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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barakat & Farid (No 3)

Details

AGLC: Barakat & Farid (No 3) [2021] FCCA 485
Case: [2021] FCCA 485
Decision Date: 17 March 2021

CaseChat Overview and Summary

In *Barakat & Farid (No 3)*, Justice Obradovic of the Federal Circuit and Family Court of Australia considered an application by the respondent father for the judge to recuse herself from proceedings on the grounds of apprehended bias. The applicant mother and the Independent Children’s Lawyer both sought the dismissal of this application. The recusal application was brought following earlier interim parenting, spousal maintenance, and property distribution orders made by the Court, against which the father had filed an unsuccessful appeal and a subsequently abandoned stay application.

The legal issues before the Court were whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions before her, given the matters raised by the father. These matters included specific paragraphs from the Court's previous reasons for judgment and the fact that the judge had read the Notice of Appeal when determining the father's stay application. The Court was required to apply the well-established test for apprehended bias, as articulated in *Ebner v Official Trustee in Bankruptcy*.

Justice Obradovic applied the two-step test for apprehended bias. The first step involved identifying the matters that might lead a judge to decide a case other than on its merits, and the second step required articulating the logical connection between those matters and the feared deviation from impartial decision-making. The Court noted that the test is concerned with the possibility of bias, not probability, and does not require an inquiry into the judge's actual thought processes. The judge found that the matters relied upon by the father did not establish a logical connection sufficient to give rise to a reasonable apprehension of bias in the mind of a fair-minded lay observer.

Consequently, the Court dismissed the father's application for recusal. The proceedings were then listed for mention on 26 April 2021, with several outstanding interim applications also noted.

Orders

Orders of the court

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.

Background

Background to the litigation

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 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. 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. On 24 November 2020, the Court heard and dismissed the father’s stay application of the 2 October 2020 orders. 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. 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; andc.The fact of the judge having read the Notice of Appeal when determining the stay application.Relevant Legal Principles The relevant legal principles in respect of apprehended bias are well established. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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

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