Fulwood and Wettons (No 3)

[2009] FamCA 1318

FAMILY COURT OF AUSTRALIA

FULWOOD & WETTONS (NO. 3) [2009] FamCA 1318

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION TO REMOVE REPORT OF FAMILY CONSULTANT – applicant father seeking same order as previously dealt with – application dismissed
FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR JUDICIAL OFFICER NOT TO HEAR APPLICATION – applicant father requesting that another judicial officer hear application – allegation of bias – case in judge’s docket – no application for docket judge to disqualify – application dismissed

Family Law Act 1975 (Cth)

Re Watson; Ex parte Armstrong (1976) FLC 90059
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Re JRL; Ex parte CJL (1986) 161 CLR 342
Johnson & Johnson (2000) 201 CLR 488

APPLICANT: Mr Fulwood

RESPONDENT: Ms Wettons

INDEPENDENT CHILDREN’S LAWYER: Terry Stephen

FILE NUMBER: ADF 1140 of 2003

DATE DELIVERED: 11 September 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 11 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Terry Stephen LSC

Orders

1. That paragraphs 1 and 2 of the Application in a Case filed by the father on 26 August 2009 be dismissed and removed from the active pending cases list.

2. That further consideration of paragraph 3 of the Application in a Case filed by the father on 26 August 2009 be adjourned to a date to be fixed.

3. That leave is granted nunc pro tunc to the mother to file her affidavit filed on 27 August 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1140 of 2003

MR FULWOOD

Applicant

And

MS WETTONS

Respondent

EX TEMPORE REASONS

1. Today, there is an application in a case filed by the father on 26 August 2009. There are three orders sought in that application. I will come back to paragraph number 1 because that that is an application where the father seeks that I do not hear this application. It seems to me, though – and I will deal with it in a moment – that going to paragraph 2 of this application, it frankly does not matter whether it is me that hears this application or some other judicial officer, the fact of the matter is that I have already dismissed an application by the father to pursue the removal of the report of the family consultant in this case.

2. The father, in an application in a case filed on 23 April 2009, and specifically paragraph 10 of that application, sought leave to file an application seeking the removal of the report of the family consultant, Dr B. I considered that application on 1 May 2009 and I dismissed that part of paragraph 10 just referred to and I delivered reasons on that date. Thus, the effect of that order is that this issue has been determined and there is no basis for the father to simply, in a subsequent application in a case, seek the same order and, indeed, if I need to go to this extent, from my reading of the documents nothing has changed in relation to the basis for the father seeking that order. Thus I propose to dismiss paragraph 2 of this application filed on 26 August 2009.

3. Now, that leaves paragraphs 1 and 3. Firstly I come to paragraph 1 which is that, as the father has explained, this particular application not be heard by me. I mistakenly thought that the father was seeking an order that I be disqualified from these proceedings entirely.  That seemed to be the tenor of his previous documents and comments and submissions, but the father has indicated that that is not what this application is about today. He seeks that this application be heard by another judicial officer. The only way that can happen though is if I disqualify myself from hearing this application, and thus that is the focus of these reasons. 

4. The application is supported by an affidavit filed by the father on 26 August 2009 and the father specifically directed me to paragraph 2 of that affidavit which I read, indeed, before coming into court and I have re-read again. The issue that the father highlights in paragraph 2 is really in the last sentence of that paragraph where he says and I quote:

   “He -”

   referring to me –

   “has therefore pre-determined this matter prior to the submission of evidence and argument.”

5. Now, that application that I disqualify myself is opposed by the mother and by counsel for the Independent Children’s Lawyer and I need to deal with it because if I am with the father then, obviously, I will not hear this application any more today.

6. Now, the law with respect to this issue, is well settled. It seems that the father is suggesting that there is an appearance of bias exhibited by me against him and, specifically, that I have pre-determined an issue without hearing the evidence and submissions. Now, as I say, the law with respect to that, is well settled and the applicable test has been developed through cases such as Re Watson; Ex parte Armstrong (1976) FLC 90059, Livesey v New South Wales Bar Association (1983) 151 CLR 288 and Re JRL; Ex parte CJL (1986) 161 CLR 342.

7. In Johnson & Johnson (2000) 201 CLR 488, the High Court confirmed at 492 and I quote:

   “It has been established by a series of decisions of this Court that 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.”

8. Their Honours continued at 492, and this is paragraph 12:

   “That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done and be seen to be done.  It is based upon the need for public confidence in the administration of justice.  “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.”  The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.  At the same time

   And I emphasise this -

   two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require (the judge) to discard the irrelevant, the immaterial and the prejudicial” …

   and then paragraph 13:

   “Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary, judicial practice.” (footnotes omitted)

9. Mason J, in Re JRL; Ex parte CJL outlined at 352 that an apprehension of bias must be “firmly established”:

   “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.

   And I emphasise this -

   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

   And again I emphasise -

   disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment

   And I highlight that – this is, of course to repeat what the father is alleging -

   and this must be “firmly established”.” (footnotes omitted)

10. Now, looking at the facts that are presented by the father in support of this application and assessing them in light of the principles that I have just referred to. Paragraph 2 of the affidavit, on my reading, seems to be the only paragraph which touches upon this topic and that paragraph provides as follows:

    “Justice Strickland has stated in previous hearings that the report of the family consultant, herein known as [Ms B], will not be removed from the file of this matter or declared void/invalid.  He has stated this in the knowledge that I was preparing an application and supporting affidavit seeking such action.  He has therefore pre-determined this matter prior to the submission of evidence and argument.”

11. I have gone back over previous affidavits filed by the father to see if there might be some other factual basis that he would rely on for this application. He, of course, has not referred me to any previous affidavit but I mention that there had been two previous affidavits, including one filed on 24 March 2009. Now, it seems to me that a plain reading of that affidavit does not raise any basis on which I should disqualify myself according to the test from Johnson & Johnson.

12. Then there is the affidavit of 23 April 2009 and there are a number of paragraphs in there where the father refers to conduct that he alleges that I have exhibited in this case, namely paragraphs 2, 3 and 4, and then in paragraphs 5, 11 and 15 the father specifically suggests that I listed the first day of trial over and above objections that he made.  Perhaps, just to deal with that issue and put it into context, I reject that allegation and I did so in my reasons for judgment delivered on 1 May 2009. I do not need to repeat those but, in any event, the father is not relying on anything in those previous affidavits. It is purely and simply, as he has referred me to, namely paragraph 2 of his current affidavit.

13. I have already touched upon the history of the particular application which is obviously concerning the father when I dismissed paragraph 2 of the application that is before me today. As I have said, in paragraph 10 of the father’s application filed on 23 April 2009, and turning that up again, he sought that:

    The court grant leave for the applicant to file an application and supporting affidavit for removal of the family consultant, [Ms B], and her report from the matter of ADF1140 of 2003.

14. Now, there was a supporting affidavit filed by the father in support of that entire application which I dealt with on 1 May 2009 and I delivered Reasons for Judgment. 

15. In my reasons for judgment it really goes hand in hand with, and I should mention this as well to be fair, paragraph 9 of that same application where the father sought an order that there be a psychological assessment of the children by a practitioner specialising in maladaptive conditioning and/or parental alienation and in paragraph 10 the father wanting to proceed to seek an order for the removal of the report. 

16. As I refer in paragraph 16 and subsequently of my Reasons for Judgment, that application was opposed by the mother in relation to a further report and Ms B said there was no need for a further report or an alternative report. I also dealt with the question of counselling and/or therapy for these children, ultimately.  And then in paragraph 23, I deal with paragraph 10 of the application bearing in mind there were two aspects to paragraph 10 namely, the removal of Ms B as the family consultant but also the removal of her report. I said there that the report could not be removed; the report was before me and the father would be able to challenge it at the conclusion hearing. 

17. The father has now filed this application, and as he has indicated there are a number of paragraphs in his affidavit dealing with this issue of Ms B and whether she should be removed because that is part of his application today, but also he sought to pursue an application to remove the report and, as I have said and I repeat, that was done in the background of me refusing to give leave to the father to make an application seeking the removal of the report.  As I say, I indicated to the father that the report was before me, that if he had any issues about it he could address those, challenge those, raise those, challenge the report, raise that with me, cross-examine Dr B about it at the hearing of the trial in this matter and, as is obvious, that if I was with the father in terms of Dr B being removed from appearing in this case, that does not take away the ability of the father to seek to cross-examine Dr B about her report.

18. With that summary, in my view, there is no factual basis or, indeed, any basis whatsoever to find that 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.  Thus, there is no basis for me to disqualify myself from hearing this application, and so I propose to dismiss paragraph 1 of the application in a case filed by the father on 26 August 2009.

19. Now with paragraph 3 of the application, that is a different issue. By that I mean I specifically gave leave to the father to be able to bring such an application and I set a timeframe for that and he has complied with that.  Thus that is an application which is properly before the court and needs to be dealt with.  However, it will have to be adjourned to a date when Dr B can attend. Inquiries will have to be made about that and Dr B will herself need to consider how she wants to deal with the allegations. Thus I cannot fix that date just yet.

I certify that the preceding 19 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland made on 11 September 2009.

Associate