Smythe and Leopold (No. 2)

[2011] FamCA 978

FAMILY COURT OF AUSTRALIA

SMYTHE & LEOPOLD (NO. 2) [2011] FamCA 978

FAMILY LAW - COURTS AND JUDGES – Application by mother to have judge disqualified on grounds of perceived bias – Application dismissed

FAMILY LAW - PRACTICE AND PROCEDURE – Application by mother for a change of venue- Application dismissed - Application by mother for appointment of new Independent Children’s Lawyer – Application dismissed – Final application listed for hearing on a fixed date – Leave given to parties to file and serve material

Family Law Act 1975 (Cth)

British American Tobacco Australia Services Limited v Laurie & Ors [2011] HCA 2

APPLICANT: Mr Smythe

RESPONDENT: Ms Leopold

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: LNC 391 of 2008

DATE DELIVERED: 7 December 2011

PLACE DELIVERED: Hobart

PLACE HEARD:

JUDGMENT OF: Benjamin J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms E Turner

SOLICITOR FOR THE APPLICANT: Levis Stace & Cooper

COUNSEL FOR THE RESPONDENT: Mr M Crisp

SOLICITOR FOR THE RESPONDENT: Maurice Kriss

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Commission of Tasmania

Orders

1. The application in a case filed 24 November 2011 be dismissed.

2. These proceedings be listed for a four day hearing commencing 10.00am 16 April 2012 at Hobart.

3. Leave be given to the parties to file and serve any material upon which they intend to rely on or before 4.00pm on Wednesday 29 February 2012.

   IT IS DIRECTED

4. A copy of the reasons for these orders be taken out and placed on the court file.

   IT IS CERTIFIED

5. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smythe & Leopold (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 391 of 2008

Mr Smythe

Applicant

And

Ms Leopold

Respondent

REASONS FOR JUDGMENT

1. This is an application by the mother, Ms Leopold, filed through her counsel on 24 November 2011.  It is supported by an affidavit of the mother filed on the same day and sworn the day before.  The application seeks, in essence, five things: firstly, that I disqualify myself from the hearing of this case; secondly, that the proceedings be transferred to the Melbourne Registry of the Family Court; thirdly, that an Independent Children’s Lawyer be appointed in Victoria;  fourthly, that the child be interviewed by a psychologist, that the mother be interviewed by a psychologist and that the father be interviewed and examined by a psychologist; and finally, that the psychological reports of the mother of Mr J be dispensed with.

2. Those applications are opposed by both the father and the Independent Children’s Lawyer, Mr Fitzgerald.  The material upon which the mother relied includes paragraph 27 of her affidavit where it is asserted that some statements were made by the Independent Children’s Lawyer such as would warrant an injunction to restrain the Independent Children’s Lawyer from continuing to act.  The material contained in paragraph 27 of the mother’s affidavit appears to be in relation to a discussion which occurred in November 2009 or perhaps even November 2010.  It appears to be material which was accurate, or occurred in the construct of a negotiation, and therefore would not be admissible.

3. Even if admissible there is no evidence from Mr McVeity who was present supporting the material and further material which, although not on oath, is denied by the Independent Children’s Lawyer, although I need not go to that, having regard to the circumstances at the very start I would not allow that to be read at this stage on this application. 

4. The primary application, or the initial application is that I disqualify myself.  I had raised that in an order as to whether I ought to and I raised that on this basis, that I know, that a report had been prepared by Mr J which raised serious issues about the mother’s care of the child and further that once the mother received that report that the mother and the child may be at risk if the child were to remain in the care of the mother.  I listed the matter on an ex parte basis and invited the Independent Children’s Lawyer to attend and gave him the report.  I made it clear that I was concerned about the procedural fairness for the mother as well as the need to protect the child.

5. I made no finding of fact and I was very careful in relation to the material that was before me.  The Independent Children’s Lawyer subsequently sought and obtained leave to have the report released and made it available to the state welfare authorities who in fact took proceedings in the Magistrates Court of Tasmania.  The child was removed from the care of the mother by an order made under the State legislation.  The matter came back before me and I determined that the child should, in the interim, live with the father once the state order had expired.  Again, I made no findings of credit and I expressed to the mother the need to have the matter heard and the matter resolved without delay.

6. I listed the matter for hearing in February 2011.  Shortly before that hearing the mother’s then representative sought an adjournment of the hearing so that a psychiatric report could be prepared in respect of the mother.  I acceded to that request and the proceedings were then adjourned for hearing before, I might add, a different judge in Launceston in June or July 2011.  For one reason or another, and it is not clear to me, the proceedings did not go ahead on that date.  As a consequence the proceedings remain in my docket.

7. I invited counsel for the mother to set out why I sought to disqualify myself.   The whole thrust of his argument was that there is a perception that I may have been affected to the detriment of his client in terms of prejudice by reading the report of Mr J and in fact he seeks an order that I prevent the report from going any further.  If I were to disqualify myself that would be ultra vires my power.  If I were to disqualify myself the report would need to go before another judge of this Court, or a magistrate of the Federal Magistrates Court who would need, of course, to read that material and make a determination as to whether that material ought to be admitted in evidence or not.

8. I am not satisfied, bearing in mind those submissions, that a reasonable person could conclude that there is a possibility that I have formed a view in respect of these proceedings.  I have not made any findings on interim matters as was discussed by the High Court British American Tobacco Australia Services Limited v Laurie & Ors[1] and I rightly adopt a fairly robust approach in relation to disqualifications.  Accordingly I do not intend to disqualify myself from this proceeding.

   [1] [2011] HCA 2.

9. The second issue is the appointment of the Independent Children’s Lawyer.  The Independent Children’s Lawyer has been appointed and if an application is to be made for him not to act it ought to be put in a proper form and proper material should be put before the Court including if the mother wishes to rely on paragraph 27 of her affidavit, if she is able to rely on that paragraph, which I have not permitted.   

10. The next is in relation to the psychological or psychiatric evidence.  The whole reason for the adjournment of these proceedings in February of this year was to enable the mother to provide a psychiatric report.  The mother attaches some material to her affidavit but I am not sure whether that goes as far as she had hoped for but that, at the end of the day, is a matter for her not a matter for me.  As to the interviewing of the child, the child was interviewed by a family consultant and was observed by the family consultant in the care and supervision of each of the parents. 

11. Mr J’s report will survive or otherwise over the course of the hearing.  If it is rejected that it is open for a court then to adjourn the proceedings and order a further report if that is appropriate, he is a single expert after all.  It is open for his findings to be challenged.  It is open for the underlying facts upon which he makes his findings to be challenged and it is open for his independence to be challenged during the course of the hearing.  I do not make any determination of that at this time.  This matter must proceed to a hearing.  I understand all of the material is ready on the part of the Independent Children’s Lawyer and Ms Turner on the part of the father.

12. The child was interviewed by a family consultant.  There are real issues about a child being interviewed, re-interviewed and re-interviewed again.  Mr J made some comments in relation to that in his report.  Whether that has been impeached in any way will no doubt be a matter for the trial but I do not at this stage intend to have this child re-interviewed again bearing in mind the state of the evidence as it currently stands.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 7 December 2011.

Associate:     

Date:              7 December 2011