M and W
[2007] FMCAfam 40
•30 January 2007
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
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
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.
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.
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 17th August 2006 in that regard.
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.
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.
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
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 as follows in part of paragraph 11, beginning on page 87,631:
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 prejudgment) 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.
I note that prejudgment was not raised as an issue in this particular matter.
In my view, in relation to that quotation from Johnson, the words “whether a fair-minded lay observer might reasonably apprehend” are important, and the words “fair-minded” and “reasonably” are of particular importance. In short, a judge should not disqualify himself or herself if the perceptions are not fairly and reasonably based, no matter how genuinely they may be held by a litigant.
In the decision to which I have already referred their Honours said further at paragraph 13:
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, 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.
Mr Fitzgerald also referred me to the decision of Wilson J in Re J.R.L. Ex parte C.J.L. (1986) 161 CLR 342. He referred in particular to page 359 where Wilson J said:
The principle of law governing this matter is not in doubt. It is 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 he or she might not bring an impartial and unprejudiced mind to the resolution of the question involved in it: Reg. v. Watson; Ex parte Armstrong (1976) 136CLR 248, at pp 258-263; Livesey v. New South Wales Bar Association (1983) 151CLR288, at pp 293-294. It has been recognized that in a case such as the present, where there is no allegation of actual bias, the test of reasonable suspicion may be a difficult one to apply involving questions of degree and particular circumstances which may strike different minds in different ways: Re Shaw; Ex parte Shaw (1980) 55 ALJR 12, at p 16; 32 ALR 47, at p 54; Livesey, at p 294.
I have had regard to these authorities in relation to the question of apprehended bias. In addition, I have consulted the Guide to Judicial Conduct published for the Council of Chief Justices of Australia by the Australian Institute of Judicial Administration. On page 13, at subparagraph (i), that publication says:
The judge has a duty to try cases in the judge's list and should recognise that disqualification places a burden on the judge's colleagues or may occasion delay to the parties if another judge is not available.
Clearly, another judge is not immediately available to hear this matter. Indeed, if I am to disqualify myself, it will raise some complications because, as was pointed out by Mr Fitzgerald, I am the only Federal Magistrate based in Tasmania.
It is clear therefore that judges should not disqualify themselves lightly, simply because an objection is made. The objection must be carefully considered.
Discussion
In relation to the facts of this case, as I have already said, it is clear that the mother did not comply with an order that I made in March last year to return the child to Tasmania. It is also clear that the media – the print media at least – have been involved.
I do not know if Mr de Jong's report of what the mother told him is correct. However, I cannot help but come to the same conclusion as Mr de Jong that the reports in the press were biased. I say that because it is my view that:
·firstly they did not give a balanced report of the proceedings;
·secondly, they tended to give only one side of the story (which relates also to the balance); and
·thirdly, they tended to sensationalise certain aspects of the case.
In paragraph 10 of the father's affidavit of 29 November 2006, he refers back to paragraph 6 of his affidavit sworn on 17 August 2006. That affidavit filed 13 September 2006 has annexed to it three of the press reports as Annexure “C”. It is clear there were quite a lot more reports than those three reports, which appeared in more than one newspaper.
I need refer only to the first page of that Annexure “C” to illustrate the reports that appeared in the press. That first page is a photocopy of an article which has the headline, “Dad gives ultimatum on Bella”. (“Bella” is clearly the child in this matter.) Part way down in the article it says:
Bella and her mother fled Tasmania late last year and are now settled happily in Victoria.
In another development, the man's lengthy criminal record and psychiatric reports have surfaced to reveal a picture of a brutal and seriously disturbed man.
His convictions, including jail sentences, range from stalking Bella's mother and her partner, to violence and drug dealing.
Despite that, the Federal Magistrates Court is ordering that Bella return to Tasmania to live.
Further on, the article says:
Bella's parents split when the man bashed her mother unconscious as she was holding the child, then aged 18 months, in her arms.
Tasmanian police told Bella's mother this week that they are investigating the man for allegedly assaulting another woman. On another occasion he bashed a third partner so badly she miscarried.
Psychiatric reports reveal the man's use of LSD and hallucinations caused by fasting.
He was later diagnosed with manic depressive disorder schizophrenia and major psychosis, and admitted an addition to cannabis.
On his admission to hospital in Hobart, the examining doctor recorded: “He was acutely agitated and disorientated. He has taken all his clothes off because he does not like the colour of his pants.”
The article goes on:
One report concludes: “There is evidence corroborated by his own admissions, that he has been physically aggressive to the mother in the presence of the child and to a subsequent partner also in the presence of the child.”
I point out that it is clear that when I made the decision in March I did not have before me some of what are referred to as the other developments by the writer of the article.
It is also clear that the diagnoses referred to as “manic depressive disorder schizophrenia and major psychosis” were diagnoses made many years before I made the order and there was a subsequent diagnosis of the father. Further, it is clear that the reference to the comments made on his admission to hospital in Hobart relate to something that occurred in 1992 and have been referred to in the report to the Court by Dr Ratcliff. None of that is mentioned and, in my view, that is simply illustrative of what I said about the reports being biased.
Should I disqualify myself?
I have already indicated that I agree that the reporting of this matter in the press was biased, sensational and inaccurate. No other purpose could have been sought by the mother than to influence the course of this matter before the court. There was no appeal made by the mother and the reports make clear reference to a decision made by me back in March last year based on evidence before me at that time.
While I acknowledge the concession by Mr Fitzgerald that I am not biased and that I could in fact put those matters aside, the question is whether a fair-minded layperson would think that I could simply put all these matters aside and not be affected by it in my reasoning process.
In relation to that I think Mr Fitzgerald raised an important point. That was that much of the reporting in the press that may appear critical of courts in general is after a final determination has been made. In this case, the criticism has come after an interim stage, and I still have carriage of the matter.
When I consider the matter carefully – and I have given it some very careful thought – I conclude that a fair-minded person would be likely to have concerns that I might not be able to bring a completely impartial mind to the matter. In my view, if that seed of doubt is there, I must disqualify myself.
It is my very clear view that the irresponsible and sensational reporting of this matter in the media has caused this outcome. It is an outcome that will cause considerable extra expense and stress to the parties, and I suspect considerable extra cost to the Legal Aid Commission of Tasmania. The Legal Aid Commission of Tasmania does not have a bottomless bucket of money. Unfortunately, wastage of its funds means that the Legal Aid Commission will not be able to fund another deserving case or cases.
I will hear submissions about whether I should transfer this matter to the Family Court of Australia or to another Federal Magistrate who will presumably have to fly over to Tasmania to deal with it.
(After further submissions and enquiries, the matter was adjourned to
31 January 2007.)
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date:
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