Elspeth & Peter (Disqualification No. 2)

[2007] FamCA 762

FAMILY COURT OF AUSTRALIA

ELSPETH & PETER (DISQUALIFICATION NO. 2) [2007] FamCA 762

FAMILY LAW - Courts and Judges – Disqualification – Bias - application for disqualification on grounds of perceived bias – order made.

APPLICANT: Elspeth

RESPONDENT: Peter

FILE NUMBER: HBC 748 of 2007

DATE DELIVERED: 30 July 2007

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 20 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Murray

SOLICITOR FOR THE APPLICANT: Roger Murray & Associates

COUNSEL FOR THE RESPONDENT: Mr McGuire

SOLICITOR FOR THE RESPONDENT: Temple-Smith Partners

Orders

1. That I disqualify myself from further hearing these proceedings.

2. That the costs of the application for disqualification be reserved.

3. That the contravention applications filed 31 May 2007 and 15 June 2007 and  application in a case filed 13 July 2007 be adjourned for hearing at Hobart on a date to be fixed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Benjamin delivered this day will for all publication and reporting purposes be referred to as Elspeth & Peter (Disqualification no 2).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 748  of 2007

Elspeth

Applicant

And

Peter

Respondent

REASONS FOR JUDGMENT

1. Elspeth (“the mother”) seeks an order that I be disqualified from hearing applications filed by Peter (“the father”) on

   
   

   31 May 2007 and 15 June 2007 alleging that the mother has contravened orders made by this Court.

2. The mother’s application in a case also sought other orders, pursuant to which the application has been adjourned pending determination of the disqualification application.

Background

1. The mother and father were married in May 1977 and separated in February 2003.  There are eight children of the marriage, three of whom remain under the age of eighteen years, namely L who turns seventeen in December 2007, J who is aged thirteen years and C who turns nine in December 2007 (“the children”).

2. The mother and father were both members of the Exclusive Brethren faith until early 2003 when the father ceased to be a member of that faith.  The father commenced proceedings for parenting orders in December 2004 and after a lengthy hearing before me in October and November 2006, reasons were delivered and final orders were made on 21 December 2006.  Those orders provided that the parties have equal shared parental responsibility for the children and that the children live most of the time with the mother and spend time with the father.

3. On 14 January 2007 the father endeavoured to spend time with the children pursuant to the orders made by me on 21 December 2006. He claimed that on that day the wife contravened those orders.  

4. A contravention application was filed by the father and it was initially listed before me on 19 February 2007.  On that day, counsel for the mother made an oral application that I disqualify myself from hearing the contravention application.  After argument I determined that I ought not be disqualified from hearing that application  and gave reasons.

5. The mother lodged an appeal against the determination that I not disqualify myself in respect of that application and on 4 June 2007 the Full Court heard that appeal.  The Full Court observed[1];

   27.The sole issue to be determined in the contravention application vis a vis the mother was whether she was in breach of the orders by simply relying upon or complying with the children’s stated wishes and not actively encouraging the children to go with the father on 14 January 2007.  There was nothing in the judgment of 21 December 2006 that would indicate that the trial judge was incapable of determining those facts in an unprejudiced and unbiased manner.  We see no error in relation to the trial judge’s refusal to disqualify himself from the hearing of those proceedings.

   [1] Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655.

6. On 20 February 2007 the contravention application was heard by me and I determined that I was satisfied that the wife had contravened the orders and had not provided reasonable excuse in respect of such contravention.  I imposed a penalty on the mother of four months imprisonment, which was wholly suspended, upon her complying with the orders made in December 2006 for a period of twelve months.

7. The mother lodged an appeal in respect of the finding and the penalty.  This appeal was heard by the Full Court and reasons were delivered on 4 June 2007.  The Full Court dismissed the appeal in respect of the contravention and allowed the appeal with regard to the penalty.

8. At the time of hearing the contravention application alleged against the mother there was a simultaneous hearing of contravention applications against an adult child of the mother (‘the son’) and a son in law of the mother (‘the son in law’).  The son and son in law were found to have aided and abetted the contravention of the mother and a penalty was imposed upon them in the same terms as those imposed upon the mother. Those determinations were also the subject of a Full Court appeal and those appeals were allowed.

9. On 31 May 2007 the father filed an application alleging that the mother had again contravened the order made on 21 December 2006.  A further contravention application was filed by the father on 15 June 2007.

10. On the disqualification application, both parties were represented by counsel and both counsel prepared and filed case outlines.  Those outlines were incorporated into the submissions made by the respective counsel.

11. The application for disqualification was limited to the hearing of the two contravention applications, although it was conceded by counsel for the father that if I was disqualified from hearing the contravention application it would inevitably follow that I would be disqualified from hearing further and substantive proceedings with regard to the parenting of the three subject children.

12. There was also no issue that if I determined that I was not disqualified from hearing the contravention applications it would not necessarily mean that this restricts any other application by the mother or other parties with regard to disqualification in respect of further hearings with regard to the children.

The submissions

1. The basis of the mother’s application is that there is an appearance of bias with regard to my hearing of the applications in that on objectively reasonable grounds the mother has an apprehension that the Judge in this case is biased.  Counsel for the mother submits that:

   A fair-minded lay observer might now reasonably apprehend that the Judge might not bring an impartial or unprejudiced mind, to the resolution of further proceedings between the parties herein, including but not limited to the said contraventions … that the grounds for such apprehension are substantial.

2. There seemed little issue between the parties as to the law that applies to such applications.  The issue is rather how the law ought be applied to the particular facts of this case. 

3. It is not suggested that there was actual bias, the question is whether I ought to be disqualified because of the appearance of bias.

The Law

1. In Johnson & Johnson No. 3 (2000) FLC 93-041 the High Court outlined the test to be applied in determining apprehended bias, that being: [2]

   [T]he test to be applied in Australia in determining whether a Judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of pre-judgment) is whether a fair minded lay observer might reasonably apprehend that the Judge might not bring an impartial and un-prejudiced mind to the resolution of the question the Judge is required to decide …

   [2] At page 87631-87632.

2. In Beinstein –v- Beinstein (2003) FLC 93-124 the High Court said[3];

   [3] At paragraph 30; 78105-78106.

   30.A Judge is disqualified from determining a case if the Judge is biased or a party or a member of the public might reasonably apprehend that the Judge is biased.  Bias exists if a Judge might not bring an impartial and un-prejudiced mind to the resolution of the issues.

   …

   36.A Judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds [emphasis added] are established.

3. Counsel for the father submitted that the approach to be adopted by the Court ought to be that which Mason J, as he then was, set out in Re JLR; Exparte CJL (1986) 161 CLR 342, namely:[4]

   It needs to be said loudly and clearly that the ground for 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 of issues on 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 or un-prejudiced 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 prejudgment, and this must be “firmly established”.

   [4] At page 352.

4. His Honour then went on to say:[5]

   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 a disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

   [5] Ibid.

5. It is clear that a judicial officer should be robust in addressing arguments that he or she should disqualify himself or herself on the basis of apprehended bias.

6. Counsel for the mother submitted that a number of facts, when looked at individually or together, would give a party or a fair minded lay observer reasonable apprehension that the Judge might not bring an impartial or unprejudiced mind to the issue in dispute.

7. There is no issue that the facts alleged in the contraventions of 31 May 2007 and 15 June 2007 are discrete factual events separate to those of 14 January 2007.  There is no issue, it seems, that each contravention application is by definition a “discrete event” and determined by its own factual situation.  I also accept the submission of counsel for the father that

   The fact of this particular Judicial Officer having made determinations of fact, contravention and/or substantive proceedings does not, of itself obligate the Judicial Officer to disqualify himself … consequently a reasonably lay person – would not and should not have an apprehension of bias in respect of this particular Judicial Officer hearing this particular factual situation.  The fact is to whether or not either of the parties has an [subjective] apprehension or expectation as to finding of fact is irrelevant.

8. In the primary proceedings I made adverse comments in respect of the father and the mother and positive comments in respect of the mother and the father.  At least as at February 2007 I was not obliged to disqualify myself.  It is submitted by the mother that it is both the reasons delivered on the February 2007 contravention determination specifically and/or those reasons read cumulatively with the earlier determination made in December 2006 that give rise to the obligation for me to disqualify myself.  Counsel for the mother has outlined the particular findings in the contravention reasons which give rise to a reasonable apprehension of the mother or objective person which underpin this application.  In the contravention proceedings heard 20 February 2007 I was critical of the mother as follows:

   ·    I stated that I did not accept the evidence of the mother as to whether a person, BH, had discussions with her in Launceston 24 January 2007.  I said:

   15. The wife gave evidence that she had had contact with a person called BH (a leader of the Exclusive Brethren) who visited Launceston on 24 January 2007, but she denies that she had any discussions with him in respect of these proceedings, in fact, denies she had discussions with anybody in relation to these orders.  I do not accept her evidence in that regard.

   ·I made a comment about photographs in the family home and expressed a view about there not being a photograph of the father.  I  said:

   18. At one stage during the evidence [the wife] was asked whether there was a photograph of the father in the children's home.  This was met with some laughter.  It struck me then how sad it was that this house was so poisonous of the father [sic] that the children could not even have a photograph of their father sitting in their home so they knew who he was.

   ·At paragraph 19  I said:

   It is not that the wife did not do the mechanical things to send the children, these were done …

   ·I stated that:

   23. It was put that Mr S was there because his wife was pregnant and she needed his support.  Yet his wife was brought to the home of the wife from her home, this can only lead to the conclusion that this was part of the pressure that was put on these children not to spend time with the husband and so that there would be overt expressions of compliance but no real compliance.  Both G and Mr S ought to have been at church.  They were not.  They were there in the most extraordinary circumstances.  Mr S said he was there because the father was aggressive, and yet throughout the trial there was no suggestion of that, no suggestion in his affidavits.  I do not accept their [the mother’s and her son’s and son-in-law’s] evidence explaining their reasons.

   ·I said;

   25. In the light of that approach, in the light of that evidence, the respondents cannot wash their hands and say, "Why don't these children go?"  These children are entitled, as I have said before, to have a relationship with their father.  The respondents have taken steps to prevent that relationship and prevent the children spending time with the husband, this behaviour is extraordinary and poor.

   ·At paragraph 27 I referred to the evidence of Constable F.  The mother submitted that this reference is  an example of negative views and negative attitudes that I have formed in relation to the mother and her family members. Specifically, I said;

   27. Constable F gave evidence, which was quite interesting particularly in relation to the children.  These were not children who were crying or bitterly upset about seeing their father, these were children who were quite calm, gave no reason why they were not going to see him except they did not want to go.  I infer from that evidence that these were not the views of these children but those who surrounded them, including the respondents.

   ·I made a finding as to credit with regard to the mother, I said;

   30. Where there is a conflict between the evidence of the father and the witnesses and the respondents, I accept the father's evidence.

9. The mother asserts that references were made to the relevant considerations in the course of my reasons given on 20 February 2007 and that I had formed a view that the mother had discouraged the children from spending time with the father in circumstances where her case is that she has not discouraged the children.  The mother is correct in that I found that she did discourage the children from spending time with the father.  That finding may be available to any judicial officer determining a subsequent contravention application.   

10. I have not set out the detail of all of the arguments and submissions raised by the counsel for the mother and the counsel for the father, however, I have considered all of their respective material.  The question is whether these facts constitute ‘substantial grounds’ upon which an objective determination can be made of an apprehension of bias.

11. Counsel for the father submits that the essence of the mother’s case is that whilst she has that subjective view it is not the view which could reasonably be adopted objectively by her or could be the objective and properly informed views of a party or of the independent observer. The father submitted that the reasons do not constitute substantial grounds.

12. A finding of credit does not necessarily in itself mean that there should be a finding of appearance of bias.  The finding must be considered in the light of the particular set of facts and the nature of the proceedings. 

13. The proceedings, which I am to hear, are not criminal proceedings, the rationale of these enforcement proceedings is to ensure that orders of the court are complied with. Even if they are “quasi criminal” proceedings there may well be a situation where similar facts are admitted and the “propensity” evidence is admissible.

14. The use of findings is expressly provided for in s 69ZX(3) of the Family Law Act 1975 (Cth). This provides;

    (3) The court may, in child-related proceedings:

    (a) receive into evidence the transcript of evidence in any other proceedings before:

    (i) the court; or

    (ii) another court; or

    (iii) a tribunal;

    and draw any conclusions of fact from that transcript that it thinks proper; and

    (b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).

15. Contravention proceedings are “child related proceedings”.  Child related proceedings are defined under s 4 of the Act as those to which s 69ZM applies. Section 69ZM defines the proceedings as those that are “wholly under this part [Part V11 - Children]”. Contravention proceedings are wholly within Part VII of the Family Law Act, being division 13A of that Part.

16. One of the arguments made by the mother is that once a judge makes an adverse finding against a party, in the context of a final hearing or even in a subsequent contravention application, then the judge ought not to be involved in further steps to ensure that those orders are complied with.  I do not accept that that is invariably the case. 

17. The nature of hearings that come before Family Courts are generally ones where parties are engaged in conflict and often high conflict.  In determining parenting cases judges are generally required to make findings and parties will from time to time disagree with findings. The parties who are unable to resolve their parenting conflicts and who then look to courts to make decisions often end up with orders that they do not like. In equity positive orders in personam are avoided but that is the general nature of parenting orders. The courts often impose positive orders on individuals to do things which they may not like to do. 

18. In general, judges and magistrates need to retain the authority to ensure that the orders made are complied with. This is particularly necessary in smaller communities where the number of available judicial officers is limited. 

19. An objective observer understands that there is high conflict and unhappiness between parties in Family Court proceedings.  An objective observer would expect the courts and in particular judicial officers, to be part of the process in ensuring that parties comply with court orders.  It would be absurd to contemplate that in a series of contraventions a different judicial officer would have to deal with each one.

20. In this case I had formed a concluded view as to the credibility of the mother and whilst it may not be in the context of the discrete facts to be determined on these contravention applications it probably falls into the implicit caution set out by the High Court in Johnson v Johnson 201 CLR 488, where Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ say at page 495;

    When what Anderson J said is considered in its context, and in the light of his subsequent explanation, the argument for the appellant must fail. The judge was not to be understood as intending to express a concluded view on the credibility of either party. In particular, he was not to be understood as intending to express such a view about the credibility of the appellant, who had not yet been called to give evidence. His expectation as to the importance of independent evidence, and documentary material, was understandable. An apprehension that he had formed a concluded view on the credibility of witnesses, and would not bring an open mind to bear when he decided the case, would have been unwarranted and unreasonable.

1. In Johnson the implication is that had the trial judge formed a concluded view on the credibility of the witness, in the particular circumstances of that case, the result may have been different and the judge may have needed to stand aside. 

2. In the present case, my adverse finding in relation to the wife’s credit would not of itself be sufficient to establish the requisite grounds for me to disqualify myself from the contravention proceedings.  However, it must be viewed in the context of the criticism, outlined in paragraph 25 herein, I previously made about the wife.  I find that the combination of my concluded view and corresponding finding in relation to the wife’s credit in combination with the history of criticism I have made about the wife establish substantial grounds upon which a lay but informed observer might reasonably apprehend that a court constituted by me may not bring an impartial and unprejudiced mind to the determination of the question of contravention.

3. There is no suggestion of actual bias and this determination is finely balanced. I am conscious of my obligation to hear and determine cases and I do not lightly accede to this application that I stand aside.  Notwithstanding this I am satisfied that the mother has established that there is an objective appearance of bias notwithstanding the robust approach the court ought to take on such applications.    

I certify that the preceding 40 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.

Associate: 

Date:  30 July 2007