Marino and Bello and Anor
[2020] FCCA 1727
•26 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARINO & BELLO & ANOR | [2020] FCCA 1727 |
| Catchwords: FAMILY LAW – Application in a Case – Parenting orders – best interests of the children – Reasonable apprehension of bias – abuse of process – multiple proceedings – whether the threshold issue is worthy of consideration – whether summary dismissal should be ordered – the application in a case is dismissed. |
| Legislation: Family Law Act 1975 (Cth), s.65C(c) |
| Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Mankiewicz and Anor v Swallow and Anor [2016] FamCAFC 153 Pelerman v Pelerman (2000) 26 Fam LR 505 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | MR MARINO |
| First Respondent: | MR BELLO |
| Second Respondent: | MS BELLO |
| File Number: | PAC 437 of 2020 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 26 June 2020 |
| Date of Last Submission: | 26 June 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 26 June 2020 |
REPRESENTATION
| Applicant in person | Appeared at the hearing at 10:00am, however, did not appear when judgment was delivered at 11:30am |
| Counsel for the Respondents: | Ms Dart |
ORDERS
The Application of 16 June 2020 be dismissed.
The Applicant to file and serve a Case Summary Outline for the Summary Dismissal Application on or before 10 July 2020.
Direct that Applicant limit the Case Summary Outline document to 20 pages in length.
The Respondent to file and serve any submissions in response on or before 17 July 2020.
Direct that no further evidence or Applications be filed by the applicant, other than a case summary document referred to in Order 2 and the Registry is directed, not to receive those documents.
Any other listings of this matter be vacated, pending the decision of the Summary Dismissal Application.
Costs for today be reserved.
d
IT IS NOTED that publication of this judgment under the pseudonym Marino & Bello & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 437 of 2020
| MR MARINO |
Applicant
And
| MR BELLO |
First Respondent
| MS BELLO |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(As revised from transcript)
Introduction
Mr Marino (“the applicant”), is the brother of Ms Bello (“the second respondent”). The first and second respondents are the parents of three children; X (“X”), 7 years of age, Y (“Y”), 4 years of age and Z (“Z”), 3 years of age.
The respondents’ and the applicant are estranged. Various allegations of domestic violence committed by the applicant, have been made by the second respondent.
It is contended, that the applicant has only had two contacts with X and has never seen Y and Z.
On 30 January 2020, the applicant filed an Initiating Application seeking orders that he be allowed to spend reasonable time with each of the three children named above and attend any and all important life events including, but not limited to, Birthdays, Christenings, Christmas etcetera.
A further parental order was sought by the applicant, seeking that C (the second respondent’s first born son, now aged 16 years old) also spend reasonable time with his half siblings and attend important life events.
The matter was allocated to the docket of Judge Myers of this Court. Since that date, the matter has progressed with various Applications in a Case being filed by the applicant, along with a large amount of other Affidavits, Notices to Admit Facts, Notices to Produce and several subpoenas.
On 28 May 2020, Judge Myers made orders for the hearing of a Summary Dismissal of the matter to be listed on 15 June 2020.
On 29 May 2020, the applicant filed an Application in a Case that Judge Myers immediately disqualify, or recuse himself from the matter, on the grounds of actual or apprehended bias. No less than 4 Affidavits in support of the application that Judge Myers recuse himself, were filed by the applicant.
On 15 June 2020, Judge Myers recused himself from the matter and transferred the matter to my docket. An order was also made on 15 June 2020 that “the application for summary dismissal is listed on 7 August 2020 at 10.00 am with priority”.
The Application in a Case currently before the Court
In an Application in a Case, filed on 16 June 2020, the applicant seeks orders that any order made, apart from order 1 (listing the matter for directions in front of myself) be voided and that the matter be relisted for Directions. In a purported Affidavit in support, dated 16 June 2020, the applicant sets out various reasons why the application should be allowed. The document, which is entitled “Affidavit in Support”, contains only what the Court presumes to be, the applicant’s signature. It has not been affirmed or sworn before a qualified witness. It is not in proper form and cannot be admitted as evidence. The Court nevertheless accepts it, but only on the basis that it is written submissions from the applicant.
Since then, the applicant has filed five further documents, being a letter dated 16 June 2020, addressed to the Federal Circuit Court, Applicant’s Submissions dated 19 June 2020 and Applicant’s Short Submissions, also dated 19 June 2020.There is a further document complaining about the respondent’s legal practitioners. Lastly, there is an Affidavit dated 28 April 2020, in proper form, from C.
The Applicant’s Submissions
The applicant states that he is an unrepresented litigant, with no experience in family law matters. This somewhat understates the applicant’s qualifications and experience. The applicant is not an ordinary unrepresented litigant with no experience in the law.
The applicant was admitted as a Lawyer of the Supreme Court of New South Wales (“NSW”), in 2008. The applicant subsequently held Practicing Certificates as a solicitor for a number of years and worked intermittently in three different law firms until early 2012. In mid 2014, the applicant applied to the Bar Association of NSW for a Barrister’s Practicing Certificate. Inquiries were made by the Bar Association as to the applicant’s good fame and character. Those inquiries revealed that the applicant had not made a full and frank disclosure of his lengthy criminal record, principally involving traffic matters covering the period 1999 to 2013. In late 2015, the NSW Court of Appeal directed that the applicant was not a fit and proper person, to remain upon the Roll of Lawyers of the Court and directed that his name be removed from the roll. This issue becomes relevant in relation to the consideration of whether a hearing for Summary Dismissal should proceed.
In the applicant’s Affidavit dated 19 June 2020, the applicant complains that as Judge Myers recused himself from that matter, after an application by him on the basis of bias or apprehended bias, that Judge Myers should not have made any order, other than to recuse himself.
As such, the order that the matter be listed for a Summary Dismissal hearing before myself with priority, must also be tainted with bias. As a result, it gives rise to an apprehension of pre judgement on my part, as my views on the matter are likely to be tainted by Judge Myers’ view that the matter should be listed for Summary Dismissal with priority. As a result, the applicant also alleges a denial of procedural fairness.
The applicant complains that the three other Applications in a Case, made by him, for inter alia, a Family Law Report, hair follicle testing of the respondents, together with a mental health evaluation and an application that C be added to the proceedings as an applicant and that the requirement of the appointment of a Litigation Guardian be dispensed with, have all been adjourned until after the Summary Dismissal Application is dealt with.
The document entitled “Applicant’s Short Submissions Initially for the purpose of the 28 May 2020 Hearing which was not considered”, makes a number of serious allegations. They include unsatisfactory professional conduct or professional misconduct on the part of the respondent’s solicitors. These allegations relate to an alleged conflict of interest by the solicitors, coaching of witnesses by the solicitors, an alleged failure on their part to advise the respondents’ to cease and desist illegal and dangerous activity, in relation to fraudulent and illegal business activities, posing serious risk to the children and community, of death and injury said to arise from performing illegal work, together with other perceived wrongdoings on their part. The applicant seeks that they be removed as solicitors for the respondents.
In the document entitled “Applicant’s Submissions for Directions Hearing of 26 June 2020”, the applicant repeats his claims of perceived bias on my part, flowing from orders made on 17 June 2020, listing the matter for Directions on 26 July 2020 and further listing the matter to hear the Summary Dismissal Application on 7 August 2020.
The applicant submits that the Court has no power to adjourn the Applications in a Case currently before it and that these applications should be dealt with. The applicant submits that he holds grave concerns as to the welfare of his nieces and nephews, due to the ‘serious and wilful neglect of the second respondent (his sister)”. This includes not paying child support in respect of C, which the applicant submits, is in dereliction of their parental responsibility. The applicant states in his submissions:
In my respectful view, anyone who abandons their first born son could be walking around with an undiagnosed mental illness or perhaps is on drugs
Further:
The behaviour of the respondents’ has blown to a new level of irrational and erratic, dishonesty and cruelty.
The applicant contends that he has a legal right to see his nieces and nephew and that the respondents have unjustifiably kept him away from them for 7 years. The applicant repeats his allegations in respect of the respondents’ solicitors and the fact that the respondents’ have been performing illegal work. The applicant says that it is in the best interests of the children that the orders sought by him, be granted.
The Respondents’ Submissions
The first and second respondent’s filed an Application for Summary Dismissal on 13 May 2020. The first and second respondent’s point out that the applicant has only met the oldest of the three children, twice in about 2012 and 2013 and that he has never met the younger two. The applicant has never met Mr Bello (“the first respondent”) and has not seen the second respondent since 2018. Prior to that, the applicant had no contact with the second respondent between 2013 and 2018.
Counsel for the respondent’s allege that the respondents have been the target of a campaign of harassment by the applicant, commencing in November 2019, when he requested that police and child protection authorities undertake a welfare check on the children. The welfare check is recorded to have found “nothing out of the ordinary”. In around November and December 2019, the applicant allegedly sent text messages to the second respondent, demanding that she and the first respondent contact him within 24 hours. In late January, it is alleged that the applicant sent the second respondent a text that stated
You are insane and not fit to raise children. I’m going to spend the next decade ensuring justice is served up to both of you.
In representing himself, it is submitted that the applicant has abused the processes of the Court, by filing the following documents since the Initiating Application of 30 January 2020:
a)A Notice of Risk,
b)20 Affidavits,
c)5 Applications in a Case,
d)4 Notices to Admit Facts,
e)4 Notices to Produce,
f)6 Subpoenas.
Many of the documents filed by the applicant have little relevance to the proper considerations of the matter. Further, Counsel for the respondents alleged that since 29 March 2020, the applicant has sent the respondents’ solicitors over 130 emails. The applicant has made complaints (which involve criminal activity) in respect of the first and second respondents’ to the NSW Police, Department of Fair Trading and Australian Securities and Investments Commission (“ASIC”). The applicant has made serious allegations in respect of the respondents’ solicitors and seeks to have them removed from the case. Counsel for the respondents submitted that the conduct of the applicant, amounts to an attempt to control or spite the second respondent.
Accordingly, given that the application before the Court is that the applicant only spend time with the children, it is clearly not in contest that the best interests of the children are that they remain in the primary care of their parents, notwithstanding the allegations made by the applicant.
Counsel for the respondents’ assert that the matter should properly be considered for Summary Dismissal to prevent them from incurring additional time, cost and expense in relation to legal proceedings that have no prospects of success.
Consideration
At any Summary Dismissal hearing, the applicant will need to prove standing, pursuant to s 65C(c) of the Family Law Act 1975 (Cth) that he meets the threshold test set out in Mankiewicz and Anor v Swallow and Anor [2016] FamCAFC 153 at [10]. This issue lends itself to a Summary Dismissal hearing process.
Initial inquiries were made to my Chambers by Judge Myers, relating to whether or not I might be able to take on the matter. These inquiries occurred before the orders to transfer the matter to my docket, were made. In order to answer the inquiry, I perused relevant papers contained within the Court file. I noted that there was an issue in relation to an Application for Summary Dismissal. In my view, this application needed to be dealt with as a priority, to the other Applications in a Case filed by the applicant. If the Summary Dismissal Application was successful, then those matters would not need to be determined.
Accordingly, I advised Judge Myers that I would accept the transfer of the case and that I was available to hear the Application for Summary Dismissal on 7 August 2020. Judge Myers then made the orders referred to above, on 15 June 2020. Judge Myers reference to the fact that the matter was to have priority, does not bind me in any way and cannot do so. In any event, it is the only matter listed for substantive hearing that day.
I reject the assertion by the applicant that the orders made by Judge Myers in some way, taint my consideration of the matter. I do not accept that a fair minded observer would conclude a reasonable apprehension or actual bias on my part (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337). A claim of bias is serious and requires evidence (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
The Court approaches the matter with an entirely open mind and one capable of persuasion. The respondents’ will have to meet a high threshold for Summary Dismissal. The power for such action, is a discretionary one and such relief is ‘rarely and sparingly provided’. A weak case, or one that is unlikely to succeed, is not sufficient to warrant termination. If there is a serious question to be determined, then it should ordinarily be determined at trial (see Pelerman v Pelerman (2000) 26 Fam LR 505).
A further issue arose during the course of the Directions Hearing. I advised the applicant that prior to my appointment as a Judge of this Court, I was a member of the Council for the Law Society of NSW when it took action against him in the Supreme Court of NSW, in relation to his fitness to be on the legal practitioners roll. Those proceedings were unsuccessful. However, they were over taken by action by the Prothonotary.
The applicant objects to me continuing to hear the matter on the basis of apprehended bias. Firstly, I am not aware of any information in regards to the applicant that was not dealt with in the proceedings instituted by the Prothonotary. Secondly, the decision to commence proceedings was taken by the Council of the Law Society, which consists of 21 elected members of the solicitor’s branch of the profession in NSW, not by me personally. I am not satisfied, in these circumstances, where I am to determine a completely different matter, that a reasonable bystander would perceive that I have a bias against the applicant.
I also consider that the allegations of abuse of the Courts process is a serious matter and should be considered as a priority to other considerations. The matters set out above raise it as a threshold issue, worthy of consideration.
The applicant will have an opportunity through filing of a Case Summary in response to the respondents’ submissions, to put matters to the Court.
The Court will then hear the matter and make a determination if a Summary Dismissal should be ordered.
Conclusion
Accordingly, the Application in a Case dated 16 June 2020, is dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 1 July 2020
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