Bacu and Bacu (Disqualification)

[2010] FamCA 965

FAMILY COURT OF AUSTRALIA

BACU & BACU (DISQUALIFICATION) [2010] FamCA 965

FAMILY LAW – COURTS AND JUDGES – disqualification application – apprehended bias

R v Watson;  ex parte Armstrong (1976) 136 CLR 238
Johnson & Johnson (2000) 201 CLR 488
Re JRL;  ex parte CJL 161 CLR 342
Concrete Proprietary Limited v Parramatta Design and Development Proprietary Limited [2006] HCA 55
Ebner v The Official Trustee in Bankruptcy; Clenae Proprietary Limited v ANZ Banking Group Limited (2001) 205 CLR 337
Antoun v R (2006) 224 ALR 51

Brown & Brown [2007] FamCA 493

Family Law Act 1975 (Cth)

APPLICANT: Ms Bacu

RESPONDENT: Mr Bacu

FILE NUMBER: PAF 1866 of 2004

DATE DELIVERED: 26 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 26 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McFarlane

COUNSEL FOR THE RESPONDENT: Mr McGrath

Orders

1. The husband’s application that I disqualify myself from the further hearing in the proceeding/case is dismissed.

2. I note that at the request of the husband’s counsel the record notes that the husband continues to maintain his objection to my further hearing this matter, notwithstanding the determination made by me today.

IT IS NOTED that publication of this judgment under the pseudonym Bacu & Bacu (Disqualification) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 1866 of 2004

MS BACU

Applicant

And

MR BACU

Respondent

REASONS FOR JUDGMENT

1. This is an application by the husband that I disqualify myself from further hearing in this case.  The foundation of the application is as follows:

   a)Credit of the parties will be an important issue in the final determination of the proceeding.

   b)In the determination of an interlocutory application the court was misled by the wife.  A determination of the court was founded upon acceptance of erroneous fact.  At a later time in the proceeding the court will be required to impugn its own decision.

2. The facts relied upon by the applicant husband are as follows. The application arises out of the court ordering a further and new valuation of stock on the parties’ property.  It is contended that the wife, in the process of seeking the appointment of a new single expert, failed to disclose relevant information, namely, correspondence between the wife’s solicitor and the appointed single expert.

3. On 1 October 2010 I heard an application made by the husband who is now represented by a new firm of solicitors.  The effect of that application was to review an earlier decision which gave rise to the appointment of a new valuer of the stock.  The husband criticises my decision in that application which refused to accede to the making of the order sought.

4. It is further submitted that a comment which formed part of the determination of the husband’s recent interlocutory application touched upon a principle area of the dispute.  The comment is said to be a criticism of the husband’s solicitors for contacting the former single expert for the purpose of obtaining evidence to support the husband’s application which was heard on 1 October 2010.

5. In circumstances where it was being proposed by the husband that such single expert should now be reinstalled I thought that an unwise thing to do with possible impact upon such a proposal. 

6. All of the above is said by the husband to cause a fair-minded observer to apprehend the possibility of bias by myself in the further hearing in these proceedings.

7. The wife opposes the disqualification application. She describes it as “In substance and impermissible collateral attack on the judgment of this court dated 1 October 2010.” She says, “The application is simply a misconceived attempt to challenge the correctness of the interlocutory judgment.  No proper basis has been proffered to support a finding of apprehended bias.  The application should be dismissed.”

8. Each party has extensively quoted authority.  I do not propose to repeat it.  I would rely on the High Court decisions in R v Watson;  ex parte Armstrong (1976) 136 CLR 238; Johnson & Johnson (2000) 201 CLR 488; Re JRL;  ex parte CJL 161 CLR 342; Concrete Proprietary Limited v Parramatta Design and Development Proprietary Limited (2006) HCA 55; Ebner v The Official Trustee in Bankruptcy; Clenae Proprietary Limited v ANZ Banking Group Limited (2001) 205 CLR 337; Antoun v R (2006) 224 ALR 51.

9. In this court Justice O’Ryan’s decision in Brown & Brown (2007) FamCA 493 addresses all of the major decisions referred to above and I would rely on that decision.

CONCLUSION

1. In my view, none of the complaints raised by the husband would satisfy the test for disqualification of a judicial officer on the ground of apprehended bias.

2. Nothing relied upon by the husband in this application would lead a fair‑minded impartial observer to apprehend that I might not bring an impartial mind to consider the final determination of issues in this case and/or in the making of consequential orders.

3. I therefore propose to dismiss the husband’s application. 

4. I note that at the request of the husband’s counsel the record notes that the husband continues to maintain his objection to my further hearing this matter, notwithstanding the determination made by me today.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 26 October 2010.

Associate: 

Date:  2 November 2010