Honan and Nourse

[2007] FamCA 1690

FAMILY COURT OF AUSTRALIA

HONAN & NOURSE [2007] FamCA 1690

FAMILY LAW – COURTS AND JUDGES – Disqualification – Reasonable apprehension of bias – Application by the father for judge to disqualify himself – Judge delivered reasons in a previous trial between the same two parties approximately two years earlier – Findings as to the father’s violence in the relationship with the mother and relationships with other women – Judge made adverse findings about both the father and the mother but adverse views of the father were significantly greater than those made against the mother – Trial judge will need to determine whether there have been any further incidents of violence directed by the father to the mother, his own mother or any other women in his life since the time of the previous trial – Consideration of the criteria set out by Hayne J in MIMA v Jia (2001) 205 CLR 507 at para 185 – Judge to disqualify himself

Family Law Act 1975 (Cth)

Registrar of the Supreme Court of South Australia v Moore-McQuillan [2007] SASC 292
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Johnson v Johnson (2000) 201 CLR 488
MIMA & Jia (2001) 205 CLR 507

APPLICANT: Mr Honan

RESPONDENT: Ms Nourse

INDEPENDENT CHILDREN’S LAWYER: Mr Pickhaver

FILE NUMBER: ADF 4692 of 2001

DATE DELIVERED: 5 September 2007

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 5 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Read

SOLICITOR FOR THE APPLICANT: Dixon Gallasch

COUNSEL FOR THE RESPONDENT: Mr Treadrea

SOLICITOR FOR THE RESPONDENT: Jo-Anne N Milen & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Pickhaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

Orders

1. I disqualify myself from the further hearing of the trial proceedings.

2. I adjourn the proceedings for consideration as a primary listing at the earliest opportunity and refer the matter to the Listings Manager.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4692  of 2001

MR HONAN  

Applicant

And

MS NOURSE  

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter was originally listed to commence as a trial before me today.  Upon realising that I had, only a little over two years ago, delivered reasons after a 7 day trial in this same matter, I listed it for directions before me on 28 August 2007.  As a consequence of information provided at that time, namely as to the unavailability of Dr M to give evidence if the trial proceeded this week, the trial listing for this week was vacated.  It was agreed though that there were a couple of points that remained for my determination.  

2. The first was whether or not I ought to be disqualified from hearing the further trial of these proceedings and then, if as has developed today by agreement, I was of the view that I ought to be disqualified then there remained for the determination of another Judge the Rice and Asplund (1979) FLC 90-725 point. If indeed I do not determine that I am disqualified, then I am in a position to determine the Rice and Asplund issue today.

3. The application by the father, I understand, is not on the basis of bias.  The application is rather more that there may be a reasonable apprehension of me being biased in the subsequent trial of these proceedings between the same two parties. 

4. There are a number of principles that have been outlined in many authorities over time and many Judges, in their Judicial lives, have had to determine this issue on more than one occasion.  A short form summary of the High Court authorities is to the effect that a Judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that the Judge might not bring an impartial or unprejudiced mind to the resolution of the case, and that is the fundamental principle, as I understand it, to be applied when considering whether a Judge is disqualified from sitting.  The rationale for that principle is the importance of public confidence in the fairness and impartiality of the administration of justice by the Courts.  That requires, in turn, not only that justice be done, but that it be seen to be done.  The principle is applied from the standpoint of a fair-minded and reasonable observer who is acquainted with the relevant circumstances.

5. As I said, the issue of disqualification has been discussed in many cases both in this Court and in other Courts in this country.  Mr Tredrea, Counsel for the mother, provided to me a copy of a decision of Justice Nyland in a case in the Supreme Court called Registrar of the Supreme Court of South Australia v Moore-McQuillan [2007] SASC 292 and it was a decision delivered on 8 August 2007. In it her Honour quotes from what are now very well known passages in the cases of Livesey v New South Wales Bar Association and Johnson v Johnson, the latter as I recall, having been an appeal from the Full Court of the Family Court.  Mr Pickhaver, Counsel for the Independent Children’s Lawyer, provided to me a copy of a first instance decision of Collier J in this jurisdiction, namely in Fennessy & Sanchez [2007] FamCA 261 and Mr Pickhaver made particular reference to the passages quoted by Justice Collier from MIMA & Jia a decision of the High Court delivered on 29 March 2001. In it there are extensive quotes from Justice Hayne at paragraphs 183 to 187 inclusive. It is not necessary for me to consider the remarks he made about the meaning of bias in detail. The matter of bias has been raised by Mrs Read and thus the issue is rather more whether or not a reasonable person might have the apprehension that I would be biased in my determination of issues again between these parties.

6. To quote from paragraph 184 onwards of Justice Hayne’s decision in MIMA & Jia, his Honour said:-

   “184.The development and application of a test of reasonable apprehension of bias avoids any need for a court, which is asked to prohibit a decision-maker from going further or to set aside a decision which has already been made, to attempt some analysis of the likely or actual thought process of the decision-maker.    It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question.  As was said in Ebner v The Official Trustee in Bankruptcy, ‘[t]he question is one of possibility (real and not remote), not probability’.

   185.Saying that a decision-maker has prejudiced or will prejudice an issue or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots.  First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case.  Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue.  Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.  Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

   186.Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified.  In 1894, it was said that:

   ‘preconceived opinions – though it is unfortunate that a judge should have any – do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded.’

   Allegations of apprehended bias through prejudgment are often dealt with similarly.

   187.In the case of a court, it will usually be self-evident that the issue, if an issue of fact, is one which ought to be considered afresh for the purposes of the particular case by reference only to the evidence advanced in that case.  Other decision-makers, however, may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision.  Indeed, as I have already pointed out, the notion of an ‘expert’ tribunal assumes that this will be done.  Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject.  It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker.  The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker.”

7. I will not repeat the many factual findings that I made in my decision made in this matter on 3 March 2005.  It was though a matter which covered 7 days of hearing and is a matter which, upon re-reading my reasons for Judgment, still has a somewhat indelible mark in my memory.  The matters which create that indelible mark are essentially as to my findings as to the father’s violence displayed during the course of his relationship with the mother. Those elements of his behaviour and which I think, on a re-reading of the decision I determined were elements more significantly of his character, were also exhibited over many, many years in his relationship with other women but particularly, his own mother.

8. I made a number of findings which did not favour either party or, put in another way, I found there were quite a number of aspects about their individual character, their individual behaviour and particularly, their parenting capacities, that were somewhat damning.  I made adverse findings against both.  However, again a re-reading of that Judgment indicates quite clearly that my adverse views about the father were significantly greater than the adverse findings I made against the mother.  It is a fact that I frankly cannot reject from my mind. 

9. Whilst those findings of violence are unlikely to be tried again in the re-hearing of the matter as the father did not challenge my findings on Appeal, they are matters that would continue to loom large for me.  As I said, and I quote from just a number of passages in my Judgment, the father’s behaviour was absolutely appalling in that regard.  Just taking bits and pieces out of my Judgment, I refer to paragraph 41  where I said:-

   “41.The father’s history of violence in his significant relationships with adult women in his life is long and appalling.  I accept that he was guilty of the most dreadful violence to his mother, his sister, a woman with whom he had an earlier relationship and the mother in these proceedings. He used physical violence, extreme intimidatory tactics, foul abuse, shouting, anti-social behaviour (such as playing loud music until 3.00 am), imprisonment within rooms of the house and other tactics to terrify and control the adult women in his life.  His mother, in her evidence, openly and frankly gave evidence of the most frightening violence by the father.  He directed the most disgusting language towards her and the other adult women who came in and out of his life from time to time and exhibited the most appalling attitude towards women:-

   “They are only good to fuck”.

   42.The paternal grandmother gave evidence that the father lived with her for about 12 months until February 2003 when the week and week about residence arrangement was in place.  Disturbingly, she gave evidence that the father’s appalling behaviour was about the same whether [the child] was there in his care or not.  Thus [the child] was witness to extremely emotionally harmful behaviour.  The father showed no insight into the impact or effect his behaviour was having on [the child].

   43.The paternal grandmother said that she was assaulted by the father on numerous occasions.  He hit and punched her several times a week.  Finally, in December 2002, after yet another vicious assault upon her, the paternal grandmother called the police and the father was charged with assault upon her.  On 9 January 2003 FAYS attended with the police to assist the paternal grandmother with the violence she was experiencing at the hands of the father.  The police wanted [the child] out of the way whilst they dealt with the issue but the father responded by grabbing [the child] and holding her in his arms throughout an extremely stressful period of approximately 1 ½ hours.  The father throughout was yelling in an extremely loud voice. The experience for [the child] must have been absolutely appalling.

   44.Just what the paternal grandmother had been through for years is starkly evident from letters forwarded by her to the father’s treating psychiatrist Dr [L] in 1996, 1998 and one other occasion (the letter was undated).  Those letters are Exhibit 8 and disclose that the paternal grandmother lived through the most terrifying of times with her son.  An extract from pages 2 and 3 of her letter to Dr [L] of 8 March 1996, encapsulates the reign of terror the father imposed and the extreme level of violence and threats of which he was capable:-

   “He left home and went to live with a lovely young girl.  After a while he treated her very badly and in the end she had to take out a summary protection order against him.  He defied the court and twice breached the order, resulting in fines.  She is a fearful quivering wreck now and is still seeing a psychiatrist.

   After that he came back home to live and we have suffered ever since.  His father had a triple by-pass in ’83 and worked till ’87 when he started to go downhill.  By the time [the father] came home to live he was very ill.  He had GOAD, emphysema, coronary artery disease, gall stones, ulcers and he survived a bout of septicaemia not long before he fell and broke his hip.  He had it repaired with a spinal anaesthetic so you can imagine how much he wanted to be told by [the father] ‘why don’t you die, old man?’. (In her evidence, she said she was mistaken and that it was her other son who said this).

   [The father] would have his headbanging music going full blast all day and into the night and he would bash things around.  There was no peace and no escape.

   That is the way it is for me now.  He corners me and will not let me pass.  He punches me in the head and shoulders and dares me to touch him so that he can smash me.

   He threatens to kill me and I have no doubt that one day, in one of his rages, he will make good his threat.

   He has told me that I’d better watch out when I drive the car because he will fix it so that I will have a bad accident.

   He threatens to burn the house and the car and if I ever go out and leave him home I come home in fear and trepidation of what he might have done while we have been out.

   He spits in my face and the other day when I wasn’t game to push him out of my way and I had had enough I spat back.  Well he worked up a real good one and spat it in my hair and wouldn’t let me go and wash it out.

   In the past he has kept my daughter and me at bay and imprisoned in my room for hours at a time. 

   The rages he gets into start from some perception that I am trying to put him down.  The one with the spitting incident started because he had asked me where […] Forest is and I told him I thought it wasn’t too far from Mt […].  He said it was hours away from Mt […] and when I said I didn’t think it was far away at all that’s when he blew up.

   These are only a few of the incidents that happen on an almost daily basis at our place and I am nearly at the end of my rope.

   I have developed some slight heart disease and have recently been treated by Dr [G] for ulcers and they were not caused by the bug that they talk about.

   If you ask him any questions about these things I would prefer that you don’t tell him I wrote you this letter if you don’t mind as he is dangerous and he has threatened my life if I tell anyone else anything about him.”

   45.The paternal grandmother added a postscript to that letter:-

   “PS.  He says that he was put on this earth to get rid of me.”

   46.The incidents of December 2002 and January 2003 were closely followed by another assault by the father upon the paternal grandmother on 1 February 2003.  Again she was the victim of foul and abusive language, very loud shouting and physical assaults.

   47.Whilst within the context of these proceedings those events and incidents are extremely disturbing, the most alarming component is [the child]’s involvement and exposure to those events.  In their report dated 9 January 2003 (Exhibit 7) FAYS record:-

   ‘[The child] tries to intervene when [the father] is attacking his mother.  Hangs onto his leg’. …

   48.I accept the evidence of the mother that she too was the victim of a great deal of the father’s violence, abuse and intimidation. …”

10. I doubt that I could have found much stronger words to describe what I saw at that time as being appalling behaviour, and I think a natural extension, an appalling character within the father.  In my view, critical issues for the determination of the Trial Judge who hears these proceedings will be as to whether or not there have been, since that occasion, any further incidents of violence directed by the father not just towards the mother, but also his mother and any other women in his life.  If the issue is raised I, to be frank, would find it extremely difficult not to bring a pre-conceived view of the father to the adjudication of those proceedings.  I am reminded by a re-reading of the Judgment just how violent and appalling I thought he was in terms of his conduct and in his character at that stage of his life.

11. So I need then return to the quoted passages from Justice Hayne.  The first matter that needed to be considered and mentioned by him in paragraph  185 of that decision:-

    “….  there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case.”

    I think it impossible for me to avoid the opinion I have of the father in terms of his violent conduct and his propensity to violence and I think that any reasonable person reading my decision, including the passages quoted by me, would have to be concerned that I would not bring that view about the father to the fresh determination of the proceedings before me.

12. That then directs my attention to the second matter that Justice Hayne mentioned, namely:-

    “ … there is the contention that the decision-maker will apply that opinion to that matter in issue.”

    That is effectively the nub of the submissions made by Mrs Read in the matter but as the ultimate decision as to whether or not a Judge ought to be disqualified rests with the Judge himself, it is my own view that I would find it very difficult not to apply that opinion in determining any future matters of fact in issue in the proceedings and that leads, ultimately, to the need for me to disqualify myself from the further determination of these proceedings.

13. I doubt that the third point raised by Justice Hayne would be an issue but I can see why the father might raise the contention that I would apply that opinion without giving the matter fresh consideration.  Whilst I am comfortable with the view that I would hear all of the fresh evidence and determine it to the best of my ability and, I believe, impartially on those facts presented, I would still arrive at the start of the case with the view that I formed of the father over hearing seven days of evidence which, at times, was worrying in the extreme.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr

Associate 

Date:  5 September 2007