Adlin & Northern Territory Central Authority (No. 5)

[2021] FamCAFC 74

FAMILY COURT OF AUSTRALIA

Adlin & Northern Territory Central Authority (No. 5) [2021] FamCAFC 74

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:

ALDRIDGE J

Date of judgment:

18 May 2021

Catchwords:

FAMILY LAW – APPEAL – APPLICATION FOR DISQUALIFICATION – Apprehended bias – Where the appellant seeks disqualification of each member of the bench – Separate reasons provided by each judge – Test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 not satisfied – Litigants not to pick and choose judges – Application dismissed.

Cases cited:

Adlin & Northern Territory Central Authority (2020) FLC 94-002; [2020] FamCAFC 313

Adlin & Northern Territory Central Authority (No. 3) [2021] FamCAFC 70

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Rajski v Wood (1989) 18 NSWLR 512

Re: J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342; [1986] HCA 39

Division:

Appeal Division

Number of paragraphs:

10

Date of hearing:

12 May 2021

Place:

Brisbane (via video link)

Counsel for the Appellant:

Mr Coleman SC

Solicitor for the Appellant:

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 2020

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR ADLIN

Appellant

AND:

NORTHERN TERRITORY CENTRAL AUTHORITY

Respondent

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	12 MAY 2021

THE COURT ORDERED ON 12 MAY 2021 THAT:

1.The appellant’s oral application be dismissed insofar as it seeks the disqualification of Aldridge J in Appeal No. NOA 20 of 2021.

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. 5) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE J:

1. The basis for the application that I disqualify myself from the hearing of this appeal has been set out in the reasons of Justice Ainslie-Wallace in Adlin & Northern Territory Central Authority (No. 3) [2021] FamCAFC 70.

2. The test for determining whether a judge should disqualify himself or herself on the ground of apprehended bias 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” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [6]) (footnote omitted).

3. In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ explained the operation of the principle as follows:

   8.… 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 of the course of deciding the case on its merits…

4. It is well established that judges have an obligation to sit on matters that are assigned to them, except where there is some good reason, such as actual bias or the reasonable apprehension of bias, for them not to sit. It is not for litigants to pick and choose judges according to their perception as to the way that their choice might advantage them or disadvantage their opponents (Rajski v Wood (1989) 18 NSWLR 512 at [519]–[520]; Re: J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 per Mason J at 352).

5. In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ said:

   19.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 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.

6. In the present case, the apprehended bias asserted by the appellant is the apprehension that because of my role in the earlier appeal (Adlin & Northern Territory Central Authority (2020) FLC 94-002), I would not bring an impartial mind to this appeal and that, therefore, have in effect, prejudged its outcome.

7. The fact that I sat on an earlier appeal involving the present parties cannot, of itself, justify recusal from this appeal.

8. Counsel for the appellant accepted that the earlier decision was factually and legally correct, and indeed, in his client’s favour, but submitted that the reasons included an implied criticism of his client’s procedural delays. It was not suggested that any such criticism was unjustified.

9. Taking the appellant’s position at its highest, I do not consider that an implied criticism of a party not identifying his case and producing his evidence in a timely manner can lead to the conclusion that I would not decide the appeal on its merits. The basis of the application does not constitute a substantial reason for disqualification.

10. For those reasons, I refused to recuse myself from the appeal.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       18 May 2021