Porter & Porter (No 4)
[2024] FedCFamC1F 901
•20 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Porter & Porter (No 4) [2024] FedCFamC1F 901
File number(s): SYC 4014 of 2012 Judgment of: BOYLE J Date of judgment: 20 December 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for recusal – Where the mother makes an oral application for recusal arising from an exchange during a Case Management Hearing – Where the court finds that the exchange did not give rise to an apprehension of bias – Application for recusal dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment of the Final Hearing - Where the mother makes an oral application for the adjournment of the Final Hearing due to commence in January 2025 – Where there is a protracted history of litigation – Where the mother contends that she will not be able to properly participate in the matter – Short adjournment of the Final Hearing granted.
Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 190
Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 20 December 2024 Place: Sydney For the Applicant: Self-Represented Litigant For the Respondent: Self-Represented Litigant Counsel for the Independent Children's Lawyer: Ms Kaiti Solicitor for the Independent Children's Lawyer: NLS Law ORDERS
SYC 4014 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PORTER
Applicant
AND: MS PORTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
20 DECEMBER 2024
THE COURT ORDERS THAT:
1.The oral application made by the mother for recusal is dismissed.
2.The oral application made by the mother of an adjournment of the Final Hearing is granted.
3.The Final Hearing on 20, 21, 22 and 23 January 2025 is vacated.
4.The matter is listed for Final Hearing on 3, 4, 5 and 6 March 2025 at 10am.
5.By no later than 4pm on 10 February 2025, the mother shall file and serve an Amended Response to Final Orders.
6.The time for the mother to file and serve material in accordance with Order 3 of the Orders made on 27 August 2024 is extended to 4pm on 10 February 2025.
7.By no later than 4pm on 20 January 2025, the father shall file and serve a Financial Statement.
8.By no later than 4pm on 27 February 2025, the parties and the Independent Children's Lawyer shall file and serve a Case Outline Document containing:
(a)a minute of orders sought;
(b)a list of documents relied upon;
(c)a chronology; and
(d)a brief summary of argument.
9.By no later than 4pm on 27 February 2025, the Independent Children's Lawyer shall provide to Chambers a collaboratively prepared joint tender bundle, from which documents can be tendered during the Final Hearing.
10.Leave is granted to the mother to issue a subpoena for documents relating to two ANZ bank accounts associated with the Pay Pal account in the name of Mr Porter, which records have been subpoenaed.
THE COURT NOTES THAT:
A.The mother has raised an issue with respect to two judgments of the New South Wales Civil and Administrative Tribunal of late 2024 and mid-2023 in the Occupational division, which go to matters relating to the father. She intends to refer to those judgments during the Final Hearing.
B.The Independent Children's Lawyer shall assist in obtaining a copy of those judgments so that they are available for use during the Final Hearing subject to any issue of admissibility.
C.A subpoena was issued by the Independent Children's Lawyer to Dr DP and material has not yet been produced. The mother requests that the Independent Children's Lawyer pursue the production of that material.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BOYLE J:
APPLICATION FOR RECUSAL
These are proceedings brought by the mother that I recuse myself.
I gave the mother leave to make an oral application with respect to that when the matter was last before me on 17 December 2024. She was directed to file and serve an affidavit in support of the application by 19 December 2024, and I indicated that I would obtain the transcript of the proceedings which are in issue, being the appearance before me on 27 August 2024.
Both parties and the Independent Children's Lawyer have been provided with a copy of that transcript, and the mother has taken me through aspects of that in support of her argument today.
BACKGROUND
The matter is listed for a Final Hearing before me for four days from 20 January 2025.
The litigation between these parties has a very long history. There were final consent orders with respect to parenting made on 6 December 2018. There were further final orders made by Watts J with respect to child support on 25 June 2020, and spouse maintenance on 27 August 2020.
The court file reveals that there has been extensive litigation otherwise between the parties culminating in the listing for hearing. The hearing is to deal with the father's application set out in the Further Amended Initiating Application filed on 19 December 2024 which seeks a discharge of the orders for spouse maintenance as and from 1 January 2021, or in the alternate, from the date of the orders, and an application to depart from the child support orders made on 27 August 2020. The father further seeks a variation of the parenting orders.
The mother last filed an Amended Response on 6 September 2022 with respect to the final proceedings, and I apprehend she will be amending that to take into account current circumstances and the orders that she is now seeking. The matter was before Curran J on 24 September 2024, with respect to an interim application made by the mother concerning D.
The parties have three children, B aged 18 years, C aged 16 years and D, aged 14 years. D has been living with her father since April 2024 despite the orders that I have referred to.
THE APPLICATION
The recusal application comes about in circumstances where the matter was before me on 27 August 2024. At that point, I was listing the matter for Final Hearing, which occurred.
There were two interim applications by the mother, one filed on 22 August 2024, which was an application with respect to Brasch J recusing herself, and the other was an application that was filed on 14 June 2024, which was with respect to an application by the mother for a harmful proceedings order.
What the mother is concerned about in particular is contained within the transcript, from line 31:
HER HONOUR: Terrific. Thank you all very much. Can I just check, there were applications that were filed by you previously which I should probably just tidy up by dismissing. Bear with me. I think there was one of 22 August which was – the matter is now before me, and I’m hearing the matter.
MS [PORTER]: That’s fine. Yes, thank you.
HER HONOUR: So the application filed by the mother 22 August 2024 is withdrawn and dismissed. Are there any other outstanding applications that may not have already been dismissed, perhaps?
MS [PORTER]: There’s a harmful proceedings application. I think it’s about 14 June, is the date of filing.
HER HONOUR: Right. Has that been dealt with in any way?
MS [PORTER]: It was meant to be stood over for mention on 24 September.
HER HONOUR: Right. And is that being pursued or…
MS [PORTER]: Yes, it is, in the context of just the order that these proceedings are harmful.
HER HONOUR: Well, what you might rather do is put that in as part of your amended response, because that’s what you’re wanting is a final order that says, I suspect, no other proceedings can be instituted without leave, or something of that sort, and you’re going to get some advice about that, which seems to me to mean that the application in a proceeding won’t have any utility. All right. So are you content with me noting that that application, which was filed on 14 June 2024, is withdrawn and dismissed, on the basis that you’re amending your response?
MS [PORTER]: Sure. Absolutely.
HER HONOUR: Yes.
MS [PORTER]: Thank you.
HER HONOUR: So the mother’s application in a proceedings filed 14 June 2024 is withdrawn and dismissed. Right. Thank you very much. Anything else we need do?
Another issue was raised by the mother in submissions with respect to the order for a Specific Issues Report. She was concerned where the transcript refers to that report, that it should have taken into account other matters, and that there was an assumption that she was familiar with what a Child Impact Report is, which was the analogy that I drew with respect to a Specific Issues Report. The exchange was in the transcript from line 9:
HER HONOUR: Okay. So now that we know those dates, if you need to file something, then you know when the final hearing will be. I’m not going to list anything that isn’t filed, because I can’t, but also it might change the way you feel about that. Can I also check, with respect to the matter being dealt with by way of a specific issues report through court child services, is there anything that you would want to say against that, or are you in agreement with that?
MS [PORTER]: I’ve never heard of that before.
HER HONOUR: Okay. It’s like a child impact report, which you’ve probably had experience of, in that it’s not a full family report, because one already exists and I don’t think we need to go over all of the issues that were canvassed there. Given [D’s] age, there’s some quite specific things that I think are going to need to be addressed, and it’s one of the things where it seems to me that both parents have an opportunity to talk to the court child expert, as would [D], obviously, and so the report is briefer and more targeted. Is that suitable for you?
MS [PORTER]: Yes, your Honour.
HER HONOUR: Okay. And I take it that’s suitable for your client?
MR [EJ]: That’s suitable. Thank you, your Honour.
The order that was ultimately made with respect to the Specific Issues Report.
The orders made on 27 August 2024 at order 11 refer to “The report shall address [D's] views and the circumstances in which those views may have come about”. The people anticipated to be interviewed are the parties and the child, D. It is clear from the orders that both parties would have an opportunity to put matters to the report writer.
The report writer was asked not only to address the circumstances in which D’s views may have come about. The mother makes an allegation that the father has influenced D's views. She has raised now that C, one of the other children of the parties, should have been included in the report. It does not appear that this had been raised with the report writer as the mother did not attend the report interviews.
THE PRINCIPLES
I turn now to the test with respect to recusal. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] the court held that:
…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.13 That principle gives effect to the requirement that justice should both be done and be seen to be done,14 a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
The test for recusal is a two-step approach where the court is required to identify what is said to have led a decision-maker to decide a case other than for legal and factual merits, and consider an articulation of a logical connection between the matter and the feared departure from the judge deciding the case on the merits, and assess the reasonableness asserted by the applicant with respect to the apprehension of bias.
CONSIDERATION
The mother has taken me through aspects of the transcript and made submissions, some of which go to the overall conduct of proceedings in the sense that these are extremely protracted. It has occupied an extraordinary amount of the lives of these parties and their children, and their financial resources and emotional resources. It is within that context that she makes submissions.
The matter came before me on 27 August 2024 with respect to listing the matter for Final Hearing. The application was identified. The mother indicated that there was an urgent application and it was clarified that she had not yet filed it, but was intending to. It was indicated that the application would be dealt with once filed and allocated a hearing date. I made it clear on the transcript that the matter was being listed for a Final Hearing to determine the issues between the parties on that basis.
Directions were made for filing of affidavits, and the mother raised a concern that the father was discussing the proceedings with D. After ascertaining it did not appear there was an order in place to that effect, I made orders restraining the parties from discussing the proceedings with D or in her hearing or presence, as was raised by the mother.
There was an issue with respect to subpoena that the mother wanted to issue, as she was constrained by an order made previously that required her to have leave to issue subpoena. The mother was granted leave to issue subpoena, if such subpoena were not issued by the Independent Children's Lawyer to EC Medical Practice and D's school.
The father was also required to provide the Independent Children's Lawyer and the mother with information about any other medical practice attended by D.
Looking at the conduct of the matter on the day, there needs to be an objective inquiry about whether or not the matter has been conducted in a manner that a fair-minded observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is asked to decide.
There is no indication on the transcript of any view or comment made about the merits of the applications. Dealing firstly with the application for apprehended bias, which is effectively the application brought by the mother as articulated by her today, with respect to the application for a recusal by Brasch J. There was no comment made on the reasonableness or otherwise of that application. That is, no discussion of the merits of it.
There is an overarching purpose that the court is required to bear in mind with respect to the practice and procedure of matters under the Family Law Act 1975 (Cth). It is contained within ss 67 and 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
In essence, the court is required to consider the just resolution and disposition of matters according to law as quickly, inexpensively and efficiently as possible. An element of this is for the court to consider the efficient use of the judicial and administrative resources available for the purposes of the court, the efficient disposal of the court's overall caseload, and those matters sit at the back of what a court is required to do.
I engaged with the mother with respect to the application. She was asked whether she agreed to a particular course given that the matter was now listed before a different judicial officer who would be hearing and determining the final application.
The application that was brought by the mother with respect to the recusal of Brasch J did not require hearing and determination to enable the parties to have the final issues between them heard and determined. In terms of the manner in which that was done, I do not accept that a fair-minded lay observer might reasonably apprehend that I would not bring an impartial mind to the resolution of the question I have been asked to decide, and in effect, that is the determination of the applications between these parties.
It is in the interests of parties, children and the general public that matters are dealt with by courts in an efficient manner where the hearing and determination of issues is conducted in a way that places less stress and cost on litigants and therefore results in the efficient administration of justice.
The application by the mother with respect to Brasch J, in my view, does not fall into a category of matters that require determination in order for the substantive aspects of the matter between these parties to be heard and determined. On that basis, particularly given there was no discussion of the merits or otherwise of the application, I do not regard that as meeting the test that would require me to recuse myself.
With respect to the other interim application that was filed by the mother, it is abundantly clear on the transcript that I have invited the mother to include those matters as part of her Amended Response to Final Orders. The proposed orders are in no way being taken as being unmeritorious or anything else.
The orders made by me ensured that all matters be dealt with at the same time, which goes to the benefit of the litigants in having matters dealt with efficiently and the benefit to the courts in having matters dealt with efficiently. In my view, it does not give rise to an apprehension of bias from a fair-minded lay observer as the test sets out.
For those reasons, the oral application of the mother is dismissed.
APPLICATION FOR ADJOURNMENT
It is the mother's application to adjourn the Final Hearing of the matter, which is currently listed to commence on 20 January 2025 for four days. Both the father and the Independent Children's Lawyer oppose the application.
The mother has tendered three documents with respect to her mental health. The first of those is a letter from her general practitioner dated 20 August 2024, referring to the impact of litigation upon her physical and mental health as being profound. It also refers, amongst other symptoms that she has, to cognitive dysfunction.
The next is a document from the ED Hospital referring to her being seen as an outpatient on two occasions in late 2024 by the acute care team.
The third is a document dated 26 November 2024, which is a letter from Dr EF, a consultant psychiatrist. The letter is essentially a certificate that the mother has received treatment for an adjustment disorder and major depressive illness.
I know from the mother that she has in recent times been prescribed medication. She is finding the assistance from the mental health nurse helpful, but it would seem to me that in both of those respects it is fairly early days in her getting that assistance.
The mother describes herself as being in a terrible state and that she is essentially exhausted. There are other proceedings taking place through the Supreme Court of New South Wales against the Commonwealth Bank of Australia. She is required attend to those proceedings as well.
The father certainly accepts the toll on the mother, as it is a toll on him, and a toll on their children. Neither of the parties have filed any affidavits with respect to the application but given they are both self-represented, I do not regard that as an issue and was prepared to hear from them notwithstanding that. I have also had regard to the documents tendered by the mother.
C is starting year 11 this year and D is starting year 10. I accept that both children need an opportunity to focus on their schooling and for litigation to be at an end.
As I have indicated in my reasons with respect to the recusal, there is an extensive background to this matter where both parties refer to litigation that has gone on over a considerable period of time. There were orders made with respect to parenting by consent on 6 December 2018, there have been orders with respect to child support by Watts J on 25 June in 2020, and then further orders by Watts J on 27 August 2020. I refer to those orders in particular because they are the three sets of orders seeking to be varied by the father in these proceedings.
The Final Hearing dates commencing on 20 January 2025 were provided to the parties in an effort to have their matter resolved on the first dates available.
The mother has not complied with the direction for filing trial material. I am concerned that these are very serious matters from her perspective. There is an application to depart from orders with respect to child support and to discharge orders for spouse maintenance. It would seem to me that those two matters would be very significant in terms of her capacity to support herself and to support the children.
The court has available dates for Final Hearing for four dates commencing on 3 March 2025. It is a short period for an adjournment. It does, however, give the mother an opportunity to draw breath and properly prepare the matter. I am concerned that if I keep the hearing dates as they are, the mother will not be able to properly participate in this matter, which is a very serious matter for her, for the children and of course also for the father.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 24 January 2025
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