M and W

[2007] FMCAfam 40

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & W [2007] FMCAfam 40

FAMILY LAW – Children – apprehension of bias – application for disqualification – biased reports in the print media.

Johnson, BG v Johnson, K (No 3) (2000) FLC 93-041
Re J.R.L. Ex parte C.J.L. (1986) 161 CLR 342

Applicant: M T R

Respondent: W S C

File number: LNM 1687 of 2007

Judgment of: Roberts FM

Hearing date: 30 January 2007

Date of last submission: 30 January 2007

Delivered at: Launceston

Delivered on: 30 January 2007

REPRESENTATION

Counsel for the Applicant: Mr J Davis

Solicitors for the Applicant: Walsh Day Williams

Counsel for the Respondent: Mr P Fitzgerald

Solicitors for the Respondent: Legal Aid Commission of Tasmania

Counsel for the Independent Child’s Lawyer Mr D Walker

Solicitors for the Independent Child’s Lawyer Verney Walker & Co

ORDERS

1. Adjourned to 31 January 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LAUNCESTON

LNM 1687 of 2007

M T R

Applicant

And

W S C

Respondent

REASONS FOR JUDGMENT

1. In this matter I have been asked to rule on an application that I disqualify myself from further hearing of the matter on the basis of apprehended bias.

2. The application was made by the mother's counsel after I indicated that I was against him in relation to an application to strike out material relating to the reporting of this matter in the media.

3. Reference was made to paragraph 10 of the father's affidavit filed on 29 November 2006.  In that paragraph he said:

   (The mother) did not comply with that order.  She did, however, speak to the media, and I refer to paragraph 6 of my affidavit sworn 17^th August 2006 in that regard. 

4. I pointed out that it was clear that the mother had not complied with the relevant order.  She admits as much in her affidavit material. 

5. It is also clear that she did approach the media.  I referred to the report of a court-appointed expert, Mr de Jong.  In that report at paragraph 12 he said:

   When questioned about the newspaper articles the mother said in explanation that at the time she thought Court proceedings were not going her way and there was some risk she would be penalised for her non-compliance with Orders.  She contacted a good friend who was a reporter and the newspaper articles were the result.

6. In paragraph 50 of his report, Mr de Jong also said:

   The Orders of 7 March 2006 were very measured and reasonable and the father has been significantly disadvantaged by her relocation and injured by the biased reporting about him in the print media. 

Relevant law

1. In my view, the law that I must apply can be summarised by reference to the High Court decision to which Mr Fitzgerald referred me, that is Johnson, BG v Johnson, K (No 3) (2000) FLC 93-041, where the majority of their Honours on the High Court bench (Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ) described the test to be applied…