Aligante and Waugh (No 2)
[2010] FamCA 554
•6 July 2010
FAMILY COURT OF AUSTRALIA
| ALIGANTE & WAUGH (NO. 2) | [2010] FamCA 554 |
| FAMILY LAW – COURTS AND JUDGES – Disqualification – Application for disqualification of judge on the ground of apprehended bias arising from prejudgment – Where the proceedings were governed by the provisions of Division 12A Part VII Family Law Act – The work done by s 69ZR Family Law Act in circumstances where findings have been made; contested matters have been determined and interim orders have been made before final orders are made – The effect of the delay in bringing the application for disqualification - Application for disqualification dismissed |
| Family Law Act 1975 (Cth): ss 60CA; 69ZM(3); 69ZN(3), (4) and (7); 69ZQ(b) and (g); 69ZR(1), (2) and (3); 69ZX(3) Family LawRules - 16.04; 16.08; 16.09; 16.10 |
| AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Vakauta v Kelly (1989) 167 CLR 568 |
| APPLICANT: | Mr Aligante |
| RESPONDENT: | Ms Waugh |
| INDEPENDENT CHILDREN’S LAWYER: | Fiona Reid |
| FILE NUMBER: | SYF | 3075 | of | 2004 |
| DATE DELIVERED: | 6 July 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 28 June 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Barry |
| SOLICITOR FOR THE APPLICANT: | Legal Aid NSW |
| COUNSEL FOR THE APPLICANT: | Mr Thomas |
| SOLICITOR FOR THE RESPONDENT: | Miller & Young Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Schonell |
| SOLICITORS FOR INDEPENDENT CHILDREN’S LAWYERS | Reid Family Lawyers |
Orders
Order 2 made 28.6.10
Leave be granted to the mother to make an oral application that I disqualify myself. That oral application is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Aligante & Waugh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 3075 of 2004
| MR ALIGANTE |
Applicant
And
| MS WAUGH |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The matter was originally set down on 28 June 2010 to:
1.1.Consider whether any evidence filed by the mother, which put in issue the qualification and competence of Dr W, would be admitted during the final stage of the hearing;
1.2.Consider the “Application in a Case - Request for a Case Stated” filed on 8 June 2010, seeking that the Full Court be asked questions about the admissibility of Dr W’s evidence and the definition of a term used in rule 15.49(2)(a) Family Law Rules.
Counsel for the mother did not seek to pursue either of these applications but instead sought leave and was granted leave to make an oral application that I disqualify myself.
On 28 June 2010 I dismissed the oral application that I disqualify myself. I indicated I would give reasons at a later time and these are those reasons.
The application for disqualification was opposed by the father and by the Independent Children's Lawyer.
BACKGROUND
This application for disqualification arises in the course of a case that is concerned with what parenting arrangements should be put in place in respect of the child of the parties, who was born in May 2002.
The current pending final applications by the parties are:
6.1.The mother seeks that the child live with her with no contact with his father.
6.2.The father seeks an order that the child live with him and that there be restrictions on and supervision of the child’s time with his mother, at least in the short term.
Pursuant to further interim orders that I made on 11 May 2010, the child is currently with his father and is now seeing his mother at a contact centre on a weekly basis.
The original application for final orders by the father was filed on 10 May 2004. On 3 December 2007 both parties consented, in the form prescribed, to the matter proceeding pursuant to the provisions of Division 12A of the Family Law Act 1975 (“FLA”) and a direction was made by the court that the matter be listed for a Less Adversarial Trial pursuant to that Division (see s 69ZM(3) FLA). The father and mother’s written consents were exhibits 1 and 2 respectively at the procedural hearing before the Registrar on 3 December 2007.
The proceedings were originally delayed because of criminal charges pending against the father, arising out of allegations made by the mother. The hearing of this matter commenced as a Less Adversarial Trial in March 2008. The hearing continued for six days in April/June 2009. On 12 August 2009 I decided that it was in the child’s best interests to make orders that did not finally determine what parenting arrangements should be put in place for him. It was necessary, at that time, to make determinations about disputed facts between the parties, in order to reach a view as to what interim orders should be put in place, that were in the child’s best interests. By those orders, I attempted to test an arrangement whereby the child would remain in his mother’s household but have unsupervised substantial and significant time with his father. Part of the orders that I made on 12 August 2009 required the parties and the child to attend further interviews with the single expert, Dr W, within nine months of 12 August 2009 for the purposes of providing me with an updated report about the impact of the interim orders on the child. The final stage of the hearing is set to occur on 6 - 8 July 2010.
The interim arrangement broke down in January 2010 when the mother did not make the child available to see his father. The father filed an application that the mother be dealt with for contravention of the interim orders. The mother alleged that inappropriate things were happening to the child in the father’s household.
Orders were made to bring forward the interviews for the purposes of the preparation of an updated report by Dr W. Dr W provided the court with the updated report.
In the ex tempore reasons for judgment dated 11 May 2010, I discussed Dr W’s suggestion that there be an immediate transition of the child from his mother’s residence to his father’s residence. I accepted, on the basis of the written material (which was not yet tested), that that transition was in the child’s best interests, pending all parties having an opportunity to file material and attend the final days of the hearing. During those days of hearing, the parties would be given ample opportunity to test the evidence that had been filed, particularly by Dr W, and provide evidence as to anything of relevance that had taken place since 26 June 2009.
On 11 May 2010, I inter alia, made the following orders:
11.The final hearing of this matter commence on 6 July 2010 for 3 days or until completed.
12.Further evidence that is to be filed and served is to be from witnesses who the parties wish to call about any events that have taken place since 26 June 2009 relevant to any matter under s 60CC Family Law Act and about any assertions the mother makes in relation to Dr [W].
13.The mother file and serve any further evidence upon which she relies on or before 8 June 2010.
14.The father and Independent Children's Lawyer file and serve any further evidence they rely upon by 22 June 2010
The mother had failed to file and serve any further evidence that she wished to rely upon by 8 June 2010. She sought an extension of time to do so when the matter was before me on 28 June 2010 and that extension was granted. She had until 3pm on the eve of the final stage of the hearing to file whatever evidence she wishes.
DOCUMENTS RELIED UPON BY THE MOTHER
Counsel for the mother relied upon my interim reasons of 11 May 2010 and Dr W’s most recent report.
LAW IN RELATION TO DISQUALIFICATION
Case Law - the basic test
The test in relation to disqualification on the basis of an apprehension of bias is well established. It is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson & Johnson (2000) 201 CLR 488; Strahan and Strahan (2009) FLC 93-414; Coleman and Hindle and Ors (Disqualification) (2010) FamCAFC 29).
As Moore J commented in Hartnett & Sampson [2008] FamCA 75:
“Pre-judgment is a sub-set of the principle, more suited to the circumstances here in my view, and another way of expressing it from that footing is ‘…whether a fair-minded observer would conclude that the judge had formed opinions which might affect his determination of outstanding matters.’ [Australian National Industries Ltd v Spedley Securities Ltd (in liq) & Ors Maher v Spedley Securities Ltd (in liq) & Ors (1992) 26 NSWLR 411].
This test, as explained in Johnson, requires a two step process, that is:
[5] The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the ‘logical connection’ between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.
In Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507, Hayne J expands the steps to be argued in a disqualification application as follows:
“…..First, there is the contention that the decision maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case…..Allegations of apprehended bias through prejudgment are often dealt with similarly.”
Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 said:
“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 his 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 Jia’s case, Gleeson CJ and Gummow J said:
“The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.”
The reasoning behind the rule is the important consideration that not only must justice be done, justice must be seen to be done. This is also explained in Ebner where the High Court stated:
[6] That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.
The High Court in Ebner also advised the judiciary to make the decision to disqualify themselves with caution:
[19-20] Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case…if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
As Mason J said in Re JRL; Ex parte CJL:
“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.”
A number of authorities have made it clear that the basic test assumes knowledge of the actual circumstances of the case in the mind of the lay observer. In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, Mason CJ and Brennan J (at page 87) said:
“….in accessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case.”
Child related proceedings under the Family Law Act
The High Court in Livesey v NSW Bar Association (1983) 151 CLR 288 (at 299-300) said “…each case must be determined by reference to its particular circumstances”.
The High Court in Johnson (2000) observed:
[13] The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation.
The basic rule is subject, to any expressed legislative intention in the opposite direction (see Kirby P (as he then was) in Spedley at page 422).
The context in which the decision maker is to carry out his or her task is an important element when determining a disqualification application. The Family Court is a court created by statute. When dealing with parenting matters, the court is particularly confined by the legislative structure of Part VII FLA.
Section 60CA FLA sets out the fundamental proposition that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. An order that I disqualify myself is not a parenting order, but the application for disqualification has been made in the context of a case where the subject child’s best interests are my paramount concern.
Intent of the 2006 amendments
In 2006 amendments were made to Part VII FLA and apply to proceedings commenced by an application filed on or after 1 July 2006 or to proceedings where, as in this case, the parties have consented to the application of Division 12A of Part VII FLA.
Division 12A of Part VII sets out the basis for conducting child-related proceedings in a less adversarial manner.
As the explanatory memorandum introducing the 2006 amendments makes clear, Division 12A implemented a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Family Law Act. The approach relies on active management of matters by judicial officers and is aimed at ensuring the proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child.
As indicated, I have already made findings of fact, determined matters and made interim orders relating to what is in the subject child’s best interests on evidence about what has happened up until 26 June 2009. However, I have not made findings or determined matters arising from events between 26 June 2009 and now. I have not determined what final orders will be in the child’s best interests.
The principles for conducting child related proceedings are set out in various parts of Division 12A of Part VII FLA. I refer in particular to ss 69ZN(3),(4) and (7) FLA which are in the following terms:
Principle 1
3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 5
7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
General duties are imposed upon a judge hearing child related proceedings to give effect to the principles and they include s 69ZQ(b) and (g):
....
(b) decide the order in which the issues are to be decided; and …
(g) deal with as many aspects of the matter as it can on a single occasion; …
A traditional adversarial trial, where a final hearing takes place in one continuous block of days, was replaced, particularly in the Family Court, by a process where some evidence is usually taken from the parties on the first day before the judge, and issues about what further evidence will be allowed is narrowed and defined by the judge. Only in exceptional cases are the more common rules of evidence strictly applied. The statute enshrines less adversarial procedures, which give more control to the judge, than in normal adversarial litigation.
Section 69ZR FLA provides power to make determinations, findings and orders at any stage of the hearing of child-related proceedings and is in the following terms:
(1) If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c) make an order in relation to an issue arising out of the proceedings
Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2) Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3) To avoid doubt, a Judge, Judicial Registrar, Registrar, Federal Magistrate or Magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
The Explanatory Memorandum says the following about s 69ZR FLA:
363. Section 69ZR makes clear that the court can make findings of fact, determine a matter arising in the proceedings, or make an order at any stage after the commencement of the proceedings. This is intended to encourage the court to consider making findings throughout the hearing rather than leaving all findings to a judgment at the end. This should assist in narrowing the issues between the parties and better focus the proceedings on the key issues.
364. Subsection 69ZR(2) clarifies that this does not prevent the court making a finding of fact, determining a matter arising in the proceedings, or making an order in relation to a particular issue at the same time as final orders.
365. To avoid any doubt, ss 69ZR(3) clarifies that the making of a finding of fact, determination or order under ss 69ZR(1) is not a reason for a Judge, Judicial Registrar, Registrar, Federal Magistrate or Magistrate to disqualify himself or herself from a further hearing of the proceedings.
366. The aim of this section is to provide the court maximum flexibility in how it determines the best management of a particular case.
Section 69ZR(1) FLA envisages that before making final orders, a court may find a fact or determine a matter. The section would have no meaning if what was being referred to was the determination of uncontroversial facts or matters. The word “fact” or “matter” must, at least, include a fact or matter disputed between the parties.
The work that s 69ZR FLA does, in Division 12A Part VII FLA, is to free up a trial judge, so that the trial judge can conduct proceedings in a more child focused way. Whilst the features of an adversarial trial are not entirely abandoned, and procedural fairness is still a touchstone, there is flexibility in the judge controlled process created by the Division. That flexibility allows a judge, without having to fear a disqualification application based on pre-judgment, to make findings about disputed facts and to determine issues, if the judge forms the opinion that it is in the child’s best interests to conduct the hearing in that manner.
The judges of the Family Court have made rules providing for the processes to be applied under Division 12A of Part VII of the Act (see generally Chapter 16 and Chapter 16A Family Law Rules (“FLR”)). Part 16.3 FLR, and in particular rules 16.08, 16.09 and 16.10 FLR, set out what is expected at the first day of a trial in a parenting case, what is expected at days where that trial is continued and what is expected at the final stage of the trial in a parenting case. Rule 16.04 FLR sets out the types of procedural orders that a court may make.
On the first day of a trial or in the first part of a trial, evidence can be taken and determinations on any evidentiary question that arises maybe made. The rules indicate that the purpose of the first day of the trial is inter alia for the judge with the assistance of the parties and the legal representatives, to discuss and identify the orders sought and the issues in dispute between the parties arising from the applications before the court. Matters can be determined on an interim basis. On the first day in a children’s case in the Family Court, it is not unusual to receive evidence from each of the parties. It is usual for the family consultant, who has seen the parties and the children on a reportable basis, to be in the court room during the first day, and provide opinion evidence. The rules provide that decisions can be made about the nature of the evidence (including expert evidence) that will be required to decide the issues that have been defined; which witnesses a party may call on a particular issue; how the evidence is to be adduced; the time to be taken for evidence in chief, cross examination or re-examination of witnesses, to give evidence and submissions and the sequence in which evidence is to be given and addresses made.
The new Division 12A affects previous case law. For example, in Johnson v Johnson (1997) FLC 92-764 the Full Court said a party had a right to object to the interposition of the expert witness early in the trial. But now, relying upon that Division, a judge may, if he finds it a more effective method to focus the parties on the central issue in the hearing, call the expert witness at an early stage in the hearing. As it happens, in this case, I have found that it is appropriate to call Dr W at the conclusion of the other evidence.
In Runcorn v Raine [2008] FamCA 837 there was a delay between the hearing and the delivery of the judgment, in which Murphy J had made critical findings against the mother. Relying upon s 69ZR FLA, his Honour determined that he would hear further evidence from the parties directly relevant to issues which his Honour identified, from the time between the hearing and the date of delivery of his reasons, before his Honour made final orders in the matter.
In Tennison & Gourlay [2010] FamCA 127, Mushin J dealt with a case where a series of allegations had been made by the mother that the father had sexually abused the child. Senior counsel for the Independent Children's Lawyer in that case made an application, pursuant to s 69ZR FLA, to make a determination about the sexual abuse allegations before moving to a determination of the overall dispute. His Honour proceeded to hear evidence and found that there was no unacceptable risk arising from the allegations and further, on the balance of probabilities, on the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336), no abuse had actually occurred. He made a further finding that the mother’s almost fanatical pursuit of the abuse allegations, whilst genuine, was wrong and misguided, although his Honour did not reach the same conclusion in respect of the maternal grandmother’s fanaticism. It seemed clear, given His Honour made these findings relying upon s 69ZR FLA, that he would not feel constrained from determining the matter to finality, notwithstanding the findings that he had made adverse to the mother’s case.
Waiver
In Vakauta v Kelly (1989) 167 CLR 568, Brennan, Deane and Gaudron JJ said (at page 572):
…. By standing by, such a party has waived the right subsequently to object. The reason that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
In Ebner the plurality of the High Court referred to waiver as a counter balancing consideration to a normal circumstance where a judge might be expected to disqualify himself or herself. At paragraph 6 and also paragraph 21, the court explicitly referred to the stage at which the objection is raised as being a matter that needs to be taken into account.
DISCUSSION
Counsel for the mother made it clear that no actual bias was being alleged.
In my view, s 69ZR FLA would not provide any basis for a judge deciding not to disqualify himself in circumstances where there was actual bias.
As Mahoney JA said in Spedley:
“Bias has, I think, ordinarily the connotation of a pre-existing favour or disfavour for a party derived from emotion, ideology, interest or the like. Prejudgment refers more to the fact or suggested likelihood that, because he has once reached a conclusion upon an issue of fact or credit one way, a judge will subsequently decide the same issue in the same way: see Vakauta v Kelly at, eg, 575-576, per Dawson J.”
The mother’s case is that in my Reasons for Judgment on 11 May 2010 I make a number of findings that indicated prejudgment and showed perceived bias, and on that basis I should disqualify myself.
Counsel for the mother took me to a number of the parts of my interim reasons of 11 May 2010 and in particular paragraphs 24 where I recorded that “Dr [W] has discounted the father acting in an inappropriate manner”. Counsel for the mother conceded that that was an accurate description of what Dr W had in fact done in his most recent report and that I was, at that point, doing no more than recording what was in Dr W’s report.
It is clear from the reasons that I had not yet accepted Dr W’s untested evidence for the purposes of the final hearing.
Counsel for the Independent Children's Lawyer pointed to the fact that paragraph 26 of my interim reasons talks about Dr W’s most recent report leaving open a number of proposals which will have to be considered at a final hearing. Paragraph 29 is in the following terms “What proposal will, in the end, be one that is considered by the court in [the child’s] best interests will be a matter for determination at the final hearing in July”. That statement is not demonstrative of pre-judgment about what ultimate orders should be made.
Counsel for the mother next referred me to the first sentence of paragraph 31 of my interim reasons of 11 May 2010 which is in the following terms:
“Firstly, I accepted the father’s version over the mother’s version in relation to the history of family violence, and that version includes the various witnesses that were called on both sides and were cross-examined.”
That sentence is a reference to my interim judgment of 12 August 2009.
In my judgment of 12 August 2009 I:
58.1.Made findings of fact in relation to the proceedings;
58.2.Determined matters arising out of the proceedings that were seriously contested arising out of a myriad of abuse allegations raised by the mother against the father;
and in doing so I made credit findings in respect of the evidence of both the parties and other witnesses.
Some of the findings and determinations made in my reasons of 12 August 2009 turn on my assessment of:
59.1.Uncontradicted evidence;
59.2.Objective evidence;
59.3.What version was inherently more likely;
59.4.The credibility of the parties and witnesses;
59.5.A combination of some or all of the above.
Assessment of the character of the parties and witnesses can be a somewhat circular exercise. Determinations about a particular fact or matter, on the basis of objective evidence or on the basis of whether or not something is inherently unlikely, re-enforce impressions made more generally by witnesses as to their overall credit. Overall credit findings in turn might allow a decision, on balance, about a fact or matter, when there is no objective evidence nor anything to suggest that that fact or matter is inherently unlikely.
In this case it would not be unusual for a new disputed fact or matter to be resolved in the mother’s favour, if objective evidence supported her version or the father’s version was inherently unlikely.
I accept that a judge who has made findings of fact or credit against a party or an essential witness called by a party would, normally be expected to disqualify him or herself, as a result of that pre-judgment.
By the introduction of s 69ZR(1) and (3) FLA, Parliament provided that in child-related proceedings, facts or matters can be adversely decided against one party or more general findings of credit can be made against a party on the facts or matters known to that point without a judge automatically being required to disqualify himself or herself.
Section 69ZR(3) FLA evidences a clear statutory intention that merely because I have made findings, determined matters and made interim orders in the context of a hearing under Division 12A Part VII FLA, I am not for that reason alone required to disqualify myself from further hearing the proceedings. In this case, I find that I should rely upon the provisions of s 69ZR FLA to dismiss the disqualification application.
Waiver/Delay
In the event that I have incorrectly stated how ss 69ZR(3) FLA affects the basic test, I still need to consider whether the mother, by delaying her application, has waived her right to obtain the disqualification order she seeks.
Counsel for the mother conceded that there had been a delay from 12 August 2009 until 28 June 2010 in bringing an application that I disqualify myself on the basis of statements that I had made in my judgment of 12 August 2009. The mother was represented in this case by the solicitors who represented her during the original part of the hearing, which took place in March/April and June 2009, up until January 2010. She was unrepresented for a short period of time but was then represented by the lawyers who acted for her at the date of the disqualification application.
The delay in this matter has to be seen in the context of the fact that the final phase of this hearing is scheduled for determination commencing in less than one week from the date the disqualification application was made.
It is in the child’s interests to attempt to bring these proceedings to a conclusion, one way or another, for him as soon as possible. Time has been allocated for the hearing of the final phase of the matter.
There would inevitably be a displacement of other matters set down and/or awaiting trial if a new judge needed to be found to hear the parenting issues between the parties. I take into account the effects of the delay on the child and his parents. I am also mindful of the effect on the court and other litigants (see Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 and more generally AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175).
Counsel for the Independent Children's Lawyer made the point that it is the mother’s case that the child has currently been placed by the court in a dangerous and totally inappropriate situation by being with his father, on an interim basis. A successful application for disqualification will mean that pursuant to the existing interim order, that situation will continue for a period of time that would be required for an alternate judge to reschedule the hearing of the case. There will also be the question as to what extent a new trial judge will be bound by findings that I have already made in the proceedings that have already taken 7 days. Comments made in J and B (Full Court Finn, Holden and Warnick JJ; 30.11.05) need to be read in the context of that being a matter which was decided before the introduction of Division 12A Part VII FLA. In Hartnett & Sampson [2009] 40 Fam LR 632 the Full Court found a new trial judge may only adopt findings of the original trial judge with the consent of the parties. However, as Warnick J notes this case was not a case to which Division 12A applied and consequently the provisions of s 69ZX(3) FLA were not argued in that case. There is much authority for avoiding the use of issue estoppel when cases are concerning the child’s best interest. This approach is explained in Schorel v Schorel (1990) FLC 92-144 at [77,996]:
“issue estoppel … has a much more limited application in matrimonial causes, and more especially in litigation which involves the welfare of children. That approach is based upon the view that the duty of courts in family law has a wider and more public element and imposes a greater responsibility to elicit the actual facts, but more particularly it is based on the obligation of such courts to have regard to the welfare and protection of children within its jurisdiction.
If there was substantial delay in the final hearing, my disqualification would not, on the mother’s case, be in the best interests of the child.
I find, in the circumstances of this case, the delay by the mother in bringing the application for disqualification means she has waived her right to have the disqualification order she seeks.
The mother’s behaviour
Whilst counsel for the mother did not include it in his final submissions, he did raise at a preliminary stage the mother’s behaviour in my court room when discussing the application for disqualification. He indicated (I inferred on his instructions) that the mother had lost confidence in me, particularly because I had observed her on previous occasions losing control in a court room. It is true that on 11 May and 30 April the mother on a total of three occasions became hysterical and I commented in my judgment of 11 May 2010 that I had not, in my long experience in family law, heard a person react in such an inconsolable way. I had to adjourn the court on those three occasions. It is often the case that parties react and behave in a court room in a way that might be perceived to be unfavourable to the case that they are attempting to present. Ordinarily such behaviour cannot be the basis of grounding any application for disqualification. To do so would encourage parties to act inappropriately in court in the hope that they might create a circumstance which would lead to a judicial officer, whom they perceive to be unfavourable to them, disqualifying herself or himself. It might be in some exceptional circumstances that the reaction by a judicial officer to such behaviour might give rise to the basis for a successful disqualification application but there is no assertion by counsel for the mother that I acted other than in an appropriate manner in response to the mother’s hysterical reaction.
Decision in an opposite direction
I am mindful that the decision I have reached is different from the decision reached by Moore J in Hartnett & Sampson (2008) FamCA 75. The circumstances of that case are distinguishable from the current circumstances. In that case Her Honour had concluded a lengthy trial and had made final orders. The mother successfully appealed to the Full Court in respect of those orders. The matter was remitted specifically to Her Honour after the Full Court had set aside the parenting orders Her Honour had made “to allow a fresh consideration of all issues, including any arising from the period since trial”. The Full Court clearly envisaged that Her Honour would revisit earlier findings that she had made and that all issues could be re-agitated by the mother. Her Honour disqualified herself, finding that a fair-minded observer would entertain a reasonable apprehension that she would decide issues of fact on the basis of the material she had previously considered and consistently with findings she had already made. That is not the situation in this case where, pursuant to Division 12A, there have been findings of fact and determinations of certain matters arising in the proceedings without the proceedings being concluded. I do not need to, nor is it my intention, to revisit evidence related to those findings. Also the provisions of s 69ZR(3) FLA were not discussed in Hartnett & Sampson (2008) (almost certainly because that case was not a case to which Division 12A Part VII FLA applied; see paragraph 41 of the judgment of the Full Court in a subsequent decision in Hartnett & Sampson [2009] FamCAFC 1).
CONCLUSION
I dismiss the oral application that I disqualify myself. The final stage of the trial will proceed.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts
Associate:
Date: 6.7.2010
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