FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Andreevich & Andreevich (No 2) [2023] FedCFamC1F 43
File number(s): MLC 8101 of 2020 Judgment of: MCNAB J Date of judgment: 9 February 2023 Catchwords: FAMILY LAW – PROPERTY – Interim Application – Application for Recusal – Whether statement by judge in the course of discussion with counsel in an interim application gave rise to reasonable apprehension of bias –application dismissed Legislation: Family Law Act 1975 (Cth) ss 60CC, 75(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 7.11
Cases cited: AB v XYZ Pty Ltd [2019] VSC 788
Charisteas v Charisteas [2021] HCA 29
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Johnson v Johnson (No 3) (2000) 201 CLR 488
JRL, Re; Ex parte CJL; sub nom Renaud, Re; Ex parte CJL (ALJR) (1986) 161 CLR 342
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Pearlman v WA a/Information Commissioner [2019] WASC 257
Vakauta v Kelly (1989) 167 CLR 568
Without Fear or Favour: Judicial Impartiality and the Law on Bias (ALRC Report 138)
Aronson, Mark & Weeks, Judicial Review of Administrative Action and Government Liability (sixth edition) P. 656 (para 3).
Division: Division 1 First Instance Number of paragraphs: 53 Date of hearing: 23 January 2023 Place: Melbourne Counsel for the Applicant: Dr R Smith Solicitor for the Applicant: KHQ Lawyers Solicitor for the Respondent: Ms H of Garland Hawthorn Brahe ORDERS
MLC 8101 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ANDREEVICH
Applicant
AND: MR ANDREEVICH
Respondent
order made by:
MCNAB J
DATE OF ORDER:
9 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The wife’s application filed 7 November 2022 that I recuse myself from further hearing the matter is dismissed.
2.The question of costs be reserved to the trial.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Andreevich & Andreevich has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J:
This matter relates to an application for recusal filed on 7 November 2022 by the applicant wife, Ms Andreevich, who is the respondent in broader proceedings. The respondent husband, Mr Andreevich, filed a response on 4 January 2022, seeking for the wife’s application…
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CaseChat Overview and Summary
The legal issue before the court was whether the comments made by the judge during a hearing were of a nature that would give rise to a reasonable apprehension of bias. The court held that in order for disqualification to be made out, there must be a reasonable apprehension of bias by reason of prejudgment and this must be firmly established. The court found that the comments made by the judge were made in the context of a discussion regarding the valuation of a business and were not of a nature that would give rise to a reasonable apprehension of bias.
The court's reasoning was that the comments made by the judge were in the context of a discussion regarding the valuation of a business and were not of a nature that would give rise to a reasonable apprehension of bias. The court held that it was important that justice must be seen to be done, but it was equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
The final orders of the court were that the application for recusal was dismissed and the question of the husband’s costs was reserved to the trial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In JRL, Re; Ex parte CJL; sub nom Renaud, Re; Ex parte CJL (ALJR) (1986) 161 CLR 342 at page 352, Mason J observed: It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ''firmly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. (Citations Omitted). CONSIDERATION Context is all important in consideration of an application of this kind.[2] The impugned comments were made in the context of a discussion between the bar and bench regarding the nature of a business and the approaches to valuation of same. The comments were specifically made in the context of determining whether the husband should have leave to rely on further expert evidence in response to the evidence of a single expert. It also occurred in the context where the wife had filed a sworn statement of assets which had attributed a value of $500,000 to the business and where the single expert had attributed a value of $19,004 (as value to owner). [2] Aronson, Mark & Weeks, Judicial Review of Administrative Action and Government Liability (sixth edition) P. 656 (para 3). In my view, a reasonable observer hearing or reading the comments would understand that the court was recognising that some medical professionals who operate businesses are very interested in money and that commerciality extends to buying and selling businesses. Counsel who was appearing for the wife at the hearing recognised this as the effect of the comment because the exchange that followed related to that question of whether a business could be sold and to whom. The discussion was focused on medical professionals and medical practitioners (in the context of the competing expert reports under discussion). In my view, the reference in submissions to substituting “women” or “Irishmen” into the relevant phrase to best establish an appearance of bias is inapt. Medical professionals were referred to as that is the type of business that was under consideration and the point was raised that commerciality is central to business and that commerciality extends to whether a business can be bought and sold.