Acheson & Begbie
[2023] FedCFamC1A 240
•5 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Acheson & Begbie [2023] FedCFamC1A 240
Appeal from: Acheson & Begbie [2023] FedCFamC1F 704
Acheson & Begbie [2023] FedCFamC1F 705
Appeal number: NAA 264 of 2023 File number: NCC 3670 of 2019 Judgment of: HARTNETT, RIETHMULLER AND STRUM JJ Date of judgment: 5 December 2023 Catchwords: FAMILY LAW – APPEAL – RECUSAL APPLICATION – Application made for recusal on the basis of apprehended bias – Where the applicant father filed an Amended Application in an Appeal on 29 November 2023 seeking the recusal of one of the primary judges comprising the Full Court – Where the relevant test is well established by Ebner v Official Trustee in Bankruptcy [2000] HCA 63, Johnson v Johnson [2000] HCA 48 and QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2023] HCA 15 – Where the test is not satisfied – Application dismissed. Cases cited: Acheson & Begbie [2023] FedCFamC1F 704
AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236; [2011] VSCA 425
Cassell & Kolar (No 6) [2023] FedCFamC1F 764
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15
Number of paragraphs: 30 Date of hearing: 5 December 2023 Place: Sydney Solicitor for the Applicant: Mr Parisi Counsel for the Respondent: Mr Duane Solicitor for the Respondent: Kennedy & Cooke Solicitor for the Independent Children's Lawyer: Venus & Smart ORDERS
NAA 264 of 2023
NCC 3670 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ACHESON
Applicant
AND: MS BEGBIE
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HARTNETT, RIETHMULLER AND STRUM JJ
DATE OF ORDER:
5 DECEMBER 2023
THE COURT ORDERS THAT:
1.Order 4 as sought in the Applicant’s Amended Application in an Appeal filed 29 November 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Acheson & Begbie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORESTRUM J:
The applicant seeks leave to appeal and if successful, appeals from two judgments of the primary judge: one delivered on 22 August 2023, in which her Honour dismissed his application that she recuse herself (“recusal judgment”); and the other, also delivered that day, in which her Honour made final parenting orders (“parenting judgment”). If the appeal against the recusal judgment succeeds, ordinarily the appeal against the parenting judgment would also, in turn, succeed. However, no grounds of appeal are directed to the parenting judgment.
The recusal judgment was anonymised and reported as Acheson & Begbie [2023] FedCFamC1F 704.
About a fortnight later, on 5 September 2023, I delivered judgment in a matter reported as Cassell & Kolar (No 6) [2023] FedCFamC1F 764. That was an application that I recuse myself on the ground of alleged apprehended bias. I dismissed that application. In my reasons for judgment, I reviewed a number of authorities in this and other jurisdictions, at first instance, on intermediate appeal and in the High Court. One of the first instance decisions to which I referred was the primary judge’s recent recusal judgment.
At that stage, no appeal had been instituted against the judgment the subject of this application for leave to appeal.
At [58] of my judgment, I referred to [7] of the recusal judgment and said:
In relation to apprehended bias, in Acheson & Begbie [2023] FedCFamC1F 704 at [7], [the primary judge] recently said:
The doctrine of apprehended bias deals with the circumstances in which a judge may be perceived to decide a case other than on its merits … There are four potentially overlapping categories of apprehended bias:
(1)Disqualification by interest;
(2)Disqualification by conduct;
(3)Disqualification by association; and
(4)Disqualification by extraneous information.
At [77]–[79] of my judgment, I referred to [45] and [48]–[50] of the recusal judgment and said:
77Apposite to the present case, in Acheson & Begbie at [45], [the primary judge] said:
… I have canvassed every intervention in the father’s evidence (save innocuous requests to repeat matters I may not have been able to hear and the like). They could not on any scale be regarded as excessive. The question then is: were they inappropriate? Placing myself as far as is possible in the position of fair-minded lay observer, remembering that it is the court’s view of the public’s view which is relevant, I am still satisfied that there was nothing in the interventions by which a fair-minded lay observer would have concluded that I would not bring an impartial mind to the task: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 88 [21], quoting Webb v The Queen (1994) 181 CLR 41 at 52.
Issue is taken in the application for leave to appeal with her Honour’s use of the double would as opposed to the double might.
78 In relation to judicial body language, her Honour said at [48]–[50]:
[48]I cannot know whether my facial expression was as described, so, for the purpose of these reasons I have treated counsel’s observation as accurate; that is, when counsel says she saw my face register displeasure at her question then her observation was accurate.
[49]It is inevitable that judges will from time to time experience frustration. It is equally true that such frustrations are almost always better masked than revealed but judges are human and will not always function as they would ideally chose [sic]. The question of where the limit is must be one of fact and degree. The case law is helpful: see, eg, Miedis & Miedis (2020) 62 Fam LR 78 at [27].
[50]The interchange arose in a context where counsel for the applicant and I were at odds about the acceptable parameters for re-examination. This leads to the next issue raised by the applicant in support of an application for disqualification. With this context in mind, a fair-minded lay observer would not apprehend bias to be coming from the bench on the basis of the body language asserted.
79 Those observations are similarly apposite to this case.
By order 4 of his amended Application in an Appeal filed on 29 November 2023, the applicant seeks that I “be disqualified, from hearing the appeal” [sic].
At paragraph 32 of his affidavit affirmed on 16 November 2023, the applicant refers to his amended Notice of Appeal filed on 18 October 2023 and deposes:
… I then discovered that the Honourable Justice Strum, before I even filed the [Notice of Appeal on 19 September 2023], already applied the decision under challenge, as a precedent, in Cassell & Kolar (No 6) [2023] FedCFamC1F 764. On 20 October 2023, I e-mailed the Registry. A copy of my e-mail is at pages 37-40 of [MA]-1. I objected to his Honour sitting.
(Emphasis added)
In that email, dated 20 October 2023, the applicant relevantly said:
… I understand that an appeal judge, the Honourable Justice Strum, before my Notice of Appeal was filed, already applied the decision under challenge, as a precedent: Cassell & Kolar (No 6) [2023] FedCFamC1F 764 at [58], [77]-[79]. I am concerned, that a fair-minded lay observer might reasonably apprehend “the possibility that his Honour formed and retained an attitude to the appellant incompatible with the degree of neutrality required dispassionately to resolve issues in a subsequent proceeding to which the appellant was a party”: cf QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15 at [55]. In no way questioning his Honour’s subjective commitment, to neutrally resolving the appeal, I raise this, as a formal objection, should the matter go further.
As will be apparent from my reasons for judgment in Cassell & Kolar (No 6), I considered many authorities, of which the primary judge’s recusal judgment was but one. Ultimately, I decided that case in accordance with the authorities by which I was bound, namely, the High Court of Australia and the Full Court of this Court.
In my reference at [58] of my judgment in Cassell & Kolar (No 6), to [7] of the primary judge’s recusal judgment, that merely sets out the four, long-established categories of apprehended bias, which her Honour described as “potentially overlapping”. There is no challenge by the applicant to the correctness of her Honour’s identification of those four categories.
In my reference at [77]–[79] of my judgment in Cassell & Kolar (No 6), to [45] and [48]–[50] of the primary judge’s recusal judgment, those paragraphs do not establish any legal principles; they merely purport to apply established legal principles. The primary judge’s formulation and application of those legal principles is challenged by the applicant in this appeal. The applicant may or may not be correct in this regard; I do not yet know, not having heard the application for leave to appeal. However, her Honour’s recusal judgment was merely illustrative for the purposes of my judgment in Cassell & Kolar (No 6).
I therefore do not agree that I “applied the decision under challenge, as a precedent”, in Cassell & Kolar (No 6) as the applicant asserts.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality of the High Court of Australia said:
6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. 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.
(Footnotes omitted)
Who is the “fair-minded lay observer”? The plurality of the High Court in Johnson v Johnson (2000) 201 CLR 488 said at [13] that:
[W]hile the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.
(Footnotes omitted)
It has been held that the observer “is taken to understand the dynamics of modern judicial practice” (AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236 at [23]) and “that the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally” (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232]).
The applicant, in support of his contention that I should recuse myself, relies upon the recent decision of the High Court in QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (2023) 409 ALR 65 at [55].
In that case, one of the three judges who constituted the Full Court of the Federal Court, when the Director of Public Prosecutions of the Commonwealth, had appeared in opposition to an appeal by the appellant against a conviction. An issue in that case was whether those circumstances were sufficient to have given rise to apprehended bias on the part of the individual judge. The High Court held that the Full Court should have found apprehended bias.
Kiefel CJ and Gageler J said at [37]–[38]:
37The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The “double might” serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”.
38Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
(Footnotes omitted)
Their Honours continued at [45]–[50]:
45The pivotal stage in the analysis on this strand of the appellant’s argument lies in the assessment of the reasonableness, in the circumstances of the case, of an apprehension of that kind from the perspective of a fair-minded lay observer. In undertaking that assessment, “it is the court’s view of the public’s view, not the court’s own view, which is determinative”. The hypothetical fair-minded lay observer is a deliberate and necessary construct which tethers the court’s analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system. The construct provides the “standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system”.
46Here, as the parties properly recognised in argument, much depends on the characteristics to be attributed to the hypothetical fair-minded lay observer in applying that standard. The observer is to be placed in a contemporary setting. Uncritical attitudes of the past cannot be assumed to be those of the present.
47Being “fair-minded”, the observer “is neither complacent nor unduly sensitive or suspicious”. Yet the observer is cognisant of “human frailty” and is all too aware of the reality that the judge is human. The observer understands that “information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making”.
48Being “lay”, the observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge”. Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard “the irrelevant, the immaterial and the prejudicial” and to discharge the judicial function uninfluenced by past professional relationships, “the public perception of the judiciary is not advanced by attributing to the … observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case”. This indicates that the observer will see the person who is currently a judge as the person who was formerly an advocate and may be less inclined to dissociate the advocate from the cause advocated than would someone steeped in the adversary process with a cultivated sense of the ethics of the legal profession and the profundity of the judicial oath.
49Nor is the observer so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias. The observer can be taken to appreciate that a party — especially an individual, and especially a non-citizen facing deportation on the basis of his conviction — might understandably experience a justifiable sense of disquiet in seeing his former prosecutor turn up as one of his judges.
50Though the lesson of Ebner is that each case must be considered by reference to the totality of its own circumstances, the combination of such considerations makes likely the conclusion that a fair-minded lay observer might reasonably apprehend that a judge who has been involved as an advocate in the prosecution of an individual in the past might have developed in that role, and might be unable completely to discard, a mind-set that is unfavourable to the individual to a degree incompatible with the dispassionate resolution of such question as the judge may be called on to decide in a subsequent case to which that individual is a party. The conclusion is even more likely where the earlier prosecution is in some way connected with the case before the court.
(Footnotes omitted)
Their Honours concluded at [55]:
His Honour’s appearance as counsel against the appellant in his earlier conviction appeal was sufficient to give rise to a reasonable apprehension on the part of a fair-minded lay observer of the possibility that his Honour had formed and retained an attitude to the appellant incompatible with the degree of neutrality required dispassionately to resolve issues in a subsequent proceeding to which the appellant was a party. The circumstance that the conviction led to the cancellation of the appellant’s visa so as to be causally related to the subject-matter of the appeal concerning the non-revocation of the cancellation decision reinforced the reasonableness of that apprehension in the circumstances of the case. The facts that his Honour had been concerned as counsel only to argue a question of law and had acquired no knowledge of the criminal history of the appellant not apparent from the record of the decision of the Victorian Court of Appeal were not to the point. Neither that nor any other of the considerations referred to by his Honour was sufficient to allay the apprehension of bias which reasonably arose.
As the High Court held in Ebner v Official Trustee in Bankruptcy and most recently in QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs, whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question which the judge is required to decide entails: identification of the factor which it is said might lead the judge to resolve the question other than on its legal and factual merits; articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
The applicant contends that, merely because I referred to the primary judge’s recusal judgment (amongst many others) in my judgment in Cassell & Kolar(No 6), a fair-minded lay observer might reasonably apprehend the possibility that, in the words of Kiefel CJ and Gageler J in QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs at [55], I “formed and retained an attitude to the appellant incompatible with the degree of neutrality required dispassionately to resolve issues in a subsequent proceeding to which the appellant was a party”. I disagree, for the reasons above.
The passage in QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs at [55] has been taken out of context by the applicant. It is manifest that the position of the judge on the Full Court of the Federal Court in that case was substantially different from my position on this Full Court, such that it is distinguishable. It will be recalled that the judge in question in QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs, prior to his appointment to the bench, when the Director of Public Prosecutions of the Commonwealth, had appeared in opposition to an appeal by the appellant against a conviction. I have had no prior involvement whatsoever with the applicant or in these proceedings.
I have explained, earlier in these reasons, my reference to the five paragraphs from the primary judge’s recusal judgment; I do not agree that, by referring to the recusal judgment now the subject of this appeal, I applied that decision as a precedent in Cassell & Kolar (No 6). In my view, there is no logical connection between the fact of those references and the deviation apprehended by the applicant from me deciding this appeal on its merits.
Further, I do not accept that, in the circumstances, a fair-minded lay observer, who nevertheless understands judicial practice and is aware of the oath or affirmation taken by judges and their judicial obligations more generally, and who is a rational person, neither complacent nor unduly sensitive or suspicious, might, in the circumstances, reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide in this appeal.
Accordingly, I decline to recuse myself and would dismiss order 4 of the amended Application in an Appeal that seeks I do so.
HARTNETT J:
I have listened to the reasons for judgment that his Honour Strum J has delivered. In respect of the application that his Honour recuse himself from taking part in this appeal, the matters raised by the applicant in his affidavit and oral submissions could not lead a fair-minded lay observer to reasonably apprehend that a judge might not bring an impartial mind to the resolution of this appeal. I agree with the reasons delivered by Strum J and that the application that Strum J be recused be dismissed.
RIETHMULLER J:
I too have listened to the reasons delivered by Strum J in respect of the application that his Honour recuse himself from taking part in this appeal. The matters raised by the applicant in his affidavit and submissions could not, in my view, lead a fair-minded lay observer to reasonably apprehend that Strum J might not bring an impartial mind to the resolution of this appeal. I also agree that the application that Strum J be recused be dismissed, for the reasons given by his Honour.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Hartnett, Riethmuller and Strum. Associate:
Dated: 5 December 2023
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