Bouras & Bouras and Anor (No. 3)

[2007] FamCA 734

FAMILY COURT OF AUSTRALIA

BOURAS & BOURAS AND ANOR (NO. 3) [2007] FamCA 734

FAMILY LAW - COURTS AND JUDGES - Disqualification

Family Law Act 1975 (Cth)

Johnson v Johnson (2000) 201 CLR 488
Vakauta v Kelly (1989) 167 CLR 568
Re JRL:  Ex parte CJL (1986) 161 CLR 342.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Applicant: Mrs E Bouras

First Respondent: Mrs C Bouras

Second Respondent: Mr Bouras

File Number: MLF 68447 of 1980

Date Delivered: 26 July 2007

Place delivered: Melbourne (In Chambers)

Place Heard: Melbourne

Judgment of: Carter J

Hearing date: 25 July 2007

Representation

Counsel for the Applicant: Mr  Williams

Solicitor for the Applicant: Mason Sier Turnbull

Counsel for the First Respondent: Mr Fookes

Solicitor for the First Respondent: Berger Kordos

Appearance for Second Respondent: In person

Address for the Second Respondent: N/A

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 68447  of 1980

Ms E Bouras

Applicant

and

Mrs C Bouras

First Respondent

and

Mr Bouras

Second Respondent

REASONS FOR JUDGMENT

(Delivered in Chambers)

1. On 29 June 2007 I made orders by consent relating to living arrangements for M born in May 1998 (“[M]”).  The proceedings were brought by M’s elder sister, Ms E Bouras (“the applicant”).  The respondents were M’s mother, Mrs C Bouras (“the mother”) and M’s father, Mr Bouras (“the father”).  M had the benefit of representation by the Independent Children’s Lawyer.

2. The orders which were made set out with particularity the periods of time which M was to spend with her mother and that included the second week of the school holidays, from 10:00am on Friday, 6 July 2007 until 5:00pm on Friday, 13 July 2007.  M did spend time with the mother in accordance with those orders and thereafter returned to the applicant’s home.

3. On Monday, 16 July 2007, when the applicant awoke at approximately 6:30am she discovered that M was not in her bedroom and that the back door was open.  It subsequently emerged that M was with her mother, and had been there since about 10:00pm on the Sunday night.

4. There was correspondence between the solicitors for the applicant and the mother and arrangements were made for M to be returned at a neutral venue that evening.  This did not eventuate and as had been foreshadowed in a letter from the applicant’s solicitor to the mother’s solicitor, an application for a recovery order was filed in the Court.

5. The matter was referred to me, given that I had been so recently involved in the case, and was given a return date of 25 July 2007.

6. Mr Fookes of counsel appeared on behalf of the mother on this occasion.  He was under some difficulties because he had not appeared for her at the trial.  Mr Williams of counsel continued to appear on behalf of the applicant and the father again appeared in person.  The Independent Children’s Lawyer had been discharged but Ms Pandeli, who had acted in that role appeared as amicus curiae.

7. At the outset Mr Fookes sought that I disqualify myself.  I heard submissions from all parties and determined that I would not disqualify myself.  Given the circumstances, and as I explained at the time, I did not then give reasons but proceeded to hear the matters which had been raised. 

8. What follows are my reasons for refusing the application that I disqualify myself.

Relevant Legal Principles

1. In Johnson v Johnson (2000) 201 CLR 488, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ discussed the grounds upon which a judge should accede to a disqualification application such as this commencing at par 10.

2. At par 11 their Honours had this to say:

   “… 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.”

3. At par 12 their Honours went on to say:

   “…  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 (? s) [the Judge] to discard the irrelevant, the immaterial and the prejudicial’ (Vakauta v Kelly (1989) 167 CLR 568).”

4. Thereafter their Honours said at par 13:

   “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.  The rules and conventions governing such practice are not frozen in time.  They develop to take account of the exigencies of modern litigation.  At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases, to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.  In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”.  Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate pre-judgment.  Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute whilst evidence is advanced and arguments are presented.  On the contrary, they will often form tentative opinions on matters in issues, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”  (Footnotes omitted.)

5. In Johnson, Callinan J referred with obvious agreement to the judgment of 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.”

6. Later, having referred to a number of authorities his Honour had this to say:

   “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.”

7. In Johnson, Kirby J referred to this latter statement as a “salutary warning” saying that it warned judicial officers in Australia:

   “… not to 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.”  (Footnotes omitted.)

8. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gleeson CJ, McHugh, Gummow and Hayne JJ had this to say:

   “Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong.  They do not select the cases they will hear and they are not at liberty to decline to hear cases without good cause.  Judges do not choose their cases;  and litigants do not choose their judge.  If one party to a case objects to a particular judge sitting, or to continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.”

Grounds

1. Mr Fookes made it clear that the basis of his application was apprehended bias which arose from comments which on his instructions I had made.

2. The first matter was that I had referred to a “toxic relationship” as between the mother and M and the second comment was that at the time I made the orders by consent I said words to the effect that I would have made the orders in any event. 

3. These matters were alleged to give rise to apprehended bias.  Mr Fookes fairly conceded that he could not point to any other comment supporting the application.

Discussion

1. My Reasons for Judgment of both 28 and 29June 2007 were given ex temporaneously and after they had been transcribed and revised I made arrangements for them to be given to the parties prior to coming on the bench to hear the application for a recovery order.  Given that they were relatively fresh in my mind I was able to locate certain passages which bore some resemblance to the matters complained of and pointed those out to Mr Fookes.

2. Both matters need to be looked at in light of the surrounding circumstances which I will set out in the course of dealing with the individual allegations.

Toxic Relationship

1. Firstly it should be recorded that I did not use the expression “toxic relationship”.

2. I had been asked to consider possible alternatives as to how a changeover should be effected and described one of those possibilities as creating something which “would almost be a toxic environment” for M.

3. The context in which that arose will now be set out.  The proceedings commenced on Monday, 25 June 2007.  By 27 June 2007 the evidence of the applicant and her witnesses had concluded and the mother’s case had commenced.  Cross-examination had not been completed.  On the following day, Thursday, 28 June 2007, settlement negotiations were commenced.  Those discussions eventually involved, by consent, and with the Court’s approval, consultation with Ms B, a psychologist, who had prepared Family Reports for the assistance of the Court.  That consultation took place utilising a conference phone.  During the course of the morning I was asked to make an order by consent in circumstances which required the Principal of M’s school to bring her to Ms B’s rooms and to await further instructions.  The purpose was, as reflected in the first order I made on 28 June 2007, to enable the Independent Children’s Lawyer and Ms B to explore changeover and discuss proposed orders.

4. I was informed that all parties had agreed that M’s place of residence was to change to the residence of the applicant.  The question to be determined was when this change should be implemented.  It was the mother’s case that the change should not take place forthwith.  That was contrary to the recommendation of Ms B and it was also opposed by the Independent Children’s Lawyer, the father and the applicant, who all submitted that M’s change of residence should take place immediately.

5. Having heard submissions I determined that it would be in M’s best interests for the change to be implemented at once and made orders accordingly.  (See order No. 2 28 June 2007.)  I made a further order authorising and requesting Ms B and the Independent Children’s Lawyer to explain to M that her parents and sister had reached an agreement that her place of residence was to change to that of her sister (inter alia).

6. I gave very brief reasons for my decision.  I acknowledged that the mother had made a courageous decision and noted that for M’s sake the difficulty – and everyone acknowledged there would be a difficulty – should be minimised and should not, above all, be prolonged.

7. I noted that it was always difficult to say goodbye and expressed concern about M being placed in a situation similar to one which the mother had described to me during the course of her evidence.  It was said that M had been sitting on her mother’s lap and crying till 10 or 11 o’clock at night.  I said that such a situation:

   “… would not only be not in [M’s] best interests;  it would almost be a toxic environment for her, and I just am not at all comfortable that [the mother] would be able to let her go as easily – and I use the word very carefully – as easily as what would happen, if the break is a clean break and takes place tonight.”

8. The second comment was said to have been made at the time the consent orders were pronounced.  That was on Friday, 29 June 2007.  I gave Reasons for Judgment which remain on the Court file.  In those Reasons I referred to the trial generally and the events of the previous day.  As I noted in the Reasons I gave for my decision on 28 June 2007 the decision had to be made quickly in the circumstances which I described and I said that I would expand upon the Reasons which I then gave at a later date.

9. In referring to my decision that the change of residence should take place at once I then said at par 30:

   “30.     Having heard the submissions, I agreed, and made orders accordingly, for reasons which I gave at the time.  Upon reflection, I do not believe I need to expand upon the reasons that I gave.  I had, by that stage, determined for myself, as I will shortly explain, that the proposed change of residence which the parties mutually sought, was in [M’s] best interests …”

Conclusion

1. I have already referred to the fictional observer in the sense used in Johnson’s case.  At par 80 of that case Callinan J noted that it was important to keep in mind:

   “… that the notional, fair-minded observer is a rational person not unacquainted with the legal process, the oath or affirmation that Judges have taken and judicial obligations generally, and in broad terms what has occurred and may occur in the case before and after the challenged conduct.”

2. The fictional observer could not believe that I described M’s relationship with her mother as being “toxic” because I did not do so.  When the comments, including the reference to toxic environment, are looked at in context it could not, in my view, be said that the fictional observer could reasonably apprehend or infer from what was said in conjunction with those matters that I might not bring an impartial and unprejudiced mind to the determination of the matters which were before me.  In my view that is so whether the matters relied upon are looked at separately or cumulatively and accordingly, I declined the mother’s application to disqualify myself.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate: 

Date:    26 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BOURAS & BOURAS