Rainier and Rainier (No.2)
[2012] FMCAfam 282
•7 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAINIER & RAINIER (No.2) | [2012] FMCAfam 282 |
| FAMILY LAW – Long-running proceeding – principles in relation to transfer on Court’s own motion (supported by Applicant; opposed by Respondent) – considerations regarding Court resources, apprehended bias. |
| Federal Magistrates Act 1999, ss.3, 14, 39 Federal Magistrates Court Rules 2001, r.8.02 |
| AON Risk Services Ltd v Australian National University (2009) 239 CLR 175 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; 273 ALR 429; [2011] HCA 2 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; 231 ALR 663; 70 IPR 468; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 ; 176 ALR 644 ; 63 ALD 577 ; [2000] HCA 63 Johnson v Johnson (2000) 201 CLR 488; 174 ALR 655; 26 Fam LR 627; [2000] HCA 48 Livesey v New South Wales Bar Association (1983) 151 CLR 288; 47 ALR 45; [1983] HCA 17 Michael Wilson & Partners Ltd v Nicholls (2011) 282 ALR 685; (2011) 86 ALJR 14; [2011] HCA 48 Smits v Roach (2006) 227 CLR 423; 228 ALR 262; [2006] HCA 36 |
| Applicant: | MR RAINIER |
| Respondent: | MS RAINIER |
| File Number: | CAC 1190 of 2010 |
| Judgment of: | Neville FM |
| Hearing dates: | 5, 6, 7 March 2012 |
| Date of Last Submission: | 7 March 2012 |
| Delivered at: | Canberra |
| Delivered on: | 7 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms O Nikou SC |
| Solicitors for the Applicant: | Farrar Gesini & Dunn (until 21 February 2012) Strong Law (from 23 February 2012) |
| Counsel for the Respondent: | Ms A Tonkin |
| Solicitors for the Respondent: | Phelps Reid |
ORDERS
The matter be transferred to the Family Court of Australia, Canberra Registry.
Costs be reserved.
AND IT IS REQUESTED THAT:
A.The Family Court of Australia consider expediting the hearing of this matter so that it be heard on an urgent basis.
IT IS NOTED that publication of this judgment under the pseudonym Rainier & Rainier (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1190 of 2010
| MR RAINIER |
Applicant
And
| MS RAINIER |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings commenced in July 2010 when the Applicant Husband sought a recovery order. At the time, the only child of the relationship was approximately 10 months old, having been born on (omitted) 2009. The parties have been litigating ever since in relation to both parenting and property matters.
On 5th, 6th and 7th of this month, the contest formally resumed. At various stages in the course of this last part of the trial, I indicated certain “views” in relation to the outcome of the parenting matter. Indeed, on the Respondent Mother’s evidence coming to a close, I indicated my disposition to accept the Mother’s evidence, which confirmed that the current shared care arrangement for this still quite young child was proceeding well. The Mother’s evidence was pointedly at odds with the evidence contained in the reports from the family consultant, Ms M. (Exhibits A & M), and from the psychologist, Ms B. (Exhibits B1 & B2), which was to the general effect that a shared care arrangement was not usually indicated for young children and that a primary residence was usually to be preferred.
Put even more shortly, there was something of a conflict between, on the one hand, the opinion of the expert witnesses in their respective reports (the witnesses themselves having not yet been cross-examined), and on the other hand, the evidence of the Mother given in the course of her cross-examination.
The views I expressed were couched in terms that might be described as ‘the usual cautions.’ This is to say that I expressed views that were understood by the parties, and certainly by their legal representatives, as an indication of what orders I thought were in the child’s best interests, noting in particular, however, that the views expressed were not binding on the parties, or on the Court. They were necessarily tentative or preliminary views that were always susceptible to change in the light of all the evidence being tested.
Towards the end of the second day of the resumed hearing the indications from both sides was that there was a good prospect of resolving the parenting matter in the light of the views I had expressed. The parties and their lawyers repaired to their respective corners to formalise terms.
Unfortunately for all concerned, and as not infrequently happens, overnight the ardour for settlement cooled appreciably on one side. The Mother’s learned counsel advised the Court that, notwithstanding the Mother’s evidence the previous afternoon (noted above), her client wished to have the evidence of the experts (notably Ms M. and Ms B.) regarding shared care to be considered formally by the Court.
Having discussed at a little length with both Counsel my expressed ‘non-binding view’ in relation to parenting, among other things I was concerned that, at some later stage, an application may be made that I disqualify myself on the grounds of apprehended bias. Counsel for the Mother kindly confirmed that no such application would be made by her client.
In the result, and not without significant reluctance, I transferred the matter to the Family Court.[1] Ex tempore reasons were provided. I indicated at the time that I would revise them. What follows are those revised reasons, which are provided for a twofold purpose: first, to assist the Family Court with a chronology or brief overview regarding the litigation, and secondly, to assist (to the degree that it may do so) this Court’s request that the matter be expedited.
[1] Federal Magistrates Act 1999, s.39 and Federal Magistrates Court Rules 2001, r.8.02.
A. Brief Overview
The matter was initially listed for final hearing for three days, to deal with parenting and property orders sought, commencing on 18th May 2011. However, in the very early stages of the Respondent Mother’s cross-examination she became unwell in the witness box, and outside Court, collapsed. Para-medics were called.
The Father’s learned Senior Counsel submitted at the resumed hearing this month that the Mother’s collapse was either feigned or staged to ensure that the trial did not then proceed because she realised (so it was submitted) that her evidence in fact undermined her own case.
The Mother saw a psychiatrist (Dr K.) on 11th August. Dr K.’s subsequent report was formally before the Court (Exhibit L), as was some much briefer material from her treating general practitioner.
Leaving aside various procedural matters, which included the parties again seeing a family consultant (Ms M.) and the preparation of a further family report, the matter was listed for a resumed final hearing of three days, commencing on 5th March.
It is fair to say that the primary focus during the hearing earlier this month was on parenting matters.
It is also reasonably fair to say that both parties, through their respective Counsel, seemed to concede that the scope of the difference between their respective orders was really quite narrow. For example, both sides acknowledged, without necessarily accepting, that the recommendations or observations from the family consultant and the psychologist were to the effect that a shared care arrangement would usually be indicated upon the subject child commencing school. But that time has not yet arrived.
However, the intractability of the dispute remained: the Father contended that the child was doing well in the shared care arrangement (notwithstanding his young age and the many changeovers involved – which I strongly suggested would need to be altered for the well-being of all in any event); the Mother contended that, although the shared care arrangement was going well, she wished to have the input from the experts to which I have referred.
Rather early on in the hearing I raised with both Counsel the concern I had in being able to conclude the trial if all witnesses were required. This concern was echoed in particular by learned Senior Counsel for the Father, Ms Nikou, who insisted that if the Mother maintained her position it was incumbent upon her to cross-examine each “expert” relied upon by the Mother.
To these matters need to be added that the Father/Husband had recently sold his (omitted) business. It was/is alleged by the Respondent Wife that it has been sold at an under-value, an allegation denied by Mr Rainier. In such circumstances, there immediately arose the likelihood of the need to cross-examine witnesses in relation to the value of that business, as well as potentially to cross-examine further Mr Rainier – his cross-examination having concluded in May 2011. Having regard to the prolongation of the trial, issues of evidence becoming ‘stale’ also arise.
The number of potential or likely witnesses had now pushed the case well beyond the twice-listed three day case. Indeed, now on two occasions, and for quite different reasons, the matter has been unable to be concluded. The potential time required to deal with all matters on a final basis is now perhaps between four to six days. While such time is [now] not so unusual in this Court, subject to what is said below, in my view two factors militate against it remaining in this Court.
First, as already remarked, the matter has already had six days of hearing allocated. To deal with all matters that remain in dispute, it will require, in all likelihood, approximately a further five days of hearing.
Learned Counsel for the Mother urged the Court to find time to deal solely with the parenting issues, and later to allocate time to deal with property matters.
Such a course risked, in my view, too many potential further obstacles. In my view, split trials should be avoided where-ever possible. The current proceedings are a good example why that is so.
Accepting the unusual circumstances of and the reasons for the bifurcated hearing thus far, in accordance with (a) this Court’s statutorily-enshrined principles,[2] (b) High Court authority in relation to courts being a “publicly funded resource”[3] and therefore consideration always being necessary in relation to the most efficient use of scarce resources, and (c) this Court being one required to deal with a very high volume of cases (albeit with rather limited resources), the Court must have proper regard to the most efficient way of dealing with all issues raised.
[2] See s.3 (in relation to the objects of this Court) and s.14 (in relation to the determination of a matter completely and finally) of the Federal Magistrates Act (1999).
[3] “Publicly funded resource” is taken from the judgment of French CJ in AON Risk Services Limited v Australian National University (2009) 239 CLR 175 at [5]. Accepting the very different fact and procedural matters involved in that case and the present litigation, the basic principles articulated by the High Court in AON v ANU, respectfully, must always be kept in mind.
I simply note that between now and the end of the year, and excluding trials and other applications in general federal law matters, as well as duty days and interim hearings, thus far there are listed 37 trials currently listed in family law before me.
This is to say that the Court should have proper regard to the amount of resources already expended on this particular litigation, compared to the volume of other cases still waiting to be heard.
Secondly, and related to the first consideration, is the number of hearing days still required to finalise the matter. As well, given the volume of other cases already listed, there is no capacity to list a trial of the length required, if at all, until at the very end of this year, or more likely, some time next year.
All of this is to say that, from a resource perspective alone, this Court cannot deal with the trial of the likely length required with the expedition it would otherwise require. Moreover, given that so many resources of this Court have already been expended on it, it seems to me that a more appropriate forum for its resolution is the Family Court of Australia.
B. Apprehended Bias: A Further Consideration?
Although adverted to earlier, it is important to note the following further consideration in addition to what I have already said.
I have noted a number of times earlier in these reasons that in the course of the hearing, and with the agreement of learned Counsel for both parties, I indicated certain views in relation to what I considered to be appropriate parenting orders. Again I stress that the views expressed were tentative and appropriately qualified so as to be not binding on anyone, including the Court. That said, there were some robust and pointed exchanges.
I raised with both Counsel whether, in all the circumstances of the case (i.e. resources, available Court time, further reports, number of witnesses, possible apprehension of bias, etc), it was more prudent to transfer the matter to the Family Court.
In opposing such a Course, the Mother’s experienced Counsel confirmed that, for her part, there would be no challenge to any final ruling which was different to the indication or preliminary view given in the course of the proceedings.
For her part, learned Senior Counsel for the Father indicated her support for such a transfer.
On the issue of possible apprehension of bias, I simply note the following standard authorities: Livesey v New South Wales Bar Association (1983) 151 CLR 288; 47 ALR 45; [1983] HCA 17; Johnson v Johnson (2000) 201 CLR 488; 174 ALR 655; 26 Fam LR 627; [2000] HCA 48; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 ; 176 ALR 644 ; 63 ALD 577 ; [2000] HCA 63; Smits v Roach (2006) 227 CLR 423 ; 228 ALR 262 ; [2006] HCA 36; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; 231 ALR 663; 70 IPR 468; [2006] HCA 55; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; 273 ALR 429; [2011] HCA 2.
Most recently, in Michael Wilson & Partners Ltd v Nicholls (“Michael Wilson”) the High Court said, at [31] & [32] (internal citations omitted):[4]
[31] It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded 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. …
[32] As the plurality in Johnson explained, “[t]he hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”.
[4] Michael Wilson & Partners Ltd v Nicholls (2011) 282 ALR 685; (2011) 86 ALJR 14; [2011] HCA 48. See also, from the plurality judgment (Gummow ACJ, Hayne, Crennan & Bell JJ; Heydon J concurring), the comments at [63], [67], [69] & [76].
Having regard to the facts and circumstances in Michael Wilson, it might reasonably now be contended that an application in relation to apprehended bias will be somewhat harder to pursue successfully. But that is not a question or issue to be decided here.
C. Conclusion
My sole concern is that every possible risk to this long-running matter not being concluded, as it were in one sitting (of whatever duration), be avoided. To this end, however small that risk, I will not permit even a hint in relation to any possibility of apprehended bias to be raised.
Again, I stress that this is not to cast any doubt or aspersion on the comments by Counsel for the Mother in not making any such claim in the future. For my part, I would not wish that helpful concession to bind the Mother. Neither party should be fettered in the conduct of their respective cases.
Accordingly, on the Court’s own motion, supported by the Applicant Father, but opposed by the Mother, the matter be transferred to the Family Court of Australia. This Court respectfully requests that consideration be given to the matter being expedited in that Court.
The Court so orders.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 30 March 2012
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