By Gianna Huesch
A father’s attempt to vary parenting orders based on sweeping accusations against the judiciary and the court system in general has failed in his bid to have his judge removed from the case.
Throwing out the “offensive and scandalous” matter, Justice Le Poer Trench declined to recuse himself (in other words, to remove himself) in a case recently heard by the Family Court of Australia.
The self-represented father had been involved in litigation with his ex-partner over the parenting of their five year old boy and had initiated contravention proceedings in the court, but at the last minute sought an Order for recusal, arguing systematic bias.
In his arguments the father canvassed comments by the Chief Justice of the Family Court, Diana Bryant AO, controversial research on attachment by academic Jennifer McIntosh, and the recent push for legislative “root and branch” change by Senator John Madigan.
In recent years, debate has continued 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. The well-known attachment research by Jennifer McIntosh was referenced in media comments in 2014 by Ms Bryant, and the applicant father now claimed that making these comments was proof the entire system was biased against men.
However, the father’s application was denied, with the judge finding there was no evidence of any general apprehension of bias held by the community as to whether they can obtain justice in our family courts—noting 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. Nor could the court find any evidence that judges are systematically biased against fathers who they regard as inferior in caring for a newborn child.
Most egregious was the father’s attack against the judiciary, which was found to be “offensive and scandalous”. The father had claimed that “the Learned, Honourable and Esteemed Judges and Justices of these courts have repeatedly and reflexively lied” in his case. He claimed they “sought to suppress evidence of (the child’s) distress, evidence of the Respondent Mother’s breach of court orders and the Respondent mother’s efforts to continue abusing the Applicant father directly and indirectly using (the child) as a weapon”. For example, the father argued one 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”.
The father had further claimed “three law firms state 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” and names them as Justice Strickland, Judge Sexton and Judge Walker”. The judge, however, does not have any weight to these claims as they are “hearsay”, among other problems with the evidence.
The judge noted the father’s arguments as “illustrative of paranoia” in arguing the Respondent mother “exploited the maternal supremacist prejudices…to launch a further episode of spousal abuse against the Applicant”. The judge noted the father being “acutely aware his submissions sound “far-fetched” and “like a conspiracy theory gone wrong.” Here, they proved to be a court case gone wrong.
Are you are self-represented person who would like shadow or background assistance with your court case to help you present your case better than the father in the example above? Or would you like us to take over your matter? If so, please contact Alliance Family Law’s family law solicitors who include Cristina Huesch, Sharla Stevens and Angela Li on (02) 6223 2400.