Application, apprehension and indictable offence

Xuarez & Vitela [2016] FamCA 159 (14 March 2016)

Application, apprehension and indictable offence – for full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/159.html

1. In this longstanding, long running, parenting orders dispute between Mr Xuarez and Ms Vitela, who are the parents of some four children, two of who remain minors and subject to the jurisdiction of this Court – proceedings which were commenced by Mr Xuarez in 2007 – Registrar Stoneham of this Court made some procedural directions on 19 May 2015.
2. Those directions included that the parents, there being an Independent Children’s Lawyer in the proceedings as well, each file and serve by no later than 28 August 2015, one affidavit setting out his or her evidence in chief, and any affidavit setting out the evidence of any professional or lay witness that the party proposes to call at the trial.
3. Of further relevance, Registrar Stoneham then listed the matter for a compliance mention by telephone link at 12.15 pm on 27 October 2015. In respect of the allocation of trial dates, Registrar Stoneham directed that subject to compliance with her directions, the matter be listed to a call-over before a judge for the allocation of trial dates. At that point in time, that is in May of last year, no trial dates were set and the matter was to be allocated to a judge for the setting of trial dates once compliance with the Registrar’s trial directions had occurred.
4. On 27 October 2015, the matter came back before Registrar Stoneham for the said compliance check. As I understand the evidence and the matters I have been told from the bar table here today, the affidavit of the mother was filed three days outside the due date that Registrar Stoneham had directed on 19 May 2015, namely it was filed on 1 September 2015, three days after 28 August when it was due to be filed.
5. Mr Xuarez had indeed complied with the direction and filed his affidavit of evidence in chief by 28 August.
6. At the compliance hearing before Registrar Stoneham on 27 October, I am told that Mr Xuarez made the submission that the trial of the contested parenting orders proceedings should be listed before a judge to be heard on an undefended basis because of the mother’s non-compliance with Registrar Stoneham’s earlier directions, namely to have her affidavit of evidence in chief filed by 28 August 2015.
7. I have been informed from the bar table today that the explanation given by the solicitors for the mother for the delayed filing, was that the responsibility for preparing and filing same was in the hands of an employed solicitor at the mother’s solicitor’s firm and that solicitor was tardy. The principal of the firm, Ms Cleeland, picked up the fact that it had not happened, took over responsibility for doing it and got it done by 1 September. Whether it is related or not I do not know, but I was told that employed solicitor is no longer in the employ of Ms Cleeland’s firm.
8. It seems that Registrar Stoneham was not persuaded by Mr Xuarez to allocate the matter to a judge for listing for a trial on an undefended basis as she did not do that. She directed that the matter be listed on a date to be advised for allocation of a trial judge and trial dates, an event she called “the next mention”. She said that at “the next mention” the parties are at liberty to seek leave to file a further affidavit of evidence in chief by way of update, provided that pursuant to Rule 15.09 of the Family Law Rules such affidavits are confined to facts about the issues in dispute before this Court and to admissible evidence. She also made directions about the clarification of the number of witnesses to be relied upon, including by the Independent Children’s Lawyer; the preparation of a trial plan if the trial was to go for three or more days; directions in respect of subpoenaed material and cross-examination; and, particularly, a direction that for the purposes of trial, the applicant, Mr Xuarez, was not given leave by her to rely on the affidavits listed in his Case Information document filed on 28 September 2015 nor any other documents listed as being filed variously between 2007 to 2015, on grounds of currency and relevance.
9. It seems by inference from that, although I have not heard anything more about it, that Mr Xuarez must have filed a Case Information document on 28 September 2015 in which he set out a long list of other affidavits and documents that he intended to rely upon at trial about which Registrar Stoneham wanted that made particularly clear, probably for the benefit of the trial judge into whose docket the matter was listed, so that his or her honour would not think that Registrar Stoneham had given Mr Xuarez leave to rely on all those affidavits. Registrar Stoneham also directed that Mr Xuarez be given leave to rely at the trial on his Amended Application filed 17 June 2015, his affidavit of evidence in chief filed 17 August 2015 and otherwise his Case Information document filed 28 September 2015.
10. She reminded the parties that following the allocation of trial dates that they were to comply with paragraphs 4, 7, 8 and 10 of the trial directions made 19 May 2015. She then ordered, finally, that within 21 days the mother and the Independent Children’s Lawyer file any Response and supporting affidavit to his Application in a Case that was filed by the father on 16 October. I do not know what that was as there is no Application in a Case filed that day currently before me.
11. Having looked through those directions and being acutely aware of the change in our case management practices to the judicial docket case management system that we currently have in place, it occurs to me that realistically, the question of whether the mother would be allowed to rely on her affidavit of evidence in chief filed outside the date that Registrar Stoneham originally directed is still a live matter and one to be determined by the trial judge who the matter is listed before for trial management directions when that actually occurs.
12. Mr Xuarez, apparently unaware of that, which is understandable and even forgivable in the circumstances of him not being a lawyer or on top of the changes in our system, seems to have acted on the basis that Registrar Stoneham has determined that the mother is entitled to rely on the affidavit of evidence in chief albeit filed three day outside the direction and as such, he has filed an Application in a Case on 20 November 2015 in which he seeks to review the directions that Registrar Stoneham made on 27 October 2015. He seeks a review of them, but in doing so, he actually seeks to have them set aside.
13. It seems from a reading of his Application in a Case that he seeks to have them set aside principally because Registrar Stoneham did not exercise the discretion to direct the mother that she was not entitled to rely on an affidavit filed three days late and because the Registrar did not actually list the matter for an undefended hearing. Indeed, given the change to our system, it is now arguably beyond the responsibility of a registrar to direct that a matter be listed before a judge for trial on an undefended basis in any event.
14. In any event, the applicant father Mr Xuarez filed an application for a review of Registrar Stoneham’s orders and such review is heard by a judge on a de novo basis, meaning completely afresh and on its merits. No doubt in doing so, Mr Xuarez was seeking to persuade a judge that the registrar had erred and that the matter should be listed for an undefended hearing in the circumstances. In support of the application, he seems to be asserting, in the material that he filed and in extensive written submissions which I have read, that Registrar Stoneham did not comply with the Rules.
15. He refers particularly to Rule 11.02 of the Family Law Rules 2004 which is headed “Failure to comply with a legislative provision or order” and it says:
    <li “=””>(1) If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.

<li “=””>(2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

<li “=””>(a) dismiss all or part of the case;<li “=””>(b) set aside a step taken or an order made;<li “=””>(c) determine the case as if it were undefended;<li “=””>(d) make any of the orders mentioned in

rule 11.01

;<li “=””>(e) order costs;<li “=””>(f) prohibit the party from taking a further step in the case until the occurrence of a specified event; or<li “=””>(g) make any other order the court considers necessary, having regard to the main purpose of these Rules.
16. Rule 11.03(1) says:
    <li “=””>(1) A party may apply for relief from:
    <li “=””>(a) the effect of subrule 11.02(1); or

<li “=””>(b) an order under subrule 11.02(2).

17. I heard from Mr Carlton for the mother that an application had been made to Registrar Stoneham for an extension of the time within which that affidavit was to be filed. I am told that the rules to that effect were complied with by an oral application made to the registrar for the mother to be relieved from the effect of subrule 11.02(1) or, alternatively, for an order to be made under subrule 11.02(2) that allowed for the affidavit to be still relied upon in the proceedings even though it was filed late. In any event, as I have said, ultimately the determination of whether it is able to be relied upon by the mother at trial still remains a matter for the judge into whose docket it goes, whether Registrar Stoneham said it was able to be relied upon or not.
18. Accordingly, this application really did not even need to be made at this juncture and could have just simply been renewed and may still be renewed by Mr Xuarez when the matter is first listed for a trial management event before the judge into whose docket the matter goes.
19. However, the matter was listed for a review in my judicial duty list today. No doubt when Mr Xuarez heard and learned that it was going to be heard by me, that caused him to file another Application in a Case, and that is an Application in a Case that he filed on 15 February 2016. In that application he seeks an order that I be disqualified from hearing the proceedings; that I be disqualified from hearing any proceedings in relation to this file; that I be disqualified from hearing any proceedings relating to him; that I be disqualified from hearing any applications by the mother in this case against him; that I be disqualified from hearing any applications of the Independent Children’s Lawyer, Ms Y, against him; and he wanted the review application that was to be listed today to be adjourned pending determination of the application for disqualification.
20. Curiously, that application for disqualification seems to have been listed for 18 April 2016, presumably before me. Mr Xuarez had filed an affidavit in support of that application on 15 February 2016. He also filed a written outline of submissions in respect of that application. He filed a written outline of submissions in respect of the application for review of the registrar’s decision as well, only last Friday. Actually, he sent them to the Court and there was some issue about whether they were to be actually filed. I do not think that they were ultimately filed, with a direction going from me through others to convey my intent to Mr Xuarez that he simply seek to file them today when this matter was heard.
21. I have had the benefit, before I came in today, of having read the two Applications in a Case that I have referred to, the affidavits of Mr Xuarez filed in support of each of those applications and the extensive written submissions that he has filed in support of those applications. I took the view when I read those, and I do not resile from the view, that before I could hear a review application filed by Mr Xaurez, that I would have to hear and determine the application for me to recuse myself, which Mr Xuarez calls the application for disqualification.
22. I am not sure if Mr Xuarez realises, but an application for a judge to recuse himself is one that is heard by the judge who is being asked to recuse himself, not by any other judge who sits in judgment and decides whether another judge should disqualify himself. I am not sure whether Mr Xuarez was confused about that. He gave no indication when the matter was called on today that suggests he was confused about that. In fact, I would suggest that it was quite the contrary.
23. When the matter was called on at the callover this morning at 10.00 am, Mr Xuarez quite confidently and proudly announced that there was even more reason why I should, in his words “disqualify” myself from hearing the review application and from hearing anything else in these proceedings. He had in his hand a bundle of documents that he asserted was a complaint by him about me to the Chief Justice of the Family Court of Australia. The Chief Justice is another person who I note I have seen from the material he writes, who Mr Xuarez says should disqualify herself from hearing any of his matters, having heard and determined appeals from him and applications for leave to appeal from him on the Full Court in the past. That is a touch ironic, but, nevertheless, he said I would have to disqualify myself because I am, to use his words, “under investigation”.
24. There is, as I would expect there to be in most courts in this country, if not all of them, a process whereby a disgruntled litigant can complain to the Chief Justice, the Deputy Chief Justice, or at least the judicial administration of the Court about the conduct in Court, or otherwise, of a judge of the Court. The prospect of being complained about by a litigant does not trouble me. In fact, it is part and parcel of accountable delivery of justice according to law in this democracy that this country is. Mr Xuarez would not be the first litigant who has complained about me to the Chief Justice or the Deputy Chief Justice. Any investigation being conducted by them into my conduct on Mr Xuarez’s complaint would not be the first such investigation. I know that from past experience. That does not trouble me. More importantly, it does not immediately cause me to consider that I must immediately recuse myself from hearing the matter.
25. In any event, I have digressed, I raised the point because it is clear Mr Xuarez had an expectation that I would be the one determining his application for me to disqualify myself. The matter was stood down as I had some other more pressing interim parenting matters to determine. When the matter was called back on shortly after 3.00 pm this afternoon, Mr Xuarez again appeared without legal representation. Mr Kingston appeared as a newly appointed Independent Children’s Lawyer in place of Ms Y. Mr Carlton of Counsel instructed by Ms Cleeland appears on Legal Aid funding for the respondent mother.
26. I began the proceedings by taking Mr Xuarez to the material that he was seeking to rely upon before me today. Initially I had a little bit of difficulty understanding Mr Xuarez when he was addressing me in English simply because I feel he was speaking a bit too fast. When he slowed down and the two of us were not talking at the same time, I was able to more readily understand him. I started to ask Mr Xuarez if he relied upon his application in a Case filed on 15 February 2015 in which he sought to have me disqualify myself. He made absolutely no suggestion at that time or submission that that was a matter listed to be heard on another day and that he was not ready to deal with it.
27. Clearly he has, by his Application in a Case for me to disqualify myself, made it clear that the application for review of Registrar Stoneham’s decision was not to be heard until I had heard and determined the Application in a Case for me to disqualify myself. He made no attempt in any fashion to submit to the Court that he was not ready to argue the application for me to disqualify myself on some basis of believing that it was listed for next month rather than today. As I say, he came this morning armed with further arguments as to why I should disqualify myself.
28. He quickly started to become argumentative, at least in my view. He started asserting that he should have an interpreter, he made the assertion from the bar table that he had asked for an interpreter and one was not here to work for him. He made the assertion that he had asked one of the registry staff over the telephone to ensure that he had an interpreter. My associate has looked at the file and informed me that the Court arranges for interpreters to be present in these sort of circumstances only when they have been given a request or had a request made by a litigant for the arrangement to be made and my associate assures me that from her reading of the file there is no indication or record whatsoever of Mr Xuarez having asked for an interpreter to be present for him this afternoon.
29. In any event, before the matter went any further, the record would reflect, in my view at least, that Mr Xuarez became extremely argumentative and in fact determined to walk out of the courtroom this afternoon. By his conduct in doing that, he allowed me to go ahead and hear and determine the applications regardless of what he might want to say about them.
30. He in fact verbally challenged me to find him in contempt of the Court and to send him to prison, a challenge that I am not unfamiliar with when it comes to Mr Xuarez. He has done that on a previous occasion when he was before me, as far back as 2012. He quite boldly suggested to me when he challenged me to find him in contempt and send him to jail, that he does not care about the idea of going to jail, exactly the same sort of thing he said to me once before. He packed up his possessions and began to walk along the back of the bar table heading to exit the Court. I told him I was not asking him to leave, I was not going to deal with him for contempt and I was not going to send him to prison. I asked him did he want me to proceed to hear and determine the applications or not, and he made it clear that he was still going to walk out and what I did was a matter for me. He then left.
31. Having been called three times again outside the courtroom this afternoon at 4.08 pm, Mr Xaurez has again failed to appear. I can only assume he has acted on his determination to walk out of the proceedings and not to prosecute them personally and to allow me to go ahead and determine them in his absence as he effectively invited me to do and suggested I would, with the exhortation that whatever I did he would appeal me to the Full Court. I invited submissions from the legal representatives who are here.
32. Mr Kingston initially was taking a cautious approach and suggesting that perhaps the matter ought to be adjourned. Mr Carlton took a more robust approach, after hearing some of the things that fell from me and the way I was preliminarily considering the matter. In the end, Mr Kingston and Mr Carlton made the submission that there is really no reason why I ought not simply dismiss both Applications in a Case for want of prosecution in circumstances where Mr Xuarez has walked out.
33. Indeed, I do direct that each of the Applications in a Case, namely the one filed by the father on 20 November 2015 and the one filed by the father on 15 February 2016, be dismissed. I am satisfied that dismissal of both of those applications is indeed the appropriate, and the only proper course, particularly, in the first instance, because of Mr Xuarez’s conduct in simply standing up and walking out of the Court and telling me that I can go ahead and determine the applications in his absence. Rightfully, I consider that he did not want to personally prosecute them any further.
34. Secondarily to that, I dismiss both the Applications in a Case satisfied that on their merits each of them should be dismissed as they have no merit whatsoever.
35. Mr Xuarez did not stay and make oral submissions but I have read his evidence that he filed in support of each application and, as I have said, I have read his very extensive written submissions. He made the point orally in here that he is not very good at talking or cannot say much because of his language issue, but I have to say his written submissions in English are all very detailed and very extensive. He has referred to authority, he has referred to rules, he has referred to case law, he has referred to sections of the Act and the like. Having read those submissions and having given some thought to them in preparation to coming in to hear the applications today, I can say that I am satisfied that there is really no merit in either of those applications in any event.
36. Firstly, if I could just go to the Application in a Case for me to recuse myself. Mr Xuarez points to all the appropriate High Court authority, namely those authorities that (and I hasten to add that his application is for me to recuse myself because of apprehended bias) talk about apprehended bias and the test being the reasonable lay observer in the back of the court considering in all the circumstances whether a judge is bringing an impartial mind to the proceedings.
37. Having had a careful look at his affidavit and his submissions, I discern that the most significant point that he was making, in support of the assertion that the reasonable, fair minded, lay observer in the back of the court might say that I could not bring an impartial mind to the process, had to do with some historic facts. He pointed out and reminded me that when I heard the matter back in 2012 I made directions in respect of him, on the mother’s application and the Independent Children’s Lawyer’s application, for him to remove certain material from the internet. But further, on the application of the mother and the Independent Children’s Lawyer, I made a referral to the Australian Federal Police for them to consider whether or not a case could be made against Mr Xaurez for the offence of contravening s 121 of the Family Law Act 1975 (Cth).
38. Section 121 proscribes the publication of material in a way that identifies a party or a witness to the proceedings, to describe s 121 of the Act in a summary form. It then says that contravention is an indictable offence that is punishable by up to a year of imprisonment, if I recall correctly. Having been satisfied at the time, as I still am today, that it is for the prosecutorial authority, ie the Police and the Commonwealth Director of Prosecutions, to determine whether or not people who offend or are said to have offended s 121 should be prosecuted for the indictable offence, I referred it to the Australian Federal Police, but at the application of the Independent Children’s Lawyer and the mother.
39. Mr Xuarez then referred to what has colloquially become known as the “Italian sisters’ case”, a case better described as an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, brought by the Central Authority against a mother, known in the anonymised form as Ms Garning, that gained a great deal of publicity in Australia at the time it was before this Court in 2011 and 2012.
40. That case had come before me in the first instance. I had determined that the children had been wrongfully detained in Australia by their mother when brought here for a holiday without their father’s permission, acquiescence or consent, that is at the end of what he thought was a holiday that they were supposedly coming for. I determined that the mother had deliberately set out to bring them and keep them and to trick the father into signing their passports on the basis of thinking they were only coming for a holiday, when in fact she had no intention of ever returning them to Italy.
41. The matter played out over a long time through the Court. The father’s point is that in that case, the mother had effectively contravened s 121 and I did not refer her to the Federal Police. He says that any reasonably fair minded lay observer in the back of the court would suggest that that shows that I am biased against men, in favour of women.
42. I reject that assertion out of hand. I do not consider that there is a parallel between the two that suggests I somehow treat women differently from men in this Court. The simple fact is that, in that particular case, I did refer the issue of contravention of s 121 to the authorities. Perhaps, this is something Mr Xuarez is not familiar with as it may not be on the public record, but through a request made in open Court followed up with a direct request to the Chef Justice of this Court, I sought that the matter be referred to the proper authorities, for consideration to be given as to whether s 121 had been contravened and whether anyone should be prosecuted for it.
43. It is a matter of public record now that Queensland Newspapers who publish the Courier Mail were indeed prosecuted and charged with four separate counts of contravening s 121 in respect of that case to which they pleaded guilty in the District Court in Queensland on indictment presented by the Commonwealth Director of Public Prosecutions. They were fined a total of something like $32,000 per offence, something like $128,000 in total in the end. That the mother was not charged was not my responsibility, with all due respect to Mr Xuarez, and I do not regard there as being any relevant difference in what happened there to what has happened in this particular case.
44. Might I also reflect for the record that subsequent to my referral to the Federal Police in this case, I received a letter that came to the Court from the Commonwealth Director of Public Prosecution that it had determined not to prosecute Mr Xuarez for contravention of s 121 as it was considered not to be in the public interest to do so.
45. What consideration caused the Director of Public Prosecutions to consider that is a matter for the Director of Public Prosecutions and certainly beyond my responsibility.
46. That being the principal reason that I could read from Mr Xuarez’s submission as to why I ought recuse myself, I reject it and do not consider that knowing all those facts the reasonable lay observer in the back of the court would consider that I must recuse myself from continuing to hear Mr Xuarez’s case. It seems otherwise that the only thing that Mr Xuarez can rely upon is that I decided against him on the one occasion I think that I heard an application involving this case. I do not know if I have heard any more than that one. I simply reject any assertion that I cannot and do not bring an impartial mind to the determination of this case. Although that is more an allegation of actual bias, I do not accept it and clearly I have already said I do not accept that there is a case for apprehended bias that has been made out.
47. In respect to the other Application in a Case, it is probably already clear from what I had said in my reasons that I do not consider that there is any merit in it. The matters that Registrar Stoneham dealt with were matters of discretion for her and she made her decision. Of course, it is not an appeal where discretionary decisions cannot be challenged save for showing extraordinary circumstances where the discretion has miscarried. As I have said, it is a fresh hearing on the merits. I have not been able to discern from any of Mr Xuarez’s evidence or extensive written submissions any sensible or reasonable grounds as to why Registrar Stoneham’s directions of 27 October 2015 ought to be set aside and why they should not stand. In principal, as I have said, once the matter has been allocated to a judge’s judicial docket the matters are alive again and Mr Xuarez can argue at the trial management event that the mother’s affidavit ought not be allowed to be relied on because it was three days late and he can raise any matters of prejudice.
48. I do not know whose docket it is going into yet out of Justice Hogan, Justice Carew or myself, but any trial judge will be able to hear and determine any arguments Mr Xuarez makes at that hearing as to why he might be prejudiced by allowing an affidavit to be read in a trial that is not yet even listed, when it was filed on 1 September 2015, albeit some three days after it was meant to be filed.
49. My understanding of the principles involved in determining a question of whether affidavits filed later than directed ought be allowed to be relied on at trial, relate to two things: (1) the explanation given for the lateness and (2) more significantly, prejudice that the lateness actually causes in all the circumstances. It would be hard to see, albeit I am not closing my mind to the issue, prejudice in the circumstances of this case. For those reasons, I also say that application in a case is without any further merit.
50. The mother and the ICL asked for costs. I am not minded to make an order for costs, or even to reserve them, having regard to the fact they are unlikely to ever be satisfied. I do not particularly want to create more work for the mother or her lawyers chasing costs that are never going to be paid or by putting in place some sort of order that gives Mr Xuarez some other reason to keep filing applications. I appreciate in circumstances where he has walked out and has been wholly unsuccessful, in a civil court a costs order would be made, but in this Court with the discretion I have got I am not minded to make an order as to costs.