Rilak & Tsocas (No 2)

[2015] FamCA 439

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO 2) [2015] FamCA 439

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the mother sought a stay of the proceedings pending determination of an appeal in relation to the dismissal of her interlocutory applications which sought a recusal of the trial judge and a restraint on the legal representatives of the father –  Where counsel for the father submitted that the appeal has no substance and will only serve to delay the proceedings – Where the best interests of the child require the hearing is completed urgently – Where a refusal of the stay would not render the appeal nugatory – Where the application for a stay of the proceedings is refused.

Aldridge & Keaton[2009] FamCAFC 106
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Strahan & Strahan (2009) FLC 93-414

Family Law Act 1975 (Cth)

APPLICANT: Ms Rilak

RESPONDENT: Mr Tsocas

INDEPENDENT CHILDREN’S LAWYER: Peter Baker

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 2 June 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 2 June 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Rilak

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Peter Baker Solicitor

Orders

1. The mother’s Amended Application in a Case filed in Court on 2 June 2015 in respect of recusal and disqualification is dismissed.

1. The mother file any Notice of Appeal in relation to the dismissal of her Applications for recusal and disqualification by the close of business on Friday 5 June 2015.

1. The mother’s oral Application for a stay of proceedings is refused.

1. The father’s Application for interim change of residence is adjourned to 10.00 am on 5 June 2015.

1. The mother is restrained, until further order, from questioning the child in relation to any disclosure or allegation of physical abuse or sexual abuse and from allowing the child to be questioned by any other person in relation to those matters.

1. The mother is restrained, until further order, from denigrating the father, his mother or his son or allowing anybody else to do that in the child’s presence or hearing.

1. On the basis of those orders the mother is permitted to remove the child from Child Minding Centre today.

1. The mother return the child to the Child Minding Centre on Friday 5 June 2015 at 9.45 am and that the child not be removed from the Child Minding Centre without further order of the Court.

1. The mother produce to the Court at 10.00 am on Friday 2 June 2015 the USB stick containing the interview/discussion with the child leading to the most recent notification of child abuse.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak and Tsocas (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 SYDNEY

FILE NUMBER:  SYC 2062 of 2010

Ms Rilak

Applicant

And

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

1. There are a number of interlocutory applications before the Court.  There are substantive proceedings for parenting and financial relief.  Amongst other applications, an application was pressed today by the mother in the form of an Amended Application in a Case.  She sought that I recuse myself from the proceedings, that the solicitors for the father and his counsel be restrained from acting in the proceedings. 

2. She also sought consequential orders based on my recusal, about the proceedings being resumed with another judge, and the mother had an application for a change of venue of the hearing to E Town.  After hearing from the parties I dismissed the mother’s applications for recusal and disqualification and indicated that I would give reasons in a day or two.   

3. Included in her Amended Application, the mother made reference to a stay.  As I understand her application, she seeks that the entire proceedings be stayed pending the determination of what she foreshadows will be an appeal in relation to the dismissal of her applications in relation to recusal and ceasing to act. 

4. I indicated to the mother that, provided she undertook to lodge a notice of appeal in relation to those decisions within 48 hours, I would hear her application for a stay. The mother agreed and she made submissions in support of a stay of proceedings. Submissions were made on behalf of the father.  No submissions were made on behalf of the Independent Children’s Lawyer (“ICL”), save to say that the ICL supported the father’s position. 

5. As to the evidence relied on by the mother – her three applications were all really based on the one concern.  She did not adduce any additional evidence in support of the stay application.  The submissions she made were that she sought a stay in aid of the appeal that she was going to file.  She considered that all decisions made by me hereafter would be a waste of time.  She submitted that there was no risk to the child by granting a stay, that the child is not at risk in her household and she referred to the fact that there is an apprehended violence order in protection of the child against the father.  She said something about not having a passport or a birth certificate, and I think that was really going to a concern about her being a flight risk with the child.  And they were the submissions she made.

6. In response, Mr Levy for the father said that the first step in relation to a stay is to analyse the merits of the mother’s appeal.  He submitted that her appeal in relation to the recusal application and the restraint in relation to the legal representatives of the father seems to proceed on a misapprehension by the mother, and probably was based initially on a misunderstanding as to what was said in Court by me on 21 May. 

7. Mr Levy said that I told the court that I had become aware of a prospective problem, which would arise in the event that my legal associate became an employee of the firm of solicitors instructed by the father.  That unlike the contention of the mother in the disqualification proceedings, I had made no offer to disqualify myself.  That I simply alerted the parties to a possible problem.  In part he submitted, that was to give the parties an opportunity to address the issue, but certainly that allowed the father to do something to address the issue.  He referred to evidence filed in the father’s case on the disqualification applications to the effect that my legal associate will now not be employed by Watts McCray until after judgment is delivered in these proceedings.

8. Mr Levy said that the law is clear, and whereas the mother makes her application based on her apprehension in relation to bias, the test is not a subjective one, but relates to a fair-minded lay observer.  And he referred to authorities of Strahan & Strahan (2009) FLC 93-414and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. He submitted that the appeal has no substance, and therefore will only serve to delay the proceedings.

9. As to the solicitor’s firm, there is no evidence, it is submitted, from anyone, that the firm or he as counsel had come into contact with any confidential information.  It was submitted that there were three possible grounds in relation to the removal of the legal representative.  The danger of confidential information passing, a breach of fiduciary duty, and something arising under the inherent jurisdiction of a court to control practitioners.

10. He submitted that in relation to parenting proceedings, although not the primary consideration, it is also relevant that the best interests of the child be considered in dealing with the stay application.  And in this case there is evidence before the Court, in the form of the opinion of the single expert, that the child lives in an abusive household, that the expert expressed some concern in relation to the mother’s capacity for parenting, and particularly a concern that the child would be further cross-examined in respect of allegations of abuse.  Counsel referred to the fact that it appears from the mother’s evidence that there may have been a further examination of the child by the mother, because the mother advises that there has been a further referral to the authorities at E Town in respect of what are said to be more disclosures by the child.  There are grave concerns, it is submitted, arising out of the mother’s own evidence, and on any view there is an urgent need to complete the hearing.

11. In reply, the mother said that she had great concerns arising out of the notification I gave the parties on 21 May.  She disagrees with the proposition put by Mr Levy.  She wishes to have these issues put before what she describes as an independent tribunal.  I think, by that, meaning the Full Court.  She asserts – and she said this a few times – that she understood that I had offered to disqualify myself and that she accepted the offer, and then could not understand why the proceedings continued after that. 

12. She complained that she did not have an opportunity to continue to cross-examine Dr C. She repeated that she needed to now know from an independent body that what was done was lawful.  She noted that the father alleges that she is abusive, but she notes that he had not complained to the police.  And finally, she said that she was concerned that Dr C appeared to be out of date in terms of research about the victims of abuse. 

13. As I have indicated to the parties, I dismissed the applications, but I will give reasons in relation to that in a day or so.  As to stay of proceedings, this is a bit different to the normal stay application which usually relates to the stay of the operation of an order made that is the subject of an appeal.  The first thing to say is that an appeal does not usually give rise to an automatic stay.  In a decision of Aldridge & Keaton [2009] FamCAFC 106, the Full Court dealt with stays in relation to appeals. The authorities stress the discretionary nature of the application for a stay, which should be dealt with on its merits. The applicant for a stay has an onus to establish a proper basis for a stay but the applicant does not have to demonstrate any special or exceptional circumstances. The person who has obtained a judgment is entitled to the benefit of that judgment. In this case that judgment would be the dismissal of applications for recusal and disqualification. The person who obtained a judgment is entitled to presume the judgment is correct. As I say, the mere filing of an appeal is insufficient to justify the granting of a stay. The Court must be satisfied that the applicant is bona fides in seeking to challenge the decision. 

14. A stay may be granted on terms that are fair to the parties.  This may involve weighing the balance of convenience and the competing rights of the parties.  The Court has to weight the risk that an appeal may be rendered nugatory if a stay is not granted, and this would be a substantial issue in determining whether it will be appropriate to grant a stay. 

15. Some preliminary assessment of the strength of the proposed appeal needs to be considered.  In other words, whether the appellant has an arguable case.  Other relevant matters are the desirability of limiting the frequency of a change in a child’s living arrangements – that perhaps does not go to this immediate application – the period of time in which in an appeal can be heard, and whether existing satisfactory arrangements may support the granting of a stay for a short period.  The best interests of a child in the subject proceedings are a significant consideration.

16. Dealing with those matters as they are relevant in these proceedings, I do not for present purposes doubt the bona fides of the applicant.  The mother was born in what is now, I think, the Country A.  English is not her first language.  There are issues in the substantive proceedings which reveal that the mother has very definite views about various things.  As I will indicate in my reasons for judgment in the issues about recusal, I revealed to the parties on 21 May that my legal associate was then to commence work as a new employee of the firm of solicitors instructed by the father in a week or so after that date.  I revealed that, and gave the parties an opportunity to get some advice from their lawyers and give instructions to their lawyers about the issue. 

17. It is my recollection that I indicated to the parties that if my legal associate commenced work at that firm before I had concluded the trial, then I would be obliged to recuse myself in relation to the matter and I indicated to the mother’s solicitor that even if the mother was sanguine about those circumstances, that might still be the case.  I indicated to the parties that I thought there was no issue about recusal if my legal associate commenced work with the solicitors after judgment, and I said that I thought there might be an issue to argue if she commenced with the solicitors in the period in between, that is, the period after the conclusion of the trial and before delivery of judgment. 

18. The mother was represented when those things were said.  Unfortunately, and I do not quite understand what has happened, on the following day the mother withdrew her instructions from her solicitor.  Certainly her solicitor said that she was instructed to leave the courtroom, albeit she came back into the courtroom for, I think, the balance of that Court session whatever it was.  The mother’s solicitor did not thereafter return.  She is an officer of the Court, and as an officer of the Court, would be required to be in Court during the hearing of a matter in which she is instructed. 

19. The mother today said that her solicitor, and I think her solicitor might have said on an earlier occasion in relation to the possibility of the trial continuing this week, that she was going overseas and that she would not be available.  In any event the mother withdrew instructions from her solicitor and thereafter – she continued the proceedings without legal representation. 

20. The circumstances that I raised with the parties on 21 May are unusual and I have not experienced them over 20 years on the bench. So one could understand that the mother might have been surprised by them, albeit that she had the opportunity to get advice from her solicitor.  Therefore I do not have today reason to doubt that the mother has a bona fide concern.  She said to me on a few occasions that she could not get it out of her head, and I think that is probably, fairly where the whole problem lies. 

21. However, the test in relation to disqualification does not involve a subjective test. It is a matter of looking at the circumstances objectively and obtaining some background information about them.  Those matters will be developed when I publish reasons in the other interlocutory matters.  I do not think that my recusal could now be justified given the evidence that my legal associate will not commence with Watts McCray until after judgment. 

22. That leads into the strength of the appeal.  The appeal also relates to the disqualification of the firm of solicitors and the father’s counsel, but the arguments in support of that application are the same arguments as those for recusal.  There is a concern by the mother that my legal associate will have secret information that will be imparted to the solicitors that they will impart to their counsel.  Any objective concern is swept away if my associate does not start her employment with the solicitor’s firm until after judgment. 

23. What I will explain in the reasons in the substantive matter is there are safeguards in relation to the obligations that a Commonwealth employee has about the dissemination of information, and the concerns only arise because of the obligations of a solicitor and from the connection between the firm and certain information.  Perhaps the mother has a view that everybody involved in the case is free to talk to those acting for the father and the opposite is true.  And as I say, perhaps she is not to know all that, but there it is.

24. As to rendering an appeal nugatory, provided the Full Court can deal with the appeal in reasonably short order, and before effect is given to any substantive order, there is no sense in which a refusal of the stay would render the appeal nugatory.  The mother will have her rights.  If she succeeds on appeal then no harm is done, because no substantive orders would have been made.  If she fails on appeal then the failure to grant a stay caused no problem at all. 

25. As to the period of time in which an appeal can be heard, I do not really know that.  I do not think that the mother has made any enquiry.  She did not say anything to me about it. I know that the Full Court can deal with interlocutory appeals in reasonably short order.  It will be important for the mother to prosecute her appeal with efficiency. She will be motivated to do so because if she does not, then the prejudice may well be hers.  She will be interested, willing, and motivated to prosecute the appeal, and arrangements exist within the Full Court to expedite the process of interlocutory appeals.

26. And finally, as to the best interests of a child, the parties have made a huge investment in these proceedings.  the child’s life has been held in suspension in some ways with great uncertainty because of these proceedings.  There are quite serious issues to be determined in the case.  Both parties raise very serious issues.  The mother wants orders that exclude the father substantially from the child, and the father wants orders that change her residence and substantially exclude the mother.  Those are very significant issues. 

27. The parties have made a substantial investment in legal fees.  They have both been represented.  The parties have made a considerable investment in relation to the single expert’s evidence, and the single expert has now been cross-examined.  Three other experts have given evidence in the proceedings.  There has been something like five days or so of evidence of lay witnesses.  If the proceedings are stayed, then the immediate use of all of that information is lost and no advantage can be taken of it.

28. As a general proposition it is in the best interests of children for proceedings to be dealt with in a timely way.  There have been a series of events that have meant that these proceedings have been delayed through the fault of no-one, and it is my obligation to make sure that proceedings are heard as expeditiously as possible.  So for those reasons the application for stay is refused. 

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 2 June 2015.

Associate: 

Date:  11 June 2015