WARNER & HOUSEMAN

[2011] FamCA 166

FAMILY COURT OF AUSTRALIA

WARNER & HOUSEMAN [2011] FamCA 166

FAMILY LAW - COURTS AND JUDGES – Disqualification - Particular circumstances which require Judge to disqualify himself

Family Law Act 1975 (Cth)

APPLICANT: Mr Warner

RESPONDENT:	Ms Houseman
FILE NUMBER:	MLC	9756	of		2008

DATE DELIVERED: 25 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 25 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. Justice Mushin be and is hereby disqualified from further involvement in these proceedings.

2. The proceedings be referred to the Case Management Judge to be re-listed as he deems appropriate.

IT IS NOTED that publication of this judgment under the pseudonym Warner & Houseman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:   MLC 9756 of 2008

Mr Warner

Applicant

And

Ms Houseman

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Warner which was filed on 11 February 2011 seeking leave in accordance with the orders that I made in 2007 pursuant to the provisions of section 118 of the Family Law Act 1975 and the Family Law Rules 2004, to file an application which in turn seeks leave to review orders made by Senior Registrar FitzGibbon on 19 September 2006.

2. I have been involved in this matter for in excess of three years, and, in particular, in May 2007.  At that time, defended proceedings came before me concerning the care, welfare and development of the child of the present applicant and his former partner, that child just having turned 10 years.  On the second day of that trial, the applicant consented to orders pursuant to which he was not permitted to spend any time or communicate with the child. 

3. In reasons for judgment, which I delivered in proceedings to which I will refer shortly, on 10 December 2010, I found at paragraph 1:

   While I was not privy to the precise reasons for those consent orders, and was not required to make any finding of fact, the evidence then before me included serious allegations of violence and threats of violence perpetrated by the father against the mother and the child.

4. The reasons for judgment to which I have just referred particularise subsequent proceedings in this matter and refer to the father having brought applications for leave in October 2008 and 2009, the second of which finally came before me in April 2010.  Those reasons set out the history of the matter.  I gave him leave to file an application and affidavit, and then upon the return of his application – at which the respondent was represented by counsel – I dismissed the application summarily, essentially pursuant to the ratio in Rice & Asplund (1979) FLC 90-725, and subsequent authorities which are referred to therein.

5. As has been evident on a number of occasions that the applicant has appeared before me, he has been and remains extremely upset and emotional with regard to his not being able to spend any time with his daughter.  From his point of view, to a certain extent, I can understand that upset.  There are other elements to that upset which I think display a lack of insight and perception on his part which is at the heart of his difficulties in this matter in re-establishing a relationship with his daughter. 

6. During his submissions this morning, the applicant referred to what he regarded as my inability to do justice to him.  His attitude with regard to what would be justice is, it seems, restricted to an order that he be able to spend time and communicate with his daughter.  Prior to commencing today’s sitting, I gave detailed thought to the possibility that I should disqualify myself of my own motion without application, on the basis that the applicant might see my previous involvement – in which he has been totally unsuccessful before me on at least several occasions – as constituting a reasonable apprehension of bias in accordance with the authorities.  I determined for myself that I was not so biased, and accordingly sat to hear the application. 

7. When the applicant referred to his view that I could not do justice, I pressed him as to whether he was applying to me to disqualify myself.  At first he said that he was applying, but later said that he was not, that what he wanted was for me to sit here and do justice, which is, in his interpretation, as I have stated it to be.  I informed him that I could not sit on a case on condition.  If I were to sit and consider proceedings before me, I was required to do justice according to law.  However, on further thought, despite the fact that he appears to be saying that he does not seek that I disqualify myself, and despite the fact that in my view it is at least significantly arguable that I should not disqualify myself, I have determined that there are particular circumstances of this matter which require me to disqualify myself. 

8. The emotion which the applicant brings to the matter, his lack of confidence in the legal process as it has been represented by my involvement in his proceedings, and his belief that justice has not been done and that I am effectively the one to perpetrate that, leads me to the conclusion that, despite the fact that I am of the view that I may not be required to disqualify myself even if he were to apply, it is appropriate for the purposes of justice and access to justice for the applicant that I disqualify myself.  That is particularly reinforced in my mind in that I am about to retire and any further application will need to come before another Judge.  That may as well commence now.  I will order accordingly.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin delivered on 25 February 2011.

Associate: 

Date:  10 March 2011