Snell and Snell (No. 2)

[2015] FamCA 32

FAMILY COURT OF AUSTRALIA

SNELL & SNELL (NO. 2) [2015] FamCA 32

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)

APPLICANT: Mr Snell

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

FILE NUMBER: BRC 4332 of 2012

DATE DELIVERED: 28 January 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 28 January 2015

REPRESENTATION

THE APPLICANT:	In person
SOLICITOR FOR THE RESPONDENT:	Muir Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Robin Slade-Jones

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Dooley Solicitors

Orders

It is ordered that:

1. The Father’s oral application made today in relation to the Honourable Justice Kent recusing himself from hearing the trial of these proceedings on account of bias is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Snell & Snell (No. 2) 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. The father has renewed, or made another oral application that I disqualify myself on the grounds of bias. 

2. There are two bases for the father’s application currently.  One is, that when I raised the topic with the father of a number of witnesses he has foreshadowed he seeks to call to evidence, I raised that in the context of procedural fairness to the other parties to the proceedings, so far as having advance notice of what the evidence of each of these witnesses would be beyond generalisations.  I attempted to explain to the father the reasons for procedural fairness, and how justice is served by them.  In my judgment, in a case such as this, each party is entitled to know what evidence will be called in the case of the other party. 

3. The proceedings have been on foot since August 2013.  The matter has proceeded through the usual case management procedures of the Court, including a number of directions hearings carried out by registrars.

4. As was pointed out by counsel for the Independent Children’s Lawyer (“the ICL”), the current proceedings were commenced on 27 August 2013 by the father, by the filing of his Initiating Application filed on 27 August 2013.  I have explained to the father the procedural fairness involved in witnesses sought to be relied upon providing their evidence-in-chief via affidavits filed and served on the other parties.  I have referred to the feature that the case has proceeded through the usual case management hearings, or directions made, by registrars.

5. Trial directions were made on 2 June 2014, requiring that each party file and serve affidavits by 26 July 2014.  The witnesses to whom the father has referred have not provided affidavits, and no affidavits from any of those witnesses have been provided in advance to the mother or to the ICL.

6. The solicitor for the mother objects to a process which would involve the father calling witnesses who have not provided affidavits, on the basis that he would have no reasonable opportunity to address whatever it is they might say by way of evidence-in-chief.  Likewise, counsel for the ICL adopts a similar approach.  I sought to address this by seeking to obtain written statements from the witnesses that would form the basis of their evidence-in-chief, but the father has objected to that on the basis that he says he has not had time, and would not have time, to do so. 

7. Against the background I have referred to, it would seem to me that there have been many months available to the father for him to provide in affidavit form, similar to the affidavits from himself and Ms W, the affidavits of any of the other witnesses. 

8. The second basis upon which the father relies for the current application that I exclude myself is what he terms “my acceptance” of evidence earlier referred to whilst he was being cross-examined.  What I raised in the course of the father’s cross-examination was the fact that there existed evidence, sourced to the child’s treating psychiatrist, of an assessment made by that psychiatrist that the child suffers some anxiety. 

9. The father converts my statements into being my acceptance of that evidence without qualification.  That is not the position.  I am yet to hear all the evidence in the case.  I am yet to hear the mother be cross-examined, for example.  I was simply addressing with the father, in answer to a question he posed to the Court, “Where is there any evidence that the child suffers from anxiety?” 

10. I gave reasons yesterday in terms of the principles concerning a judge recusing themselves for actual or apprehended bias, and there is no need to repeat those.  I am of the view that no reasonable objective lay observer, in the position of the father, could conclude that I have demonstrated bias in the respects he contends for. 

11. I therefore dismiss the father’s oral application that I recuse myself. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 28 January 2015.

Associate: 

Date:  28 January 2015