Kent and Adams (aka Adams and Adams (No3)) - [2007] FamCA 71

FAMILY COURT OF AUSTRALIA

KENT & ADAMS (AKA ADAMS & ADAMS (NO. 3))

[2007] FamCA 71

FAMILY LAW - Oral application for disqualification

Family Law Amendment (Shared Parental Responsibility) Act 2006

Johnson v Johnson (2000) HCA 48

APPLICANT:

Mrs Adams

RESPONDENT:

Mr Adams

INDEPENDENT CHILDREN’S LAWYER:

Donald S Lampe

FILE NUMBER:

MLF

2456

2006

DATE DELIVERED:

12 February 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

12 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A. Combes

SOLICITOR FOR THE APPLICANT:

Jane Baldwin

THE RESPONDENT:

In Person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr R. Hoult

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Donald S Lampe

Orders

The husband’s oral application of today for me to disqualify myself be and is hereby dismissed.
That the husband’s oral application of today for an adjournment for the purpose of obtaining legal advice be and is hereby dismissed.
That my ruling today on the said oral applications be transcribed and when transcribed a copy be made available to each of the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2456 of 2006

Mrs Adams

Applicant

And

Mr Adams

Respondent

REASONS FOR JUDGMENT

In this matter, the husband makes application for me to disqualify myself. It is the fourth such application he makes. He attempts to rely upon grounds which I have previously ruled on in the context of earlier applications for my disqualification and I will not revisit those. However he makes submissions about events which have occurred since the last application as well.
First, he alleges that I am ignorant about cultural issues and have purported to label a number of such issues under one banner of ethnicity, and that I have no recognition of the importance of his child's identity as a black Australian citizen. That is a matter which he has previously raised. Even if he relies - as he expressly did not - on matters that have occurred in court since his last application for me to disqualify myself was made, the fact of the matter is that that goes to the soundness of legal reasoning and are errors which may be corrected by the Full Court.
His next ground for disqualification is that I ordered that he be detained and vicariously I beat him unconscious to the point that the police had to revive him. He says that he was refused food, strip-searched, kept in two separate cells without charge or explanation, and that he carries photographs of the bruising that was sustained during that attempt. He says not only was there the physical implications but there is the emotional intimidation and I think it is fair to say humiliation. These are the husband’s allegations. The evidence is not concluded on the point. As I have previously stated[1], the reason that the husband was removed from court was to maintain the order of the court, to protect the integrity of the court process and for the safety of those people in court in close proximity to him. But again this is not a new ground which has arisen since I dismissed the last application.
[1] [2007] FamCA 40
The next point is again one of error which is correctable on appeal if necessary, but suffice to say that it is also one that he has raised in each and every disqualification application. That is, that I failed to have paperwork before me for the removal of the independent children's lawyer on 19 January 2007.

I repeat that on 19 January 2007 the husband had before the court or wanted to prosecute an application for the removal of the independent children's lawyer. He did not ensure that the material was before the court. He has not appealed that decision.
The next ground upon which the husband relies is that I have failed to have regard to the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006 and associated amendments. I have on numerous occasions pointed out to the husband the starting time for amendments in relation to the less adversarial way of hearing court proceedings. If he will not listen I cannot make him hear.
Now for the few matters which can be said to have arisen since the last application for disqualification has been made. The husband tells me today that he has made a complaint against me to HREOC, the Human Rights and Equal Opportunities Commission. As a judicial officer, my actions and determination of the case and the manner in which I do it are always open to scrutiny. The relevant test, however, is not whether I am affected. It is - as set out in the case of Johnson v Johnson (2000) HCA 48 as follows, and I quote from page 492:
It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.[2]
That test has been adopted, in preference to a differently expressed test that has been applied in England[3], for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done.[4] It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.,"[5] The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial.[6]
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge[7], the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation.
[2] eg Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41.
[3] cf Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451.
[4] cf R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ.
[5] R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263 per Barwick CJ, Gibbs, Stephen and Mason JJ.
[6] Vakauta v Kelly (1988) 13 NSWLR 502 at 527 per McHugh JA, adopted in (1989) 167 CLR 568 at 584-585 per Toohey J.
[7] Webb v The Queen (1994) 181 CLR 41 at 73 per Deane J.
Applying the test of the independent lay observer, I am confident that anyone sitting in the back of the court during this matter would form the view that

I have been extremely fair and accommodating of the husband.
The next ground upon which the husband relies is that on Friday he was handcuffed when taken out of the witness box. I understand that to be the case, arising from the fact that a query was made of me as to whether I required the husband to remain handcuffed. It was never part of my direction that he be handcuffed. I merely directed that he be removed from court. However, I do not purport and I did not prescribe the way in which the federal agents who were on hand are to perform their duties.
The next ground upon which the husband purported to rely was that he now feels unsafe in court. He feels his physical wellbeing is at risk. He seeks leave of the court to have a South African delegation accompany him in court during the currency of this trial. That is a wholly misconceived ground in relation to disqualification, but it is not the first of the grounds which are misconceived. There is no order making this a secure court or limiting the attendance of persons who may be present in court, save for the usual order which has been made and which remains in force that witnesses in the proceedings are to be out of court. There are numerous chairs in this court. There are numerous chairs in the other court from which the husband is to participate in the proceedings. He is welcome to fill those seats with persons from South Africa or associated with any South African delegation or with other people he chooses, providing that none are witnesses in his case and that they behave in an appropriate manner. As has previously been the case, anyone behaving inappropriately or disrupting the hearing will be removed.
There remains an issue that the husband sought to adumbrate in the context of the disqualification application, and that is that I had breached his unalienable right or that of V by not allowing V to be cared for by him. That brings me to the central point of his disqualification applications. This application has been made on 4 occasions now. I am firming in my view - that the applications are a tactic of delay rather than applications arsing out of a genuine grievance and feeling of disadvantage or me having a lack of impartiality.
I have regard to whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. I am satisfied that such an observer would regard the husband as having a very fair run before me thus far.
I dismiss the husband’s application for me to disqualify myself.
In this matter, the husband makes application for the matter to be stood down, or alternatively, adjourned, whilst he obtains legal advice. When pressed, the legal advice that he wants to obtain is in relation to bypassing this court, to discontinuing this hearing but going straight to the High Court. He says that he has spoken with the African‑Canadian Legal Clinic which, in Canada, represents the majority of mixed racial children. He says that he has spoken with PILCH this morning and may be able to see them at 2:30pm this afternoon.
I am satisfied that the husband has not made arrangements to get legal advice on any matters which are relevant to this hearing. He says that he wants the legal advice to circumvent this hearing or any further hearing of this matter by me. That is not an appropriate reason to delay these proceedings.
I dismiss his application for an adjournment or to have the matter stood down.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.

Associate:

Date: 16 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ADAMS & ADAMS