Philidor & Philidor (No 3)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Philidor & Philidor (No 3) [2023] FedCFamC1F 1131

File number(s): MLC 9942 of 2020
Judgment of: MCNAB J
Date of judgment: 19 December 2023
Catchwords: FAMILY LAW – PARENTING – Application for recusal on the basis of apprehension of bias – where the application is dismissed – where the Full Court has dismissed grounds of appeal alleging a reasonable apprehension of bias regarding the conduct of a hearing that resulted in interim parenting orders being made - where the applicant now seeks orders that the trial judge recuse himself on the basis of findings made for the purposes of making interim orders- where there has been delay in making the application – where the application is dismissed.     
Legislation:

Family Law Act 1975 (Cth) ss 62B, 65DA, 69ZR, 102NA, 121.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 10.14(b)

Cases cited:

Ebner v the Official Trustee in Bankruptcy [2000] 205 CLR 337

Johnson v Johnson (2000) 201 CLR 488

Pearlman v WA A/Information Commissioner [2019] WASC 257

Philidor & Philidor [2023] FedCFamC1A 192

Re Andrew [1996] FamCA 43; (1996) FLC 92-692

Re JRL; Ex parte CJL (1986) 161 CLR 342

Vakauta v Kelly (1989) 167 CLR 568

Division: Division 1 First Instance
Number of paragraphs: 22
Date of last submission/s: 19 December 2023
Date of hearing: 19 December 2023
Place: Melbourne
Counsel for the Applicant: Ms B Kildea
Solicitor for the Applicant: Milton Lawyers
Counsel for the Respondent: Mr R Hamilton
Solicitor for the Respondent: Nevett Ford
Counsel for the Independent Children's Lawyer: Ms P Treyvaud
Solicitor for the Independent Children's Lawyer: Walters Family Lawyers

ORDERS

MLC 9942 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS PHILIDOR

Applicant

AND:

MR PHILIDOR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

19 DECEMBER 2023

THE COURT ORDERS THAT:

1.The application in a proceeding filed 7 December 2023 be dismissed.

AND UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) applies to any cross-examination occurring in the proceedings on or after 11 September 2019;

and further noting that the parties have been advised by the court:

(a)that pursuant to those requirements, neither parent may cross-examine the other parent personally;

(b)that pursuant to those requirements, any cross-examination of either parent may only be conducted by a legal practitioner acting on behalf of the other party;

(c)as to the availability of the Commonwealth Family Violence and Cross‑Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

(d)that a copy of these orders will be provided by the court to Victoria Legal Aid which administers the said scheme.

2.By 4.00 pm on 19 December 2023, the mother provide to the Independent Children's Lawyer (“ICL”) the following:

(a)child’s daycare/kindergarten;

(b)hospital/s attended by the mother since July 2023;

(c)any mental health practitioner attended by the mother;

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Details
Case
[2023] FedCFamC1F 1131
Decision Date

CaseChat Overview and Summary

Ms Philidor sought an order for the judge to recuse himself from the proceedings on the basis of an apprehension of bias. The application was made after the Full Court dismissed an appeal against the making of interim parenting orders, which had been made after the judge had found that there was a reasonable apprehension of bias on the part of the mother. The Full Court found that the trial judge had discharged his duty to make findings to the satisfaction of the Full Court and that no ground of appeal alleging a reasonable apprehension of bias had been made out. The mother sought to make an application for the trial judge to recuse himself on the basis of findings made for the purposes of making interim orders. The mother argued that there had been a delay in making the application, and that the application should be dismissed.

The court held that the application was brought too late. The mother had waited for the Full Court to hear the appeal against the interim orders before making the application for the judge to recuse himself. The court held that the mother had not made out a case for the judge to recuse himself. The mother had not shown that the findings made by the trial judge were so tainted as to give rise to a reasonable apprehension of bias. The court held that there was no basis for the mother to seek a recusal of the trial judge. The application was dismissed. The court noted that the parties had been advised about the provisions of s 102NA of the Family Law Act 1975 (Cth) and the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme. The mother was ordered to provide information about the child’s daycare, hospital attendance, mental health practitioner, wellness program, and general practitioner to the Independent Children’s Lawyer. The father was ordered to refrain from viewing subpoenas filed by the Independent Children’s Lawyer and to not disclose information about subpoenaed parties. The father was also ordered to provide an undertaking that the mother’s address would not be disclosed to anyone other than her legal representative. The matter was listed for final hearing on 24 January 2024. The father’s costs were reserved.

Orders

Orders of the court

MLC 9942 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS PHILIDOR

Applicant

AND:

MR PHILIDOR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

19 DECEMBER 2023

THE COURT ORDERS THAT:

1. The application in a proceeding filed 7 December 2023 be dismissed.

AND UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) applies to any cross-examination occurring in the proceedings on or after 11 September 2019;

and further noting that the parties have been advised by the court:

(a) that pursuant to those requirements, neither parent may cross-examine the other parent personally;

(b) that pursuant to those requirements, any cross-examination of either parent may only be conducted by a legal practitioner acting on behalf of the other party;

(c) as to the availability of the Commonwealth Family Violence and Cross‑Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

(d) that a copy of these orders will be provided by the court to Victoria Legal Aid which administers the said scheme.

2. By 4.00 pm on 19 December 2023, the mother provide to the Independent Children's Lawyer (“ICL”) the following:

(a) child’s daycare/kindergarten;

(b) hospital/s attended by the mother since July 2023;

(c) any mental health practitioner attended by the mother;

(d) the Wellness program attended by the mother; and

(e) the mother’s general practitioner.

3. The ICL not disclose the details of the subpoena to the father and the father’s solicitors be restrained from disclosing details of the parties subpoenaed or their location to the father.

4. The mother file and serve any further affidavit/s upon which she intends to rely by 4.00 pm on 10 January 2024.

5. The father file and serve any further affidavit/s upon which he intends to rely by 4.00 pm on 18 January 2024.

6. The father’s costs of this day be reserved, including whether those costs or a portion of them be paid by the solicitor for the mother, be reserved.

AND THE COURT NOTES THAT:

A. The Respondent father has provided an oral undertaking to the Court this day as follows:

(a) not to take any steps to view either on the court portal or in person any subpoenas filed by the ICL in the proceedings from this day.

B. The allocation of the legal representative for the mother be undertaken as a matter of urgency and the mother’s address not to be disclosed to any person other than the legal representative appointed for the mother.

C. The matter remains listed before the Hon. Justice McNab for final hearing (part-heard) on 24 January 2024 at 10.00 am for 2 days.

D. Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

E. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross‑examine the other party/parties.

F. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

G. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

H. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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