Adlin and Northern Territory Central Authority (No. 6)
[2021] FamCAFC 75
•18 May 2021
FAMILY COURT OF AUSTRALIA
Adlin & Northern Territory Central Authority (No. 6) [2021] FamCAFC 75
Appeal from: Northern Territory Central Authority & Adlin (No. 2) [2021] FamCA 200 Appeal number(s): NOA 20 of 2021 File number(s): DNC 27 of 2020 Judgment of: AUSTIN J Date of judgment: 18 May 2021 Catchwords: FAMILY LAW – APPEAL – Disqualification Application – Where the hearing of the appeal was listed before the Full Court of the Family Court of Australia on 12 May 2021 – Where the father made an oral application seeking the disqualification of the three judges comprising the Full Court – Where the three judges publish individual judgments – Apprehended Bias – Where the application was posited on the content of the reasons for judgement delivered in a previous appeal before the same bench – Where the father was successful in that appeal – Where the relevant test is well established by Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where the test is not satisfied – Application dismissed. Cases cited: Adlin & Northern Territory Central Authority (2020) FLC 94-002; [2020] FamCAFC 313
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR; [2011] HCA 48
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Division: Appeal Division Number of paragraphs: 9 Date of hearing: 12 May 2021 Place: Heard in Brisbane, Delivered in Newcastle Counsel for the Applicant: Mr Coleman SC Solicitor for the Applicant: Hague Convention Legal Practice Counsel for the Respondent: Mr Nicholls QC with Ms Olsson Solicitor for the Respondent: Margaret Romeo ORDERS
NOA 20 of 2021
DNC 27 of 2020APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR ADLIN
Appellant
AND: NORTHERN TERRITORY CENTRAL AUTHORITY
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
12 MAY 2021
ORDER MADE ON 12 MAY 2021:
1.The appellant’s oral application to disqualify Austin J from Appeal No. NOA 20 of 2021 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adlin & Northern Territory Central Authority (No. 6) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J
The substantive appeal in these proceedings was listed for hearing before the Full Court (Ainslie-Wallace, Aldridge and Austin JJ) on 12 May 2021.
Shortly before the hearing commenced, the appellant’s lawyers notified the Court by email that an oral application would be made to disqualify each member of the bench from hearing the appeal.
The application was duly made and was opposed by the respondent. Following the submissions, the application was dismissed and the parties were informed the reasons for the decision would follow. These are my reasons for dismissing the disqualification application in so far as it related to me.
The disqualification application was posited upon the appellant’s contention of apprehended bias, said to arise from the content of various paragraphs within the reasons for judgment delivered by the Full Court (comprising the same bench) in the first appeal between the parties (Adlin & Northern Territory Central Authority (2020) FLC 94-002).
The appellant submitted that the content of certain nominated paragraphs from those reasons (being [20], [23], [24], [36] and [37]) might incline a fair-minded lay observer to reasonably apprehend I might not bring an impartial mind to the resolution of the pending appeal, so as to engage the relevant principles and require my disqualification (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345; Johnson v Johnson (2000) 201 CLR 488 at 492). I rejected the submission.
The appellant was impelled to concede that the content of the nominated paragraphs in the reasons delivered in the first appeal were factually accurate and legally sound, so any personal criticism imputed by him was justifiable. Despite the personal criticism imputed by the appellant, he was successful in the first appeal, which success strongly implies the essential judicial duty of impartiality was still faithfully discharged. Even if the appellant’s criticism could be objectively discerned from the reasons, when it obviously did not engender any lack of impartiality in the first appeal, it is difficult to conceive how such criticism could now be resurrected to vindicate a claim of apprehended bias in this second appeal.
The appellant sought to contend such logic does not follow but, even so, the requisite test must still be satisfied by his submissions.
As is well known, before any disqualification application can succeed, the logical connection between the judicial conduct identified to be the basis of the apprehension of bias and the feared deviation by the judge from the duty to decide the case on its merits must be clearly articulated (Ebner at 345; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [63]). The bald assertion of it will not suffice.
Here, no logical connection was demonstrated. The test is objective and no rational fair-minded observer, who is aware of judicial obligations and is neither complacent nor unduly sensitive or suspicious (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232]), could be persuaded otherwise.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 18 May 2021
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