Ericsson and Jarrold (No.7)
[2018] FCCA 3987
•12 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ERICSSON & JARROLD (No.7) | [2018] FCCA 3987 |
| Catchwords: FAMILY LAW – Recusal application – application for transfer to Melbourne registry – costs application. |
| Applicant: | MR ERICSSON |
| Respondent: | MS JARROLD |
| File Number: | DGC 1317 of 2013 |
| Judgment of: | Judge Small |
| Hearing date: | 12 November 2018 |
| Date of Last Submission: | 12 November 2018 |
| Delivered at: | Dandenong |
| Delivered on: | 12 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ericsson in person |
| Solicitors for the Applicant: | None |
| Counsel for the Respondent: | Mr Combes |
| Solicitors for the Respondent: | Rockman & Rockman |
ORDERS
The father’s application for recusal is dismissed.
There shall be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Ericsson & Jarrold (No.7) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1317 of 2013
| MR ERICSSON |
Applicant
And
| MS JARROLD |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The matter that is before me at the moment in the matter of Ericsson & Jarrold is the application of the husband filed on 16 August 2018 as an Application in a Case, and that Application is in three parts.
There are three orders sought. The first is that I recuse myself from all current and future proceedings between these parties and I will deal with that application first.
First, Mr Ericsson says that I am not unbiased in these matters because there have been previous occasions on which I have made decisions in proceedings between these parties.
I note that my last judgment was, I think, called Ericsson & Jarrold (No.5) and that there have therefore been at least five previous sets of proceedings between these parties.
I have not been the judicial officer in each of those previous cases. The original final orders that were made in 2014 were made by Judge Phipps, and those orders were varied by Judge O’Sullivan in 2016 after Judge Phipps, in fact, had recused himself from further hearings of matters between these parties.
Since 2016 I have had conduct of this file, and I have heard several, I think, contravention applications, or at least more than one, and a substantive application to enforce the orders of Judge Phipps as varied by Judge O’Sullivan.
I made orders in January 2018 in substantive proceedings after a trial about which school the parties’ oldest son should attend. I gave full reasons for those orders at that time.[1]
[1] Ericsson & Jarrold (No 6) [2018] FCCA 3462
Mr Ericsson very clearly disagrees with my reasons and he disagrees with the orders that I made. That is his right, and if he had disagreed with them to the extent that he thought the matter ought to be brought back to court, he ought to have filed an appeal against those orders.
He did not do so, and now he comes to court in circumstances where his former wife has filed three separate applications for contravention of the orders that Judge Phipps and Judge O’Sullivan made.
Mr Ericsson seeks to have me recuse myself from hearing those applications because he says that I made findings and an unjust judgment in the contravention proceedings brought against him in 2017.
He says the same applies to my January 2018 judgment about the schooling and the amendments to the previous orders. Mr Ericsson complains that I only partially adopted the recommendations of the family consultant, Ms A, in those previous proceedings.
Mr Combes, for Ms Jarrold, says he thinks that probably Mr Ericsson doesn’t understand that the consultant’s report, together with her oral evidence, is only one piece of evidence that the court must consider, and that it is not unusual for judges to not accept or not follow all the recommendations of a family consultant. Indeed, he says, if judges were forced as a matter of law to follow the recommendations of family consultants, there would be no need for judges; we would simply have family consultants who made those decisions. I agree with that argument and so I don’t accept that as a reason to recuse myself.
Second, Mr Ericsson says that I overlooked and disallowed the hearing of a key witness in those proceedings, that being the evidence of a Rabbi who could inform the Court about the importance of Jewish education for the children, and who could clearly define what Orthodox observance is.
There were two, as I recall, Rabbis who gave evidence through affidavit to the court in the previous proceedings. Those affidavits were not challenged by counsel for the mother.
Neither were they challenged by counsel for the Independent Children’s Lawyer and, as such, the evidence was unchallenged. It is therefore accepted. I said in my judgment that I accepted the evidence of the Rabbis about the desirability for young [X] to continue attending School B in its entirety.
So I do not accept that I either overlooked or disallowed the evidence of the Rabbi. And I also note that the Rabbis were Mr Ericsson’s witnesses.
The evidence that they gave was at his instruction, and if they did not give the evidence that he thought they ought to have given, then that is not a problem for the court, and it does not mean that I am biased against him.
Third, Mr Ericsson says that I made a finding that his religious practice was the cause for the ongoing acrimony between the parties to the proceedings. I don’t accept that. I did not say that his religious practices were the problem; I said the differences in religious practices between him and the wife were the basis of the acrimony between the parties and the proceedings which have continued and still continue before this court.
In all of those circumstances, I cannot find on reasonable grounds – on objective, reasonable grounds – that the ordinary person in the street would think that I was biased.
In fact, I think in my judgment I made several statements about the genuineness of Mr Ericsson’s beliefs, about the fact that the court could not ignore the issues of religion that came up in those proceedings.
Indeed, I think the very first words I wrote in the judgment were that this was both a very simple and a very complex case, and the complexity was based on the very sincerely held religious beliefs which the court could not ignore.
So I reject and dismiss the application to recuse myself.
The second part of the application is that Mr Ericsson would like the matter transferred to the Melbourne Registry of the Court.
He doesn’t really say why except that he says that he has had to come to Dandenong every time since the beginning of the proceedings.
This matter is called Ericsson & Jarrold which indicates that at the very beginning he was the Applicant. In other words, it would appear – and this file goes back beyond the time when I have been hearing it - that, in fact, Mr Ericsson was the original Applicant and therefore he would have been the one that chose the venue, and he chose the venue to be Dandenong, and it has been Dandenong ever since.
During the proceedings, the wife has moved from the Suburb C area to Suburb D which is a considerable distance, but she works in Suburb E. She has a responsible position with the Employer, and she says that it would be a financial burden and also an issue for her employment if she had to keep going to Melbourne. These proceedings have always been in Dandenong, as far as I’m aware, and I cannot see any reason to remove them.
I suspect that Mr Ericsson thought that by removing them to Melbourne he might get another judge, but unfortunately that would not be the case and, in fact, the opposite would be true because I will not be sitting in Dandenong after the end of this year.
As far as the wife’s application for costs is concerned, I will make an order for both parties to bear their own costs for this hearing.
I do not think Mr Ericsson has made this application maliciously or in bad faith. I think Mr Ericsson has difficulties with accepting the court’s decisions when they do not coincide with his views, and I think that’s a matter for him and not one for the court.
So I am not going to recuse myself, and in those circumstances we will continue with the application for contravention. However, this is one of three matters listed for trial today.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 20 March 2019
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