Chranley and Smart (No 2)

[2011] FamCA 200

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO 2) [2011] FamCA 200

FAMILY LAW - COURTS AND JUDGES – disqualification – application by the father seeking disqualification of the Judge on the grounds of apprehended bias – where the father’s complaints centre around his dissatisfaction with past decisions and the delay in arriving at such decisions – where the father has failed to establish that a fair minded observer might reasonably apprehend that the Judge would not bring an impartial mind to the matter – application dismissed

Family Law Act 1975 (Cth)

British American Tobacco Australia Services Limited v Laurie [2011] HCA 2
Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson & Johnson (2000) 201 CLR 488
Re JRL; Ex parte CJL (1986) CLR 342

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

FILE NUMBER: ADC 207 of 2008

DATE DELIVERED: 18 March 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 18 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The application in a case filed by the Applicant on 7 February 2011 for the discharge of the Independent Children’s Lawyer is dismissed.

2. The application in a case filed by the Applicant on 7 February 2011 being document number 134 on the court file seeking that Justice Strickland be disqualified is dismissed UPON NOTING that the application may be reinstated if at any time Justice Strickland is further listed to hear any proceedings in this matter.

3. The application in a case filed by the Applicant on 7 February 2011 being document number 126 on the court file seeking that Justice Dawe be disqualified is dismissed.

IT IS DIRECTED THAT:

1. The outstanding contravention applications which are currently before the court are adjourned for mention before the next available judicial officer who will fix the final hearing date.

2. The parties be notified in writing of the listing date and time of the contravention applications with such notification to be sent to their respective addresses for service on the court file.

IT IS NOTED that publication of this judgment under the pseudonym Chranley & Smart (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 207 of 2008

Mr Chranley

Applicant

And

Ms Smart

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. There are two applications which are before me today.  I have already dealt with the application in relation to the Independent Children’s Lawyer Mr Hemsley.  I have made orders dismissing that application because the Court is now informed that another Independent Children’s Lawyer has been appointed to act in this matter. 

2. The applications that are, therefore, before me this morning are the application in a case brought by the father and filed on 7 February 2011 (document 126) which states:

   i)That this application be listed as urgent.

   ii)Dawe J be removed from all matter involving myself.

3. The other application is the application in a case filed by the father on 7 February (document 134) in which the father seeks similar orders in relation to Justice Strickland, namely, that Justice Strickland be removed from “all matter involving myself”.  In support of that latter application, the father has filed an affidavit, document 135, in which he lists in annexures to that affidavit complaints that he makes both in relation to Justice Strickland and myself, and the Independent Children’s Lawyer, as he then was, Mr Hemsley.  Mr Chranley has this morning read out sections of those annexures on to the transcript before the Court.

4. The application in a case was listed before me this morning.  Justice Strickland has refused to hear the matter.  He is not now sitting as a Judge at First Instance on a regular basis.  He has no matter in relation to the proceedings between the mother and father listed before him.  As an Appeal Court Judge it is unlikely that any matters at First Instances will be listed before him in the immediate future.  Any consideration of the merits of the application would have to be determined by Justice Strickland himself.

5. On the basis, however, that the application is not appropriate because Justice Strickland has not been appointed to hear any matter or consider any of the outstanding applications in this matter, I dismiss the application brought by the father.  I will make it clear in the orders that any application to ask that Justice Strickland be disqualified from further hearing in this matter, is able to be reinstated if at any time Justice Strickland is further listed to hear any proceedings in this matter. 

6. In relation to the other application in a case, which is the application brought by the father that I disqualify myself, it is necessary to consider the material that the father has filed and to which he has referred in his submissions.

7. The lengthy submissions of the father refer to his affidavits.  He read material from those affidavits, out loud in the Court.

8. I have read and considered all the father’s affidavits.  I have heard and considered Mr Chranley’s submissions this morning. 

9. The mother also appears unrepresented this morning and does not support the applications brought by the father.

10. I refer to the sections of the Act which refer to the appropriate action to be taken in relation to hearings of contempt and contravention proceedings.  Initially the contravention proceedings were filed in the Federal Magistrates Court.  The Federal Magistrates Court transferred those matters to the Family Court of Australia.

11. The matters then came on for directions in the usual course before Registrars and for directions before me.  Eventually the applications were listed for final hearing for five days (notwithstanding the fact that the father maintained at the time that it would take considerably longer to hear the contravention and contempt applications).  One of the reasons for the delay was the need to find a substantial amount of time to hear the matter in the busy judicial lists. 

12. When considering the question of disqualification, I take into account that the authorities clearly state:

    “That the test to be applied in Australia in determining whether a Judge is disqualified…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.”

    (Johnson & Johnson (2000) 201 CLR 488, a decision of the High Court).

13. The decisions often referred to also include the comments of His Honour Mason J, as he then was, in Re JRL;  Ex parte CJL (1986) 161 CLR 342 at 352, where it was said that:

    “It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation.  It needs to be said loudly and clearly, that the ground of 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 questions 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 provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.

    In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. 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 disqualification of a Judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

14. The High Court has also made significant comments in the well known case of Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337. In paragraphs 19 to 21, the High Court made significant comments in relation to the question of disqualification and, in part, said:

    “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 Judges.”

    It was also said in paragraph 20 of that judgment:

    “However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench.  That would be intolerable.”

15. There is the recent decision of the High Court of Australia in British American Tobacco Australia Services Limited v Laurie [2011] HCA 2. In that case, the majority of their Honours, Haydon, Kiefel and Bell JJ found that the judicial officer was disqualified from further hearing because of the specific finding of fraudulent behaviour that had been previously made in a matter concerning one of the parties. The decision, however, confirms the authorities to which I have referred, insofar as their application is to this matter.

16. The authorities also refer to the two-step process, which was articulated in the decision of Ebner (Supra); the first step being to identify the matter which is said to give rise to the apprehended bias and the second step is to require consideration of the logical connection between the matters identified and the possibility, real, not remote, of a deviation from the course of deciding the case on its merits. 

17. In this matter before me, the father has complained of many things in the past.  One of the significant matters which he complains about is what he alleges to be the failure of the Court to hear the applications for contempt and contraventions within an appropriate time.

18. The listing of the matter was, indeed, delayed, but there is no material put before the Court which can substantiate any finding that the delay in hearing the matter was a step taken by me to deliberately withhold the applications in any way.  The numerous applications for contraventions and contempts, which were filed first of all, in the Federal Magistrates Court and subsequently, in the Family Court of Australia were listed for final determination without any direct influence from any judicial officer of the Court, other than based upon the necessity of hearing other matters which were listed and which also required hearing.

19. The father also complains about the decision that I made in relation to the dismissal of the contempt applications. The reasons I gave for the dismissal of the contempt applications are set out in the reasons given on 9 August 2010 and relate to the findings that the father had failed to establish the flagrant challenge to the authority of the Court as required by section 112AP. The reasons are some 11 pages in length and do not include findings of credit in relation to the father. Rather, they are a conclusion based upon findings of his inability to satisfy the necessary conditions of the Family Law Act.

20. In the father’s submissions, he also refers to the failure of the Court to hear him on the application in relation to final orders.  As the mother points out, the final orders were made at a time when the father had discontinued any proceedings in relation to the final orders.  At that time, the only matters which had not been discontinued by the father, were the contempt and contravention applications alleging the mother’s past behaviour amounted to contraventions or contempts.  The proceedings in relation to the determination of those final orders were made by me and reasons were given at that time, having previously considered and given reasons for the decision to hear the matter as an undefended matter.

21. The material that the father refers to in particular, in relation to the mother being allowed to refer to the contract which the mother said, “The daughter had signed”, is material which was referred to by the mother in the hearing of the final orders application.

22. The significant matter in the decision made by me in relation to the final orders application in the undefended proceedings, was the material provided by the Family Consultant.  The alleged contract entered into by the daughter has not been considered by this Court as any form of binding contract, rather, and merely as an expression of the child’s views.

23. Mr Chranley interrupts and refers to the contract in the context of the contempt proceedings.  I do not accept his interruption submissions that the Court has, in any way, upheld the validity of a contract entered into by the underage child. 

24. The father has made some comment and cheered, “Woohoo”, but I did not hear all of the comment when he was interrupting the delivery of my reasons.

25. The complaints that the father makes establish clearly that he has been unhappy with the results of the decisions and unhappy with the delay in making those decisions.  The application has been heard and decisions being made.  The father has, however, not established that the significant requirement, namely, that as the authorities require that 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.

26. The complaints that Mr Chranley makes in summary can, therefore, be characterised as complaints that he is not satisfied with the decisions that the Court has made in those circumstances and that he is unhappy with the outcome, rather than that he has established in any way that the matters complained of are sufficient to fall within the category of either the first or second step mentioned in Ebner (Supra). 

27. The father has clearly established that he believes that, if I were to hear further proceedings in this matter, it is likely that I would make a decision adverse to him.  However, he has not established that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions that require to be decided.  There is therefore no basis upon which it is proper for me to disqualify myself from further hearings in this matter.

28. The application in a case in relation to my disqualification filed on 7 February 2011 is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 18 March 2011.

Associate: 

Date:  29 March 2011