Johns and Williamson

[2008] FamCA 933

FAMILY COURT OF AUSTRALIA

JOHNS & WILLIAMSON AND ANOR [2008] FamCA 933

FAMILY LAW – COURTS AND JUDGES – Disqualification – application by mother seeking  disqualification of judge on ground of apprehended bias – consideration of comments made during previous hearing and judge’s professional relationship with expert involved in matter – application granted
APPLICANT:	Ms Johns

RESPONDENT: Mr Williamson

INTERVENOR: Ms D Johns

INDEPENDENT CHILDREN’S LAWYER: Graeme D Hemsley

FILE NUMBER: ADC 39 of 2007

DATE DELIVERED: 24 OCTOBER 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 24 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Litigant in person
SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:	Mr McQuade
SOLICITOR FOR THE RESPONDENT:	Nicholls Woods Mitchard
COUNSEL FOR THE INTERVENOR:	Ms Wood
SOLICITOR FOR THE INTERVENOR:	Alderman Redman

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Hemsley
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Graeme D Hemsley

ORDERS

1. That the Honourable Justice Burr be disqualified from further hearing these proceedings.

2. That the adjourned hearing before the Honourable Justice Burr at 9.30 am on Thursday 4 December 2008 be vacated.

3. That the proceedings be listed before the Honourable Justice Dawe at 9.15 am on Wednesday 17 December 2008.

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

FAMILY COURT OF AUSTRALIA  AT  ADELAIDE

FILE NUMBER: ADC 39  of 2007

MS JOHNS

Applicant

And

MR WILLIAMSON

Respondent

And

MS D JOHNS
Intervenor

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I            turn now to the balance of the Application in a Case filed on 8 October 2008, and specifically as to paragraph 2 thereof which is the request of the applicant that, in her words, I “be removed from this case urgently.”  That clearly is an application that I disqualify myself from further hearing any aspect of these proceedings.

2. The High Court some time ago set out the principles that need to be considered by a Judge when being requested to disqualify themselves from further hearing of proceedings.  The issue is not just as to whether or not the Judge is biased but whether or not there would be a perception or an apprehension of bias on the part of the Judge.  Expressed in another way, whether or not a Judge ought to disqualify themselves by reason of the appearance of bias whether or not there is any actual bias.  These matters must be considered by the Judicial officer who is being asked to disqualify themselves from sitting on the case.

3. Expressed in another way, the High Court has determined 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.  The rationale is obvious and that is the principle of the importance of public confidence in the fairness and impartiality of the administration of justice by the Courts, and as has often been said, that requires in turn not only that justice be done, but that it be seen to be done.  That principle is to be applied from the standpoint of a fair-minded and reasonable observer who is acquainted with the relevant circumstances.  In other words, it is not whether or not the parties themselves perceive that the Judge might be biased, but rather whether or not a fair-minded and reasonable observer who has full knowledge of all of the circumstances would consider the Judge to not be able to bring a fair-minded and impartial approach to the case.

4. In her Affidavit filed on 8 October 2008, the applicant raises a number of concerns.  I will return to her concerns that arise out of the proceedings on 2 September 2008 a little later.  She raises concerns in paragraphs 3 and onwards in a number of respects.  They seem to, or could be, summarised by firstly her concerns about some Orders I made interfering with the course of police investigations.  That has never been the case and whilst the legal practitioners involved in the matter would have understood that, I have this morning addressed that concern of the mother to make it plain that police and Families SA are certainly not restricted from pursuing their proper enquiry.  That deals with the mother’s concerns in that respect which are unfounded.

5. She then refers to the fact that I have not abided a number of the recommendations of Families SA and Dr A.  One of the difficult aspects of this case is that we now have two reports from two different experts which unfortunately for the Court and for all of the parties and the child, say almost two entirely different things.  In his report of 10 March 2008 Mr F, an expert psychologist, indicated that he had a number of very considerable concerns about the mother (the applicant) and took the view that she had exerted considerable influence over the child and that as a consequence the child was not expressing an untainted view and had been involved in the dispute by the mother.  He was concerned that the mother would not be able to support any form of relationship with the father and as a consequence recommended that if she was to have any time with the child, that those times were to be supervised.  He did indicate that if she was able to demonstrate a change in attitude to supporting the relationship between the child and the father, that some unsupervised contact be gradually introduced.

6. My concerns expressed in the earlier hearing of these proceedings as to the mother’s role in all of this and the mother’s role in terms of making the child’s life more difficult than it needed to be, were based upon the earlier findings of Justice Robinson in 1999 but more significantly and more importantly because of their recency, the report, the views and the recommendations of Mr F.

7. As I said, confusing the situation though is the report of Dr A dated 15 September 2008 who frames some quite different recommendations.  Whilst both Mr F and Dr A report that there is an apparent good relationship between the mother and the child, Dr A does not express the same concerns that Mr F does about the mother’s influence upon the child and upon the views that the child holds.  She does not hold the same view that the mother is an inappropriate influence upon the child.  In fact it was her recommendation that the child be permitted to see her mother basically whenever she likes subject to negotiations being conducted through the mother.

8. Also Mr F essentially took the view that the child’s best interests would be better served by being placed in the care of the father.  He reported that the child had minimal concerns about the father’s care and certainly the child never conveyed to him the rather serious allegations she has since disclosed to others.  So as I say, I have on the one hand one expert indicating to me that the child ought to live with the father and any time she spends with her mother ought to be supervised, and on the other hand I have the report of Dr A which indicates a quite different perspective.  Those matters can only be resolved during the trial of the proceedings when both of the experts no doubt will be called and will be cross-examined.

9. The matter which I think the mother more seriously and properly raises in terms of whether or not a fair-minded and reasonable observer might be concerned that I am not approaching the matter with a fair and impartial state of mind is that arising from the proceedings on 2 September 2008.  In paragraph 2 of her Affidavit, the mother purports to quote what I said.  She has in fact not quoted what I said but I do not think that that necessarily makes it an unfair summary of what I did actually say.  It is important in me making this decision to actually record the exact words that I used and which I assume are the words which have caused this concern by the mother.  In that regard I refer to the transcript of the proceedings before me on 2 September 2008 and clearly the passage to which the mother refers commences at point 18 through to point 24 on page 10 and it reads:-

   “HIS HONOUR: --- whilst the police are investigating quite serious allegations now made by a more mature woman.  They may turn out of course to be entire fiction, and those of us who have been in the jurisdiction  for as long as we all have know that that is a very common experience – it’s simply not true – but equally you can’t afford to miss the few that are true in that process, and we need to be focused on [the child], as harsh as it might be on either or both of her parents.  So that’s where I want to go.”

10. The language that I used on that occasion is indeed imprecise in terms of what I was endeavouring to express.  If Judges in the situation I found myself in during a busy Magellan duty list on 2 September 2008 always had the benefit of being able to consider every word that they were choosing to use, there is no question that I would have expressed myself differently.  If I had had that opportunity, the sort of thing I may have said was that a minimum number of cases come to the Court for final determination and most cases are resolved outside of the Courtroom leaving us with a percentage generally recognised as being between 5 and 7 per cent of all matters in dispute.  What I would have also said is that in those matters which involve an allegation of sexual abuse or other abuse of a child the allegations are on a statistical base, more often than not, not satisfied on the requisite standards of proof.  In other words, on any statistical analysis I think on the work of this Court, it would be rare for there to have been a finding of sexual or other abuse of a child.  There would though, of course, on the requisite standard be a more frequent finding of unacceptable risk.  Certainly that is how I would have expressed myself if I had had the opportunity to consider my language carefully.  What I should also have said, of course, is that even though the Court rarely makes those findings of abuse because of the standards of proof that apply, that does not mean that abuse has not occurred.  What it does mean is that abuse has not been proved at the requisite level.  So as I said, if I had my time over again, that indeed is what I would have said.

11. I am well and truly aware of the work of Thea Brown (referred to by the applicant) and it is a work to which I have in the past referred and I have great respect for the work undertaken by Thea Brown.  Also in terms of my not quite lifelong work but work of some 20 years in seeking to address abuses of children internationally and my general reputation in that area, people would know that the words I used on the occasion of 2 September 2008 because of their inaccuracy, imprecision and unfortunate expression, do not represent my view.  However, whether or not I ought to be disqualified in this matter is not a question of whether or not my general reputation suggests that there ought be no apprehension of bias.  It is rather that I need to honestly assess the potential impact of the words that I did use on that occasion and again the reasons are obvious.  Judges are tasked with one of the more onerous responsibilities in our society.  They are obliged to judge fellow citizens and as such, their conduct and their language must be rather more precise and considerably more impeccable than standards expected of most other members of the community.  Viewed from the perspective of a fair-minded and reasonable observer, I think I failed the test on that occasion and in my view, a fair-minded and reasonable observer who read just those words and nothing else would be concerned as to what my view was about matters that entailed allegations of abuse.

12. Later in the transcript and particularly when Ms A Williamson was in the witness box whilst questions were asked about what her attitudes and approaches would be to supervision, I made my position particularly clear I think.  There was extensive questioning by me about her understanding of how important it was to approach the matter on the basis that sexual abuse of the child was a serious possibility to be considered by the Court.  There are numerous references by me, particularly at pages 31 and 32, to the significance and importance of that task.  However, in my view, whilst the rest of the reading of the transcript more accurately reflects what my actual view and approach is, the unfortunate wording used by me at page 10 of that transcript remains, I think, a matter of concern.

13. There is another matter too that has not been raised by the mother or anybody else but which, on reflection, also causes me concern.  On 2 September 2008 at the very outset of the proceedings I indicated to the parties that I had received a telephone call from Professor B in my Chambers on 12 August 2008.  I instantly made a record of that conversation and I read that onto the transcript on 2 September 2008.   There was on that occasion no cause for me, I think, to be concerned that a fair-minded and reasonable observer acquainted with the circumstances of the matter, would consider that telephone call to raise any apprehension of bias.  However on reflection what also emerges from a closer analysis of that is the circumstances in which an earlier meeting I had with Professor B came about and it is important that there be complete openness about that situation.  It arose in circumstances where Professor B had been seriously misled by a member of the public in, to put it in the vernacular “taking up the cause” for that litigant in the media.  Dr A was employed by the Court at that time and I had a discussion with her about the importance of accurate positions being represented in the media and that I though it unfair that Professor B, given her reputation and standing in the community, was being fed false information.  I accordingly asked Dr A to arrange a meeting between me and Professor B.  That meeting took place many months ago – I cannot recall the date now – in the presence of Dr A and also Dr O, another highly regarded and respected psychologist.

14. What has happened since of course is that Dr A has been the Family Consultant tasked with preparing the second of the reports in this matter.  Again, whilst I might have liked things to have been different, in my view it still did not give rise to any concerns that it might be an appropriate consideration for me to disqualify myself from hearing this matter.  However, things then developed further when in an Affidavit filed on 16 September 2008 by the intervenor Ms D Johns she said in paragraph 31 as follows:-

    I have been impressed by the contact people [the child] had already developed over the years to provide her with support.  These have included Professor [B], child psychologist, who has developed a personal relationship with [the child].  [Professor B] was aware that [the child] had run away from home before I was told.  I have had some email communication between [Professor B] and myself since [the child] ran away from home.  …….”

15. In my view, that elevates my concerns to another level.  In other words, whilst it has not been an application of the father or the Independent Children’s Lawyer that I disqualify myself for any apprehension of bias in relation to my professional relationship with Professor B, I think in this matter it does give cause for concern and it gives cause for concern in this way.  I established a professional relationship with Professor B in order to assist her in better representing positions that she was provided by litigants and in better assessing the truth or otherwise of the matters that were fed to her, and to endeavour to provide to her a means by which she could check the other side of the story.  In that process there were some quite considerable discussions about how it might be best approached.  That coupled with the telephone call that Professor B made to me about the child I think gives rise to concern in any fair-minded and reasonable observer that Professor B may be of the view that she enjoys a special status with me in this Court (whether or not that be true) and felt comfortable enough to ring me, being the Judge tasked with hearing this matter, and discuss it directly and personally with me.  I, of course as I indicated in the transcript of 2 September 2008, endeavoured to terminate that conversation immediately and I pointed out to Professor B the impropriety of that call and I directed her to the Independent Children’s Lawyer, Mr Hemsley.  The fact that she is now quite a partisan expert in the matter, namely she has apparently a close relationship with the child according to Ms D Johns, and clearly has a developing relationship with Ms D Johns, and having been told on either the last occasion or the time before by Ms D Johns that she intended and wished to call Professor B as a witness in the proceedings, I am concerned that a fair-minded and reasonable observer would believe that Professor B’s evidence might enjoy special status with me and that I would accord it for all the wrong reasons far greater respect and give it far greater weight than expert evidence that I might hear from others.  That is not the case and certainly I am confident that Professor B would not expect that that was the case and nor did Professor B, I am satisfied, contact me with any improper motive or intent.  I am satisfied that she was motivated by proper concern for the child and simply did not understand the importance of potential experts in trial matters remaining entirely remote from the Judicial officer who was tasked with determining the matter.  I do not think the matter could be elevated to the level of a possible perversion of the course of justice by reason of that personal contact between Professor B and myself.  Neither she nor I certainly would have anticipated that it would be viewed in that way and certainly there was no intent by Professor B to do so.  She was clearly motivated out of concern for the child but did not understand the importance of presenting her evidence through proper channels and not making direct contact with the Judge concerned.

16. I think that the abovementioned combination of events then does present in a fair-minded and reasonable observer a reasonable apprehension of bias in terms of any findings I might make in relation to evidence given in the proceedings by Professor B.  That, in my view, standing alone would be sufficient for me to disqualify myself from hearing the case.  However, coupled with the unfortunate wording which does not represent my view but was certainly imprecise and unfortunate, is also cause, in my view, to disqualify myself from further hearing the proceedings.

17. Returning to those words that I used at page 10 of the transcript of 2 September 2008, as I said I am to be judged alone in my view on the appropriate test, on the words I used on that occasion not what I might have meant and not what my practice always is.

18. On that basis I grant the mother’s application that I be disqualified from further hearing the proceedings.  Another consequence is that in the child’s best interests it is appropriate that these proceedings be resolved as quickly as possible.  Given that there was a significant distraction from final determination occurring on a regular basis by other interlocutory proceedings being taken, by Appeals being lodged and by concerns being raised rather about personalities and remarks, the trial of the proceedings was likely to have been delayed.  There is no value to the child in the proceedings being delayed and in all the circumstances it is appropriate that every possible obstruction to a processing of the matter for early trial should be removed.

1. This means that I need to vary the listing arrangements for the matter.   I therefore vacate the adjourned hearing before me set for 9.30 am on Thursday 4 December 2008.  As I understand it, Justice Strickland is disqualified also because he was Counsel for the Separate Representative in the original proceedings before Justice Robinson and that only leaves one Judge and in one sense, fortunately, that Judge is the Reserve Magellan Judge Justice Dawe.  I have been able to establish that she has availability at 9.15 am on Wednesday 17 December 2008.  I endeavoured to find a date that was about the same as the date that I had adjourned the proceedings to before myself so as not to further inconvenience people and particularly the child.

I certify that the preceding nineteen  (19) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  24 October 2008