McCormick and Graft (No 2)
[2015] FamCA 1044
•26 November 2015
FAMILY COURT OF AUSTRALIA
| MCCORMICK & GRAFT (NO 2) | [2015] FamCA 1044 |
| FAMILY LAW – PROCEDURAL – CASE APPLICATION – application be dismissed – where the mother sought to have the judge recuse himself – where the mother sought the removal of the Independent Children’s Lawyer – where the mother sought a stay of proceedings – discussion of the principles of stay applications – discussion of the circumstances for recusal. |
| Family Law Act 1975 (Cth) |
| Re K Appeal (1994) FLC 92-461 Helbig & Rowe (No 2) [2012] FamCAFC 175 Rice & Asplund (1979) FLC 90-725 |
| APPLICANT: | Mr McCormick |
| RESPONDENT: | Ms Graft |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Cope |
| FILE NUMBER: | CSC | 301 | of | 2009 |
| DATE DELIVERED: | 26 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 9 November 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lloyd |
| SOLICITORS FOR THE APPLICANT: | Preston Law |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Cope Family Law |
Orders
The mother’s Application in a Case filed 9 September 2015 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McCormick & Graft (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC301/2009
| Mr McCormick |
Applicant
And
| Ms Graft |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Application in a Case filed 9 September 2015, Ms Graft (“the mother”) sought the following orders:
1.That all orders and proceedings in the Family Law Courts be stayed.
2.That this matter be removed from the Cairns Registry and Justice Tree.
3.The children be removed from the father’s care.
4.Ms D and the Independent Children's Lawyer be prevented from further contact or proceedings with the two children in these proceedings.
The application came on for hearing before me on the first day of trial. I dismissed the application and reserved my reasons. These are those reasons.
BACKGROUND INFORMATION
The principal proceedings concern the parties’ two children, G (aged 10), and H (aged 9) (“the children”). They have a long and complex history. It is unnecessary to recite all of it for the purposes of an understanding of the background to the mother’s application, but suffice to say that whilst proceedings before Federal Magistrate Willis (as her Honour then was) were part heard, the parties were able to reach final consent orders, which were pronounced by her Honour on 27 February 2012. Those orders saw the parties have equal shared parental responsibility for the children, and for them to live week about between the parties. There was also an order that the parties have equal time with the children during school holidays.
Those orders ceased to become practically operative, at least as regards living arrangements, when the mother unilaterally moved from the E Town to the F Town region, in consequence of which the week about arrangement became untenable, not least of because the children could not possible continue to attend the same school if they were to spend the week with their mother. The children then remained living with the father. However subsequently two things happened. The first is that the parties began to experience difficulty in implementing the orders for equal holiday time; the second was that the father moved from the E Town to C Town, in consequence of which the children changed schools.
On 6 May 2013 the father commenced proceedings in the Federal Circuit Court seeking to re-agitate parenting orders. In interim proceedings relating to the children, on 10 May 2013 Judge Willis varied the consent orders of 27 February 2012 with the effect that the children spent one half of school holiday time with the mother, but otherwise lived with the father. Then on 13 October 2014 Judge Coker ordered that the proceedings transfer to the Family Court of Australia.
On 29 January 2015 the mother filed an Amended Application in a Case seeking a variety of orders, including a further revisitation of the interim parenting orders. She also sought orders in relation to the father’s solicitors, who she contended had misconducted themselves, and a further order restraining the Family Report writer, Ms D, from being “allowed further contact with these children.” Finally she sought a review of a Registrar’s decision to refuse to permit her to file an affidavit which, amongst a number of colourful allegations, alleged that Judge Willis had received payment from the father in exchange for permitting him to mislead the court.
For ex tempore reasons which I gave on 2 February 2015, I dismissed the entirety of the mother’s application.
The matter then proceeded to be readied for trial, and came on for hearing before me on 9 November 2015.
THE STAY APPLICATION
The mother seeks a stay of “all orders and proceedings in the Family Law Courts.” It is unclear whether she seeks such an order on a permanent or interim basis. Moreover, the grounds upon which she seeks that stay are not at all clear. That is despite her affidavit filed in support of the application providing as follows:
I require a stay in the Family Law Court so I can proceed with Supreme Court proceedings against Justice Tree [Family Law Court] Judge Willis [Federal Circuit Court] the Independent Children's Lawyer [Cope Law] the father’s solicitor [Preston Law] and the Family Report writer [Ms D].
Perhaps some further light is shed on her grounds for seeking the stay by paragraph 51, which provides “I will be seeking disbarment of Justice Tree, Judge Willis and at least two Preston Law solicitors.” At paragraph 71 she continued “There is no option other than to file and start proceedings outside this Court.”
Doing the best I can, it appears as though the mother wishes these proceedings not to continue until she has completed her contemplated litigation against myself, Judge Willis the father’s solicitors, the Independent Children's Lawyer and the Family Report writer.
The principles relevant to the granting of a stay of proceedings was discussed by the Full Court in the matter of Re K Appeal (1994) FLC 92-461, particularly at paragraphs 23 to 26. Accepting that case related to a stay of proceedings pending a criminal trial being determined, nonetheless the statements of general principle are applicable. Particularly the following appear to be pertinent points to draw from that decision:
·Ordinarily parties are entitled to have litigation tried in the ordinary course of the procedure and business of the court;
·It is a grave matter to interfere with that, and proper grounds need to be advanced to justify that interference;
·The burden is on the party seeking the stay to show it is just and convenient so to order;
·The exercise of the discretion involves balancing justice between the parties;
·Whilst the court is obliged to take into account all relevant factors, it is undesirable to try and list those in abstract;
·In the context of children’s proceedings, that litigation is not strictly an inter partes proceeding;
·Critically, the welfare of the child is the paramount consideration in determining whether or not to grant the stay.
The following matters weigh against the grant of the stay:
·These parties have now been litigating in relation the children for some years, and it is in the children’s interests to bring those proceedings to an end;
·The mother has now not spent face to face time with the children for some ten months;
·It is unclear precisely what cause of action the mother proposes to pursue in the Supreme Court proceedings she has said she intends to bring;
·Assuming that the mother does indeed have a cause of action and commences proceedings, it is presently impossible to predict how long it would be until those proceedings, including any appeals therefrom, were concluded.
On the other hand, apart than the mother’s desire to commence proceedings in the Supreme Court, I can identify no factor in favour of the grant of a stay.
Weighing those matters in the balance tells strongly in favour of the application for a stay being refused.
CHANGE OF REGISTRY AND JUDGE
The mother does not put forward any Registry other than Cairns that would be suitable for the disposal of this matter. Perhaps she has in mind the removal of the matter to the Townsville Registry but her affidavit material does not descend to that detail. It is therefore difficult to discern precisely why it is that another Registry would be better able to assist the parties in resolving their outstanding disputes. However I suspect that the mother’s real concerns arise from the same sub-stratum of facts on which she bases her application that I should recuse myself from the hearing of the trial. I will therefore consider the two aspects of the mother’s application in this respect conjointly.
In Helbig & Rowe (No 2) [2012] FamCAFC 175 Coleman J at [28] said as follows:
[28] As is not in doubt, the focus of the applicable test is whether a fair minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of questions the judge is required to decide. It is not in doubt, at least in the modern era, that judicial officers are not obliged to remain “sphinx like” during the course of proceedings before them (see Galea v Galea (1990) 19 NSWLR 263 at 278-279, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (“Johnson”) and Garrett v Freeman (No 3) [2007] NSWLEC 139. This is particularly so in the context of interlocutory proceedings, and perhaps even more so in the case of subordinate courts such as the Federal Magistrates Court in which judicial officers invariably have a vast case load, which must be dispatched within the very limited time available to them for that purpose. The advent of “case management” in the 21st century has added to the pressure on judicial officers such as Federal Magistrates. Whilst those matters do not temper what the authorities clearly reveal, they are relevant to the conclusions which a fair minded observer might reasonably reach. So are the statements made by the judicial officer during the course of proceedings, or findings, or observations recorded by him or her in judicial reasons.
Against that background I then turn to consider the complaints which the mother makes in relation to my conduct of the proceedings to date, accepting that I have thus far only dealt with the matter on 2 February 2015 and 4 August 2015. By reference to the mother’s affidavit they appear to be as follows:
·That I have “refused to make the father comply [with the current parenting orders] and currently claim there is no evidence against [him]” (paragraph 5);
·That I have acted against the Family Law Act and completely ignored court rules/laws (paragraph 8);
·That I have been provided “incentive” by the parties to allow court rulings in favour of the father and to ignore his alleged misconduct (paragraph 13);
·That on 2 February 2015 I stated that I “did not care if the parties lie, claim a long trial is a waste of court resources, .. was going to limit cross-examination at trial of witnesses .. did not care about legal aid, stated the mother had not provided sufficient evidence, the mother’s documents were scandalous and dismissed .. allowed the father’s barrister to mislead the court, allowed the father’s solicitor to file document outside court rules.” It might also be that she alleges that I misconducted myself by only taking one half an hour to read the documents filed in support of the mother’s application that I heard on 2 February 2015 (paragraph 15);
·That I have “completely breached law and ethics and has given the parties permission to lie to report writers and the court” (paragraph 21);
·That on 4 August 2015 I denied that I had said on 2 February 2015 that I did not care if the parties lied, and stated the mother’s documents (in which that was claimed) were rubbish (paragraph 23);
·That an appeal would not address my alleged misconduct (paragraph 67);
·That I am “clearly not following basic law” (paragraph 70);
·That I declined to speak to the children in chambers (paragraph 73);
·That I am “clearly acting against court rules” (paragraph 76);
·That I had “no grounds to dismiss [the mother’s] applications and/or to make his own claims during the hearing [presumably on 2 February 2015] especially giving the parties permission to lie (paragraph 82).
Leaving aside the specific allegation that on 2 February 2015 I stated that I did not care if parties lie in evidence or to a Family Report writer, it will be appreciated that the mother’s charges against me are almost wholly devoid of any specificity. It is impossible to get to the bottom of precisely what she says that I have failed to do comprising ignoring court rules, laws, breaching law and ethics and the like. Plainly, if I have made errors of law in the course of dealing with the interlocutory proceedings in this matter, then the appropriate course was to appeal. In fact the mother did appeal from my orders on 2 February 2015, and yet that appeal was not pressed by her and was ultimately deemed abandoned. I am not satisfied that there is anything in that aspect of the mother’s claim against me which would cause a fair minded lay observer to reasonably apprehend that I would not be impartial in determining these proceedings.
The next issue is the alleged statement by me on 2 February that I did not mind if parties lied. There is no transcript on the court file of that occasion, and not only do I have no recollection of having said such a thing on the day, it seems most unlikely. It may be that the mother misunderstood my instruction to her, on occasion, that the court is not in a position to determine the truthfulness or otherwise of parties’ assertions in the course of interim proceedings such as were then before me, but it is difficult to know.
In my decision of 2 February 2015 I made no findings of credit in relation to either party, and insofar as I dismissed the mother’s application pertaining parenting orders, did so on a Rice & Asplund ground (accepting that that is nonetheless a determination on the merits). In any event, the mother does not appear to contend in her affidavit that I have in some way pre-judged the outcome of the proceedings, or otherwise could be reasonably perceived as not being impartial.
That then leaves really only two matters. The first is that at paragraph 33 of my reasons delivered on 2 February 2015, I described the mother’s affidavit, in which she alleged that Judge Willis had received payment from the father, as plainly scandalous. It was. However in so describing her allegations, there is no basis for a fair minded observer to reasonably apprehend that I thereafter would not bring an impartial mind to the resolution of the questions in the parenting proceedings, namely where the best interests of these children lie in relation to the arrangements pertaining to them.
The final matter relates to the second occasion that I dealt with this matter prior to trial (being 4 August 2015), when I allegedly described the mother’s statements to the effect that I had on 2 February 2015 said that I did not care if the parties lied to me as “rubbish.” I accept that it is quite possible that I did indeed so describe the mother’s assertion. Even acknowledging that may not necessarily be the exemplar of a judicial response to the mother’s claim, plainly a court is not obliged to sit silently by in such situations, but rather is entitled to robustly defend its own integrity when it is under challenge. In those circumstances, I am not persuaded that a fair minded lay observer would reasonably apprehend that I would not bring an impartial mind to the resolution of the questions in this case, being as I say, adjudging where the best interests of the children lie.
There is therefore no basis to recuse myself from the further hearing of the trial, and I decline to do so. There is likewise no basis to order the matter proceed in another Registry.
REMOVAL OF CHILDREN FROM FATHER’S CARE
It is unclear whether the mother intended to press this component of the application separately to the first two orders which she sought, in the sense that if she failed in staying the proceedings and having me recuse myself, she nonetheless required the children to be removed from the father’s care.
The mother last unsuccessfully sought to agitate interim children’s matters in the hearing before me on 2 February 2015. I determined that there was an insufficient change in circumstance from the facts that pertained as at 10 May 2013, when the last interim orders were made, to justify re-litigation on an interim basis. The mother’s affidavit does not detail any change in circumstance whatsoever since 2 February. Moreover, with the trial about to commence before me, there is every reason not to proceed to consider interim arrangements, assuming of course that judgment in the trial can be reasonably quickly delivered. Moreover the mother’s application is wholly devoid of relevant detail. She does not say into whose care the children should be placed if they were removed from the father’s care. She does not set out in her affidavit any of the proposed living arrangements for the children, if it be that the children were placed in her care. Other than the mother, it is difficult to identify who else the children could be placed in the care of.
The mother’s application for further interim children’s orders therefore must fail.
FAMILY REPORT WRITER AND INDEPENDENT CHILDREN'S LAWYER CONTACT WITH CHILDREN
Again it is unclear whether the mother intended to press this component of her application separately to the first two orders. On the assumption that she did indeed so intend, the first observation I should make is that the mother made an identical application in relation to the Family Report writer, Ms D, by paragraph 11 of her Amended Application in a Case filed 29 January 2015. On 2 February 2015 I dismissed that application. Nothing has occurred since then, or at least nothing is set out in the mother’s affidavit of 9 November 2015, which would justify the further consideration as to whether or not Ms D should be permitted to have further contact with the children. In any event, I note that Ms D did have further contact with the children on 17 July 2015, in the course of preparing her Updated Family Report, and in the usual scheme of things, would never be intended to have further contact with the children again. There is therefore no utility in considering the mother’s application at this point in time.
Likewise, ordinarily, unless orders were required to be explained to the children, the Independent Children's Lawyer would be unlikely to have further contact with the children the subject of these proceedings. In any event the precise reason why the Independent Children's Lawyer should have no contact with the children is not addressed in the mother’s affidavit. There seems to be a general allegation that the Independent Children's Lawyer has allowed herself to be aligned with the father’s case, and perhaps other misconduct is alleged. However if it be the case that the Independent Children's Lawyer has misconducted herself – as to which there is presently a paucity of material to support any such allegation – then the appropriate application is to have the Independent Children's Lawyer discharged, and not to prevent her from properly performing her duties by precluding her from having any communication with the children. This aspect of the mother’s application must therefore fail.
CONCLUSION
It therefore follows that the mother’s application wholly fails, and for these reasons on 9 November 2015 I dismissed it.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 26 November 2015.
Associate:
Date: 26 November 2015
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