Torney, Ex parte- Re Carter

[1998] HCATrans 434

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M106 of 1998

In the matter of -

An application for Writ of Prohibition against THE HONOURABLE JUSTICE CARTER of the FAMILY COURT OF AUSTRALIA

Respondent

Ex parte -

PRESIDENT TREVOR DONALD TORNEY

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 27 NOVEMBER 1998, AT 9.42 AM

Copyright in the High Court of Australia

HIS HONOUR:   Mr Torney, you have this morning filed your affidavit sworn, I think, today, about why there was no appearance last time.  I have read that affidavit.  You should proceed now on the assumption that you have leave to renew the application and you should go therefore to what you want to tell me about the main application you want to make, the application for prerogative writs directed to Justice  Carter.  Do you understand that?

MR TORNEY:   Yes, sir.

HIS HONOUR:   I think the Registrar may have written to you about the time that you may have to present your argument.  Subject to anything that you want to say to me, I would propose to allow half an hour for the making of the submissions.  Do you want to say anything about that?

MR TORNEY:   Just that because I am unrepresented, sir, I think probably the more I say the more mess I will get into, so I think I will rely basically on my affidavit as it stands and just state that there are – I had to write this down, I am sorry – authorities in law, the Australian Law Report, the Family Law Cases, CCH and the Family Law Reports which – I cannot memorise anything, sir, I am sorry, so I am not able to help there, but there are cases there and numerous ones that I have read and, as an unprofessional person and from advice from a barrister and a solicitor, they tell me that I have a case and that it has been put into the affidavit as best I can put it.  I can just tell you that Judge Carter is biased against me.  I feel that she is biased.  I have had that comment from other people attending the court with me, and I think the reasons are pretty obvious and I think I will just have to leave it up to you to decide whether there is a case in law.

HIS HONOUR:   Yes.  What application or proceeding is still alive before Justice Carter?  What has she got that is pending at the moment?

MR TORNEY:   What the problem is that I am not seeing my children.

HIS HONOUR:   No, I understand that, but what is the immediate application that she has to decide that you say she will not ‑ ‑ ‑

MR TORNEY:   There is a contravention against the mother because I have court orders – current court orders to see my children.  I have not seen them for nine weeks and she has contravened that.  Now, I put in an application for contravention.  Judge Carter just keeps adjourning it and has told me that it is my fault that my children are not seeing me because I have made this application to the High Court.

HIS HONOUR:   So at the moment you have made an application for orders following what you say is a contravention and that is directed to the mother.

MR TORNEY:   Yes.

HIS HONOUR:   Is there any other application that Justice Carter is about to hear or will hear or might hear that concerns you?

MR TORNEY:   I am about to put in a form 7 for custody and she would then, because she says that Judge Frederico has made her the judge manager in this case, then until this Court does something about it she is going to continue to hear the case and there is no hope in the world for my children as long as she is hearing that case.

HIS HONOUR:   Yes.

MR TORNEY:   It is very difficult for me to divide in my head the grounds for appeal in the Family Court and the actual grounds for prohibition in this Court to stop her from being heard.  I have to sort of toss it around a fair bit to understand it.

HIS HONOUR:   Yes.  Is there anything else that you want to say to me about the application?

MR TORNEY:   I cannot think of anything, no.  I think I wrote it all in the affidavit.  It took a fair while to do.  I think it is all there.

HIS HONOUR:   All right.  It is now quarter to 10.  I will come back at about 10 o’clock.  I will go and think on what you have said and think on what you have read and I will come back at 10 o’clock and I should then be in a position to tell you the outcome of the application.

MR TORNEY:   Thank you.

HIS HONOUR:   I will adjourn until 10 o’clock.

AT 9.48 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.02 AM:

HIS HONOUR:   One matter that I omitted to mention earlier, and should have, is that the Registrar has provided a certificate to the effect that she has been informed by the Australian Government Solicitor, solicitors for the respondent, that the respondent will abide by the decision of the Court save as to costs.

All that means, Mr Torney, is that there will be no appearance or argument on behalf of the judge.

This is an application for an order nisi for prohibition directed to the Honourable Justice Carter of the Family Court of Australia.  The draft order nisi that has been filed reveals that the applicant, Trevor Donald Torney, would allege one ground for the grant of prohibition, namely that:

There is a reasonable apprehension of bias on the part of the respondent. 

The application arises principally, but not entirely, from the conduct of a hearing in the Family Court before Justice Carter on 8 September 1998.  It is, however, necessary to deal with some of the history of proceedings in the Family Court in which the applicant has been engaged in order to understand what happened on 8 September and thereafter.

On 1 August 1997 Justice Dessau made orders that two children of the applicant should reside with their mother, Veronica Vette, but have contact with the applicant.  On 31 August 1998, a little over a year later, the applicant applied ex parte for leave to file an application for orders that the two children reside with him.  That application for leave to file an application was heard by Justice Carter but was dismissed.  On 2 September 1998 the applicant again applied for leave to file an application for orders that the children reside with him.  He alleged that there was new evidence and that the circumstances had changed.  That application came on for hearing on 3 September 1998, the applicant then being represented by a solicitor.  The hearing did not proceed on that day but was adjourned to 8 September, an order being made that a copy of the draft substantive application and accompanying affidavit be served upon Ms Vette.

On 8 September 1998 the application for leave came on for further hearing before Justice Carter.  It will be necessary to deal in some detail with what happened in the course of that hearing but, before doing so, it is desirable to complete the chronology of events upon which the applicant relies.  On 15 September 1998 the applicant appeared before Justice Carter, as he says:

pursuant to an order made on 14 September 1998 by her Honour authorising the Federal Police to arrest me and bring me before the Family Court. 

After he had appeared, the judge told the applicant that he was free to leave the court.  The applicant then made an oral application to the judge that she disqualify herself from the further hearing of his case on the ground of bias but her Honour refused to disqualify herself.

The applicant has told me this morning that he has pending before Justice Carter an application alleging contravention of certain orders by the mother.  He understands that other applications that he may make in relation to his children are applications that will be heard by Justice Carter. 

In his affidavit in support of the present application, the applicant makes four complaints which he describes in the following terms:

a)  The giving of legal advice from the bench to the respondent [Ms Vette] and exceeding the limits of judicial involvement in the advising of unrepresented litigants. 

b)  The making of orders favourable to the respondent and adversely to me in the absence of any admissible evidence from the respondent and ignoring expert medical evidence in relation to the children’s welfare.

c)  Further, or alternatively, in the affording of procedural fairness to the respondent and the denial of procedural fairness to myself as evidenced by the making of the order suspending contact with my children upon the unsworn evidence of the respondent, despite objection, and not allowing sworn evidence of myself in reply.

d)  Further or alternatively, in summarily preventing me from having access to my children but giving me no reasons for that course, her Honour treated me as undeserving of even minimal respect as a human being.

To those matters the applicant adds two further considerations.  He swears that:

When the learned judge spoke to Mr O’Loughlin –

the solicitor who appeared for the applicant before her –

she was - quite apart from the words she used - abrupt, brusque and impatient.  By contrast, when the learned judge addressed Ms Vette, she spoke more slowly, sympathetically, and in a different and quieter tone. 

The applicant concludes his affidavit saying that:

In light of the foregoing I am of the opinion that her Honour Justice Carter will not be impartial and dispassionate, either in relation to my current application for leave to file an application against Ms Vette for ongoing contravention of the existing contact orders or in any applications I may seek to instigate in relation to the welfare of my children.

The principles to be applied in an application such as the present are not in doubt.  They are laid down in Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258 to 263 and were applied in Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 293 to 294; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 372 and Vakauta v Kelly (1989) 167 CLR 568. The question which now arises is whether it is arguable that the circumstances show that the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in the matter or matters before her.

It is convenient to deal first with the question of the judge, as the application has it, “giving legal advice from the bench” to Ms Vette.  A judge hearing a matter in which one party is legally represented, and the other is not, is often in a difficult position.  It is clear that the judge cannot conduct the case for the unrepresented party but it is equally clear that the judge must ensure that there is a fair trial of the proceeding.  To that end it may be that a judge may, or ought to, advise an unrepresented litigant of the rights that that person has.  See, for example, albeit in the context of a criminal trial, Macpherson v The Queen (1981) 147 CLR 512. In this connection then it is desirable to say something more about the course of proceedings on 8 September.

As I have already noted, the application that was before the judge was an application for leave to file an application concerning the residence of the children.  Soon after the proceedings began the judge asked Ms Vette whether she had received the application and annexures that she had directed should be served upon her.  She then explained to Ms Vette that:

Now the purpose of today's proceedings is to give you an opportunity to tell me what you want to say about whether or not Mr Torney should be allowed to file an application seeking a change of residence of the children. 

The judge then asked Ms Vette whether she opposed the application for leave to file.  Ms Vette responded by giving her view on several aspects of the merits of the matter.  After some discussion of these matters the judge said to her that there appeared to be two possibilities to consider, namely:

the possibility of the children living with him on a full-time basis, or there is a possibility of them living with you and there being no contact whatsoever with their father. 

The judge went on to explain that no decision could be made on which of those courses of action should be followed without there being further investigation. 

The judge returned to the question whether the applicant should be given the leave that he sought.  The solicitor for the applicant informed the judge that the applicant disputed a lot of what Ms Vette had said and he referred the judge to the affidavit evidence that the applicant had filed, in particular to a report that had been prepared by a psychologist.  After some further discussion the solicitor for the applicant said:

Your Honour, Ms Vette has made a number of allegations which have not been put on affidavit, and I would ask your Honour to hear from my client in order to respond to the allegations in his own words.

HER HONOUR:   No, I am not going to do that at this stage. 

After some further discussion, the detail of which does not now matter, the judge adjourned briefly to make inquiries about the parties obtaining counselling.  On resuming the hearing, the judge informed the parties that the matter would be fixed for 1 October, that is to say about three weeks later.  Although the judge did not say then that she would grant leave to the applicant to file the application that he had foreshadowed, she made an order to that effect later and the discussion proceeded on the basis that there would be leave.

The judge then raised the question of where the children should stay in the three weeks or so between the hearing and the return date for the application.  She explained to Ms Vette that there appeared to be several choices which she described as being:

I can leave the children with their father and provide for contact to you, or I can have the children returned to you and provide for further contact to their father, or I could have the children returned to you and provide for no contact to their father, or I could leave the children with their father and provide for no contact with you, or do some combination of those things. 

Ms Vette indicated that her preference was that the children should return to her and that there should be no further contact with their father in the intervening period of three weeks. 

The judge then asked the solicitor for the applicant what he wanted to say about the place of residence for the children in this intervening period.  The solicitor told the judge that it would be the application of the applicant that the children reside with the father and that there be contact with the mother.  In support of that application he pointed to some parts of the affidavit of the psychologist that had been filed.  The judge raised with the parties whether it was appropriate to make an order that the children not be interviewed by psychiatrists or psychologists without leave in this intervening period.  Both parties agreed that that should be done.

The judge then gave reasons for making orders, including orders dealing with the interim residence and contact arrangements to be made for the children.  Among the orders which she then made were an order that the father, that is the applicant, forthwith return the children to the mother and that:

pending the adjourned hearing of this matter, all contact between the father and the said children be suspended.

By consent, an order was made restraining the mother and the father from taking or permitting the children, or either of them, to any psychiatrist or psychologist pending further order of the Court.

As I have earlier indicated, no application was made at this stage that the judge disqualify herself from hearing further matters involving the applicant.  That application was made later. 

I return then to the first of the four complaints that the applicant has made, that concerning the giving of legal advice from the bench to the respondent.  It is enough if I say in respect of this ground that I am not persuaded that it is arguable that the judge exceeded what her duty required her to do, namely to inform an unrepresented litigant of the rights that were in issue.

The three remaining complaints stand in a different case.  They are complaints that focus upon the fact that the judge made orders concerning interim residence and contact with the children in circumstances where the applicant had sought to challenge some of the statements that the respondent had made in the course of her submissions.  It is important in this regard to recall the nature of the question that it is sought to agitate by the application for an order for prohibition.  The question is not one of whether the orders that were made for interim residence and contact were right or wrong.  The question is not whether the orders that were made for interim residence and contact were founded on sufficient evidence.  The question is whether the course of events reveals that the parties or public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions that are involved in the proceeding.  No doubt in assessing whether that is arguable it is important to bear in mind that the applicant maintains that his solicitor was treated differently from the way in which the unrepresented litigant was treated.  No doubt, also, it is important to bear in mind that the proceedings are necessarily ones which evoke considerable and very deeply felt emotions.  The sensitivity of the proceedings is self evident.  But the central question is whether the circumstances might lead the parties or public to form the reasonable apprehension that I have earlier described.

I am not persuaded that that proposition is arguable in the present circumstances.  It follows that in my opinion the application should be dismissed.

The order is application dismissed.

I will adjourn.

AT 10.30 AM THE MATTER WAS CONCLUDED