TARBELL & SWEFFORD
[2011] FamCA 708
FAMILY COURT OF AUSTRALIA
| TARBELL & SWEFFORD | [2011] FamCA 708 |
| FAMILY LAW – PROCEDURAL – application for disqualification – whether the mother’s application should fail due to her acquiescence – whether any of the five grounds for disqualification raised by the mother had merit – application refused. |
| Family Law Act 1975 (Cth) |
| Aligante & Waugh (No. 2) [2010] FamCA 554 Re JRL; Ex Parte CJL (1986) 161 CLR 342; (1986) FLC 91-738 |
| APPLICANT: | Mr Tarbell |
| RESPONDENT: | Ms Swefford |
| INDEPENDENT CHILDREN’S LAWYER: | Christos Christaki |
| FILE NUMBER: | SYC | 889 | of | 2008 |
| DATE DELIVERED: | 2 September 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 31 August 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Slade Manwaring |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The mother’s application filed 15 August 2011 seeking that I disqualify myself from hearing all matters concerning herself and Mr Tarbell be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tarbell & Swefford 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 SYDNEY |
FILE NUMBER: SYC 889 of 2008
| Mr Tarbell |
Applicant
And
| Ms Swefford |
Respondent
REASONS FOR JUDGMENT
The mother has made an application that I disqualify myself from further hearing the proceedings in relation to D Tarbell (“the child”) born in August 2004. The father opposes that application.
LEGAL PRINCIPLES
The legal principles governing such an application are conveniently set out in Coleman & Hindle and Ors (Disqualification) [2010] FamCAFC 29. In that case the Full Court refers to some well known authorities.
The High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, said inter alia:
... 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. That principle gives effect to the requirement that justice should both be done and be seen to be done.
... The question is one of possibility (real and not remote), not probability.
... two steps ... identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits ... second step ... logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
... Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges.
... if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
In Johnson v Johnson (2000) 201 CLR 488, the High Court said:
... the test is objective ... 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”.
The High Court went on to say that judges are not required to remain as inscrutable as the Sphinx.
Mason J in Re JRL; Ex Parte CJL (1986) 161 CLR 342; (1986) FLC 91-738, said at 352:
... It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. ... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
THE MOTHER’S EVIDENCE
In support of her application, the mother has relied upon an affidavit sworn by her on 15 August 2011 and particularly paragraphs 86 to 155. The affidavit contains, in part, statements of opinion, conclusions or unsupported assertions. In so far as parts of those paragraphs are not admissible evidence, the respondent does not object to such paragraphs being accepted by me as part of the mother’s “general Submissions”.
SHORT BACKGROUND
This matter first came before me on 29 February 2008 after the matter had been placed in the court’s Magellan list. The mother had, inter alia, raised sexual abuse allegations against the father. I made interim orders that the child’s time with his father be supervised at a contact centre. I made injunctive orders against the mother providing information about the allegations to any person or organisation (apart from her lawyers, doctors or the court expert). Dr W was appointed as the court expert to prepare a report for the court. An order was made granting the Independent Children's Lawyer leave to issue subpoenas and both parties were injuncted from taking the child for any further medical examination without leave of the court.
On 10 April 2008 I made an order releasing the report of Dr W dated 3 April 2008 (“DW 1”) to the parties and the Independent Children's Lawyer. The mother obtained a copy of DW 1. The mother left Australia in mid April 2008.
The matter next came before the court on 1 May 2008. The matter was listed before Judicial Registrar Johnston (as he then was). The Judicial Registrar made ex parte orders restraining the removal of the child from Australia; an order that his name be placed on the airport watch list in operation at all Australian international arrival and departure points and that the mother surrender the child’s passport (these orders were made at a time when the mother had unbeknownst to the father, already left the country). The matter was adjourned before the Judicial Registrar on 7 May 2008.
On 7 May 2008 the court was told that the mother had disappeared. The lawyer for the mother sought leave to be excused and that leave was granted. The Judicial Registrar made orders pending further order, that the child live with his father, that the child’s mother deliver the child to his father. The Judicial Registrar also made a recovery order directed to police officers and other officials. The Judicial Registrar gave the father permission to publish the orders that had been made in the proceedings and a copy of the first report from Dr W and distribute them to the mother’s relatives. An order was made addressed to the Vice President, Human Resources of R Limited to provide information regarding their knowledge of the mother’s whereabouts. It is clear from the bench sheet that on that day the Judicial Registrar also, as a result of inquiries made with the Australian Federal Police and DIMIA, became aware the day the mother had left the country was … April 2008. The proceedings were otherwise adjourned before the Judicial Registrar to 14 May 2008.
On 14 May 2008 the solicitor for the father indicated to the court that it had been ascertained that the mother had travelled to Europe. The matter was further adjourned to 19 May 2008.
On 19 May 2008 the mother’s employment entitlements with R Limited were frozen by the Judicial Registrar.
The matter came back before me on 5 June 2008. On that day I ordered that the mother’s name be placed upon the airport watch list and that a warrant be issued for her arrest upon her re-entering Australia. A list of questions addressed to the Australian Federal Police was formulated and the solicitor for the father was ordered to prepare an email containing those questions and send it to the Australian Federal Police. Those questions related to the ability of the Australian Federal Police to become involved internationally in inquiries as to the child’s whereabouts.
The matter again came before me on 10 June 2008. On that occasion, Commander N from the Australian Federal Police and a representative from the Crown Solicitors Office appeared. A discussion took place between myself and Commander N in relation to what could be done internationally to attempt to locate and recover the child. An order was made for the production of further documents from E Airlines. The Central Authority was invited to join the discussion and the matter was adjourned to 17 June 2008.
On 17 June 2008 the matter was adjourned to 15 September 2008 and I indicated I would be prepared to make an order to allow the father to obtain certain banking records of the mother.
On 15 September 2008 I made an order that the father have sole parental responsibility for all issues relating to the passport or other travel related documentation in relation to the child. I made an order under the Australian Passport Act 2005 (Cth) that the father be able to make a request of the Minister to cancel the child’s passport. I authorised the father to be able to cause a copy of the recovery order and a copy of the warrant for the arrest of the mother to be included in the Australian Passport Office’s records and any other databases operated by them.
On 15 December 2008, pursuant to s 121 Family Law Act 1975 (Cth), I granted the father leave to publish the following to assist in the location and recovery of the child:
18.1.The existence of the recovery order dated 7 May 2008;
18.2.The name and date of birth of the child;
18.3.The name and date of birth of the mother …;
18.4.A description of the child and the mother;
18.5.A photograph of each of the child and the mother;
18.6.Details of when the mother disappeared and where and when the child was last seen; and
18.7.Any other fact or circumstance that may assist the Marshal of the Family Court of Australia or any officers of the Australian Federal Police or any officers of the Central Authority to recover the child.
Order 2 made 5 December 2008 is in the following terms:
2. The publication of the information is to be accompanied by a warning that any person recognizing the mother or the child should not approach the mother and should report the recognition of the mother and/or the child as indicated in the publication.
On that day I also made an order certifying particular orders as being able to be registered in the Family Court of New Zealand.
On 3 June 2009 I renewed the warrant that was issued on 5 June 2008 for the arrest of the mother upon her re-entering Australia because the first warrant was about to expire.
In September 2010 the mother and the child were located in City X and the child was released into his father’s care unsupervised by the Dutch authorities on or about 6 September 2010.
On 7 February 2011 Mr Brown, senior counsel, appeared on behalf of the mother. The mother at that time was detained in custody overseas and had not returned to Australia. A procedural direction was made requiring the lawyers for the parties and the Independent Children's Lawyer to have a discussion about proposals in relation to the child communicating with his mother whilst she was overseas and discussions about what arrangements might be made for the child to have face to face time with his mother when she returned to Australia.
On 28 February 2011 I discharged the publication order which I had made on 15 December 2008. I restrained both parties from discussing these proceedings in the presence of the child. I required the father to give the mother particulars of the child’s residential and care arrangements and the school at which he was enrolled.
In March 2011 the mother was extradited to Australia and she remained in custody in Australia until early June 2011. She is now on bail.
On 18 August 2011 the mother brought the current application that I disqualify myself. I noted that the mother wished to correct various matters contained in her affidavit filed 15 August 2011 and I made procedural directions for the father to file and serve written submissions in reply to the mother’s submissions.
The substantive proceedings which were alive at the time I released Dr W’s first report on 10 April 2008 have not yet been determined. There has not been at this stage an opportunity to test any evidence.
THE DOCUMENTS PREPARED BY DR W
Dr W’s first report dated 3 April 2008 (“DW 1”) is annexed to the mother’s affidavit filed 15 August 2011. It records in its letterhead that Dr W is a consultant child psychiatrist and Dr W has signed the report as a “consultant psychiatrist”. The letters after Dr W’s name on the letterhead would indicate that he is a Fellow of the Royal Australian and New Zealand College of Psychiatrists.
Dr W in his report of 3 April 2008 indicated that he had carried out a psychiatric examination of both the mother and the father. The summary of his examination of the mother is at page 8. He concluded that she showed no obvious evidence of any mental illness or personality disorder but an overvalued idea could not be excluded. The Doctor’s report of his examination of the father is contained at pages 14 and 15 of DW 1. The Doctor concluded that the father did not show evidence of any active mental illness or personality disorder.
When dealing with the emotional state of the parents in his conclusions and recommendations, Dr W expands upon his opinion as to the mental state of both the parties.
At pages 22 and 23 of DW 1, the Doctor discusses the history of the mental status of the father and concludes that his current mental state does not represent any threat to his capacity to parent.
In relation to the mother, the Doctor discusses several possibilities, all linked by the notion of excessive sensitivity or even paranoia. He says as follows:
At the most severe end of the spectrum is paranoid schizophrenia. There is no evidence of the requisite degree of disorganisation in her thinking or communication. A lesser but still serious degree is paranoid state. Although such individuals are much more organised, and often can be quite productive in the work place and even in their personal lives, in my view this condition is not present either because she does not show the requisite degree of organisation, suspiciousness and irrationality.
The less serious condition is that of an overvalued idea when a person develops a fixation with a particular world view, often precipitated by a particular incident, and seems to be able to find evidence supportive of that idea from the flimsiness of circumstances. This is not a psychotic disorder, whereas the first two are, and it is my view that if the court is of the view that [the mother] has cast far too wide a net in her thinking, this is the most likely underlying mental state.
Dr W in DW 1, amongst other things, declares that he has complied with the requirements of the Royal Australian and New Zealand College of Psychiatrists Practice Guidelines # 3 Guidelines for Psychiatrists in relation to Family Court of Australia proceedings.
I accept on the face of DW 1, that Dr W (subject to any testing) has the requisite expertise to express the opinion that he has about the mental status of the parents having examined them both.
On 27 May 2008 Dr W provided a further document to the Independent Children's Lawyer (“DW 2”). That document is set out as annexure “O” to the mother’s affidavit in this application (although the third page of that letter has been omitted as an annexure to the mother’s affidavit). The complete document was filed in court on 2 June 2008. The third page of the document contains Dr W’s signature as a “consultant psychiatrist” and declares that he has complied with the requirements of the Royal Australian and New Zealand College of Psychiatrists Practice Guidelines. I have referred to that document as a report. The mother refers to the document as a letter and submits that it is not a report. In the last paragraph of DW 2, Dr W refers to “my report”. A fair reading of that term would incorporate both DW 1 and DW 2, as DW 2 expresses opinions which modify opinions expressed in DW 1. DW 2 updates Dr W’s opinion in DW 1. The mother complains that it is not clear what new information Dr W relied upon which caused him to modify his opinion. However, Dr W in DW 2 sets out that he had received an email from the father on 13 May 2008 to the effect that the mother and the child left Australia in mid April in contravention of the court orders shortly after having received a copy of DW 1 from the court.
It is factually accurate that the mother had left the country with the child after the time Dr W’s first report had been released to her and that there were orders in place for the child to have time with his father at the time she left Australia.
The father in the email indicated to the doctor that the mother had abandoned her job, goods and belongings.
Dr W appropriately spoke to the father’s legal representative to indicate that a direct communication between he and the father was not appropriate. Dr W indicated that he had formed the view that he should communicate directly with the Independent Children's Lawyer. Dr W then says:
My concern about this is that if the situation is as [the father] describes, in my view it represents an abduction which may be associated with more than the usual level of risk to the child, which needs to be taken into account in the manner in which the matter is dealt with by the appropriate jurisdictional authority. [my emphasis added]
Dr W then goes on to make some comments about the fact that this was not a case where the mother was returning home to her family overseas. Dr W then expresses the following opinion:
Under the current circumstances, I am very concerned that my findings during the assessment represented a significant lapse in judgment and that her removal of [the child] from this jurisdiction also represents another very significant lapse of judgment, both of which are out of character and may be indicative of quite serious defects in judgment in respect of other aspects of [the child’s] welfare. In particular, I am concerned that she is terrified and that there is a risk that the immediate prospect of [the child] being taken into care by the nominated jurisdictional welfare Authority and return by the Authority of [the child] to the father might lead her to feel that [the child’s] fate with his father is literally ‘worse than death’, which in turn could lead her to harming [the child] and/or herself as well.
I do not want to be alarmist about this, but I am of the view that it is important that the possibility of a risk of this type needs to be entertained in any actions which the Authority might take. I am assuming that the ordinary course would be for the father to make an application in the appropriate jurisdiction and for orders to be made which would have the effect of returning [the child] to the father through the hands of the Authority.
Under these circumstances, it might be appropriate for the actions of the Authority to be prompt and immediate in order to prevent the mother from taking any intemperate action. Of course bearing in mind [the child’s] age, it would also be appropriate for [the child’s] father to travel to the appropriate jurisdiction to take him into his care as soon as possible. Moreover, appropriate steps should be taken to monitor the mother’s wellbeing in the aftermath of this, as I have indicated above that I am concerned about her welfare as well. [my emphasis added]
Dr W then goes on to opine that any order that would enable the child to spend time with his mother should be professionally supervised in an appropriately supervised and secure setting. Dr W concludes by saying that his report is yet to be tested and that he fully understood that there had not been findings in relation to his report and that the content of his report reflected no more than his opinion based on the material available to him.
ACQUIESCENCE
It is submitted on behalf of the father that the mother acquiesced to me continuing to hear the matter by failing to raise the issue of apprehended bias at any time prior to the hearing before me on 7 February 2011 or indeed at any time thereafter and prior to 15 August 2011. It is submitted that this is an adequate reason to dismiss the application. I accept that it is a fundamental principle that one cannot keep a disqualification application in reserve and make it when a party believes it is most convenient. It is true that the mother in February was represented by senior counsel and instructed by an experienced family lawyer in proceedings before me. The mother however was not back in the country at that time. She told me, and I accept, that she was incarcerated from early September 2010 until early June 2011, apart from a short period of home detention whilst overseas. I do not consider that the mother has unduly delayed the bringing of the application and I would not dismiss her application on the basis of any acquiescence by her.
THE BASIS UPON WHICH THE MOTHER SEEKS THAT I DISQUALIFY MYSELF
Submission 1
The first complaint is that I accepted “an unsubstantiated letter written by Dr [W] on 27 May 2008 as an expert report”.
The relevant text of that letter is extracted above (and referred to as DW 2). The mother firstly complains Dr W expressed an opinion based upon electronic communication received from the father. That much is clear from Dr W’s report. As I have commented above, the underlying facts reported by the father to Dr W do not seem to be a matter of factual dispute.
The next part of the submission asserts that I treated the contents of the letter as evidence and that is an accurate assertion. It was evidence, although untested, in the interlocutory proceedings. The mother asserts that DW 2:
44.1.is a letter and not a report; and
44.2.is concerned with matters outside Dr W’s field of expertise.
As is clear from what is set out above, that I treated DW 2 as a report. Whether it is a report or a revised opinion contained in a supplementary letter is of no particular relevance.
I do not accept that the opinion expressed by Dr W is outside of his field of expertise. On the face of it, Dr W is, in my view, qualified to express an opinion about the mother’s mental status. His expertise to do so, if challenged, is yet to be tested.
The mother next complains that I did not “validate the contents of the letter against any evidence, did not discuss the letter with Dr [W] and did not validate the appropriateness of Dr [W], a child psychiatrist, commenting on [her] mental state or actions”. In as much as the mother complains that there was no oral evidence taken from Dr W or any testing of Dr W, that is not something that is usual during interlocutory proceedings. I have already commented upon the mother’s reference to Dr W being a child psychiatrist and consequently not having a qualification to comment upon her mental state. Dr W, as I have indicated above, is a consultant psychiatrist and on the face of it, holds the appropriate qualifications to carry out the examination of the parties and express the opinions he has about their mental status.
The mother complains that DW 2 does not meet the requirements set out in rule 15.63 Family Law Rules 2004 (Cth) (“FLR”). I do not accept that. Dr W has expressed a conclusion and has indicated that that conclusion is based upon the additional information that he has received (which was not controversial), coupled with all of the information that Dr W had at the time he wrote his first report, including interviewing the mother. His qualifications are on the face of DW 2. As already stated, the doctor has made it clear that the additional information that he has is limited and it is based on information that has yet to be tested.
The mother complains that Dr W, having changed his opinion based on the new information, did not comply with the requirements of rule 15.59(5) FLR in as much as he gave notice to the Independent Children's Lawyer but not to the registry manager of the court. Given the document was filed in court shortly after it was written, in my view nothing turns upon the fact that rule 15.59(5) may not have been strictly complied with.
The mother points out that during my discussions with Commander N on 10 June 2008, I referred to Dr W as a “fairly well respected child psychiatrist”. It is true that I said that and Dr W is a child psychiatrist. That does not mean however he does not have the qualifications to examine and give an opinion about the mental status of adults.
The circumstances in which the letter was written mean that Dr W had no opportunity to directly assess the mother at the time he wrote DW 2. Dr W was giving an opinion about the level of risk that he believed existed in the circumstance arising from the mother’s possible mental health at that time.
Consequently I do not find anything in submission 1 made by the mother that would lead me to disqualify myself.
Submission 2
The second complaint made by the mother is that I had “made a personal interpretation of an unfounded statement in Dr [W’s] letter, in stating that there was a risk that I would kill myself and my son”. The mother complains about my use of the word “kill”.
The relevant text from DW 2 is set out above. I have highlighted parts of it in bold. Whilst it is true Dr W used the word “harming”, a fair reading of the context in which that word was used (particularly being juxtaposed in a sentence with the word ‘death’), justifies my use of the word ‘kill’. Dr W was clearly warning that there was more than a usual risk of serious physical consequences to both the child and to the mother.
I pause to comment that Dr W’s untested evidence was used in the context of a truncated interlocutory hearing. The over reaching principle was to act in the child’s best interests and it was fundamental in doing that to assess the then current risk based on the expert opinion that I had and to make orders consistent with the level of that risk based upon that evidence, even though there had not been the opportunity to test that evidence in the context of the final hearing.
Submission 3
The mother complains that I suggested that her brother, Mr S, assisted her in leaving the country; that he knew where she was living; and assisted the mother in her efforts to remain hidden from the father. The mother relies upon the fact that on 5 June 2008, in discussions with the father’s lawyer who wished to issue subpoenas to the family of the mother, I said:
Let’s say the brother gets a subpoena and he rings his sister in [Europe] and says, ‘the net is tightening, I think we’re about to be – your location is about to be found out, you better run’.
I find that it is not a reasonable conclusion that any observer might reach that those remarks amounted to a suggestion that the applicant’s brother so assisted the mother in leaving the country or that I was making a finding, whether adverse or otherwise, against the applicant’s brother.
I did not determine, as the mother asserts, that her brother knew of or was involved in some way in the mother’s departure from Australia and relocation in Europe. I certainly have no way of knowing one way or the other whether or not the mother’s brother had knowledge of his sister’s whereabouts in Europe and I note the mother asserts that he did not. I point out again that what I was dealing with on 5 June 2008 were the risks as I then knew them. Given what was in DW 2, I was mindful of attempting to do everything possible to maximise the chances of finding the child and recovering him and I was mindful of Dr W’s concern that the mother was terrified at the time and the risks that Dr W’s opined might be triggered if there was an immediate prospect of the child being taken into care.
There is nothing in the mother’s third submission that would lead me to disqualify myself.
Submission 4
The mother complains that I make the finding that her “actions are a criminal matter when that is not necessarily the case”. The mother refers to a statement I made in discussions with the father’s lawyer and the Independent Children's Lawyer in court on 5 June 2008 where I said:
I mean, why can’t the federal police be encouraged to involve their contacts overseas as if it were a criminal matter, which it is?
The first point to make is that on the face of it, it was asserted that there was a prima facie case that the mother had breached s 65Y Family Law Act 1975 (Cth). Commander N gave evidence on that day that s 65Y created a criminal offence. I referred to a “criminal matter” not that the mother was guilty of a criminal offence. The mother now faces a criminal trial on those charges commencing on 31 October 2011. A parenting order was in force in favour of the father. The mother was a party to the proceedings in which the order was made. The mother does not deny that she took the child from Australia to a place outside Australia without written consent or court order. There is a maximum penalty under the section of imprisonment for three years. The mother says she will argue at her trial that there are defences available under the section and she will rely upon her fear for the child’s safety.
The quotes that have been selected by the mother need to be placed in the context of the overall discussion that was happening in court about what methods might be used to bring about the return of a missing child presumed to have been in the company of a single adult, namely the mother. No ordinary comprehension of the statements made would suggest that I was making a final finding about the mother’s guilt or innocence.
In court on 10 June 2008 I stated to Commander N of the AFP:
Let us say this woman had taken drugs from Australia, rather than a child, what would your ability be to get her back here, in one piece, if she was likely to self-harm herself if she knew you were after her?
The mother asserts that I attempted to convince Commander N that she should be treated like a serious criminal and that I used an offensive analogy by likening her actions to that of a drug dealer. The mother asserts that the act of dealing in drugs is not comparable to the act of trying to protect a child.
The comment made by me needs to be seen in context. It was part of a discussion with Commander N about whether or not it would be possible to seek extradition of the mother if she was found. Commander N expressed the view that if a person had taken drugs from Australia the Federal Police would seek the extradition in such a matter and that it would not be impossible to seek extradition for somebody to face charges under s 65Y FLA.
There is nothing in the words relied upon by the mother in this submission which supports a finding of apprehended bias.
Submission 5
The mother complains that by encouraging the distribution of material I have “predetermined that the father is the preferred custodian”. The mother claims that I have taken up the argument in favour of the father by encouraging the distribution to foreign authorities of Dr W’s material. The mother complains that I made a prejudgment that the child should be placed in his father’s care and returned to Australia, prior to any investigation of the facts surrounding her departure from Australia. I place little weight on that submission given that there could not have been any investigation of the facts surrounding the mother’s departure from Australia which involved hearing the mother, the mother having an opportunity to test witnesses who gave evidence adverse to her case and the mother being tested, given that it is an undisputed fact that she removed herself in 2008 from being an active party in the proceedings. The mother complains that the child has now come into his father’s care prior to any of the allegations initially raised by the mother being tested. In fact I was not the judicial officer who made the order placing the child in the father’s care on an interim ex parte basis. Again, it is difficult to place any weight upon a submission that the court was in some way responsible for what happened.
The mother further complains about the publication order I made on 15 December 2008 saying that it has not been in the child’s best interest to have extensive adverse publicity against his mother released on the internet, in newspapers and in other forms of public media by the father as a result of the publication order that has been made. No evidence that the mother relies upon would indicate that an inappropriate balance was struck when the publication order was made.
The publication order is something that is common (almost to the point of being inevitable) in the context of cases involving the disappearance of a child. I reject the mother’s assertion at paragraph 138 of her affidavit that “to the average person, it would appear that Watts J has taken an unusually active role in seeking to locate us, beyond that which would normally be expected of a judge presiding over a Family Court”.
A publication order by its very nature reverses the normal position that exists under s 121 Family Law Act 1975 (Cth). That section is designed, inter alia, to protect the anonymity of children. The risks identified in Dr W’s material meant that the child’s best interests were served by suspending that anonymity so that effective attempts might be made to locate him.
The mother in her submissions points to a number of things that were said to have happened in the context of interlocutory proceedings concerning the location and return of a missing child. The mother complained that the existence of the publication order of 15 December 2008 gave licence to the father to exceed its bounds. I have set out the terms of the order. The mother conceded in oral submissions that any assertion that the father exceeded the terms of the publication order could not be a basis for my disqualification.
The mother at no time sought to appeal the order I made for publication. As soon as I was able to, on my own motion, once the child was recovered, I discharged that order.
Nothing that I have said necessarily excludes the mother from challenging anything that Dr W has said in either of his reports and she has indicated she will make an application for a new single expert to be appointed.
CUMULATIVE EFFECT
Taking all the mother’s complains together, I find that the orders, observations and statements which I have made, relied upon by the mother, fail to demonstrate any “logical connection” to the feared deviation by the mother from the course of me deciding the case on its merits.
The allegations made by the mother against the father, which Dr W, who is yet to be tested, discounts significantly, are clearly yet to be tested in a final hearing.
I reject the mother’s submission that I exaggerated the suggestion of self harm contained in Dr W’s second report.
All the remarks have to be read in context. They were made in interlocutory proceedings in circumstances where another judicial officer had found that it was in the child’s best interests for an interim residence order in favour of the father to be made; a child had disappeared, no one was able to find that child some six weeks later or even six months later.
As Cullinan J observed in Johnson & Johnson:
80. It is important to keep in mind that the notional, fair-minded observer is a rational person not unacquainted with the legal process, the oath or affirmation that judges have taken and judicial obligations generally, and in broad terms, what has occurred and may occur in the case before and after the challenged conduct.” [my emphasis added]
What had occurred in this case was of course the child’s disappearance.
I conclusion I also make reference to s 69ZR Family Law Act 1975 (Cth). These are child-related proceedings. The court may make a finding of fact or determine a matter or make an order in relation to an issue without being required to disqualify himself or herself from a further hearing of the proceedings (see Aligante & Waugh (No. 2) [2010] FamCA 554).
I conclude that I have not shown apprehended bias against the mother. I dismiss the mother’s application that I disqualify myself from hearing the current proceedings.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 2 September 2011
Associate:
Date: 2.9.2011
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