Rush and McFadzean

[2007] FamCA 247

FAMILY COURT OF AUSTRALIA

RUSH & MCFADZEAN [2007] FamCA 247

FAMILY LAW – Disqualification  - Bias

Johnson & Johnson No. 2 (2000) FLC 93-041

APPLICANT: Mr Rush

RESPONDENT: Ms McFadzean

FILE NUMBER: (P)NCF 2223 of 2002

DATE DELIVERED: 16 March 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 15 March 2007

REPRESENTATION

APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Burgess Foat Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr S Marks

Orders

1. I disqualify myself from further hearing these proceedings.

2. As a matter of priority, the List Clerk shall notify the parties of the new trial date.

FAMILY COURT OF AUSTRALIA AT
NEWCASTLE

FILE NUMBER: (P)NCF2223/2002

MR RUSH

Applicant

And

MS MCFADZEAN

Respondent

REASONS FOR JUDGMENT  

1. This case concerns arrangements for the father to spend time with the parties only child, a daughter who was born in September 1999.  By orders dated 20 November 2003 the child remained living with her mother and established regular alternate weekend and school holiday contact.  The contact orders are expressed as conditional upon the father completing an anger management course and parenting after separation program within six months.  In the event he failed to complete one or other of the courses from 20 May 2004 his contact to the child is suspended.  It is alleged, and as I understand it, conceded that the father attended most but failed to complete the parenting program.  Nonetheless regular contact continued until the mother stopped making the child available.  This was in about March or April 2006.   By arrangement with the child’s school principal the father collected the child from school for a weekend during June 2006.  The father applied to this court on 6 July 2006 for further parenting orders, the purpose of which seems to be to re-establish regular contact with the child and eventually divide her time equally between her parents.

2. On 29 August 2006 the father filed a contravention application against the mother.  This application came before the court on 11 September 2006 and was stood out of the list, restorable on 21 days notice.   The matter was adjourned until 18 September 2006 at which time the parties agreed their competing parenting applications will be determined in the less adversarial trial case management system.  The case was allocated to me.  

3. On 2 November 2006 I completed the first hearing day.  On that day the Court made the following orders and directions:

   Upon Noting that the parties and Independent Children’s Lawyer agree that the issues requiring determination are as follows:

   1.        [The child’s] view about spending time with her father.

   2.If [the child] says she does not want to spend time with her father – whether her mother has influenced those views.

   3.        The nature of [the child’s] relationship with her father.

   4.        The nature of [the child’s] relationship with her mother.

   5.        Whether [the child] suffers from Encopresis.

   6.        If she does suffer Encopresis - whether it has any identifiable cause.

   7.If her Encopresis is caused by stress – whether there is any indicating about what those stressors appear to be.

   8.Whether either parent has a personality disorder which impinges upon their capacity to meet [the child’s] intellectual and emotional needs.

   9.If [the child] resumes spending time with her father, the changeover place.

   The Court Directs:

   1.That the hearing of this case proceed to finality as a Children’s Cases Program case pursuant to Practice Direction Number 2 of 2004.

   2.That pursuant to section 190(1) of the Evidence Act 1995 (Commonwealth) the provisions of that Act referred to in section 190(1)(a), (b) and (c) are dispensed with to the extent required to permit the admission of all material placed before the Court as evidence, subject to the application of proper weight and to conduct the procedure of the hearing as envisaged in the Practice Direction Number 20 of 2004.  In making this order I do so on the ground referred to in section 190(3)(b) of the Evidence Act.  I also take into account the aims of the Children’s Cases Program.

   By consent it is ordered:

   1.Pursuant to Part 15.5 of the Family Law Rules that [Dr M], Child and Family Psychiatrist, is appointed to ensure into and report upon mattes relating to the welfare of the child [a daughter] born [in] September 1999, and that in preparing his report to the court, [Dr M] is requested to consider the following matters:

   (a) the child’s wishes and any factors such as level of maturity or understanding that would affect the weight to be accorded to those wishes;

   (b)the relationship between the child and each of her parents and any other relevant person;

   (c)the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent;

   (d)the capacity of each parent to provide for the needs of the child, including her emotional and intellectual needs;

   (e)whether the child is at risk of physical or psychological harm in the care of either parent;

   (f)the attitude of each parent to the child, and each parent’s capacity to identify and understand the responsibilities of parenthood and to discharge those responsibilities;

   (g)the effect on the child of any family violence to which she may have been exposed;

   (h)any issues of alcohol or any other substance abuse affecting either parent;

   (i)the mental state of each parent insofar as it relates to parenting issues;

   (j)each parent’s attitude to one another, the extent of the parent role (if any) each parent foresees for the other in the life of the child, and whether or not each parent is capable of encouraging and supporting the relationship between the child and the other parent, and the impact of such on the child;

   (k)having regard to all relevant circumstances, whether or not it is in the best interests of the child to spend time with the father, and if so, the recommended nature, frequency and duration of such periods;

   (l)any other matter the Court Expert considers relevant.

   2.That unless the Legal Aid Commission of New south Wales agrees to pay the costs, the mother and father be jointly liable for the Court Expert’s fees.

   3.That leave is granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing same to [Dr M], and that the fees in respect of that photocopying are waived.

   And it is further ordered:

   4.That further hearing of this matter be adjourned to 15 December 2006 at 9.15 am to enable a Family Report to be discussed.

   5.That if either party or the Independent Children’s Lawyer seeks interim orders on the next occasion, they must set out the orders sought in a letter to be forwarded to all other parties by no later than 8 December 2006.

   6.Liberty granted to the parties to apply to relist the matter on 7 days notice.

   Upon Noting that [the father] resides at [G] NSW and his telephone number at that address is […].

   7.        Until the Court orders otherwise this is his Address for Service.

4. Dr M’s report was released on 12 December 2006.  He recommended that t;he child resumes contact with her father.

5. The matter came before me on 15 December 2006.  Although listed at 9.15 am, the father arrived late.  With a trial scheduled to resume at 10.00 am and in circumstances where the parties were seriously disputing the father’s desire to resume contact with the child, the case was adjourned until 2.15 pm on 21 December 2006. 

6. On 21 December 2006 Dr M gave evidence by telephone. Following a defended hearing on 21 December 2006 I made the following orders:

   It is ordered that pending further order:

   1.        That the applicant father shall spend time with [the child] as follows:

   (a)      on 22 December 2006 from 10.00 am until 2.00 pm;  and

   (b)      on 25 December 2006 9.00 am until 1.00 pm.

   2.That upon the father’s daughters arrival from South Australia in the first four days of their arrival for two x 1 day periods from 10.00 am until 6.00 pm on days nominated by [the mother].

   3.Within 3 days of the second day referred to in the above order, for two consecutive days including overnight.

   4.The pattern referred to in the above two orders to continue for each week that the father’s daughters are in Newcastle from Adelaide until the resumption of school.

   5.Upon the resumption of school and commencing the first weekend after school has resumed, from 1.00 pm Saturday until 6.00 pm Sunday and each alternate weekend thereafter.

   6.Changeover shall take place [the local] McDonalds. 

   7.In the event the father is more than 30 minutes late to collect [the child], the order enabling him to spend time with her on that occasion is suspended.

   8.When spending time with [the child] overnight, the father shall ensure he fully supervises her and that she spends the night at his home at [H].

   9.I give liberty to all parties and the Independent Children’s Lawyer to apply on 48 hours notice.

   10.This matter is listed for further hearing before me on 27 February 2007 at 9.30 am.  On this occasion the court will consider:

   (a)a brief report from both parties as to the operation of the above orders;

   (b)whether weekends should be extended so that they commence on Friday afternoons;

   (c)the arrangements for [the child] to spend time with her father during the Easter 2007 school holidays;

   (d)whether the changeover venue should continue at McDonalds [in the local area], [Ms R’s] home or the school.

   The Court Notes [Ms R] will attend changeover on the mother’s behalf and her mobile phone number is […].

   11.In the event the father is running late to collect [the child] he shall contact [Ms R] on the above telephone number and advise her accordingly.  Unless given specific permission by [Ms R] to do so, the father shall not use that telephone number for any other purpose.

   12.The mother shall give the father written notice, which includes notice by SMS of the dates upon which he will spend time with [the child] during the forthcoming holidays in accordance with the above orders.  This notice is to be given no later than 48 hours prior to [the father’s] daughters arrival from South Australia.

   13.That the parties be restrained and an injunction is hereby granted restraining each of them from denigrating the other in the presence of or within the hearing of the child or allowing any other person so to do.

   The Court Notes [the mother’s] mobile telephone number is […].

   14.As soon as the father obtains a new mobile telephone he shall give the mother written notice of its number.  Written notice shall be by ordinary pre-paid post and by SMS message to [the mother’s] mobile phone.

   15.That 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 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.

7. Thus by these orders the father and the child were able to resume contact.

8. The matter returned to Court on 27 February 2007.  Although I had hoped to hear that the Christmas holiday arrangements had worked well, it quickly became apparent that this was not the case and that the mother was not complying with the December 2006 orders.  My attempts to try and understand what had occurred were thwarted by the father’s disruptive behaviour.  This was not the first time he had seriously disrupted the hearing. In the end, I determined that I needed to give this matter the first available trial date and allocate a separate half a day as soon as possible in order to try and establish what had gone wrong and find a way forward.  I made the following directions:

   1.That the parties and/or their legal representatives have leave to inspect documents produced by [T company] pursuant to subpoena dated 19 February 2007.

   2.That this matter be listed for final hearing as a four day matter and I give leave to the parties to approach the List Clerk and request that the matter is allocated for final hearing with priority.

   3.That the parties file and all affidavits upon which they intend to rely no later than 28 days prior to the commencement of the hearing.

   4.That the parties shall each provide my Associate with a List of Documents to be relied upon, a Chronology of relevant events and a List of Objections taken to any other parties’ evidence no later than 48 hours prior to the commencement of the hearing.  These documents shall be served upon the other party at the same time they are provided to the Court.

   5.In relation to any outstanding interim applications, I adjourn those matters to a date to be advised.  In this regard as soon as the Court can provide a half day hearing to deal with all outstanding interim issues the parties will be notified and the matter listed.

   6.That the Contravention Application filed on 29 August 2006 be allocated a date before a Judicial Registrar on the first available date.

9. In accordance with order 5, the matter was listed before me for further hearing at 2.15 pm on 15 March 2007.  In anticipation of this hearing, I read the following:

   ·a handwritten document from the father called “Affadavit – Antercedent 13/01/2007” (sic);           

   ·a document prepared by the father called “Report” dated 22 February 2007;

   ·affidavit by the father filed 27 February 2007;

   ·affidavit by the mother filed 23 February 2007;

   ·affidavit by Ms R filed on the mother’s behalf on 23 February 2007.

10. In his “report” document, the father commences with the preamble: 

    “The handling of this case [Rush V McFadzean] in the Children Cases Court Newcastle in front of Justice Ryan has been handled abhorrently, clearly through bias, discrimination and predjust (sic) towards the father ([…]) and his connection and quality time allocated with his daughter […]”. 

    In support of his assertion of bias, the father details allegations concerning conduct by the mother’s solicitor and police.  He puts into context an incident which took place at S Primary School and involving the mother on 24 April 2006.  As further support of bias, the father refers to my refusal to permit him to tender personal references or subpoena the school principal, Mr B.  The document traverses other issues which for the purpose of this issue do not require further discussion.

11. When the hearing commenced on 15 March 2007, having welcomed the parties and lawyers the transcript shows the following exchange:

    HH:        Mr Foat?

    MR FOAT:I'm sorry, your Honour.  I apologise for my lateness. I was detained in the Children's Court unfortunately.

    HH:Well, as I said on the last occasion, I was going to try and find half a day to spend with this case and do what I'd hope we would be able to do on 27 February.  I apprehended on the last occasion that contact between [the child] and her father last occur on 16 January 2007.  Is that the situation?

    [THE FATHER]:       It's been a long time.  I wouldn't know.  Times are irrelevant.  I just had - I had my daughter.

    MR FOAT:              I think that's right, your Honour.

    HH:        16th of - - -

    [THE FATHER]:        Yes, something like that.

    HH:       16 January…?

    [THE FATHER]:       Fine with me there were Federal orders, gets away with it.  How are you going to make it, sir?  I'm sick of this.  I want my daughter and I want - she should adhere to the law, or the rules.  What is it, some kind of witch hunt on me?  I just have to - I'm human, I want my daughter back, please.

    HH:        [Mr Rush] - - -

    [THE FATHER]:       I'm going to report you sir, this is ridiculous.  This is out of control.  What, I'll have you disbarred, this is wrong.  You've just - you haven't taken my evidence, you haven't taken me seriously.  You let her break the law, you let Foat lie about me, you don't care about anything.  You're just trying to punish me.  I want my daughter back, please.  For God sake.  This is some kind of joke - - -

    HH:        What I - - -

    [THE FATHER]:        - - - at my expense, my daughter's expense.

    HH:        [Mr Rush], I'm not going to sit here this afternoon - - -

    [THE FATHER]:        Aren't you?

    HH:                         - - - and try and make - - -

    [THE FATHER]:       You're going to run off - get bigger and get them, well, what are you going to do?  Leave me without my daughter?

    HH:        I couldn't hear - I couldn't hear you properly.

    [THE FATHER]:       Yes, leave me without my daughter again, what are you going to do then?

    HH:What I'm going to say to you is I'm not going to sit here this afternoon and be abused by you.

    [THE FATHER]:       Aren’t you?  Well, there's abuse that you're doing to me, mental abuse, by taking my daughter, and what this person is doing.  That's what it is.  It's abuse.

    HH:  I would - - -

    [THE FATHER]:        Do I just take it, do I?

    HH:I would have thought it was apparent to you that I've relisted the matter this afternoon - - -

    [THE FATHER]:        Very good.

    HH:- - -  to try and make sense of the situation and give us time - - -

    [THE FATHER]:       If she adheres to the law that would make sense of the situation.

    HH:- - - to methodically work through what has occurred over the Christmas holidays and see what can be done - - -

    [THE FATHER]:        I've had nothing.

    HH:  - - - between now and the hearing, but - - -

    [THE FATHER]:        Well, she doesn't adhere to law then what does it matter?

    HH:[Mr Rush], I'm now going to adjourn the proceedings.  I am not going to sit and be abused by you.  You make it impossible for - - -

    [THE FATHER]:       You make it - I make it impossible?  You make it impossible, I'm sorry, Justice Ryan.

    HH:        - - - make it impossible for me  - - -

    [THE FATHER]:        Who are you?

    HH:                        - - - to try and run - - -

    [THE FATHER]:       You won't give me my daughter.  You're going to do this again to me, aren't you?  Punish me again?

    HH:       I adjourn the hearing.

    CO:  All stand please, this Court stands adjourned.

1. For most of the appearance the father was speaking loudly and using an aggressive tone.   This is consistent with his behaviour during a number of the earlier hearings.  It was immediately apparent to me that my earlier attempts to explain to the father the importance of allowing others to speak, not shouting or engaging in personal invective had again fallen on deaf ears.  The father’s tone, interruptions and demeanour strongly indicated there was nothing I could do which would result in a reasonable hearing of the issues concerning the child.  Based upon past experiences in this matter it seemed my choices were to surrender any semblance of order in the proceedings or adjourn.  As I was leaving I could hear the father shouting.

2. Although he did not formally seek it, the father’s comments in his “report” and his opening remarks on 15 March 2007, indicate he seeks that I disqualify myself from further hearing his case.  I have considered this issue in chambers without input from the parties or Independent Children’s Lawyer.  Had I formed a tentative contrary view I would have relisted the matter so as to take further submissions on this issue

3. In Johnson v Johnson No.2 (2000) FLC 93-041 the High Court outlined the test to be applied in determining apprehended bias by the appearance of prejudgment. It 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”.

1. The reasonableness of any suggested apprehended bias is to be considered in the context of ordinary judicial practice.  The conventions concerning such practice are not static.  In the modern context Judges no longer sit mute and explorations of issues during a hearing is common place.  This practice is important in less adversarial trial proceedings and affords counsel and litigants an early opportunity to deal with the issues and any tentative view the judge may have expressed. 

2. Although I have difficulty with the notion that a fictional observer familiar with the history of this matter, would regard me as biased against the father, plainly the father strongly believes that I am.  Perhaps this is why he behaves as he does.  Whether for this, or some other reason, the father conducts himself during the hearing process in such a way that the only way for me to complete the proceedings would be to have him removed from the court room.  As he is unrepresented this would result in a one-sided and, to the father, an unfair process.  The risk of injustice to the child is also an issue.

3. I am also concerned about the impact upon the mother should she fail before me.  Put simply, my concern is that the mother may also feel she has been denied a fair hearing if the father is permitted to continue to interrupt the hearing and abuse it and the other participants.  In her mind, she may be concerned that ultimately the father cowed the Court.

4. I am conscious of my obligation to hear and determine cases and to not lightly accede to an application that I stand aside.  However, in the interest of justice I consider I am left with no choice other than to disqualify myself.

5. By virtue of my decision to disqualify myself, the hearing will not proceed before me.  I request the List Clerk advises the parties as a matter of urgency of new trial dates.  I suggest that the parties avail themselves of an opportunity to list the matter for mention before the trial Judge so that any matters that they or the trial Judge wishes to explore prior to the commencement of the hearing can occur.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  15 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as RUSH & MCFADZEAN