FAMILY COURT OF AUSTRALIA
| HARTNETT & SAMPSON | [2008] FamCA 75 |
| FAMILY LAW – PROCEDURAL – Disqualification |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Hartnett |
| RESPONDENT: | Ms Sampson |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
| FILE NUMBER: | SYF | 3827 | of | 2004 |
| DATE DELIVERED: | 7 February 2008 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 17, 19 December 2007 and 30 January 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kearney |
| SOLICITOR FOR THE APPLICANT: | Karras Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Livingstone |
| SOLICITOR FOR THE RESPONDENT: | Paul & Paul Lawyers |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Karagiannis |
Orders
The rehearing of this matter is to be expedited and heard by another judge.
The matter is listed for mention before Le Poer Trench J at 2.30pm on 7 March 2008 for such directions as his Honour considers appropriate.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Moore delivered this day will for all publication and reporting purposes be referred to as Hartnett & Sampson.
FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 3827 of 2004
| MR HARTNETT |
Applicant
And
| MS SAMPSON |
Respondent
REASONS FOR JUDGMENT
On 22 November 2007 the Full Court allowed the wife’s appeal from parenting orders I had made on 21 March 2007, set aside orders 15 to 18, and ordered that the application for parenting orders be remitted to me ‘for hearing and determination in accordance with the reasons of this Court.’
There is dispute about what this means and my attempt to have the scope of the remitter resolved by agreement has been to no avail. The more immediate issue, and the subject of these reasons, is the wife’s application that I disqualify myself from hearing the matter further on the basis of reasonable apprehension of bias. Determination of the other issue will follow accordingly.
As set out in the initial written submissions of the wife’s counsel, elaborated in oral argument, the apprehension is one of pre-judgment arising from the credit findings made already against the wife. Cited in support is this passage from paragraph 5 of my Reasons:
‘It is the compound combination of a number of aspects to her evidence on several issues, in some instances purposefully given and not retracted despite the opportunity, that were shown to have been either wrong or unlikely on the balance of probabilities. As each layer was placed on top of the other, by the time the evidence drew to a close her reliability vis-à-vis [the husband] was an issue that could not be resolved in her favour. An adverse view of her credit is the only finding reasonably open on the evidence as a whole.’
The wider context of the passage extracted is this:
‘5. The stark differences on several core facts require a view to be expressed about the confidence that can be placed in each party’s reliability for accuracy and objectivity in relaying information integral to the decisions they have relinquished to the Court. Analysis of the evidence demonstrates [the…
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CaseChat Overview and Summary
The primary legal issue before Moore J was whether the findings made by the original judge regarding the wife's credit and her parenting capacity necessitated a rehearing of the matter before a different judge. The wife argued that the findings, particularly those concerning her resistance to the father's contact and her attempts to marginalise his role, were so adverse to her credit that they required a fresh hearing by an unburdened judge to ensure impartiality. The husband, however, contended that the wife was precluded from seeking disqualification by law and by operation of estoppel, and that the apprehension of bias was unfounded.
Moore J considered the established authority on judicial impartiality, citing decisions from the High Court and the New South Wales Court of Appeal. The court accepted the wife's argument that where findings against a central witness's credit have been made, and further evidence is anticipated leading to factual disputes, a rehearing before another judge is appropriate to maintain the appearance of impartiality. The court noted that the original judge's findings, particularly those concerning the wife's resistance to supervised contact and her attempts to marginalise the father's role, were significant and had been made in difficult circumstances.
Consequently, Moore J ordered that the rehearing of the matter be expedited and heard by another judge. The matter was listed for mention before Le Poer Trench J for directions.
Orders
Orders of the court
1.
The rehearing of this matter is to be expedited and heard by another judge.
2.
The matter is listed for mention before Le Poer Trench J at 2.30pm on 7 March 2008 for such directions as his Honour considers appropriate.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It is said that these findings led to an assessment of the wife’s attitude towards fostering the father’s relationship with the children, citing these passages from the Reasons:‘a. Paragraph 82(ii)“[The husband’s] relationship with the children has been developed in quite difficult circumstances….not only by reason of the place and travel it has entailed but also because it has been the subject of resistance from [the wife] from the outset of their separation in one way or another” (emphasis added).b.Paragraph 88 and 89 – when setting out Section 60CC(4) your Honour says: “Several shortcomings in these areas have been discussed in the evidence already. From the outset of the separation [the wife] insisted on short terms and supervised contact between [the husband] and [A] in circumstances where there was nothing to substantiate any concerns requiring the protection implicit in supervision” (emphasis added).c. Paragraph 90:“in other respects, unrelated to [the wife’s] attitude towards [the father] and her attempts to marginalise his role in the children’s lives……”d. Paragraph 98: “…the continuation of the current circumstances has potentially serious consequences for these children … [the mother’s] parenting capacity is less than is necessary for the children’s needs”’ It is common ground, and apparent from the Full Court majority judgment at paragraph 91, that there will be further evidence about matters arising since the trial and there is a very high probability – indeed, inevitability – there will be disputes of fact and findings will be necessary before their application to the assessments underpinning the ultimate outcome. Accordingly, it is argued for the wife, the findings I have already made against the wife’s credit require the matter to be heard by another Judge, consistent with established authority. As for authority, the submissions for the wife cite this passage from the decision of Kirby P (as he then was) in Australian National Industries Limited v Spedley Securities (1992) 26 NSWLR 411 at 421-422:‘But in comparison to the entitlement of the appellants to have, in a matter of such importance to them, a trial of manifest impartiality by a judge who comes to their main contest unburdened by earlier findings and expressed opinions about the credit of central witnesses, such considerations pale into less importance.’ Otherwise cited as setting out relevant principle are three decisions of the High Court: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344-355 348; and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 548-549. Opposing the application, the submissions for the husband raise two arguments preliminary to the merit of the apprehension point which is said to have no basis: as a matter of law and also by operation of estoppel the wife is precluded from seeking the disqualification.