Valdez and Frazier

FAMILY COURT OF AUSTRALIA

VALDEZ & FRAZIER [2016] FamCA 68

FAMILY LAW – COURTS AND JUDGES – Oral application for recusal – Apprehension of bias said to exist in every parenting case before the court–Apprehension of bias said to be held by the community at large– Institutional bias alleged–Application dismissed.

Commonwealth of Australia Constitution Act 1900 (Cth) s 72
Family Law Act 1975 (Cth) ss 26, 69ZM, 69ZT, S 70NBA

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Isbester v Knox City Council [2015] HCA 20
Johnson v Johnson (2000) 201 CLR 488
McGregor & McGregor (2012) FLC 93-507
Re Colina: Ex parte Torney , (1999) 200 CLR 386
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300
Wentworth v Rogers [2002] NSWSC 1198

APPLICANT: Mr Valdez

RESPONDENT: Ms Frazier

FILE NUMBER: SYC 2226 of 2013

DATE DELIVERED: 15 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 8 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Self
COUNSEL FOR THE RESPONDENT:	Mr Longworth

SOLICITOR FOR THE RESPONDENT: SWAAB Attorneys

Orders

1. The father’s application for recusal by Justice Le Poer Trench from the hearing of any proceeding between the parties relative to parenting matters is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazier 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 2226/2013

Mr Valdez

Applicant

And

Ms Frazier

Respondent

REASONS FOR JUDGMENT

Introduction

1. The father in these proceedings sought an Order for recusal by an oral application made at a time when the Court was about to hear his Contravention Application which had been filed on 12 October 2015. The recusal application was framed in the following words.

   That your Honour recuse yourself from further hearing the applications brought by the [father] on the basis of apprehension of bias held by the community in general, such apprehension arising from the Family Court of Australia engaging, for the purpose of research, Ms Jennifer McIntosh between 2006 to 2013. The research was commissioned for the purpose of allowing the Family Court of Australia to disregard the Parliament’s clear intent that both parents be regarded as having equal parental capacity with a view to providing a pretext for the Court’s orders that children only live with one parent and restrict time spent with the other parent.

2. In support of this application the father relied upon Annexure “J” to his affidavit sworn 27 January 2016; paragraphs 6 and 7 of his affidavit sworn 19 July 2015 and filed 12 October 2015; a statement purporting to emanate from the Chief Justice, Family Court of Australia, Diana Bryant AO, dated 24 March 2014; and paragraphs 4 and 5 of his affidavit sworn 22 October 2015.

THE EVIDENCE

1. Annexure “J” to the affidavit of the father, above identified,…