CC and CC (No.1)
[2003] FMCAfam 507
•1 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CC & CC (No.1) | [2003] FMCAfam 507 |
| FAMILY LAW – Contempt – mother of respondent forwards letter to Federal Magistrate commenting on proceedings yet to be heard. PRACTICE AND PROCEDURE – Federal Magistrate – disqualification – application for disqualification of Federal Magistrate during hearing – circumstances when disqualification appropriate – application dismissed. Family Law Act 1975 (Cth) Kanda v Government of the Federation of Malaya [1962] 2 WLR 1153; [1962] AC 322 |
| Applicant: | CC |
| Respondent: | CC |
| File No: | PAM 2939 of 2002 |
| Delivered on: | 1 October 2003 |
| Delivered at: | Parramatta |
| Hearing dates: | 30 September, 1 & 3 October 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Browns the Family Lawyers |
| The Respondent appeared on his own behalf |
| Counsel for the Child Representative: | Mr Kenny |
| Child Representative: | Ms Parkin, Coleman & Greig |
ORDERS
The Application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2939 of 2002
| CC |
Applicant
And
| CC |
Respondent
REASONS FOR JUDGMENT
Application
The proceedings before this Court involve an application by the mother of two small children for orders that the children should reside with her. She seeks an order also that she be permitted to relocate to the Central Coast of New South Wales and she seeks an order that the father should have no contact with these children.
The father opposes the orders insofar as the application for no contact is concerned and he seeks orders that he have contact with those children. The mother is legally represented. The father is not legally represented. Mr Kenny of counsel appears as the child representative.
The proceedings came on for hearing yesterday and were adjourned until today. When the proceedings were heard before me yesterday, the applicant gave evidence and was cross-examined. The applicant's case has closed.
The respondent was in the course of cross-examination by counsel for the applicant when the end of the day was reached. The matter was adjourned slightly early as the father did not have a copy of an Expert Report which had been ordered pursuant to the provisions of Part 15 of the Federal Magistrates Court Rules and there was a need for him to be cross-examined on the contents of that report.
After the matter was adjourned, some time later that afternoon, I became aware of the fact that the respondent's mother had faxed a letter addressed to another Federal Magistrate. That other Federal Magistrate had been originally scheduled to hear that matter but the matter was only transferred to me on the morning of the hearing. The letter set out views by the respondent's mother as to the proceedings in general and Experts Report.
When the proceedings recommenced this morning I raised the issue of the existence of the letter with the respondent and with counsel for the applicant and counsel for the child representative. I am aware from the respondent that the Federal Magistrate before whom the matter originally came yesterday had indicated that she had not read the letter. Neither counsel for the applicant or the child representative had a copy of that letter, although they have since had a copy made available to them.
The writer of the letter, the respondent's mother, was present at Court. I called her into the Court and made it clear that the Court views with displeasure any private communication or any attempt at private communication between either a party to litigation or someone connected to a party to litigation and the Federal Magistrate hearing the case. I indicated that in my view, an effort or an attempt to influence a judicial officer hearing a case as to the result of the case could amount to a contempt of Court.
I took the decision not to deal with the respondent's mother for contempt after having issued a serious warning and having made perfectly clear to her my extreme displeasure at the inappropriateness of her actions. I ordered that she leave the Court and indeed, she was escorted from the building. I made it clear that it was inappropriate that she play any part in these proceedings.
What has now occurred is that counsel for the applicant, having obtained instructions on the letter, has made an application that I should disqualify myself from hearing the proceedings further, that the proceedings should, in fact, be aborted and that the respondent should pay the costs of the proceedings which have been thrown away as a result of this action.
The respondent opposes such a course. Counsel for the child representative has made it clear that whether or not I should disqualify myself from these proceedings is a matter for the Court. He did point out to me however that aborting the proceedings and setting a fresh hearing date would result in a considerable delay and that it may well be more appropriate for me to take the decision to transfer these proceedings to the Family Court in order that the matter could be heard at an earlier date.
The context of this should be understood in that I am of the view that the Federal Magistrate to whom the letter was addressed would also be in a position where it would be equally inappropriate for her to deal with the matter. What that would mean is that another Federal Magistrate, either from this Registry or from another Registry would be required to commence the matter afresh. This would result in a significant delay as well as a re-ordering of the Court's hearing lists to accommodate a matter which would clearly take two days to hear.
The effect of this would mean that it would take a considerable amount of time before a decision could be made as to whether or not the father should have contact with the children, which is a matter for consideration, and it would be also a matter for the parties themselves in that the proceedings would take much longer to resolve.
It is clear that each party desires to have these proceedings resolved. The best interests of the child would require an early resolution of the matter.
A decision for a judicial officer to disqualify himself or herself is not to be taken lightly. It can mean delay and it can occasion expense, expense to the Court, but particularly, expense to the parties. I have had recourse to a number of authorities in respect of whether and when it is appropriate for a Judge or a Federal Magistrate to disqualify themselves.
The decisions which particularly concerned me are all decisions of the High Court of Australia and they all relate to proceedings under the Family Law Act. I am mindful of the decision of the High Court in R v Watson, Ex parte Armstrong (1976) 136 CLR 249. A majority of the Court held that prohibition should issue against a Judge of the Family Court from hearing proceedings further.
The decision in Watson (supra) can perhaps be summarised by establishing the principle that the question is not whether there was a real likelihood that the trial Judge was biased. The question was whether it had been established that it might reasonably be suspected by fair minded persons that the learned Judge might not resolve the question before him with a fair and unprejudiced mind.
I have had recourse to the decision of the High Court of Australia in Johnson v Johnson [2000] HCA 48; (2000) FLC 93-041, a decision handed down on 7 September 2000. I am conscious of the decision of Kirby J where His Honour reviewed the authorities and said at paragraph 44:
“Older authorities contain statements about the asserted special capacity of adjudicators, especially Judges, because of their training and experience to bring a detached mind to the task in hand, whatever their earlier stated opinions might suggest. It was on this basis that the old rules requiring affirmative proof of a real danger of bias was stated. Part of the reasons for the eventual retreat from this approach is undoubtedly the growing inclination of parties to litigation, also many members of the public to regard such assertions with scepticism”.
His Honour went on to say:
“If the party is legally represented, the submission will require explicit instructions and usually be made, as in the present case, after time for advice and reflection. The advice will weigh up a host of countervailing factors. In part, the increase in the number of litigants in person has undoubtedly produced a sizeable proportion of the applications for disqualification pre-judgment, resultant in many of the recent Australian decisions on the subject. These developments confirm this Court's rule. They strengthen the conclusion that any watering down of the rule would be undesirable”.
At paragraph 45 of this decision His Honour went on to say:
“Such considerations lay behind the salutary warning given in Re JRL; Ex parte CJL (1986) 161 CLR 342. The Judicial Officers in Australia were obliged to discharge their professional duties unless disqualified by law. They were told 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 of securing an adjudicator more sympathetic to a party's cause. 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”.
I turn to the decision of the High Court in Re JRL; Ex parte CJL (supra). That was a decision of the High Court. The facts were that a Court counsellor had approached a Judge of the Family Court in the Judge's private chambers to complain about the intended adjournment of the hearing of a custody application and volunteered information about her qualifications as a prospective expert witness and canvassed aspects of the proceedings before the Judge asked counsel for the parties to attend too. It was held that the actions of the counsellor and Judge gave rise to a reasonable apprehension that the Judge would not bring an impartial mind to the resolution of the issue.
The High Court took a particular view about a Court receiving representations from one side behind the back of the other. Gibbs CJ states (at page 346):
“It is a fundamental principle that a Judge must not hear evidence or receive representation from one side behind the back of the other”.
(See Kanda v The Government of the Federation of Malaya (1962) AC 322 at page 337.)
His Honour went on to say (at page 349):
“In the present case, it was wrong of the counsellor to attempt to influence the Judge and ill-advised of the Judge to speak to the counsellor in private”.
His Honour went on to say:
“I rather think that the present case is governed by an analogous principle that justice must not only be done but must manifestly be seen to be done. When a Judge has received in private, representations concerning a case, the Court will not inquire whether representations in fact were to the prejudiced party against whose interests they were made. It is enough that they might do so.”
(See Kanda v The Government of Malaya (supra) at page 337 and 338).
Mason J pointed out that (at page 350):
“A central element in the system of justice administered by our Courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a Judge tries the case before him on the evidence and arguments presented to him in open Court by the parties or their legal representatives and by reference to those matters alone unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a Judge should take into account or even receive secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide”.
His Honour went on to say (at page 351):
“The receipt by a Judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk. The failure to disclose that communication will seriously compromise the integrity of that process. On the other hand, although the terms of a subsequent disclosure by the Judge of the communication and the statements of its effect in some, perhaps many situations, will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other. Subsequent disclosure will not always have this result. The circumstances of each case are all important”.
His Honour further states (at page 352):
“Although it is important that justice must be seen to be done, it is equally important the 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 disqualification of a Judge, they will have their case tried by someone thought more likely to decide the case in their favour”.
His Honour was critical of the actions of the Judge and of the counsellor. This is exemplified in the following passage as His Honour states (at page 356):
“In disclosing the approach which had been made, the Judge did not reflect adversely on it. On the contrary, the Judge seems to have proceeded on the footing that the initiative taken by the counsellor required serious consideration by the Court and counsel for the parties. In effect, the Judge invited counsel to respond to the recommendations of the Court counsellor and to obtain instructions to enable them to do so. The Judge did not treat the Court counsellor's approach as irregular and did not assure counsel that she intended to disregard completely what the Court counsellor had said to her”.
His Honour went further to state:
“It is evident from what I have said that there is a firm basis for a reasonable apprehension that the Judge will not bring to bear an impartial and unprejudiced mind on the resolution of the custody issue”.
Those are the principles which I must consider in deciding whether I should disqualify myself from hearing the matter any further. I have made it quite clear in these proceedings and in earlier proceedings that this Court frowns on, and will not take any notice of, representations by a party or by a stranger connected to a party relating to the case. Indeed, I have no doubt that the respondent's mother has had it made perfectly clear to her the intense displeasure that her ill-advised approach has brought about. I am mindful of the fact that the proceedings were heard on the first day without my knowledge that even such a representation had been made. The applicant's case had concluded and the respondent was under cross-examination.
Immediately, upon my becoming aware that a representation had been made by means of a letter forwarded to another Federal Magistrate, I immediately provided a copy of the letter to counsel for the parties and made the decision to disclose the incident to the parties and their legal representatives directly. I also took pains to point out to the writer of the letter that her behaviour was reprehensible and pointed out to her that such behaviour could amount to a contempt of Court.
The point that I also made was that the writer's clumsy and amateurish conduct of bringing material to the attention of a judicial officer had the effect, if it had any effect, of prejudicing, not the case of the applicant, but the case of her own son, the respondent. The prejudice, of course, is brought about by the fact, not that I would take any notice of something that a party would attempt to bring to the Court's notice behind my back, but the prejudice brought about by an application to abort the proceedings and the subsequent delay in having these proceedings heard afresh. That prejudice, of course, would also involve the question of costs.
I have made perfectly clear that I will take no notice at all of any representations that parties or other people seek to make. I am mindful of the fact that this approach did not come from the respondent himself, although he has made it clear that he was aware that his mother had written a letter. I am mindful of the fact that a delay would, in resolving the proceedings, not be in the best interests of the children concerned and I am of a view that by acceding to a suggestion or to a submission at this stage that I should disqualify myself for an apparent bias, that the administration of justice would be prejudiced.
I will make it quite clear that the Federal Magistrates Court decides cases on the evidence before it, not on things that people try to bring to the Court's attention by means of gossip or innuendo. The Court decides this matter on the evidence without fear or favour, affection or ill-will.
I am of a view that my duty to the administration of justice is that having made it clear that such an irregular approach by the respondent's mother will not affect my hearing of the case, it is my duty to the community to continue to hear the case and I propose to do so.Therefore, the application that I should disqualify myself and abort the proceedings is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 17 November 2003
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