Batey-Elton and Elton

[2010] FamCA 266

FAMILY COURT OF AUSTRALIA

BATEY-ELTON & ELTON [2010] FamCA 266

FAMILY LAW – COURTS AND JUDGES – Application for disqualification on ground of bias

Family Law Act 1975 (Cth)

Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337
EL & ML and DM (2003) FamCA 1449
Johnson & Johnson (2000) 201 CLR 488
In JRL;  ex parte CJL (1986) 161 CLR 342

APPLICANT: Ms Batey-Elton

RESPONDENT: Mr Elton

FILE NUMBER: TVF 2250 of 2004

DATE DELIVERED: 11 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Cronin J

HEARING DATE: 11 February 2010

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr G. Page SC

SOLICITOR FOR THE RESPONDENT: Rod Madsen

Orders

1. That paragraph 2 of the orders sought by the wife in her application in a case filed 10 February 2010 is dismissed.

2. That the husband’s costs of this day are reserved.

3. That the balance of the wife’s application in a case and the trial itself be adjourned to 10.00am on 15 February 2010.

IT IS DIRECTED

1. That the Listings Coordinator convey to the wife the above orders by telephone this day and if unsuccessful by telephone contact, by any means she may have available to her.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVF 2250 of 2004

MS BATEY-ELTON

Applicant

And

MR ELTON

Respondent

REASONS FOR JUDGMENT

1. These reasons concern an application by Ms Batey-Elton that I disqualify myself. The applicant, Ms Batey-Elton, to whom I shall refer in these reasons as the wife, has had a longstanding application under s 79A of the Family Law Act 1975 (Cth) (“the Act”). In the period since the application was filed the wife has been a bankrupt. The husband, Mr Elton, not only disputes the application under s 79A, but has also had on foot for a long time an application for summary dismissal of the wife’s application.

2. On 21 October 2009, Jordan J, upon hearing Mr Page of Senior Counsel for the husband and the wife in person, made specific orders for a final hearing to occur. Those orders provide that the s 79A application and the husband’s application for summary dismissal, together with three particular paragraphs of an application filed by the wife on 30 April 2009 be listed for final hearing for three days in the fortnight commencing 8 February 2010, but not before Thursday 11 February 2010.

3. This matter was listed before me today.  The exact reasons for its listing is a matter of some conjecture.  On one view it was to be listed for mention, and on another view it was listed for final hearing.

4. The wife has left the court, indicating that she objects to me hearing her application. 

5. On 10 February, which is yesterday, the wife filed an application in a case.  That application sought a number of orders in terms which might be described as evasive.  But, doing the best I can, the two important parts of the application are that the final hearing should be adjourned to a date to be fixed, and secondly, that an interstate judge, not myself, be allocated to case manage and hear that application.  The wife then sought some other orders which are not relevant for my purposes. 

6. After discussion this morning, the wife indicated that paragraph 2 of the orders sought is in fact an application that I disqualify myself on the grounds of judicial bias.  When I first asked about that, the wife indicated she was not sure whether she was making such an application.  As time has gone on and Senior Counsel for the husband has asked me to hear the matter, it is quite clear that the wife is making that application for me to disqualify myself.  At the wife’s request I stood the matter down to enable her to get some advice.  Initially, she asked me to adjourn her application.  The exact details of why that was so are not clear.

7. One of the reasons for the uncertainty is that the wife has consistently maintained that various orders made in 2009 by Jordan J were invalid after and because his Honour refused to disqualify himself.  She has talked about appeals to the Full Court and an application which I have inferred to be an application for special leave to the High Court.  It transpires that when I made inquiries about the appeal to the Full Court, the wife has not filed an application within time, and the registrar has advised her that if she was going to pursue the appeal, she needed an application for leave to appeal out of time.

8. In any event, there was no application to seek a stay of the orders of Jordan J.  The registrar indicated that at the time the application was sought to be filed, the wife was either uncertain or unclear as to which order she was appealing.  Whether it was an order in June 2009 or 21 October 2009 matters little, because in either event, she is well out of time.  The advice the registrar gave her seems correct.  However, the registrar also advised that the wife had indicated she was going to seek to review his decision on the basis that he refused to accept her application. 

9. Importantly, whether the substantive s 79A proceedings were to go ahead today or next week, matters little because of the application the wife filed on 10 February. It is a specific application for an adjournment of the trial, and a very clear application for disqualification on the grounds of judicial bias.

10. As with all applications in a case, a litigant is required to file an affidavit.  The affidavit material must support the orders sought.  I point out that the court file in this case indicates that proceedings between the parties commenced in 2004 and it is now in seven boxes.  The record shows that the wife is very familiar with the practice of the court, as indicated by the fact that she filed an affidavit in support of the application.

11. When Mr Page of Senior Counsel indicated that he wanted the serious application for bias to proceed, the wife requested some time to consider her position.  I gave her from 12 o’clock until 2.15pm to sort out what she wanted to do.  At 2.15 this afternoon the wife indicated that she wanted the matter of her application adjourned for some days to get some evidence.  When I indicated to her that I was not prepared to allow an adjournment of her application without some very clear statement as to what evidence she was going to produce, bearing in mind she had filed an affidavit, she obfuscated persistently about it.  I am satisfied there is no further material that she can point to that would enable her to justify the affidavit to which I shall now turn. 

12. Apparently, her concern about my involvement in the proceedings relates to the fact that I dealt with the parenting case on a final basis in August 2009.  Today I offered to provide the wife with copies of both of the judgments that I published on or about 24 August 2009 when I made the respective orders.  The first of those judgments related to refusing her application to adjourn the substantive proceedings.  I will not repeat what I said there.  My recollection is - and I suspect I have referred to it in the second judgment, which is the parenting judgment - that upon refusing the application for the adjournment, the wife stormed out.  As such, Mr Page then, on behalf of the husband, invited me to proceed to deal with the parenting matter on an undefended basis.  I did so.

13. Those actions and apparently something in the judgment has given rise to a complaint by the wife that I fit into the category of being biased against her.  In paragraph 9 of the affidavit which she filed on 2 February 2010 she said as follows:

    I request the trial to be handled by an interstate judge, not being Justice Cronin since I have real and provable apprehension of bias with all remaining Family Court judges in Queensland and with the gross misconduct of Justice Cronin in my matter previously.

14. Throughout this afternoon, during which time the wife has sought to adjourn the judicial bias application, I have requested her to indicate what further material she proposes to call that might justify paragraph 9 of her affidavit.  As I said, she has obfuscated and not given me any straight answers. 

15. This afternoon she handed to the court a letter which was presumably prepared in the period after 12 o’clock.  Without objection from Mr Page, I have read that letter on the basis that it may be seen as something of a submission in relation to her application.  The letter is addressed to me, and I quote:

    You have quite unfairly demanded that I argue an important matter without any notice, namely why you should not preside over my case. 

    The best reason is that you would ignore all procedural propriety in making that very demand.  Clearly Procedural Fairness means no more to you than to Justice Jordan whose many transgressions of legal propriety are now partially documented before the Court. 

16. There is then a further two pages which set out her feelings.  One of the matters that she refers to is as follows:

    Quite additionally, I feel ill today and have had no sleep - literally, last night. 

    Further, there is expert evidence before this court, accepted as legal fact, that I am unable, psychologically, to represent myself in court, in particular in relation to children’s matters.  This ambush today, is affecting me traumatically, exacerbated by the lack of sleep, but the lack of legal funding has prevented me from bringing the expert psychiatric evidence I long ago had prepared about that issue.

17. It is important to observe two things about that last statement of the wife.  The first is that she says she is unable to represent herself in relation to “children’s matters”.  I determined those in August.  The second matter is that she says she is psychologically unable to represent herself.  I have now had an opportunity to read various documents in the file, many of which she has signed personally.  I observed to her earlier this morning that some of those documents refer to decisions of various courts of the common law world.  Whether she has been preparing those, or someone has been preparing them on her behalf, she certainly presented them as her work.

18. She certainly did not deny that she had prepared those documents this morning.  It seems therefore, that what she says about her incapacity to proceed on a health basis is nonsense.  I have certainly observed nothing in the courtroom today which would support the fact that she is exhausted or tired or incapable of arguing logically.  As such, the application that I am determining today must go ahead of any other issue, having regard to the fact that there are other issues relating to the trial, not only in respect of whether it proceeds, but in respect of issues of discovery.

19. Accordingly, it is important that the issue of the judicial bias assertion be dealt with quickly and properly. 

20. I have made it clear to the wife that I am not at all offended by what she does, and that I would deal with the matter according to law.  The application, therefore, is only supported by the one assertion in her affidavit. 

21. In Johnson & Johnson (2000) 201 CLR 488, Gleeson CJ and Gordon, McHugh, Gummow, and Hayne JJ discussed the grounds upon which a judge should accede to a disqualification application. Their Honours said:

    …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.

22. Their Honours then said:

    At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial".

23. In respect of that observer, their Honours said:

    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.

24. Kirby J said that:

    [Judges should not] accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification. Applications of that kind might sometimes be made in the hope of securing an adjudicator more sympathetic to a party's cause. Or they might be made because of the strategic advantage that may thereby be secured, especially the interruption of lengthy proceedings and the delays consequent upon obtaining a fresh start in a busy court or tribunal.

25. In JRL;  ex parte CJL (1986) 161 CLR 342 at page 352, Mason J, as he then was, said:

    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.

26. His Honour then said:

    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.

27. All of those possible events to which Mason and Kirby JJ referred could very well be what is happening here.  I have endeavoured on a number of occasions, as the transcript will show this afternoon, to ascertain from the wife just what it is that she is asserting is evidence of judicial bias, bearing in mind all of the observations I have made from Johnson and Re JRL.  I point out that similar remarks were made by the High Court in Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337, where their Honours said that objections should not prevail unless they were based on substantial grounds for contending that the judge was disqualified from hearing and deciding the case.

28. I point out that, notwithstanding the protestations of the wife that she wanted time to produce that evidence, she has at no stage been prepared to tell me what it is that she was pursuing that might enlighten the court in some way. 

29. The fair-minded and reasonable bystander is taken to be informed as to the most basic considerations relevant to the process.  Those were those set out in Johnson.  Accordingly, I would conclude that a person who

    (a)understood the court process;

    (b)realised that the wife had had orders made by me in August which have not been appealed; and,

    (c)was cognisant of the fact that the case relating to the financial matters was to be listed in this period of time

    would not form the view that I had done anything that could be described as “gross misconduct” nor that I had prejudged anything.

30. I am also taking into account that, notwithstanding the wife asserts that Jordan J was biased and acted invalidly, she had not, until at least two days ago, endeavoured to appeal against the orders that he made in October relating to the matter being set down.  As I pointed out, she has made an application, or is endeavouring to make an application, for leave to appeal out of time, and I would have thought on the stay application there would be considerable difficulty having regard to the delays and the timing of that application.

31. In a case of EL & ML and DM (2003) FamCA 1449, Guest J said as follows:

    …it should be said clearly that the fact a party has a subjective apprehension of bias is not of itself sufficient to warrant or require disqualification of a judge.

32. Guest J referred to what Mason J had to say in Re JRL.  His Honour highlighted that disqualification is only made out by showing there is a reasonable apprehension of bias by reason of prejudgment or some other issue relating to bias, but that it must be firmly established.  This case has been waiting for a long time.  There have been appeals to the Full Court.  There have been judges who have disqualified themselves or decided not to deal with the matter for one reason or another.

33. None of these matters of the wife are new.  There is no reason, in my view, why the wife should suddenly, at the eleventh hour, bring this application and then try to avoid it being heard.  I could not think of a better expression than that used by Mr Page when he described it as “humbug”.  I reject the suggestion of any prejudgment on my part.  I reject the suggestion that I have acted in some way that might be even seen to be prejudicial to the wife.  I have invited her, on a number of occasions, to tell me what it is that she found objectionable in respect of the matter set out in paragraph 9 of her affidavit.  She has not.

34. In my view, this is simply a case where the wife was simply not getting what she wanted and, as such, the application must be dismissed. 

ORDERS DELIVERED

1. I will direct the listing co-ordinator convey those three orders to the wife by telephone this day and if unsuccessful in contacting her by telephone then by what other electronic means she can arrange.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 February 2010