Earles & Highsmith (No 4)

[2012] FamCA 1132

FAMILY COURT OF AUSTRALIA

EARLES & HIGHSMITH (NO 4) [2012] FamCA 1132

FAMILY LAW – CHILDREN – Application by Independent Children’s Lawyer in respect of implementation of Final Orders made on 8 October 2012 in light of recent developments – Application by father to vary the commencement date of certain Orders – Commencement date of one month period child not to spend any time with mother varied

FAMILY LAW – DISQUALIFICATION – Application by mother to disqualify presiding Judicial Officer from further hearing the matter – Submissions made to the effect there had been alleged actual bias on the part of the Judicial Officer - No finding of any apprehended or actual bias – Application upheld, save and except for reserved costs of the Independent Children’s Lawyer, on ground that mother lacked any faith that the Judicial Officer would properly discharge their judicial obligations and duties

Family Law Act 1975 (Cth)

APPLICANT: Ms Earles

RESPONDENT: Mr Highsmith

INDEPENDENT CHILDREN’S LAWYER: Ms Soliman

FILE NUMBER: PAC 3528 of 2008

DATE DELIVERED: 13 December 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 13 December 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

COUNSEL FOR THE RESPONDENT: Ms Boyle

SOLICITOR FOR THE RESPONDENT:

Mr Richardson

James Richardson Family Lawyers & Notary Public

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms De Vere

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Soliman
Legal Aid Nsw Parramatta Family Law

Orders

1. That the period of one (1) month, as specified in my Orders of 8 October 2012, shall commence to run from the day after the date upon which the child came back into the father’s care pursuant to the recovery order.

2. That I disqualify myself from further conduct in this matter, save and except, the issue of costs.

3. That I otherwise stand all matters over to be heard by any other Judge to whom this case is allocated but not be listed before 1 February 2013.

4. That any application for costs shall be filed within fourteen (14) days.

5. That I stand this matter over for completion of the costs argument at 9.30 am on Thursday, 21 February 2013.

6. That the Independent Children’s Lawyer shall serve upon the mother a detailed account of the sum claimed as a result of her application including the costs of part of today and the costs of the next projected occasion.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Earles & Highsmith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3528 of 2008

Ms Earles

Applicant Mother

And

Mr Highsmith

Respondent Father

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me today in respect of a number of applications.  The matter was relisted initially by the Independent Children’s Lawyer to raise issues in connection with the mother’s reintroduction to the child in accordance with my Orders of 8 October 2012. 

2. An application has been made by the father for orders that in some way vary or amend certain Orders made on 8 October 2012.

3. The mother, appearing for herself, has now indicated that she seeks that I disqualify myself from any further hearing of this matter.  She says that I am biased and, as I understand her application, she alleges it to be actual bias, rather than apprehended bias.  It is her case, as I understand it, that throughout these proceedings the matter was such that she was not given an opportunity to present evidence and, as I understand her application, there were other matters that she says other people have done that in some way interfered with the proper discharge of my duties and obligations as a Judicial Officer.

4. There is an appeal before the Full Court of the Family Court.  I had real difficulty in explaining to the mother which areas are areas for appeal and which are areas otherwise for me. 

5. I am prepared to disqualify myself, not because I concede that there has been any apprehended or actual bias, but rather because the mother herself feels that it is impossible for me to bring a proper mind to this case and deal with it according to the law and the evidence.

6. If the mother can succeed in her appeal then of course she will be in a position to posit other orders to the Full Court, or another Judge if the matter is remitted for trial, as to what should occur in respect of this child. 

7. In the meantime, I note that there has been an application made before me for a stay, which I refused.  I understand the issue of my refusal of stay is to come before the Full Court in the immediate future.

8. With some real misgivings and with some apology to the other parties involved, because I am aware of what a new Judge getting involved in this matter will mean as to cost and all other matters, I am prepared, as I have said, to disqualify myself, save as to the issue of costs.

9. However, before I do that, I will order that the period of one month as specified in my Orders of 8 October 2012, in which the mother was to have no time with the child, shall commence to run from the day after the date upon which the child came into the father’s care pursuant to the Recovery Order.

10. I then make the remaining orders as set out at the forefront of this Judgment.

11. As I have said above, my disqualification does not affect me from hearing the outstanding reserved costs application of the Independent Children’s Lawyer in respect of two of the mother’s recent applications.  I note that the quantum sought by the Independent Children’s Lawyer in this regard is a sum of $2,947.70 and that amount is sought on the basis that the mother was wholly unsuccessful in both those respective applications.  I stand this matter over for completion of the costs argument to 21 February 2013.

12. I otherwise stand all other outstanding matters at first instance over to come before and be dealt with by a Judge other than myself on a date to be allocated, but not before 1 February 2013.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 13 December 2012.

Legal Associate:      

Date:    12 February 2013