Chranley and Smart

[2007] FamCA 33

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART [2007] FamCA 33

COURTS AND JUDGES - Disqualification for Bias

Family Law Act (1975) – Section 117

Johnson v Johnson (2000) 201 CLR 48
 Re: F Litigants in Person Guidelines (2001) FLC 93-072

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

INDEPENDENT CHILDREN’S LAWYER: Graham D Hemsley

FILE NUMBER: ADF 4779 of 2000

DATE DELIVERED: 22 January 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 22 January 2007

REPRESENTATION

APPLICANT: Husband In Person

RESPONDENT: Wife In Person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr Graham D Hemsley

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Chranley & Smart

Orders

1. There being no opposition from the mother or independent children's lawyer, I adjourn that part of the application in case document 170, paragraph 2, which relates to the independent children's lawyer, to Strickland J's court on 7 February 2007 at 10 am.

2. I refer document 186 to the hearing before Strickland J on 7 February 2007 at 10 am, save and except that part of the application which relates to me disqualifying myself, which is before me today.

3. I order that the husband pay the independent children's lawyer's costs of the attendance today, fixed in the sum of $330, such sum to be paid within three months from today.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4779  of 2000

Mr Chranley

Applicant

And

Ms Smart

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. This is the application of the father filed on 21 November 2006, document 170, paragraph 1, which seeks an order that I stand down from all matters in regard to this matter.  It also seeks in paragraph 2 that Mr Hemsley stand down as the child representative.  That application in the second paragraph has been adjourned to Strickland J on 7 February at 10 am, when he is hearing other matters. 

2. The application therefore, for me to decide, is the father's application that I disqualify myself.  In support of that application the father has filed an affidavit, document 171, on 21 November 2006.  The annexure to that affidavit are the facts upon which the father relies in his application.  During the hearing before me this morning I have also given the father an opportunity to identify those matters in that affidavit which relate to the question of my bias that have arisen since I decided a similar application by the father in May 2006.

3. The first reference the father made to such a matter is the appeal which came on before the Full Court (being the father's appeal from the decision in which I refused to disqualify myself) and comments made by the child representative at that hearing.  I am unable to see how the comments made by any person at the appeal from a decision of mine can relate to an allegation that I am biased against the husband or have shown any bias in any way in this matter.

4. The other matter the husband raised was an issue that an application brought by the child representative was not dealt with.  That application brought by the child representative was one of the applications dismissed on 11 November 2006, by consent. 

5. The father's other comments were that, if the contempt matters which he has brought (which I understand to be matters in relation to allegations of contempt by the mother and the independent children's lawyer) were successful, then his application that I disqualify myself was probably “pre‑empting” those decisions.

6. I do not quite understand the significance of the findings that may or may not be made in relation to alleged contempt by the mother or the child representative.  If factual matters relied upon by either of them are found to have been incorrect, that would not necessarily result in a requirement that I disqualify myself from further hearing the matter.

7. In this matter I have made it clear on most occasions, when hearing interim applications that findings of fact are particularly difficult and that what is most important in this case is that the final determination of the matter is listed for trial as soon as possible, so that the correct facts and who is telling the truth can be determined, and orders made in the best interests of the child.

8. The affidavit of the father filed on 21 November 2006 commences by saying that gender bias has been shown to the father, by me, on the basis that:

   “……………… sought justice in relation to myself and the time spent with his daughter, and on every occasion Dawe J has shown me bias without just cause, other than gender bias, in relation to my applications.”

9. In the next paragraph the father asserts that I have taken steps to make all his applications to be directed to me and my court, and that I have sought to be “the justice on all occasions” and have had matters that are before other registrars and justices transferred to my court for reasons unknown to him other than to be able to make orders that are of a gender bias nature.

10. I have heard many applications in this matter from time to time.  I have managed the matter in relation to procedural hearings and from time to time interim applications have been listed before me.  I have not taken steps to ensure that I am the only judge hearing the matter; quite the contrary.  The matters have from time to time been heard by Murray J.  Burr J and Strickland J have also had various matters heard before them.  In particular, various matters are now outstanding to be heard before Strickland J in February 2007.

11. The next paragraph of the father's affidavit says that I have allowed an application by the child representative, Mr Hemsley, to be removed from the list of applications.  That was an application to have the husband declared a vexatious and frivolous litigant.  He complains the removal was "without any notification to this court or myself."  I understand that paragraph refers to the application brought by the child representative in relation to a form 2A, which was the subject of a consent order that it be dismissed.  I therefore reject any suggestion that that was an indication of bias on my part.

12. The father raises the issue that it was up to him to bring that application forward on that occasion.  Even if that were the case, the proceedings were before the court and, by consent, were dismissed.

13. The next paragraph refers to an application in relation to contempt, and the comments I made in relation to that.  I understand that to be the father's reference to an application brought to have the mother dealt with for contempt in relation to allegations she has made in affidavits filed in this court.  I have from time to time suggested that the father get appropriate legal advice in relation to his applications, particularly in relation to bringing contempt allegations made in affidavits before the affidavit material has been tested in the normal sense of having a proper hearing before the court in relation to final determination of the issues, including questions of affidavit evidence and other evidence presented by all of the parties.

14. The affidavit continues to set out material that relates to the handling of the appeal from my past decision not to disqualify myself.  It refers to an allegation made by the father that, at the hearing in the Appeal Court, certain comments were made by counsel for the child representative.  I reject any suggestion that any matter that occurred in the hearing of the appeal before the Appeal Court could in any way be an indication that I have shown bias in any way.

15. The affidavit also appears to complain that on dismissal of the applications in relation to the removal of the child representative I have allowed the child representative to give misleading statements.  The child representative and counsel for the child representative have been permitted to make submissions before me.  I reject any assertion that comments made by the child representative can be an indication that I have shown bias or should be disqualified.

16. The affidavit refers to the dismissal, by me, of applications brought by the father from time to time, suggesting that I have failed in my duty to the daughter of the parties, S, and have caused harm to the daughter S.  These matters are continued in the affidavit where the father refers to a “denial of justice” because I have dismissed his application.  These are matters which were previously argued before me, in a similar vein,  in the application that was heard by me in May 2006.

17. In order to understand the history of the matter, I refer to the large number of documents on the file.  At the current time there are now 187 documents on the file, the last of those being the child representative's response to the applications brought by the father and for further orders, most of which are now adjourned before Strickland J on 7 February 2006 (save and except the child representative's response to the application that I disqualify myself).

18. I have also read the affidavit of Mr Hemsley filed on 12 January 2007, so far as it relates to the application for me to disqualify myself.  I consider that that affidavit merely sets out a history of the more recent matters before the court and annexes to it the more recent documentary court material relevant to these proceedings and to the proceedings which are now to be heard by Strickland J.  The most recent history of the matter is therefore set out in my decision of 30 May 2006 and the annexures to the affidavit of Mr Hemsley filed on 12 January 2007, which should be considered for the context in which I make this current decision.

19. The father's complaint is now phrased as “gender bias”.  I am unable to ascertain from any of the material the father has filed in support of his application, or any statements he has made to me today in his submissions which would indicate that I have exhibited any bias on account of any person's gender in these proceedings nor indeed in any other proceedings.

20. The test as to whether I should disqualify myself or not is whether a fair‑minded lay observer might reasonably apprehend that I may not bring an impartial and unprejudiced mind to the resolution of the issues before the court.  It is not to be determined on the basis of whether one of the parties has formed an impression; it is whether a reasonable fair‑minded observer would form that impression.  I refer to the decisions of the Full Court and of the High Court, in particular Johnson v Johnson (2000) 201 CLR 488, and Re: F Litigants in Person Guidelines (2001) FLC 93-072.  I also refer to the decision which I gave on 30 May 2006. 

21. Apart from referring to the question of gender bias by simply using that description, the father has failed, in my view, to raise any matter which could possibly relate to factors which would assist in his allegation that I am not able to bring an appropriate unbiased attitude to the matters before me in this case.  The mere reference to gender bias, by him, does little more than raise that as a phrase; he has not indicated any factual matters which would support that.  To say that I have from time to time decided against him in the interim applications is not to indicate that I have shown any bias. 

22. I take into account the history of the proceedings.  I am not satisfied that the father has established that he has been denied natural justice when appearing in front of me, nor has he established that a fair-minded lay observer might reasonably apprehend that I will not bring an impartial unprejudiced mind to the resolution of these issues. 

23. I therefore dismiss the father's application that I disqualify myself.

24. The independent children's lawyer makes an application for costs in the sum of $330 for the attendance today. In relation to this matter, I am bound by the provisions of section 117 of the Family Law Act which sets out the matters to be considered; one of them is whether the application has been wholly unsuccessful; the others significantly relate to the financial circumstances of the parties, in particular the party being ordered to make the payment of costs.

25. Taking into account all of the factors in section 117, and in particular that the father has been wholly unsuccessful in relation to his most recent application that I disqualify myself, I am satisfied that it is appropriate, just and equitable that there be an order for costs.
    

26. Turning to the question of the capacity of the husband and his financial circumstances, I also take into account that he is in receipt of a limited amount of WorkCover payments, out of which he has to provide outgoings for his home and other daily expenses.  Taking into account those factors, I propose to give the husband time to pay the costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  2 February 2007