Adams and Adams
[2007] FamCA 101
•19 February 2007
FAMILY COURT OF AUSTRALIA
| ADAMS & ADAMS (NO. 6) | [2007] FamCA 101 |
| FAMILY LAW - Litigant in person acting abusively in court – behaviour of litigant in person precludes him from being heard in proceedings until further order – means by which interim order can be discharged and litigant in person can be heard again – disqualification of judge on basis of reasonable apprehension of bias – judge previously appeared for large government department which employs several witnesses – relevant tests and considerations – disqualification application dismissed. |
C & C & Ors Fam CA 770
Johnson v Johnson (2000) HCA 48
Re J.R.L; Ex parte C.J.L. (1986) F LC 91‑738
Landy & Landy (2005) FLC 93‑245
| APPLICANT: | Mrs Adams |
| RESPONDENT: | Mr Adams |
| INDEPENDENT CHILDREN’S LAWYER: | Donald S Lampe |
| FILE NUMBER: | MLF | 2456 | Of | 2006 |
| DATE DELIVERED: | 19 February 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 19 February 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr A. Combes |
| SOLICITOR FOR THE APPLICANT: | Jane Baldwin |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr R. Hoult |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Donald S Lampe |
Orders
That until further the participation of the husband in these proceedings from another location in the Court is restricted to him being able to hear and observe the proceedings by video relay.
That I reserve liberty to the husband to make application to vary or discharge the previous Order by making application in writing supported by an affidavit by which he deposes that if permitted to ask questions and make submissions in the future he will do so in a civil and orderly manner.
That in the event that the husband advises the Registry Manager of this Registry that he wishes to make such an application, that matter be brought to my attention without delay.
That for the purpose of conducting the proceedings in the manner prescribed in paragraph 1 of this Order, upon the husband indicating to the Court Officer in Court 2K or such other location as he may be placed in, that he wants to leave the Court to use the lavatory, the Court Officer communicate same to me, via the Court Officer in this Court and I will consider standing the matter down for a reasonable time.
I reserve liberty to apply generally.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 2456 of 2006
| MRS ADAMS |
Applicant
And
| MR ADAMS |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
These are reasons as to why I will order that henceforth until further order the husband cannot participate in these proceedings, other than by being at liberty to observe and to hear them from court 2K. This will be achieved by muting the microphone in the court in which the husband is located,
court 2K. We will be able to see but not hear the husband. He will be able to see and hear all that goes on in court 4D. These arrangements will continue until such time as he assures the court that he will comport himself appropriately and refrain from addressing me and any other person appearing or giving evidence in an abusive manner.
This morning the husband made another application for me to disqualify myself. I have no difficulty with that concept. He makes those applications frequently. I directed that he confine himself to matters which have arisen since I last dismissed an application for disqualification. I will deal later with the substance of his application. For the time being, the more pressing issue is his unacceptable behaviour whilst making submissions.
The proceedings went something like as follows. I said good morning to everyone. The husband said that he wanted to make an application. I asked him to proceed. The husband said:
It has come to my attention that you in this city have represented the Department of Human Services as their barrister and they have stuffed you with a wealth of their finances and as a result there is a conflict of interest and I am not prepared to accept that you in a position to deal with it fairly in an unbiased manner.
I will deal with that ground later when I consider the disqualification issue.
Then the husband went on to say:
Number 2: your constant manipulation and your corrupt behaviour in trying to refuse and failure to respect that you have treated me unjustifiably; you did not treat me pleasantly.
I reminded the husband that “this is not a new matter, [Mr Adams]; this is one that you've relied upon before”.
To which the husband said:
Shut up. I am speaking.
I said:
[Mr Adams], this is your final warning. On one more occasion you refer to me with such discourtesy as "shut up" and I will prohibit your further participation in these proceedings; that is it, [Mr Adams], there are no more chances.
To which the husband responded:
Shut up.
I then adjourned temporarily before coming back to pronounce orders and to deliver these reasons for my decision.
This is the 11th day of the hearing which was agreed by the husband to require not more than five days. Last week I made it clear to the husband that if he addressed me discourteously again I would terminate his right to fully participate in the proceedings. I then said, and I now repeat, that was because the husband is not seeking to participate in this case in a meaningful way. His insulting behaviour to me personally is also an affront to the dignity of the court. It does not in any legitimate way seek to advance any point he wishes to make and which is relevant to the case.
My earlier comments were in relation to him telling me to "Be quiet".
I should mention here that I don't take exception to his reference to me by my given name, initials or otherwise than by my correct title. That is not to say that it is appropriate to refer to me otherwise by my correct title or that
I condone such behaviour.
Today, he has told me once to "shut up". Then hearing my warning, said it again. Taking this escalation of his language into account, I can see no reasonable prospect of him participating in these proceedings in anything but an abusive manner.
The husband has already refused to return to the witness box so that the cross examination of him on behalf of the wife and the independent children's lawyer could be concluded. Because of that, his evidence remains untested, and that is the subject of an earlier ruling of mine[1]. The husband also refused to go back into the witness box to say anything by way of re‑examination - although I accept that is very much more a matter for him.
[1] [2007] Fam CA 92
I fail to see how the husband is taking these proceedings seriously and/or trying to address the very important issues at hand. I have no doubt that the husband wants me to stop hearing the case. He has made several applications for my disqualification. He has said that he estimates that the case will take not 5 but 26 days. I am confident that the husband will and has done all in his power to derail the orderly conduct of the proceedings.
The husband’s behaviour in the first 10 days of the hearing, has been addressed successfully by placing the husband in a remote location within the building. I suspect that the knowledge that he can be muted at any time (so that he can hear us but we don't hear him) has had a modifying effect on his behaviour - at least, that is my observation last week.
Now, however, I am satisfied that his behaviour has escalated, that under the guise of an application for disqualification, he seeks to do no more than to insult me and to offend and flout the authority of the court. His behaviour is intended to offend me and the court and it is disrespectful to each other party to the proceedings. I am satisfied that his behaviour as it occurred this morning precludes him from taking an active role in the proceedings as far as being heard is concerned.
I make no finding as to whether his behaviour is a pure contrivance to prevent me from determining the matter according to law or whether it has as an element of it a psychological or psychiatric disorder suffered by him. It does not matter. Whatever is the cause of the husband’s behaviour, it is unacceptable behaviour which and I will not tolerate.
In the decision of the Honourable Justice Brown in C & C & Ors [2006] FamCA 770 Her Honour dealt with a self represented litigant who was a prisoner. His behaviour in court was unacceptable and, as a result, Her Honour ordered that he be taken back to prison and that his evidence be obtained by video link. However, even from prison the father raised his voice, he threatened police officers and was noncompliant with Her Honour's directions. After Her Honour found that the father could not participate in the proceedings, Her Honour made the following observations:
[…] Whatever its origins, his behaviour precluded the possibility of him taking further part in proceedings today.
22. That left the Court in a quandary. The best interests of all the children demand a judicial determination. To allow the proceedings to be adjourned indefinitely, without such a determination, is likely to impact very adversely on [the wife], and on the children. On the other hand, natural justice and procedural fairness require that prior to final determination of his application for communication by letter, [the husband] be able to test evidence and make coherent submissions, something I am satisfied he cannot or will not do at this time.
23. It is important to remember that it is the best interests of the children which are paramount. I am satisfied that to adjourn the trial for another week, or several weeks, or months, in the hope that
[the husband] will then present differently, would not be in the children’s best interests.
24. As noted by Brennan J. (as he then was) in J v. Lieschke (1986-87) 162 CLR 447, the nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may effect the extent to which a plenary right to be heard may be qualified, even in curial proceedings. In J v. Lieschke the High Court considered the parents’ right to be heard in proceedings before a magistrate relating to a “neglected child” within s.72 of the Child Welfare Act 1939 (NSW). The Court (Mason, Wilson, Brennan, Deane and Dawson JJ.) upheld the mother’s right in that case, finding the right to be heard did not depend on the exercise of the magistrate’s discretion but on the principles of natural justice required to be accorded to her. Nevertheless, at 457, Brennan J. referred with approval to what Lord Evershed said of the wardship jurisdiction in In re K (infants) [1965] A.C. 201 at 219, as follows :
The jurisdiction . . . is surely . . . very special, and being very special the extent and application of the rules of natural justice must be applied and qualified accordingly. The judge must in exercising this jurisdiction act judicially; but the means whereby he reaches his conclusion must not be more important than the end. The procedure and rules . . . should serve and not thwart the purpose.
Brennan J. continued :
If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred, the application of those principles would have to be qualified: see Kioa v. West (1985) 159 CLR 550, at pp.615, 633-634. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; e.g., it may be necessary to keep a welfare report confidential, as in In re K. and as provided for in s.89(3) of the Act. But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred: see Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342.
25. I am very concerned at the potential impact of any further adjournment of the trial. [The wife] should not be held hostage to [the husband’s] behaviour, whether that behaviour is intentionally manipulative and controlling, or the product of a disordered mental state. The children’s best interests demand that she should be protected from it to the maximum extent compatible with natural justice.
I direct that all parties be handed a copy of Her Honour's unreported decision. With respect, I adopt Her Honour's comments as appropriate to this case and to Mr Adams’ participation in the proceedings. [For the purpose of the transcript, I note that when the husband was handed a copy of
Her Honour’s decision in court 2K, he screwed it up and threw it from the bar table].
Continuing with these reasons, the qualification that I would put on Her Honour's comments in C & C & Ors is that Her Honour appears to have had some expectation or a slim hope that the behaviour of the husband in that case may ameliorate or improve. In C & C & Ors, Her Honour considered (but rejected) adjourning the matter until such time as there was an improvement. I cannot see that the husband’s behaviour will improve; in fact it appears to be escalating.
I will not preclude the husband from being heard - from questioning witnesses and making submissions - as a final order.
I will leave the door open to the husband to return to full and complete participation in the proceedings if and when he makes an application in writing to do so which is supported by an affidavit in which he promises to act in a civil manner. He does not have to like the procedure we undertake in the course of this trial, but he must undertake to participate in it civilly, like everyone else has done.
The application by him need not be typed, it need not be long, but his desire to participate in an orderly way must be sincere. In the event that he indicates to the court officer in 2K and to the registry manager - whose contact details,
I understand, he has - that he wants to make such an application he will be given a reasonable time in which to do so. In the meantime, the hearing will continue. There are a number of people at court in response to subpoenae issued on behalf of the independent children’s lawyer but at the request of the husband. Now the husband is not participating at a level where he can get any evidence from him. That is of his own doing. I do not want to risk calling the witnesses back. The people who are here can be called now and cross examined by the wife and by the independent children’s lawyer.
the husband knows what he has to do if he wants to ask questions of them before they leave. Then we will have the case of the wife and the independent children's lawyer.
Court 2K will be on mute until further order. However, the door is not shut on the husband. It is open to him to make a further application that he be heard. However, until he does so and I discharge the order I am about to make, he can only listen and observe.
The restrictions on the husband’s participation is a matter of his own doing. Likewise, it can be undone by him. The first thing that he has to do is prepare the brief application and notify the Registry Manager.
I will now deal with the points of disqualification as they were imparted to me prior to his abusive comments.
The husband’s first ground is that it has come to his attention that as a member of the Victorian Bar I have acted on behalf of the Department of Human Services. The Department of Human Services is not a party in these proceedings but he has requested that several - precisely four - protective workers be brought to court to give evidence. That is a matter which I have ordered the independent children's lawyer organise on behalf of the husband.
Insofar as the husband asserts that:
DHS has stuffed you with the wealth of its finances and I am not prepared to accept that you will give me an impartial hearing -
I take him to be saying that, because employees of a former governmental client of mine are witnesses in this case, I would be so affected that I would not be capable of discharging my obligations to hear the matter. The obligation to act judicially were accepted by me when I took an oath of office and swore to decide all cases without fear or favour.
I have, when a member of the Victorian Bar, been retained by the Department of Human Services to appear on its behalf. It must be borne in mind that the Department of Human Services is a department of the State of Victoria. I can and do take judicial notice of the fact that it is a large organisation with many employees which discharges all sorts of responsibilities on behalf of the government of Victoria, and, in some instances, the Commonwealth of Australia.
I do not recognise any of the witnesses which the husband has asked be brought to court so that they could be examined by him. I do not believe I have met any of them. As I have quoted on I think six occasions now in these proceedings or have referred to it in some way, the relevant test for disqualification for an apprehension of bias is, conveniently, summarised in the decision of Johnson v Johnson (2000) HCA 48 when in the majority judgment their Honours said:
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 appearance of bias 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.
On previous occasions the husband has misstated that as it being his reasonable apprehension of bias or an apprehension of bias held by anyone in the court. As I have said earlier, I cannot make it any more clear that the law
I apply is the law that is set out conveniently in the High Court decision of Johnson v Johnson.
In dealing more specifically with circumstances in which a judicial officer has had some past relationship with someone involved in the trial, I am assisted by the decision of His Honour Mason J in the case of Re J.R.L; Ex parte C.J.L. (1986) F LC 91‑738. In that case at page 75‑378 His Honour says as follows:
This principle which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that not only must justice be done, it must be seen to be done.
It seems that the acceptance by this court of the test of reasonable apprehension of bias in such cases as Watson v Livesay has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. 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 unlikely to decide issues in a particular case adversely to one of the parties, but this 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 that 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.
There is a long line of authority which is conveniently summarised by the Honourable Justice Guest in the matter of Landy & Landy (2005) FLC 93‑245 about the degree of influence upon a judge of previous associations he or she had whilst counsel and what is necessary to establish a ground of apprehension of bias. I would respectfully agree and adopt Guest J's summary of the law, and it is not necessary for me to re‑state it here. In this case I am not satisfied that an impartial bystander properly informed and looking on would come to the conclusion that my ability to hear and determine the case impartially and on the evidence is, in the words of Mason J, “firmly established”.
Accordingly, I find that the applicant, the husband, does not make out the ground of his application for me to disqualify myself and I dismiss it.
The husband also submits that I have not dealt with him fairly. In this regard, I incorporate and repeat the reasons for dismissal of his earlier applications for me to disqualify myself.
I find that the husband has been given far more consideration, far more resources and more latitude than any litigant in his position is entitled to expect. Notwithstanding his persistent rudeness to me and to the court, his wilful and contemptuous behaviour, his affront to the dignity of the court and his failure to abide by even the most fundamental precepts of civil behaviour,
I have sought to ensure that the trial is conducted as fairly as the husband would permit. I have done this in discharge of my responsibility to protect the welfare of the child and for the purpose of ascertaining what parenting regime is in his best interests. Having regard to the child’s welfare and the ascertainment of his best interests is a specific obligation as far as parenting orders are concerned. It is an over arching obligation in matters of procedure and evidence. In any event, it is always at the forefront of my mind.
I see that there is no course other than limiting the husband’s participation henceforth to be that of listening and observing from court 2K, or such other place within the court as the administration may have to move him from time to time. As I have said, it is an interim order and it can be undone by the husband successfully making an application to me supported by his affirmation that, if I permit him to be heard, he will behave civilly.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 23 February 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ADAMS & ADAMS
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