Darcy and Cameroon (No 6)

[2010] FamCA 384

FAMILY COURT OF AUSTRALIA

DARCY & CAMEROON (NO. 6) [2010] FamCA 384

FAMILY LAW – PRACTICE AND PROCEDURE – Response filed by the mother seeking that the judge be disqualified and that the Independent Children’s Lawyer and counsel for the Independent Children’s Lawyer be removed – where the mother complains that the judge and lawyers involved have not accepted her version of events and that inappropriate orders have been made – where there is no basis for the disqualification of the judge or the removal of the Independent Children’s Lawyer or counsel for the Independent Children’s Lawyer – mother’s response dismissed

Family Law Act 1975 (Cth) s 100B

Lloyd and Lloyd and Child Representative (2000) FLC 93-045

Re JRL ex parte CJL (1986) 161 CLR 342

APPLICANT: Ms Darcy

RESPONDENT: Mr Cameroon

INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

FILE NUMBER: ADC 928 of 2007

DATE DELIVERED: 23 April 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 23 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Charman

SOLICITOR FOR THE RESPONDENT: Ian Charman & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

Orders

1. That the Response to an Application in a Case filed by the mother on 11 January 2010 be dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Darcy & Cameroon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 928 of 2007

MS DARCY

Applicant

And

MR CAMEROON

Respondent

EX TEMPORE REASONS

1. I have before me an application in the form of a Response filed by the mother on 11 January 2010 which, although previously through her solicitor the mother had indicated she was not pursuing, she now does pursue and I set that matter down for hearing today.  The Response seeks a number of orders which are a little hard to follow, but I have confirmed with the mother that what she is seeking, and not necessarily in any particular order, is firstly, that I be disqualified from this case and from hearing any further application in this case, next that the Independent Children’s Lawyer be removed, next that Mr Charman, the father’s solicitor, be removed and next that Mr Boehm, as counsel for the Independent Children’s Lawyer, be removed. 

2. Now, there is an affidavit in support of that Response, filed by the mother on 11 January 2010 and I have heard further submissions from the mother today in support of each of those applications.  Perhaps pausing there, I clarified with her the issue in relation to Mr Charman and it was that Mr Charman, she says, is aware that his client has lied and he, Mr Charman, has assisted in that process.  That has now become the specific allegation that the mother makes in relation to Mr Charman.  I note that that is slightly different from the case presented in her affidavit and in the Response itself.  By that I mean she sought his removal, and I quote, “due to his taking a personal interest in the case”.  Now, I am unclear as to precisely what that means.  I suspect, though that reading between the lines, that relates to for example, Mr Charman filing an affidavit in this case where he deposes to events that he observed and which are issues that are in dispute in this case. 

3. I explained to the mother that there is no basis there for this Court to make any order, even if it could, in the terms that she seeks, namely the removal of Mr Charman.  Injunctions can be sought restraining legal practitioners acting for particular parties, for reasons such as conflict of interest, but beyond that there is no basis for this Court making any order, and in particular making the order sought by the mother, and I think she understood and accepted what I was saying to her about that. 

4. I also informed her that if she suggested that Mr Charman, for example, has acted inappropriately in his professional capacity, then there may the opportunity for her to make a complaint to, for example, the Law Society of South Australia, but usually that is a situation where the solicitor’s own client makes a complaint against their lawyer’s conduct.

5. In these circumstances I understand that the mother no longer pursues the order for the removal of Mr Charman because, as I say, I do not consider that it is an order that I can make in the circumstances.  Thus I propose to dismiss the application, insofar as it seeks that order.

6. Perhaps at this point I can make a general comment that in my view, given the history of this matter, the nature of the matter and particularly where the matter has now reached, this entire application is a nonsense application.  It is an application filed while the mother was acting for herself, and that is apparent because in her affidavit in support she has not sought to address the criteria which apply when seeking the disqualification of the judicial officer and nor has she sought to address the criteria which might lead to the removal of an Independent Children’s Lawyer. 

7. The tenor of her affidavit and her submissions today are that the Judge, namely, myself, and all the lawyers involved, including the Independent Children’s Lawyer, have not accepted her version of events and orders have been made which she sees as inappropriate.  Those orders have been made as a result of not accepting her version of events but accepting the versions of events put by the father, or from the bar table by the Independent Children’s Lawyer or his counsel, or via Dr A, who is the Family Consultant in this case. 

8. That is the nature of the complaints that are made.  That is not all of them, but that is the generality of the complaints that are made and if the mother had bothered to seek some legal advice about whether that was an appropriate basis to seek the orders that she sought, I suspect that we would not be here today.  It is a waste of this Court’s time to have to deal with applications such as this, but this matter is littered with such applications.  By that I mean applications brought without proper bases and, unfortunately, because I am not able to give a trial date to this matter yet, the prospect is that that will continue.

9. Now dealing specifically with the issues in terms of the disqualification of myself, a recitation of the principles emanating from the cases which govern this area will readily indicate that this application is ill founded.  The test 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, and quoting, as I will now, from what Mason J said in Re JRL ex parte CJL (1986) 161 CLR 342, namely:

   “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.”

10. That is precisely my point here.  The mother says I should not have made the orders that I did, and that I accepted versions of facts which are incorrect because they are not her versions.  I did not allow certain evidence, and thus I should be disqualified, but that is not the test, and there is no basis whatsoever in the affidavit material or in submissions today which indicates that the test is satisfied. 

11. One of the major complaints of the mother is that I refused to accept, in the context of an interim application, a letter written by the child. Section 100B of the Family Law Act 1975 (Cth) provides that:

    (1)    A child, other than a child who is or is seeking to become a party to proceedings, must not swear an affidavit for the purposes of proceedings, unless the court makes an order allowing the child to do so.

    (2)    A child must not be called as a witness in, or be present during, proceedings in the Family Court, or in another court when exercising jurisdiction under this Act, unless the court makes an order allowing the child to be called as a witness or to be present (as the case may be).

12. The reasoning behind that section is that letters written by children to the Judge, affidavits of a child or any other document that you might think of presented by one of the litigants suggesting that this is something that the Judge should have regard to is frowned upon for obvious reasons.  The proper way to put before the Court the views of a child are via experts and in particular in this case, via the Family Consultant, Dr A.  That does not prevent the parties themselves, as has happened in this case, and happens in most cases, in affidavit material deposing to what the child says to them.  That is perfectly acceptable.  However, it is not open for the mother here to expect that the judicial officer would receive something written by the child and act on it. 

13. This is a case where I have expressed a preliminary view, and that view has been supported and indeed conceded by the mother's counsel, namely that the mother has influenced and coached this child.  Thus clearly, there are ample reasons and continue to be ample reasons why I would not accept and receive into evidence and act upon a letter written by the child the subject of these proceedings. 

14. Another complaint the mother makes is that I would not allow a witness that she wanted to call to give evidence at an interlocutory hearing.  She phrased it differently today, and I note that she said I would not give permission to subpoena Ms W, who was the witness concerned.  But that is incorrect.  What was requested of me on the day was that the court ring Ms W and say, "we are in court now, can you come and give evidence in this case."  An outrageous proposition by the mother and one totally unnecessary in the circumstances.  If the mother wishes to subpoena a witness in her case, there is an appropriate process for it, namely, seeking leave, establishing the relevance of what the witness says and then the Judicial Officer making the decision about it.  What the mother says in this case changes with the wind. 

15. I do not propose to address anything more than what I have said already in terms of my disqualification.  There is no basis whatsoever for me to disqualify myself in this case. 

16. Next and finally I turn to the position of the Independent Children's Lawyer and his counsel.  As the mother has explained, she is treating Mr Boehm as counsel, as being, in effect, one and the same as Mr Croft, the Independent Children's Lawyer, and what applies to one applies to the other.  Her complaints are that the Independent Children's Lawyer has not supported her in this case, that the Independent Children's Lawyer has told “the State”, and she has identified that as referring to the police, that they are not allowed to act with regards to any actions by the father directed towards her daughter, that the Independent Children's Lawyer is aware of abuse by the father of her daughter, that he is aware that the father has lied, and that there is a difference – this relates particularly to Mr Boehm and arises in paragraph 4 of the mother's affidavit – that there is a difference between what Mr Boehm told this Court as to the number of reports that had been made through the school as compared with the actual number of reports. 

17. Now, Mr Boehm has referred me to the decision of Holden CJ in a case of Lloyd and Lloyd and Child Representative (2000) FLC 93-045 where his Honour addressed the issues which might lead to the removal of an Independent Children's Lawyer, and I agree with the submission of Mr Boehm that looking at the facts presented in this case and comparing that with what his Honour said in Lloyd (supra), there is nothing in the wife's affidavit or in her submissions today which would require the removal of the Independent Children's Lawyer.  Again, it is a matter of the mother saying, "this is my version, this is what I say happened," and anybody who disagrees with her is then the subject of a request by the mother for that person to be, for example, removed from the case or not listened to. 

18. There is no basis set out in the affidavit, or in submissions as to why the Independent Children's Lawyer in this case should be removed, nor counsel instructed by that Independent Children's Lawyer. 

19. Thus I propose to dismiss the mother’s response.

20. Finally, and just to recap, I also propose to make an order that the mother file her responding affidavit to the amended application alleging contravention by next Wednesday, I propose to nominally list this matter in the second half of the week of 3 May, and by nominally, I mean I will have everyone advised as to the precise time and before whom it will be, whether it will be me or Watts J, and that will be from the point of view of giving the mother the opportunity to think about the witnesses that she wants to call, and on that day making orders if necessary for the issuing of subpoenas and the filing of further affidavits. 

21. The other topic that I had hoped to address today, but given the constraints of time and the unavailability of Mr Charman, we might have to leave until that day as well, and that is, I want to make a specific order about what Mr F is going to do.  It may be that it is worthwhile to take a step back and think about that, before I launch into making that order.  It may be that we get Dr A back again to assist us with that process, given the way things have developed today.  It has been somewhat unsatisfactory that she cannot be here today and tell us precisely what she had in mind and what is proposed.

22. Thus it is highly likely that the matter will be listed before me rather than Watts J because, of course, he knows nothing about this case and it is logical that I do it.  If that is the case, it is also highly unlikely that it will be in that week of 3 May 2010.  It is more likely to be in the subsequent week.  

I certify that the preceding 22 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 23 April 2010.

Associate