Bale-Sutch and Bale-Sutch

[2010] FamCA 19

FAMILY COURT OF AUSTRALIA

BALE-SUTCH & BALE-SUTCH [2010] FamCA 19

FAMILY LAW – COURTS AND JUDGES – Disqualification for Bias

Family Law Act 1975 (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
EL and ML and DM [2003] FamCA 1449
Johnson v Johnson (2000) 201 CLR 488
Re JRL; Ex parte CJL (1986) 161 CLR 342

APPLICANT: Mr Bale-Sutch

RESPONDENT: Ms Bale-Sutch

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3800 of 2007

DATE DELIVERED: 22 January 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 1 AND 2 OCTOBER 2009; 15 AND 18 JANUARY 2010

REPRESENTATION

THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MR BARBAYANNIS

SOLICITOR FOR THE RESPONDENT: WISEWOULD MAHONY LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS AGRESTA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: DAVID STAGG TONKIN & CO

Orders

1. That the husband's oral application made on 18 January 2010 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Bale-Sutch & Bale-Sutch is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3800  of 2007

MR BALE-SUTCH

Applicant

And

MS BALE-SUTCH

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On the final day of a parenting dispute, the husband, who has been without legal representation throughout, applied for me to disqualify myself.

2. After hearing from all parties, I dismissed the husband’s application. Because of the stage of the proceedings and other pressing cases waiting to be heard, I said I would give written reasons later. These are those reasons.

3. On Friday 15 January 2010, the husband raised with me a point that if I would not permit him to call some particular evidence through the wife’s mother who had just that day appeared at court, he wanted that issue heard by another judge because I had prejudged the point. I asked him whether he was making a disqualification application and he ultimately said he was not but reserved the right to bring one if he felt it appropriate.

4. Thus, on the following Monday morning, he brought an oral application which is the subject of the ruling and these reasons.

5. Counsel for the wife denied that there was any basis in the husband’s application and counsel for the Independent Children’s Lawyer had nothing to say about it.

6. The husband said that:

   (a)I had denied him on the previous Friday with the opportunity to call a witness to “come forward” and that witness and the wife had had the weekend to collaborate their evidence and as such, he had been denied natural justice;

   (b)I had disregarded a psychologist’s recommendations;

   (c)I had divided up the “family reports”, the second of which was biased towards the wife whilst the first was biased towards him;

   (d)I had denied him the opportunity to call evidence about the behaviour of the children before and after the separation;

   (e)The evidence from the wife’s mother would shed light on what had happened to the wife as a child and hence justify an order being made that the wife be “psychologically assessed”; and

   (f)That I had prejudged the case.

7. In respect of the matters just set out, I make the following observations:

   (a)I had ruled on the Friday and again before the “bias” application was made that the husband could not call the evidence. The sequence of events was that the wife’s mother attended for the first time at Court on the Friday having arrived from Manilla. The husband said that he wanted to call the mother because in his view, she could tell me of the rape or attempted rape of the wife by her father in childhood years. He did not say how he knew that the mother could do so. He went on to say that such traumatic events explained the wife’s psychological condition which in turn explained why she behaved towards his children turning them against him;

   (b)Additionally, on the Monday, the husband said that there were affidavits filed in divorce proceedings under a new number by the wife’s former practitioners and this would all have shown something of the trauma (and presumably dishonesty) of the wife.

8. I can deal with the first of the observations simply.

9. It is the function of the trial judge to not only control the litigation process but also to be mindful of the relevant provisions of Part VII of the Act.

10. Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the following:

    Application of the principles

    (1)      The court must give effect to the principles in this section:

    (a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and

    (b)in making other decisions about the conduct of child‑related proceedings.

    Failure to do so does not invalidate the proceedings or any order made in them.

    (2)      Regard is to be had to the principles in interpreting this Division.

    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 3

    (5)      The third principle is that the proceedings are to be conducted in a way that will safeguard:

    (a)the child concerned against family violence, child abuse and child neglect; and

    (b)the parties to the proceedings against family violence.

    Principle 4

    (6)      The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.

    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.

11. In this particular instance, principles 2, 4 and 5 apply.

12. Nothing the husband said showed that there was any connection between what happened to the wife in childhood and her current approach to parenting. Whilst there may have been criticism of the wife in previous professional reports, the application before me was an examination of what had occurred after I made final orders in February 2009. Those orders followed upon a protracted defended hearing in which the husband had been represented by counsel.

13. In the current proceedings, the husband had not cross-examined the wife along the lines that she was psychologically impaired in some way nor was it suggested that the Family Consultant had such concerns about the wife.

14. The husband’s response was that a court should start from a premise that if a person was sexually assaulted in childhood, it would potentially have a bearing upon them in adulthood. He seemed to think that I could take judicial notice of that fact.

15. The husband called no evidence to establish his premise and it is not one that I would draw.

16. The husband also had no intention of doing anything other than cross-examining the wife’s mother about what had occurred in years past. He had no idea what she might say. He had not approached her to obtain an affidavit or proof of evidence. He could not satisfy me that the issue of a subpoena might be justified to have an issue of relevance cleared up in these proceedings. In this case, the fundamental question was not the wife’s behaviour but rather the husband’s.

17. The husband pointed to two incidents which he seemed to suggest showed incompetent parenting. The first related to a child running away for some minutes from home to a neighbour. I drew no adverse conclusion against the wife. The second was that the child’s school report showed that he was having problems at school. Neither matter reflected poorly on the wife.

18. I find no relevance could be established by what was clearly a fishing expedition by the husband.

19. The second matter referred to above requires little consideration. The husband had ample opportunity to call this evidence and did not do so. I reiterate that he was represented in the first hearing.

20. None of the matters that the husband wanted to ventilate would be relevant to the issue of parenting in this hearing. What the husband wanted to do was have the court order that the wife be examined by a psychologist.

21. It was not suggested by the husband that there be a change of the primary care arrangements for the children. Even if there could be some indication of a psychological assessment assisting the court about the wife, I am quite satisfied that the relationship between the wife and the children is close and happy. Notwithstanding the husband’s assertion of her destruction of the father/sons relationship, there is no indication in any of the evidence of that being so in these proceedings. Whatever may have been the views of professionals in the past, nothing in the evidence suggests that since February 2009 there should be any concern about the wife.

22. I find that there is no relevance in the evidence that the husband wishes to present.

23. The husband also complained that I had “divided up” the family reports and excluded material which I presume he felt was favourable to him. He made no complaint about that until the moment of the disqualification application.

24. The husband said in submission that I had not included in the materials to be litigated the report of Family Consultant Mr V dated 26 September 2008.

25. In the 2008 report, Mr V reported that he had read a psychiatric assessment of the husband by Dr E in which “references” were made to the wife “based on the comments” of the husband and “certain other information available to him”. Mr V noted that the Dr E commented that there were reasons to believe that the husband had been “quite provoked by his wife who appears, on the basis of his account, to have been demanding and required considerable support from him at an emotional level”. Mr V said that Dr E reported that “based on (the husband’s) version of events” there may have been grounds for the wife to undergo a psychiatric assessment.

26. None of this was fleshed out in these proceedings with Mr V nor as I recall in the previous proceedings when the husband was represented. No suggestion was made in either case that the wife needed a “psychiatric” assessment. The husband’s view was that it should be a “psychological” assessment. The husband’s submission was predicated on the acceptance of his version. The factual basis for the assertion may have been a matter for the previous hearing, but it certainly was not this time as the case was about the husband’s behaviour not that of the wife.

27. Counsel for the Independent Children’s Lawyer and without demur from counsel for the wife, said there was no objection to my reading the 2008 report into the evidence in this case because the husband was taking the reporter out of context. I agree that is what the husband did but I see no reason to add the earlier report having regard to the fact that I made findings about it in the final orders of February 2009.

28. There is therefore no basis for the husband’s complaint about me being selective in what material was being included in the trial.

29. I turn then to the husband’s application that I disqualify myself. 

30. The basis for that appears to arise from the matters set out above.

31. The principle governing disqualifications was referred to on the Friday by the husband. The decision which he did not seem to have read was the case of Johnson v Johnson (2000) 201 CLR 488.

32. In Johnson, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ discussed the grounds upon which a judge should accede to a disqualification application. Their Honours said:

    …the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

33. Their Honours also said:

    …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 require him or her to discard the irrelevant, the immaterial and the prejudicial’.

34. In respect of the observer, their Honours said:

    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 …

35. Two other judgments in Johnson need to be mentioned.

36. Callinan J quoted Mason J (as he then was) in Re JRL; Ex parte CJL (1986) 161 CLR 342. Mason J had said at 352:

    It needs to be said loudly and clearly that the ground for 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 this 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 provided an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.

37. His Honour then said:

    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 a disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

38. Kirby J said that judges should not accede too readily:

    …to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification.  Applications of that kind might sometimes be made in the hope in securing an adjudicator more sympathetic to a party's cause.  Or they might be made because of the strategic advantage that may thereby be secured, especially the interruption of lengthy proceedings and the delays consequent upon obtaining a fresh start in a busy court or tribunal.

39. Similar remarks were made by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 where the Justices said that objections should not prevail unless they were based upon substantial grounds for contending that the judge was disqualified from hearing and deciding the case.

40. The fair-minded and reasonable bystander is taken to be informed as to the most basic considerations relevant to the process. Those have been set out comprehensively by Kirby J (see paragraph 53) and Callinan J (see paragraph 80) in Johnson.

41. I conclude that a person who:

    (a)understood the court process;

    (b)realised the time that had elapsed since the hearing began in 2009 and that the proceedings had become protracted;

    (c)was cognisant of the fact that the husband only raised the issue at the very end of his case (the wife’s case having been closed);

    (d)was also cognisant of the fact that there had been a comprehensive trial of parenting issues culminating in orders in February 2009 which set out a tentative re-introduction of contact on a supervised basis;

    (e)heard the evidence that the major events that had given rise to the consternation of the children about the relationship with their father and as such, the focus of the problem being upon the husband rather than the wife; and

    (f)acknowledged that the role of a judge is to determine matters with impartiality and integrity,

    would not have felt that I had pre-determined the outcome or been unfair to the husband in the approach that I took.

42. I am mindful of the observation of Kirby J that this fictional observer is neither complacent nor unduly sensitive or suspicious.

43. In EL and ML and DM [2003] FamCA 1449, Guest J said:

    20.Indeed, it should be said clearly that the fact a party has a subjective apprehension of bias is not of itself sufficient to warrant or require disqualification of a judge. I refer to what Mason J had to say in Re JRL; ex parte CJL (1986) 161 CLR 342 at page 352. Disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment which must be “firmly established”…

    and further:

    25.One must look at the realities of everyday practice in court and the due administration of justice, balancing of course the integrity of the legal process. This must be observed “in the real world of actual litigation”, (per Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568 at page 570), and procedural dispositions “governed by the reality of the situation”.

44. I reject the suggestion that any prejudgment has been “firmly established”. This is a case where the husband was simply not getting his own way and wanted to present what he saw as evidence regardless of the issue of its relevance to a matter in dispute.

45. The husband’s oral application made on 18 January 2010 is therefore dismissed.

I certify that the preceding Forty Five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  22 January 2010