Vinkov and Mertiglio

[2010] FamCA 429

FAMILY COURT OF AUSTRALIA

VINKOV & MERTIGLIO [2010] FamCA 429

FAMILY LAW – COURTS AND JUDGES – Application to disqualify judge from hearing – alleged constructive bias – application dismissed
FAMILY LAW – CHILDREN – Family consultant – application by the father seeking the disqualification of the family consultant – alleged bias – application dismissed
FAMILY LAW – PRACTICE AND PROCEDURE – Application to transfer proceedings to the Federal Magistrates Court – application dismissed

Family Law Act 1975 (Cth)

JRL;  Ex parte CJL (1986) FLC 91-738

APPLICANT: Mr Vinkov

RESPONDENT: Ms Mertiglio

INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

FILE NUMBER: SYC 5345 of 2008

DATE DELIVERED: 26 May 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 26 May 2010

REPRESENTATION

APPLICANT IN PERSON: Mr Vinkov

SOLICITOR FOR THE RESPONDENT: Vassili Fozzard Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Hamish Cumming, Family Lawyers

Orders

1. That the father’s Application in a Case filed 20 May 2010 is dismissed.

2. That the continued hearing on a final basis before Justice Rose is confirmed for 30 August 2010 to 2 September 2010 continuing if necessary at 2.15pm on 3 September 2010.

IT IS NOTED that publication of this judgment under the pseudonym Vinkov & Mertiglio is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC5345 of 2008

MR VINKOV

Applicant

And

MS MERTIGLIO

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to parenting orders sought by each of the parties.

2. The proceedings have been conducted in accordance with the Less Adversarial Trial (“LAT”) practice and procedure.

3. On 4 May 2010, following submissions made by the father, who appears in person, the solicitor for the mother and the independent children’s lawyer, I determined the issues that require consideration and to be the subject of findings at the forthcoming continuation of the hearing, as well as making orders in relation to the filing and service of affidavits and providing leave for the issue of a subpoena.  I tentatively fixed dates for hearing before me for the period 30 August to 2 September 2010 and to continue, if necessary, at 2.15pm on Friday, 3 September 2010.

4. The proceedings were stood over for mention before me today at 9.15am.  The matter was called at 9.15am.  All parties were present except the father.  He eventually appeared at around 9.30am and the matter then proceeded.

5. The purpose of the listing today was to enable the father to have an opportunity to obtain legal advice in relation to whether he would make an application that I disqualify myself on the ground of bias;  to pursue any opportunity for Legal Aid NSW so that he may be represented by an appropriate legal practitioner and also to consider whether or not the proceedings be transferred to the Federal Magistrates Court.

6. In relation to those matters, the father had raised the spectre of making an application for disqualification of myself and/or the family consultant, Ms B.  The father opposed the continuation of the proceedings in this Court and claimed that the Court, as a whole, was biased against him.

7. The independent children’s lawyer and the solicitor for the mother urged me to leave the matter in this Court for a number of reasons including, most importantly, that the intensity of the litigation between the parties required, in the best interests of the child, that the proceedings be continued and heard on a final basis at the earliest opportunity and that the possible dates for hearing, to which I have referred, would ensure that occurred compared to the hearing dates that were available in the Federal Magistrates Court, which I was told would be considerably later than the tentative dates fixed for hearing before me.  My subsequent enquiries have confirmed what I was told in that regard by the independent children’s lawyer.

The father’s application in a case filed 20 may 2010

1. The father appears before me today in person.

2. The father has previously appeared in person and unrepresented on other occasions.  At his request, I have permitted him to be assisted by a McKenzie friend on all of those occasions, with the exception of the last occasion, when it seemed to me that the role of the McKenzie friend which is limited to taking notes, assisting an unrepresented person in the organisation of his documents and discussing matters with him, but not for the purpose of giving legal advice, may well have been exceeded due to the number of interruptions which occurred during the course of the mention of the matter and directions that were ultimately made on 4 May 2010.

3. Subsequent to 4 May 2010, the father has filed an Application in a Case on 20 May 2010.  In that application, he seeks an order that I disqualify myself from the further hearing of the proceedings and that separately the family consultant also be disqualified, each on the basis of alleged bias.  The father also sought an order that the proceedings be transferred to the Federal Magistrates Court for hearing.

4. In support of his application, the father has sworn an Affidavit on 20 May 2010 which was filed on that day.  I have read that document.  When the matter was called on for hearing, after the father eventually appeared, I invited him to make any further submissions that he wished to make.  The father informed me that he did not have any further submissions to make.  I then heard submissions briefly from the solicitor for the mother and from the independent children’s lawyer.

5. I raised with all of the parties the possibility that, if the application for disqualification did not succeed, whether there was any objection to the continuation of the hearing being listed before a different Judge to ensure that, so far as it was possible to do so, that the dates already tentatively fixed for hearing would not be lost due to some potential problem with matters in my docket.  The matter is strictly part-heard before me.  The solicitor for the mother informed me, quite properly, that the preferred approach for his client was that the matter continue to be heard by me.

6. The father objected to the matter being heard, not only by me, but by any Judge in this Court, and reiterated again his desire for the proceedings to be transferred to the Federal Magistrates Court.

7. The independent children’s lawyer indicated his position on the basis that the application of the father was not supported and secondly, that he had no objection to a different Judge hearing the matter.

The issues

1. I will now proceed to deal with the issues.

2. The affidavit of the father is quite extensive.  Essentially, it amounts to allegations of bias because of his perception that his friend or acquaintance Mr D who had previously been given permission to assist the father as a McKenzie friend, except on the last occasion to which I have referred, was a person who was the subject of adverse views or comments by me on a number of occasions.

3. I have checked my notes about this matter on the occasions in which Mr D was permitted to be McKenzie friend for the father, as well as the last occasion when I did not permit that to happen, for the reason already indicated earlier in this Judgment.

4. It seems to me, that the father has selectively omitted from his affidavit that my comments about the assistance he may have been receiving may not necessarily have been of real assistance to him because the issues in this matter are complex and require a knowledge of the law and appropriate experience by a qualified lawyer with experience in litigation and I urged the father on many occasions to explore whatever opportunities were available for him for legal advice and, if possible, legal representation.  On a number of occasions, the father expressed his gratitude for me pointing this out to him and indicated that, in effect, financially he was not in a position to be legally represented.  On the last occasion, the father stated that he did want to seek an opportunity for legal advice.  Consequently, I provided the adjournment which has resulted in this matter being before me this morning.  It is unfortunate that the father did not refer to any of those matters in his affidavit.

5. I wish to make it clear that I have no view, adverse or favourable, so far as Mr D is concerned.  I am entirely neutral on this matter.  I have sought to emphasise in this Judgment, as well as on previous occasions, the context of any comment made by me was that the father would be better assisted by having the benefit of the advice and representation from an appropriately qualified and experienced legal practitioner.

6. However, it is an unfortunate fact of life in this Court and in other courts that many people are unable to afford legal representation and their financial circumstances are such that they do not fall within the criteria to enable legal aid to be granted.

7. So far as Ms B is concerned, a number of matters are raised in relation to the preparation of the family report and her comments during interviews as well as interviews with the child as to his views and the basis upon which those views were formed.  In addition, matters are raised as to the participation by another counsellor who the father refers to as “P” and whether or not he is indeed the author of the family report rather than Ms B. Otherwise, the tenor of the father’s affidavit is that he is the subject of bias against him by both the Court and Ms B.

8. In addition, the father makes allegations about the honesty of the mother and the difficulty he has had in having his contravention applications heard as opposed to an application by the mother which was heard.

9. So far as those matters are concerned, I will now refer to the general principles that dictate these applications and the conclusions that I have reached.

Relevant legal principles

1. The matter of the principles to be applied have been the subject of a number of decisions of the High Court of Australia, in particular that of JRL;  Ex parte CJL[1].

   [1] JRL; Ex parte CJL (1986) FLC 91-738.

2. The judgment of Mason J is apposite to the issue of the principles to be applied, particularly in the context where one party complains about decisions being made, or not made, which he apprehends as being due to prejudice or bias against him.  The relevant part of the judgment so far as this application is concerned, is as follows:

   It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.  There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties.  But that does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.  In cases of this kind, disqualification is only made out by showing there is a reasonable apprehension of bias by reason of pre-judgment, and this must be ‘firmly established…  Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that, by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.[2]

   [2] Ibid 75,379.

Conclusion

1. My conclusion about the orders sought by the father is as follows.

2. On the question of the assistance that he might have gained from Mr D, the facts are that he was permitted to have Mr D sit with him as a McKenzie friend on every occasion that he asked for that permission to be given, with the exception of one occasion only, which was on 4 May 2010.  I have earlier set out the reasons why permission was refused on that occasion and that is sufficient, so far as I am concerned, to dispose of that matter.

3. I have also emphasised, to which the father did not address one word in his affidavit, that I urged him on a number of occasions to utilise whatever opportunities there were for him to obtain appropriate legal representation and advice.

4. It was in that context that any comment was made that the assistance he might gain from Mr D, no matter how well intentioned, could not be a substitute for the assistance he was likely to gain from an appropriately qualified and experienced legal practitioner, particularly in matters of complexity in children’s cases.

5. Consequently, I consider the basis for the application in relation to the material put forward about Mr D to be without foundation, insofar as attracting the relevant principles for disqualification.

6. So far as bias by the Court as a whole is concerned, the germane aspect of the complaint is that the father’s contravention applications which are pending, have not yet been heard, whereas the mother has had at least one contravention application heard.

7. This matter was raised by the father particularly on the last occasion.  I pointed out to him that if the earliest dates for hearing are given, or indeed other dates for hearing are given in the near future, then the matters which are the subject of his complaint about contravention are potentially also relevant for the final determination of the parenting proceedings.

8. Consequently, in those circumstances, given that the trial Judge would not be able to hear contravention applications, it would mean that it was far more efficient, in terms of the best interests of the child, to have this litigation concluded sooner rather than later, which would be the case if the contravention applications had to be heard first.

9. In addition, there was no prejudice to the father, as the matters that he could rely upon in support of his contravention applications could be relied upon in the final hearing, provided they were relevant.  Those matters were fully explained to the father on the last occasion, and I see no need to explain them to him again.

10. The father, with great respect to him, has impressed me throughout as a person who is intelligent, articulate and with a sufficient grasp of information in order to put his position to me without much assistance, if indeed any assistance at all, from Mr D or, indeed, any other lay person.  That is obvious from the documentation that has been previously provided, apart from the statements that the father has made in court.

11. As to bias against the Court as a whole, in my view, there is not a shred of material of any substance which would be persuasive of a finding of bias.

12. So far as a possible transfer to the Federal Magistrates Court is concerned, I have already indicated that, in my view, it is not appropriate to do so, given the intensity of the litigation and the allegations that have been made over a considerable period of time, the opportunity to have the matter heard in the near future in this court compared to the lack of opportunity for an earlier hearing in the Federal Magistrates Court.

13. It is in everyone’s interests, but in particular that of the child for whom parenting orders must be the paramount consideration so far as his best interests are concerned, that the litigation be heard sooner rather than later.

14. With regard to the allegations against Ms B, I accept the submission made by the solicitor for the mother that the matters of complaint that the father puts forward are matters upon which properly, there should be cross-examination of Ms B.  If it turns out that the matters of complaint by the father have real substance and that the family report is not her report but that of another counsellor or that she has been lacking in any professional way so far as the manner in which interviews were conducted and if the evidence establishes that after cross-examination then it may well be that little or no weight would be given to her report and her oral evidence.

15. However, that is a matter which cannot be decided without Ms B being tested by cross-examination, for which there will be an opportunity during the course of the final hearing tentatively fixed to commence on 30 August 2010.

16. Therefore, the application of the father will be refused.

17. So far as the dates fixed for hearing on a tentative basis, I will proceed now to confirm those dates for hearing before me.

18. As the matter is strictly part-heard before me, the proceedings cannot be heard by a different Judge except with the consent of the parties.  That consent has not been provided by all of the parties.

19. Consequently, I will confirm the dates for hearing which have been tentatively fixed on 4 May 2010.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  1 June 2010