“Bias conspiracy” allegations dismissed
Valdez & Frazier  FamCA 68 (15 February 2016)
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/68.html
- 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.
- 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.
- Annexure “J” to the affidavit of the father, above identified, is a printed version of a “Media Release” published on 7 December 2015 by Senator John Madigan. It gave detail of a motion proposed by the Senator, co-sponsored by seven crossbenchers, calling for “the creation of a new family law mechanism that is not adversarial in nature and deals with family separation in a way that has a tangible and primary emphasis on the welfare of the child”. The balance of the media release refers to the delays in the Family Court of Australia and the Federal Circuit Court and the impact of such delay on Australian children and families. Nowhere is there any suggestion that there is a general apprehension of bias held by the community as to the inability to obtain justice in either Court in parenting proceedings or otherwise.
- At paragraphs 6 and 7 of the father’s affidavit sworn 19 July 2015 the father says:
6. Prior to initiating proceedings three law firms stated that there (sic) three judges in the Federal Circuit Court and Family Court of Australia who would never allow a child the child’s age to live with their father:
(a) Justice Strickland
(b) Judge Sexton
(c) Judge Walker
7. In the final hearing concern about the bias of Judge Walker was raised, and under oath those law firms are named.”
- I am unable to give any weight to those passages of the father’s affidavit as they are hearsay. The application currently being considered is made within the general descriptive of “child-related proceeding” as set out in s 69ZT of the Family Law Act 1975 (Cth) (“the Act”). That term is defined as having the meaning provided in s 69ZM. Section 69ZT enables the Court to give the type of evidence set out in paragraphs 6 and 7 of the father’s affidavit, as above set out, “such weight (if any) as it thinks fit”.
- There are a number of facets of the father’s evidence now under consideration which in my judgment warrant the Court giving it no weight. Those facets are:
- The firms of lawyers referred to have not been named before me.
- The information must have come not from “a firm” but from an individual, who again is not named.
- What exactly was said which led the father to conclude what he has set out in his affidavit is not stated.
- The facts relied upon by the maker of the statement to found his/her opinion is not stated.
- The father also relied upon a copy of a document purporting to be authored by the Chief Justice of this Court on 24 March 2014. For the purpose of this application I will treat the document as authentic.
- The document dated 24 March 2014 is titled “Response to Bettina Arndt”. The response focuses on research which may be provided to a Family Court of Australia judge in a parenting case which might then be accepted as evidence and thereby assist a judge in determining a particular parenting application.
- The father says that in this response the Chief Justice effectively speaks for all the judges of the Court, or alternatively expresses a view which judges of the Court would feel compelled to adopt because she has the power to discipline a judge of the Court (an assertion which was not supported with any reference to an Act or decision of this Court, or any other court.)
- In the body of the document the Chief Justice refers to the debate which may exist between researchers and academics about the relative importance of attachment between a child and a parent and the benefits or otherwise of overnight contact for babies and infants with each parent. She then says: “However, the Court neither adopts nor provides policy advice on such matters and each case is the subject of individual assessment of the family and the relationships and attachments within the family.” That statement is the clear boundary setter for all that thereafter appears in the document.
- The Chief Justice thereafter speaks of her own experiences working as a lawyer and Judge. She foretells of her experience, namely that there may well be changes in experts’ views as research progresses in relation to the topic under discussion. She points out somewhat obviously (in my view) that judges of the Court will be exposed to research and different experts’ views about this topic as an incidence of their day to day work. She speaks only in a general way and does not, in any manner apparent to me, seek to express her views as representing those of each judicial officer in the Court.
- Finally the Chief Justice again reinforces the importance of acceptable evidence received in each individual case as the relevant material to which a judge can turn in order to determine a case. She states “cases are not determined on articles by researchers but rather on the evidence provided to the courts about individual cases within the individual family relationships.”
- Paragraphs 4 and 5 of the father’s affidavit sworn 22 October 2015 were relied upon by the father to support this application. The words are offensive and scandalous but unfortunately require to be repeated here.
4. The Learned, Honourable and Esteemed Judges and Justices of these courts have repeatedly and reflexively lied about this evidence, sought to suppress evidence of [the child’s] distress, evidence of the Respondent mother’s breach of court orders and the Respondent’ mothers (sic) efforts to continue abusing the Applicant father directly and indirectly using [the child] as a weapon.
5. On 2 June 2015 the Respondent mother exploited the maternal supremacist prejudices, paranoia’s (sic) and passions of these courts to launch a further episode of spousal abuse against the Applicant father.
- The father quite candidly noted during the course of his submissions that his submissions generally may be considered “paranoid”. He said he was acutely aware his submissions sound “far-fetched” and “like a conspiracy theory gone wrong.” The father emphasised his academic achievements in submitting that his application and submissions should be considered as a genuine application emanating from an otherwise rational and intelligent person. He pressed his application for recusal submitting, inter alia, the following matters. I have recorded those arguments which I consider necessary to be noted.
- In relation to the words of the Chief Justice, to which the father referred the Court, he asserted that the Chief Justice exercised control over the judges of the Court because she had the power to discipline them. He said that this power was mainly exercised by the Chief Justice when she dealt with a complaint made against a judge. He relied upon s 72 of “an Act”, the name of which he could not recall, as support for that submission. The mother’s counsel helpfully suggested that the father was probably referring to s 72 of the Commonwealth of Australia Constitution Act 1900 (Cth) (“the Constitution”) as that section dealt with the appointment and control of Federal Justices. That section is as follows:-
72. The Justices of the High Court and of the other courts created by the Parliament–
(i.) Shall be appointed by the Governor-General in Council:
(ii.) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity:
(iii.) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.
The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.
The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court.
Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years.
The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment.
A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor-General.
Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions.
A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation.
- Clearly there is nothing in s 72 of the Constitution which provides the Chief Justice with the power to discipline justices of this Court.
- The father diverted from his main argument to state that Judge Walker of the Federal Circuit Court and Justice Ryan of this Court had lied in the judgments they delivered in litigation between the parties about the child. In particular the father said each judge had lied by finding that the child had only been hysterical in a handover from the father to the mother on occasions when he had spent overnight with the father. I record these submissions here as they may be important in relation to other applications which the Court may have to determine. The basis of the submission is not established before me. By any interpretation the submission is offensive and scandalous. It is not possible to see the connection between that allegation and the application now under consideration. The fact that the father did not see it as such may be important.
- The same attack upon the judiciary by the father appears in the two paragraphs he relied upon in his affidavit sworn 22 October 2015. That material is offensive and scandalous.
- The father concluded his submissions by reiterating his understanding that his approach is likely to be regarded as illustrative of paranoia. He said his argument about the Chief Justice controlling the other judges of this Court was not based on the Constitution. His considered belief is that the judges of this Court are systematically biased against fathers who they regard as inferior in caring for a newborn child. The father referred the Court to the High Court decision of Isbester v Knox City Council  HCA 20 (Unreported, Kiefel, Bell, Gageler, Keane and Nettle JJ, 10 June 2015).
STATEMENT OF APPLICABLE PRINCIPLE
- It is a fundamental rule of justice that an adjudicator must be free of actual or apprehended bias (see Johnson v Johnson  HCA 48; (2000) 201 CLR 488, 500 (“Johnson”)). The principles to be applied in relation to a claim of judicial bias are consistent and well established.
- In order to establish the existence of actual bias, a decision maker must be shown to have prejudged the case or to have acted with such partisanship or hostility as to show that they had a mind made up against the applicant which was not open to persuasion (Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, 134).
- More frequently invoked, and relevant to the proceedings presently before the Court, is a claim of apprehended bias. The test to be applied in relation to a claim of apprehended bias, as outlined by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson (at 492) 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. This test was re-affirmed by the plurality of the High Court in Ebner v Official Trustee in Bankruptcy  HCA 63; (2000) 205 CLR 337 (“Ebner”). In Ebner, their Honours Gleeson CJ, McHugh, Gummow and Hayne JJ set out the following two-step process for the application of that test (at 345):
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.
- Whilst there are circumstances which require a Judge to recuse him or herself from the proceedings due to the appearance of bias, judicial officers have a duty to exercise and discharge their judicial functions and should not accede too readily to allegations of bias made without proper justification. This was made clear by the plurality of the High Court in Ebner (at 348):
Judges 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.
This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
- A claim of apprehended bias should be considered in the context of the public perception of the judicial function and of judicial accountability. As outlined by Barret J in Wentworth v Rogers  NSWSC 1198 (Unreported, Barrett J, 16 December 2002, paragraphs 23-24).
….In Johnson, it was stated in the judgment of Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ, at paragraph 12, that ‘the 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 of some judges of the capacity or performance of their colleagues’. It was the position of a professional judge, which was, as it was in Sengupta, under challenge. The Court added:
‘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”.’
Every judge has a past. The question in cases such as the present is whether something in that past would be seen by the reasonable or fair-minded observer as having the potential to divert the judge from deciding the case on its merits. Case law makes it plain that that observer is to be taken to bring a balanced and sensible mind to the inquiry, with a consciousness of the professional commitment of judges to act objectively and their sworn duty to act impartially, mindful also of the waste of resource and delay that can be brought about by too tender an assessment of the relevance of past associations.
- The applicant in these proceedings submits that every judge of this Court and of the Federal Circuit Court is potentially biased. In Waterhouse v Independent Commission Against Corruption  NSWCA 300 (Unreported, Basten JA and Emmett JA, 30 September 2015), the appellant had sought a declaration that all members of the Supreme Court were disqualified on the basis that the issue to be resolved involved a challenge to the integrity of that Court. It was contended by the appellant that all members of the Supreme Court had an interest in protecting the reputation of that institution and accordingly, all were affected by a reasonable apprehension of bias. The appellant submitted that it was necessary to appoint judges from interstate or preferably overseas. The Court of Appeal dismissed the appeal against the finding of the trial Judge that he was not disqualified from sitting. The Court of Appeal observed that there were “grave difficulties” attendant upon the disqualification application, expressed as it was in generic terms against every member the Court, being able to meet the test set out in Johnson:
- Returning to the application of the test, it is necessary to ask whether a fair-minded observer might consider that every member of the Court might fail to bring an impartial mind to the resolution of the application because of a fear of what an independent investigation of the applicant’s complaints might reveal. There are grave difficulties attending any such conclusion.
- First, the fair-minded observer would understand that most members of the Court (if not all) had no personal involvement with any of the matters the subject of the applicant’s complaints to the ICAC. Secondly, he or she would appreciate that the judges of the Court are as rigorous in their insistence on judicial independence as members of the community, if not more so. Thirdly, however the applicant may wish to characterise the scope of his allegations, a reasonable observer would not see them as stigmatising the Court as a whole, but rather as directed against particular individuals; nor would they be seen to undermine the integrity of the work of the Court, as opposed to casting doubt on the integrity of a particular course of decision-making in relation to a particular case….
- Section 26 of the Act requires all judges of this Court to swear an oath or affirmation of allegiance to do right to all manner of people according to law, without fear or favour, affection or ill-will. The principle of judicial independence; the requirement that I act without fear or favour, affection or ill-will; encapsulates my duty to decide the matter before me impartially and on the evidence before the Court. It requires that I be free, and be seen to be free, from the influence of any external pressures or influences, including the influence of any other judge. This was made clear by the High Court in Re Colina: Ex parte Torney,  HCA 57; (1999) 200 CLR 386, where Court dealt with a contention by Mr Torney that speeches and interviews given by the then Chief Justice of the Family Court, Nicholson CJ, which received widespread media attention created an appearance, apprehension or actuality of institutional bias in the Family Court, a lack of judicial independence and “irredeemable unfairness and prejudice”. It was contended that on the basis of statements made by the Chief Justice, the trial Judge, Burton J, should be disqualified from hearing the contempt charges against Mr Torney or alternatively, that it was no longer possible for there to be a fair trial. In their joint judgement, Gleeson CJ and Gummow J (at 397-398) considered and dismissed these contentions (bold emphasis added):
The speech made by Nicholson CJ, and his remarks in media interviews, conveyed an emphatic response to allegations that the Family Court manifests a systemic bias against men. It is not surprising that the Chief Justice saw it as his right, and his duty, to make such a response. In the course of his defence of the court, Nicholson CJ addressed the merits of the allegations made against the court, and answered such allegations with detailed argument. In doing so, it is contended, he expressed opinions on matters that may well arise for decision by Burton J. Furthermore, it is argued, he made it clear that he regarded attacks on the court of the kind he addressed as very serious, and as having the potential to undermine the integrity and authority of the court. These are questions that could be of importance both as to guilt, and, (should guilt be established), as to punishment, in the contempt case.
The flaw in the argument is that it assumes a relationship between a Chief Justice and a member of his or her court which is contrary to fundamental principles of judicial independence. It is frequently overlooked that the independence of the judiciary includes independence of judges from one another. The Chief Justice of a court has no capacity to direct, or even influence, judges of the court in the discharge of their adjudicative powers and responsibilities. The Chief Justice of the Family Court has, by virtue of s 21B of theFamily Law Act, responsibility for ensuring the orderly and expeditious discharge of the business of the court. That administrative responsibility does not extend to directing, or influencing, or seeking to direct or influence, judges as to how to decide cases that come before them. As a member of an appellate bench, the Chief Justice may be a party to decisions which are authoritative or influential in relation to the decision-making of single judges, but that is a different matter, and is of no present relevance.
Corresponding to the Chief Justice’s lack of capacity to control or influence Burton J’s exercise of judicial power, there is a duty upon Burton J to act independently, and in accordance with his judicial oath.
There is no ground for any reasonable apprehension that Burton J might not bring a fair and unprejudiced mind to the performance of the judicial task ahead of him. Nor is there any reason to doubt that Mr Torney will receive a fair trial. It is not yet known exactly what the issues in the trial will be. Some of them may involve topics about which Nicholson CJ expressed an opinion in his speech. There is no reason to doubt that Burton J will be able to evaluate the evidence and arguments on all issues in the case, and make an independent and impartial judgment about them in accordance with his duty.
It is not entirely clear what is involved in the suggestion of “institutional bias”. The claim appears to be that no judge of the Family Court would be in any better position than Burton J. That may be so; but it is not relevant. The only respondents to these proceedings are Burton J and the Marshal of the Family Court, who instituted the contempt charges. The considerations outlined above answer the claim that Burton J is disqualified, and the position of any other member of the court is not presently in issue.
- His Honour Callinan J also outlined at 441:
…on any view it cannot be said that the remarks made by the Chief Justice in the circumstances in which he made them could possibly give rise to any apprehension of bias on the part of the different judge who is to try the charges. Dissents from, and disagreements with judgments of chief justices of all courts are not uncommon. Judges are bound to, and reasonable observers would appreciate that they will, try cases on the evidence before them and apply the law as they take it to be. They are even less likely to be improperly influenced by remarks made extra-curially by a chief justice than they would be by a decision (not binding on them) made by a chief justice in court with which they conscientiously disagreed. It is true that in Kable v Director of Public Prosecutions (NSW) McHugh J and Gummow J did refer to the Supreme Court of a State in terms of an institution and contemplated the possibility of a compromise of “institutional impartiality” but their Honours’ remarks were made in relation to the unacceptable exercise of powers by every member of that Court, that is to say any member of that Court viewed as an institution, and are of no relevance to the circumstances of this case. The claim of a reasonable apprehension of an “institutional bias” fails.
- The father’s application that I recuse myself from hearing the Contravention Application he has before the Court was really argued by him in much broader terms. His argument was really that no judge, appointed to this Court before about 2014, should hear any application between parties who sought a parenting order or where it was open to the Court to vary a parenting order. Thus the Contravention Application fell within this criteria because the Act provides that the Court may vary a parenting order when considering a contravention application (s 70NBA). It was this provision which the father was seeking to rely upon and ask the Court to vary the current parenting orders.
- I do not consider that the father has established, on the evidence before the Court, that there is an apprehension, held by the community in general, that all judges of this Court and of the Federal Circuit Court are biased against fathers in parenting proceedings. A fair minded observer would be well aware of the duty incumbent upon all judges of this Court to ensure the independent and impartial administration of justice. A fair minded observer would also understand that the outcome of any parenting matter before this Court or the Federal Circuit Court will be determined upon the specific evidence before the Court, as it pertains to the individual case, rather than by reference to the general findings of researchers or the extra-curial remarks of other judges of this Court.
- The Full Court of this Court has overturned a decision of a single judge where that judge referred to and relied upon published research touching on the parenting of children in a manner which constituted a denial of natural justice (see McGregor & McGregor  FamCAFC 69; (2012) FLC 93-507). It is clear from this and other authorities of this Court that it is duty of the Judge to analyse the evidence properly before the Court and to form a view based on that evidence.
- The father has also failed to identify any particular conduct on my part in these proceedings which would cause a fair minded observer to reasonably apprehend that I would not approach his application with an independent or impartial mind.
- For these reasons, I decline to recuse myself.