Barakat & Farid (No 3)

[2021] FCCA 485

FEDERAL CIRCUIT COURT OF AUSTRALIA

Barakat & Farid (No 3) [2021] FCCA 485

File number(s):	PAC 2275 of 2020
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	17 March 2021
Catchwords:	FAMILY LAW – recusal application – apprehension of bias – application of the two-step test in recusal applications on the ground of apprehended bias – interim parenting decision – application dismissed.
Cases cited:	Ebner v Official Trustee in Bankruptcy [2000] HCA 63 Johnson v Johnson [2000] HCA 48 Laws v Australian Broadcasting Tribunal [1990] HCA 31 Strahan & Strahan (Disqualification) [2009] FamCAFC 204
Number of paragraphs:	28
Date of hearing:	9 March 2021
Place:	Heard in Parramatta, Delivered in Dubbo
Counsel for the Applicant:	Ms Shea
Solicitors for the Applicant:	Somerville Legal
Appearing for the Respondent:	Mr Saadat
Solicitors for the Respondent:	Stewart & Associates

ORDERS

PAC 2275 of 2020

BETWEEN:

MS BARAKAT

Applicant

AND:

MR FARID

Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	17 MARCH 2021

THE COURT ORDERS THAT:

1.The Application in a Case filed 21 January 2021 is dismissed.

2.The proceedings are listed for mention at 9.30am on 26 April 2021.

NOTATION:

(a)The Court notes that there are three outstanding interim applications as follows:

(i)Application in a Case filed by Mr Farid on 29 January 2021 for interim parenting orders which was returnable on 9 March 2021;

(ii)Application in Case filed by Ms Barakat on 2 March 2021 for further interim property orders which was returnable on 9 March 2021;

(iii)Application in a Case filed by Q Pty Ltd on 9 March 2021 for joinder which is returnable on 26 April 2021.

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 under the pseudonym Barakat & Farid (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC

1. These are reasons for judgment in respect of a recusal application brought by the respondent (“father”) by way of an Application in a Case filed 21 January 2021. Both the applicant (“mother”) and the Independent Children’s Lawyer seek that the recusal application be dismissed.

   Background

2. On 2 October 2020, the Court made orders and delivered its reasons for judgment in respect of an interim parenting application, an interim spousal maintenance application and an interim property distribution application.

3. The father filed a Notice of Appeal in respect of the orders made on 2 October 2020, that appeal subsequently being deemed abandoned on 27 November 2020.

4. On 24 November 2020, the Court heard and dismissed the father’s stay application of the 2 October 2020 orders.

5. At the hearing of the recusal application, the father’s legal representative submitted that the father intended on filing an application to have the appeal re-instated. As at the date of the hearing of the recusal application, no such application had been filed.

6. The father makes the application for recusal on the basis of apprehended bias, and relies on 3 particular matters:

   a.Paragraph 102 of the Court’s reasons for judgment published on 2 October 2020;

   b.Paragraph 114 of the Court’s reasons for judgment published on 2 October 2020; and

   c.The fact of the judge having read the Notice of Appeal when determining the stay application.

   Relevant Legal Principles

7. The relevant legal principles in respect of apprehended bias are well established.

8. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63 (“Ebner”), the majority of the High Court (Gleeson CJ, Gummow and Hayne JJ) set out the test for disqualification:

   [6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

   (Emphasis added)

   [7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

   [8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. 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 from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

9. Further, in Johnson v Johnson [2000] HCA 48 (“Johnston”), the majority of the High Court (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) further observed:

   [11] It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

   …

   [13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation.

10. In Strahan & Strahan (Disqualification) [2009] FamCAFC 204 (“Strahan”), the Full Court stated (at [6]):

    In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. This point was firmly made by Mason J in Re JRL; Ex parte CJL… Given the importance of the proposition, and the fact that Strickland J cited it in his reasons, we propose to set out what Mason J said at 352:

    It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. 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”:… 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.

    (Citations omitted)

    Why it was said there is an apprehension of bias

11. It is helpful to reproduce the relevant paragraphs of the October 2020 judgment which are said by the father, to give rise to an apprehension of bias.

    102. The matters alleged in the respondent’s affidavit about the applicant using the legal system to exact revenge, speak to the possibility of the respondent continuing to engage in undermining behaviour of the applicant.

    …

    114. Given:

    (a) the very serious allegations of violence made by the applicant;

    (b) that at least the two older children have apparently witnessed such violence;

    (c) the vulnerability of the children based on their ages, maturity levels and stated experiences;

    (d) that the two older children appear to be significantly negatively impacted by witnessing the violence allegedly perpetrated by the respondent upon the applicant;

    (e) the respondent’s complete denial of any violence;

    (f) that the respondent has not availed himself of the opportunity of spending time with the children pursuant to the orders made in May 2020; and

    (g) the respondent’s stated attitude towards the applicant

    the Court finds that the children would be placed at an unacceptable risk of harm if they were to spend time with the respondent in accordance with his application or indeed in accordance with the applicant’s application.

12. It was submitted on behalf of the father that the use of the word “continuing” in paragraph 102 of the reasons for judgment, indicated that the Court had either reached a “concluded view” or it appeared that it was likely that the Court had reached such a view, namely that the father had engaged in undermining behaviour. It was submitted that such a finding was in respect of a significant or material issue in the proceedings as it relates to parenting, credit and family violence. The father’s subjective view is such that he is now afraid of putting on material which is critical of the mother as it might lead the Court to find that he is engaging in undermining behaviour. 

13. It was further submitted on behalf of the father that without sub-paragraphs (e) and (g) of paragraph 114 of the reasons for judgment, the father’s argument for apprehended bias would fall away. Firstly, it was submitted that the reference to the father’s denial of family violence would give rise to an apprehension of bias because a lay, fair minded observer would see that reference as being critical of the father for denying the allegations of family violence. Secondly, it was submitted that the reference in sub-paragraph (g) to the father’s “stated attitude towards” the mother ties in with the concluded view (or what appeared to be a concluded view) about the father engaging in undermining behaviour as referred to in paragraph 102 of the judgment.

14. Lastly, it was submitted on behalf of the father, if understood correctly, that human nature was such that it would be difficult for there not to be an apprehension of bias in circumstances where the judge who will hear the matter at final hearing is aware of the complaints raised by the father on appeal, having read the Notice of Appeal in determining the stay application.

15. The other matters raised in the father’s affidavit filed 21 January 2021 were not relied upon at the hearing of the recusal application.

    Court’s Determination

16. In assessing what the hypothetical reaction of a fair-minded observer would be, the Court must attribute to him or her knowledge of the actual circumstances of the case, or put another way, knowledge of material objective facts (Laws v Australian Broadcasting Tribunal [1990] HCA 31 (“Laws v ABT”) at [37] (per Mason CJ and Brennan J) and at [11] (per Deane J).

17. In Johnson, Kirby J summarised the various ways in which the attributes of the fictitious bystander to whom the courts defer have been stated. His Honour said at [53]:

    … Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided.  Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.  The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers.  The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted.  The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality.  Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context.  Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

    (References omitted)

18. Furthermore, when suspected pre-judgment of an issue is relied upon as is presently the case, the respondent must firmly establish a reasonable fear that the decision maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her (Laws v ABT at [5]).

19. The reasons for judgment must be read as a whole, and a fair-minded lay observer would no doubt do so.

20. What appears at paragraph 102 of the reasons for judgment, namely “[t]he matters alleged in the respondent’s affidavit about the applicant using the legal system to exact revenge, speak to the possibility of the respondent continuing to engage in undermining behaviour of the applicant” must be read in context.

21. At paragraph 98 of its reasons the Court referred to the father’s sworn evidence, which contained the following paragraph:

    I also believe that the Applicant’s motive is to use the legal system by way of revenge in order to stop contact between me and my children because I have a new woman in my life.

22. In addition, the Court referred to the opinion of the family consultant who had prepared the Child Inclusive Child Dispute Conference Memorandum to the Court dated 26 June 2020.

23. The memorandum to the Court included the following opinion, which the Court specifically had regard to in its reasons for judgment, and was reproduced at paragraph 101 of the reasons:

    56.… The allegations of family violence against [the respondent]… are extremely serious… W and X reported that they have witnessed this alleged violence and abuse. If these allegations are accurate, it may not be in the children’s best interest to spend any time with [the respondent]…, as both their and [the applicant’s]… physical and emotional safety may be at ongoing risk. It is also possible that, if [the respondent]… has behaved as alleged, he will have a significantly compromised parenting capacity and he may continue to engage in controlling and undermining behaviour of [the applicant]…

24. It is, at minimum, in that context that the reference to the possibility about a particular finding being made in the future, referred to in paragraph 102 of the reasons, must be read. It was, when read in context, part of the risk assessment exercise the Court was undertaking.

25. Furthermore, even if the hypothetical bystander in having read the entire judgment comes to the conclusion that paragraph 102 contains a finding that the father had engaged in undermining behaviour of the mother, there is nothing to suggest that the judge’s mind is so prejudiced in favour of that finding, that she will not alter that conclusion irrespective of the evidence or arguments presented to her.

26. In relation to paragraph 114 of the reasons for judgment, the father’s submissions highlight the fundamental misunderstanding by the father of the Court’s obligations in determining the interim parenting application. The father’s complaint as to apprehension of bias arising out of paragraph 114 is purely subjective. The submissions fail to appreciate that the Court was obliged to take into consideration the father’s case at interim hearing in assessing risk. It is not in contention that the father denies the allegations of family violence. The Court was not expressing an opinion about the father denying the allegations of violence. The father’s denial of such allegations was a relevant matter in assessing risk. Furthermore, the father had sworn an affidavit which was relied upon at interim hearing which contained his evidence, which the Court had regard to at interim hearing, as the Court was obliged to do.

27. Lastly, to address the submission in respect of the judge having read the Notice of Appeal and this somehow tainting the judge’s mind to such an extent that once again, the fair minded lay observer would reasonably apprehend that the judge would be biased, this again fundamentally fails to understand the Court’s obligations and role in considering a stay application.

28. For those reasons, and given that the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice a fair minded lay observer would not reasonably have apprehended that the judge might not bring an impartial mind to the resolution of any further question the judge is required to decide. The application for recusal is therefore to be dismissed.

29          I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 17 March 2021