Feranti and Connor (No 5)

[2008] FamCA 1273

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR (NO. 5) [2008] FamCA 1273

FAMILY LAW – COURTS AND JUDGES – application by father seeking disqualification of judge – alleges judge biased, prejudiced and disregarded facts, legislative procedures and children’s best interests – asserts denial of procedural and natural justice – test in Johnson v Johnson (2000) 201 CLR 488 – disqualification refused

FAMILY LAW – PRACTICE AND PROCEDURE – application by father for leave to file contravention application dismissed

Johnson v Johnson (2000) 201 CLR 488
Re JRL; Ex parte CJL (1986) 161 CLR 342

APPLICANT: Mr Feranti

RESPONDENT: Ms Connor

INDEPENDENT CHILDREN’S LAWYER: Nicola Atchison

FILE NUMBER: MLF 10368 of 1994

DATE DELIVERED: 17 June 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 17 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr P. Falconer

SOLICITOR FOR THE RESPONDENT: Peter Falconer and Associates

INDEPENDENT CHILDREN’S COUNSEL: Mr J.M. Bowler

INDEPENDENT CHILDREN’S LAWYER : Ms N. Atchison

Orders

1. I dismiss the father's application filed on 14 April 2008.

IT IS NOTED that publication of this judgment under the pseudonym Feranti and Connor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLF 10368 of 1994

MR FERANTI

Applicant

And

MS CONNOR

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application which comes before me in the duty list, having been adjourned for a date to be obtained.  When the matter was last before the Court, on 18 April 2008, Murphy J adjourned the matter, to a date to be fixed, on the hearing of an application for the father for leave to file a contravention application in respect of the child allegedly failing to spend time with him during the recent April 2008 school holidays.

2. On that occasion Murphy J otherwise dismissed the two case applications filed by the father on 14 April 2008.  One of the case applications filed on that date, namely document 501, contained paragraph 7:  "Dawe J be disqualified from participating in this matter."

3. In an affidavit also filed by the father on that date, reference is made to the assertion by the father that I should be disqualified from further hearings in this matter.

4. When the matter came on before me for mention this morning, the father raised the issue of my disqualification. I have heard his submissions and those of counsel representing the mother and the Independent Children's Lawyer.

5. The matters upon which the father relies in support of his argument that I be disqualified have been put to me orally by him, this morning, and are otherwise set out in his affidavit filed on 14 April 2008; paragraphs 22 and following.

6. It is apparent that the father has filed an appeal from some of my orders.  I am not aware of the status of those appeals but presume there has not been any determination because I have not been made aware of any orders of the Full Court that would bear upon my disqualification.

7. The father alleges that it has been clear from my attitude that I am biased against him.  He asserts that I have disregarded the facts in the matter or have been wrong about the facts in this matter.  He has also asserted that I have disregarded the legislative procedures and that I have disregarded the child's interests.  He asserts in his affidavit that I am prejudiced and biased against him and have allowed my anger towards him, I am quoting now from paragraph 29,

   “which developed during the hearing, to combine with the prejudice and bias and her negative emotional state of mind, to result in denying my well‑founded and well-supported application.”

8. The father asserts that he was denied both procedural and natural justice. 

9. I am obviously not sitting in appeal from my own orders.  It is necessary for me to assess and stand back to determine whether a reasonable person would form the view that I do not bring a clear mind to the issues to be determined.  In particular, he asserts that I do not apply the provisions of the Family Law Act which relate to children's matters.

10. When considering disqualification the test is whether a fair minded lay observer might reasonably apprehend that the Judge may not bring an impartial and unprejudiced mind to the resolution of the issue.  The test is not whether one of the parties considers the Judge to be biased, 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.”  Johnson v Johnson (2000) 201 CLR 488 at 492 (High Court of Australia).

11. In Re JRL; Ex parte CJL (1986) 161 CLR 342, Mason J said at 352:

    “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.”

12. I am not convinced by the submissions of the father that I have behaved in a way which a person taking a reasonable view of the matter would conclude that I have shown any unfair prejudice or bias against the husband or that I have not dealt with the matter in an appropriate way.  I therefore refuse to disqualify myself.

13. I dismiss the father's application filed on 14 April 2008.  I do soon the basis that firstly, it is phrased in terms that are too wide to support a grant of leave.  Secondly, it seems on the face of it that all of the parties acknowledge that if there has been what could be described as a “substantial non-compliance”, and the order of the injunction made on 13 November 2007 does not apply, then if the facts are not such as to bring into play the terms of the order in paragraph 6 then paragraph 6 would not apply.  Therefore there is no basis upon which the father needs to obtain leave (if he brings a contravention application which is based upon the allegation by the father that neither (a) nor (b) of paragraph 6 of the order of 30 November 2007 apply.)

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  20 June 2008