Valdez & Frazier (No 3)
[2015] FamCAFC 205
•28 October 2015
FAMILY COURT OF AUSTRALIA
| VALDEZ & FRAZIER (NO. 3) | [2015] FamCAFC 205 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Disqualification – Where the applicant father seeks that one of the members of the Full Court be disqualified on the basis of apprehended bias – Where the test is not satisfied – Where the applicant father fails to appreciate that the test is objective, not subjective – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the respondent mother seeks her costs on an indemnity basis or in the alternative on a party/party basis – Written submissions ordered. |
| Family Law Act 1975 (Cth) – s 4AB |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 |
| APPLICANT: | Mr Valdez |
| RESPONDENT: | Ms Frazier |
| FILE NUMBER: | SYC | 2226 | of | 2013 |
| APPEAL NUMBERS: | EA EA | 111 114 | of of | 2014 2014 |
| DATE DELIVERED: | 28 October 2015 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | In Chambers – by written submissions |
| JUDGMENT OF: | Strickland J |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 24 July 2014 24 July 2014 |
| LOWER COURT MNCS: | [2014] FCCA 1918 [2014] FCCA 1639 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Longworth |
| SOLICITORS FOR THE RESPONDENT: | Swaab Attorneys |
It is ordered that:
The application by the applicant father in the application in an appeal filed on 27 July 2015 seeking an order that Strickland J disqualify himself from these proceedings be dismissed.
Within fourteen (14) days of the date of these orders the respondent mother file and serve written submissions in support of the application for costs made in the response to an application in an appeal filed on 7 August 2015.
Within fourteen (14) days of the receipt of the written submissions of the respondent mother the applicant father file and serve written submissions in response.
Within seven (7) days of the receipt of the written submissions of the applicant father the respondent mother file and serve written submissions in reply.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazier (No. 3) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 111 of 2014; EA 114 of 2014
File Number: SYC 2226 of 2013
| Mr Valdez |
Applicant
And
| Ms Frazier |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Mr Valdez (“the father”) that I “recuse [myself] from these proceedings”; in other words an application that I disqualify myself. That application arises in the following way.
By Notice of Appeal filed on 28 October 2014 the father seeks leave to appeal, and if leave is granted, to appeal against orders made by Judge Walker on 24 July 2014 effectively dismissing an application by the father to reopen the substantive hearing and adduce further evidence (EA 111 of 2014).
By Amended Notice of Appeal filed on 12 December 2014 the father seeks leave to appeal, and if leave is granted, to appeal against the parenting orders made by Judge Walker on 24 July 2014 (EA 114 of 2014). I observe that leave is not in fact required for the father to pursue this appeal, but that is of no moment in relation to the application that I am now addressing.
Both of these appeals were opposed by Ms Frazier (“the mother”) and they were heard by the Full Court comprising Finn and Kent JJ and myself on 16 March 2015. On that day we reserved our judgment.
On 27 July 2015 the father filed an application in an appeal supported by an affidavit seeking a number of orders, including leave to reopen the hearing of the appeals, and that I disqualify myself.
On 5 August 2015 the Full Court made the following orders:
UPON THE FULL COURT having before it an application in an appeal (a copy of which is annexed to these orders) which was filed by the appellant on 27 July 2015;
AND UPON THE FULL COURT noting that the first order sought in the application is that it be heard urgently and in the absence of the parties;
AND UPON THE FULL COURT considering that it is necessary that the application that the Honourable Justice Strickland “recuse himself from these proceedings” (being Order 6 of the orders sought in the application) be determined on the basis of written submissions before the applications for any of the other orders sought in the application are determined;
IT IS ORDERED IN CHAMBERS:
(1)Within twenty one (21) days of the date of these orders the appellant file and serve upon the respondent (through her solicitors) written submissions in support of the application that the Honourable Justice Strickland recuse himself from these proceedings.
(2)The respondent have fourteen (14) days from the date on which she is served with the appellant’s written submissions to file and serve upon the appellant either written submissions in response to the appellant’s written submissions or a brief written advice that she does not wish to file any written submissions in response.
(3)In the event that the respondent does file and serve written submissions pursuant to Order 2 of these orders then the appellant shall have fourteen (14) days from the date on which he is served with such submissions to file and serve either submissions in reply or a brief written advice that he does not wish to file any written submissions in reply.
In compliance with those orders the father filed extensive written submissions on 25 August 2015. The mother also on that date filed a brief written submission relying on her response to the application in an appeal filed on 7 August 2015, and her affidavit in support thereof also filed on that day. For completeness I record that on 31 August 2015 the father filed a reply indicating in effect that he did not wish to make any further submissions.
Albeit there are three appeal judges (comprising the Full Court) who have heard the appeals, given that I am the only one of those judges whose disqualification is sought, it falls to me to determine that application.
Before proceeding any further I note that the basis of the application that I disqualify myself, namely information that the father was provided with by certain legal practitioners, and a paper that I wrote in 2012 entitled “Attachment Theory and Family Violence: a judicial perspective” were well known to the father prior to the hearing of the appeals, and indeed at least my paper was referred to by the father in his oral submissions to the Full Court, there was no application by him that I disqualify myself either in the lead-up to the hearing of the appeals, or during that hearing itself. It is arguable that given these circumstances it is not now open to the father to make an application that I disqualify myself as a result of the information that I have referred to, and the content of my paper. However, this is not a point that has been taken by the mother in response to the application, and fortuitously judgment in relation to the appeals is still reserved. Further, one of the orders that the father seeks in the application in an appeal filed on 27 July 2015 is to reopen the hearing of the appeals. That application has yet to be dealt with by the Full Court. Accordingly, I propose to determine the application that I disqualify myself, despite still having serious doubts about whether that is an application that can now be made.
The relevant legal principles
The applicant submits that I should disqualify myself on the ground of apprehended bias. The law concerning disqualification on that basis is well settled.
In the High Court decision of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the High Court said this:
6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
…
19Judges 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 one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
[Footnotes omitted]
I highlight paragraph 8 of those reasons, and I add that the requirements of a two-step process in the application of the apprehended bias principle has been confirmed in subsequent High Court decisions, including for example, Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at 445 [63] and 446 [67].
The effect of that decision and the principles emanating from it are confirmatory of what was determined in an earlier decision of the High Court in Johnson v Johnson (2000) 201 CLR 488. The principle that sprang from Johnson, and which was confirmed in Ebner, is that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias, is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. I note also that in the case of Johnson, the High Court said this, at 493:
12The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: 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”.
[My emphasis]
Finally, I refer to the High Court decision in Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, where Mason J 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. … [D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”.
[Emphasis added]
Discussion
This is a case where the parenting orders made by the trial judge are challenged on appeal by the father. A principal basis of that challenge is that the trial judge (and the expert in the case) relied on “extrinsic evidence/research literature” which the father says is “now known to be fraudulent” (see grounds of appeal 6, 7 and 8 in EA 114 of 2014). In that regard the father sought leave to present two articles as further evidence in the appeal, those articles being the same articles that the trial judge refused to receive, and which decision is partly the subject of appeal number EA 111 of 2014. That application has not yet been determined by the Full Court.
It seems that the complaint of the father in this regard centres around the work of a psychologist, Dr Jennifer McIntosh, as to the issue of the attachment between a child and a caregiver and the issue of a child spending overnight time with a parent. The father says that the Family Court of Australia and the Federal Circuit Court of Australia rely on and use the research of this psychologist in making parenting orders, and in this case, for example, the trial judge did that without informing the parties of that reliance and use. It is also the work of that psychologist which the father says “is now known to be fraudulent”, and it seems that that claim is in some way based on the two articles that he sought to put before the trial judge, and which he now seeks to put before the Full Court by way of further evidence.
That lengthy but necessary preamble puts into context the application that I disqualify myself. It seems that because I authored a paper entitled “Attachment Theory and Family Violence: a judicial perspective” based on my presentation on that topic at the 49th Conference of the Association of Family and Conciliation Courts between 6 and 9 June 2012, and in which I referred to and quoted from the work of Dr McIntosh, and analysed the 2006 and 2011 legislative amendments to the Family Law Act 1975 (Cth) (“the Act”), “a fair-minded lay observer might reasonably apprehend that [I] might not bring an impartial mind to the resolution of the question [the Full Court] is required to decide” (Ebner at 344 [6]).
Before addressing that submission, it is necessary to deal with another complaint that the father makes about me, as well as other judicial officers, including the trial judge. Indeed, I have already referred to this above as being information provided to the father by certain legal practitioners. In any event, under the heading of “Part 1: Evidence” in the written submissions of the father in support of the application he says this:
4.Only by the lights of the most vicious maternal supremacist bigot can these orders [referring to the orders made by the trial judge and the subject of appeal number EA 114 of 2014] be considered in [X’s] interests [[X] being the child the subject of the proceedings]. These courts have chosen not to apply Parliament’s Act, and instead choose to enjoin the child abuse. Abuse the Act was reformed to prevent these courts from engaging in.
5.This Judicial abuse of children is common knowledge: The appellant’s evidence on 17-June-2014 paragraph 27 (reiterated in the affidavit supporting this application in an appeal),
27. It had also been indicated to me, by several lawyers in family law practices, that despite the claimed impartiality of the judiciary, were my matter to be heard before Judge Walker, Sexton or Strickland, that no matter the facts, no matter what [X’s] attachment to me is, nor my competency as a caring father, that orders would simply be made as the mother requests and [X] would be prevented from maintaining, never mind developing the critical relationship with his father. Not withstanding that I had been a constant daily presence in his life since birth.
6.These court’s not only feign ignorance of this commonly known judicial conduct but threaten any citizen who dares air this common knowledge. Any reasonable person would conclude these courts choose to threaten and intimidate rather than ensure children and not subjected to the abuse of the likes of Judge Walker and Justice Strickland. …
[Reproduced as per original]
First, I reject the allegations that the father there makes, but of course that is not the test of disqualification. As identified in Ebner, the application of the apprehension of bias principle requires two steps; the first being “the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits”. Pausing there, plainly the father has not satisfied this first step in making these statements. None of what he alleges has been said by me, and there is no admissible evidence establishing that what is alleged to be the case is in fact the case. Thus, there is nothing that I have said for a fair minded lay observer to even consider. Accordingly, there is no basis here for me to disqualify myself.
Turning to my paper, which is an attachment to the written submissions of the father, it is relevant to first quote from the introduction in that paper as follows:
The focus of this paper is on recent reforms to private family law in Australia, which are designed to protect children from harm, particularly harm occasioned by family violence, abuse and high-level parental conflict.
There are two tranches of legislative changes that I intend to discuss: what are colloquially known as the ‘shared parenting reforms’ of 2006 and the ‘family violence reforms’ of 2011, which came into effect in June 2012. Both sets of laws are considered from the perspective of attachment theory; positively and negatively. Neither the 2006 nor the 2011 amendments were specifically formulated within an attachment theory paradigm. Nevertheless, the influence of attachment theory on both sets of laws is able to be discerned.
I will then discuss possible ways in which we might know whether the 2011 reforms have succeeded in their objective of protecting children from harm, and what could militate against their success, insofar as that is possible to measure.
Finally, I wish to share my thoughts as to what further refinements to the Australian family law system and particularly to the legislative framework under which the Family Court of Australia operates would be desirable, to ensure that children’s developmental opportunities are maximised.
…
[Footnotes omitted]
In his written submissions the father refers to various parts of the paper where I critically consider the 2006 and 2011 legislative amendments to the Act in the context of the attachment theory, and where I refer to and cite the work of Dr McIntosh, amongst others.
However, plainly the applicant has misrepresented and taken out of context those parts of the paper which he has sought to attack.
The premises on which he has based his complaint are encapsulated in the following paragraph of his written submissions:
12.In summary Justice Strickland presented a paper contradicting the plain meaning and intent of parliament’s Act, at a conference organised and supervised by a board containing the Chief Justice of the Family Court of Australia. This board appointed to the program committee the fraudster McIntosh, PhD, who has been the courts de-facto Principal Scientist in evaluating and approving the courts conduct. The program committee in turn solicited and arranged for Justice Strickland’s presentation of his treatise.
The reference to my paper “contradicting the plain meaning and intent of parliament’s Act”, is that although the paper addresses “family violence”, it is said that I do not mention that the definition of family violence in s 4AB of the Act includes “preventing a child from maintaining contact with their parent”. The “courts” make orders that do just that, and those orders are thus “unlawful” under the Act, and “evidence that these courts have refused to accede to Parliament’s authority”. The father continues in his written submission in relation to this complaint at paragraph 9 as follows:
… There is no evidence that gives this court jurisdiction to make the orders this court has before it. However, the court’s supine reaction to these orders – for which there is no evidence that justifies them under Family Law Act – establishes not only that these courts wilfully disregard the plain meaning of parliament’s laws, but actively participates in perpetrating element of the definition of family violence on children. …
[Reproduced as per original]
As a matter of fact I observe that there is no such definition in s 4AB of the Act, and that exemplifies the confusion in the father’s submissions, and undermines his attack on me.
As to the specific “grounds” on which the father says I should disqualify myself, it is necessary to set them out in full from his written submissions. That avoids falling into the same trap that the father has in his attempted exposition of the intention behind, and the meaning of my paper. The father puts it in this way:
RECUSAL GROUNDS
50.Justice Strickland’s treatise has no scientific merit and is purely a call to judicial action to disregard the generally understood and accepted meaning and intent of parliament’s Act, inserting instead those of Attachment Theorists and advocates such as McIntosh. This is not controversial and in the hearing the Justices disclaimed any scientific authority, acumen, conceptual or technical competence.
51.As the High Court makes clear in Isbester, Justice Strickland’s disclaimer that “The views expressed in this paper are my own and are personal to me. They do not represent the Family Court of Australia” is not exculpatory. Rather, it is incriminating. This declaration unambiguously fulfils Isbester’s requirement to establish that “… it refers to a view which they may have of the matter, and which is in that sense personal to them”.
52.It is also incontrovertible from the tile’s declaration “a judicial perspective” that Justice Strickland is expressing his official views, as a Justice, of legislation and the expertise of the fraudster and con-artist McIntosh, PhD whom he relies on.
Nature of Pre-judgement
53.Justice Strickland’s entire treatise is the elaboration of the basis on which Justice Strickland considers that Parliament’s Act should be disregarded by legal practitioners in making submissions, and by jurists in evaluating those submissions.
54.Justice Strickland’s treatise is in effect a set of instructions, a road map, for the legal profession to circumvent Parliament’s changes to the Act. In doing so reinstate the status-quo jurisprudence that parliament sought to overturn, by relying on its corollary of no overnight time or severely restricted time, that are the result or McIntosh’s fraud and the quality-time assertions of attachment theorists.
Nature of first interest in conflict:
55.Justice Strickland’s rests his substantive claims that the Family Law Act is to be interpreted through the lens of attachment theory primarily on the fraudulent work of McIntosh, PhD, and McIntosh’e selective and systematically biased assessment of the field (as established by publications entered as evidence in the research admitted in the first instance hearing). Specifically, as elaborated above, the subject of McIntosh’s fraud are the very claims that Justice Strickland gives prominence to on pages 16-17. These are the fraudulent claim of McIntosh, PhD, that children [X’s] age are harmed by spending overnight time or too much over night time with both parents. These appeals seek to to overturn the orders restricting the time [X] is permitted to spend with his father.
56.Consequently, Justice Strickland’s personal and professional interest is in having his assessment of McIntosh and the application and definition of attachment theory he drives from McIntosh’s work remain unchallenged, if not vindicated. This is achieved by preventing the full court admitting or accepting the evidence that McIntosh, PhD, is a fraud and con-artist by granting appeal EA111/2014.
57.Having McIntosh’s fraud explicitly accepted/acknowledged by the Family Court of Australia would be a public diminution of Justice Strickland’s judicial attributes, his acumen, discernment and judgment. This establishes “… the logical connection between that interest and the feared deviation from the course of deciding the case on its merits”.
Nature of second interest in conflict:
58.Justice Strickland’s treatise explicitly contradicts and seeks to undermine the meaning and intent of parliament’s laws. The paper is seditious in content and substance, if not nature and intent. That the purpose of Justice Strickland’s paper is not good faith execution of the requirements of his official duties is evident in the following facts:
(a)Parliament has legal advisers and the full legal resources of the department under control of the Attorney General. If parliament wanted any Justice’s legal opinion they are free to invite them to give their opinion at any number of formal public venues.
(b)The only law reform committee the Family Court of Australia is lawfully able to take notice of is called the Federal Parliament of Australia. Justice Strickland’s chairing a “Law Reform Committee” within the Family Law Court of Australia is his contribution to an overt effort to usurp parliament’s sole authority to reform legislation and define the intentions and purposes of that legislative reform. The bad-faith use of this lawless committee to advance or elevate Justice Strickland’s authority or stature is evident in Justice Strickland citing this position as a source of authority in the AFCC presentation and in the official description of his judicial authority.
(c)A principal of Australia’s democracy is that the opinion of a Justice of the Family Court of Australia carries no more weight than any other member of the electorate. Consequently, a paper “Attachment Theory and Family Violence: a judicial perspective” carries no more weight than one titled “Attachment Theory and Family Violence: a plumbing perspective”.
59.Consequently, Justice Strickland’s personal professional interest is in having the Family Court of Australia uphold his opinion that, in direct contradiction to the Act, the amount of time a child spends with a parent is subordinate to a notion of “quality time” that the Act never mentions let alone defines. This is achieved by having the Family Court of Australia refuse to overturn orders, as requested in Appeal EA 114/2014, that have seen:
(a)[X] prevented from spending any overnight time with his father, see his father only for a few hours during the week, and prevented spending any holiday time with his father
(b)Then spend a few hours time with his father nearly every second day and only two nights a week, while still preventing any holiday time with his father
(c)Currently, not see his father at all for nearly a week and only spend two nights a week with his father and still prevent any holiday time with his father
(d)Refuse to admit evidence that the Respondent mother intends to remove [X] to [an overseas country], for which the current orders lay the ground work, by extending the time between [X] seeing his father
60.This establishes “… the logical connection between that interest and the feared deviation from the course of deciding the case on its merits”.
[Reproduced as per original]
Applying the apprehension of bias principle, the father has satisfied the first step. He has identified what is said in the paper that he considers might lead me, as a member of the Full Court, to decide his appeals other than on their legal or factual merits. As to the second step, he has articulated a connection between the matter and the feared deviation from the course of deciding the appeal on its merits. He has identified what he says is the “nature of the pre-judgement” and the “nature of the interest” in the litigation, but the connection is not a logical one. To repeat, he has misrepresented what is said in the paper to fit in with his misguided and ill-informed theories, and his claims of “pre-judgement” and “interest” have neither been established nor even demonstrated.
However, even if I am wrong about that, and the second step can be seen to be satisfied by the father’s prognostications as to the intention and meaning of my paper, it has not been demonstrated that a fair-minded lay observer, reading the paper, might reasonably apprehend that I might not bring an impartial mind to the determination of the appeals. The mistake that the father makes in this regard is to fail to appreciate that the test is objective, and not subjective. It is his own perception of the intent and meaning of the paper which he presents as establishing the appearance of bias, and that is not the test.
Conclusion
The application in an appeal to the extent that it seeks that I disqualify myself must be dismissed.
Costs
In the Response to an Application in an Appeal filed by the mother on 7 August 2015 she seeks an order that the father pay her costs on an indemnity basis and in the alternative on a party/party basis. In order to determine that application it is necessary to receive written submissions from the parties, and I will set up a regime for the filing and serving of those written submissions in the orders that I make.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 28 October 2015.
Associate:
Date: 28 October 2015
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