Franklin v Burke

[2022] TASSC 59

[2022] TASSC 59

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Franklin v Burke [2022] TASSC 59
PARTIES:	FRANKLIN, Craig
v
BURKE, Emma
FILE NO/S:	64/2022
DELIVERED ON:	2 September 2022
DELIVERED AT:	Hobart
JUDGMENT OF:	Geason J
CATCHWORDS:

Administrative Law – Grounds of review – Procedural fairness – Whether magistrate refused to exercise jurisdiction according to law in refusing to grant interim family violence order – Bias – Apprehension of bias – Whether magistrate was affected by apprehended bias in refusing to grant interim family violence order – Magistrate did not refuse to exercise jurisdiction – Magistrate not affected by apprehended bias – Appeal dismissed.

Gascor v Ellicott [1997] 1 VR 332 applied.
Minister for Immigration and Multi-Cultural Affairs v Jia Legeng [2001] HCA 17 205 CLR 507 and Liversey v
New South Wales Bar Association [1983] 152 CLR 288 referred to.

Aust Dig Administrative Law [1071].

REPRESENTATION:

Counsel:

Appellant:	in person
Respondent:	M Flanagan

Solicitors:

Appellant:	in person
Respondent:	Murdoch Clarke

Judgment Number:	[2022] TASSC 59
Number of paragraphs:	27

Serial No 59/2022

File No 64/2022

CRAIG FRANKLIN v EMMA BURKE

REASONS FOR JUDGMENT GEASON J
2 September 2022

1            By notice of appeal filed on 14 December 2021, the appellant appeals an order by Magistrate Chris Webster refusing to make orders for an interim family violence order.

2   There are two grounds:

1            Magistrate C Webster refused to exercise jurisdiction according to law.

2            The appellant was denied procedural fairness.

3   The respondent seeks an order that the appeal be dismissed with costs.

Background

4            The applicant sought a family violence order in the Hobart Magistrates Court, by way of an application for an urgent order (interim family violence order) pursuant to the Family Violence Act 2004 (Tas) (the Act). The application sought orders in these terms:

1    Respondent stops controlling, intimidating, or causing mental harm, apprehension or fear in the applicant.

2    Respondent stops child abuse and neglect imposed by her and the child.

3 Respondent stops refusal to provide contact details and consent so the applicant may obtain a

complete state of the mental and physical welfare of the child.

4    Respondent stops refusal to consent to involvement in the child's education.

5    Respondent stops prohibiting communication between the applicant and child.

6    Respondent stops preventing the child from spending time with the applicant."

Family Violence Act

5 Part 4 of the Family Violence Act relates to family violence orders. Section 15 provides that application may be made for such order by, inter alia, an effected person (s 15(2)(b)). An effected person for the purposes of the Act is defined as a person against whom family violence is directed (s 4).

6   The Court may make a family violence order if it is satisfied on the balance of probabilities that

(a)	a person has committed family violence and
(b)	that person may again commit family violence.

7   Family Violence is defined in s 7 of the Act which is in these terms:

"Family violence
In this Act –
family violence means –

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(a) any of the following types of conduct committed by a person, directly or indirectly,

against that person's spouse or partner:

(i) assault, including sexual assault;
(ii) threats, coercion, intimidation or verbal abuse;
(iii) abduction;
(iv) stalking and bullying within the meaning of section 192 of the Criminal Code ;

(v) attempting or threatening to commit conduct referred to in subparagraph (i) , (ii) , (iii) or (iv) ; or

(b) any of the following: (i) economic abuse; (ii) emotional abuse or intimidation;

(iii) contravening an external family violence order, an interim FVO, an FVO or a PFVO; or

(c) any damage caused by a person, directly or indirectly, to any property –

(i) jointly owned by that person and his or her spouse or partner; or
(ii) owned by that person's spouse or partner; or
(iii) owned by an affected child."

8             Section 18 provides that in considering whether to make such order, the Court must consider the safety and interests of the persons for whose benefit the order is sought and any effected child to be of paramount importance; and, must consider whether any contact between the person for whose benefit the order is sought, or the person against whom the order is to be made, and any child who is a member of the family of either of those persons is relevant to the making of the FVO and, must consider any relevant Family Court order of which the Court is being informed.

9             An interim family violence order may be made whether or not a Court is satisfied of the matters contained in s 16(1): Section 23(1). It does not follow that such order should be made upon application. The objects of the Act circumscribe the power: Remess v Rabe [2006] TASSC 105. At 28, the Court said of the power vested in a magistrate:

"The Act, s23, allows a magistrate to make an interim order whether or not they are satisfied as to the matters about which they would need to be satisfied on a final hearing, namely that a person has committed family violence and might do so again. The discretion thereby granted is obviously very wide and should perhaps be constrained only by the object of the Act which is stated in s3 to be 'In the administration of this Act the safety, psychological wellbeing and interests of people affected by family violence are the paramount consideration.'"

10           A court does not however simply rubber stamp an application. The making of an application necessarily engages as a threshold matter, a consideration of the content of the application in order to determine whether action under the Act is required to further its objects on an interim basis, or at all. It is appropriate for courts to be vigilant to ensure that circumstances exist justifying the making of an interim family violence order before proceeding to do so. Such orders impact the rights and freedoms of others and should not be made automatically and without some engagement with the terms of the application.

11           The applicant relied upon a claim to be suffering psychological harm in consequence of the conduct of his former wife. He claimed to be in a constant state of fear about the safety of his daughter which exposure was "threatening to the applicant's physical and mental health". He alleged that his former wife was determined to cause "the complete psychological collapse of the applicant so that she may obtain advantageous property and parenting order."

12           He did so in the context of an ongoing dispute in the Family Court relating to his marriage to the respondent to that application. In those proceedings orders had been made with respect to parenting, relevant here, because the substance of the application for the family violence order relates to allegations that the applicant's former wife neglects the child, abuses her, and prohibits direct communication between the applicant and his daughter. He further alleges that his former wife took the child "without his knowledge or consent", and has a history of making false allegations against him.

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13           Overall the matters relied upon by the applicant were in substance argumentative contentions directed against his former wife. They evidence a self-serving interpretation of her conduct, a narrative involving the attribution of a malicious motive to her.

14           The application before the magistrate recorded, properly, that parenting and property matters were before the Federal Circuit and Family Court with a hearing set for April 2022 and referred to the order already made by the Federal Circuit Court to which I have referred.

15           It is obvious from the terms of the order sought on the application that the subject matter of the orders related entirely to the treatment of the child by his former wife, and the provision of information and/or access to the child. The terms of the orders sought at 3, 4, 5 and 6, were matters which fall within the purview of the Family Court and, were on the face of the materials before the learned magistrate, already the subject of orders in that Court, or about to be.

What happened in the Magistrates Court?

16   When the matter came on before the magistrate the following exchange occurred.

HIS HONOUR: Yes.

MS GRIFFIN: May it please, your Honour, I mention the matter of Burke v Franklin.
I understand Mr Franklin is appearing by phone, and Ms Burke is not in attendance.

HIS HONOUR: You appear for the applicant, do you, Ms Griffin?

MS GRIFFIN: I appear for the respondent, Emma Burke, your Honour.

HIS HONOUR: Okay. Is this a police application?

MS GRIFFIN: No, your Honour.

MR FRANKLIN: Hello?

CLERK: Hello, is this Craig Franklin?

MR FRANKLIN: Speaking, yes.

CLERK: This is the Magistrates Court in Hobart here. You’re now in the Magistrates Court, Magistrate C. Webster, for your matter this morning. Ms Griffin is here appearing for Ms Burke.

MR FRANKLIN: Thank you.

HIS HONOUR: Okay. You’re the applicant in an application for a family violence order. Is that right?

MR FRANKLIN: Yes, that is correct, your Honour.

HIS HONOUR: Okay. Ms Griffin, what’s your client’s attitude to the –

MS GRIFFIN: Your Honour, we oppose the application and any potential interim orders, and our position is that the matter should be dismissed in relation to the application as it stands.

HIS HONOUR: Okay. Well, I’ll have a read of your application.

MR FRANKLIN: Thank you, your Honour.

HIS HONOUR: Well, look, Mr Franklin, we’re not the poor man’s Family Court.
Isn’t all this matter being dealt with in the Family Court?

MR FRANKLIN: No, it’s not, your Honour.

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HIS HONOUR: Well, what’s she doing that’s not dealt with in the Family Court? What’s she doing that’s threatening the peace, or a breach of the peace, or threatening your physical safety?

MR FRANKLIN: Well, it’s not just limited to that, your Honour. It’s also, of course – if you read through it, you’ll see it’s got to my emotional and psychological welfare.

HIS HONOUR: Well, in what way? What’s she doing that does that?

MR FRANKLIN: Well, I think that if you read –

HIS HONOUR: Well, look, I’ve read it. But I’m inviting you to get right to the nub and point out to me what you rely on to support you. I can’t be fairer than that, can I? I’m saying get to the – point it out to me.

MR FRANKLIN: Well, it’s a very short statement of the problem, and I think that it’s very clear –

HIS HONOUR: Okay. Well, I’ve invited you to point it out. I’ve had a read of it. It hasn’t convinced me why I should make any order. But that doesn’t mean you can’t go ahead. All I’m saying is I’m not going to make an interim order today.

MR FRANKLIN: I’d like it to go ahead, your Honour.

HIS HONOUR: Well, it’s not going to go ahead today.

MR FRANKLIN: Well, I didn’t think it would.

HIS HONOUR: No, that’s right. But I’m not going to make an interim order today. Right? So what I’m going to do is I’m going to put it off to the 21st of January. You can now have communication with Ms Griffin, who acts for the other party, and when we come back at 10 am on that day, if you still haven’t resolved it, the matter will be set down for hearing.

MR FRANKLIN: Thank you, your Honour.

HIS HONOUR: Yes. Okay. I adjourn the matter to the 21st of January 2022. Now, you can still appear by telephone, but –

MR FRANKLIN: Thank you, your Honour.

HIS HONOUR: – of course, if the respondent doesn’t turn up, well, you’ll probably be granted your order by default. If you don’t turn up on that date, or you’re not available, your application will be dismissed.

MR FRANKLIN: Thank you, your Honour.
HIS HONOUR: Okay.
MS GRIFFIN: May it please, your Honour. That concludes my matters.

17           Fairly summarised, the magistrate read the application and having done so observed that the matters upon which the applicant relied for the order, and indeed the terms of a number of the orders sought, were matters that had been or were being dealt with in the Family Court. In the subsequent exchange the magistrate explored that point, but it was no more than a contextual reference to matters involving the applicant and the respondent to the application. It formed part of the discussion. The magistrate continued, expressing the view (as he was entitled to) that nothing that he had read had convinced him it was necessary to make an order. He followed that with an invitation to the applicant to proceed with his application if he wanted to. After a brief exchange about hearing dates, the magistrate adjourned the matter for hearing to 21 January 2022. He invited the parties to have communication with one another to see if matters could be resolved.

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18           Transcripts have their limitations, but it is clear that the applicant believed that he had done enough on his written application to obtain the orders he sought, and the magistrate did not. Nothing turns on the fact that the magistrate arrived at this view shortly after reading the materials, not least because the magistrate is experienced in assessing such matters. In any event the magistrate invited the applicant to expand upon the application, which the applicant declined to do. That was a choice which amounted to a rejection of the opportunity to further speak to the application at the time; or a choice to defer that opportunity to a later time.

19           In the result the court declined to make an interim order. Section 23 does not require satisfaction of the matters articulated in s 16(1) of the Act, but the material contained on the application did not, on a fair reading provide a basis for an order because it did not on sustain a conclusion that the applicant is (or was) at risk, whether through the commission of acts of family violence or otherwise. The magistrate considered the materials, invited the application to engage, and when he did not declined to make the orders on that day. In that circumstance it cannot be said that there was a refusal to exercise jurisdiction according to law.

20   No error, general or specific is demonstrated.

21   Ground 1 fails.

22           Insofar as it is suggested that bias or apprehended bias is demonstrated by reason of the magistrate's language, particularly the reference to the magistrates’ court not being a "poor man's Family Court" I reject the submission. The whole of the paragraph within which that reference appears must be considered. That remark was no more than a reference to the significant cost differences attaching to each jurisdiction in circumstances where the application had its genesis in the dispute which continued between the applicant and his former wife and was before the Family Court. It does not involve any sort of judgment of the application or the applicant, let alone suggest bias or create an apprehension of bias.

23           The question is whether a fair-minded lay observer might in the circumstances reasonably apprehend that the magistrate would not bring an impartial mind to the resolution of the matters required to be determined: Gascor v Ellicott [1997] 1 VR 332. There is a presumption that such lay observer has attributed to her knowledge all the circumstances of the case: Liversey v New South Wales Bar Association [1983] 152 CLR 288 at 293-294. Before such a submission can succeed, it is necessary to demonstrate that the mind of the decision-maker cannot be swayed by further argument. In Minister for Immigration and Multi-Cultural Affairs v Jia Legeng [2001] HCA 17 205 CLR 507 at 71-72, Gleeson CJ and Gummow J said this:

"Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or pre-disposition, sometimes one that has been publicly expressed, without being accused or being suspected of bias. The question is not whether a decision-maker is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition that it is to persuade another does not mean that either of them is affected by bias…[72]…The state of mind described as bias in the form of pre-judgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any pre- disposition or inclination for or against an argument or conclusion…"

24           There is nothing to sustain the submission that the magistrate pre-judged the application, nor that he took offence to the application. It has not been shown that he could not be swayed by further argument. The transcript reveals the contrary to be so. I reject the submission.

25   Ground 2 fails.

26           It is unnecessary to refer to the respondents other submissions, including that with respect to deficiencies in the form of the notice of appeal: that the originating process was headed "notice of appeal, rather than “notice to review…". I observe however that nothing in the formula adopted by the applicant mislead the respondent as to the issues to be raised on the appeal, and the point seems rather hollow to me.

27    I will hear the parties as to costs.