Brisbane Family Court trial halted over claims of secret talks with social worker

Courier-Mail, Australia, by Matthew Fynes-Clinton, July 11, 2010

A CHILD custody trial was aborted when a Brisbane Family Court judge disqualified himself after being accused of holding secret talks with a case social worker.

The week-long trial – which involved an allegation of sexual abuse against a young girl – ended abruptly on April 28 following an application to Justice James Barry from the child's representatives for him to stand aside on the grounds of "apprehended bias".

Family Court Chief Justice Diana Bryant has summoned Justice Barry to a formal interview in Melbourne this week and alerted Federal Attorney-General Robert McClelland to the issues.

Justice Bryant told The Courier-Mail that while she had no specific disciplinary powers, she would be spelling out to Justice Barry the "gravity of the situation for the Court and the serious inappropriateness of the conduct".

"Whilst not entirely agreeing with all that was asserted . . . to have been said between him and the (social worker), (Justice Barry) accepted that he had inappropriately discussed the contents of the family report with the (social worker)," Justice Bryant said. "The report was evidence in the proceedings."

Applying for the disqualification, barrister Jacoba Brasch – counsel in the trial for the court-appointed Independent Children's Lawyer – told Justice Barry that the social worker had informed her of the private talks which took place in the judge's chambers.

"It is . . . reported that Your Honour has said in this discussion, 'These men' – a reference to (the relative accused of sexual abuse in the case) – 'they go off half-cocked, you don't know if they are innocent or . . .'." Ms Brasch told the court.

Ms Brasch submitted that she had been told the judge had, in the conversation, said he liked the social worker's independent family report as well as commented on the mother in the dispute and her "overvaluing".

"(The social worker) . . . says Your Honour indicated you liked the report and it appears that there were various aspects of the report . . . discussed, including what was called the mother's overvaluing," Ms Brasch told the court.

"(The social worker) indicated that Your Honour had said, 'What is it with some mothers and their overvalued . . .' and I didn't catch . . . the next word."

The judge had advised the social worker "to expect to be challenged about the father's family issues" during cross-examination, Ms Brasch told the court.

She said the judge also had remarked to the social worker, regarding the child's paternal grandparents: "I've got a picture of this family. They are Presbyterian. The mother can't stand up to the father."

The trial, part-heard last October, had resumed on April 22.

Ms Brasch outlined to the court that she "ran into" the social worker near a court elevator on April 23.

"(The social worker) said to me, "The judge had spoken to me," Ms Brasch said. "His Honour (had) asked, 'You can tell by someone's reaction whether they're innocent . . .'. (The social worker) said he said, 'I'm not judge'."

On April 27, Ms Brasch told the court, she took advice from Bar Association of Queensland ethics' counsellors and then further clarified with the social worker the nature of his discussion in Justice Barry's chambers.

"(The social worker) indicated . . . he thought this discussion was in March," Ms Brasch told the court. "But it may be there was (another) discussion prior to the trial in October." Ms Brasch told the court that the social worker said he had initially "gone to Your Honour's chambers to discuss another matter".

The social worker was an in-house "family consultant" assigned by the court to impartially help resolve high-conflict custody cases. Family consultants, who may also be psychologists, are effectively witnesses.

Their written reports – which make recommendations about parenting arrangements – often play a pivotal role in evidence.

The Family Law Act grants no authority to family consultants to interact with a judge beyond providing the reports and giving oral evidence in an open court.

Ms Brasch's application was supported by the mother's barrister Jenny Hogan.

In court, Ms Hogan asked Justice Barry to disqualify himself due to a reasonable apprehension that he would not decide the case in an "impartial and unprejudiced" way.

In responding to the application and aborting the trial, Justice Barry told the court: "I am tempted to make a number of observations but have concluded so far as the discussions with (the social worker) are concerned, discretion is the better part of valour.

"I will be acceding to the application for me to step aside."

One Brisbane barrister told The Courier-Mail that any closed conference between a judge and a family consultant raised the possibility of one party influencing the other – unbeknown to the litigants and their counsel.

"How a trial should be conducted is not a matter of private briefings and discussions," the barrister said.

"It's got to be clear (to the court) what the judge is making his mind up on. The process of evidence has got to be transparent."

A top divorce lawyer said the events had rocked Queensland's family law fraternity and reflected a "mickey mouse" court.

"It's a disgrace," said the lawyer.

The abandoned trial, which entailed substantial court and legal costs, will be re-heard before another judge.