Snell and Snell

[2015] FamCA 24

FAMILY COURT OF AUSTRALIA

SNELL & SNELL [2015] FamCA 24

FAMILY LAW – PRACTICE AND PROCEDURE – Application that a judicial officer disqualify themselves for bias – Whether there is an apprehension of bias – Where there is no apprehension of bias – Where the application is dismissed

Family Law Act 1975 (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

APPLICANT: Mr Snell

RESPONDENT:	Ms Snell
INDEPENDENT CHILDREN’S LAWYER:	Patrick Dooley

FILE NUMBER: BRC 4332 of 2012

DATE DELIVERED: 27 January 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 27 January 2015

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT:	Muir Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Robin Slade Jones
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Dooley Solicitors

Orders

UPON THE UNDERTAKING OF THE FATHER MADE TODAY TO COMPLY WITH ORDER 1

It is ordered that:

1. To promote compliance with Rule 1.19 of the Family Law Rules 2004, section 121 of the Family Law Act 1975 (Cth) and section 39 of the Court Security Act 2013 (Cth) the Father is ordered not to electronically record any part of these trial proceedings nor to electronically upload to the Internet or otherwise publish any documents produced in the course of these proceedings.

It is further ordered that:

1. Leave is given to the Independent Children’s Lawyer to provide to the Mother and Father copies of the bundle of subpoenaed documentation proposed to be tendered in evidence in the trial of these proceedings.

2. The Father’s oral applications made today in relation to the following issues:

   a.         the Independent Children’s Lawyer being discharged; and

   b.the Honourable Justice Kent recusing himself from hearing the trial of these proceedings on account of bias

   are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Snell & Snell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4332 of 2012

Mr Snell

Applicant

And

Ms Snell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. There is an application made by the applicant father in the trial proceedings before me to disqualify myself on the grounds of bias.  The principles in relation to bias are well known and are set out in a number of authorities, including Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. The test of whether a judicial officer is biased or ought exclude themselves for bias is an objective one assessed by reasonable standards. That is, would a reasonable observer in the position of the person making the application perceive an apprehension of bias on the part of the judicial officer?

2. Mr Snell contends in support of his application that I remove myself as I have effectively ruled against him at every turn in the case thus far.  My own assessment of that is that this is simply not so.  I have accommodated his requests in terms of the reading of material, notwithstanding the

   
   

   non-compliance with directions for the filing of material and filing of a case outline document, and in the respects thus far I have attempted to give him assistance in the conduct of his case. 

3. This application was brought about by my refusal to discharge the Independent Children’s Lawyer (“the ICL”), an application Mr Snell made.  I have pointed out to him that that was an application heard and determined by the Acting Principal Registrar in advance of this trial.  There was no appeal from the decision of the Acting Principal Registrar.

4. That aside, the role of an ICL is laid down by the statute. In particular, I refer to s 68LA of the Family Law Act 1975 (Cth) (“the Act”). Section 68LA(2)(a), requires an ICL to form an independent view based on evidence available to the ICL of what is in the best interests of the child, and under subparagraph (b), to act in relation to the proceedings in what the ICL believes to be the best interests of the child.

5. Under subsection (3) the ICL is obliged, if satisfied that the adoption of a particular course of action is in the best interests of the child, to make a submission to the Court suggesting the adoption of that course of action.  As is made clear by subsection (4), the ICL is not the child’s legal representative as such and is not obliged to act on a child’s instructions in relation to the proceedings. 

6. [Proceedings here suspended temporarily by reason of verbal interjections of the father.]

7. Section 68LA(5) sets out the specific duties of an ICL under a number of subparagraphs of that section. The Court has not at this point formed a view one way or another in terms of the ICL in this case fulfilling the role described in the section or meeting the specific duties referred to in subsection (5). It is the father’s position that the ICL has not done so.

8. It seems to me that if it be established in the course of the trial that there are matters that ought to have been done by the ICL that have not been done; or things done that might have been done differently in discharge of the role and duties referred to; then that is a matter that can be addressed in submissions in terms of the weight the Court gives to any view expressed at the conclusion of the case by the ICL in terms of submissions addressed to the Court as to what is in the best interests of the child.

9. It may also be, subject to hearing from the ICL and his counsel, that there is a need for the ICL to be cross‑examined if the father is to establish some evidentiary basis for his complaints in these respects.  However, neither of these are matters which in my view lead to the conclusion that the father could have a reasonable apprehension of bias on the part of the Court for not acceding to his application at this point to discharge the ICL.

10. The application for discharge on this occasion was made without notice; it seems, to the ICL or the Court, or at least without any particularisation of the basis upon which the application would be advanced.  The ICL is obviously entitled to have an opportunity to meet any particulars advanced with respect to any challenge as to the role performed by the ICL.

11. More fundamentally, the ICL has obviously gathered evidence in terms of independent evidence via subpoenaed documents and the like and via expert reports that assist the Court in assessing the parenting arrangements or orders that are to be made in the case.  If the ICL were discharged at this point, there would be a substantial risk, in my judgment, that we would not be able to proceed with the trial, and if the trial does not proceed in this week, there would be many months delay before it could otherwise proceed.

12. For these reasons I do not disqualify myself on the grounds of actual or apprehended bias as contended for by the father and his oral application in that respect is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 27 January 2015.

Associate: 

Date:  27 January 2015