Ana and Ana (No 2)

[2013] FamCA 840

FAMILY COURT OF AUSTRALIA

ANA & ANA (NO 2) [2013] FamCA 840

FAMILY LAW – application to disqualify

APPLICANT: Ms Ana

RESPONDENT: Mr Ana

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr Sayer

FILE NUMBER: MLC 1367 of 2008

DATE DELIVERED: Wednesday, 21 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 21 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Freckleton SC

SOLICITOR FOR THE APPLICANT: Perisic & Thomas

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER TJ Mulvany & Co

Orders

1. Leave is granted to the husband to make an oral application that I disqualify myself from any further involvement in this proceeding.

2. The oral application of the husband be and is hereby dismissed.

3. My reasons for decision be transcribed and when settled be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ana & Ana (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1367 of 2008

Ms Ana

Applicant

And

Mr Ana

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX-TEMPORE

1. Today is the first day of the final hearing of first child-related matters involving E, who is seven years old, and then enforcement proceedings in relation to financial matters which I am told require determination but at which I have not yet looked.  There was some preliminary issues this morning, the most notable of which is one upon which I now rule and that is the husband’s oral application that I recuse myself from further dealing with this matter today and, I assume, in to the future.  That is, that I disqualify myself. 

2. As I have indicated to the husband, I consider that the relevant test is as set out in the judgment of the High Court in the matter of Johnson & Johnson No 3 [2000] FLC 93-041; [2000] HCA 48 at paragraphs 11 to 13. I will now, however, read out part of it so that the husband can follow it because I note that he does not have the authority before him. I take it that Dr Freckleton and counsel for the Independent Children’s Lawyer are otherwise familiar with the test:

   …It has been established by a series of decision of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial or unprejudiced mind to the resolution of the question the judge is required to decide. 

   That test has been adopted, in preference to a differently expressed test which has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done.  It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.” The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation of service require [the judge] to discard the irrelevant, the immaterial and the prejudicial.”

   Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.  The rules and conventions governing such practice are not frozen in time.  They develop to take account of the exigencies of modern litigation… (footnotes omitted)

3. I will deal with the submissions of the husband in the balance of these reasons, however, I have read out the extract which will appear in these reasons so that it may be heard by the husband because, ultimately, I am not satisfied that he has made out a case that I ought to disqualify myself.  I won’t disqualify myself.  I will proceed to hear the case and I want him to have understood now, by reference to the passage that I have read out, why I did not disqualify myself. 

4. Turning to the husband’s complaints or submissions in support of why an objective observer would not consider that I would bring an impartial mind to the determination of the parenting matters and then any incidental financial matters. The husband commenced his submissions by saying that he had “slept here last night” which I took to mean a reference to sleeping within the precincts of the outside of the Court.  He said that he sat on the concrete blocks outside the doors of the Court until about 7.30 pm.  He went for walks occasionally around the block.  At about 7.30 pm he spoke to police officers for about 35 minutes when they asked him his name and address and then, after about 8.00 pm, he walked around the city, finally resting for the evening and sleeping under Flinders Street Bridge where he said he had a number of conversations with people who were as disenchanted with the Family Court as is he. 

5. He said that it was his intention to bring the media “into it” and that he, from 12 noon yesterday, 20 August 2013, he had commenced a hunger strike and would not eat until after the federal election.  “If I survive that then I will bring you all to account.”  These statements led into a complaint by the husband that I would not bring an impartial mind to the determination of his case because I was “bullied by Cronin J”. The Honourable Justice Cronin is another judge who sits in this Registry of the Court.

6. The husband has, on the numerous occasions this matter has been before me, referred to Cronin J.  I have made reference to the pejorative way in which the husband has, at various times, attempted to refer to his Honour. I have done my best to control his intemperate language and references and to concentrate on what he has perceived to be an injustice or a shortcoming in the judicial system.  The husband says he has become aware that Cronin J is a case management judge and, in some way that the husband did not specify, he asserts that that gives Cronin J some influence on the outcome.  I do not accept that that is the case. 

7. In railing against the rest of the Family Court, with one exception, the husband pointed out that he had written to the Deputy Chief Justice complaining about Cronin J, that he initially received an acknowledgement of the complaint and a letter indicating that the complaint would be answered within four weeks. The Deputy Chief Justice did not respond for another nine months, according to the husband, which leads him, he says, to a complete dissatisfaction with the performance of the Deputy Chief Justice in the administration of the Court and the handling of complaints.  In fact, there really isn’t a judicial officer in the Family Court who escapes Mr Ana’s criticism with the exception of Bell J.  In my reasons for decision delivered on 2 April 2013 with case-neutral citation [2013] Fam CA713 I discussed the proceedings before Bell J, in particular, at paragraphs 36 and 37, there demonstrating that Mr Ana’s recollection of part of the hearing before Bell J did not accord with the transcript of those proceedings.

8. The gravamen of the husband’s dissatisfaction with the Court but satisfaction with Bell J is that the husband perceives that Bell J was sent back to Queensland for being critical about Melbourne practices and practices within the Melbourne registry.  I do not accept that allegation has the slightest foundation in fact.   The husband described me as being stuck “between a rock and a hard place” of “having to uphold Cronin J’s incompetence” but saying that “I truly believe you do want the best for [E].”  I do not mean to be obscure but the husband’s submissions were really no more than rambling comments and I have taken from them what I consider to be the most pertinent phrases, sentences and submissions.

9. The husband’s position is that he says that the Family Court of Australia has no jurisdiction to hear his matter at all, that it should always have remained in the Federal Circuit Court (previously the Federal Magistrates Court). 

RECORDED : NOT TRANSCRIBED

1. Given the husband’s reference to having slept at the Court overnight (as modified) I called the Regional Registry Manager into Court.  Mr EE confirmed that yesterday afternoon the husband had said to Mr FF, a managing senior family consultant, that he proposed to camp out at the Court overnight and to commence a hunger strike and bring the matter to the attention of the media.  Mr EE said that at no time had Mr Ana been violent or menacing, that his security reports indicated that Mr Ana did not spend the night outside the Court, which also accords with what Mr Ana says. A report of security guards of the Court’s perimeter at 7 am this morning indicated that Mr Ana was not amongst those present. 

2. The submissions which I have attempted to summarise do, in my view, not come anywhere close to making out a case that I won’t bring an impartial mind to the determination of this case and I propose to commence the hearing of it now.  That said, I note that Mr Ana has said that he sometimes loses track of what he is saying.  That is not actually an uncommon experience in this Court but he says that it is because he has not eaten since 12 noon yesterday and predicts, probably accurately, that he will be worse tomorrow. That’s clearly a matter for Mr Ana.  Him having not eaten since 12 noon yesterday is a matter for which he must take responsibility.  I will, however, ask Mr Ana whether he wants me to adjourn the matter for half an hour so he can have something to eat.  I don’t need him to, no one needs to him to eat.  He is not required to eat, I will merely give him the opportunity to eat.  Whether he does so is a matter entirely for him. 

3. The proceedings were before me the day before yesterday and the determination which I was then required to make was whether this final hearing ought to be adjourned to permit E to undertake some therapy with a Mr F, who is a psychologist. I determined that issue in the negative on the basis that E won’t be going back to see Mr F at all.  There was also an issue raised by the husband that he wasn’t “mentally prepared” to conduct a hearing on his own behalf.  I pointed out at the time that there was no medical evidence to that effect.  I note that whilst Mr F had been in Court the husband did not ask him whether, in his opinion, he was capable of conducting his own hearing, notwithstanding that Mr F has, we now know, seen the husband on four or five occasions for psychological treatment. 

4. The reason that I raise Monday’s hearing in the context of this disqualification application and my rejection of it is that I made it abundantly clear to the parties that, in the event that I did not grant the adjournment, they must be ready to proceed with the final hearing, which was to start, as it happens, today. There was more than one reference to the fact that, whilst Mr Ana or the Independent Children’s Lawyer – both of whom sought an adjournment to permit E to continue therapy with Mr F – if they could not satisfy me that an adjournment ought to be granted, they could not obtain an adjournment by saying that they were otherwise not ready to proceed.  That’s the same consideration as pertains to the hunger strike and the sleeping outside Court or sleeping under the Flinders Street Bridge.  If the husband has brought those matters on himself he has done so in the knowledge that there would be a final hearing today, which is the case.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 August 2013.

Associate: 

Date: