B and B

[2006] FMCAfam 564

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & B [2006] FMCAfam 564

FAMILY LAW – Disqualification for bias – apprehension of bias – prejudgement – comments made in context of adjournment application – matters to be considered.

Family Law Act 1975 – ss.69ZN

Johnson v Johnson (2000) 26 Fam LR 627
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Stevenson v Hughes (1993) FLC 92-363
Palejs v Palejs [2002] FMCAfam 315
Vakauta v Kelly (1989) 167 CLR 568
Landy & Landy (2005) FLC 93-245

Applicant: V A B

Respondent: C S B

File number: DNM84 of 2003

Judgment of: Brown FM

Hearing date: 27 September 2006

Delivered at: Darwin

Delivered on: 27 October 2006

REPRESENTATION

Counsel for the Applicant: Ms Orwin

Solicitors for the Applicant: Margaret Orwin Solicitor

Counsel for the Respondent: Ms Capar

Solicitors for the Respondent: Withnalls

ORDERS

1. The application filed on 19 September 2006 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNM84 of 2003

V A B

Applicant

And

C S B

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in these proceedings is V A B.  Ms B is the respondent to a contravention application brought by C S B on 16 June 2006.  The contravention proceedings relate to a number of orders of the Family Court, made by Warnick J, on 12 December 2003, which relate to the parties’ child S B born 12 October 1994.

2. By way of her application filed 19 September 2006, Ms B seeks the following orders:

   “1.That Federal Magistrate Brown disqualify himself from the hearing of the contravention application in this matter.

   2.That the contravention hearing being heard before another Federal Magistrate or Family Court Judge.”

3. Mr B has not filed a formal response to this application.  However, it is clear that he has no objection to me dealing with his contravention application, which has been listed for hearing on 4 December 2006, along with other proceedings which pertain to future parenting arrangements for S.  Accordingly, he seeks the dismissal of Ms B’s application filed 19 September 2006. 

4. Ms B takes exception to a number of comments made by me on 8 August, 2006, which she did not personally hear but which have presumably been relayed to her by her solicitor, Ms Orwin, who was present.  The reason that Ms B wishes me to disqualify myself is that she contends a reasonable and fair-minded lay person, having heard my comments on 8 August 2006, would apprehend that I had prejudged the issues raised in the contravention application, contrary to her interests.  Accordingly, on the basis that justice must not only be done but seen to be done, Ms B contends that considerations to do with public confidence in the administration of justice should dictate that I withdraw from any further involvement with the various matters concerning the parties.

5. The case involves questions to do with the inter-relation between what the High Court has described as “the exigencies of modern litigation”[1] to the situation of this case…