – I sat there last hearing, and I said, I’ve got physical evidence of contempt and lies by Ms G, and you put me on mute.
HIS HONOUR: Well, that was only after a significant period of time where you kept on commenting on things. But we’re not going to go down ‑ ‑ ‑
MR MANUEL: You refused to deal with it.
HIS HONOUR: ‑ ‑ ‑ that road again.
MR MANUEL: Because it ‑ ‑ ‑
HIS HONOUR: Well ‑ ‑ ‑
MR MANUEL: What ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ I’m ‑ ‑ ‑
MR MANUEL: You seem to take issue with the fact that I’ve got a penis between my legs, and I’m sick of it.
HIS HONOUR: Right. Is there anything else that I’m meant to take objection to? I mean, I know that you accuse me of indolence. I know I’ve ‑ ‑ ‑
MR MANUEL: Are you going to recuse yourself today for your utterly appalling behaviour over the last six, seven years?
HIS HONOUR: But you ‑ ‑ ‑
MR MANUEL: That’s what the application is about. Are you going to take any responsibility for your actions?
HIS HONOUR: But that isn’t what you’ve said in your application or your supporting affidavit. You’ve ‑ ‑ ‑
MR MANUEL: Piss off.
HIS HONOUR: ‑ ‑ ‑ referred to – you referred to a number of, it would seem to be, a number of anonymous lawyer friends, anonymity obviously always a great shield, for my indolence, apparently. I’ve only delivered two judgments today, and there are a few more coming up in the week, so in any event. But unless there’s something else that you wanted to say, then I propose dealing with your application in a proceeding on the basis of all of the material filed. That’s ‑ ‑ ‑
MR MANUEL: Well, you’re going to do what you want to do anyway.
HIS HONOUR: That’s your material.
MR MANUEL: It doesn’t matter what I say.
HIS HONOUR: Well ‑ ‑ ‑
MR MANUEL: I’m – I’m – I’m saying, there is – there’s plenty more that I could say, but you’re going to shut me down and kick me out anyway. So what’s the point?
HIS HONOUR: What else did you wish to ‑ ‑ ‑
MR MANUEL: It has already been predetermined.
HIS HONOUR: What has been predetermined? You say – sorry, just let me get this right, that all this has been determined, has been predetermined, since 1975.
MR MANUEL: Yes.
HIS HONOUR: Okay. Anything else?
MR MANUEL: You – this is unbelievable. Well, actually, sorry, it is believable. Your behaviour and your – your actions have been proven to have an obvious bias in the last hearing. It doesn’t matter what I say. They can sit there and go, “The sky is pink”, and it’s taken as gospel. But when I turn up with physical evidence, you shut me down and tell me to shut up. That’s what you did at the last hearing. I’m a nothing. You’ve got this obvious bias against me. It doesn’t matter what I do. It doesn’t matter what I say. It’s wrong.
HIS HONOUR: You seem to have taken some objection to me making a section 102NA order even though I’m ‑ ‑ ‑
MR MANUEL: That’s it. You lied. You lied. I did ‑ ‑ ‑
HIS HONOUR: I made it in 2020, and there are a whole series of notations which set out the reasons why which noted, amongst other things, that it was no acknowledgement, it was no finding by the court of any of the claims of family violence that raised by the mother. There was no determination that’s in writing. It was simply ‑ ‑ ‑
MR MANUEL: ..... also in writing. You lied.
HIS HONOUR: It was simply to assist you with legal representation.
MR MANUEL: It doesn’t assist me. It hinders me. You lied. In your judgment, you said that you “had to”. That’s a quote. You “had to” make that order. That’s a lie. If A, B and C or – and then, yes, you have to. But you used point 4, which is your choice. Do what you like.
HIS HONOUR: No.
MR MANUEL: You did not ‑ ‑ ‑
HIS HONOUR: If you ‑ ‑ ‑
MR MANUEL: ‑ ‑ ‑ have to make that order.
HIS HONOUR: No, indeed. And ‑ ‑ ‑
MR MANUEL: So you lied. So you’ve just admitted that you ‑ ‑ ‑
HIS HONOUR: No. Mr Manuel, don’t be ‑ ‑ ‑
MR MANUEL: ‑ ‑ ‑ didn’t have to make that order. But I’ve got it in black and white that you said you had to.
HIS HONOUR: Don’t be naughty, because the notations say that it was the discretionary part of section 102NA, and that was the section under which ‑ ‑ ‑
MR MANUEL: I’ve got ..... do you want me to read it to you? I’ve got it in writing ‑ ‑ ‑
HIS HONOUR: I’m able ‑ ‑ ‑
MR MANUEL: ‑ ‑ ‑ from you that says you “have to”.
HIS HONOUR: I’m able – no, Mr Manuel, dear goodness.
MR MANUEL: Yes. Don’t just off – push me off by that. I’ve got it in writing.
HIS HONOUR: How could do anyone to that to you, Mr Manuel?
MR MANUEL: Well, you seem to take quite – amount of glee in doing so. And you have done for quite a number of years.
HIS HONOUR: Am I looking and feeling gleeful?
MR MANUEL: You’re certainly looking very smug up there because you think you’re so much better than everyone else. Let me tell you you’re not.
HIS HONOUR: Insults are no argument, Mr Manuel.MR MANUEL: You’ve disrespected me. How about your associate disrespecting me, but when I turn around, ask you the very same questions, it’s disrespectful. But you can disrespect me by asking for private medical information that when I turn around and ask you for private medical information, it’s disrespectful. Do you not understand what double standards are or something?
HIS HONOUR: Is there anything else that you wish to say this afternoon, Mr Manuel?
MR MANUEL: There’s no point, is there? There’s no point.
HIS HONOUR: I’m simply asking about a process to deal with the issue of your application.
MR MANUEL: Let me cross this boundary and we will deal with the matter. Until you can provide a law which says I’m not allowed to cross that boundary, you’re just making up willy-nilly stuff. Protocols are not law. How can you not understand that as a legal person? It’s not law. I abide by laws. There is no law which says I have to provide you with private medical information. In fact, the Privacy Act says I don’t have to provide you with that information. So do you just do what you feel like or do you actually follow laws? And you’re not going to answer that question, are you, because I ask questions, it doesn’t matter.
HIS HONOUR: It’s a protocol that ‑ ‑ ‑
MR MANUEL: Protocols aren’t law.
HIS HONOUR: ‑ ‑ ‑ apply to everyone. Everyone else complies with them except you.
MR MANUEL: Now, if they’re happy to have their human rights shat all over, that’s up to them. But I don’t accept that. I follow law. If everyone is happy to provide their private medical information, that’s up to them. But I choose not to, and you have no legal right to enforce it, do you, yes or no?
HIS HONOUR: I ‑ ‑ ‑
MR MANUEL: It’s a simple question. Do you have the legal right to demand and require my private medical information; yes or no? Simple question.
HIS HONOUR: I’m meant to be dealing with your application, Mr Manuel.
MR MANUEL: So again, you put off my questions. You’re expected answers from your questions .....
HIS HONOUR: You’re the one who has brought us all here, Mr Manuel.
MR MANUEL: Exactly, because of the lies that are told by just about everyone here. The lies – the last time we were here, when I got moved – pushed off into that room, I asked, “Why am I in here? You asked to be here.” No, I didn’t. You just lied to my face. I didn’t ask to be there. Why are you so happy to accept lies in this courtroom?
HIS HONOUR: The whole object of the final hearing that’s still currently scheduled for the end of May and which has been fixed for a very long time has been so that whatever claims that are made by either side are finally able to be tested. That’s all I’m interested in. To be able to make whatever orders are in X’s best interests. That’s all I’m interested in. You know, you can have the song and dance, the theatrics about whatever else, that’s all I’m interested in. And I can only make any findings – I know we’ve had this discussion many times. I can only make findings when the evidence is tested which would be at a final hearing, assuming we get to it. But that’s all. So you can make whatever other claims that you like, but the truth will be – or it will all be tested at the final hearing assuming we get to it whenever it’s reached. Was there anything else, Mr Manuel?
MR MANUEL: Yes. Do you have a legal right to bar me from crossing that threshold; yes or no? It’s a very simple question.
HIS HONOUR: I am bound by directions of the chief justice.
MR MANUEL: You are bound by law. Is there a law which bars me from crossing that threshold; yes or no?
HIS HONOUR: We can keep having this ‑ ‑ ‑
MR MANUEL: Yes. Because you refuse to answer the question, as does your associate, as does everyone else. It’s a very, very simple question. I’m sure there – is there a law that bars me from going over 100 kilometres an hour on a highway? Yes, there is. That’s a very simple question. Is there a law which bars me from crossing that threshold; yes or no?
HIS HONOUR: Under the Federal Circuit and Family Court of Australia Act and also under the previous Federal Circuit Court Act, responsibility for the governance and administration of the court falls to the chief justice, or the chief judge, as the case may be. Therefore any directions given by that person formally comes under the auspices now under the Federal Circuit and Family Act of Australia. So unless there is anything further, I propose dealing with the application in proceeding on the basis of the papers, the material that has been filed by Mr Manuel, by Mr Routh on behalf of Ms G and Mr Robinson. One last opportunity, Mr Manuel, was there anything else you wish to say?
MR MANUEL: I repeat. There’s no point. It doesn’t matter what I say.
HIS HONOUR: And I make a note that that’s on the basis of you say that everything is predetermined, that I assume, in these sort of courts, as in Family Law Courts, based upon the provisions of the Family Law Act from 1975. I take that as a yes.
MR MANUEL: No. Don’t take it as anything.
HIS HONOUR: Well, thank you. The court will deal with the matter on the basis of the written material filed. The court will adjourn.
MATTER ADJOURNED at 3.37 pm ACCORDINGLY
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