CLANCY & SAWYER (NO.4)
[2013] FMCAfam 1468
•14 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLANCY & SAWYER (NO.4) | [2012] FMCAfam 1468 |
| FAMILY LAW – Application for disqualification on grounds of ostensible bias – application orally made and unsupported by either affidavit or specific portions of transcript – matters to be considered – application opposed – proceedings adjourned to allow formal application made for disqualification to be made. |
| Family Law Act 1975 (Cth) |
| Applicant: | MS CLANCY |
| Respondent: | MR SAWYER |
| File Number: | ADC 427 of 2010 |
| Judgment of: | Brown FM |
| Hearing date: | 14 December 2012 |
| Date of Last Submission: | 14 December 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 14 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lee |
| Solicitors for the Applicant: | Franklin Legal |
| Counsel for the Respondent: | Ms Read |
| Solicitors for the Respondent: | Boril Olds Solicitors |
ORDERS
The children [X] born [in] 2000, [Y] born [in] 2002, and, [Z] born [in] 2005 spend time with the mother on Christmas Day between 2pm and 6pm with handover inside the [omitted] Police Station to be effected between the mother and father only attending on the inside of the police station with the children.
In the event the mother fails to return the children to the father at the conclusion of time spend referred to in paragraph 1 herein that a recovery order do issue authorising and directing the Marshall, all officers of the Australia Federal Police and all officers of the Police forces of all states and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)To find and recover said children [X] born [in] 2000, [Y] born [in] 2002, and, [Z] born [in] 2005.
(b)To deliver the said children to the father at such place as the officers giving effect to the Recovery Order may agree with the father;
(c)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable excuse to believe that the said children may be found.
The mother file and serve an affidavit in relation to disqualification by no later than 10 January 2013.
The father file and serve any answering material by no later than 17 January 2013.
Further consideration of the matter, the no case submission and any application for disqualification is adjourned to 21 January 2013 at 10:00am.
IT IS NOTED that publication of this judgment under the pseudonym Clancy & Sawyer (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 427 of 2010
| MS CLANCY |
Applicant
And
| MR SAWYER |
Respondent
REASONS FOR JUDGMENT
Once again, the matter of Sawyer & Clancy is listed before me. It follows an oral decision I handed down on 7 December 2012, in which I ordered that the parties’ middle child, [Y], be returned to the care of his father, Mr Sawyer. Given the urgency of the situation, it was expedient that an ex tempore judgement be delivered in respect of arrangements for [Y]’s care.
I adjourned the proceedings until today because I was well aware that that decision would be highly controversial, so far as the parties were concerned, particularly for Ms Clancy.
In that context, I deemed it appropriate that I provide more extensive reasons for judgment in support of my decision. Another part of my rationale in adjourning the proceedings was that I determined that an independent children’s lawyer should be appointed for the parties’ three children.
That being the case, I thought it would be likely to be useful if there was a written record to assist the independent children’s lawyer, when appointed, with the history of the matter to date.
Today I have handed down that decision. It follows three earlier written decisions, which I have delivered in respect of arrangements for the care of the parties’ the children, beginning with a judgment which was delivered in 2010.
One further consequence of this decision is that today, Ms Lee, who has been the mother’s counsel through much of the proceedings, has made an oral application for me to disqualify myself.
The basis of that application, which is as yet not supported by an affidavit, or any portions of a transcript of proceedings, in which I am alleged to have displayed some species of bias, has to be dealt with at this stage. Again the circumstances dictate that a preliminary decision be made expediently and an orally delivered decision made.
Federal magistrates and judges have a duty to hear the cases listed before them, in accordance with the listing practises of the court to which they belong. The Federal Magistrates Court operates a docket system. What that means is that cases are assigned, at random, to individual federal magistrates, who are to deal with them until finality.
In addition, when a file is reactivated because of a subsequent application, the docket system requires that matter be reassigned to the original federal magistrate who initially dealt with the parties concerned.
The rationale of the system is that the individual federal magistrate concerned will have become familiar with the case and the family concerned, and therefore it will not be necessary for another person to have to come to grips with what can very often be a complicated history of applications, counter-applications, and contested circumstances.
As a result of the docket system, I have been involved with this particular family for a period approaching three years in duration, since Mr Sawyer first commenced proceedings in this court. The litigation between the parties has been almost continuous in the period since.
As I have already indicated, I have made at least four decisions in this case, which have been highly controversial. Given the nature of the docket system, I am not at liberty to decide which particular cases I will hear. That is the principle of law that is in place in every court in this country.
Similarly, litigants are not entitled to decide who will hear their cases. Accordingly, it is a significant matter to ask a judicial officer to disqualify himself or herself from further involvement in a case properly listed before him or her.
The fact that I have made controversial decisions in a case, with which one or indeed both of the parties may disagree, is not a ground for disqualification for bias.
The application must be made on some substantial ground relating to the fundamental principle that justice should be dispensed fairly, openly and impartially.
The High Court in Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337 at page 348, said as follows:
Judges do not choose their cases, and litigants do not choose their judges. If one party to a case objects to a particular judge sitting or continuing to sit, then that objection should not prevail unless it is based on a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
In this matter, Ms Lee, as I say, has not been in a position to formulate a written application for me to disqualify myself, which is supported by either an affidavit or a transcript.
I concede that I have made decisions, in the past, which are likely to have been controversial, so far as Ms Clancy is concerned. Similarly, I have made decisions which Mr Sawyer has indicated in my presence in Court which he finds to have been incorrect.
By way of example, the present proceedings were adjourned from late November to 7 December, at Ms Clancy’s application, so that she could file answering material in respect of matters raised by
Mr Sawyer. Mr Sawyer and his legal practitioner at the time,
Ms Mondello, expressed in no uncertain manner that they disagreed with the adjourning of the proceedings, which they thought favoured Ms Clancy.
So it was in earlier this year, when Mr Sawyer’s application for a recovery order in respect of the children was adjourned so that
Ms Clancy could answer it. Again, as I recall Mr Sawyer was discontented with this decision thinking Ms Clancy had been given too much accommodation by the court.
At this stage, it is my apprehension that Ms Lee’s complaints about me on behalf of her client are somewhat inchoate and undeveloped. It is not sufficient that it be indicated that I have made decisions which are unfavourable to Ms Clancy, or that I have criticised aspects of her evidence. That, after all, is my function.
It was also my function to assess the respective evidence of the parties, in the context of a four-day contested hearing, which took place in 2011. As I have observed on more than one occasion, that decision was not appealed. As such it must be taken to be in the best interest of the children affected by the decision, whether the parties agree with it or not.
Thereafter, it is Mr Sawyer’s position that Ms Clancy has not abided by the conditions of the orders, and the children concerned have not been properly returned to his care in accordance with the orders.
There have been two applications on his part for a recovery order. Each of which has been successfully entertained after, on her application, Ms Clancy was given the opportunity to file answering material.
The test of whether a judge is to be disqualified by reason of 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.
On the basis of the material thus far advanced, I do not propose to disqualify myself. It may be the case that the mother will wish to file a more extensive application and I will allow her to do that.
One of the reasons that the matter was adjourned to today was that, as I indicate in the written reasons, I acknowledge that it is a significant thing for me to interrupt the relationship between Ms Clancy and the three children concerned, particularly in the lead-up to Christmas.
Today the parties have been able to reach some agreement for the children to see their mother on Christmas Day. There is a tension between the mother wishing for me to disqualify myself, but also to deal with ongoing arrangements for the children in the context of Christmas.
It is said also that I have prejudged the contravention application which Ms Clancy has brought. The thing about the contravention application is that they are quasi-criminal proceedings in nature, and Ms Clancy bears the onus of establishing the contravention.
I have heard her evidence in respect of the contravention. What happens with the no case is uncertain, but in terms of prejudgment, I have heard her evidence. She will not be bringing any further evidence.
On that basis, I think it is difficult for her to assert that – in respect of subsequent proceedings, that I have prejudged them by way of making findings of credit about her. I have heard her evidence in respect of the contravention application.
In any event, I was not asked to disqualify myself prior to the hearing of the most recent application. It is regrettable that we are shortly in the lead-up to Christmas. It is regrettable that the independent children’s lawyer has not as yet been appointed. But at this stage, I can go no further with the matter, other than making the consent order which has been made, until I have dealt with any further application the mother may wish to make for me to disqualify myself.
So for those reasons, I will direct that the mother file and serve her application for me to disqualify myself on or before 10 January 2013, with the father to file and serve any answering material in respect of that application on or before 17 January 2013.
I will list the no case submission and any application for disqualification for further hearing on 21 January 2013 at 10.00 am, and otherwise, I will make orders in terms of the minute
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 14 December 2012
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