NORRIS & MATTHEWS
[2017] FamCA 130
•2 March 2017
FAMILY COURT OF AUSTRALIA
| NORRIS & MATTHEWS | [2017] FamCA 130 |
| FAMILY LAW – STAY APPLICATION – Where the mother seeks the stay of interim orders pending the outcome of the appeal or final hearing, whichever comes first – Where there is no discernible merit in the grounds of appeal – Concluded the apparent lack of merit is an influential factor in determination of whether a stay should be granted – Where the appeal is unlikely to be heard before final trial in any event – Concluded her appeal will likely be a futile exercise – Ordered the mother’s stay application is dismissed FAMILY LAW – INTERLOCUTORY – Disqualification – Where the mother sought the docket judge be disqualified from hearing the matter –Where the mother is plainly dissatisfied with the recent decisions in the case – Where mother failed to demonstrate actual or perceived bias – Ordered the mother’s application for disqualification is dismissed |
| Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Federal Commissioner of Taxation v Myer Emporium Ltd(No.1) (1986) 160 CLR 220 Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 Johnson v Johnson (2000) 201 CLR 488 Webb & The Queen (1994) 181 CLR 41 |
| APPLICANT: | Ms Norris |
| RESPONDENT: | Mr Matthews |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 2226 | of | 2015 |
| DATE DELIVERED: | 2 March 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 2 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | Ms Carty |
| SOLICITOR FOR THE RESPONDENT: | Oliver Campbell Heslop Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O'Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The Application in a Case filed on 24 February 2017 is dismissed.
The father’s costs of and incidental to today’s interim hearing are reserved until the final trial of the parties’ applications for parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth).
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Norris & Matthews has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: NCC 2226 of 2015
| Ms Norris |
Applicant
And
| Mr Matthews |
Respondent
And
| Independent Children’s Lawyer |
EX-TEMPORE
REASONS FOR JUDGMENT
This is the fifth interim hearing given to the parties in the last three months concerning their six year old daughter.
On the last occasion (20 February 2017), interim orders were made reversing the child’s residence because of the child’s abduction by the mother and her breach of existing orders. The new orders provided for the child to live with the father and to spend weekly supervised time with the mother.
The mother appealed those orders on 23 February 2017 and, on 24 February 2017, she filed an Application in a Case, which is the application I now entertain. In her accompanying affidavit the mother said (at [46]):
I kindly ask this matter gets heard urgently…
She got her wish. The application was listed for hearing before me urgently by telephone link today (2 March 2017).
The relief sought by the mother falls into the following categories:
(a)my disqualification from hearing any further application in the litigation due to “procedural unfairness and discrimination”;
(b)the stay of the orders I made on both 6 February 2017 and 20 February 2017;
(c)in the event of such orders being stayed, continued operation of the interim orders made in January 2016 and July 2016 “until the final hearing or the appeal, whichever comes first”;
(d)her right of first refusal to care for the child if the father is unable (which she presumably only sought if her preceding applications are dismissed);
(e)the grant of permission by the Court for the DPP to investigate the father for the misconduct of which the mother suspects he is guilty; and
(f)the father’s enforced attendance upon a psychiatrist at the mother’s expense and discretion.
The mother’s application was opposed in all respects by both the father and Independent Children's Lawyer.
In support of her application, the mother relied upon her affidavit filed on 24 February 2017.
Disqualification
The mother did not appreciate that her successful application for me to disqualify myself would then preclude me from dealing with the remainder of her application, thereby necessitating its adjournment and some delay before it could be listed before another judge. She refused to deal with the disqualification application first, but it is obligatory for me to do so.
The principles related to apprehended judicial bias are well known (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345; Johnson v Johnson (2000) 201 CLR 488 at 492):
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 seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.
Application of that principle entails two distinct steps as was explained in Ebner at 345:
First, it requires the identification of what it is said might lead a judge … 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 … has a “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.
There are recognised to be four distinct, but overlapping, categories of cases covered by the doctrine of apprehended bias (see Webb & The Queen (1994) 181 CLR 41 at 74; Ebner at 348-349). The first is disqualification by interest, the second is disqualification by conduct, the third is disqualification by association, and the fourth is disqualification by extraneous information.
The only evidence adduced on the issue by the mother was as follows (at [34]):
Judge Austin obviously has no concern or consideration for myself and my family and our culture. He is showing extreme bias and discrimination including a number of lies. I kindly ask that he disqualify himself from the case because of the continued bias.
It would seem that the mother contends I am actually biased against her, not merely that there is a reasonable apprehension of my bias. It seems that she considers the actual bias stems from my conduct as a judicial officer in these proceedings. I reject the veracity of her evidence and I reject any suggestion of actual or reasonable perception of bias. There is no evidence of “extreme bias”, “discrimination”, or “lies”. The mother is plainly dissatisfied with recent decisions I have made in this case but there is no demonstrated link between her subjective dissatisfaction and any objective basis for her allegations of my impropriety. All decisions I have made have been explained by ex tempore reasons which clearly expose the methodology of application of the evidence to legal principles. The mother’s application for my disqualification is therefore dismissed.
Stay and/or other parenting orders
The mother’s application for stay and other parenting orders is misconceived. She wants the orders made on 6 February 2017 and 20 February 2017 stayed, but only the latter of those two sets of orders is the subject of appeal. There are no grounds to stay the orders made on 6 February 2017 because they are not under appeal and, in any event, they were discharged by the orders made on 20 February 2017. Similarly, the orders made on 9 December 2016 (by Cleary J) and on 22 December 2016 (by me) were also discharged by the orders made on 20 February 2017, so the mother’s pending appeals against those discharged orders are now futile.
The only orders that could be stayed are those made on 20 February 2017.
The discretion to stay the operation of orders should only be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his/her litigation pending the determination of any appeal. Such special circumstances justifying a stay will exist where it is necessary to prevent the appeal from being nugatory or, for whatever other reason, there is a real risk it will not be possible for a successful appellant to be restored substantially to his/her former position if the judgment against him/her is executed (see Federal Commissioner of Taxation v Myer Emporium Ltd(No.1) (1986) 160 CLR 220 at 222-223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 685). Those common law principles apply equally to judgments delivered in this jurisdiction, including judgments pertaining to parenting orders. The Court is entitled to assume that the decision which is the subject of the appeal is correct. Indeed, the Full Court must subsequently approach the appeal on the basis of a strong presumption that the decision is correct (see Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621 at 627).
The appeal filed by the mother on 23 February 2017 against the orders made on 20 February 2017 nominates three distinct grounds of appeal. The first is entitled “best interests of the child”, the second is entitled “procedural fairness”, and the third is entitled “discrimination”. None of the grounds of appeal are elaborated in any meaningful way. I cannot discern any merit in those grounds of appeal from either the face of the Notice of Appeal or the mother’s submissions to the Court today. The apparent lack of merit is an influential factor in the determination of whether a stay should be granted.
The orders made on 20 February 2017 are only likely to remain in place until June 2017. I originally expected to hear the trial of the parties’ final parenting applications in early July 2017, but I now expect to hear their trial commencing on or about 13 June 2017, after an updated Family Report is procured in April 2017. It is unlikely the mother’s appeal against the interim orders made on 20 February 2017 will be heard before the final trial. Her appeal is therefore likely to be a futile exercise. A trial in June 2017 will likely avoid any conflict with the mother’s confinement, as her pregnancy is expected to come to full term in August 2017.
For those reasons, the mother’s application to stay the orders made on 20 February 2017 is dismissed. That will mean the interim orders made on 20 February 2017 will operate until reserved judgment is published following the final trial in June 2017. There is accordingly no justification to revisit the issue of interim parenting orders, but it is instructive to appreciate the illogicality of the mother’s propositions.
She confirmed to the Court today that she is presently in New Zealand, not Australia. The orders proposed in her Application in a Case relevantly propose that the orders made in January 2016 and July 2016 should continue to prevail. Those orders make provision for the child to live with the mother and to spend three days of each week with the father. It is impossible for those orders to be implemented today, as the mother wants, if she is living overseas. Similarly, the mother proposed that if the father is unable to look after the child for any reason, then she should have the first right of refusal. Clearly, that cannot happen if she is in New Zealand.
On the one hand, the mother maintains her asserted concerns about both the actuality and risk of the child’s physical and emotional abuse in the father’s care but, on the other hand, asserts her willingness to implement the orders made with her consent in January 2016, which provide for the child to spend substantial amounts of unsupervised time with the father.
As to the risk of abuse, the mother deposed as follows:
I am greatly concerned about the physical and emotional abuse [the child] will be subjected to at the [father’s partner’s] household… The evidence the child HAS been physically and emotionally abused while in the father’s care has been totally ignored.
Her submissions today only emphasised her allegations of past abuse and the risk of its occurrence in the future.
As to the child spending unsupervised time with the father, the mother deposed:
I will fully commit to the consent orders made 29 January 2016 and July 2016… I just so much want [the child] to have a safe, healthy relationship with both of her parents.
The mother seemed not to appreciate the inconsistency of her position. If her sentiments about promotion of the child’s relationship with the father are true, it would be tantamount to an epiphany. No doubt, the genuineness of her evidence will be stringently tested at final trial. I remain confused as to how the mother can maintain her complaint about the child’s safety with the father, but still assert she will comply with orders enabling the child to spend substantial amounts of unsupervised time with him.
During her submissions today, the mother complained about an alleged failure to deal with the Notice of Risk she has filed in this litigation. Pursuant to its obligations under the Family Law Act and Family Law Rules, any Notice of Risk filed by the parties would have been forwarded by the Court to the NSW Department of Family and Community Services (“the Department”). Any Notice of Risk filed in these proceedings would simply identify an issue to be addressed in the proceedings. As I have already indicated, the final trial of the parties’ respective applications is likely to occur within the next couple of months. The Court will act on the evidence adduced, as is always the case. What the Department does in respect of the Notice of Risk is a matter for the Department.
Involvement of the DPP
The mother deposed in her affidavit (at [39], [40], [44] and [45]) to her concerns about the father’s alleged lies in respect of issues connected to these proceedings. The mother’s sworn request of the Court was stated in the following terms:
I would like orders requesting the Director of Police Prosecutions [sic] to investigate.
That request is replicated in the form of orders contained within her Application in a Case. The mother seemed not to appreciate that if she wishes to make an allegation of criminal misconduct on the part of the father she is at liberty to report it to the police without waiting for the permission of this Court. What, if anything, is done to investigate the allegation and prosecute the father for any alleged misconduct is a matter entirely for the police and/or the NSW Director of Public Prosecutions. It is not a matter that falls within the ambit of this Court’s jurisdiction. The mother was mistaken in believing it is a matter for this Court to authorise her approach to the authorities.
Psychiatrist
The mother sought an order in the following terms in relation to the father’s psychiatric assessment:
The father [full name] to attend a psychiatrist nominated by the mother at the mother’s expense at a time and place determined by the mother.
Suffice to say, no evidence was adduced by the mother and no submission made by her which could possibly be a proper basis for such an order to be made.
Conclusion
The Application in a Case filed by the mother on 24 February 2017 will be dismissed in all respects.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 2 March 2017.
Associate:
Date: 8 March 2017
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