Santoro and Santoro (No.3)
[2009] FMCAfam 212
•10 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SANTORO & SANTORO (No.3) | [2009] FMCAfam 212 |
| PRACTICE & PROCEDURE – Application to disqualify Federal Magistrate from further hearing of the matter – reasonable apprehension of bias – division 12A proceedings. |
| Family Law Act 1975, ss.69ZN, 69ZQ, 69ZT |
| Johnson v Johnson [2000] 201 CLR 488 Vakauta v Kelly (1989) 167 CLR 568 |
| Applicant: | MS SANTORO |
| Respondent: | MR SANTORO |
| File Number: | SYC 1574 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 9 March 2009 |
| Date of Last Submission: | 10 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell |
| Solicitors for the Applicant: | Karras Partners Lawyers |
| Counsel for the Respondent: | Mr Richardson SC |
| Solicitors for the Respondent: | York Family Law |
| Counsel for the Independent Children's Lawyer: | Mr Barry |
| Solicitors for the Independent Children's Lawyer: | Ross A Clarke & Associates |
ORDERS
The Applicant’s oral application to disqualify Federal Magistrate Altobelli from further hearing of this matter is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Santoro & Santoro is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1574 of 2008
| MS SANTORO |
Applicant
And
| MR SANTORO |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Introduction
Counsel for the applicant mother has asked me to disqualify myself from hearing the matter arising out of comments I made yesterday. The submission is that, in effect, certain comments I made were critical of the applicant mother and would create in the mind of a fair-minded lay observer a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the determination of the proceedings before me.
At the outset I record that no transcript of yesterday's proceedings is, to the best of my knowledge, available to Counsel and so the application that was made yesterday, and the submissions that were made by Counsel, were made in the absence of the transcript.
A transcript became available to me late this morning. The situation presents obvious difficulties to the parties and to a lesser extent to the Court and I have to balance up whether to postpone the decision but the circumstances of this case would make postponing the decision equally problematic.
Reasonable apprehension of bias
In any event, Counsel for the applicant mother submitted that a reasonable apprehension of bias would arise out of two comments I made yesterday. The first comment occurred at 11.45 am when after a short adjournment, I made the following comments: from page eight of the transcript at line 32:
FEDERAL MAGISTRATE: Mr Schonell, what's been the difficulty or the delay in formulating the mother's position in this case? It's hard to believe that with the long lead-in time we've had in this case that she hasn't been able to formulate her position.
It is said that the perception of bias, having made these comments, was especially accentuated by the circumstance that the respondent father had only provided an amended minute of his order yesterday morning. Implicit in this submission is the assertion that I was treating the mother differently from the father in terms of criticism for the non-availability at the time of a minute by the mother. By way of background however, pursuant to orders I made on 4 February, the applicant mother was directed to file a minute of the orders sought by her no later than 6 March, as indeed was the father so directed. The applicant mother failed to do so and all I was left with to indicate what the mother's position was in the proceedings was her application filed on 19 March 2008 in which she sought orders that, in effect, the children live with her and the children spend time with the father “at such times as are determined by this honourable Court.”
The orders sought by the mother in her application filed 19 March 2008 pre-date the interim orders made in this case as well as the expert's report prepared by Associate Professor Quadrio. For all practical purposes therefore the Court, and possibly even the respondent father, who had complied with the directions, were not aware of the orders sought by the applicant mother at the commencement of these proceedings, let alone in the days immediately preceding the same when I commenced reading the voluminous material filed by both parties.
The above merely sets the context for the comments made. I will discuss below whether a fair-minded, lay observer might reasonably apprehend that I could not bring an impartial and unprejudiced mind to the resolution of this case as a result of those comments.
A second comment in respect of which a complaint is made is a comment I made in an ex tempore judgment delivered late in the afternoon. The relevant paragraph is paragraph four of the ex tempore judgment. I believe the relevant comments commence about half way through that paragraph and I quote:
There is a strong flavour in the submissions that have been made on the mother's behalf that would lead I think to an inference by any objective bystander in these proceedings that she is not happy with the report that was prepared by Dr Quadrio, and if that is the case it is somewhat surprising in view of the recommendations that Dr Quadrio makes for the mother to be primarily responsible for the care of the children and it leads one to opine whether the mother is so stung by some of the comments that Dr Quadrio makes in the report that she cannot see that ultimately the recommendations could be seen at least on an objective basis as benefiting her.
The ex tempore judgment was in response to an application by the applicant mother for an updated expert's report to be prepared and in effect if the application was granted for the hearing to be adjourned pending receipt of the same. The order for the updated report was in fact granted and so to that extent the mother was successful. However, I declined to grant the adjournment because I considered that the objects and principles set out in Division 12A of Part VII of the Family Law Act warranted the continuation of the proceedings, albeit with directions about who was to give evidence and for how long the cross-examination was to be allowed.
I incorporate into these ex tempore reasons by way of schedule[1] the ex tempore reasons that I gave in that application yesterday.
[1] See Schedule 1 to this judgment.
The complaint is that in making certain observations about the expert's report prepared by Dr Quadrio I was, in effect, impliedly, if not expressly, critical of the mother and had formed the view that she was stung by certain criticisms Dr Quadrio makes of her even though the ultimate recommendations were not entirely unfavourable to the applicant mother in that the recommendation still was that she have the greater share of the care of the children. It is suggested, in effect, that the objective bystander may reasonably have formed the view that I had pre-judged both the expert's evidence and the mother's response thereto in that the expert's evidence had not been tested nor had I then had the benefit of the mother's evidence about her response to Dr Quadrio. Moreover, it could be said that in suggesting in my ex tempore reasons that it might be objectively inferred that there was a strong inference that the mother was not happy with the family report, that there was some sort of bias or pre-judgment issue.
I will deal below with whether a fair-minded, lay observer might reasonably apprehend that I could not bring an impartial and unprejudiced mind to the resolution of this case as a result of these comments.
Background
Before stating what I consider to be the applicable law, it is necessary to provide more background to this case. The applicant mother is
35 years old, the respondent father 37 years old. They were married in April 1995 and separated on a final basis in February 2008. These proceedings are parenting proceedings relating to [X] who is nine and [Y] who is seven. On 19 March 2008 the mother filed her application for parenting orders and I have already adverted to the orders that she sought there in that document on a final basis. I made interim orders on 28 March 2008 and further orders on 2 April 2008 and the orders of
2 April remain current. Pursuant to these orders the children live with their mother and spend time with their father currently each week from after school on Fridays to before school on Mondays.
The affidavits filed by both the mother and the father, whilst not tested in cross-examination, reflect quite openly that since these orders have been made there is a high level of conflict between the parents. This is openly acknowledged by their legal representatives and Counsel and particularly Counsel for the mother.
On 7 May 2008 an order was made appointing Associate Professor Quadrio as a Part 15 expert and the matter was set down for hearing for three days commencing yesterday i.e. 9 March. On 4 February 2009 further directions were made for trial. Dr Quadrio's report is dated
12 December 2008but apparently, as one or both of the parties had failed to comply with a requirement of Dr Quadrio, that report was not in fact received until 4 February on which date it was released.
Dr Quadrio's report is in the usual comprehensive format. She recognises and reports on the intensity of the conflict between the parents and expresses concerns about the impact of this conflict on the children. For example, at pages 47 to 48 she says:
Thus, resolution of the conflict over parenting arrangements would be the best intervention for them at this time…
Ultimately, Associate Professor Quadrio recommends that the father have alternate weekends from Thursday after school to Monday morning and one or two nights overnight mid week in the second week. In other words that the father would have either five or six nights out of 14 with the children. Associate Professor Quadrio's recommendations need also to be understood in the context of the orders sought by the parents.
The father has proposed in the alternative firstly, that the children should spend equal time with him; that is, in effect seven out of
14 nights. However, in the alternative, he proposes that in week one he should have the children from Thursday to Monday and from week two from Wednesday to Friday. That is to say; six out of 14 nights. The mother's proposal is expressed as follows; that the children live with her and that up until term one, 2011, the father should have time each alternate weekend Friday to Monday plus each alternate Wednesday overnight plus each other Wednesday afternoon. In other words; four out of 14 nights per fortnight. Thereafter from 2011 from each alternate Thursday to Monday with Wednesday overnight and Wednesday afternoon. In other words; five out of 14.
It should be noted of course that there are significant issues between the parents about parental responsibility and decision making. It is interesting to note that despite the very serious issues that each parent raises in their affidavit about the parenting capacity of the other, including mental health issues (and of course in respect of which I make no finding) each of them acknowledges the fitness of the other parent to care for the children for substantial periods of time. Thus, whatever concerns the father has about the mother, even he acknowledges that she should have at least seven nights per fortnight with them and whatever concerns the mother has about the father, even she acknowledges that he should have at least four nights per fortnight. And even Dr Quadrio, who has interviewed, observed and examined this family and sometimes raises concerns, albeit untested of course, about aspects of the behaviour of both parents, concedes that whatever the issues are there was nothing to preclude either of these parents from parenting their children.
The case, distilled to its very essence and viewed as objectively as possible, should only be a dispute about the time that the children spend with each parent, i.e. how much time and not whether there should be time. And, as I have indicated before, there are issues about aspects of parental responsibility. Now, notwithstanding this, this is clearly a high conflict case and the proceedings have been conducted by both parents with a vigour and an application of resources which some might consider disproportionate to the issues involved. It is not my job to pass judgment on that and I do not do so. Of course in the middle of this are two children who, at least according to the untested evidence of Dr Quadrio, would benefit enormously from the end of this dispute.
Even further background is necessary to put the present application in context. On 26 February 2009 the respondent mother applied unsuccessfully to have the case adjourned on the basis that the parenting aspect of these proceedings should not be split from property, also the desirability of getting an updated report and also concern about whether the mother's evidence would be ready in time. The application for adjournment was denied but I note the application for an updated report was not specifically decided by me. The matter was otherwise confirmed for trial commencing yesterday on 9 March.
On 9 March I dealt with a number of interim matters. Senior Counsel for the respondent father wanted to take objections to some of the material in the mother's affidavit and applied under section 69ZT.
I declined that application though there were some parts of the mother's material that her Counsel did not read or in respect of which leave was granted. There were issues about the applicant mother relying on parts or whole of early affidavits that she filed which appear to have been satisfactorily resolved. There was an issue about the late admission of an affidavit by the applicant mother's treating psychologist, Mr D, which was resolved in favour of its admissibility subject to some conditions. Subpoenae were called. An affidavit in response by the father was admitted. I expressed concerns at several points about the need to start the evidence so as to best use the available time. All Counsel expressed concern about what could be achieved in three days.
It became apparent during the morning that Dr Quadrio, who it was hoped would be available by Wednesday, was in fact only available this afternoon at a time when the evidence, even of the parents, would not be completed. Of even greater concern was the news that Dr Quadrio would not be available on the four extra days allocated to this matter for the parenting and/or property in June 2009. Moreover, Counsel for the applicant mother pressed on me an application to determine at that time, that is now, whether an updated family report should be ordered.
All of these matters were dealt with and ex tempore reasons were delivered in relation to this issue at about 4pm. It was at this point that Mr Schonell, Counsel for the mother, made the present application.
I note that one whole day of hearing has been lost on various interlocutory points relating to procedure and evidence.
Applicable law
I turn now to the applicable law. I consider the applicable law to be set out in the High Court's decision in Johnson v Johnson [2000] 201 CLR 488 and I rely on the joint judgment of Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ. The relevant principles are set out at paragraphs 10 to 14 of their Honours judgment.
10. The disposition of this appeal depends upon the application of principles which are well established and which neither party disputed. The contention was that there had been a departure from those principles which the Full Court of the Family Court had wrongly failed to correct, thus calling for the intervention of this Court, if only to emphasise the importance of intermediate courts applying these principles. In these circumstances it is neither necessary nor appropriate to undertake any detailed analysis of the principles or their basis.
11. It is not contended that Anderson J was affected by actual bias. 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 (which, in the present case, was said to take 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.
12. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The 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. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
14. There was argument in this Court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation.
Application to present case
I consider the application of those principles to the present case. I think that there are some key sentences that are found at paragraph 12 in the first instance. Their Honours say at paragraph 12, starting from what appears to be about the sixth line:
The 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. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial"
Thus, the observer must be taken to be reasonable and the person observed must be taken to be a professional Judge.
In paragraph 13 there are some further relevant comments. In paragraph 13 their Honours say:
The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.
Even in the context of a disqualification application such as this one, context is critical. These are proceedings conducted under division 12A of part 7 of the Family Law Act which has sought to change traditional adversarial practice in parenting cases. I incorporate into these ex tempore reasons the provisions of s.69ZN setting out principles for conducting child related proceedings and 69ZQ setting out the duties imposed on a Court to give effect to these principles.
Section 69ZN
Application of the principles
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b) in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Section 69ZQ
(1) In giving effect to the principles in section 69ZN, the court must:
(a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b) decide the order in which the issues are to be decided; and
(c) give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d) in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it; and
(e) make appropriate use of technology; and
(f) if the court considers it appropriate--encourage the parties to use family dispute resolution or family counselling; and
(g) deal with as many aspects of the matter as it can on a single occasion; and
(h) deal with the matter, where appropriate, without requiring the parties' physical attendance at court.
(2) Subsection (1) does not limit subsection 69ZN(1).
(3) A failure to comply with subsection (1) does not invalidate an order.
I daresay that provisions such as division 12A of part 7 may have been contemplated by the High Court at paragraph 13 of the joint judgment. The clear legislative focus is on the needs of children, the active management of the proceedings and the other matters set out therein. Identifying the real issues in the litigation is one of the core aims of division 12A process.
It is very hard, perhaps even impossible, to discern what the parties consider to be the issues if the orders sought by the parties are not apparent to the Court or to the other parent in the case. Viewed in this context, the criticism of the mother for not having articulated the orders that she sought until after the commencement the first day of the hearing was not only entirely appropriate but could not possibly have created in the mind of a fair-minded, reasonable person the apprehension that a professional Judge could not discard the criticism of the mother in this regard in the ultimate exercise of judgment in this case. I reject the submission of the applicant mother's Counsel in this regard. To accept it would be to accept that every time a Judge criticised a party or their representative for failing to do that which they had been ordered to do and to take an essential step in assisting the Court to identify the issues of the case that would result in disqualification. That is, with respect, nonsense. I suspect that this is how a fair-minded and reasonable person would understand the situation as well.
As for the other comments, it is important to remember that these were made in the context of an ex tempore judgment in an interlocutory application that the applicant mother had made. Nonetheless, the comments of the majority at paragraph 13 are still apposite. At paragraph 13 their Honours refer to Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568 and they say:
…referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
It is important to actually emphasise the words that were used in the ex tempore Judgement. And again I quote from the judgment:
There is a strong flavour in the submissions that have been made on the mother's behalf that would lead I think to an inference by an objective bystander in these proceedings…
Those words, in my opinion, communicate that these were not the views of the Court. It goes on to say:
…that she is not happy with the report that was prepared by Dr Quadrio, and if that is the case…
The use of the word if again emphasises that firstly it was not the view of the Court and secondly that no conclusion was made about whether the mother was actually unhappy with Dr Quadrio's report. In any event, it goes on to say:
…and if that is the case it is somewhat surprising in view of the recommendations that Dr Quadrio makes for the mother to be primarily responsible for the care of the children and it leads one to opine whether the mother is so stung by some of the comments…
The use of the words: "it leads one to opine", conveys that it raises a question. It raises the issue and no reasonable person, in my mind, would conclude that it leads to a pre-judgment of the issue. Having regard to the words that were actually used, they do not amount to a pre-judgment. The words were more in the form of reality testing than pre-judgment. Again, one must remember the context of these proceedings - high conflict, division 12A proceedings, where the focus is on the needs of the children and not the parents, subject only to procedural fairness.
Under division 12A when parents lose sight of what proceedings are all about, namely their children and not them personally, it is entirely appropriate for a judicial officer to make comments that might, in other contexts perhaps, be seen to be pre-judgment. That is not to say that that is what in fact occurred in this case or that I had formed the view or have formed the view that these parents have lost sight about what these proceedings are all about.
Under division 12A, in any event, it is appropriate for a judicial officer to make a robust intervention in order to get parents re-focussed. It does not mean that one's case has been pre-judged. It does not mean that the maker of the comments is biased.
Mr Schonell invited me to conclude that the hypothetical reasonable observer at the back of the Court room would, on hearing my comments, reasonably apprehend that I had pre-judged the mother's case. I do not accept that submission. The reasonable person sitting at the back of the Court room might - and I hypothesise here, sadly, if they had been present all day yesterday, have a clearer view of these proceedings and their impact on the children than might be apparent to others. The person sitting at the back of the Court room would have seen that during the day it was the mother's application to call Dr Quadrio last that was granted, though this was supported by the other parties. It was the mother's application to file a late expert's affidavit that was granted, albeit it on conditions. It was the mother's application for the expert's report to be updated that was granted. And a reasonable person at the back of the Court room would have apprehended that Associate Professor Quadrio's report was not entirely adverse to the mother's case.
Where the mother was unsuccessful was that, firstly, certain objections she wanted to make about the father's evidence were rejected, but on the same basis as the father's objection to the mother's affidavit were rejected. The mother was also unsuccessful in that I would not adjourn the proceedings pending the outcome of the updated report in circumstances where I had, I thought, met the mother's concern about procedural unfairness to her by directing the cross-examination not be allowed on matters arising out of the expert's report.
The reasonable observer at the back of the Court room is highly unlikely, I suggest, to form an opinion that I was not being impartial or unprejudiced having regard to the proceedings as a whole just because of isolated comments. The comments have to be considered in the context of the proceedings as a whole. To isolate the comments from the context, not just of the ex tempore judgment but of the entire day's proceedings, is not reasonable and indeed, in paragraph 16 of the High Court's decision in Johnson this seems to be implicitly if not explicitly acknowledged. In any event, I do not believe that the reasonable observer would have formed the view that I had expressed a concluded view in anything relating to the mother's case and so I dismiss the application.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date:
Schedule 1
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SANTORO & SANTORO(No.2) | [2009] FMCAfam 196 |
| FAMILY LAW – Parenting orders – application for an updated expert’s report – adjournment of proceedings pending receipt of report. |
| Family Law Act 1975, ss.69ZN, 69ZQ |
| Truman & Truman (2008) FamCAFC 4 |
| Applicant: | MS SANTORO |
| Respondent: | MR SANTORO |
| File Number: | SYC 1574 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 9 March 2009 |
| Date of Last Submission: | 9 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell |
| Solicitors for the Applicant: | Karras Partners Lawyers |
| Counsel for the Respondent: | Mr Richardson |
| Solicitors for the Respondent: | York Family Law |
| Counsel for the Independent Children's Lawyer: | Mr Barry |
| Solicitors for the Independent Children's Lawyer: | Ross A Clarke & Associates |
ORDERS
That the parties forthwith do all things necessary to cause Associate Professor Quadrio to prepare an updated report in this matter at her earliest convenience.
IT IS NOTED that publication of this judgment under the pseudonym Santoro & Santoro is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1574 of 2008
| MS SANTORO |
Applicant
And
| MR SANTORO |
Respondent
REASONS FOR JUDGMENT
I provide the following extempore reasons in relation to an application that has been made for me to determine now whether I will make an order for an updated family report to be prepared. By way of background, these proceedings relate to two children: [X], who is nine years old, will be 10 years old in April this year, and [Y], who is seven years old and will be eight years old in April. Their mother is the applicant and their father is the respondent. There is an independent children's lawyer in this matter. The case had been set down before me commencing today for three days to deal with the parenting application. There are separate property proceedings that are under way and will be dealt with in due course.
It is counsel for the applicant mother who makes the application on behalf of the mother and it should be noted that the effect of the application is that if I do order an updated expert's report from Dr Quadrio who has already prepared a report, it must follow from the mother's perspective that I should adjourn the proceedings for reasons to which I will come to shortly.
I am satisfied in fact I have not ruled upon this application on a previous occasion. I am satisfied that a report could be prepared in a timely fashion. I accept that the interviews upon which the report by Dr Quadrio was prepared were conducted about eight months ago. I note, having read the affidavits of both parents, that there have been changes in the parenting arrangements that have taken place since the interviews with Dr Quadrio, though I note that some of these changes were clearly contemplated at the time of the interviews.
On 26 February 2009 when this issue was first aired before me, counsel for the mother asserted that at least part of the reason for an updated report was that the father's relationship with the children had deteriorated. However, on that occasion, and I infer since then, no correspondence could be produced which contained an assertion on behalf of the mother that that was the case in the period between July 2008 and February 2009. There is a strong flavour in the submissions that have been made on the mother's behalf that would lead I think to an inference by any objective bystander in these proceedings that she is not happy with the report that was prepared by Dr Quadrio, and if that is the case it is somewhat surprising in view of the recommendations that Dr Quadrio makes for the mother to be primarily responsible for the care of the children and it leads one to opine whether the mother is so stung by some of the comments that Dr Quadrio makes in the report that she cannot see that ultimately the recommendations could be seen at least on an objective basis as benefiting her.
Counsel for the mother contends that I should order the updated report and that if I do so it would be procedurally unfair to the mother to be cross‑examined on the basis of an incomplete report and this means that in effect the case would need to be adjourned. No explanation is offered as to why there was no application for an updated report or further interviews with the children before 26 February 2009 in a context where on the facts asserted by the mother which ground the present application and on the basis that the facts were well known to the mother at all times. So why was the application not made? Indeed the only factor the mother did not know about was that the family report would contain comments that perhaps she would consider to be adverse to her even though the recommendations are not necessarily. Curiously the application arises after the report was released to the parties. Counsel for the mother urges on me the potential benefits to the mother and father and the children of an updated report insofar as it provides a platform for discussions which might, depending on the report, give occasion for a sudden outbreak of cooperative parenting that has been so entirely absent in this case despite repeated pleas for the parents to start cooperating about parenting, including pleas that have been made from this Bench.
Counsel for the respondent father opposes the ordering of an updated family report and points out that Dr Quadrio has not seen the affidavit material that was filed in preparation for the final hearing and that therefore that material cannot be the basis for her willingness to see the family again. Hence, Dr Quadrio's availability to do an update does not necessarily endorse the proposition of the necessity to do so. Counsel for the respondent father wants to proceed with the trial with the mother and all of her witnesses giving evidence first but could not in my opinion, and with great respect to him, articulate a good reason why I should not limit the evidence to just the mother and the father in the remaining period available to the Court.
Counsel for the respondent mother is opposed to the idea of a trial proceeding with just the evidence of the mother and the father because of the perceived unfairness to the mother, particularly in terms of being cross‑examined on a family report which would be incomplete if, for example, I decided to order an updated report.
Counsel for the independent children's lawyer, I think, sees the benefit of an updated report but seems quite concerned about the impact of a continued trial on the parents, especially the capacity of these proceedings to interfere with cooperative parenting.
These proceedings of course are covered by div.12A of the Family Law Act, div.12A of ptVII, and I think it is important to perhaps revisit some of the principles for conducing child-related proceedings that are set out in s.69ZN. Sub-s.(1) says:
The Court must give effect to the principles in this section.
And the Full Court's decision in Truman & Truman (2008) FamCAFC 4 says at para. 12 in the last sentence that:
The Court must give effect to the principles set out in s.69ZN.
In other words, I do not have an option. It is quite mandatory. Sub‑section(2) of s.69ZN sets out principles:
The first principle is that the Court is to consider the needs of the children concerned and the impact that the conduct of the proceedings may have on them.
Secondly:
That the Court is to actively direct, control and manage the conduct of the proceedings.
Thirdly:
That the proceedings are to be conducted in a way that safeguards children against any concerns about violence, abuse and neglect; and the parties to the proceedings against family violence.
Nextly:
The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting.
And fifthly:
The proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
I note that s.69ZQ then sets out some general duties.
Dr Quadrio says in her report that the resolution of the conflict is in the best interests of these children and indeed she refers implicitly, if not expressly, to the risk of not bringing these proceedings to a close and indeed she refers to the risk of the children being further alienated from their father.
The dilemma in this case of course is trying to fashion proceedings that are procedurally fair to both the parents and which also give them the opportunity to conduct a cooperative and child‑focused parenting. The principle about proceedings being conducted in a way that will promote cooperative and child‑focused parenting is one of five principles. It is apparent in this case that the matter will proceed part‑heard into the second half of this year. Indeed, there could be a delay of as much as six months, perhaps even more, before the matter can be revisited. Everybody concedes in this case that this is a case of very high conflict between the parents and I must say it is sobering indeed when that is the description used by counsel for the parents themselves in describing this case. To balance the need of the children against the need of the parents for procedural fairness as well as the need for proceedings that promote cooperative and child-focused parenting is a very difficult balance indeed. In this case I think the balance falls in favour of trying to deal with these proceedings in the interests of the children as efficiently as possible whilst at the same time putting in train a process that leads to further evidence from the expert.
I do propose to order that the expert's report by Dr Quadrio be updated at the earliest possible time. However, I propose to direct that these proceedings continue but on the following basis.
I direct that the mother is to give her evidence first, followed immediately by the evidence of the father but each counsel will have about the same time to conduct their cross-examination and that time will be limited, at least in the first instance, to about six hours. However, the cross-examination is not to be based on the report that was prepared by Prof Quadrio.
I am satisfied that this is a way in which a significant step can be taken towards resolving these proceedings. After I have heard the evidence from the parents during the course of the rest of today and over the next two days, it may well be that I will be in a position to make a further interim order in these proceedings. So therefore the order will be that a further report be prepared. However, the trial is to continue. There will be about six hours available for cross-examination. Counsel is not to cross examine on the basis of Dr Quadrio's report.
I certify that the preceding (sixteen) (16) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 10 March 2009
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