Feranti and Connor and Anor (Disqualification)
[2010] FamCA 1116
•9 December 2010
FAMILY COURT OF AUSTRALIA
| FERANTI & CONNOR AND ANOR (DISQUALIFICATION) | [2010] FamCA 1116 |
| FAMILY LAW – COURTS AND JUDGES – Disqualification – application by the father seeking disqualification of the judge on the ground of reasonable apprehension of bias – where the proceedings have a long history – where the grounds for apprehended bias have not been established – where the finalisation of the proceedings may be delayed by subsequent appeals and other applications if the judge is continue hearing the matter – where it is in the best interests of the child that the proceedings are finalised – application granted |
| Family Law Act 1975 (Cth) ss 60CC, 69ZN & 69ZW Family Law Rules 2004 rr 1.04, 1.06, 1.07, 1.12 & 8.02(4) |
| Coleman & Hindle and Ors (Disqualification) [2010] FamCAFC 29 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Galea v Galea (1990) 19 NSWLR 263 Johnson v Johnson (2000) 201 CLR 488 Re JRL; Ex Parte CJL (1986) 161 CLR 342 |
| APPLICANT: | Mr Feranti |
| RESPONDENT: | Ms Connor |
| INTERVENOR: | Ms Edgar |
| INDEPENDENT CHILDREN’S LAWYER: | Nicola Atchison |
| FILE NUMBER: | MLC | 7640 | of | 2008 |
| DATE DELIVERED: | 9 December 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 28 October 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | In Person |
| COUNSEL FOR THE INTERVENOR: | N/A |
| SOLICITOR FOR THE INTERVENOR: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms N Atchison |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Nicola Atchison |
Orders
The father’s application that the Honourable Justice Dawe disqualify herself from further hearing of the matter is granted.
The remaining applications in a case are referred to the Docket Registrar to be listed before another Judge.
IT IS NOTED that publication of this judgment under the pseudonym Feranti & Connor & Anor (Disqualification) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: MLC 7640 of 2008
| MR FERANTI |
Applicant
And
| MS CONNOR |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application in a Case filed on 14 September 2010, the father Mr Feranti sought the following orders:
“1.Dawe J be disqualified from participating in this matter any further.
2.Strickland J be disqualified from participating in this mater (sic) further.
3.The outstanding Applications and Responses in this matter be heard by a judge who has not previously sat in the hearing or determination of previous Applications and Responses.
4.In the alternative, the matter be transferred to the Magistrates Court.”
Hearing
On 28 October 2010 I heard the father’s application. The father was unrepresented and appeared in person. The respondent maternal grandmother appeared in person as did the maternal aunt.
The Independent Children’s Lawyer appeared by telephone link.
I reserved my decision on the father’s application that I disqualify myself.
Background
The father made oral submissions. He relied on various matters already on the Court file and in this particular application his affidavits filed on 14 September 2010 and 18 October 2010, which referred in detail to the matters which he submitted established the basis for my disqualification. He referred to various authorities, previous hearings and rulings in this matter and in previous proceedings in this Court.
Those previous proceedings were proceedings in which the father sought certain parenting orders in relation to the child T who was born in March 1995. Those proceedings were proceedings between the father and the child’s mother which concluded on the death of the mother.
The proceedings between the father and the late mother commenced in Melbourne many years ago. By orders of His Honour Justice Watt on 13 November 2007 those proceedings were transferred from the Melbourne Registry to the Adelaide Registry.
Since late 2007 there have been various applications filed by the father which I have heard and upon which I have made orders or rulings.
The father was not successful in obtaining leave to appeal my orders of 14 February 2008 and 17 March 2008. In his grounds of appeal he claimed that I had been biased, denied him natural justice and procedural fairness.
On 17 June 2008 I dismissed the father’s application filed on 14 April 2008 in which he sought that I disqualify myself.
The father was also unsuccessful in his appeal from my orders of 20 February 2009 save that the costs order was set aside and the application remitted for re-hearing before me.
His complaints of bias and lack of procedural fairness were not accepted by the Full Court.
The proceedings between the father and mother for determination of final orders in relation to the child T were delayed pending the determination of the contravention applications before the Court. These were listed before and heard by His Honour Justice Strickland, who reserved his decision on the contravention applications.
Before the matter was listed for final hearing, the mother died in December 2009. She had been gravely ill and receiving treatment for a considerable period of time.
Upon the death of the mother the proceedings between the father and mother concluded.
In March 2010 the father commenced proceedings in the Family Court of Australia in Melbourne, which proceedings disclosed the father as the applicant and the deceased mother as the respondent (she being described as Ms Connor (deceased)). Following orders made by a Registrar in Melbourne, Senior Registrar Fitzgibbon made orders for the appointment of an Independent Children’s Lawyer for the child and other orders, including that the proceedings be transferred to the Adelaide Registry.
The maternal grandmother and maternal aunt became respondents.
When the matter came on before me on 28 September 2010 the matter was adjourned for argument to 28 October 2010. Leave was given to the Independent Children’s Lawyer and the respondents to file any response and any affidavit provided they were filed and served by 16 October 2010.
The Law
Sections 69ZN
Principles for conducting child-related proceedings
Application of the principles
(1)The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b)in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned against family violence, child abuse and child neglect; and
(b)the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Rule 1.04
Main purpose of Rules
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
NoteSection 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.
Rule 1.06
Promoting the main purpose
The court must apply these Rules to promote the main purpose, and actively manage each case by:
(a)encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial;
(b)having regard to unresolved risks or other concerns about the welfare of a child involved;
(c)identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial;
(d)at an early stage, identifying and matching types of cases to the most appropriate case management procedure;
(e)setting realistic timetables, and monitoring and controlling the progress of each case;
(f)ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders;
(g)considering whether the likely benefits of taking a step justify the cost of that step;
(h)dealing with as many aspects of the case as possible on the same occasion;
(i)minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and
(j)having regard to any barriers to a party’s understanding of anything relevant to the case.
Rule 1.07
Achieving the main purpose
To achieve the main purpose, the court applies these Rules in a way that:
(a)deals with each case fairly, justly and in a timely manner;
(b)encourages parties to negotiate a settlement, if appropriate;
(c)is proportionate to the issues in a case and their complexity, and the likely costs of the case;
(d)promotes the saving of costs;
(e)gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and
(f)promotes family relationships after resolution of the dispute, where possible.
Rule 1.12
Court may dispense with Rules
(1)These Rules apply unless the court, on application or its own initiative, orders otherwise.
(2)The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.
(3)In considering whether to make an order under this rule, the court may consider:
(a) the main purpose of these Rules (see rule 1.04);
(b) the administration of justice;
(c) whether the application has been promptly made;
(d) whether non-compliance was intentional; and
(e) the effect that granting relief would have on each party and parties to other cases in the court.
Many of the authorities relied upon by the father are referred to in the Full Court decision of Coleman & Hindle and Ors (Disqualification) [2010] FamCAFC 29
In Johnson v Johnson (2000) 201 CLR 488 the High Court of Australia said at 492:
“The test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … 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.”
The cases also clearly establish that the decision in relation to the apprehension of bias must be considered in the context of the case and on the basis that the observer is taken to be reasonable.
In Re JRL; Ex Parte CJL (1986) 161 CLR 342 at 352 Mason J said:
“It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. 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. There may be many situations in which previous decisions of a judicial officer on issues of 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 and unprejudiced 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”: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. 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 the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. (footnotes omitted).”
The High Court also discussed the law with respect to judicial bias in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337:
“19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20.This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21.It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.”
(Emphasis added)
Discussion and findings
In his affidavit and submissions the husband asserts that I failed to apply the provisions of the Family Law Act 1975 (Cth) (“the Act”) and the Family Law Rules and in particular failed to regard the best interests of the child as the paramount consideration.
In the previous proceedings between the father and the mother (when she was alive) the decisions and rulings which I have made have been made on an interim basis. The determination of the final proceedings between the late mother and the father were delayed pending the conclusion of the contravention proceedings brought by the father.
The interim parenting decisions were made for reasons which were given on those occasions and in particular having heard and considered the evidence of each of the parties and the Independent Children’s Lawyer, including the Family Consultant’s report.
The current proceedings were commenced by the father on 1 March 2010. Division 12A therefore applies. Since the matter was transferred from the Melbourne Registry to the Adelaide Registry, appropriate procedural steps were taken to ensure that the Court had before it sufficient information to determine what was in the best interests of the child.
The father complains that I refused to make the orders which he sought, notwithstanding that on the last occasion the matter came before the Court, the maternal grandmother and maternal aunt were not opposing the orders which the father sought. The Independent Children’s Lawyer however did not consent to the orders.
Rule 8.02(4) directs that the proceedings continue as if the Independent Children’s Lawyer were a party.
The Court had before it the affidavit of the maternal grandmother in which she had referred to her daughter’s death in December 2009. In the affidavit filed on 21 September 2010 the maternal grandmother said, inter alia,
“7.Since the filing of the Applicant Father’s affidavit I am aware that there are two other Court Proceedings commenced in this Honourable Court which indicates that the Applicant continues to hold his propensity for litigation no matter what cost and impact such proceedings may have on myself and the child [T] of an emotional and financial sense.
8.The Applicant Father I verily believe has never paid child support for [the child] apart from one Court Ordered lump sum payment many years ago yet continues to litigate in the Court knowing the financial cost of defending such proceedings are a burden to [the mother] during her lifetime and now myself.
9.I am 70 years of age and have limited financial resources.
10.I have been endeavouring to deal with the grief of [the mother’s] passing and assisting [the child] in also dealing with her own grief of the loss of her mother.
11.[The child] has become angry and quite unsettled in her attitude to life which I believe is directly related to the death of her mother as well as the ongoing litigation of proceedings by the Applicant father prior to her mother’s death and subsequent thereto.
12.That given the current disposition of the child [T] and my age and limited financial resources for these proceedings, I am unable to continue to fund such litigation as all these matters are having an adverse impact on my health.
13.I hold grave fears for [the child’s] future welfare but she has become very demonstrative in a negative way as to her attitude on life and has indicated that she no longer wishes to reside with me nor for that matter the Applicant father and is determined she will make her own decisions as to her future welfare.
(sic)13. That by virtu of the matters deposed to in this my Affidavit I respectfully request that this Honourable Court grant the Orders sought by me in my Amended Response filed herein.”
The Court still has a discretion pursuant to section 60CC(5) to consider on an application for a consent order the matters referred to in section 60CC(2) and (3).
The father has therefore not established that failure to make final orders in his favour is a ground upon which he can establish a basis for my disqualification.
In view of the material previously filed by the maternal grandmother and the attitude of the Independent Children’s Lawyer, the delay in making final orders in the father’s favour is based upon appropriate and significant material.
The father refers in his affidavit to complaints about the application he made pursuant to section 69ZW. He was unhappy with the decision when I exercised my discretion not to make the order he sought.
The authorities clearly indicate that because he does not accept the decision or is unhappy with the decision this does not establish a basis for disqualification.
The father also refers to the transcript of the hearing on 20 February 2009 when the father failed to appear. His affidavit does not set out all of the facts. The Court Officer had already attempted to telephone the father on the number available without success. The Court Officer was then directed to call the father again in the precincts of the Court and not to telephone again.
Appropriate procedures were followed. This does not establish any basis for disqualification.
The father then cites as the third example of the ground for disqualification the comments I made in the reasons of 20 February 2009 by reference to the financial circumstances of the parties.
In Appeal No SA21 of 2009 the Full Court upheld the father’s appeal in relation to the appeal from my order that he pay costs.
The father then complains of the delay and asserts that I have deliberately taken steps to delay dealing with his application. He refers to matters before the Court in the other proceedings which were before me from December 2007.
The father has not established any basis upon which the delays can be described as other than listing of the matters taking into account the nature of the application, the contravention proceedings filed by him and the availability of judicial officers.
The previous application by the father that I disqualify myself was refused. He appealed that order. He was not successful in that part of the appeal, being successful only in relation to the order for costs.
The father also relies upon occasions when I have shown “a propensity to develop animosity towards” the father (see paragraph 51 of the affidavit of the father filed on 14 September 2010). He then refers to certain examples which he alleges indicated that I displayed this animosity towards him.
In the decision of Galea v Galea (1990) 19 NSW LR 263 at 283-284 Meagher JA said when discussing the principles of bias and disqualification in the context of a Judge who intervenes:
“A reasonable disinterested bystander … would not have reasonably apprehended that the trial judge was prejudiced, he would only have noted that an exceptionally irritating witness had eventually succeeded in irritating the judge.”
In Galea v Galea (Supra) Kirby A-CJ (as he then was) also said at 279:
“In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge’s conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing.”
It is in this context that the husband’s complaints of my “raised voice” and “interruptions” need to be considered.
In his affidavit filed on 18 October 2010 the father complains about his failure to obtain a copy of the audio recording of the proceedings before the Court on 17 June 2008. The father was not prevented from requesting that an audio be played in open Court or relying upon a transcript of that hearing. Based on the usual practices the Court exercised its discretion not to permit an unrepresented litigant unrestricted access to an audio copy of the proceedings.
Having considered all of the material before the Court and the lengthy detailed submissions of the father, I am not satisfied that the father has established any failure to apply the law. The father has not been successful in his various applications but that does not indicate a lack of independent consideration by me.
At some hearings I have interrupted the father during his remarks. I have also spoken tersely to him and raised my voice.
I consider my behaviour to be appropriate in the context of those hearings.
There is however a risk that an observer may possibly conclude that the father’s behaviour has irritated me to the extent that it may be prudent not to hear the matter any further.
A significant factor which needs to be taken into account is the best interests of the child T. There have been proceedings before the Family Court of Australia in Melbourne and the Family Court of Australia in Adelaide for years. The child will be 16 in March 2011. Most of her life has been affected by ongoing proceedings in the Family Court of Australia.
It is my assessment that the end of Court proceedings is likely to be delayed by appeals and other applications by the father if I continue to hear this matter.
Such a delay in bringing to an end litigation is not likely to be in the best interests of the child.
The father has failed to establish any grounds which “affirmatively conclude” the basis of disqualification. I am however satisfied that there is sufficient doubt for it to be prudent for me to decline to sit in order to avoid the inconvenience that may result and the significant impact this would have on the best interests of the child.
Conclusion
I therefore grant the application of the father that I disqualify myself from further hearing the matter.
The application by the father that Justice Strickland be disqualified is an application which (if it is being pursued) needs to be heard by Justice Strickland.
The outstanding application for final orders is listed before a Registrar on 8 February 2011.
The remaining applications in a case are referred to the Docket Registrar for listing before another Judge for mention.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 9 December 2010.
Associate:
Date: 9 December 2010
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