Lambourgh and Ardle-Gerder and Anor (No 2)

[2010] FamCA 1066

FAMILY COURT OF AUSTRALIA

LAMBOURGH & ARDLE-GERDER AND ANOR (NO. 2) [2010] FamCA 1066

FAMILY LAW – COURTS AND JUDGES – Disqualification of Judicial Officer

Family Law Act 1975 (Cth)

Johnston and Johnston (2000) 201 CLR 488
Ebner v Official Trustee in Bankruptcy,Cleanae Pty Limited v ANZ Banking Group Limited (2001) 205 CLR 337
S & M Motor Repairs Pty Limited & Ors v Caltex Oil (Australia) Pty Limited & Another (1998) 12 NSWLR 358

APPLICANT: Mr Lambourgh

1^st RESPONDENT: Ms Ardle-Gerder

2^nd RESPONDENT: Ms Gerder

INDEPENDENT CHILDREN’S LAWYER: Ms Lioumis

FILE NUMBER: SYC 1214 of 2009

DATE DELIVERED: 27 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 27 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

FOR THE 1^ST RESPONDENT: No appearance

COUNSEL FOR THE 2^ND RESPONDENT: Mr Rosic

SOLICITOR FOR THE 2^ND RESPONDENT: Kinchington & Associates

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

Orders

1. I note that I disqualify myself from hearing the substantive proceedings in this matter.

2. I order that the hearing dates of 29 November – 10 December 2010 be vacated.

3. I order that all parties have leave to approach the Magellan Registrar and List Manager if necessary and request the allocation of 10 hearing days before a different Judge as a matter of priority.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1214 of 2009

MR LAMBOURGH

Applicant

and

MS ARDLE-GERDER

1^st Respondent

and

MS GERDER

2^nd Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Lambourgh, to whom for convenience I shall refer as “the father”.  The respondents in the proceedings are Ms Gerder and Ms Ardle-Gerder. For convenience I shall refer to those persons as “the grandmother” and “the mother” respectively.

2. The father seeks an order to the effect that I disqualify myself from hearing the substantive parenting proceedings which have been listed to commence on Monday, 29 November 2010 and that the parties be given leave to approach the list manager for different dates.

3. The proceedings relate to the child, P who was born in December 2005.  P is almost five years of age.  These proceedings are very complicated proceedings and the file travels in a box.  There have been a number of Court appearances.  There are various allegations – very serious allegations – about behaviours in relation to the child.

4. The child’s mother is said to have incapacities including problems with alcohol and other difficulties.  The child had been living with the grandmother when the matter came before me on an urgent basis in circumstances where the child’s father had withheld the child and not sent the child back to live with grandmother as was required under the orders that were then prevailing.  What came before me in a busy duty list many months ago was an application by the father, the effect of which would have been to place the child primarily with him.

5. I made orders initially, probably on 26 February 2010, the effect of which was to leave the child in the care of the father until I could be assisted by the independent child lawyer, or perhaps also assisted by further material that could be before the Court.

6. In any event, the father’s application came before me on 2 March 2010.  My recollection is – and it is pretty rusty – that there was a considerable amount of objective material including material from police reports, some hospital records and Department of Community Service’s records.

7. At the end of considering the competing applications and the evidence, and bearing in mind a submission by the independent child lawyer that she would not support a change in the primary care arrangements from grandmother to the father, I made orders, the effect of which was to require that the child be in the care of grandmother rather than changing that arrangement and placing the child in the primary care of her father subject to certain safeguards.

8. The child’s father was most unhappy about that result.  Learned counsel for him on the day sought a stay of those orders.  I did not think as a matter of law the circumstances were appropriate to justify an order for a stay and I dismissed the order for the stay.  There was then an urgent application to review that order.  I was a judicial registrar at the time I determined the interim applications.

9. That review application came before Watts J and it was dismissed.  Ultimately the father’s review application came before Cohen J.  That was on 11 March.

10. On 17 March his Honour made orders which were, in effect, the orders which the father was seeking.  These were that he have the sole parental responsibility for the child, the child live with him, and any time spent between mother and grandmother and the child would be in the presence of a supervisor who would be appointed by the Court.

11. There was another order made to the effect that the father be restrained from permitting his son C to reside in the same home as P and from permitting P to be in the company of C without another adult being present.  The reasons for that will become clear fairly shortly.

12. The father’s case is that he has a perception that I am an unsuitable and inappropriate judge to deal with his substantive application in circumstances where I have previously made a determination in the matter.

13. It is said that because of certain matters which became clear to the father in the course of the determination of the review by Cohen J and on the basis of certain matters within the reasons of his Honour, that the father would not have any confidence in my ability to be able to bring an impartial mind to the determination. I think it can also be said that in the context of what is contained in the affidavit of the father, the father has the view that I would not have any competence at all to deal with the substantive application. This is because in paragraph 4 of the father’s affidavit he said that he has “no faith in (me) being able to either administer the Family Law Act, or make decisions based on the evidence before (me).”

14. In any event, the father’s overall submission was that the test in a disqualification application is whether a fair minded lay observer in Court might reasonably apprehend that I may not bring an impartial and unprejudiced mind to the resolution of the issues and that the threshold in that test has been reached.  It was submitted that therefore I should remove myself from determining the matter.

15. On the other hand, it was submitted on behalf of the respondents that the test to which I have just referred has not been established by the father in this case and that judges are not lightly to remove themselves from their duty of determining cases.  It was submitted that the father has not put anything before the Court which would establish that a fair-minded lay observer in Court might reasonably apprehend bias on my part.  It was also submitted that it is important in the interests of this child that there be a ventilation of all the issues, a testing of the evidence and a consideration and determination of the substantive dispute in the best interests of the child as soon as possible.  It was further submitted that therefore it would not be appropriate to simply disqualify myself with the consequence of the parties losing those dates and having to wait some further time for an opportunity for the substantive dispute to be determined.

16. The view that I have reached about the matter is that this is a borderline matter.  As I have said, the principle is well known.  It has been enunciated in a host of well known authorities.  I was referred by learned counsel for the father to the expression of the legal principle in the decision of the High Court in the case of Johnston and Johnston (2000) 201 CLR 488. The reference to the test is in the judgment of the majority at pages 492 to 493, where their Honours said as follows:

    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 (which in the present case was said to take the form of pre-judgment) 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 that the judge is required to decide.

17. And their Honours go on to say that:

    That test has been adopted in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done.  It is based upon the need for public confidence in the administration of justice.

18. As I say, would a fair-minded lay observer apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issue about the allegations of child sexual abuse, which I think is the particular matter of concern. I think the difficulty in the case has arisen because of the circumscribed manner in which the matter came initially before me for determination and in the context of a busy duty list.

19. As I have said, the father had taken things into his own hands and was acting contrary to the then Court orders.  A judgment had to be made in urgent circumstances without time for the testing of the relevant evidence.  My judgment on that occasion was that on balance the best interests of the child would be served by her remaining with the grandmother.

20. There were allegations that the child had complained that she had been sexually abused by the grandmother.  It was also alleged that the child had complained that she had been sexually abused by her teenage stepbrother C.  The father sought to deal with the allegations against the stepbrother by filing evidence to the effect that the behaviour complained about could not have occurred at the times alleged by the child.  I had indicated in Court that I did not place “a lot of store” in that part of the material.

21. When the matter was subsequently determined on review by Cohen J, apparently his Honour placed considerable weight on this evidence as, with respect, his Honour was entitled to do.  The father’s concerns also include that I indicated that I was very concerned that if C had abused the child then it would appear that the father had failed to protect the child without my making a similar finding against the grandmother.  Concern was also expressed that I failed to take account of various other matters.

22. It may be that I did not refer to all the relevant matters for my decision at that time in my reasons.  As I say, the question ultimately must be whether a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the substantive proceedings.

23. I have formed the view that there is a difficulty and the difficulty arises from the fact that I have made a preliminary determination about what the best interests of the child required in the circumstances which were presenting at that time, and the relevant circumstances included the various allegations that had been made.

24. Of course, I have not made any findings about the allegations of child sexual abuse, nor have I formed any view about the alleged sexual abuse because I was only involved at an interim stage of the proceedings.  But I think a fair-minded lay observer might think that I might have formed some views about this matter and therefore not be able to bring an impartial mind to the consideration and determination of this matter.

25. I was provided with some further authorities on the matter including the authority of Ebner v Official Trustee in Bankruptcy,Cleanae Pty Limited v ANZ Banking Group Limited (2001) 205 CLR 337, where it was stated as follows:

    In a case of real doubt it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification.

26. I was also provided with the authority of S & M Motor Repairs Pty Limited & Ors v Caltex Oil (Australia) Pty Limited & Another (1998) 12 NSWLR 358 referring to a statement in a dissenting judgment by Kirby P (as he then was) where his Honour stated at page 370 that:

    … (there is) a particular need for sensitivity where questions of the status of the parties may be involved (as in the Family Court).

27. As I have said, this is a borderline case.  Minds might differ on whether, in fact, the threshold has been crossed.  I am prepared to accept that the threshold has probably been crossed.  These are sensitive matters.  Matters of perception are important.  In all the circumstances, in my view the appropriate thing for me to do is to disqualify myself from determining the substantive proceedings.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 27 October 2010.

Associate:     

Date:              4 November 2010