Bain & Stewart

[2008] FamCA 2

FAMILY COURT OF AUSTRALIA

BAIN & STEWART [2008] FamCA 2

FAMILY LAW – PROCEDURAL – DISQUALIFICATION – Application by Mother to set aside orders following a bitterly contested hearing in January 2007 in which strong findings were made of her lack of credibility and child alienation – Cross application by Father for summary dismissal – Retirement of trial Judge given the findings made at trial – Matter to be re-listed with priority.

Family Law Rules 2004 (Cth) (as amended)
Family Law Act 1975 (Cth) (as amended)

Rice v Asplund (1979) FLC 90-725
King v Finneran (2001) FLC 93-079
Jones v Dunkel (1959) 101 CLR 298
Re Watson; ex parte Armstrong (1976) 136 CLR 348 at 262
Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293
Johnson v Johnson (2000) 201 CLR 488
Re JRL; ex parte CJL (1986) 161 CLR 342 at 351

APPLICANT: Mr Bain

RESPONDENT: Ms Stewart

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 766 of 2005

DATE DELIVERED: 3 January 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 3 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Werner

SOLICITOR FOR THE APPLICANT: Rigoli & Associates

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Halliday & Associates

Orders

1. That all extant applications be adjourned for listing by the Honourable Justice Cronin as a matter of priority not earlier than 5 February 2008.

2. That each of the parties do file and serve detailed written submissions not less than four days prior to the date fixed for determination of the competing applications.

3. That the costs of all parties of this day be reserved.

4. That the ex tempore Judgment be transcribed and placed on the Court file.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Bain & Stewart.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 766 of 2005

Mr Bain

Applicant

And

Ms Stewart

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List following an order made by Senior Registrar FitzGibbon on 27 November 2007. I am familiar with its background having been the trial Judge in the substantive proceedings and in which I delivered a lengthy judgment on 25 January 2007 (reported in [2007] FamCA 337) and since which date there have been continued proceedings between the parties.

2. Mr Werner, who appears for the applicant father, has, helpfully outlined to me that there were some cosmetic issues concerning the orders I previously made in the substantive hearing.  Otherwise, the matter for my consideration arose from an Application brought by the mother to establish, in essence, a whole new regime of orders and that the orders that I made following a lengthy contested hearing spanning several days be set aside.  The hurdle that the mother has to face are the legal restrictions laid down in such decisions as Rice v Asplund (1979) FLC 90-725 and King v Finneran (2001) FLC 93-079 and it appears to me, on the face of what I have heard thus far, that it is an extremely difficult road to hoe for her in the circumstances.

3. Furthermore, the substantive application now brought by the father is to seek a summary dismissal of the mother's cross‑application relying upon rule 10.12 of the Family Law Rules 2004 (as amended). The application of the father is powerfully, if I may put it that way, supported by Mr Smith as counsel for the Independent Children's Lawyer.

4. Mr Smith again, as is usual with his professional approach, helpfully outlined to me some pertinent matters, including, firstly, the direct instructions of the Independent Children's Lawyer, who supports the application for summary dismissal.  He outlined to me the relevant paragraphs of the court orders made by Senior Registrar FitzGibbon on 27 November 2007 and advised that arrangements had been made for psychiatric assessment of the parties by Dr J.  An appointment was made "at the first earliest opportunity”, being 5 February 2008. 

5. He submitted that correspondence followed thereafter between the mother and the Independent Children's Lawyer, and it seems from that correspondence the mother is asserting firstly, that she proposes to relocate to Tasmania on 7 January 2008; and secondly, that she cannot afford anyway to pay one half of the fees ordered for the attendance upon Dr J.  That is purely a matter for her.  She had what I regard as a quite unreasonable expectation that alternative arrangements could be made to suit her convenience. 

6. However, the position is that an appointment has been made for the parties to attend upon Dr J who shall report his findings to the court.  If the mother fails to attend, for whatever reason she may provide then it is clear that at the substantive argument on the Application of the father, it will be open for the trial Judge to draw an adverse inference, pursuant to the principles laid down by the High Court in Jones v Dunkel (1959) 101 CLR 298.

7. It has been indicated by the mother, who continues to appear in person, that her view is, from as far back as August 2007, that the trial should not proceed before me.  However, it is noted in the order made by Senior Registrar FitzGibbon on 27 November 2007 that it be referred to me for hearing this day for determination as to procedural requirements and the like. 

8. Had the mother counsel, I am somewhat confident that a more erudite and sensible submission would have been made as to what role I should, if any, play in the proceedings.  However, there is an obligation upon judicial officers of this court to carefully consider matters objectively and not sit to hear a case or continue with the hearing of a case if in all the circumstances an independent observer might entertain a reasonable apprehension that the judicial officer may not bring an impartial or unprejudiced mind to the resolution of the issues to be decided.  There is strong authority for that, including, for example, Re Watson; ex parte Armstrong (1976) 136 CLR 348 at 262 per Barwick CJ and Gibbs, Stephen, Mason and Jacobs JJ. See also Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293; and Johnson v Johnson (2000) 201 CLR 488.

9. It seems to me that, given the very strong findings I made as to the utter lack of credibility of the mother in the proceedings before me and her extraordinary manipulative conduct, which was entirely contrary to the best interests of their son, that I should not continue to sit in these proceedings, on the basis of the law as I have just recited it to be.  I do so notwithstanding what Mason J had to say in Re JRL; ex parte CJL (1986) 161 CLR 342 at 351, when his Honour considered the basis for grounds for disqualification being a reasonable apprehension that a judicial officer would not decide the case impartially or without prejudice; rather than that he will decide the case adversely to one party. His Honour went on to offer a warning that, although it was important justice must be seen to be done, it was equally important that judicial officers did discharge their duty to sit and did not accede too readily to suggestions of appearance of bias, which would encourage parties to believe that by seeking a disqualification of a judge they would have their case tried by someone thought to be more sympathetic to their cause.

10. If I may say, from what I have been informed thus far, the Application of the mother is fraught with danger.  It does not, on what information I have, fall anywhere near the required principles laid down in law.  In the course of her submissions before me this day, the mother sought to rely upon a number of matters that undoubtedly will become the subject of debate before the judicial officer finally hearing the contest. 

11. There is, as I said earlier, an appointment for the parties to see Dr J on 5 February 2008.  Mr Smith has made it clear that Dr J has indicated he will deliver his report with a reasonable degree of dispatch.  In those circumstances, given the importance of the matter and the need for finalisation of these proceedings, particularly given that the parties have been through a lengthy trial followed by a long and detailed judgment and that they have since been continually embroiled in further litigation, this must come to an end. 

12. There seems to me to be, on the face of what I have heard, merit in the Application of the father, but that will be the subject of a judicial determination by another judge at another time.  This matter should not be left to languish in the lists.  Notwithstanding that the court is suffering the constraint of limited judicial resources, it is important that these applications be heard and disposed of as a matter of priority. 

13. I have endeavoured to contact Cronin J, but he is presently sitting in court.  In the circumstances, what I propose to do is to adjourn the matter to his Honour with a notation that it be fixed with priority as a one‑day fixture, perhaps running into two days, as soon as possible after the release of the report of Dr J following the appointment of 5 February 2008.  I would hope that the matter could be disposed of later in that month or early in March 2008.

14. It has been indicated to me by both Mr Werner and Mr Smith, and helpfully so, that the actual argument would take up to a day, maybe a little more.  In the circumstances, it seems to me that allowance should be made for at least one day for argument of this matter.  There will be required reading time by the judicial officer, but I have an expectation that will be a matter attended to by the relevant judicial officer at a time prior to the hearing of the matter. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  10 January 2008