Olman & Teitzel
[2018] FCCA 2006
•25 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OLMAN & TEITZEL | [2018] FCCA 2006 |
| Catchwords: FAMILY LAW – Application to disqualify Judicial Officer – bias – reasonable apprehension of bias – principles governing disqualification. |
| Legislation: Family Law Act 1975, s.11F Evidence Act1995, ss.135, 136 |
| Cases cited: Johnson v Johnson [2000] HCA 48 Re J.R.L.; Ex parte CJL [1986] HCA 39 |
| Applicant: | MR OLMAN |
| Respondent: | MS TEITZEL |
| File Number: | MLC 547 of 2017 |
| Judgment of: | Judge Williams |
| Hearing date: | 15 February 2018 |
| Date of Last Submission: | 15 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 25 July 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Independent Children’s Lawyer : | Trapski Family Law |
| Counsel for the Respondent: | Dr Parker |
| Solicitors for the Respondent: | Westminster Lawyers |
| Solicitor for the Independent Children’s Lawyer | Trapski Family Law |
| Counsel for the Independent Children’s Lawyer | Ms Agresta |
ORDERS
The Application in a Case filed by the father on 13 October 2017 and the father’s Amended Oral Application on 27 October 2018 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Olman & Teitzel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 547 of 2017
| MR OLMAN |
Applicant
And
| MS TEITZEL |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This is an application by the father that I disqualify myself from hearing these proceedings. The basis of his application is apprehended bias. The mother and the Independent Children’s Lawyer opposed the application.
In order to understand the context of the father’s application it is necessary to set out a brief background of the dispute and the procedural history.
BACKGROUND
The father was born in (country omitted) and the mother was born in Australia.
The father and mother commenced a relationship in 2009 in (country omitted). At that time the father was working as an (occupation omitted) and the mother was working as a (occupation omitted) for (employer omitted). In 2011 the mother returned to Australia and in 2011 the father moved to Australia and the parties commenced cohabitation.
They separated under the one roof in September 2016 and physical separation occurred on 5 November 2016, when the mother vacated the family home.
There is one child of the relationship [X] born 2013. Additionally, the father has another child from a previous relationship, [A] born 2009.
[A]’s biological mother is Ms M who lives in (country omitted). On 2013, [A] arrived in Australia to live with the mother and the father. Since arriving in Australia, [A] has not spent any time with his biological mother. The mother considers [A] to be her child. The father disputes the extent of the relationship between the mother and [A].
The current substantive proceedings concern the living and spend time with arrangements for both children. Both parents seek that the children live primarily in their care.
PROCEDURAL HISTORY
On 20 January 2017 the mother filed an Initiating Application, a supporting affidavit, and a Notice of Risk. The application sought an interim ex parte watch list order for [A]. The Initiating Application otherwise sought orders that both children live with her and spend time with the father.
On 20 January 2017 the application was abridged by a Registrar in respect to the application for a watch list order. The matter was listed before me on 20 January 2017.
On 20 January 2017 orders were made as follows:
THE COURT ORDERS THAT:
1. The Applicant have leave to proceed ex parte this day.
2. Until further order, the both parties, his/her servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the child:
[A] born 2009
from the Commonwealth of Australia. This order ceases to have effect 2 years after the date on which it is made.
3. The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.
4. The Court requests that the Australian Federal Police place the names of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders. This order ceases to have effect 2 years after the date on which it is made.
5. The mother cause the father to be served via email with sealed copies of the following documents:
(a) Initiating application filed on 20 January 2017;
(b) Affidavit in support filed 20 January 2017;
(c) The Notice of Risk filed 20 January 2017; and
(d) A Sealed copy of the orders made this day.
6. Upon the oral application of the mother, personal service upon the father be dispensed with.
7. The matter be adjourned to Federal Circuit Court of Australia on 2 February 2017 at 10am for Mention.
AND THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
On the adjourned date, 2 February 2017 the father appeared in person and the mother was legally represented. I was advised by the father that he had applied for a grant of legal aid and required further time to prepare his case.
On 2 February 2017 orders were made as follows:
1. The matter be adjourned to Federal Circuit Court of Australia on 14 February 2017 at 9:30am for Mention.
2. Pursuant to section 11F of the Family Law Act 1975, the parties and the children [A] born 2009 and [X] born 2013 (“the children”) attend upon a Family Consultant of the Federal Circuit Court of Australia (“the Family Consultant”) for the purposes of a Child Inclusive Conference on 3 February 2017 and:
(a) the parties and children to attend at 9.00 am; and
at Level 5, Commonwealth Law Courts, 305 William Street, Melbourne.
3. Pursuant to Order 2 above the Family Consultant shall provide a written memorandum to the Court and to the parties with such written memorandum to be released as soon as practicable.
4. The mother forthwith serve the biological mother of [A] born 2009 with sealed copies of the following documents:
(a) Initiating Application filed 20 January 2017;
(b) Affidavit filed 20 January 2017;
(c) Notice of Risk filed 20 January 2017;
(d) Sealed copy of orders made 20 January 2017;
and service be effected by post to Lawyers and Attorneys, (country omitted).
5. The father file and serve (including service on the biological mother of [A] born 2009 as provided in paragraph 4 hereof) the following documents:
(a) A Response;
(b) Any Affidavit on which he seeks to rely.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
The address for service of [A]’s biological mother was provided by the father.
On 14 February 2017, the father was represented by Ms La Greca solicitor and the mother was represented by Mr Harrison of Counsel. The biological mother of [A] did not seek to participate in the proceedings.
Submissions were made on behalf of both parties as to the living and spend time with arrangements for both children. The s.11F report of Family Consultant Ms G was provided to the parties on the morning of the hearing.
On 14 February 2017 orders were made as follows:
1. There be orders of the court and by consent, in terms of the Minute of Orders and dated 14 February 2017 (“the Minute”) and further:
(a) The Minute be placed upon the court file and marked Exhibit “A”.
(b) The solicitors for the Applicant do engross the Minute and deliver a clean, duly certified copy of the same in Microsoft Word Document format (“the Copy”) by email to Chambers of Judge Williams within 7 days.
(c) Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.
2. The matter be adjourned to the Duty List of Federal Circuit Court of Australia on 5 April 2017 at 10am for Directions.
Minute of Orders:
PARENTING
BY ORDER OF THE COURT:
1. That the children [A] born 2009 and [X] born 2013 live with the Mother.
2. The children spend time with the Father as follows:
(a) Each Tuesday from 2:30pm for [X] and 3:30pm for [A] until 7:00pm, with the Father to collect the children from childcare/school and return the children to the Mother’s home, commencing 21 February 2017.
(b) Each alternate weekend on Saturday from 10:00am until 5:00pm and on Sunday from 10:00am until 5:00pm, with the Mother to deliver the children to the Father’s home at the commencement of time and the Father return the children to the Mother’s home at the conclusion of time, commencing 25 and 26 February 2017.
(c) That the child, [A] be delivered to the Mother at the Mother’s home at 10:00am on Saturday 18 February 2017.
3. The parties forthwith do all things necessary to re-enrol the child [A] at School and neither party be permitted to change [A]’s enrolment thereafter without the written consent of the other party.
BY CONSENT IT IS ORDERED:
4. That the matter be adjourned until 5 April 2017.
5. That the Mother remain living within a 10km radius of Property A.
6. Neither party be permitted to speak to the children about these proceedings or show/expose the children to any court document.
7. Neither party physically discipline the children.
8. Each party keep the other informed of any serious medical illness or injury whilst the children are in their respective care.
9. Each party undertake a post-separation parent course, and upon completing same provide the other party with a certificate of completion.
10. The Father be in substantial attendance whilst the children are in his care.
PROPERTY
BY CONSENT IT IS ORDERED:
1. The property situate and known as Property A (“the Property A property”) be placed on the market for sale within 6 weeks (“the sale”) upon the following terms and conditions:
(a) The real estate agent (“the selling agent”) be Real Estate.
(b) The parties sign all necessary documents to enable the Property A property to be placed on the market for sale.
(c) The parties facilitate and give effect to the sale including but not limited to making the Property A property available for inspection at such times and on such terms as required by the selling agent.
(d) The mode of sale (auction or private sale) be as agreed by the parties in writing and failing agreement as nominated by the selling agent.
(e) The reserve price be $800,000 (eight hundred thousand) or as agreed between the parties.
(f) The solicitor to have the conduct of the conveyance of the Property A property be Pentana Stanton Lawyers or as otherwise agreed between the parties.
(g) Each party be at liberty to speak with the selling agent.
2. The proceeds of sale of the Property A property be applied as follows:
(a) Firstly, to pay all costs, commissions and expenses of the sale.
(b) Secondly, to discharge the mortgage and any other encumbrance affecting the Property A property.
(c) Thirdly, the remaining monies be held in an interest bearing account on trust for the parties by Westminster Lawyers pending further Order of the Court.
3. Pending the sale and the completion of the sale:
(a) The Wife have the sole right to occupy the Property A property.
(b) The parties hold their respective interest in the Property A property upon Trust pursuant to these Orders.
On 7 April 2017 orders are were made as follows:
1. There be orders, by consent, in terms of the Minute of Consent Orders signed by the parties and dated 4 April 2017 (“the Minute”) and further:
(a) The Minute be placed upon the court file and marked Exhibit “A”.
(b) The solicitors for the Respondent do engross the Minute and deliver a clean, duly certified copy of the same in Microsoft Word Document format (“the Copy”) by email to Chambers of Judge Williams within 7 days.
(c) Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.
2. The matter be adjourned to Federal Circuit Court of Australia on 17 August 2017 at 10am for Mention.
3. Pursuant to section 11F of the Family Law Act 1975, the parties and the child [B] born 2010 attend upon a Family Consultant of the Federal Circuit Court of Australia (“the Family Consultant”) for the purposes of a Child Inclusive Conference on 30 June 2017 and:
(a) the mother and the children to attend at 9.00 am; and
(b) the father to attend at 10.00 am,
at Level 5, Commonwealth Law Courts, 305 William Street, Melbourne.
4. Pursuant to Order 3 above the Family Consultant shall provide a written memorandum to the Court and to the parties with such written memorandum to be released as soon as practicable.
Exhibit “A”
UNTIL FURTHER ORDER, IT IS ORDERED:
1. The child of the relationship [B[ born 2010 (“the child”) live with the mother.
2. The child spend time with the father as follows:
a) For 2 hours each alternate Saturday, such time supervised by a private supervisor such as Community Services or another contact service as agreed between the Parties with the mother and father to be equally responsible for the cost of such supervision service.
b) By telephone every Wednesday night at 7.00pm with the father to call the mother’s mobile.
c) As is otherwise agreed in writing between the parents from time to time.
3. The father undergo random Urine Drug Analysis Tests not more than once a month and upon request of the mother’s Lawyer, shall attend a Testing Laboratory within 24 hours to undertake that test and shall provide the results of the test to the mother’s Lawyers within 7 days of undertaking the test.
4. Pursuant to Order 3, the first Drug Analysis Test to be taken and the results be provided to the Mother’s Lawyer prior to the time with the child commencing in Order 2(a).
5. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
On 13 October 2017 the father filed an Application in a Case seeking the following relief:
“That her Honour recuses from hearing this case.”
The application was supported by an affidavit sworn by the father on 9 October 2017. The Application in a Case included me as the first respondent to the application. The application also included a document of written submissions, as to why I should recuse myself. It also included quotes from many authorities.
On 27 October 2017, I dismissed the father’s Application in a Case and granted leave to make an oral application that I disqualify myself and adjourned the matter to 15 February 2018.
On 15 December 2017 the father filed an Application in an Appeal seeking an extension of time to file notices of appeal, appealing against the orders of 20 January 2017, 14 February 2017, 7 April 2017 and 25 October 2017.
On 17 January 2018, the father filed a document “summary of arguments” and a list of authorities.
The father’s application was heard by His Honour Justice Strickland on 29 January 2018. His Honour dismissed the father’s application and provided Ex Tempore reasons.
RELEVANT LEGAL PRINCIPLES
The law applicable to applications for judges to recuse themselves on the basis of apprehended bias is well established. The leading authority is Ebner v Official Trustee in Bankruptcy [2000] HCA 63 which has been adopted in recent decisions. The High Court said at [6]
[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial…
[7]…Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability…
In Johnson v Johnson [2000] HCA 48 at paragraphs 46 – 57, the High Court discussed at length the level of knowledge that is to be attributed to the fair-minded lay observer. The hypothetical observer 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.
In Re J.R.L.; Ex parte CJL [1986] HCA 39, at 352 Mason J stated:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which the expression is used in the authorities or that his previous decisions will provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be “firmly established.:Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink ;Exparte Shaw
The High Court commented in Ebner that judges have a duty to exercise their judicial functions when their jurisdiction is invoked and they are assigned cases in accordance with the practice of the relevant court.
The High Court said that judges:
[19] …do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
[20] … if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
There are two fundamental principles to the issue of disqualification on the basis of perceived bias. Firstly, not only should justice be done, it is should be seen to be done and secondly, litigants should not be encouraged to believe by alleging bias, they may essentially choose their judge to obtain a more favourable outcome.
At 344 - 5 of Ebner , Gleeson CJ, McHugh , Gummow and Hayne JJ stated:
[The application of the apprehension of bias principle] requires two steps.
First, it requires the identification of what it is said, might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared a deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in mitigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
SUBMISSIONS OF THE FATHER
The father relied on the following documents:
i)Specific pages of his “submissions” set out in his Application in a Case, namely pages 2,5,6,7,9,10,1113, 15,16,17 ,18,19,20,21,22,23 and 24; and
ii)His affidavit filed 9 October 2017.
Additionally, the father made lengthy oral submissions.
The father initially sought to present his submissions in three distinct categories, which were identified by Dean J in Webb v Queen [1994] HCA 30, namely:
a.Conduct giving rise to an apprehension of bias;
b.Association, direct or indirect relationship with a person or persons;
c.Extraneous information, namely where a judge has knowledge of some prejudicial, but inadmissible fact or circumstance giving rise to the apprehension of bias.
Unfortunately, the father’s submissions were not clear and deviated from his proposed categories. His general complaints included the following :
i)I “knowingly deliberately and consistently operated against the act and breached court rules”;
ii)I had made several remarks during the four hearings which led to “pre-judgement and therefore apprehended bias”.
I will address the following submissions which seek to particularise his complaints:
i)Ex Parte Application on 20 January 2017;
ii)Use of the term “fixed”;
iii)Denial of procedural fairness;
iv)Orders of 7 April 2017;
v)Section 11F assessment prepared by the family consultant;
vi)Discrimination by the registry staff;
vii)Errors of fact and law.
Ex Parte Application on 20 January 2017
The father was critical of the first hearing on 20 January 2017, when I heard the ex parte application for a watch list order
He was particularly aggrieved that the watch list application was determined on an ex parte basis. He alleged that the appointment of the Independent Children’s Lawyer, prior to the response of the biological father and mother of [A] was intended to “usurp the biological parent’s legal rights and use it to validate a vindictive opinion report”.
Use of the term “fixed”
The father’s written submissions about the usage of the word “fixed” were lengthy. This arose from the following exchange between myself and the solicitor for the mother, at the conclusion of the ex parte watch list application, as to the future listing of the application:
“and how soon do you want it fixed – in relation to the issue of where [A] lives?
As soon as possible, your honour”
The gravemente of his submissions was that I had colluded with the wife’s solicitors to predetermine the children’s living and spend time with arrangements. The written submissions make the following allegations:
i)There was some sort of association between myself and the applicant solicitor, Ms Goss, asserting “isn’t it people we know or feel attached to, that we usually offer to help?”;
ii)The order for the s.11F assessment was linked to my plan to “fix where the child would live by writing a fraudulent report”;
iii)The matter was “in effect a case where a child has been taken as ransom to pay the lawyer’s legal bills by creating stories of violence, pre-litigation”;
iv)A fair-minded observer would think that the mother’s legal representatives, Westminster Lawyers, have infiltrated my Chambers to directly influence the outcome of the case.
Denial of Procedural fairness
The father alleged that I had denied him procedural fairness in two aspects:
i)I had failed to give the mother of [A] “a voice”;
ii)I had listed the matter with such haste that the father had been disadvantaged.
I note that the orders of 2 February 2017 provided for service of all documentation on the biological mother of [A], via her lawyers, the address of whom was provided by the father. She has not chosen to participate in the proceedings.
The orders of 2 February 2017 provided for the father to file and serve a Response and affidavit on or before 4 PM 10 February 2017. The father’s lengthy affidavit in response was sworn by him on 8 February 2017, two days prior to the ordered time. On 14 February 2017, the father was represented by his solicitor, Ms Le Greca. There was no complaint by her that she had insufficient time to obtain a grant of legal assistance and prepare documents on behalf the father.
Orders of 7 April 2017
The father submitted that the engrossed orders made on this date were not by consent, despite him agreeing to the orders.
He alleged that I did not comply with various rules of the court regulating the making of consent orders.
Discrimination by the Registry staff
The father submitted that he had attempted to file a subpoena to the family consultant for her to produce her notes. The registry staff advised him that he was unable to do so, ostensibly in breach of r.13.02 of the Federal Circuit Court Rules2001.
Section 11 F assessment prepared by the family consultant
The father alleged that he had been unfairly prejudiced by the admission into evidence of the report of the family consultant. The evidence was not of sufficiently probative value to be admitted and I should have exercised my discretion pursuant to s.135 and s.136 of the Evidence Act to exclude it.
In his written submissions, he was also critical that I had “solicited” the report at all.
Errors of fact and law
The father submitted I had:
i)Made findings about facts which were simply not true. As a result, my decisions were based on incorrect facts;
ii)Failed to draw inferences from available evidence;
iii)Incorrectly applied the law, including admitting into evidence extraneous information;
iv)Did not admit into evidence documents produced pursuant to subpoena directed to DHHS and Victoria Police;
v)Failed to consider the relevant principles of ss.60B and 60CC of the Family Law Act1975 and rr.13.02 and 15.10 (3)(b) of the Federal Circuit Court Rules2001.
In particular, he submitted that I had preconceived views and discredited his witnesses. Example of this were:
i)My comments about the deficiencies in his affidavit pertaining to his accommodation;
ii)Not placing sufficient weight on the letter from his landlord, which was annexed to his affidavit sworn 8 February 2017;
iii)My comments about him unilaterally enrolling [A] in school.
SUBMISSIONS ON BEHALF OF THE MOTHER
The submissions of the mother’s Counsel may be summarised as follows:
i)The onus is on the father to establish apprehended bias and he has failed to do so, in accordance with the two-step process, referred to in Ebner (supra);
ii)The fact that a litigant perceives his case is not going well is not a basis for disqualification of a judicial officer;
iii)The independent lay observer would and could not construe the usage of the word “fixed” as extrapolated by the father. He has completely misunderstood the context of the word and ignored the use of the word as in “fixture”;
iv)The orders made on 2 February 2017 afforded the father adequate opportunity to obtain a grant of legal assistance and to file a lengthy affidavit;
v)The solicitor who appeared on his behalf on 14 February 2017 did not make any submissions that the father had been denied procedural fairness. She made lengthy submissions on behalf of the father as to the substantive applications. The father’s representative was afforded an opportunity to address the court about the ex parte watch list order, but declined to do so;[1]
[1] Transcript of 14 February 2017 at page27 line 30.
vi)The allegations of prejudgement and preconceived views on the basis of an error of fact, is an appeal issue and not one relevant to an application to disqualify a judge. In any event, the father admitted he had unilaterally enrolled [A] in a school, and my alleged comment about the father living in a tent, was in fact a question;[2]
[2] Transcript of 14 February 2017 at page 36 line 6.
vii)The father sought leave to file notices of appeal outside the statutory appeal time, in relation to all orders made in the preceding. His Application in an Appeal was dismissed by His Honour Justice Strickland and costs were awarded against him;
viii)There is no connection between the contents of the s.11F assessment and the father’s claims of bias. Neither the father nor his legal advisers made submissions that the report should have been disregarded. In fact, his lawyer sought to rely on the report during submissions of 14 February 2017;[3]
[3] Transcript proceedings on 14 February 2017, page 26 line 5 and page 27 line 38.
ix)In relation to the father’s criticism of my adoption of the contents of that report, in the context of a contested interim hearing, when no findings of fact are made, the report was the only independent evidence before the court. It was entirely appropriate that the report was given weight;
x)In his written submissions the father complained that I should not have “solicited” the family report. The day-to-day practice of the court obtaining impartial expert evidence by means of a s.11F report something the fair-minded lay observer would be expected to be aware of;
xi)The evidence of his landlord was not discredited, it was simply insufficient. I made observations and comments as to the inadequacy of the evidence, and in any event listed the matter on 7 April 2017, to enable the father to address the deficiencies in his evidence pertaining to accommodation;
xii)On 7 April 2017 there was a discussion between the father and myself as to which orders he consented to and which he opposed. The orders were subsequently amended and the father was content with the orders;[4]
xiii)Allegations of failure to consider relevant legislation is not relevant to an application for recusal;
xiv)The father’s submission that findings were made by me on an interim basis is incorrect. No findings were made at any of the interim hearings;
xv)The father’s allegation that his representative was grilled by me, whilst the mothers barrister was allowed to speak freely is incorrect. The transcript indicates that both counsel were asked questions to “reality test” their submissions. This is in accordance with the High Court’s comments in Johnson (supra). At paragraph 13. The High Court said:
Judges, at trial or appellate level, who, in exchanges with Council, expressed tentative ideas which reflect a certain tendency of mind are not on that account loan to be taken to indicate prejudgement. Judges are not expected to wait until the end of the case before they start thinking about the issues or to sit mute while evidence is advanced and arguments presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions and being given an opportunity to deal with them.
xvi)The authorities are clear that a court should not lightly entertain applications for judges to recuse themselves. There must be substantial grounds for a bias application to succeed, so that parties cannot simply change judges because they don’t like the way a case is progressing.
[4] Transcript proceedings on 7 April 2017, page 82 line 21.
By reason of the foregoing, an independent fair minded lay observer could not possibly reasonably apprehend the judge might not bring an impartial mind to the determination of the matter.
Submissions on behalf of the Independent Children’s Lawyer
Counsel for the Independent Children’s Lawyer adopted the submissions of the Counsel for the mother. She made no further submissions.
DISCUSSION
I will address the father’s complaints.
Ex parte Application of 20 January 2017
The father was aggrieved that I determined to the mother’s watch list application on an ex parte basis. I note this was a proposed ground of appeal in the proceedings before His Honour Justice Strickland. At paragraphs 22 and 23 of his Ex Tempore reasons, His Honour determined that it was appropriate to make the order that I did and to adjourn the matter for further hearing on 2 February 2017.
Use of the term “Fixed”
The father has demonstrated a fundamental misunderstanding of the usage of this word, in the context of case management in this court. On a number of occasions I have sought to explain to him his misapprehension. The suggestion that the court has somehow colluded with and been infiltrated by the mother’s solicitors is extreme and has no basis. I agree with the submissions of the mother’s Counsel.
Denial of procedural fairness
At paragraphs 42 and 43 hereof I refer to the relevant orders of 2 February 2017 relating to service on relevant parties and the hearing of 14 February 2017, which addresses the father’s complaints. I otherwise agree with the submissions of the mother’s Counsel.
Orders of 7 April 2017
I agree with the submissions of counsel for the mother.
Discrimination by registry staff
This issue is not relevant to an application for recusal.
Section 11F assessment, prepared by the family consultant
I agree with the submissions of counsel for the mother.
Errors of fact and law
This issue is not relevant to an application for recusal. I otherwise agree with the submissions of Counsel for the mother.
CONCLUSION
In his various submissions the father has failed to satisfy the necessary two-step process. He must identify his complaints and demonstrate the connection between his complaints and the possibility of a departure from impartial decision-making.
I agree with the submissions of counsel for the mother, that firstly the father has not identified anything that might lead me to determine the case on anything other than its legal and factual merits, and secondly, any logical connection between his complaints and his fear about lack of impartial decision-making.
The father is clearly aggrieved with my decisions and is of the opinion that the proceedings are unfair and adverse to his interests and therefore, I must be biased. That, however, is not the relevant test.
What is relevant, is the conclusion which would be reached by a fair minded lay observer, with the requisite knowledge referred to in Johnson (supra).
Many of the father’s complaints about my decision-making process are not matters relevant to a disqualification application, and rather matters relevant to an appeal.
As previously referred to the father filed an Application in an Appeal on 15 December 2017 relating to all orders made in the proceedings. That application was heard by His Honour Justice Strickland on 29 January 2018, and His Honour delivered ex tempore reasons for judgment. The father’s application was dismissed and an order for costs was made against the father.
On 9 April 2018 the father filed with the High Court an application for special leave to appeal against the orders of the Family Court made 29 January 2018.
On 13 June 2018 an order was made by their Honours Justices Bell and Gageler that the application for special leave to appeal was refused.
I have determined that a fair minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the case being heard.
For these reasons, I dismissed the father’s application.
I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 25 July 2018
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