VINE & VINE - [2018] FamCAFC 168

FAMILY COURT OF AUSTRALIA

VINE & VINE

[2018] FamCAFC 168

FAMILY LAW – APPEAL – DISQUALIFICATION – Where the father appealed against the trial judge’s refusal to disqualify himself from continuing to hear proceedings – Where appeal pursued despite the transfer of proceedings to the Federal Circuit Court of Australia – Where the appeal is futile – Where the trial judge had not prejudged the matter – Where the conduct of the trial judge did not raise an apprehension of bias – Appeal dismissed.

Family Law Act 1975 (Cth)

Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
XYZ Pty Ltd & Charisteas (2017) FLC 93-782; [2017] FamCAFC 112

APPELLANT:

Mr Vine

RESPONDENT:

Ms Vine

FILE NUMBER:

ADC

638

2013

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

28 August 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland, Murphy & Kent JJ

HEARING DATE:

28 August 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

9 February 2018

LOWER COURT MNC:

[2018] FamCA 60

REPRESENTATION

FOR THE APPELLANT:

In person

FOR THE RESPONDENT:

No appearance

Orders

The appellant father have leave to rely on the Appeal Books as filed and his Amended Summary of Argument filed on 20 August 2018.
The appeal be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vine & Vine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 16 of 2018
File Number: ADC 638 of 2013

Mr Vine

Appellant

And

Ms Vine

Respondent

EX TEMPORE REASONS FOR JUDGMENT

STRICKLAND J

On 8 March 2018, Mr Vine (“the father”) filed a Notice of Appeal seeking leave to appeal, and if leave is granted, to appeal against an order made by Berman J on 9 February 2018 dismissing the father’s Application in a Case filed 11 December 2017. The application for leave and the appeal, if leave is granted, is opposed by Ms Vine (“the mother”).
The application that his Honour dismissed was an application that his Honour disqualify himself from continuing to hear the proceedings on the grounds that his Honour had prejudged the matter without hearing the totality of the evidence, and his Honour’s conduct during the course of the interim hearings raised a reasonable apprehension of bias.

Brief Background

The mother and the father are the parents of X, born in 2006, Y, born in 2008 and Z, born in 2009 (collectively, “the children”).
Following three years of litigation between the parties, they resolved the parenting dispute in respect of the children by consent orders made by Berman J on 16 August 2016. Those consent orders provided that, inter alia, the parties have equal shared parental responsibility for the children, the father have sole parental responsibility for the education of X, the mother have sole parental responsibility for the education of Y and Z, Y and Z live with the mother, X live with the father, and the children spend substantial time with the other parent. Subsequent to those orders the relationship between the mother and X became problematic and he stopped spending time with her pursuant to the orders.
On 27 July 2017, the mother filed an Initiating Application seeking, inter alia, a suspension of the final consent orders with respect to her time with X, and an order that X spend gradually increasing time with her.
On 17 August 2017, the father filed a Response seeking orders that, inter alia, he have sole parental responsibility for X, and that X live with him and spend time with the mother each Wednesday from the conclusion of school until 5.30pm. He also sought orders that the time be taken in the absence of the mother’s partner, and orders with respect to the time that Y and Z spend with him.
The trial judge heard argument on 3 November 2017 in relation to the interim applications made by the parties. The primary focus of the argument was whether there had been a material change in the circumstances of X that justified reinvigorating the litigation.
On 10 November 2017, his Honour handed down orders and provided his reasons for judgment. The orders provided for an adjournment of the proceedings until 13 December 2017, and interim orders that X spend time with the mother each Wednesday from the conclusion of school, or 3.00pm if a non-school day, until 7.30pm.
On 11 December 2017, the father filed an Application in a Case seeking that his Honour disqualify himself, as referred to at [1] – [2] above.
On 13 December 2017, that application was adjourned until 29 January 2018, with X to spend time with the mother as previously ordered.
On 29 January 2018, the parties appeared before his Honour as litigants in person. His Honour heard lengthy submissions from the father in support of his application, and then made the order the subject of this appeal.
Subsequent to the filing of the appeal, the parenting proceedings continued before his Honour, and on 1 June 2018 his Honour ordered that the order of 29 January 2018 be discharged and that until further order X spend time with the mother each Tuesday, from the conclusion of school, or 3.00pm if a non‑school day, to 7.30pm, provided that if X requested to stay overnight, then his time with his mother was extended to the commencement of school on Wednesday, or 9.00am if a non-school day, and such other periods as the parties may agree, taking into account X’s wishes. His Honour further ordered that the interim proceedings be dismissed, and, importantly, for the purposes of this appeal, his Honour ordered that the proceedings be transferred to the Federal Circuit Court of Australia.
His Honour delivered reasons for judgment in support of those orders, and, significantly, in relation to the question of the transfer of the proceedings, his Honour said this:
67.The prime focus of the litigation leading up to the final orders in 2016 has been to consider how best to manage X’s behaviour.
68.The focus of the mother’s current Initiating Application was to consider alternative arrangements for X to spend time with her acknowledging that the final orders did not represent X’s best interests and were not reflective of the current circumstances.
69.Matters in respect of X have now been largely resolved. The mother’s concession is appropriate and effectively removes from the litigation the significant issue which has vexed the parties.
70.Taking into account the observations of the family consultant, the issues that impact upon Y and Z lack any significant complexity.
71.Whilst the father seeks equal shared parental responsibility to enable him to better engage in the educational needs of Y and Z, in all other respects the parties share parental responsibility.
72.In the circumstances of this case the interests of the children are likely to be better served by the proceedings being transferred to the Federal Circuit Court of Australia.

The Appeal

The father has pursued his appeal, despite the order made on 1 June 2018 transferring the proceedings to the Federal Circuit Court of Australia. However, in my view, the effect of that order is that it renders this appeal futile. The proceedings have been transferred to the Federal Circuit Court of Australia, and I understand that they have come before a judge of that Court, and that judge has listed the matter for trial in October 2018, and, thus, Berman J will not be hearing the matter.
There is, of course, the possibility as raised by the father in his oral submissions today, that the proceedings might be transferred back to the Family Court of Australia. However, given his Honour’s order of 1 June 2018 and, in particular, his Honour’s reasons for transferring the matter back to the Federal Circuit Court of Australia, namely that there is no longer an issue of complexity in the proceedings, I am not persuaded that that is a realistic prospect.
Indeed, when the matter went before the Federal Circuit Court judge to list the matter for hearing, I understand from the father that he did not raise any issue of complexity, and did not raise any need for the matter to be transferred back to the Family Court of Australia, and nor did the father make such a submission. Thus, I would dismiss the appeal for that reason, namely, it is futile.
However, if there is any doubt about that, for the following reasons, it is my view that there is nothing to which this Court has been taken by the father in his summary of argument, or his oral submissions today, that demonstrate any error of fact or principle which would require this Court to interfere with his Honour’s order.
First, I need to deal with some procedural issues raised by the mother in her summary of argument filed on 30 July 2018.
First, the father emailed the Appeal Registrar on 13 July 2018 and requested an extension of time for the filing of his summary of argument. The mother indicates that an extension was granted via email until 17 July 2018. However, no order to that effect appears to have been issued. In any event, the father was still late in filing his summary of argument, albeit that extension was granted.
Secondly, the appeal books were not compliant with the orders made by the Appeal Registrar on 8 May 2018, and the father was required to collect and correct the appeal books. The mother asserts that the father has failed to serve her in time with two hard copies of the final appeal books, as required by the Appeal Registrar’s orders of 8 May 2018.
Thirdly, the mother asserts that the father has failed to file an Amended Notice of Appeal which reflects the grounds of appeal raised in his summary of argument, and which the mother says differ from the grounds contained in the Notice of Appeal.
I should indicate that despite the mother raising those matters in her summary of argument, she has determined not to appear at this hearing. She has filed a Submitting Notice indicating that she submits to any order made by the Court, and that she does not wish to be heard on the question of costs.
In relation to the procedural issues raised by the mother, in order to enable the appeal to proceed, I am prepared to give leave to the father to rely on his appeal books as filed, and his amended summary of argument as filed.
I referred earlier to the fact that the father, in his Notice of Appeal, has sought leave to appeal. However, the authorities appear to indicate that leave to appeal is not required from the dismissal of a recusal application by a judge of the Family Court of Australia. See Pencious & Searle (2017) FLC 93-805 at [86]; XYZ Pty Ltd& Charisteas (2017) FLC 93-782 at [7].
I agree with those authorities. Thus, leave is not required, and the father is able to pursue an appeal as of right.

Grounds of Appeal

The father contends that the trial judge:
a)applied the wrong principle of law in determining his disqualification application; and
b)made a series of factual errors which demonstrate his Honour’s “failure to have regard to the central issues in dispute”.
During the hearing of his application, the father relied upon transcripts from the hearings which took place on 9 June 2016, during which the father was self‑represented, and 3 November 2017, during which the father was represented by counsel, and the reasons for judgment flowing from those hearings, as demonstrating an apprehension of bias.
The father made oral submissions before the trial judge at the hearing of the disqualification application (see Transcript 29/1/2018 page 8 line 14 to page 13 line 15). Much of those submissions are repeated by the father in his amended summary of argument filed in respect of the appeal.
In relation to the hearing on 9 June 2016, during his submissions on 29 January 2018, the father asserted that he felt compelled to agree to the final parenting orders made in August 2016, because he did not believe that the trial judge would “bring an impartial or an unprejudiced mind to a resolution of the questions involved in the trial”. He contended that the trial judge had effectively prejudged the matter at the interim hearing in June 2016.
The father further asserted that in the June 2016 interim hearing, the trial judge had expressed strong adverse views about the father’s credibility, and made findings as to the questions of fact which constitute live and significant issues in the current case and in particular that:
a)neither parent had abused, neglected or exposed X to family violence ([16] of the June 2016 reasons);
b)there was a good and proper relationship between X and his parents ([21] of those reasons);
c)the father could not understand the advantage of X spending time with the mother ([12] of those reasons); and
d)the trial judge was concerned about the father’s capacity to recognise the relationship X should have with the mother ([22] of those reasons).
The trial judge considered that argument mounted by the father and made the following observations:
30.I do not consider that it is permissible to consider the father’s application against the backdrop of what he says was his subjective state of mind leading up to the consent orders in August 2016. The father was represented by experienced counsel and the order was made by consent. There is no criticism of the Court’s involvement at the time of the making of the orders.
31.The father also acknowledges that the order in respect of X spending time with the mother was the subject of compliance until December 2016 when the father contends that the mother’s actions disrupted her relationship with X.
I am not persuaded that his Honour erred in those findings, and that the matters raised by the father in relation to the hearing in June 2016, and leading up to the consent orders made in August 2016, demonstrate any prejudgment or apprehended bias on the part of the trial judge.
I turn now to the hearing on 3 November 2017.
The father asserted before the trial judge that his reasons for judgment of that date were such that a fair-minded lay observer would form the view that the trial judge had predetermined the matter, or the issues central to the matter. The father also asserted that the trial judge departed from the proper standards of fairness by:
a)his failure to acknowledge the father’s submissions and evidence as to the mother’s psychological abuse, and her new partner’s physical abuse towards X in the reasons for judgment of 10 November 2017; and
b)the nature, number and tone of the trial judge’s interventions during counsel for the father’s submissions on 3 November 2017.
The trial judge considered this argument at [33] – [47] of his reasons for judgment.
At the hearing on 3 November 2017, counsel for the father identified that the father was not opposed to orders for X to spend time with the mother. However, he indicated that the father did not agree to weekly time (Transcript 3/11/17 page 17 lines 32 – 40). The father sought orders for X to spend time with the mother for three hours per fortnight (Transcript 3/11/17 page 21 line 31 to page 22 line 8). The father also sought an order that X’s time with the mother occur in the absence of her new partner, Mr S.
Orders were ultimately made which provided for X to spend four and a half hours with the mother each Wednesday in the absence of Mr S, and the trial judge said the following in his reasons of 9 February 2018:
40.Consistent with the father’s application, orders were made that limited X’s time with the mother to each Wednesday from the conclusion of school (or 3pm if a non-school day) to 7.30pm and in particular that the time be taken in the absence of the mother’s partner.
41.I consider that on an objective view of the reasons delivered on 10 November 2017 they do not contain any statement that prejudge the issues but rather, identifies the reasons for X’s reluctance to spend time with the mother and the manner by which the relationship may be improved consistent with the position of each of the parties namely, that X would benefit from having a meaningful relationship with each of his parents.
42.It is difficult to see how orders that are consistent with the father’s approach thereby recognising X’s needs rather than determining the dispute between the parties, suggests that the Court’s focus is anywhere other than on orders that would best promote the child’s interests.
In his amended summary of argument the father contends that the trial judge failed to consider the relevant authorities in his consideration of the father’s disqualification application, particularly Livesey v New South Wales Bar Association (1983) 151 CLR 288 (“Livesey”), to which the father referred in his oral submissions.
At [23] and [24] of the trial judge’s reasons for judgment of 9 February 2018, his Honour set out the test of apprehended bias, as stated by the High Court in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283, citing Livesey and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
At [25] his Honour referred to Mahoney JA’s discussion of the principles emerging from Livesey in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411.
The father also asserts that the number, nature and tone of the trial judge’s interventions on 3 November 2017 were such that counsel for the father was unable to present the father’s case, and were so hostile that no observer would consider his Honour to be impartial.
The trial judge made the following comment in respect of this assertion in his reasons of 9 February 2018:
43.Whilst it might be said that the exchange with the father’s counsel was robust, in proceedings that have been before the Court for four years and have been reinvigorated following final orders made as recently as August 2016, a level of plain speaking is not consistent with a lay observer determining that the central issue has been the subject of prejudgment.
Having carefully read the transcript of the hearing on 3 November 2017, I am not persuaded that the father has demonstrated that anything said or done by the trial judge on that occasion, was such as it demonstrated any prejudgment on the part of the trial judge.
For all of those reasons I would dismiss the appeal.

MURPHY J

I can well understand the father’s sense of grievance arising from the fact that having expended a significant sum of money on legal fees, and having waited for a very significant period of time to get to trial in the Federal Circuit Court of Australia, the matter was only then transferred to the Family Court of Australia. That is most unsatisfactory and unfortunate. However, I too am not persuaded of the utility in this appeal, nor, in any event, in its merits. I agree the appeal should be dismissed for the reasons expressed by Strickland J.

KENT J

I agree with the orders proposed by Strickland J, and with his Honour’s reasons, and with the further comments made by Murphy J.

I certify that the preceding forty-six (46) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Murphy & Kent JJ) delivered on 28 August 2018.

Associate:

Date: 13 September 2018