GALBRAITH & GALBRAITH

[2015] FamCA 604

FAMILY COURT OF AUSTRALIA

GALBRAITH & GALBRAITH [2015] FamCA 604

FAMILY LAW – Application to disqualify – application to vacate hearing dates.

APPLICANT: Mr Galbraith

RESPONDENT: Ms Galbraith

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms E

FILE NUMBER: CAC 1192 of 2014

DATE DELIVERED: 13 May 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 13 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gill

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. The Application filed by Ms Galbraith on 12 May 2015 seeking, among other things, that the hearing dates on 3, 4 and 5 June 2015 be vacated is refused to the extent that the matter will proceed on those days but be adjourned upon completion of the evidence of the applicant, his witnesses and the cross-examination of Ms B to 31 August 2015 and to continue on that date (and on 1 and 2 September 2015) if necessary to deal with the case of the respondent and if necessary a case in reply by the applicant. 

2. The respondent will file any material upon which she seeks to rely on or before 4pm on 31 July 2015 and will serve such material upon the applicant’s lawyers and upon the Independent Children’s Lawyer as soon as practicable after its having been filed. 

3. The following orders sought in the Application of the applicant are refused and the Application in relation to them is discharged:

   2I respectfully request that the [Mr Galbraith and Ms Galbraith] matter in the Family Court be adjourned for at least four months from today’s date as I will now be self representing in this matter and I require the time to collect, collate and present my evidence for the Final trial.

   3.I respectfully request that I be given leave to all Orders relating to the submission of Court documentation by 4pm on the 8 May 2015 for the 3, 4 and 5 June 2015 hearing; several months from today’s date keeping in mind that I am self representing in this matter.

   4.I respectfully request that I resubmit the Orders I initially sought regarding the children matters for [C] and [D] and any additional Orders at a later date; as far as I am aware, these Orders were not submitted by my Legal Aid lawyers. 

   5.I respectfully request the liberty to submit all my evidence pertaining to this Family law case.

   6.I respectfully request the liberty to amend any Interim, Procedural and Final Orders sought.

   9.That I receive [Mr Galbraith’s] full residential addresses both in Canberra and interstate and that these details are updated accordingly.

   13.I respectfully request that you speak with [C] and [D] to discuss their reasons for not wanting any contact with their father, the reasons why they repeatedly reject their visits with the father and the reasons for wanting to live with me.

   14.I respectfully request that both [D] and [C] be given “leave” to provide evidence in the Family Court in this matter in an effort to eliminate any possible omission and/or misreporting of their evidence by Court representatives acting on behalf of the children. 

   15.I request that audio recordings be conducted during all the children’s interviews and appointments to ensure that there are no omissions, misreporting, misinterpretation or misrepresentation of what the children say to these professionals. 

   16.I request to receive guidance and direction regarding the Financial Conciliation Conference and signing of the Regulation 72, Family Law Superannuation Regulations 2001 Form.

4. In relation to other matters I make the following determinations in these Orders.

5. For the reasons expressed during the course of the proceedings this afternoon I decline to discharge the Independent Children’s Lawyer and appoint a new Independent Children’s Lawyer. 

6. In the same context I decline to appoint an additional expert family reporter. 

IT IS NOTED THAT:

1. The applicant seeks that the children will not be pressured or coerced by Court representatives but declines to make any order to that effect. 

2. I note further that the applicant requested that the children be given leave to provide evidence to the Court directly and for the reasons previously indicated in the dialogue this afternoon is refused. 

IT IS ORDERED THAT:

1. The orders seeking that the applicant be relieved from paying filing fees is a matter for determination administratively.  Otherwise the Application in a Case is dismissed and is finalised.

2. The orders that were made in this matter relating to the s 69ZW material are repeated as follows:

   a. The documents produced by the Department of Family and Community Services pursuant to an Order made under s 69ZW have been converted into an electronic form. A storage device (USB stick) is provided to the lawyers for the husband, the lawyers for the wife and the Independent Children’s Lawyer and for the use of [Ms B].

b.    Unless there is a further order of this Court the material contained on the USB stick will not be downloaded by the lawyers for the parties.  It will be used as an independent data source (drive) in preparation for the hearing and at the hearing. 

c.     The USB stick may not be otherwise duplicated for these purposes and will not be given to any person and the lawyers will not permit any other person to have access to the USB stick without a prior order of this Court. 

d.For the purposes of any hearing in this matter it will be necessary for the lawyers and for the Single Expert to have such equipment as may be necessary to enable the USB stick to be accessed in Court.  This is to facilitate the uniformity of reference to the document by the page numbers added in the electronic storage process.

e. This Order is in substitution for the Order previously made about the access that the parties might have to the material produced in relation to an Order made under s 69ZW of the Family Law Act.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Galbraith & Galbraith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1192 of 2014

Mr Galbraith

Applicant

And

Ms Galbraith

Respondent

REASONS FOR JUDGMENT

1. In this matter, I gave leave for an oral application to Ms Galbraith to apply that I disqualify myself from these proceedings.  I inquired of her as to the reasons for that and afforded her, when requested to do so, an opportunity for a short time to collect her reasons as to why I should disqualify myself.  I have endeavoured to record, as best I might, the reasons that she has advanced.  However, if I have failed adequately to reflect them in the comments that I am about to make, then, I apologise.  But, in some cases, it was difficult to discern the germ of the reason that was advanced.

2. The first reason that was advanced was that I should disqualify myself because of my anger and hostility towards Ms Galbraith and my lack of respect for her and my failure to advise her.  About what I am not quite sure.  But, at that stage, that was the words that were used.  If I have exhibited any hostility or anger, then, I apologise.  Sometimes it is difficult in court when people are completely disregarding of the normal processes and exhibiting anger and hostility to avoid responding in a way that is different from what I would regard as my normal, temperate approach.  However, in my opinion there is nothing that I have done this day which could qualify a reasonable and objective external observer to suggest that the approach that I have adopted towards Ms Galbraith would qualify for such a display, as she asserts, as to cause me to disqualify myself.  I reject those reasons.

3. The next reason that was advanced was that this Court was, and the proceedings in the Court were, extremely rushed.  An example was given in relation to this in which it was asserted by Ms Galbraith that I had put her on the spot, particularly in relation to the evidence that she proposed to adduce to the Court and she said that she was also rushed in the time that she was given to address me about matters before the Court.

4. These allegations arise in the context of an application by Ms Galbraith to abort an imminent hearing and to do so in circumstances in which there would be a loss of time before I could deal with the matter, given that she is seeking not only that the existing hearing dates be vacated, but that new dates not be permitted for a period of about four months.  In the circumstances of that application, it was important for me to understand what evidence it was that Ms Galbraith was seeking to produce and it seems to me when I reflected upon the exchanges between us that any reasonable objective external observer would conclude that the questions that I directed to her were appropriate and reasonable in the context of her application.  I reject that reason.

5. The next reason given was that I did not advise Ms Galbraith that she might have a recess, as she called it, or a brief adjournment to enable her to collect her thoughts.  Given that she had come to court with an affidavit and an application seeking an adjournment on the basis she needed to collect evidence, it seemed to me that there was no particular reason for me to invite an adjournment about those matters.  Insofar as it related to her application which I gave her leave to make orally to disqualify myself, I accept that she may have reasonably required some time to collect her thoughts and as soon as I was requested for an adjournment, I granted that short adjournment.  That is not a reason for me to disqualify myself generally or even in relation to proceedings today.

6. The fifth reason was that Ms Galbraith was at a serious disadvantage in that she was not aware of the Act, the rules, the Court proceedings or other laws of evidence and I cannot see how that can possibly constitute a ground for me to disqualify myself.  It is a statement of the obvious.  A self-representing person is necessarily at a serious disadvantage in any court proceedings.  Court proceedings are involved and complicated.  It is not the Court’s function to provide advice to litigants.  It is not the Court’s responsibility to provide advice to litigants.  It is the Court’s responsibility to behave fairly, and in relation to this matter, in my opinion, there is no reasonable basis for asserting that fairness has not been extended to the proceedings this day or generally.

7. The next reason given was that Ms Galbraith had not been given time to collect and gather up the evidence she required.  I presume this relates to the final hearing and as I have not made any determination about whether or not the date is to be vacated it is a bit difficult to understand how this assertion can properly be made. I reject the claim.

8. The next matter was that Ms Galbraith recalled that on the first and second court appearances, that it was stated by me, apparently, that affidavits would not be required until Ms B’s report had been received, and she felt that as a consequence of this she was in some way disadvantaged in the preparation of the report by Ms B.  She said that it was not based on proper evidence and no equal opportunity had been given to her.  I cannot recall – and I accept that I might have said there was to be no affidavit filed.  I fail to see the connection between that and a report and, more importantly, in relation to this particular application, there is no basis for saying that there was a ground for me to disqualify myself or that there would be any apprehended bias in the mind of any reasonable external and objective observer.

9. The next matter I have some difficulty in understanding and, if I fail to present the reasons as adequately as Ms Galbraith did, I apologise.  She said that the Court and I and Legal Aid had been suppressing material.  I was not sure what that meant but I certainly have not and, in these proceedings, have insisted that all material ought to be made available to all relevant parties.  In particular, she asserted that Mr Galbraith’s third affidavit was not supplied to her by the Court or by Legal Aid.  It is not the Court’s obligation to supply any documents to a witness or to a party to the proceedings.  That cannot be a ground for me to disqualify myself.  What Legal Aid or the people at Legal Aid did in representing her is not a ground for me to disqualify myself.

10. The next matter was that reasons were not supplied why an affidavit which had a photograph of D with a sign on her about her father was suppressed and concealed in an affidavit supplied by her father.  I fail to understand that reason at all.  She pointed out that in the affidavit there was a suggestion that the children were tickling his neck at the time and she said this was very inconsistent with the photograph and, in some way that is asserted to be a ground for my disqualification.  The material that is contained in the affidavits has not been the subject of consideration at this point, with few exceptions, and certainly for the final hearing there will be a need to determine what evidence is admissible and that which is not, including Mr Galbraith’s material.  That is not a ground for me to disqualify myself.

11. The next reason I do not understand at all.  It was what happened to the Father’s Day card that was made in school.  I recall such a card.  I do not remember what happened to it or where it is.  The fact that I recall it would suggest there was no concealment of it.  In any event, it is a subcategory of the other matters and, in my opinion, does not qualify as a proper reason for me to disqualify myself.

12. Ms Galbraith then asserted that my general demeanour was very demoralising of her and was different from the way in which I treated the other people involved in these proceedings.  I understand that she may feel that when she is angry, resentful and abusive to me, that the responses I give may not be quite as measured as those who speak politely and appropriately, but, in my opinion, this is instead an example of her inability to understand the consequences of her actions, rather than any reason to suggest that I should disqualify myself.

13. She also asserted that in some way I had become Torquemada and was conducting the Spanish Inquisition in relation to her.  This I take to be a reference to my requirement that she nominate the evidence that she might want to put before the Court.  The reference is insulting, if not contemptuous.  It would be an appropriate ground for action in some cases, but not in this one.  I am sorry if she feels that way, but the short answer to the matter is if the case had been properly prepared by her, then it might not have been necessary for me to make the inquiries I did or to press for an answer to them, so that I could, in fact, deal with the matter appropriately.  It is not a ground for me to disqualify myself.

14. She next asserted that I was biased, one-sided and supported males against females.  I have absolutely no idea where that allegation comes from.  There is nothing in these proceedings in which there is any suggestion that I have any particular bias against females or generally or that in relation to the application today that there is in some way support for one side against the other.  I have listened carefully to what she has had to say, I have endeavoured to clarify the issues that she raises.  None of those have involved the suggestion that it is because she is a female that there is some bias on my part.

15. The next reason given was that I have accepted all of Mr Galbraith’s affidavits to the Court and that this included material that was not admissible and, in particular, included material in which he asserted, she says, that she, Ms Galbraith, loved him so much.  She asserted the bulk of the affidavit should be deleted.  That may or may not be the case.  It is a matter for determination at the trial.  If material is inadmissible, it should be deleted, in any event.  It is not a ground for bias.  It is not a ground establishing bias.  It is not a ground for me to disqualify myself.

16. It was then suggested as, I suppose, a subset of the last reason given, a question – why do the rules of evidence not apply to him, him in this case being Mr Galbraith.  The rules of evidence apply to those who appear in this Court and will be applied in this Court as even-handedly as I reasonably can.  It is not a ground for me to disqualify myself.

17. The next question was why Mr Galbraith was allowed to prepare affidavit after affidavit.  I have not gone back to review the affidavits that have been placed in the Court or the occasions giving rise to them.  It is open at any point for a litigant to raise objections to the filing of material if it is not done in accordance with the rules of the Court, the rules of evidence or the orders of this Court.  In the context of the generalised complaint made, there is no basis for saying that I should disqualify myself.

18. The next ground was, in fact, a repetition of an earlier ground which was that the whole case was being rushed and was rushed through against the children’s interests.  This was clarified by saying that the children have disclosed sexual abuse which has not been investigated, not by the police, not by JIRT, not by DoCS, not by this Court and that someone needs to attend to this matter urgently.  This is a combination of things, but appears to be that the case should not have proceeded in a way that it did under my direction.

19. A review  of the orders made in this matter and the attendances at court would reveal, in my opinion, to any disinterested observer the fact that this case has been driven towards finding the earliest possible solution to a determination of what is in the best interests of the children.  It is not generally felt, it seems to me, that a delay in court cases is in the interests of children.  The fact that the police, JIRT and DoCS have not investigated the matter or interviewed Mr Galbraith is not a matter which is within my control or ability to determine and, as such, it is unreasonable to suggest that this might be a reason for me to disqualify myself.

20. To the extent that I have or have not caused in some way an investigation of these matters is a misunderstanding of the role of the court, which is to determine matters between parties, not to conduct an investigation in its own right.  Even if it were, the court does not have the facilities or the resources to conduct such an investigation and, indeed, under the common law and under those countries that follow the common law, such a process is not only regarded as inappropriate, but inadvisable.

21. The next matter was – which seems strange given that Ms Galbraith was unable to allow me to speak without interruption – that she is never given a chance to speak without interruption.  I do not accept that as being a proper reason for me to disqualify myself and, not only that, it is also not factual and demonstrates again a lack on her part of an ability to understand the consequences of her actions.

22. The next matter was that there was “no empathy to me or to the children”.  She said it is disheartening for her to be treated in that way.  I do not quite understand what this is all about.  Empathy is normally having consideration for the feelings of others.  In this context, the proceedings have been monopolised by Ms Galbraith asserting loudly and usually by way of interruption or over the comments of other people her own views, which demonstrates, so far as she is concerned, an almost total lack of empathy.

23. To the extent that it is asserted that I in some way fail to understand her feelings in this matter, either as a self-represented litigant or as the mother of the children or as a party to the proceedings or as a person in the courtroom itself, which I accept as being an alien environment for most people, I reject that claim in the context of both the exchanges she has initiated with the bench and her responses to them.

1. I am sorry that she feels disheartened in that she was asked to produce a list of the witnesses and evidence that she is to put before the court.  Unfortunately, this Court does not operate by some divine intuition but rather by evidence.  It is important for me to understand who the witnesses are going to be and what the evidence is going to be so I can calculate how long a trial might take, the sort of evidence that is likely to be before the court, the way in which the matter might unfold, and to give directions which will ensure that the parties are not put to expense and difficulty beyond that which is absolutely necessary.  In fact, if anything, my approach to this matter is indicative of empathy rather than the reverse of it.  I reject that ground.

2. The next matter was that:

   The court and Legal Aid have not kept me up to date with court protocols and procedures and practices and that that illustrates a lack of empathy and sympathy.

3. It is not the Court’s function to provide advice to any litigant before the Court, self-represented or represented.  It is the Court’s function to determine process, to engage in the conduct of the trial, and to make decisions between parties.  The fact that the Legal Aid office if, in representing Ms Galbraith, did or did not keep her up-to-date with protocols is a matter beyond my control, and also a matter that does not bear at all upon the appropriateness of my continuing to deal with the matter. 

4. The next matter was that on 12 December 2014, there was a reference to the fact that Ms E had suggested that visits to the father should proceed with caution and, so far as I am able to discern the bulk of the complaint in this matter, it appears that Ms Galbraith believes that I did not proceed with due caution as she would understand or define it, and that she has referred this to people outside the court who agreed with her assessment.  If there were a complaint about an order that I have made, the appropriate remedy is for there to be an appeal.  There was no such appeal.  The fact that there is a disagreement between Ms Galbraith and me as to what might constitute due caution, even if I were to accept the advice of the independent children’s lawyer, which I am not obliged to do, then, the proper remedy was in an appeal, and none occurred.

5. The next issue was that I was rushing the case through because of my retirement.  My retirement is many, many months away and I do not know where the reason comes from, but it is certainly, as a subset of the other matter but an extension of it, an irrelevant one.  It is rejected.

6. The next matter was that, unlike other matters, Ms Galbraith has only been given one month in which to prepare for her hearing.  This is factually incorrect in that the matter has been set down for hearing some time ago, and directions were given as to the appropriate way in which the matter might proceed.  The matter was scheduled to be dealt with, admittedly, about a month away, but that was in circumstances when, at the time, Ms Galbraith was legally represented.  The fact that she is no longer legally represented may leave her in a situation where the time available to her is too short, and that was the purpose of her application to this court for an extension of time to prepare for the court and to vacate the hearings.  As I have not yet given a decision on this matter, it is difficult to understand how this can be asserted to be a ground of bias.

7. The next matter was again a repetition of an earlier ground written in a different context, that in the first hearing I had indicated myself that caution should be applied in relation to the orders that were made about the time the children spend with their father, and the assertion from Ms Galbraith is that that did not happen.  Again, I say, if there was a decision of mine with which there were proper grounds for appeal, then the appeal should have happened and did not.  In any event, it is a matter of opinion, to some extent, as to what constitutes caution, and the fact that Ms Galbraith holds a different opinion from mine does not mean that I should disqualify myself.

8. There is a further repetition in the next reason of the earlier grounds raised, which is that there is discrimination against Ms Galbraith as a female.  Nothing new is advanced under this heading from that which was previously advanced and I reject the allegation and note that there were no objective examples given to establish it.  It is not a ground for me to disqualify myself.

9. Finally, she says that the question of mental illness was raised and that Mr Galbraith has no qualification to make any comments about her mental illness or otherwise.  I am not quite sure how that reflects on me as being a ground on which I should disqualify myself.  However, it is not Mr Galbraith’s comments about that that are relevant, and I agree entirely that he is not qualified to make any determination or to give an expert opinion about mental illness.  However, it is something that appears in the reports of someone who is an expert, Ms B, and is a factor that I certainly have to take into account in these proceedings.  Again, I have no idea why this should constitute a basis for me to disqualify myself.

10. In short, dealing with all the reasons raised, I decline to disqualify myself and refuse the application.

11. In this matter, I am being asked to adjourn the proceedings, effectively, to some months away, on the basis that they might then be commenced after the applicant, Ms Galbraith, has, in her terms, had an opportunity to train herself in cross-examination, review all the evidence that has previously been produced in some way, make such investigations she requires, file additional affidavits and prepare for the hearing. 

12. This matter was set down for hearing on or about 12 March this year, which is now some two months before now.  It is unfortunate that, so far as Ms Galbraith is concerned, her legal representation has ceased to represent her for whatever reason, and at this stage it appears that she is unlikely to or unable to obtain alternative legal representation.

13. The matter was set down for hearing initially when she was represented on the basis of a three day trial, which at that stage represented an appropriate estimate of the time that the matter might take to complete in the light of the fact that the applicant was represented, and also the material that had been filed, and, to some extent, the material that had been withdrawn, which would have, to some extent, extended the hearing, perhaps unreasonably, in terms of dealing with material that was irrelevant or inadmissible.

14. The current application seeks a serious extension of time to enable the applicant to prepare herself for the hearing.  While I acknowledge that the processes of this Court are complicated – no more so than other courts but it is, nevertheless, complicated – and the issues are serious and significant, and the dedication of the applicant to her position in this matter cannot be doubted.  There is a need to balance at every point the interests of all of the participants in the proceedings, not simply one alone.  More importantly, under the Act, my obligation is to regard children’s best interests as my paramount consideration in the way in which the matter proceeds.

15. In this matter, I have two competing considerations about that.  The first is, I have some professional evidence before me at the moment from Ms B that the children are in danger in remaining with their mother and being subject to her influence at the present time.

16. The second matter that I have to balance against that is the fact that there is no doubt that a person representing herself in this case is at a significant disadvantage, and the Court should at least acknowledge that fact.  Balancing those two issues in this matter brings me to conclude that the appropriate way of dealing with it, notwithstanding that in the end it really satisfies the needs of neither of those matters, is that the matter should proceed at least initially on the days that were originally allocated, and those three days, or such part of them as can properly be utilised, should enable the matter to at least get to the first stage of its hearing.  That would then leave open – and the only days that I have available of that sort in this period at this point are 31 August and 1 and 2 September – leaves time to deal with the matters raised by the applicant once she has had some additional time in which to get her case together and to determine how she is going to proceed.

17. It is, by any measure, difficult for her to organise herself to do all of the things that have to be done, and I do not for one moment diminish or in any way belittle the difficulty in that task.  I do, however, have to balance the interests of the other litigants, and I do have to balance, more importantly, the best interests of the children.  And, in my regard, the balance is best achieved in the way in which I have indicated, and I will make orders accordingly.

18. In the matter of Galbraith & Galbraith, I make the following orders:

ORDERS DELIVERED

1. In relation to other matters, I make the following determinations in these orders.  For the reasons expressed during the course of the proceedings this afternoon, I decline to discharge the Independent Children’s Lawyer and appoint a new lawyer.  Further, in the same context, I decline to appoint an additional expert family reporter.  I note that the applicant seeks that the children not be pressured or coerced by court representatives, but decline to make any order to that effect. 

2. I note, further,  that the applicant requested that the children be given leave to provide evidence to the Court directly, and that, for the reasons previously indicated in the dialogue this afternoon, is refused.  The orders seeking that the applicant be relieved from paying of filing fees is a matter for determination administratively.  Otherwise, the application in a case is dismissed.  It is removed from the active cases, and so, is finalised.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 13 May 2015.

Associate:

Date:  28 July 2015