TABANO & YABON

[2018] FCCA 2313

FEDERAL CIRCUIT COURT OF AUSTRALIA

TABANO & YABON [2018] FCCA 2313

Catchwords:
FAMILY LAW – Application for recusal on grounds of apprehended bias – where Orders were made in February 2018 beyond intention of Judge – where Judge conceded reasonable person could apprehend bias – application successful.

Applicant: MS TABANO

Respondent: MR YABON

File Number: BRC 8367 of 2016

Judgment of: Judge Egan

Hearing date: 13 August 2018

Date of Last Submission: 13 August 2018

Delivered at: Brisbane

Delivered on: 13 August 2018

REPRESENTATION

Counsel for the Applicant: Ms Oakley

Solicitors for the Applicant: Jurgensen Horne Lawyers

Respondent:	Self Represented
Counsel for the Independent Children's Lawyer:	Ms Carmody
Solicitors for the Independent Children's Lawyer:	Gary Rolfe Solicitors

IT IS ORDERED:

1. That the matter be adjourned back to the Duty Judge’s callover list for a trial date to be allocated.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8367 of 2016

MS TABANO

Applicant

And

MR YABON

Respondent

REASONS FOR JUDGMENT

1. The matter is listed before me today for a trial of parenting issues and sole parental responsibility consideration.  An application has been made on behalf of the mother for me to recuse myself based upon orders that were made by me on 27 February 2018.  What transpired on 27 February 2018 was that the mother had, prior to the hearing on that day, caused a communication to be made to my chambers whereby my Associate had been informed that the mother was in hospital, giving birth to a child.  

2. Mr R, the Independent Children’s Lawyer (“ICL”) in this matter, was as concerned as me concerning the lack of information about care arrangements which had been made for the children during any period of hospitalisation on behalf of the mother.  Being concerned as to there being no information provided either to the Court, to the ICL, or to the father, as to what arrangements were so in place, I ordered that the children live, until further order, with the father.  That was done on the basis that I was unprepared to countenance a situation where, through a lack of communication, either deliberate or innocent, the father, at the least, had not been informed as to what arrangements had been made for the care of the three children of the marriage. 

3. It also must be said that neither the ICL nor the father knew which hospital the mother had been admitted to.  There was, in those circumstances, no means by which she was able to be contacted about any proposed orders that were to be made on the day.  In any event, if she was giving birth or in labour, she would not have been in a position to helpfully receive any such information. 

4. In those circumstances, I asked Mr R and Mr Yabon, the father, to craft appropriate draft orders which would countenance the children residing with the father until further order, and that orders for time to be also crafted for the children to be with their mother.  In that regard, I note that I recorded that the mother was in hospital, that there was no direct evidence as to the reason why she is in hospital, but that the only communication that had been made was that she was in labour.  I also record that Mr R, in his capacity as ICL, was in agreement with my doing so. 

5. However, as it transpired, the draft orders which were sent to my chambers, and which ultimately I erroneously approved, were far greater in extent than what I had envisaged on the day.  What I had envisaged was merely that until further order the children live with the father until either agreement was made to reinstate the arrangement prior to 27 February 2018 or, alternatively, for other short-term orders to be made allowing for the matter to come back before the Court after a short period of time upon the mother’s discharge from hospital.  

6. The orders which I approved were of far greater extent than that and, for that, I offer my regret.  In those circumstances, it is appropriate that an application for recusal has been made, and I accordingly recuse myself from further hearing this matter.  There is an interim application for variation in terms of time that has been raised and, accordingly, I direct that this matter be re-listed today before the duty judge, his Honour Judge Coates, for him to deal with that application.  Thank you.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 21 August 2018