HAMMOND & HAMMOND (DISQUALIFICATION)

[2013] FamCA 1067

FAMILY COURT OF AUSTRALIA

HAMMOND & HAMMOND (DISQUALIFICATION) [2013] FamCA 1067

FAMILY LAW – PRACTICE AND PROCEDURE – Disqualification – Alleged prejudgment by the presiding judicial officer due to the making of a procedural order made in chambers in advance of the relisting – Application of the two-step test in disqualification applications on the ground of apprehended bias – Application dismissed

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70

APPLICANT: Ms Hammond

RESPONDENT: Mr Hammond

INDEPENDENT CHILDREN’S LAWYER: Mr Naidovski

FILE NUMBER: PAC 1867 of 2008

DATE DELIVERED: 17 December 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 17 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Merkin

SOLICITOR FOR THE APPLICANT: Kim Eccleston Family Law Sole Practitioner

SOLICITOR FOR THE RESPONDENT: Lamrocks Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The Family Report prepared by Family Consultant Ms F dated 25 November 2013 is released to the parties.

2. Where orders for access to documents produced on subpoenas have already been made, such orders are to include photocopy access to the legal representatives.

3. The Application in a Case filed on 4 December 2013 is dismissed.

4. The father’s oral application be adjourned to 18 December 2013 at 3.00pm to deliver my reasons for judgment.

5. The current interim order to the effect that the child is to live with the mother for tonight only is discharged and in lieu the child is to be collected from childcare this afternoon and taken home with the father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hammond & Hammond (Disqualification) 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 PARRAMATTA

FILE NUMBER: PAC 1867 of 2008

Ms Hammond

Applicant

And

Mr Hammond

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application made by the Applicant mother in parenting proceedings between herself and the father relating to their only child, A, (“the child”) who is a little over eight and a half years old.  It is an application that I disqualify or recuse myself from further hearing of the matter and was originally brought on three grounds, two of which have been abandoned in the course of hearing.  The only ground that is being pursued is that I have prejudged the matter in the making of an Order in chambers on 29 November 2013 that:

   1.The parent with whom [the child] born … April 2005 (“the child”) is living/spending time with on 17 December 2013 deliver the child to the Child Care Section of this Registry on Level 1 (Ground level) by 9.00 am on 17 December 2013 and remain in that Section pending further Order of the Court.

2. The Order came about in circumstances where the matter was last before the Court on 5 November 2013 and, at that stage, a Family Report, which had been ordered some months earlier by a different judge, had not yet been released.  The report, which is dated 25 November 2013, was released today in Court to the parties and so the Order on 29 November 2013 was made after the Family Report had been signed and related to the day on which the matter was next listed to be mentioned for further directions.

3. The Applicant says that her concern about prejudgment arises because the only reason that such an Order could be made or would be made was for the Court to take the step, and it is described as a common practice for this to happen, in the context of a change in residency.  Even though I have some difficulty in understanding the submission about the logical connection between any issue of prejudgment and the Court determining the matter otherwise than on the basis of the evidence, that has been submitted.

4. So far as the proceedings and the Family Report are concerned, one of the matters which was not resolved on the last occasion, and which was to be determined today, was the issue about time the child should spend with each of her parents at Christmas.  It was a matter that was originally raised on 5 November 2013 and stood in the list for discussions but, as no agreement was reached, that matter was adjourned to today. 

5. The Family Report, which was released today in Court, is, on a fair reading, quite negative in terms of the conclusions about the mother and may give rise to an application to change the current arrangements.  That is a matter which has not arisen as no such application has been made, even though the parties have been provided with an opportunity to consider the report and may still make such application. 

6. However, the application to disqualify myself was made prior to the release of the Family Report and prior to any application that may be made.  Any speculation about how any application, if made, may be determined, cannot form part of this application.

7. The test for disqualification on the grounds of apprehended bias, set out by the High Court in Ebner v Official Trustee in Bankruptcy[1], is as follows at [6]:

   … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. …

   [1] (2000) 205 CLR 337

8. In that case, the High Court went on to say that the application of the principle requires two steps.  First, it requires the identification of what is said might lead a judge to decide a case other than on its legal and factual merits.  Secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

9. So the first question for the Court to determine is whether, in making the Order referred to, I have demonstrated prejudgment.  If it is found that the making of that Order does demonstrate prejudgment then there also must be a logical connection between that prejudgment and the possibility of departure from impartial decision-making.

10. There have been comments made by judges of the High Court in a number of cases involving applications for disqualification and, in particular, in the matter of Johnson & Johnson[2].  The Judges who delivered that joint majority decision observed that two things need to be remembered and that is that the observer is taken to be reasonable and that the person observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.

    [2] (2000) 201 CLR 488

11. In relation to the submission that a fair-minded lay observer might conclude that I have prejudged the issue in making the Order, I did ask for further submissions and I have to say that I do not really understand the argument that was then proposed as to why the extra factor has been established, and that extra factor is that which particular attention was drawn to by Gaudron and McHugh JJ of the High Court in the matter of Laws & Australian Broadcasting Tribunal[3], when it was said at page 100:

    … A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry [citations omitted]. When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. …

    The Court rejected the notion that a fair and unprejudiced mind was necessarily a mind which had not given thought to the subject matter.  In this case, even if it can be concluded that even entertaining the possibility of any application for a change in residency (which, after all, is all that we are dealing with here,) demonstrates that the Court is so prejudiced that it will not alter that conclusion irrespective of the evidence and argument is a matter with which I have some difficulty.

    [3] (1990) 170 CLR 70

12. It seems to be being suggested, (though, as I say, I have some difficulty in understanding the submission,) that if a Court were, despite evidence which is said to be common ground as present in this case of the child having being sexually harmed by her brother in the father’s home, nonetheless make such an Order and, once again, I stress that it is speculative, then, in some way, this precludes the Court from considering the case properly on its merits.  However, of course, that submission involves, by definition, considering a matter which has not yet been determined that I cannot take it into account.

13. I fail to see – and, in my view, it has not been established – how the mere making of an Order of a particular type, even where it is said to be usually something that is in accordance with usual practice, that leads to an application of another type, in some way demonstrates prejudice of the kind that would cause me to determine the matter otherwise than on its merits.  In those circumstances, the application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 December 2013.

Legal Associate:      

Date:    31 January 2014