Adams and Adams
[2007] FamCA 100
•14 February 2007
FAMILY COURT OF AUSTRALIA
| ADAMS & ADAMS (NO. 5) | [2007] FamCA 100 |
| FAMILY LAW - Oral application for disqualification – Reasonable apprehension of bias – Application dismissed. |
| Family Law Act 1975 (Cth) |
Adams & Adams (No. 1) [2007] FamCA 40
Adams & Adams (No. 2) [2007] FamCA 52
Adams & Adams (No. 3) [2007] FamCA 71
Re Lusink ; Ex parte Shaw (1980) FLC ¶90-884; 55 ALJR 12; 32 ALR 47
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41 Johnson v Johnson (No 3) (2000) FLC ¶93-041
| APPLICANT: | Mrs Adams |
| RESPONDENT: | Mr Adams |
| INDEPENDENT CHILDREN’S LAWYER: | Donald S Lampe |
| FILE NUMBER: | MLF | 2456 | of | 2006 |
| DATE DELIVERED: | 14 February 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 14 February 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr A. Combes |
| SOLICITOR FOR THE APPLICANT: | Jane Baldwin |
| THE RESPONDENT: | In Person |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr R. Hoult |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Donald S Lampe |
Orders
That the oral application of the husband made this day for me to disqualify myself be dismissed.
I DIRECT that a transcript be prepared of the proceedings up to 10:30am this morning, excluding my reasons for judgment which will be separately transcribed.
I DIRECT that my comments made yesterday afternoon when the Court adjourned at approximately 3pm on 13 February 2007 be transcribed.
That when the above requested reasons and transcripts have been prepared copies be sent to each of the parties.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 2456 of 2006
| Mrs Adams |
Applicant
And
| Mr Adams |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
In this matter, the husband makes his fifth application for me to disqualify myself based on a variety of grounds, as he describes them. Many of them have been adumbrated previously and are the subject of previous rulings by me[1]. I directed the husband to confine his application to matters which have arisen or occurred since his last application for me to disqualify myself was dismissed. He has been unable to do that. I will deal with the matters which he said were his best points.
[1] [2007] FamCA 71.
The husband says
“I have a reasonable doubt that you (sic) mental health state is in a position to preside over the life and the future of my child, and I have a number of those mentioned that I would like to raise.”
While is it unnecessary for me to respond to such allegations, there is nothing about my personal state of health which would lead me to believe that I am unable to perform the judicial duties which I took an oath to discharge.
The husband says that I am:
“ignorant of the law and refuse to embrace the new legislation.”
I cannot accept that the husband has failed to pick up that I have told him on several occasions that Division 12A of Part VII of the Family Law Act applies to cases initiated after 1 July 2006. In any event, as I have said numerous times before, my competence is relevant to judicial error not to disqualification and is correctible on appeal. The husband’s opinion about my mental state and competence are not grounds on which I will disqualify myself.
The husband has said that I use:
“terror and panic, unwarranted cruelty against the father and
[Mr T]. I am profoundly shocked and appalled by the level of brutality against me and my witnesses …had this been in South Africa, Victoria Bennett, I will tell you, you and the independent children’s lawyer, would have gladly supported apartheid, viewed by most South Africans as the Jews – the Jew’s view of Auschwitz …… used covertly by South African state to torture and murder under apartheid, so blood spilled”.
These were matters that had already been adumbrated in previous applications for disqualification. As I have said previously, Mr T was excluded from court when the matter was before me in the Magellan duty list on
19 January 2007 because he was disruptive and loud. In relation to the husband and removing him from court, that is the subject of two rulings which I have previously delivered in this matter[2].
[2] [2007] FamCA 40 relating to events on 6 February 2007 and [2007]FamCA 52 relating to events on 9 February 2007
The husband, referring to me, submitted that:
“as a learned judge and a woman person, you appear to be unusually cold and display an uncommon lack of empathy for my child and I say for various other children who have appeared before you in cases of physical violence, sexual abuse and such. You seem to relish … to inflict pain, compounded by all and unjustified punishment of both my child of course indirectly and directly and adult, this being [Mr T] and
I, the father, in these proceedings while we were detained.”
I am confident that “a fair-minded lay observer”[3] would not reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions which I am required to decide by reason of my demeanour nor reasonably apprehend on the basis of it that I am biased against the husband or in favour of anyone else.
[3] See Re Lusink ; Ex parte Shaw (1980) FLC ¶90-884; 55 ALJR 12; 32 ALR 47; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41. JOHNSON v JOHNSON (No 3) (2000) FLC ¶93-041
The husband said:-
“drawing from my social science education, I know typical behaviours of you, including bullying, tsotsi behaviour”.
I take the husband to be calling me a thug as well as a bully. It has been necessary for me to disregard many of the husband’s behaviours in court in order to proceed with the hearing. As I have warned the husband, some of his court room antics may be corroborative of allegations that he has acted in an unacceptable, domineering, overbearing and inappropriate way to others including the wife and the contact centre personnel. However, apart from that, since the husband has been moved out of this court room and participates by video link, his behaviour is not distracting.
The husband says that I have displayed:
“behaviour similar to an individual who has a history of assault, you lack total remorse and the manner in which you depersonalise your victims, in this case [the child], [Mr T] and the father, this leave (sic) me to form the view that one could be awfully unlucky to encounter a woman and mother, a parent and adult, with children of this type in our everyday life. In the real world, these people usually get caught by hiding under the banner of judicial immunity. It may take some time before Victoria Bennett is caught. You also appear like someone who does not have much power in your daily life through your own skills, thus the courtroom is used as a tyrannical style to torture and indirectly or directly or vicariously impose violence on other people.”
I do not consider that my court room demeanour would lead a fair-minded lay observer to apprehend that I might not bring an impartial an unprejudiced mind to the resolution of parenting matters about the child.
I also take into account from the perspective of a fair-minded lay observer whether the fact that the husband’s submissions per se are so offensive that they might produce a reasonable apprehension that I am now unable to bring an impartial and unprejudiced mind to the determination of this case. I think not. The energies which the husband has devoted to trying to offend me during this case have waxed and waned. However, I regard his behaviour as something to be contained rather than as anything to be offended about personally. He formulates his insults in personal terms but he would hurl those insults at anyone in my position, albeit re-packaged to form designed to be most offensive. In other words, his criticism of me arises because of my office. It must also be said that a litigant who wishes to “forum shop” cannot remove a judge from hearing a case simply by engaging in loud and persistent offensive behaviour towards the judge. Any fair minded lay observer would, I am confident, conclude that I am not offended, not prejudiced and not partial.
The husband referred to me directing that he use another chair in the witness box. This was as a result of the husband volunteering that the chair in which he was sitting in the witness box had raised him up suddenly as if to eject him. I pointed out to the husband there is some history of allegedly faulty court chairs which allegedly did precisely what he described. I directed that it be replaced. The husband then said he didn't want the chair to be replaced. However, I wanted him to be safe and not to incur any injury as a result of chairs and I directed that the chair he was using be replaced with another. He refused to get out of the chair in the witness box. I asked the Federal Agents to effect the exchange of chairs. Then, the husband was compliant.
In his submission, it is noteworthy that the husband says that he changed chairs in order to “keep the peace”. In fact, prior to changing chairs, the husband said that he knew what “manipulative tactics” I was embarking on and he knew my “tricks”. He said “don’t go there sister…..you are being sneaky.” When asked to elaborate, he said
Mr Mears is going to come with a chair which is very low. That chair that he is going to bring will then make you seem taller and diminish me here as a form of intimidation. So let’s see if I’m right.”
Of course, that is ludicrous. The husband was able to adjust the new and apparently unfaulty chair.
The husband made a submission to the effect that he had been ordered to participate in the proceedings from a remote facility (court 2K) because he is violent. That is not so. When he did act in a violent and uncontrolled manner he was placed in the cells and told that he could return as soon as he could comport himself reasonably. The reason why the husband now finds himself in court 2K is because he interrupts and interjects and talks over me and other people in court. As my earlier ruling on this point makes clear[4], once warned, the husband continued to interrupt and interject. The husband’s participation from court 2K is less disruptive insofar as interruptions can be contained by muting his microphone while allowing him to hear the proceedings in court.
[4][2007] FamCA 52
The husband says that he was:
“handcuffed out of the witness box and the direct result of your orders to remove me from court with no reason, no charge, my freedom of movement was limited to a black couch outside the courtroom 4D. When I asked you what this was all about, you denied all responsibility, vicarious, direct or both.”
As indicated above, when the husband interrupted my reasons being delivered and persisted in speaking over me giving reasons, I directed that he be removed from court. The fact that the Federal Agents in attendance handcuffed him for the purpose of doing so was not pursuant to a direction from me. I do not interfere with the discharge of their duties or prescribe how the husband is to be removed. The Federal Agents who have been present during the trial have been diligent and effective. It was necessary for the husband to be removed from court 4D as he interfered with the recording of my delivery of reasons for a ruling.
The husband says that I have held hearings in secret. That is not true. On the occasions which I have directed he be removed from court, I have delivered reasons for judgment or transcript which are circulated to him in due course in accordance with whatever arrangements he has for service of him of documents. The only parts of the proceedings which the husband has missed have been those missed of his own accord.
A further ground is that the husband said that yesterday I had told the independent children's lawyer that I needed to hear from a psychiatrist to explain the husband’s behaviour. That is false.
A discussion arose when the independent children's lawyer put a question to the husband including the phrase, “There is an issue about your mental health or your psychiatric state.” I stopped counsel for the independent children's lawyer on the basis that I did not see the husband's psychiatric or mental state as having been identified as an issue in the case. There is no evidence of a psychiatric nature. That is the husband’s decision. That is the way that he wanted to run his case.
What I went on to say is that the husband’s deeds, actions and intentions, are relevant to issues in the case. My observation was that those actions and attitudes are not ameliorated or softened in any way by psychiatric or medical evidence. That is a matter for the husband. I have not prejudged him as being psychiatrically ill or mentally unstable. Ultimately, why the husband acts as he does is likely to be a matter on which I can make no finding because I have no expert evidence.
I have considered the “grounds” asserted by the husband individually and cumulatively. I am not satisfied that any or all would lead to a reasonable apprehension of bias. Accordingly, I dismiss this further application for disqualification.
I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 21 February 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ADAMS & ADAMS
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