SCOLLAN & ALLAMBY

[2020] FCCA 2398

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCOLLAN & ALLAMBY [2020] FCCA 2398

Catchwords:
FAMILY LAW – Judges – bias – application to recuse the trial judge – application to exclude family report – application to refer counsel to professional conduct board – voir dire hearing application.

Legislation:

Family Law Act 1975 (Cth), s.68LA

Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) HCA 63

Johnson v Johnson (No.3) (2000) 174 ALR 655

Crabman and Crabman (No 2) [2020] FamCAFC 146

Michael Wilson & Partners Limited v Nicholls [2011] HCA 48

Goode & Goode (2006) FLC 93-286

Applicant: MR SCOLLAN

Respondent: MS ALLAMBY

File Number: ADC 1225 of 2017

Judgment of: Judge Cole

Hearing dates: 8 July 2020 and 29 July 2020

Date of Last Submission: 29 July 2020

Delivered at: Adelaide

Delivered on: 31 August 2020

REPRESENTATION

Applicant: The Applicant appearing in person

Counsel for the Respondent: Mr Childs

Solicitors for the Respondent: Women’s Legal Service

Counsel for the Independent Children's Lawyer: Mr Boehm

Solicitors for the Independent Children's Lawyer: Legal Services Commission of South Australia

ORDERS

1. That the father’s Application in a Case filed on 28 February 2020 be hereby dismissed.

2. That the proceedings are adjourned to 23 February 2021 at 10:30am for callover and possible trial listing NOTING the parties are required to personally attend on this day UPON FURTHER NOTING it is requested that counsel properly instructed for trial attend and in the event they are not available, the file principal attend.

3. That the parties no less than seven (7) days prior to the callover date provide to the Court a case outline including:

   (a)A brief Summary of Argument including a Minute of Orders sought; and

   (b)A trial plan indicating estimated length of trial sought and witnesses relied upon at trial.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1225 of 2017

MR SCOLLAN

Applicant

And

MS ALLAMBY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is the father’s application filed on 28 February 2020, seeking a number of orders including an order that I recuse myself.

2. The father has been representing himself in these proceedings for some time.

3. The orders he seeks comprise some fourteen paragraphs. 

4. By way of summary I note he seeks amongst other things orders that:

   a)I recuse myself;

   b)The Independent Children’s Lawyer and Counsel be removed;

   c)A new Independent Children’s Lawyer be appointed for each child;

   d)The proceedings be adjourned to allow the respondent to engage a new solicitor; and

   e)The family reports and affidavits filed in this matter be ruled inadmissible, and there be a separate trial for that to occur.

5. The application is opposed by the Independent Children’s Lawyer and the mother.

Background

1. The parties in this matter have two children namely X born in 2007 and Y born in 2009.  The children live with the mother.  They are aged 13 and 11 this year.  The children are not spending time with their father.

2. The parties separated in 2012 on the mother’s evidence following an incident when the father was charged with assaulting the mother. The charges were subsequently dropped. The father’s evidence is that the parties separated following that in July 2013.

3. The father on his evidence stopped spending time with the children in April 2014 when he decided to walk away.[1]  The mother says this occurred in December 2013.

   [1] See the father’s Affidavit filed on 30 March 2017, [5].

4. The matter came before me on 4 May 2017 and no time was ordered pending a s.11F Child Dispute Conference. A Family Report was subsequently ordered on the next occasion.

5. The Family Report was published in October 2017.  The report made a number of recommendations “…in an effort to support the possibility of the children having a relationship with both parties…”[2]

   [2] See the Family Report dated 11 October 2017, [100].

6. Orders were made by consent on 17 October 2017 (the father was represented at that time) requiring the father to attend upon a psychologist specialising in therapy for the purposes of assessment of his mental health needs and education about the reunification process.

7. On 28 February 2018 the father’s solicitor withdrew and the Independent Children’s Lawyer was requested to obtain a report from Dr B.

8. On 28 May 2018 the parties were ordered to attend family therapy with Dr B.

9. On 6 September 2018 the parties were required to obtain a joint interim report from Dr B.

10. The father filed an application on 13 December 2018 to remove the Independent Children’s Lawyer and discontinued that application on 10 January 2019.

11. On 18 December 2018 a further order was made for the Independent Children’s Lawyer to obtain the report of Dr B and the report was filed on 19 December 2019.  The report advised that the prognosis was poor for reunification and that Dr B could see no obvious way to proceed.

12. A second Family report was ordered on 17 January 2019 with a request that the report writer liaise with Dr B.  The report was published on 4 June 2019.  The report recommended amongst other things psychological help for the mother to assist with the reunification process and family reunification therapy.

13. The father filed two Applications in a Case on 14 June 2019 seeking to adjourn the proceedings to consider the Family Report.  The Application in a Case also sought a separate trial to determine the admissibility of the Family Reports.

14. On 18 June 2019 the matter came before me.  The Applications in a Case had not been served on either party.

15. The father advised that he accepted the recommendation and wanted the reunification therapy, however he was not prepared to agree to an order for that to occur.  He referred to his application for a separate trial to enable him to apply to have the reports excluded.  

16. The father was informed that the best way to challenge the Family Reports was to proceed to trial and cross-examine the report writers.  He was also informed that there may be an issue of whether a trial would have an impact on the reunification process (which he had told the Court that he wanted to proceed with).

17. He was asked if he wanted the reunification process to proceed or wanted the matter to go to trial (noting one of the issues for trial would be whether there should be reunification therapy).  The matter was stood down to give him the opportunity to take advice and have a discussion with the Independent Children’s Lawyer.

18. When the matter resumed he elected to proceed to trial.  The matter was referred to the call over on 9 September 2019.  The applications were adjourned with the carriage of the proceedings.  They are not the subject of this hearing although some of the subject matter does overlap.

19. The father’s position in this matter, whereby he accepted the recommendation for family reunification therapy, and yet challenged the process of the reports and the matters set out in the report, sought to defer any further action in these proceedings pending his complaints about the report being addressed, whilst acknowledging the additional time this would take in the Court process if his application was successful, is difficult to comprehend.

20. On 9 September 2019 the matter was listed for trial on 17 June 2020. A directions date was scheduled for February 2020 in case there had been agreement about the reunification process.  Unfortunately there was not.

21. On 28 February the father filed his Application in a Case which is the subject of this hearing.

22. To preserve the trial date the matter was listed on 21 April 2020 for argument.

23. Prior to that date the COVID-19 pandemic and the restrictions imposed by the relevant State and Commonwealth authorities came into effect.

24. The parties were advised of the move from face-to-face hearings and were provided with the relevant information in respect of the telephone link by correspondence dated 2 April 2020.

25. On 6 April 2020 the Court received correspondence from the applicant seeking to adjourn the 21 April 2020 listing.  The application was rejected as it did not have the consent of the other parties.  Consent was not subsequently provided and all parties were informed by correspondence dated 15 April 2020 that the matter remained listed.

26. On 21 April 2020, an appearance was entered by the Independent Children’s Lawyer however there was no appearance by the applicant or respondent.  The matter was then adjourned to the first day of trial on 17 June 2020.

27. A letter dated 22 May 2020 was subsequently received in Chambers from the father advising that he had attended the Court in person and had been denied entry.  It is the father’s evidence that he was not provided with any details of the teleconference arrangements at that time.

28. In an effort to preserve the trial date the Application in a Case was then relisted on 4 June 2020.  The parties were advised of this on 29 May 2020.

29. On 2 June 2020 the applicant wrote to the Court seeking that the hearing listed on 4 June 2020 be vacated.  He also sought that the trial date listed on 17 June 2020 be vacated.  The application was made without the consent of all parties and was refused.

30. On 4 June 2020 Counsel for the mother and for the Independent Children’s Lawyer appeared however the father did not.  The matter was adjourned for argument to 10 June 2020 noting one hour allowed.

31. On 10 June 2020, there was again no appearance by the father.  The matter was adjourned to 17 June 2020 for argument.  The trial listed on 17 June 2020 was subsequently vacated.

32. Written submissions were filed by the father in respect of the Application in a Case on 16 June 2020.  The father’s written submissions clearly showed 17 June 2020 at 10:00am as the next Court date.  The father it appears was aware but still failed to appear on 17 June 2020.

33. The proceedings were then adjourned to 8 July 2020 at 2:15pm for argument.

34. On 8 July 2020 the father did appear by way of a telephone link.  Unfortunately he was unable to curtail his submissions to the allocated time and with the agreement of Counsel, occupied the one hour that had been set aside for this matter. 

35. The father submitted that he was only seeking part of his Application in a Case be dealt with on this occasion, namely that I recuse myself.

36. This submission was rejected outright, particularly taking into account the fact that a significant amount of time had been spent attempting to have his Application in a Case heard.  He was informed that the matter was now proceeding on the basis of the Court being asked to address all of the orders sought.  Counsel for the Independent Children’s Lawyer and Counsel for the mother did not speak against this.

37. Further time was then allocated on 29 July 2020 to conclude the matter.  Submissions were heard from Counsel for the mother and the Independent Children’s Lawyer and the decision was reserved.

The father’s application

1. His Application in a Case covers in essence four topics.  While there is some overlap between them, they are:

   a)The recusal of the trial Judge;

   b)The dismissal of the Independent Children’s Lawyer;

   c)The separate trial for the issue of whether the Family Reports should be admitted; and

   d)The appointment of new solicitors for the mother.

The application for recusal

1. The issue of bias has been discussed by the Court on many occasions.  The test to be applied is:

   …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.[3]

   [3] Ebner v Official Trustee in Bankruptcy (2000) HCA 63 [6].

2. The matter was considered by the High Court in Johnson v Johnson(No 3) (2000) 174 ALR 655 where the majority stated:

   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.[4]

   That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. ‘If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.’ The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’.[5]

   While 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. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.’ Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are 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.[6]

   [4] Johnson v Johnson (No3) (2000) 174 ALR 655 at 658 [11].

   [5] Ibid, [12].

   [6] Johnson v Johnson (No3) (2000) ALR 655 at 659 [13].

3. The Full Court of the Family Court considered the issue of bias in the matter of Crabman and Crabman (No 2) [2020] FamCAFC 146:

   The test to be applied in determining whether a judge is to be disqualified by reason of the appearance of bias 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” (Johnson v Johnson (2000) 201 CLR 488 at [11]). Pursuant to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) to satisfy that test, the applicant for recusal must identify what it is that might lead the judge to decide a case other than on its legal and factual merits (step 1) and the logical connection between the matter and the feared deviation from the course of deciding the case on its merits (step 2).[7]

   [7] Crabman and Crabman (No 2) [2020] FamCAFC 146 [17].

4. The father relies on his submissions filed with this Court and the affidavit filed in support of the Application in a Case.

5. In his affidavit he submits that the Judge has:

   …demonstrated in clear and unambiguous actual terms and perceived not only his actual bias but perceived bias, his injustice, his lack of understanding of practice and procedure, his lack of understanding of evidence and his complete lack of comprehension for natural justice, procedural fairness and the Rules of Court.[8]

   [8] See the father’s Affidavit filed on 28 February 2020 [7.1].

6. He further submits “that the Judge is acting unprofessionally, illegally and contrary to the well-established principles of law”.[9]

   [9] Ibid [7.2].

7. He submits that “the Judge’s own intransigence in this matter has inhibited him from allowing, or hearing arguments which ought to be properly vented or tabled before the Court.”[10]

   [10] Ibid [7.4].

8. He does not provide any particulars for these allegations.

9. The allegations appear to be related to the process by which the Court has handled his Application in a Case and the Court receiving into evidence the two Family Reports that have been prepared to date.

10. He complains that the Court either failed to provide the report writer with proper and adequate directions as to the nature of the second report or failed to consider the content of the second Family Report, as to the subject matter that the report writer needed to address.

11. He submits that the reports should have been rejected by the Court.  He further submits the Court ought to have either “redacted” the reports or rejected them on the basis that they “failed the rules of evidence or properly addressed the directions provided by the Court.”[11]

    [11] Ibid [13].

12. He submits the “Court erred in law and in practice by demanding that the applicant sign same and because the applicant refused to sign the Family Reports, the Court refused to hear the applicant in Court.”[12]

    [12] Ibid [14].

13. There is no evidence to support this allegation.

14. At this point I would say there has been no demand by the Court.  The Court is well aware that this is not trial by report and it has always been made clear that the father has the right to challenge the Family Reports.

15. He complains that the Family Reports contain largely hearsay, are irrelevant, and contain unreliable and untruthful information which should not be introduced into the Court.  He does not say nor in his submissions point out what that was.

16. The submissions, despite the efforts of the Court, appeared to lack a fundamental understanding of the process by which litigation is conducted in this jurisdiction. 

17. They do not address the fact that the father was advised these issues would be addressed at trial.  His objections have been noted and his right to challenge that evidence at trial is not in dispute.

18. The matter will be heard by me unless it is transferred to the Family Court due to a concern that it may go part heard in this jurisdiction.

19. This matter is in my docket and in accordance with the usual principles of practice in the Federal Circuit Court is something that I will deal with from the start of the proceedings to their conclusion. 

20. If there is a concern about the evidence produced by way of affidavit or the Family Reports it is usual for the matter to proceed to trial where that evidence can be challenged by way of cross examination and if required the production of evidence to refute the claims made. 

21. Counsel for the Independent Children’s Lawyer submits that the father’s application consists of broad allegations which lack any particulars or substance.  This submission is echoed by Counsel for the mother.

22. I accept these submissions.

23. It is not possible to identify with any confidence, what it is that might lead me to decide this case other than on its legal and factual merits.

24. All decisions to date have been with a view to getting this matter on for hearing as soon as possible so the father may have “his day in Court”.

1. This then makes it difficult to establish any logical connection between the matter and the feared deviation in the course of deciding the case on its merits.

2. The Court in Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 having discussed the two step process went on to say:

   …the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.[13]

   [13] Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 [63].

3. Taking into account all of the matters referred to above I do not consider that the father has made out his case and would dismiss the application that I recuse myself.

The Reports

1. The father made it clear that he did not agree with the content of the Family Reports.  The best way to challenge the reports was to bring the matter on for trial as quickly as possible.

2. If the father’s challenge to the Family Reports was correct then the Court would have to consider what steps would need to be taken at that time.  It was not however possible to determine the matter without the benefit of the report writer giving evidence and being cross-examined.

3. The option of having the report writers give evidence in a separate trial, taking into account the resources of this Court and the number of families in this docket, was not an option that was open to the father.  There are a number of reasons for this including the fact that this would increase the time it took for this litigation to conclude by a significant amount.  This would not be in the best interests of the children nor would it enable the father to achieve a conclusion to these proceedings in a timely manner.

4. Furthermore, the evidence before the Court did not support such a significant step being taken.

5. As the Full Court said in the matter of Goode & Goode (2006) FLC 93-286 “In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.[14]

   [14] Goode & Goode (2006) FLC 93-286 [82].

6. The father’s assertions about the Family Reports are not accepted by Counsel for the mother or the Independent Children’s Lawyer. Taking his case at its highest it is difficult if not impossible to accept the submission that he has even set out the foundation for the pathway he promotes.

7. Counsel for the mother submits that the father’s application is based on bold assertions, argument, submissions and mere supposition.

8. The Independent Children’s Lawyer echoes this submission when he submits that the father relies on argument, opinion and comment.

9. The onus is on the father to establish the grounds for his application.

10. His oral submissions covered matters going back to the court hearing in June 2017.  This is not reflected in the documents that he has filed.

11. There is nothing other than his assertions and submissions on which I can safely rely.

12. I am not directed to any evidence that would assist me.

13. The Independent Children’s Lawyer notes that the father advocates that I reset the proceedings. This is not, he submits, in the children’s best interests.  I accept that submission.

14. The application to exclude the Family Reports is dismissed.

The Independent Children’s Lawyer

1. The argument for the discharge of the Independent Children’s Lawyer and the reappointment of an Independent Children’s Lawyer for each child runs into similar difficulties.

2. There is an allegation that the Independent Children’s Lawyer undertook, in response to the father’s complaint, to act in a more professional manner.  This is strongly denied. 

3. There is no reference to anything else on which I can safely rely to grant the application.  The father’s case appears to once again be based on bold assertions, argument, opinion and comment.

4. I am unable to find anything that would even if I took it at its highest, support the application.  As previously stated it is difficult to get past the fact that the father’s argument appears to comprise anything other than argument, opinion and comment.

5. The obligations of an Independent Children’s Lawyer are canvassed in s.68LA of the Family Law Act 1975 (Cth). These include the obligation to act in the best interests of the children. The role of the Independent Children’s Lawyer is one of an honest broker whose responsibility is to ensure the best interests of the children are met.

6. While the father may have formed a view of how the Independent Children’s Lawyer has acted to date there is nothing in the evidence provided by him that would in my view support the removal of the Independent Children’s Lawyer, let alone the appointment of an Independent Children’s Lawyer for each child.

7. The suggestion that the voice of the children has not been heard either directly or indirectly and the reference to the United Nations Convention on the Rights of the Child ignores the two Family Reports and the report from Dr B amongst other things.

8. The Independent Children’s Lawyer has in what is a difficult matter represented the children without fear or favour from either parent.  The father’s application is therefore dismissed.

Referral of Counsel for the Independent Children’s Lawyer and the solicitor for the mother to the Legal Conduct Board

1. There is nothing in the father’s evidence or his submissions that provides any hard evidence for this course of action.

2. The father submits in his affidavit:

   To outline the exact nature of my complaint against the Independent Children’s Lawyer’s Counsel or the subject or detail of the nature of this referral, would (in my view) - transgress in the same manner as the complaint generally regarding the conduct of this matter.[15]

   [15] See the father’s Affidavit filed on 28 February 2020 [27].

3. This same submission is made in respect of the application to refer the mother’s solicitor to the Legal Profession Conduct Commissioner and provides a striking example of the concerns about the fathers case referred to by the Independent Children’s Lawyer and Counsel for the mother.

4. The application for orders referring Counsel for the Independent Children’s Lawyer and the mother’s solicitor are also dismissed.

Miscellaneous orders

1. The father seeks further orders including a voir dire hearing in respect of these issues.

2. These include his submission that:

   certain “Affidavits” and “Reports” already on file, be assessed for irrelevant, hearsay, inadmissible & unlawful scandalous vague and unethical information, be struck out or redacted AFTER the voir dire hearing has been heard on these issues.[16]

   [16] Ibid [30].

3. He also seeks the reunification process start immediately however the Independent Children’s Lawyer and the solicitors for the mother now advise that they oppose that application.

4. As stated, I accept the submissions of Counsel for the Independent Children’s Lawyer and the mother.  The father has not made out his case and on that basis his application for the additional orders must also fail.

5. I would therefore order that the Application in a Case be dismissed and the matter be listed in the February call over for a trial listing.

6. I therefore make the orders as set out at the commencement of these Reasons.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Cole

Associate:

Date: 31 August 2020