Bilney and Brisco and Anor (No 3)

[2012] FamCA 978

FAMILY COURT OF AUSTRALIA

BILNEY & BRISCO AND ANOR (NO. 3) [2012] FamCA 978

FAMILY LAW – COURTS AND JUDGES – disqualification – application by the mother seeking disqualification of the Judge on the grounds of apprehended bias – where the mother’s argument was based on her dissatisfaction with a previous decision of the Court – where the Court was not satisfied that a fair minded observer might reasonably apprehend that the Judge would not bring an impartial mind to the matter – application dismissed.

FAMILY LAW – CHILDREN – interim orders – application by the mother seeking orders that the children live with her and spend time with the father – where the children currently reside with the father – where the mother alleges that the children are at risk of sexual abuse whilst in the father’s care – best interests – orders that the children remain living with the father.

Family Law Act 1975 (Cth)

British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Goode & Goode (2006) FLC 93-286

APPLICANT: Ms J Bilney

RESPONDENT: Mr Brisco

OTHER PARTY MATERNAL GRANDMOTHER: Ms Y Bilney

INDEPENDENT CHILDREN’S LAWYER: Mr McQuade

FILE NUMBER: ADC 6474 of 2007

DATE DELIVERED: 19 November 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE OTHER PARTY MATERNAL GRANDMOTHER: n/a

SOLICITOR FOR THE OTHER PARTY MATERNAL GRANDMOTHER: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McQuade

SOLICITOR FOR THE INDEPENDENT CHLDREN’S LAWYER: Adey Lawyers

Orders

UPON NOTING the Court will advise the Registrar of the priority for listing of this matter so that the matter can be determined on a final basis as soon as possible.

1. The Application in a Case filed by the mother on 24 September 2012 is dismissed.

1. The Application in a Case filed by the mother on 8 November 2012 is dismissed.

1. The father is directed to file and serve within fourteen [14] days from today an affidavit setting out the details of and time at which he became aware of the allegation of the child C being abused by Mr N.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bilney & Brisco and Anor 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 ADELAIDE

FILE NUMBER: ADC 6474 of 2007

Ms J Bilney

Applicant

And

Mr Brisco

Respondent

And

Ms Y Bilney

Other Party Maternal Grandmother

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. The first application that I have before me this morning is the application in a case filed by the mother on 24 September 2012 in which she seeks the following orders:

   1.        That Dawe J disqualify herself from these proceedings.

   2.That this matter do be transferred to the Federal Magistrates Court of Australia.

2. In support of that application I have the affidavit of the mother (which was also filed on 24 September 2012).  I have heard the submissions of the mother and maternal grandmother this morning. 

3. The application by the mother is supported by her mother, but is opposed by the father and counsel for the Independent Children’s Lawyer, Mr McQuade who appears this morning. 

4. The basis upon which the mother seeks that I am disqualified is referred to in her affidavit as the fact that I am unable to remain impartial and unbiased when making orders in relation to the best interests of the children.  The mother maintains that I have made a decision against what she asserts to be the best interests of the children and that I failed to take into account the allegations that she made in her previous affidavits and submissions to me about the best interests of the children. 

5. The mother asserts in her affidavit that the matter should be transferred back to the Federal Magistrates Court of Australia.  She refers to me not letting my personal feelings sway the decision.  I am referring to what the submissions of the mother in paragraph 16 of her affidavit. 

6. The mother maintains that the children have been sexually abused in the care of the father and refers to the basis upon which she makes those assertions. 

7. The submissions made to me this morning commenced by the mother saying that she did not agree with the orders that I have made in this matter and highlighted some of the matters of fact, which she says supported her case as distinct from the orders that I made. 

8. She also referred to the orders made by his Honour Justice Burr, as he then was, when he was making preliminary decisions in relation to the management of the matter and interlocutory orders in relation to the children. 

9. The maternal grandmother also supports the application made by her daughter that I disqualify myself.  Again she refers to the merits of the matter.  It is asserted I have not accepted their version of the merits of the matter. 

10. It is important to remember that the law is such that it is not a question of someone complaining about a previous interlocutory decision.  The cases, in particular, Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337 and the more recent British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 clearly indicate that it is not just a matter of disagreeing with the determination, but that the person should be disqualified where there is a reasonable apprehension of bias by reason of prejudgment and that that prejudgment must be firmly established.

11. It is also important to remember that in cases of this sort preliminary issues need to be determined, but they are determined (as was in this case) on the papers without any findings as to the credit of either of the parties. An order was made on the basis of attempting to ascertain on that interlocutory basis what was in the best interests of the children. 

12. In this case, the basis upon which I am alleged to be biased is that I have made a decision that the mother did not like and made a decision that was not in her favour.  I am not satisfied that a fair-minded lay observer would determine that there was a reasonable apprehension of bias in this case. 

13. It is clear that it is a difficult case in which there are highly conflicted arguments in relation to what is in the best interests of the children, but at this stage the decisions have been made on an interim basis.  Specifically the matters to be determined have been referred to a final hearing when the credit of both parties and their relevant witnesses can be appropriately assessed and a decision made when that has been undertaken. 

14. On the previous occasion when the matter was before me the mother became upset about the decision that I made and swore at me.  She then refused to return to the Court but she was eventually brought back into the Court.  Clearly the Court took into account that she was upset by the decision and made certain recommendations.  All of that appears in the published reasons for judgment made in September of this year. 

15. The actual reasons themselves refer to the matter being continued on the basis that the children reside with the father pending the determination of the proceedings at the trial. 

16. I am not satisfied therefore that in a case such as this, taking into account the background of the matter and the various submissions and allegations put to me on the last occasion that it has been established that a fair-minded lay observer would come to the conclusion that there was a reasonable apprehension of bias. 

17. It is clear that the mother is not happy with the orders that were made, but in this jurisdiction that is not unusual where an order has been made which limits the time that a parent or members of the family can spend with the children.  Because that decision was one that the applicant mother and grandmother did not like is not a basis upon which I should disqualify myself.  I dismiss the application of the mother that I disqualify myself.

18. This is the application in a case brought by the mother, filed on 8 November 2012, in which she seeks orders urgently that the children, C, who was born in April 2005, and J, who was born in March 2006, live with the mother and spend time with the father supervised at a contact service.

19. She also sought an injunction restraining the father from approaching or otherwise communicating with the children outside of the contact service, and an injunction preventing the father, his family, and friends from approaching or communicating with the children or on his behalf.

20. That Application in a Case is supported by an affidavit of the mother, also filed on 8 November 2012, and an affidavit of the material grandmother, who is also a litigant in these proceedings seeking time with the children.  The only other material that has been filed since the Application in a Case is the affidavit of the Independent Children’s Lawyer, Mr Adey, to which is annexed correspondence from the mother of 13 November 2012. 

21. The father, mother and paternal grandmother appear unrepresented before me this morning.  Mr McQuade appears as counsel for the Independent Children’s Lawyer.

22. The affidavit of the mother, filed on 8 November 2012, and her submissions, to a large extent repeat allegations that had been made by the mother about the father and his care of the children.  Those issues have been before the Court on numerous occasions since they have been the subject of interim orders.  The matter is now awaiting an allocation of trial date so the evidence of both of the parties can be tested, assessed and final orders made in relation to the children.

23. The mother’s affidavit, filed on 8 November 2012, contains a significant amount of argument, submissions and opinion of the mother.  A lot of the material that is raised in that affidavit refers to allegations concerning the welfare of the children that the mother has previously put to the Court, save and except that there is a significant issue in relation to what the mother says is the credit of the father, in that on the last occasion before the Court, the father did not admit that C had been sexually abused by the neighbour, Mr N, who at that time, the Court was aware, had been charged with sexual offenses in relation to the father’s other child, T.

24. The Facebook page which is annexed to the affidavit of the mother appears to be a printout of a page from 7 November 2012 in which the father refers to his boys (plural), being sexually molested by the neighbour Mr N who is awaiting trial, with a listing on 5 December 2012. 

25. The father has not filed an affidavit in response, but makes remarks from the bar table which suggest that he denies having known, prior to the last hearing before this Court, that C had also been the subject of alleged abuse by Mr N.

26. That is a significant matter.  I will direct that the father file his affidavit in response to the mother’s affidavit so far as it relates to his knowledge of the allegations concerning C being abused by Mr N.  I direct that the father file and serve that affidavit within 14 days from today, setting out his factual evidence concerning his knowledge of the alleged abuse by Mr N of the child, C.

27. The mother’s submissions centre around what she maintains is the risk to the children whilst in the father’s care, based upon her allegation that that they were sexually abused whilst in the father’s care, being sexually abused by the father’s neighbour, Mr N.  She also makes submissions referring to the failure of the father to provide appropriate care for the children, in that they suffered from infections, weight loss, and other developmental problems.

28. The substance of the matter, however, must always be determined as set out in the case of Goode & Goode (2006) FLC 93-286 upon what is in the best interests of the children. That a decision is difficult to make on a final basis before the evidence is appropriately tested. That is so particularly in this matter which has been ongoing for some time, and has, since at least early this year, been referred to the list to be allocated a final trial date. At that final trial whoever hears the matter will be able to determine the facts on a final basis, and thereafter make a decision based upon those tested facts as to what is in the best interests of the children.

29. At this stage, the Court has before it the allegations of the mother that the best interests of the children require that they be in her care, with the father only having supervised time.  The maternal grandmother also supports the orders that the mother seeks, that the children live with the mother.  In the meantime, the maternal grandmother is in any event seeking an order that the children spend time with her. 

30. The Court, on the previous occasion that this issue came to be determined, made a decision that the best interests of the children were that the orders that were then in place that the children reside with the father and have supervised time with the mother continue.

31. The mother, however, indicated then that she would not avail herself of any order which provided for the children to spend time with her at a contact centre, and would not register with a contact centre. 

32. The Independent Children’s Lawyer’s counsel today appears and maintains submissions to the Court that the children should reside with the father, pending the trial, and that the mother should, pending the trial, have supervised time with the children at Contact Service S, Counsel indicates that information given to the Independent Children’s Lawyer is that there is a 20 week wait for an intake session at that contact service.

33. The difficulty the Court faces at the present time is how to assess the various allegations put by the parties and the Independent Children’s Lawyer, bearing in mind the allegation concerning the behaviour of the mother and father is yet to be tested.  The Court does have available to it the affidavit of the Family Consultant, to which is annexed the Family Report of 13 April 2012.  Although that is now a report of some months age, the issues that were then before the Court and considered by the experienced Family Consultant were very similar to the issues which are now before the Court again.

34. The recommendations of the Family Consultant are again challenged by the mother and the paternal grandmother, who say that she came to incorrect conclusions. 

35. The conclusions and recommendations of the Family Consultant are to be taken into account on this interim basis, as they assist the Court in determining what are in the best interests of the children on an interim basis. 

36. The paramount consideration is the best interests of the children.  That is determined by ensuring that the children are safe and that they are protected from harm, and at the same time, where possible, considering a basis upon which the children would have the benefit of having a meaningful relationship with each of the parents and other persons significant in their lives.

37. That is obviously a difficult balance in this case.  However the fresh material that the mother has raised in her most recent affidavit is not significant at this stage, save and except that the father must file an affidavit setting out the evidence on oath as to when he was made aware of any allegation that C had been the subject of sexual abuse by Mr N. 

38. The Court takes into account those matters to which I referred in my reasons of 7 September 2012.  I am satisfied that the orders which are in place for the children to live with the father on an interim basis and pending the final determination are at this stage orders which are in the best interests of the children.

39. The matter has been referred to the trial list some months ago.

40. It is, as the mother has pointed out, in the Magellan list, because there have been allegations made concerning serious harm to the children.  The listing of the matter will therefore have priority.  I will ensure that the case coordinator is aware that it has priority for listing so that the matter can be determined on a final basis as soon as possible.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 19 November 2012.

Associate: 

Date:  26 November 2012