Akhtar & Gaber
[2021] FamCAFC 22
•18 FEBRUARY 2021
FAMILY COURT OF AUSTRALIA
Akhtar & Gaber [2021] FamCAFC 22
Appeal from: Akhtar & Gaber [2020] FamCA 298 Appeal number(s): EAA 67 of 2020 File number(s): PAC 3652 of 2013 Judgment of: ALDRIDGE, WATTS & AUSTIN JJ Date of judgment: 18 February 2021 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – 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: Akhtar v Gaber [2019] HCASL 10
Akhtar & Gaber (No. 2) [2018] FamCAFC 176
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
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Division: Appeal Division Number of paragraphs: 24 Date of hearing: 18 February 2021 Place: Sydney Appellant: Litigant in person Solicitor for the Respondent: N J Papallo Lawyers ORDERS
EAA 67 of 2020
PAC 3652 of 2013APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR AKHTAR
Appellant
AND: MS GABER
Respondent
ORDER MADE BY:
ALDRIDGE, WATTS & AUSTIN JJ
DATE OF ORDER:
18 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The appellant’s Application in an Appeal filed on 5 February 2021 be dismissed insofar as it seeks the disqualification of Aldridge J.
2.The appellant’s Application in an Appeal filed on 5 February 2021 be dismissed insofar as it seeks the disqualification of Watts J
3.The appellant’s Application in an Appeal filed on 5 February 2021 be dismissed insofar as it seeks the disqualification of Austin J.
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 Akhtar & Gaber has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
By an Application in an Appeal filed on 5 February 2021, Mr Akhtar (“the appellant”) seeks the disqualification of each member of this Court from hearing his appeal filed on 25 May 2020. The appellant asserts that he believes on reasonable grounds that each of us will not and cannot bring an impartial mind to his case and that he has no trust and confidence in our judgment. He also asserts that any fair-minded lay observer would share that belief.
These are my reasons for refusing to disqualify myself.
On 14 September 2018, I was a member of the bench that heard an application for leave to appeal brought by the appellant against orders made by a judge of the Family Court of Australia on 19 February 2018 in parenting proceedings between the appellant and Ms Gaber (“the respondent”). The order the subject of that application for leave to appeal was:
The [appellant’s] Application in a Case filed 25 May 2017 and the Application for Review of the orders made by the Senior Registrar on 9 August 2017 be consolidated with the primary proceedings in respect of which trial directions were made on 13 November 2017.
In my reasons for judgment, I was of the view that the order the subject of the application for leave to appeal was a procedural order which is not an order of the kind that ordinarily attracts leave to appeal and that there was no reason to think that the order of the primary judge was attended by any doubt, let alone sufficient doubt, to warrant it being reconsidered by the Full Court (Akhtar & Gaber (No. 2) [2018] FamCAFC 176 (“Akhtar & Gaber (No. 2)”) at [19]).
Further, I indicated that in my view, there was no utility in the hearing of an interim application for parenting orders (which was the effect of the order sought by the appellant) because the parenting issues between the parties had been settled by final orders that had been made prior to the hearing of the appeal (Akhtar & Gaber (No. 2) at [22]). Accordingly, the appellant’s appeal was futile and an abuse of process. I was of the opinion that leave to appeal should be refused (Akhtar & Gaber (No. 2) at [23]). Ainslie-Wallace and Watts JJ agreed.
The appellant sought special leave to appeal to the High Court from that judgment. On 6 February 2019, the High Court dismissed the appellant’s application (Akhtar v Gaber [2019] HCASL 10), saying:
2.The [appellant] identifies no question of principle which it would be in the interests of justice for this Court to consider or any reason to doubt the correctness of the Full Court’s judgment.
Nonetheless, the appellant submits that the reasons I gave “were based on an unjust and prejudicial [judgment]”, that he does not wish to “repeat his bitter experience again” and that he has “lost trust, confidence and [belief] in the impartiality” of the judges assigned to hear this appeal, in that we will not bring an unprejudiced and impartial mind to the resolution of his current appeal (the appellant’s affidavit filed on 5 February 2021).
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).
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…
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).
In Ebner, Gleeson CJ, McHugh, Gummow and Hayne 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.
In the present case, the apprehended bias asserted by the appellant is the apprehension that, because of my role in the appellant’s earlier application for leave to appeal, I will not bring an impartial mind to this appeal and that I therefore have, in effect, prejudged its outcome.
In the appellant’s earlier application for leave to appeal, I applied well-known principles of law to uncontested facts. The High Court held that I did so correctly. There is no reason whatsoever for a fair-minded lay observer to think that I would decide this appeal, on which I have been assigned to sit, other than on its merits.
Accordingly, I decline to recuse myself from these proceedings.
WATTS J
By an Application in an Appeal filed on 5 February 2021, the appellant seeks that I disqualify myself from hearing this appeal.
On 14 September 2018, as a member of the bench in an appeal brought by the appellant and anonymised as Akhtar & Gaber (No. 2), I concurred with the reasons given and orders proposed by Aldridge J.
The fact that I decided that case in that way is the basis upon which the appellant now makes an application for me to recuse myself from hearing this appeal. In this application, I adopt the statements of relevant facts and the passages from Ebner to which Aldridge J has referred.
I agree with his Honour that in the prior appeal relevant well-known principles of law were applied to uncontested facts and the appellant has not established that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that are required to be decided in this appeal.
Accordingly, I dismiss the application that I recuse myself.
AUSTIN J
By the same Application in an Appeal filed on 5 February 2021, the appellant seeks my disqualification from the pending appeal due to an apprehension of bias.
I adopt the separate reasons given by Aldridge J setting out the legal principles pertaining to apprehended bias.
Unlike Aldridge and Watts JJ, I have had no prior involvement of any sort in any litigation brought by or against the appellant. He is as unknown to me as I am to him. The affidavit filed by the appellant in support of his application refers exclusively to the content of the judgment given by the Full Court in an earlier appeal as the only justification for my disqualification, even though I had no part in it.
The appellant has disclosed no grounds at all upon which my disqualification could be warranted on any of the four distinct but overlapping categories covered by the doctrine of apprehended bias (Webb v The Queen (1994) 181 CLR 41 at 74; Ebner at 348–349). I have no interest in the outcome of the substantive appeal, no aspect of my judicial conduct is the subject of the appellant’s complaint, I have no association with any person which could compromise my impartiality in determining the appeal, and I am not in possession of any extraneous information which might affect the appeal.
Accordingly, I too decline to disqualify myself from hearing the appellant’s appeal.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justices Aldridge, Watts & Austin. Associate:
Dated: 19 February 2021
0
6
0