ANDERSON & TAYBOR

[2012] FamCA 929

FAMILY COURT OF AUSTRALIA

ANDERSON & TAYBOR [2012] FamCA 929

FAMILY LAW – DISQUALIFICATION – Whether the Judge should disqualify himself because of apprehended bias – Where Judgment and Final Orders were delivered by the Judge following a hearing in September 2009 in the Respondent’s favour – Consideration of the test in Ebner & Official Trustee in Bankruptcy - Whether the Applicant had waived her right to raise the issue of disqualification due to delay having regard to the matter of Strahan & Strahan – Application allowed in circumstances of the case

FAMILY LAW – COSTS – Applicant to pay costs thrown away of (a) the Independent Children’s Lawyer and (b) the father in two sums being (i) a specified amount to be placed in a controlled monies account, (ii) an amount as assessed on a solicitor and client basis

Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337
Rice & Asplund [1979] FLC 90-725; [1978] FamCA
Smits & Roach (2006) 227 CLR 423
Strahan & Strahan (Disqualification) (2009) FLC 93-414; (2009) 42 Fam LR 252; [2009] FamCAFC 204

APPLICANT: Ms Anderson

RESPONDENT: Mr Taybor

INDEPENDENT CHILDREN’S LAWYER: Ms Stanford

FILE NUMBER: PAC 5282 of 2008

DATE DELIVERED: 12 October 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 12 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lucy

SOLICITOR FOR THE APPLICANT: Accentro Legal

COUNSEL FOR THE RESPONDENT: Mr Gersbach

SOLICITOR FOR THE RESPONDENT: Matthews Folbigg Pty Ltd

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER: Ms Stanford

Orders

1. That within three (3) business days of today the wife shall pay to Legal Aid New South Wales the sum of $5,040 for payment of costs of the Independent Children’s Lawyer.

2. That the mother shall within three (3) business days deposit in the trust account of the husband’s solicitors the amount of $15,818.51.  That sum is to be held by that firm and to be retained in some form of controlled money account.

3. That the mother shall pay to the father, his costs on a solicitor and client basis in relation to her application filed on 15 October 2010, from the date of receipt of that application and to the conclusion of today’s hearing.

4. That the payment of that amount is to be made within fourteen (14) days of the issue of such certificate of assessment and that will entitle the solicitors for the father to remove that money from the controlled money account as specified and apply it to their costs.

5. That I list the matter before another Judge sitting in this Registry on such date as may be arranged or allocated by that Judge for a mention of that matter.

6. That I otherwise disqualify myself from any further hearing in the matter.

7. I note that I have read the material which has been put before me in this matter and I will attach a list of documents as an attachment to my reasons for Judgment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Anderson & Taybor as been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5282 of 2012

Ms Anderson

Applicant Mother

And

Mr Taybor

Respondent Father

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Background

1. Before me today is an application on behalf of the mother that I disqualify myself from further participation and conduct in this matter.  The matter has something of a history.

2. The matter was heard by me on a final basis from 31 August to 3 September 2009.  On 4 September 2009, I delivered Judgment and made Orders, the effect of which was that the father was to have sole parental responsibility for the child, the child was to live with the father and the mother was to have specified time with the child.  A significant part of the material before the Court at that hearing was the expert’s report prepared by Dr B, following interviews with the parties.  There was, as I understand it, no appeal lodged against my decision.

3. On 15 October 2010, just over a year after my decision, a firm of lawyers acting on behalf of the mother filed an application seeking to vary the Orders of the 4 September 2009.  The mother swore and filed an affidavit in support of that application. 

4. On 18 November 2010, the father filed a response seeking dismissal of the mother’s application and costs.  A directions hearing was originally set for 22 November 2010 but was adjourned to 24 March 2011.  The mother filed further material, and on 24 March 2011, a fresh lawyer appeared on behalf of the mother and indicated that the mother relied on significant changes in circumstances and the matter required, more or less in accordance with the authority of cases such as Rice & Asplund[1], to be looked at anew.

   [1] [1979] FLC 90-725; [1978] FamCA

5. Issues of further reports were raised, and to some extent, dealt with in that hearing.  In that hearing, I asked whether there was any objection to me continuing to have the matter before me, and I was told there was not.  The matter was then adjourned to 9 May 2011 for the purpose of a hearing on what might be described as the threshold issue as to whether or not there were sufficient change in circumstances, or fresh matters, requiring the possibility of further litigation.  I made Orders on 3 May 2011 when the matter was relisted.  On that occasion, the hearing fixed for 9 May 2011 was vacated.  It was noted that the mother was to attend upon Dr B because the issue of her mental health was clearly something that required examination.

6. Nothing then was heard by the Court in respect of the matter until 2 August 2012, when the matter was before me with a third solicitor acting for the mother.  Once again, apart from anything else, the issue of me continuing to hear the matter was raised, and I was told there was no difficulty.  Thereafter, on 19 September 2012 that solicitor filed a Notice of Ceasing to Act.  

7. On 24 September 2012, new solicitors acting on behalf of the mother filed an Application in a Case seeking my disqualification, and seeking an adjournment from today’s date for the hearing of the threshold issue.  It is that application in particular – that is, that I disqualify myself – that is pressed today.

The Application for Disqualification

1. It is the mother’s case that if one were to apply what I accept to be the test in Ebner & Official Trustee in Bankruptcy[2] that I would disqualify myself.  The test set out in that decision is that a fair-minded lay observer might reasonably apprehend the Judge might not bring an impartial mind to the resolution of the question required to be decided or determined.

   [2] (2000) 205 CLR 337

2. I accept further that the application of the test requires two steps: firstly, it requires the identification of what is said might lead a Judge to decide the case other than on its legal and factual merits; and secondly, there must be an articulation of the logical connection between the matter identified and the feared deviation from the course of deciding the case.

3. It appears to me that what the mother is saying is that, having reached a decision and relied significantly on the report of an expert, that a lay minded observer might well take the view that I would be unlikely to find in a different fashion in the event of a rehearing.

4. These are always difficult matters.  I accept the test is one of apprehension and not actuality.  There is a further complicating factor, that is, as I have referred to on a number of occasions, the mother’s previous legal representatives have indicated there was no objection to me continuing to hear the matter.  The last in line of her legal representatives now say they have such an objection. 

5. I have been referred to the authority of Strahan & Strahan[3], a decision of the Full Court of the Family Court of Australia.  Particularly, I am referred to a number of paragraphs of that Judgment commencing with paragraph 96.

   [3] (2009) FLC 93-414; (2009) 42 Fam LR 252; [2009] FamCAFC 204

6. Paragraph 96 made it clear that their Honours of the Full Court did not find delay as being fatal to the wife’s application for disqualification.  I was taken by counsel for father in this case to the decision of the High Court of Australia of Smits & Roach[4].  That decision appeared to sound in quite similar reasons that are expanded and put to me by the counsel for the father.  There is, however, a significant difference.  To my mind, in Smits & Roach (supra), what was being argued was that the Judge should be disqualified for a familial relationship with a legal practitioner.  What is said here is that I have heard the matter, that it could be perceived that I have formed an unshakeable view in respect of it, and despite the weight of any evidence, it would be unlikely that I would change my view.

   [4] (2006) 227 CLR 423

7. I am concerned that the mother has advanced the matter in the manner that she has, with different representation on each occasion until her present lawyers commenced to act on her behalf, and with no objection being taken to me hearing the matter being put to the Court as to her position.  Certainly, I would describe it as being at the heel of the hunt that the application for disqualification is made.  It will be remembered that the matter was fixed for today on 2 August 2012 as to the threshold issue.

8. It is submitted by counsel for the father that the mother has waived her right to now raise this issue.  In the decision of Strahan (supra), to which I have referred, paragraph 93 refers to Smits & Roach (supra) and the matters referred to by Kirby J, as he then was.

9. Their Honours of the Full Court at paragraph 93 of Strahan (supra) said:

   On becoming aware of circumstances which support an application for disqualification, counsel must promptly bring the matter to the attention of the tribunal ...

10. To my mind, that is, in this case, something of a two-edged sword.  It could be argued that all those that have gone before the mother’s present solicitor and counsel had that obligation and failed to discharge it.  However, I am satisfied that on becoming involved in the matter, the mother’s current legal representatives did that which was required and sought to have the matter urgently relisted (which it was on Monday last) to agitate this issue of whether or not I should disqualify myself for apprehended bias.

11. Another matter, which I make public, is that, having regard to the time this matter has taken to get to this point, my own impending retirement from the bench might have some bearing on whether or not I could hear this matter to finality.  However, that, to my mind, is not the determining factor.

12. With some real misgiving, I have come to the conclusion that the mother should be entitled to rely on what might be seen to be the view of a fair-minded layperson that I would not bring to bear an open mind.  I stress that that is not a situation that has been put to me as a fact, and I would be concerned had it been presented to me as such by those advancing the matter.

13. Accordingly, I will do nothing further in this matter, save and except that I will deal shortly with the issue of costs.  I will not deal with the issue of whether or not the mother should be permitted, or required, to put on further material before the threshold issue is addressed.  That is a matter to be agitated before the Judge who is allocated to hear the matter.

The Applications for Costs

1. It was put to me in opening by counsel for the mother that the father would suffer no prejudice, save as to costs.  Certainly, the father retains the benefit of the Orders made in his favour following the hearing in September 2009.  I accept that this matter has been prolonged, and that is a matter that would have caused him some concern.

2. I accept that by taking the steps that I have indicated I will take, that the matter will be further prolonged.  However, there is no attempt at this stage, that I am aware of, to in any way interfere with the Final Orders previously made.  Therefore, the father continues to have what might be called “the fruits of his litigation” and the benefit of previous Orders that I have made.

3. I am satisfied, therefore, that it is appropriate that the mother bare the father’s costs of and incidental to these proceedings to date.

4. The Independent Children’s Lawyer says quite properly that her costs have been thrown away.

5. There have been assessments by each of the Independent Children’s Lawyer and the father’s counsel as to amounts that they say are appropriate.  So far as the father is concerned, the mother proposes that she pay into Court an amount of $15,818.51 (the amount assessed by the father’s counsel) within three days.  I am satisfied that the money should be paid to the father’s solicitors, rather than the Court, in the circumstances of this case.  The mother requires an assessment be made of the father’s costs and that is her right. 

6. So far as the Independent Children’s Lawyer is concerned, I am of the view that the amount sought is a most reasonable one.  It is not based on time costing, as might be the case with private practitioners, and I find the amount she seeks of $5,040 entirely appropriate.

7. I make the Orders set out at the commencement of these reasons for Judgment.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 12 October 2012.

Legal Associate:

Date:    9 November 2012

List of Documents

(As per the father’s case outline)

Documents served by the mother (upon the father):

(a)Initiating Application filed 15 October 2010

(b)Affidavit of the mother sworn 15 October 2010 and filed 15 October 2010

(c)Affidavit of the mother sworn 24 January 2011 and filed 11 February 2011

(d)Affidavit of Ms C sworn 24 January 2011 and filed 11 February 2011

(e)Affidavit of the mother sworn 11 February 2011 and filed 11 February 2011

(f)Notice of Address for Service e-filed 21 April 2011

(g)Affidavit of the mother sworn 30 July 2012 and e-filed 31 July 2012

(h)Notice of Ceasing to Act e-filed 19 September 2012

1. Application in a Case filed 24 September 2012

(j)Affidavit of Mr D sworn 20 September 2012 and filed 24 September 2012

Documents relied upon by the father:

(a)Response filed 18 November 2010

(b)Affidavit of the father sworn 19 September 2012 and e-filed 21 September 2012

Relevant ‘Court’ Documents

(a)Orders of the Family Court of Australia, Parramatta dated 4 September 2009

(b)Judgment dated 4 September 2009

(c)Orders of the Family Court of Australia, Parramatta dated 22 November 2010

(d)Orders of the Family Court of Australia, Parramatta dated 11 February 2011

(e)Orders of the Family Court of Australia, Parramatta dated 24 March 2011

(f)Orders of the Family Court of Australia, Parramatta dated 2 August 2012

(g)Report of Court Expert, Dr B dated 31 August 2009