Rinner and Westhoffer

[2008] FamCA 993

FAMILY COURT OF AUSTRALIA

RINNER & WESTHOFFER [2008] FamCA 993

FAMILY LAW – COURTS AND JUDGES – DISQUALIFICATION —bias—sufficient Judges in Registry to ensure matter not before Barry J—no formal disqualification—matter dealt with on interim basis

APPLICANT: Ms Rinner

RESPONDENT: Mr Westhoffer

FILE NUMBER: BRF 1895 of 2003

DATE DELIVERED: 14 November 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 14 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamwood of Counsel

SOLICITORS FOR THE APPLICANT: SJP Law, Solicitors

COUNSEL FOR THE RESPONDENT: Mr Slade Jones of Counsel

SOLICITORS FOR THE RESPONDENT: Hayley Ritchie Solicitors

Orders

IT IS ORDERED THAT:

1. The matter be adjourned for listing to a Judge other than the Honourable Justice Barry.

IT IS NOTED that publication of this judgment under the pseudonym Rinner & Westhoffer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1895 of 2003

MS RINNER
Applicant

And

MR WESTHOFFER

Respondent

REASONS FOR JUDGMENT

1. I am asked to deal with an application filed by the mother on 1 September 2008.  In that application she seeks a series of interim orders.  The first order is that I disqualify myself from the further hearing of these proceedings.  Secondly, she seeks an order that on an interim basis orders 2, 7, 12(b) and 14 of the orders of 22 July 2004 be dismissed and that the father spend no time with the parties’ child, born in January 2000.  I assume she is seeking a stay of the orders at this point in the time.  In the alternative she seeks that any time spent by the father with his daughter pursuant to the original July 2004 orders be supervised at a contact centre.

2. She seeks an order for separate representation, various orders in relation to medical disclosure and an order that she be given leave to inspect the Court file of the father and Ms C.

3. The father has filed a response document in the appropriate form for an interim hearing.  In that he simply seeks that the application filed on 1 September 2008 be dismissed. 

4. Counsel for the applicant mother has raised the issue of my disqualification as a preliminary issue.  He has helpfully provided me with a copy of the decision in the year 2000 by the High Court of Johnson v Johnson.  That involved an appeal from a trial Judge of this Court, Justice Anderson in Western Australia.  His Honour was there engaged in a very lengthy hearing. 

5. I note in the course of the judgment of the Court reference is made to the decision of JRL, which is the one that I have always tended to refer to at page 639 of the report as handed up.  It reads:

   "Such considerations lay behind the salutary warning given in re: JRL ex parte CJL that judicial officers were obliged to discharge their professional duties unless disqualified by order.  They were told not to accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek disqualification without justification.  Applications of that kind might sometimes be made in the hope of securing an adjudicator more sympathetic to a party's cause."

6. I have had my attention drawn to the various paragraphs from paragraphs 61 to 75, of my reasons for judgment of 22 July 2004.  That judgment was written after a six day trial earlier that month.  I made orders on that date for the reasons which I gave at that time.  That decision was subsequently taken on appeal and in February 2006 that appeal was subsequently dismissed.

7. I accept that the observations and findings that I made in relation to the mother could be seen as somewhat critical of her.  Whether a fair-minded person sitting in the rear of the Court having regard to the whole of the circumstances would regard it as perception of bias is another matter.  When parties come before the Court, there is always a possibility that adverse findings will be made about their performance as witnesses or their behaviour which is the subject of the proceedings.

8. I would always judge a case on the evidence.  I do not think that is doubted.  What is said is the perception of bias.  I intend to take what I will describe as a wimps way out on this matter in that I will not formally disqualify myself, I will deal with the matter as best I can today on an interim basis, but we have a docket system these days and for a number of very practical reasons if this matter is to proceed I would be directing that it not be placed in my docket and it will go before another Judge. 

9. So I am going to adopt that course not because I accept that a person who has had adverse findings made against that person can thereafter come to Court and argue the very fact of those adverse findings must result in the Judge disqualifying himself or herself.  That just cannot be the law.

10. Before concluding one matter I wish to address, is when the applicant's lawyers wrote to the Court they were rather insistent that the matter not be listed before myself.  It is not the business of legal practitioners to tell the Court before whom a matter is to be listed, particularly so where the orders of 22 July 2004 stipulated that if either party sought to apply the matter was to come back before myself in the first instance.  So I make those comments in passing.

11. There are sufficient Judges in this registry to ensure that the matter does not come before me.  I will be indicating that, but I am not formally disqualifying myself.  I feel comfortable dealing with the matter on an interim basis, the more so because I accept the relevance of the submission by counsel for the respondent father that it would take another Judge a significant period of time to get on top of all the various reports that have been in this matter and to read the judgment, the judgment of the Appeal Court, et cetera.  So we'll proceed on that basis, thank you.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  14 November 2008