Collins and Ricardo (No 2)

[2011] FamCA 533

FAMILY COURT OF AUSTRALIA

COLLINS & RICARDO (NO 2) [2011] FamCA 533

FAMILY LAW – PROCEDURAL – disqualification application

Family Law Act 1975 (Cth)

APPLICANT: Mr Collins

RESPONDENT: Ms Ricardo

INDEPENDENT CHILDREN'S LAWYER : Ms Weate

FILE NUMBER: SYC 4959 of 2009

DATE DELIVERED: 1 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 1 July 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Autore & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate & Associates

Orders

1. Leave be granted to the father to make an oral application for an order that I disqualify myself.

2. The father’s oral application made today be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4959 of 2009

Mr Collins

Applicant

And

Ms Ricardo

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the father has been granted leave to make an oral application that I disqualify myself on the basis of bias.  He did not indicate whether he was alleging actual bias or perceived bias. 

2. There are a number of things he complained about and I will deal with each of them.

3. The first complaint was my ruling that the mother could rely upon an affidavit which was served late.  Both parties have failed in the past to comply with procedural orders for filing evidence.  I have indicated to the father that he will have an opportunity to respond to anything new in the mother’s most recent affidavit.  This matter will not conclude in the five days originally scheduled for the hearing which will provide the father with a greater opportunity to respond. 

4. The next complaint was an assertion by the father that he had been put under pressure in terms of not being able to have adequate sleep or eat properly during the course of the days of the hearing because he had to prepare his case.  He has not particularised what I have done which has placed him under that pressure and so I place no weight on this assertion.

5. Although accepting that he had the opportunity to look at certain files in the Wollongong registry over a five day period, an arrangement which I made by way of orders dated 4 April 2011, the father complains that I showed bias in that I did not, on 4 April 2011, give him photocopy access immediately.  That complaint is maintained, notwithstanding that the order of 4 April 2011, whilst not giving immediate photocopy access, said that after he had inspected the files, he could make an application for photocopy access, and I would, at that stage, determine what parts of the file, if any, he might be appropriately allowed to photocopy. No such application was made between April and the commencement of the trial this week.  The father was also afforded access to material in the court room for various significant periods when the court was not sitting to hear this matter. 

6. The father complains that, even though I explained procedural matters to him three times, he sometimes does not understand what I am telling him, and complains that my language to him is not sufficiently simple for him to understand those matters.  The father is not a novice in a court room.  I do not accept that the father has failed to understand things that I have said.

7. The father complains that I had prejudged the final outcome of this case by making some preliminary comments yesterday about the possible parameters for an interim application in relation to S seeing her father, which was foreshadowed to be dealt with today.  There is nothing in the comments I made yesterday which showed any prejudgment of either the application that might be made in relation to interim orders this afternoon, or my final determination.  In any event, all the comments were made in the context of the foreshadowed interim application today; they were not made in the context of any final outcome of these proceedings. 

8. The father complains that limitations were placed upon him in respect of his cross-examination of Mr B, and that I have also foreshadowed that I will control in some way the future cross-examination of all witnesses in this case.

9. Division 12A Part VII of the Family Law Act 1975 (Cth) (“FLA”) places an obligation on a trial judge in child-related proceedings to conduct those proceedings according to certain principles. Those principles are set out in s 69ZN FLA (see in particular ss 69ZN(4) and (7) FLA). Additionally there are general duties of the court imposed upon the trial judge in s 69ZQ FLA (particularly s 69ZQ(1)(c) FLA). It is quite clear when reading these provisions that Parliament has imposed a duty on the court to keep some control over child-related proceedings so they do not meander into areas of irrelevancy. I am required to set some boundaries for the amount of time parties are allowed to ask questions about particular things of particular witnesses and generally, so that the evidence is confined as much as possible to subjects that might be relevant to issues that I am going to have to take into account under the FLA when making a decision about S.

10. I indicated before Mr B gave evidence my general concern about the relevance and probative value of an extensive review of his relationship with the mother.  I do not repeat those comments here, but they are on the transcript.  I am required by Parliament to do what I have done in this case; that is, exercise a discretion in terms creating some conditions as to how information comes before the court.

11. There is nothing in the submissions made by the father that would have me find that it would be appropriate for me to disqualify myself in this case, and I decline to do so.

I certify that the preceding eleven (11) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 1 July 2011.

Associate:   

Date:  11.7.2011