Valdez & Frazier (No 4)
[2016] FamCAFC 226
•10 November 2016
FAMILY COURT OF AUSTRALIA
| VALDEZ & FRAZIER (NO. 4) | [2016] FamCAFC 226 |
| FAMILY LAW – APPLICATION IN AN APPEAL – DISQUALIFICATION – Where the applicant seeks that one of the members of the Full Court be disqualified from further hearing this matter – Where the basis for disqualification is not clear – Where the test for apprehended bias is not satisfied – Application dismissed. |
Family Law Act 1975 (Cth) – Part XIVA
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Valdez & Frazier (No 3) [2015] FamCAFC 205 Valdez & Frazier (No 2) [2016] FamCAFC 55 |
| APPLICANT: | Mr Valdez |
| RESPONDENT: | Ms Frazier |
| FILE NUMBER: | SYC | 2226 | of | 2013 |
| APPEAL NUMBERS: | EA | 30 | of | 2016 |
| EA | 38 | of | 2016 |
| DATE DELIVERED: | 10 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 16 August 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 February 2016 |
| 1 March 2016 |
| LOWER COURT MNC: | [2016] FamCA 68 |
| [2016] FamCA 153 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms Hauptmann (solicitor advocate) |
Order made 16 August 2016
The oral application made by the applicant father be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazier (No 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 30 of 2016; EA 38 of 2016
File Number: SYC 2226 of 2013
Mr Valdez
Applicant
And
| Ms Frazier |
Respondent
REASONS FOR JUDGMENT
On 16 August 2016, in the context of this court hearing and determining an amended application in an appeal filed by Ms Frazier (“the mother”) on 15 August 2016 seeking an order for security for costs, Mr Valdez (“the father”) made an oral application that I disqualify myself, and he relied on his affidavit filed on 9 August 2016.
The oral application of the father was opposed by the mother, and after hearing submissions from both parties, I made an order dismissing that oral application. These are the reasons for that order.
This is the third application the father has made that I be disqualified. Each of the first two applications were dismissed, and I refer generally to the reasons given for those dismissals (see Valdez & Frazier (No 3) [2015] FamCAFC 205 and Valdez & Frazier (No 2) [2016] FamCAFC 55).
The basis of the father’s application this time is two-pronged, namely:
a)I am the President of the Australian Chapter of the Association of Family and Conciliation Courts (AFCC), and because that organisation professes to be an advocacy group and promotes research, my involvement in it is “unlawful” and is “prohibited” by Part XIVA of the Family Law Act 1975 (Cth) (“the Act”) which establishes the Australian Institute of Family Studies (AIFS).
It is said that it is only AIFS that is able to undertake research into Family Law, and thus a judge of the Family Court of Australia is “legally barred” from that activity. Further, it is claimed that it was unlawful for this court to form AFCC.
It seems the background to this submission again stems from matters raised by the father in his previous applications that I disqualify myself, namely, he claims that the Family Court of Australia, through AFCC, publishes, promotes and supports the research of a clinical psychologist, Dr Jennifer McIntosh, and which research the father says has been shown to be fraudulent. The particular research complained of is around the care of young children by fathers. Indeed, during his submissions the father suggested that the Family Court of Australia, in concert with Dr McIntosh, has “fabricated the evidence that children are harmed by the parent conducting proceedings in court”.
b)I am a judge in a court that has relied on the research of Dr McIntosh, particularly in its less adversarial process, and thus the Family Court of Australia is not independent and has played a central role in “enabling” Dr McIntosh’s “fabricated and fraudulent” research.
In order to demonstrate this, the father has identified that in the past the court has contracted with Dr McIntosh for her to undertake research on its behalf. He also claims that this has not been at arms-length because he has found no tender documents, no invoices and no receipts.
Neither of these claims provide a basis for my disqualification, and indeed it is unclear from the father’s submissions what that basis is.
As to the first claim:
a)The court did not form AFCC, and my involvement in it is entirely separate from my role as a judge of this court.
b)The circumstance that AIFS is established by the Act to, inter alia, undertake research, does not prevent another organisation from taking on an advocacy role, or from undertaking research in family law. The court is itself freely able to commission research around family law, and its judges are not prohibited by the Act from being involved in other advocacy or research organisations.
c)The Australian Chapter of AFCC has not published the research of Dr McIntosh per se, but in any event, for an organisation to publish research by an expert does not in any way reflect on how a judge of the court, who may be involved in that organisation, determines the proceedings which come before him or her in that role. There can be no suggestion of an appearance of bias arising from that circumstance.
d)The father asserts that the research of Dr McIntosh is “fabricated and fraudulent”. The value and probity of the research of any expert will always be assessed by a trial judge when it is necessary to do so in the matter before him or her, on the basis of the evidence presented to that trial judge.
e)The application before the court seeks an order for security for costs in relation to appeals brought by the father against orders made by Le Poer Trench J. How it is that my involvement with AFCC, and the alleged publication of research of Dr McIntosh provides a basis for my disqualification from hearing this application, has not been demonstrated. In particular, the well-known test of apprehended bias has plainly not been satisfied, namely, it cannot be said that “a fair-minded lay observer might reasonably apprehend that [I] might not bring an impartial and unprejudiced mind to the resolution of the question [I am] required to decide” (Johnson v Johnson (2000) 201 CLR 488 at 492). Nor is the two-step process identified by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] satisfied. There is no “identification of what is said might lead [me] … to decide a case other than on its legal and factual merits”. There is also no “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
As to the second claim:
a)The fact that the Family Court of Australia has commissioned Dr McIntosh to undertake research on its behalf in the past, and may have relied on that research in, for example, its less adversarial process, does not establish that a judge of the court will not in the eyes of “a fair-minded lay observer” bring “an impartial and unprejudiced mind” to the resolution of the application now before the court.
b)If this claim is valid then the logical consequence is that every judge of the Family Court of Australia must be disqualified, and that demonstrates the absurdity of this claim.
In the circumstances, the oral application of the father must be dismissed.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 10 November 2016.
Associate:
Date: 10 November 2016
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