Markwell and Solberg and Anor (No.3)

[2021] FCCA 812

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARKWELL & SOLBERG & ANOR (No.3) [2021] FCCA 812

Catchwords:
FAMILY LAW – Recusal application.

Cases cited:

Johnson v Johnson (2000) 201 CLR 488

Applicant: MS MARKWELL

First Respondent: MR SOLBERG

Second Respondent: MR RANWICK

File Number: CAC 1533 of 2014

Judgment of: Judge Hughes

Hearing date: 11 March 2021

Date of Last Submission: 11 March 2021

Delivered at: Canberra

Delivered on: 11 March 2021

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the 1^st Respondent: Mr Nicholls

Solicitors for the 1^st Respondent: Chamberlains Law Firm

Counsel for the 2^nd Respondent: In person

ORDERS

1. The mother has leave to orally further amend her application in a case filed on 15 December 2020 and the amended application in a case filed on 10 March 2021.

2. The mother’s application filed on 10 March 2021 for recusal of Judge Hughes is dismissed.

3. Order 8 of the orders of 7 August 2020 is amended to read as follows:

   8.Until 31 December 2026 in the event of any of the parents notifying or causing any other person to notify either the police or a prescribed child welfare authority that either or both of the children have been or are the subject of actual or potential abuse or neglect or other form of harm, the notifying parent shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:

   (a) A copy of these Orders;

   (b) A copy of the Orders dated 30 June 2020; and

   (c) A copy of the Reasons for Judgment dated 30 June 2020.

4. Pursuant section 68B of the Family Law Act 1975 each party is restrained from providing to any other person a copy of the orders or reasons for decision of 30 June 2020 unless authorised by Court order to do so.

5. The second respondent father, Mr Ranwick, shall forthwith take all reasonable steps to obtain from the FFF Medical Centre at Town R a copy of the reasons for decision dated 30 June 2020 explaining that he was authorised to provide them to the police or a child protection agency but not to anyone else.

6. The application in a case filed on 15 December 2020 and the amended application in a case filed on 10 March 2021 are hereby dismissed.

7. The contravention application filed by the mother on 10 March 2021 is transferred to a Judge other than Judge Hughes for hearing on a date to be advised.

   IT IS NOTED the only outstanding matters between the parties are the contravention application filed by the mother on 10 March 2021 and the property and costs applications which have been heard by Judge Hughes and are reserved for judgment on a date to be advised.

8. In relation to the oral application by the first respondent father, Mr Solberg for costs of today’s proceedings:

   i.Mr Solberg shall file and serve any material and submissions relied upon by 19 March 2021;

   ii.the second respondent father shall file and serve any material and submissions by 26 March 2021;

   iii.the applicant mother shall file and serve any material and submissions on which she seeks to rely by 23 April 2021; and

   iv.The costs decision is adjourned for judgment on a date to be advised.

IT IS NOTED that publication of this judgment under the pseudonym Markwell & Solberg & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1533 of 2014

MS MARKWELL

Applicant

And

MR SOLBERG

First Respondent

MR RANWICK

Second Respondent

REASONS FOR JUDGMENT

Extempore

1. This is an application by the mother for various orders including that I recuse myself from further dealing with the matter.  It is not the first time she has made an application. 

2. As has been stated many times today, the test to be applied in deciding whether or not a judge is required to disqualify him or herself is whether a fair-mined 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.[1]

   [1] Johnson v Johnson (2000) 201 CLR 488 at para 11

3. By way of background, I delivered a lengthy judgment in parenting proceedings between the parties on 30 June 2020.  Between the end of the hearing in April 2020 and the delivery of the judgment in June 2020, the mother filed three applications in a case:

   i)in the first, filed on 24 April 2020, the mother sought leave to provide a copy of the family report to the Australian Federal Police, to two regulatory authorities and to a solicitor she proposed to engage in relation to civil proceedings against the family consultant.  No recusal was sought as part that application;

   ii)in the second, filed on 9 June 2020, Ms Markwell sought that I recuse myself from the proceedings and transfer the proceedings to the Melbourne registry; and

   iii)in the third, filed on 11 June 2020, Ms Markwell sought property orders. 

4. All three applications were listed on 20 July 2020, along with two very old contravention applications filed Mr Ranwick which had not previously been dealt with.  On 20 July 2020 the contravention applications were withdrawn and dismissed.  The mother also withdrew her application for recusal and change of venue.  I made the orders as sought by the mother permitting her to provide a copy of the family report to the various people and entities she sought, provided that, at the same time, she also provided to the same people a copy of the reasons for decision of 30 June 2020.  I made procedural orders in relation to the property application.  I listed the property matter for hearing of Mr Ranwick’s foreshadowed application for its summary dismissal.   I noted that the parties had agreed to me determining any interim application, after which consideration would be given to the matter being transferred to another judge, bearing in mind the credit findings made in the substantive parenting proceedings. 

5. Prior to 20 July 2020, a dispute had arisen between the mother and Mr Ranwick about whether the Covid-19 travel restrictions prevented the child, D, being delivered to her father in circumstances in which the child was in Victoria with her mother.  On 20 July 2020 I made orders for the handover of the child.

6. On 28 July 2020 the mother filed another application in a case seeking a stay of the operation of the orders of 30 June 2020, pending appeal and that I recuse myself from hearing the proceedings any further.  She sought various other orders in the event her stay application was successful.  That application came before me on 3 August 2020.  I dismissed the mother’s recusal application (which I incorrectly described in the orders as an oral application) and adjourned the stay application to 7 August 2020.

7. On 7 August 2020 I dismissed the mother’s stay application.  Formal reasons for that decision were delivered on 3 September 2020.

8. On 7 August 2020 I also made specific orders to give effect to the final parenting orders of 30 June 2020.  The 7 August 2020 orders set out the arrangements for B to spend time with her mother prior to the mother relocating to Canberra and specified the date on which D’s time with her father was to commence in accordance with the orders of 30 June 2020.  I made orders requiring the parties to comply with all Government Covid-19 safety restrictions as this had been the source of an ongoing dispute between the parties.

9. By consent, on 7 August 2020 I made an order extending the time by which the mother was to file an initiating application for a property settlement.  I made orders for the filing of submissions in relation to the costs applications made by Mr Solberg and Mr Ranwick which I had insufficient time to consider that day.

10. More controversially, on 7 August 2020 I made an order that, in the event any of the parents made a notification to the police or a child protection agency in relation to either of the children, they were required to also provide to the police or child protection authority a copy of the orders and reasons for decision dated 30 June 2020 and a copy of the orders of 7 August 2020.  This was because, in the period of a little over five weeks between the judgment on 30 June 2020 and when the matter came before me on 7 August 2020, there had been another notification made by the mother to a doctor who, in turn, made a report to a child protection agency.  The orders I made did not prevent any child protection agency from investigating any future notifications but gave them the benefit of a broader perspective given the reasons for decision dealt in detail with numerous previous notifications made directly or indirectly by the mother to child protection agencies, none of which were substantiated.

11. The mother appealed my decision of 7 August 2020 refusing the stay.  That appeal was withdrawn the day before it was due to be heard, apparently on the basis that the Full Court had expedited the appeal from the substantive orders.

12. The mother’s appeal from the substantive orders of 30 June 2020 was heard on 2 December 2020 and dismissed on 18 December 2020.  One of the grounds of appeal was my failure to determine the mother’s recusal application filed on 9 June 2020 before I delivered judgment on 30 June 2020.  The Full Court commented that, as I was aware of the recusal application filed on 9 June 2020, I should have dealt with it before I delivered judgment on 30 June 2020.  Ultimately, however, the Full Court found that the mother had failed to raise any objection to the issues complained of at the time they arose and that she had failed to bring the recusal application in a timely manner, thereby waiving her right to do so.

13. On 15 October 2020, before the appeal decision was handed down, the mother filed an application a case seeking orders that she be permitted to travel with the child, D, to City J to collect her remaining possessions.  A week later, that application was withdrawn.

14. On 15 December 2020 the mother filed an application a case seeking a discharge of order 7 of the orders of 7 August 2020 which restrained the parties from taking the children out of the ACT or New South Wales without the consent of the other parent or a Court order.  The mother also sought permission to travel to Victoria with the children during the imminent school holidays and sought that the matter be dealt with on an urgent basis.  She did not seek an order that I recuse myself from dealing with the matter.

15. The application was listed on 17 December 2020.  On that day orders were made by consent permitting the mother to travel with the children to Victoria during periods the children were in her care in January 2021.  Mr Ranwick made an oral application to vary the handover time for D on Christmas Day.  That application was dismissed.  The mother’s application to discharge order 7 of 7 August 2020 was adjourned to 11 March 2021.

16. Yesterday, on 10 March 2021, the mother filed an application in a case in which she sought a discharge of all interim orders made on 7 August 2020 and that I recuse myself.  In the course of the proceedings today the mother was given leave to orally further amend the application in a case to specify that she sought a dismissal of the orders of 7 August 2020 except for orders 2 and 3 (which dealt with the arrangements for B pending the mother’s move to Canberra) and order 5 (which dealt with handover arrangements for D). 

17. In support of her recusal application, the mother relied on various findings I made in my determination of the substantive parenting proceedings which, she asserts, are demonstrably wrong.  In circumstance in which the Full Court upheld the decision on appeal, that argument cannot succeed.

18. The mother relied on various statements I have made to the effect that, having made findings of credit against the mother, any further proceedings should be dealt with by another judge.  Most of these statements were made in relation to contravention proceedings.  For instance, at paragraph 19 of her affidavit filed on 10 March 2021, the mother referred to paragraph 456 of the reasons for decision of 30 June 2020.  The mother only quoted part of that paragraph but it reads in full as follows:

    The contravention applications filed by Mr Ranwick on 30 October 2018 and 5 April 2019 remain outstanding.  They have been overlooked in circumstances in which there were multiple urgent interim parenting issues to deal with in the proceedings.  I will list them for mention to see if Mr Ranwick still wishes to pursue the applications.  If so, given the extensive credit findings I have made, they will need to be heard by another judge.

19. The mother also relied on statements I made during the proceedings on 20 July 2020. Although the mother had withdrawn her recusal application that day, I queried whether I should deal with the property application.  I suggested to the parties that I deal with Mr Ranwick’s summary dismissal application as that would not involve issues of credit and, if that application was not successful and the property proceedings continued, they be dealt with by another judge.  Both the mother and Mr Ranwick consented to that course.[2] I made a notation to that effect in the orders made that day.[3]  I do not accept the import of the mother’s submission that, by raising the issue, I was acknowledging bias against the mother. 

    [2] Transcript 20 July 2020 at page 10, line 35 to page 11, line 1

    [3] Notation B to the orders of 20 July 2020.

20. I have continued to deal with the parenting matters arising after the final orders of 30 June 2020 (including at the request of the mother) because they are in the nature of clarifying, particularising, tidying up and giving effect to the final orders.

21. The mother argued that I demonstrated bias on 7 August 2020 when, in the absence of an application by any party, I made the order requiring the parties to provide a copy of the reasons for decision of 30 June 2020 to any police or child protection authority to whom a notification was made.  As mentioned earlier, that order was made in circumstances in which I had made orders and issued reasons for decision on 30 June 2020 in which I expressed concern about the number of unsubstantiated notifications to child protection agencies and, in the five weeks since that decision, there had already been at least one further notification.  I was concerned about the children suffering systems abuse in the form of unnecessary and possibly intrusive examinations.  The order does not prevent any party making a notification to a child protection agency, as such agencies have an important statutory role to play in the protection of children.  However, and again as mentioned earlier, I thought it important that the relevant child protection agency had the benefit of a broader perspective arising from the analysis undertaken in the parenting proceedings of the circumstances surrounding the previous notifications.  The order applies to all parties and I do not accept that this demonstrates bias against the mother.

22. Mr Solberg and Mr Ranwick opposed the mother’s current recusal application.  Mr Nicholls, appearing for Mr Solberg, relied on the fact that the mother continues to make no objection to me dealing with the preliminary issues that are to be determined in relation to Ms Markwell’s property application nor the costs application arising from the proceedings on 7 August of last year.  I agree with his submission that it defies logic for the mother to argue that I am biased against her in relation to parenting issues but not in relation to property, procedural or costs issues.  The mother submitted there was a difference because the applications concerning the children related to their safety which is her main priority.  That was not persuasive.

23. Mr Nicholls argued that the mother had waived her right to bring a recusal application because she had not done so in a timely manner.  He relied on the fact that, on 20 July 2020, the mother withdrew the recusal application she filed on 9 June 2020.  The mother argued in reply that, by 20 July 2020, the substantive decision of 30 June 2020 had already been handed down which, she felt, made her recusal application redundant.  For the purpose of today’s argument, I accept that.

24. Mr Nicholls also relied on the fact that the mother had filed applications on 15 October 2020 and 15 December 2020 seeking various parenting orders but made no application that they be dealt with by a different judge.  In reply, the mother submitted that, at the time she filed her applications in October and December 2020, her appeal from my order of 3 August 2020 dismissing her recusal application of 28 July 2020 was still outstanding.  Again, for the purpose of today’s proceedings, I accept her submission about that.  However, the appeal decision was delivered on 18 December 2020 and, in their reasons, the Full Court emphasised the importance of timeliness of any recusal application.  At that time, the mother’s application filed on 15 October 2020 had been withdrawn but her application filed on 15 December 2020 had, on 17 December 2020, been listed for hearing today, 11 March 2021.  In the almost three months following the Full Court decision, the mother did not seek my recusal.  She only made that application in her amended application filed close to midnight on 9 March 2021 which was formally filed in the registry yesterday, 10 March 2021.  I agree with Mr Nicholls that this could not be said to be a timely application.

25. I accept the submission of Mr Nicholls that the mother has failed to establish that I have demonstrated actual bias or that I have determined any matter other than on its merits.  I accept that the mother may have a subjective perception that I am biased against her because I have made findings against her, but that does not sufficiently meet the test.  The mother is obviously content for me to deal with some applications and not others.  She has not established that a reasonable fair-minded lay person might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues.  Accordingly, the mother’s recusal application will be dismissed.

26. I will now determine the balance of the application before me. 

27. The mother sought a discharge of all of the orders of 7 August 2020 in their entirety.  She then varied her application to preserve orders 2, 3 and 5 of the orders made on 7 August 2020.  The major issue involved order 8 of 7 August 2020 which requires the parties to provide a copy of the reasons for decision of 30 June 2020 to police or a child protection agency in the event they make any notification in relation to the children.  For the reasons already stated, I decline to make the order.

28. The mother made a further oral application today that, in the event she was unsuccessful in having order 8 of 7 August 2020 discharged, she have liberty to also provide to the police or child protection agency copies of transcript of the trial of the parenting proceedings to demonstrate the erroneous findings I made.  Again, in the context in which the Full Court has heard and dismissed the mother’s appeal from those orders, this application is misconceived and will be dismissed.  

29. Notwithstanding that I have dismissed the mother’s applications, having heard the submissions, I am persuaded that it is appropriate that there is a sunset clause to order 8 of 7 August 2020 because, as time goes on, the significance of my reasons for decision and any behaviour that was engaged in previously is reduced.  I will vary order 8 so that it expires on 31 December 2026 by which time D will be aged nine. 

30. Mr Ranwick conceded that he had given a copy of the orders and reasons for decision of 30 June 2020 to D’s doctor.  The orders do not permit him to do so and I will order that he retrieve those documents.  I will also make a separate order restraining the parties from providing the documents to anyone else without a Court order.  I am satisfied that such a restraint is necessary for the welfare of the children.

1. A contravention application was filed by the mother on 10 March 2021.  That does need to go before another judge and I will order accordingly. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Hughes.

Associate: 

Date:  22 April 2021