Anders & Damus (No 4)
[2024] FedCFamC2F 156
•8 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Anders & Damus (No 4) [2024] FedCFamC2F 156
File number(s): ADC 4751 of 2022 Judgment of: JUDGE BROWN Date of judgment: 8 February 2024 Catchwords: FAMILY LAW – Parenting – ex tempore reasons for an application made for recusal on the basis of apprehended bias and joinder of the parties’ current partners – where the application was filed at lunch time on the day of the resumption of part heard trial – where the test is well established by law – where the test is not satisfied – application dismissed Legislation: Family Law Act 1975 (Cth) Div 12A, Part VII, s 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 175
Judiciary Act 1903 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 3.08
Cases cited: Damjanovic v Maley [2002] NSWCA 230
Groundwater v Territory Insurance Office (2004) 183 FLR 437
Johnson v Johnson [2000] HCA 48
Laws v Australian Broadcasting Tribunal [1990] HCA 31
Woodside Energy Limited v Australian Workers Union [2022] FCA 1391
Division: Division 2 Family Law Number of paragraphs: 82 Date of hearing: 8 February 2024 Place: Adelaide Counsel for the Applicant: Mrs Read Solicitor for the Applicant: Phoenix Family Law Solicitor for the Respondent: Appeared in person Counsel for the Independent Children's Lawyer: Ms James Solicitor for the Independent Children's Lawyer: Legal Services Commission ORDERS
ADC 4751 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ANDERS
Applicant
AND: MS DAMUS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
8 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 7 February 2024 is hereby dismissed.
2.Costs reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREJUDGE BROWN:
The reasons for judgment in this matter were delivered orally following the interim hearing between the parties concerned. The reasons have been corrected to remove errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
Today, I have to deal with an application which is brought by Ms Damus which was filed yesterday lunchtime, I think, which was 7 February. Ms Damus seeks an order that I disqualify myself from any further hearing of the case involving her and her former wife Ms Anders on the basis of apprehended bias.
The case is part heard, with evidence being taken in November of last year with it being anticipated the case being concluded in February of this year.
In addition, Ms Damus seeks orders that her partner Ms H, and the applicant mother’s partner Ms K, be added as parties to these proceedings. At this stage, neither Ms K nor Ms H have made such an application in their own capacity. Ms K has already given evidence.
The parties to this case are Ms Damus and her co‑parent of the subject child in these proceedings, X, Ms Anders. In addition, there is a third party to the proceedings of equal importance, that is, the Independent Children's Lawyer currently represented by Ms James.
The proceedings are difficult and emotionally infused. I have a number of obligations under the Family Law Act in relation to what are termed child‑related proceedings. If the parties are interested, they can look at my obligations which are essentially contained in Division 12A of Part VII of the Family Law Act. Basically, I am directed to ensure that as far as possible the proceedings are centred on minimising the impact of the proceedings on the child concerned.
It is recognised that proceedings involving a child between those who love her are not helpful for the child concerned because, for obvious reasons, they encourage people to be very critical of one another and negative, and after a case is finished those parents have to pick up the pieces to some extent and soldier on as parents. So, court cases are destructive.
For that reason, people in my position are directed to actively direct, control and manage the proceedings, manage them, make sure they are fair, the time allocated in court is spent wisely, that unnecessary costs are not incurred, and to a certain extent so that people can get in and out of the process as quickly as possible. I am also directed to conduct proceedings with undue delay and with as little formality and legal technicality as is possible.
I have already written, I think, three judgments in respect of the proceedings and I will not go through the facts as I outlined them in those various judgments. There are many controversies in this case which began with a decision Ms Damus made to move to Melbourne with X. That led to Ms Anders bringing an application for the child to return to this state.
It is Ms Damus’ position, indeed it has been her position throughout, that during the parties’ relationship, which was a relatively long one, she was subject to all sorts of coercive, controlling behaviour from Ms Anders to her. I have heard evidence from Ms Anders in this regard but not, as yet, from Ms Damus.
Ms Anders denies that she has inflicted any such behaviour on Ms Damus. She has been subject to cross‑examination in this regard, and in fact it is her case that it was she who was subject to coercive control during the relationship from Ms Damus.
Anyway, I say that just to indicate some of the controversy arising in the matter. There are also powerful emotional issues to do in relation to the case which I suspect relate to the circumstances of the child’s conception and birth. I will say no more about them at this stage.
There are also issues to do with Ms Anders’ health, which has been subject to challenge for a significant period of time, and as I indicated in the most recent judgment, she was seriously ill in the latter part of last year after evidence had been concluded in the trial had concluded, leading to another interim hearing shortly prior to Christmas. So, this is a case that is full of controversy.
Because of the issues to do with family violence, each of the parties has received funding pursuant to the Commonwealth Scheme which funds witnesses when there have been notices of bans made in respect of cross‑examining pursuant to section 102NA of the Act.
Such a notice of ban was made in this case by a Senior Judicial Registrar. I did not make the order. I would have had some reservations about making it. I have said that publicly in court in the presence of the parties. It is a discretionary matter, as I have already explained, because there is not a final family violence order in the case, there is not an injunction for the personal protection of either of the parties and there are no convictions, but, you know, it is obviously much easier if parties are represented in these difficult cases, and as a consequence of the order Ms Damus was legally represented at the trial by a solicitor and counsel. That representation occurred at a late stage of the proceedings, from recollection.
Prior to that time, Ms Damus had elected from time to time to appear on her own behalf. As I recall, she had a solicitor when she was living in Melbourne with the child X, but she has represented herself, but it has long been her position that she would want to be assisted by the lay representation of her partner Ms H.
That is a difficult issue. The starting point for such applications must be the law itself, and in this regard it is necessary to allude to section 175 of the Federal Circuit and Family Court of Australia Act 2021. Section 175 of the Act provides as follows:
A party to a proceeding before the Federal Circuit and Family Court of Australia (Division 2) [that is this division] is not entitled to be represented by another person unless:
(a)under the Judiciary Act 1903, the other person is entitled to practice as a barrister and solicitor, or both, in a federal court; or
(b)under the regulations, the other person is taken to be an authorised representative; or
(c)another law of the Commonwealth authorises the other person to represent the party.
As I take it, it is not asserted that Ms H is a barrister or solicitor or has signed the Commonwealth role of counsel as provided by the Judiciary Act. That necessarily engages the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, and in particular rule 3.08:
A person who is entitled to be heard in a proceeding may conduct the proceedings on the person’s own behalf or be represented by a lawyer.
So, Ms Damus is entitled to appear on her behalf or to be represented by a lawyer, and until recently she was represented by a lawyer. She is not entitled to be represented by Ms H.
However, I am satisfied, and indeed I pointed out in a case called Groundwater v Territory Insurance Office (2004) 183 FLR 437, the Court has a discretion to conduct proceedings in the manner that it considers will be conducive to the administration of justice, and it is, I think, clear under the rules that I have a discretion not to apply the rules, and in general terms it is open to me to give permission for a lay person to represent a person, but only in special circumstances.
So, the issue is, do the special circumstances in this case justify Ms H, who is not legally qualified, taking over the running of this case. And I can indicate that such an application has been made in the past. Indeed, Ms Anders has applied for Ms H to be her next friend on the basis of some alleged incapacity. As I have explained in the past a next friend is not the same as a lay representative.
These were issues I considered in Groundwater v TIO, and in particular I made reference to a case which is called Damjanovic v Maley [2002] NSWCA 230, which was a decision of the New South Wales Court of Appeal, and some guidance was provided in Damjanovic as to when it is appropriate to let an unqualified lay person appear to argue a case.
The first consideration is the complexity of the case. If it is a straightforward matter, the court is more open to a person appearing who is not qualified to assist. I do not think this is a straightforward matter. It is a highly complicated matter. It is emotionally charged. And in this case, Ms H is emotionally involved in the case because she is Ms Damus’ partner.
The second matter I have to consider are the genuine difficulties of an unrepresented person. The obvious difficulties are language, if somebody does not speak English, or in some cases there is sometimes a degree of urgency and the lawyer concerned does not appear. That is not the case here.
What are Ms Damus’ genuine difficulties. I have read some medical material that indicates that she has been diagnosed with a number of behavioural personality issues in the past, and I am not critical of her for that, but the fundamental issue in the case, I think, is that Ms Damus did have legal representation. I mean, I have been told that she is not eligible for legal aid. That may be so, but she got legal aid through the Commonwealth Scheme.
I have not been told in any comprehensive way about why those solicitors have withdrawn. What I do know, and it is conjecture on my part, I concede, is that there had been significant delays in this case last year.
As I have indicated earlier, when the trial was listed for three days, on Day 1 the parties were open to seeing if they could find a negotiated outcome. I was happy for that to occur because obviously it is beneficial and it would be in X’s best interests if the parties could reach some agreement. They did not do so. Then the trial proceeded, and Ms Anders was represented by competent counsel. Her case had been properly and professionally prepared.
It is a case about family violence, and essentially the case was run on the basis that many of the allegations that Ms Damus had made about family violence were refuted by the contextual text message exchange between the parties, and lots of text messages were tendered.
Perhaps it is a sign of my age, but I am often concerned about cases involving text messages because they are words on a metaphorical piece of paper, the screen of a telephone, which is printed off. People send text messages, not mobile phones, and it is what people do and say and physically do that is important. Anyway, the text messages were tendered.
Then, there was some delay because Ms Damus, I am told, wanted to compile her own tender book of her own text messages. In this day and age, everybody knows that people send many, many text messages to many, many people every day of the week, and I might have commented that this was a case that was not going to be determined by text message. Perhaps that was an improper thing for me to say, perhaps that was unduly jocular; I do not know. Perhaps that was me attempting to case manage the proceedings to indicate something.
Anyway, a whole day was lost over that, and as I recall, at some stage after that, for reasons about which I have not been provided, Ms Damus and her legal representatives parted ways. That was last year. That was two months ago. So, that is one of the contexts I have to think about Ms Damus’ wish to be fairly actively assisted by Ms H.
To a certain extent, it would seem to me that Ms Damus is the author of her own situation so far as legal representation is concerned. I am told there is correspondence. I am not an inquiry, and to a certain extent it is Ms Damus’ responsibility to decide how she is going to approach this case.
I have to ensure that the proceedings are fairly conducted, but I cannot, to a certain extent, protect Ms Damus from the difficulties that are implicit in the system. The system of provision of legal aid is complex, it is bureaucratic, it is time consuming. So, are court cases. They are difficult and time consuming. They take a lot of documents. That is why people have lawyers because lawyers know how to do things, and in this case Ms Damus did have legal representation. For reasons I do not know about, she ceased to have representation. She has had time to get other legal representation and she has not done so.
In that context, I have to think not only about her and her situation, I have to think about Ms Anders who has always done the right thing so far as her legal representations are concerned, who has not wasted time, who has promptly prepared her case and is ready to go. She is entitled to have her case determined, not to have Ms Damus set the timetable and the timeframe for it. There has to be a balance. The proceedings have to be fair, but they cannot be unfair to one person because of quite possibly the machinations of another.
That brings me to the fourth matter I have to consider as to whether Ms H should be appointed as a lay representative. Barristers and solicitors who appear in this Court are subject to a code of professional conduct. If they misbehave or if they abuse processes, they can be disciplined by their professional associations. They are under a number of obligations. They must speak candidly when asked questions by the Court. They cannot knowingly mislead the Court and if they do there are serious consequences. They can be struck off. In effect, they lose their livelihood.
Ms H is not subject to such controls. I am concerned that she is gravely emotionally enmeshed in these proceedings; how could she not be. I have observed her. She is here with Ms Damus. I have got no reason to think anything other than the two love one another very much. They are gravely interested in the outcome of these proceedings. And in that context, and I mean no disrespect, I am concerned that Ms H may not speak always candidly to me, and there is a risk that she may either knowingly or unknowingly mislead me, leading to perhaps a wrong result.
More significantly, this is a complicated case. Ms Damus and Ms H – and I am not sure precisely who of them have prepared the affidavit and the application – are clearly intelligent people and have sought out legal authority to support their contentions. They are entitled to do so. There is nothing private about the law. Cases are published. People can read them.
However, the interpretation of cases, the interpretation of statutes is a matter of training and expertise. A lay person, no matter how qualified, is not trained in the law, and as I will come to the application for recusal, I am gravely concerned that whoever has prepared the application, whether it is Ms Damus, Ms H or indeed somebody else, just does not understand in any lucid way or any useful way – I mean no disrespect – the principles that have to be applied. So, for those reasons, I think that letting Ms H become a lay adviser is just a recipe for disaster.
Ms Anders is legally represented. I have to deal with Ms Damus as best I can. She is entitled to appear in her case; it is her case. The fact that she may – and again, I mean no disrespect – lack objectivity, I would expect she lacks objectivity. This is the most personal kind of case you can think of, but I have to deal with her as best that I can.
If I accede to her request to have Ms H, for obvious public policy reasons in family law matters which are invariably controversial and emotionally replete, everybody who is represented would say, “I want a lay advocate.” That way leads to dysfunction, with the greatest of respect.
I come to the recusal application. The test is an objective one, not a subjective one. Ms Damus, and indeed Ms H, may think I am capricious, bullying, old, out of touch with social mores currently; I do not know. Clearly, Ms Damus does not approve of decisions that I made earlier in the case. Most significantly, she does not agree that X should be returned to this state where she has lived all of her life in the care of each of her parents until the issues were determined. She is entitled to her view.
My responsibility was to adjudicate the decision, which I did, and indeed I adjudicated it twice because, as I recall, Ms Damus did not accept the first ex tempore decision and it was done again in writing.
So, the test of whether I am biased or I have predetermined the issue is not one for Ms Damus to make; it is for a lay person who is present throughout the proceedings, who hears and sees everything, who has read all the material, who has some knowledge of the process.
It was recently, and if I may respectfully say, eloquently expressed by Katzmann J of the Federal Court in Woodside Energy Limited v Australian Workers Union [2022] FCA 1391, and at paragraph 48 her Honour said as follows:
The test for a reasonable apprehension of bias is whether a fair‑minded lay observer might reasonably apprehend that the decision‑maker might not have brought an impartial and unprejudiced mind to the resolution of the question to be decided. The question is to be answered having regard to the legal, statutory and factual contexts in which the decision is made. The hypothetical observer is taken to know the nature of the decision, the context in which it was made and the circumstances leading to it. A two‑step process is involved. The process requires the identification of what is said might lead the decision‑maker to decide the case other than on its merits. The second requires the articulation of the logical connection between the suggested reason and the feared deviation from that course.
A finding of apprehended bias is not to be reached lightly. To the contrary, it must be firmly established. There must be strong grounds for inferring the existence of a reasonable suspicion.
In this case, Ms Damus has not got a transcript of all of the proceedings and I have already declined to adjourn the proceedings so she can get a transcript, and I do not propose to order a transcript of my own volition for two reasons.
Firstly, that will delay the proceedings and these proceedings have been delayed significantly already. In this context, I should point out that the case was listed to resume at 10 o’clock yesterday. Ms Anders did not appear at Court at 10 o’clock. She sent an email to my associate saying that she would be delayed for an hour or so. She did not give a reason why. She apologised. I was grateful that she apologised.
She in fact was delayed by two hours. The reason that I have been given was that her car broke down. Cars do break down; I accept that. But Ms Damus and Ms H live in an inner suburb. Yesterday, Ms Damus conceded it is about four kilometres from where we are. She did not get a taxi. She did not walk here. She was late.
This is not an inquiry, but the application for recusal was filed over the lunch break after she arrived, I think. Certainly, it bears the date 2.13 pm on 7 February. And it is a fairly lengthy document. When was it prepared, I do not know, but it was filed at lunchtime. Is there a connection between the delay and the filing of the document, can an inference be drawn; I do not know. Possibly it could be.
But that comes to the conduct of these proceedings. They are not meant to be an ambush. As far as possible I am to ensure that they are conducted in a sensible and civilised way and they are child‑focused, not on the disputes between the parties themselves necessarily, but what is best for the child concerned.
I asked Ms Damus - clearly she has been aggrieved about all manner of decisions that I have made and she is entitled to aggrieved - of course she is. It is impossible for me to make decisions for the majority of cases I hear that satisfy each of the parties concerned. I have to exercise a discretion between competing applications which are vigorously contested very often – I asked her why the application was so long in coming and I was told that she had had an emergency in her home. She may have had an emergency in her home, but these issues have been outstanding, I would suspect, since Ms Damus and her legal advisers parted company; I do not know.
Anyway, these proceedings, as I say again, are deadly serious. They are not a capricious contest. They are meant to be child‑focused, and there is an obligation as far as possible that we all are courteous to one another. Others must judge whether I have been courteous to people. But they have been bruising emotionally for all concerned, myself included.
So, that brings me to the application which is filed late. Getting a transcript, as I say, will quite possibly mean that the hearing is delayed for three or four months. Why should Ms Anders be prejudiced, when, if Ms Damus was so aggrieved, she could have filed her application sooner, weeks before. She could have got a transcript, if she wanted it, weeks before. She is not entitled to mount a moveable feast of objections to quite possibly – and I will use the word again – capriciously manipulate them. The case needs to be progressed.
There are basically seven grounds on which I am sought to recuse myself. Although, as I say, the person who has prepared the application clearly has tried to support the allegations with legal research, it is not always easy to discern what is meant.
For that reason – and I can say Ms H is sitting with Ms Damus at the bar table and during the hearing the two were engaged in rigorous sotto voce communication with one another throughout. I gave Ms H leave to sit at the bar table. As I said, in some states of the Commonwealth, the convention is that solicitors sit behind their lawyers. There is no rule that solicitors, when they are briefing counsel, sit at the bar table.
The role of a McKenzie Friend is not to intrude on the proceedings, rather it is to take notes, marshal documents and write suggestions for questions. It is a convention that goes back to criminal trials where people were frequently unrepresented and the stakes of guilt or innocence were high, quite often leading to possible imprisonment.
Anyway, Ms H is sitting there and I determined that I would take the submissions. I would let Mrs Read, counsel for Ms Anders, say what she wanted to, then Ms James, the Independent Children’s Lawyer, to say whatever she wanted to do, and then Ms Damus to respond. Ms Damus has chosen not to respond. She reiterated her application to get a transcript. I declined to do so. I have given more reasons as to why I am not getting a transcript. So, I will deal with the grounds.
The first ground is minimisation of evidence of family violence in judgment dated 7 November 2022. That can be easily dealt with. I made a decision; Ms Damus disagrees with it. If she wishes, she can appeal that decision. She has chosen not to do so. I do not think that ground can be taken any further. A reasonable lay observer could not possibly think that that was evidence that I had pre‑judged the matter, necessarily decided what the outcome would be on a final basis. The proceedings were listed for final hearing. Anyway, I can take that matter no further.
The next issue is comments about manipulating the court. The complaint, as best I can, is that by listing a matter in the lead up to Christmas in 2022, which is over a year ago, filed by Ms Anders, I was in some way pre‑judging the final issue of the matter. I do not understand that very clearly, but I think that the gravamen of the complaint is that because the practice direction regarding the listing of applications in the lead up to Christmas was not accorded to, that was in some way unfair. The case was adjourned. There is some complaint that I did not allow Ms Damus to spend time with X. If that is the case, it was soon remedied.
Then, it is said that I was disrespectful to Ms Damus. What that disrespect was, Ms Damus cannot recall now because she wants to get a transcript to ascertain what it was, but she remembers the grievance. With the greatest of respect, there is a circularity of logic that I frankly do not understand.
The next complaint is that I changed some order. I cannot recall that in any great detail, other than I apparently corrected an error said to have arisen in an order, which I apologised for. Ms Damus said there was no error. Whether she is right or wrong, I do not know, but in my view her remedy is to appeal.
The next complaint is that I made comments about section 102NA and said that it is a back door to legal aid, the complaint being that “back door” is some sort of pejorative expression, that I suppose things that come through the front door are better than things that come through the back door.
Anyway, would a reasonable lay person think that because I said something about how the parties were funding the proceedings that I would not bring a fair mind to it, that I had made up my mind that one party was going to win and one party was going to lose without hearing any evidence. That is an extraordinarily serious, serious assertion to make. It has to be made on strong grounds. And I appreciate that no doubt Ms Damus will say it is self‑serving, but, by way of training, I am qualified as a legal practitioner and I took an oath to discharge my judicial responsibilities appropriately, so it is a significant thing to say that I am biased.
I am also required to actively case manage cases, and in this regard I bear in mind what was said by the High Court in Johnson v Johnson [2000] HCA 48 at [13]. The Court said judges are no longer required to be sphinx‑like or inscrutable when they are on the bench. It is useful to have discussions, and even for judges to express tentative opinions as to where cases are going. That is particularly so in children’s matters, given the corrosive consequences that family law cases have for children.
In Laws v Australian Broadcasting Tribunal [1990] HCA 31, the High Court said a reasonable bystander does not entertain a reasonable decision‑maker will bring an unfair or prejudiced mind to an inquiry merely because a conclusion has been formed about some matter that is subject to the inquiry, and it is often useful for judges to express opinions.
In any event, Ms Damus was represented during the proceedings. She is no longer represented; I do not know why. She has had time to get other representation. It is not up to me to appoint some representative for her.
The fifth ground is that a different standard applied to each party regarding their credibility about their health, and that arises in the context of interim decisions that were made in the lead up to the Christmas period. I am criticised when I said that a person who knows their illness best is that person. I am not sure how a lay person would think that was a biased comment. It is an issue before me. It is Ms Damus’ case – and there is no delicate way for me to put this – that Ms Anders is terminally ill and therefore there should be an immediate change to X’s care arrangements.
In that context, Ms Damus elected to prepare an affidavit to which she annexed all sorts of material that she had got from the internet about her illness and so on and so forth. She is not medically qualified. Ms H is not medically qualified. I am not saying that Ms Anders is diagnosing herself. She takes medical advice, and she has provided a great deal of medical evidence regarding her condition, which she has been opened to the scrutiny of Ms Damus.
I do not understand the ground. I think it is ludicrous and nonsensical. I do not think a lay person would think anything other than that Ms Damus disagrees with the decision I made prior to Christmas. So be it. Again, she can appeal.
Example 6, not being aware of key evidence being submitted four months prior. I said that I was not aware that a treating psychiatrist report had been filed and that I refused to vacate a trial. Again, it is a difficult ground to follow, but I take it that it is said that there is some procedural irregularity because a trial was not adjourned because I was not aware that a report was available. I do not understand the ground. There are frequent controversies about adjourning or not adjourning trials, about whether they are ready to proceed or whether they are not ready to proceed. Again, that is an issue, in my view, which is subject to appeal.
Example 7 relates to an incident to which I have alluded. During the course of the hearing, I addressed some comments, as I recall, to the parties about X and about the proceedings in general. As I recall, I was trying to be child‑focused, encouraging the parties to resolve. I was speaking to the parties’ then counsel, as I recall, and there is no video tape of what occurred. Ms Damus was engrossed in looking at her mobile phone. She says she was “writing notes on my notepad that were relevant”. That may be so.
She says with a raised voice I said, “This is your case. Would you do me the courtesy of listening.” Would a lay person, having observed that interaction, think I pre‑judged the issue in favour of Ms Anders, that I was biased because I took umbrage when I was speaking that somebody was looking at their mobile phone; I think not. I think a person would think it was part of the rough and tumble of court life.
The final example, I think, is that I would not let Ms H sit beside Ms Damus during the interim hearing, that Ms Damus had ostensibly prepared about Ms Anders’ illness. I have let Ms H sit beside Ms Damus in the past. I have attempted to explain what McKenzie Friends do or do not do. I am sorry if it was an oversight. Nobody asked me to rectify it. Again, if Ms Damus says she could not put a submission, she can appeal the decision.
So, for all those reasons, I am of the view that the application for recusal is not made out.
The final issue I have to deal with is the application to join Ms K and Ms H as parties to the proceedings. That is an issue which is to be determined by reference to the Court’s rules to which I have already made reference, and in particular rule 3.01. Pursuant to that order:
A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the Court to determine all issues in dispute of the proceedings must be included as a party to the proceedings.
Necessary parties to applications for parenting orders are:
(a)the parents of the child;
(b)any person in whose favour a parenting order is currently in force in relation to the child;
(c)any other person with whom the child lives and who is responsible for the care, welfare and development of the child;
(d)If a state child order is currently in place in relation to the child, the prescribed child welfare authority.
X’s parents are the parties. There is no other person who has a parenting order in his or her person. Thankfully, the state child protection authorities are not involved.
So, it comes down to, is Ms H, and indeed Ms K, “any other person with whom the child lives and who is responsible for the care, welfare and development of the child”. Well, the child does live to a certain extent with Ms K and does, from time to time, live with Ms H, but that is not what is intended.
It is in terms of parental responsibility in my view. Ms H is interested in the proceeding. So is Ms K - she has given evidence. Ms H can give an affidavit. Why would she want to seek any orders to be made in her favour. She is supportive of the position adopted by Ms Damus..
In all those circumstances, I am concerned that the joining of Ms H as a party is a device so that Ms H can become a self‑represented party who can take up the running of the case as in effect a stalking horse for Ms Damus. I am gravely concerned that that would represent an abuse of process.
There is nothing to indicate that Ms H and Ms Damus have different views or different perspectives. It is, as I say, I am concerned, a device to get around previous rulings I have made with which Ms Damus disagrees. I know Ms Damus disagrees with many things. She is entitled to, but that does not necessitate that I should not ensure that the proceedings are properly managed and they are fairly conducted.
And it comes, I fear, to the other matters I alluded to when I considered the issues to do with Ms H’s lay representation. I have to be very careful that these proceedings are not, in effect, derailed or hijacked by some ulterior agenda.
So, for all of those reasons, the application in a proceeding that was filed yesterday is dismissed. I will just reserve the issue of costs for this application to the conclusion of the trial. Such an application has been made.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Brown. Associate:
Dated: 19 February 2024
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