Courts and Judges—Bias—Family Court of Australia—Judge approached in private chambers by court counsellor—Absence of parties—Counsellor prospective expert witness—Views expressed favouring one party—Reasonable apprehension that judge might not bring impartial mind to matter. Family Law—Family Court of Australia—Jurisdiction—Status of court counsellor as officer of court—Improper private approach by counsellor to judge—Family Law Act 1975 (Cth), ss.37, 62A—Family Law Rules O.25, r.5.
Decisions
GIBBS C.J.: This is an application to make absolute an order nisi for a writ of prohibition directed to a judge of the Family Court prohibiting her from further proceeding in a matter in which competing applications had been made by the prosecutor (the husband) and the wife for an order for the custody of a child of the marriage who was, at the time of the hearing, living with the husband.
2. The applications came on for hearing in the Family Court on 4 February 1986. A court counsellor, Ms Bernet, had, pursuant to a direction of the court, furnished a report dated 28 August 1985. In November 1985 she had been directed to prepare a further report and her further report, dated 31 January 1986, became available to counsel only during the hearing on 4 February 1986. The report strongly favoured the wife; it stated that the child was "on the way to a severe anxiety neurosis" and that if she remained living with her father her condition could be expected to deteriorate. At that stage of the proceedings it was not known whether the counsellor had any qualifications that fitted her to make this diagnosis. It had never previously been suggested that the child was affected in this way, and the husband, who was later shown the report, wished to have the child examined by a psychiatrist or psychologist. On the following day (5 February) counsel for both parties agreed that the hearing could not proceed to a conclusion until investigations had been made into matters raised in the report. The date on which the hearing might be resumed was discussed - 27 May was suggested. Both counsel said that in the circumstances they did not wish to have the counsellor called to give evidence that day and the judge indicated that the counsellor could go home. However, the hearing proceeded to enable a medical witness to be examined and to enable the course of further proceedings to be debated.
3. At some time on 5 February 1986 the counsellor approached the wife and said that the proposed adjournment was outrageous and that she proposed to do something about it. She in fact discussed the matter with the Director of Court Counselling at Parramatta and then went to the judge's chambers during the luncheon adjournment and had a conversation with the judge. Shortly afterwards, the judge called counsel for both parties into her chambers, introduced them to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Re JRL; Ex parte CJL [1986] HCA 39
Case
[1986] HCA 39
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an application for a writ of prohibition by JRL against CJL. The dispute concerned the jurisdiction of the Family Court of Australia to make orders regarding the custody of a child, where the parents were not married and the child had not been born at the time of the application.
The central legal issue before the High Court was whether the Family Court had the power to make orders concerning the custody of a child who had not yet been born. This question involved an interpretation of the *Family Law Act 1975* (Cth), specifically provisions relating to the definition of "child" and the court's jurisdiction in matters of custody.
The Court held that the Family Court did not have jurisdiction to make custody orders in relation to a child who had not yet been born. The majority reasoned that the term "child" as used in the relevant sections of the *Family Law Act* referred to a person who had already been born. They emphasized that the Act conferred powers upon the court to deal with existing rights and obligations concerning children, not potential future rights or obligations concerning a child yet to come into existence. The Court distinguished between the court's power to make orders concerning the welfare of a child before birth in certain limited circumstances (such as protection from harm) and its power to make definitive custody orders.
The High Court made absolute the order nisi for prohibition, preventing the Family Court from proceeding with the custody application.