Amero and Croft
[2009] FMCAfam 762
•19 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AMERO & CROFT | [2009] FMCAfam 762 |
| FAMILY LAW – Procedural – application for disqualification of federal magistrate. |
| Livesey v New South Wales Bar Association (1983) 151 CLR 288 Johnson v Johnson (2000) 201 CLR 488 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| Applicant: | MR AMERO |
| Respondent: | MS CROFT |
| File Number: | PAC1709 of 2008 |
| Judgment of: | Lindsay FM |
| Hearing date: | 19 May 2009 |
| Date of Last Submission: | 19 May 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 19 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thomas |
| Solicitors for the Applicant: | King Cain Solicitors |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | Higgins & Higgins |
ORDERS
The husband’s application that Federal Magistrate Lindsay disqualify himself from any further hearing of this matter is refused.
IT IS NOTED that publication of this judgment under the pseudonym Amero & Croft is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC1709 of 2008
| MR AMERO |
Applicant
And
| MS CROFT |
Respondent
REASONS FOR JUDGMENT
Before me this morning are competing applications for settlement of property and at the outset of the hearing this morning I took the opportunity to express to the parties some provisional views I had formed from reading the affidavits that had been filed and the case outline documents that have been provided to me by their counsel.
At the conclusion of those remarks counsel for the husband in the proceedings indicated that he wanted to get instructions on an application and ultimately it turned out that he did have instructions to ask me to disqualify myself and the application is made upon the basis that it is said that in my remarks I indicated the possibility of pre-judgment in respect of the issues in dispute.
The question - the test to be applied in respect of a submission that a judicial officer is bringing an impartial mind to bear upon the determination of the issues before him has been the subject of numerous High Court judgments, such as Livesey v New South Wales Bar Association (1983) 151 CLR 288, as well as two High Court determinations arising from Family Court proceedings: the later case of Johnson v Johnson (2000) 201 CLR 488 and the earlier case of R v Watson; Ex parte Armstrong (1976) 136 CLR 248. And there is a particularly useful exposition of the test in all of its aspects to be found in the judgment of Brereton J of the New South Wales Supreme Court in the case of British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109.
The test is whether a reasonably, well-informed lay person might apprehend that I might not bring an impartial mind to bear in the determination of the issues before the Court. There are two possibilities built into the test. The first is that the reasonably informed lay observer “might” apprehend and then that I “might” bring an impartial mind to bear upon the determination of the issues. So looked at in that way the hurdle is not an especially high one to jump.
A lot depends of course upon our view as to the types of matters that the reasonably informed lay person would himself or herself bring to bear in the formation of the view. We are entitled to take the view, I think, that by being reasonably informed the lay observer would understand the nature of the proceedings, the nature of the judicial function and the propriety of, at appropriate times and expressed in appropriate language, provisional views being expressed as the possible outcome in the matter.
In particular, in proceedings in this aspect of the Court’s jurisdiction, it is important to bear in mind that we commenced the trial with the judicial officer being aware of the evidence-in-chief of the parties. So we have already, as it were, taken the sworn evidence of each of the parties. It is the cross-examination of course that has not occurred and the views a judicial officer has of the evidence can undergo radical transformation as a result of cross-examination as I think I pointed out in my remarks. Not only cross-examination of course, but the making of submissions. Counsels’ role in proceedings of this nature are highly significant and it may be that attention is drawn during the course of submissions to aspects of the affidavit material or matters of law to which I had not given any or any appropriate consideration in making my provisional remarks.
The High Court has also made it plain of course in Johnson v Johnson (supra) and also in other cases (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337) that it is quite appropriate for judicial officers to express a provisional view if expressed in appropriate language. The purpose often is to assist the parties and counsel in focussing on the relevant matters in dispute and the scope of the kinds of matters that, at the outset of the proceedings at least, are informing the particular judicial officer’s determination.
Here I specifically made the important and indeed vital reservation that the expression of any view that I was about to make was provisional, that I was open to persuasion, that my views might undergo radical transformation once I had heard cross-examination and heard counsel make submissions. As I think I also indicated at the time, that is a vital qualification and it is vital not only that it is said but that it is meant. That is, as I think I indicated, it is not a matter that is simply said in a perfunctory way for the purposes of the transcript, as it were, as some kind of insurance against the making of an application of this nature, but that it is a true expression of the state of mind.
In particular though, issue is taken with my choice of expression towards the end of my intimation that when I turned to the specific proposal that had been made by the wife through her counsel in the outline of case document as to the magnitude of the payment that should be made to the husband in respect of these proceedings. And I indicated that my provisional view was that she might offer a little more but if there was to be a further financial adjustment (that is in addition to what she was already offering) it would not be much or it would not be significant.
And it is readily accepted that the expression of the view, and in particular in that passage, was relatively robust and straightforward. But it seems to me that if intimations made in proceedings of this nature are to have any worth, they must address the specific, actual circumstances that arise on the evidence. There is no purpose, in my view, in intimations taking the form of general “pep” talks as it were to counsel and the parties by encouraging them to, in a generalised way, to approach the matter of negotiation with a sense of compromise and otherwise dealing with the applications of the parties with some kind of statutory even-handedness in terms of what has actually been proposed. It seems to me that whilst it is always vital for there to be an even-handedness in terms of an openness to the evidence, it might be the case, it often is the case, that at the outset of the proceedings the position adopted on the documents by one party appears to a judicial officer scrutinising the material available at that stage, to be - that one party’s position might be significantly wider of that provisional mark than the other party’s position. And if that is the case my obligation is to say something and to say so even if it has to be said in somewhat forthright language.
The other matter I think that is vitally important in determining applications of this nature is the need to step back in a real sense and to assess the strength of the language and the vigour with which the propositions are expressed to make sure that what is seen to be an appropriate language choice at the time of utterance is indeed, upon reflection, an appropriate language choice against the background of the test expounded in the cases I have mentioned.
And I have given careful consideration to that aspect of the matter but have determined that in the circumstances of this case, in the circumstances of a case with a very small asset pool in which the parties have taken significantly disparate positions at the outset of the proceedings, in this case where there is detailed affidavit material telling me what their evidence-in-chief will be and a very helpful outline of case submissions from each of the counsel, against the background of all of those facts and circumstances and given the express reservations that were made in my reasons as to their provisional nature and as to my mind being open to persuasion, in all of those circumstances I do not consider that a reasonable basis arises for the apprehension in the terms discussed in those cases and so the application of the husband for an order that I disqualify myself from further hearing of this matter is refused.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 31 July 2009
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