Boston and Boston

[2016] FamCA 659

FAMILY COURT OF AUSTRALIA

BOSTON & BOSTON [2016] FamCA 659

FAMILY LAW – DISQUALIFICATION – where the husband seeks an order for disqualification of the judge on the basis of actual or apprehended bias – where consideration is given to the law – where the application is dismissed.

Family Law Act 1975 (Cth) s 97

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson & Johnson (No 3) (2000) 201 CLR 488
Re JRL; Ex parte CJL (1986) 161 CLR 342

APPLICANT:

Mr Boston

RESPONDENT: Ms Boston

FILE NUMBER: ADC 1946 of 2012

DATE DELIVERED: 2 August 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 1 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

Orders

1. The Application in a Case filed by the husband on 29 June 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Boston & Boston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1946  of 2012

Mr Boston

Applicant

And

Ms Boston

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in a Case filed on 29 June 2016 the husband sought the following orders:

   1.  That her Honour, Justice Dawe, disqualify herself from further involvement in these proceedings on the basis of apprehended bias and/or actual bias;

   2.  That the trial listed for 1 August 2016 be adjourned to a new hearing to be conducted by another judge.

2. That application was listed for hearing before me on 26 July 2016 at 9.15 am.  The affidavit setting out the alleged facts to form the basis of the application is the affidavit of the husband filed on 29 June 2016 (document 176). 

3. When the matter came before me on 26 July, I adjourned the matter at the request of counsel for the husband to 1 August 2016. 

4. The background to this application is to be taken into account.  The husband’s application and his affidavit need to be considered, taking into account the matters alleged in his affidavit and, in particular, the history of these outstanding proceedings.  The proceedings commenced in 2012 and since then there have been numerous interim applications, hearings and interim and procedural orders.  There are now over 180 documents on the Court file. 

5. Since the matter was transferred from the Federal Circuit Court, I have been the judicial officer who has heard the interim and procedural matters.  Justice Berman (the only other judge sitting in the Adelaide registry of the Family Court of Australia at first instance) is disqualified from hearing the matter. 

6. With the agreement of the parties and the Independent Children’s Lawyer, the trial concerning children’s issues was listed and heard in March 2015.  After the trial had proceeded four days I made final consent orders in relation to children’s issues on 20 March 2015 relating to the child of the parties, R, save and except on the issue concerning the child travelling overseas with the father.  Subsequently, I made orders which prevented the father from taking the child overseas for reasons which were then published.

7. The Court file indicates attempts which have been made by the Court to list and hear the financial matters in dispute.  In particular, on 28 January 2016 the parties were advised that directions for trial would be made by the Court on 8 March 2016. 

8. On 28 January 2016 the husband was represented by counsel and his solicitors were then C & F Lawyers.  On 8 March 2016, when the matter came before me, C & F Lawyers were still the husband’s solicitors and he was also represented by counsel.  Detailed specific orders were made on 8 March 2016 to prepare the financial matters for final hearing commencing before me on 1 August 2016.  A compliance check date for 26 July 2016 was set. 

9. The wife filed a large number of documents, including subpoenas and an affidavit. 

10. The husband did not file any documents pursuant to the orders for directions to prepare the matter for trial until 29 June 2016 when he filed the application seeking that I disqualify myself and the affidavit referring to the same. 

11. It is necessary, of course, to consider the law in relation to these issues. Section 97 of the Family Law Act 1975 (Cth) (“the Act”) provides that:

    The Court shall proceed without undue formality and endeavour to ensure that the proceedings are not protracted.

12. The principle to be considered concerning judicial disqualification was set out by the High Court of Australia in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and paragraphs 6, 7, 8 and 19 are particularly relevant where they refer to a question of bias. I now quote from that case:

    (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.

    (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 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 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.

    …

    (19)Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong.  They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause.  Judges do not choose their cases and litigants do not choose their judges.  If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.”

13. In Johnson & Johnson (No 3) (2000) 201 CLR 488 the High Court said at 493, paragraph 12:

    The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.  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 [the judge] to discard the irrelevant, the immaterial and the prejudicial”.

14. The High Court has previously said that the reasonable apprehension of bias by reason of pre-judgment must be firmly established and I am there referring to the decision of Re JRL;  Ex parte CJL (1986) 161 CLR 342 at page 352.

15. At the hearing before me, the grounds claimed by the husband to establish the bias are set out in his affidavit (document 176).  I note that this was sworn and filed when the husband was represented by C & F Lawyers.  It states that it was prepared and settled by a lawyer. 

16. When the matter came before me on 1 August 2016 the husband was not represented.  No one from the firm of lawyers on file appeared.  The husband then provided the Court and the wife with an Address for Service providing a private street address. 

17. The husband addressed the Court at length on 1 August 2016.  The wife responded.  The husband was then given permission to address the Court again in reply to the wife’s submissions. 

Discussion and findings

1. The affidavit, (document 176) sets out the evidence which the husband asserts support his application. 

2. The first matter relates to interim financial orders made in May 2013 and June 2014.  These orders were made for reasons then given.  The husband did not appeal the orders.  The husband claimed these orders were “much to the detriment” of his “dire financial state” (see paragraph 6).  The husband’s affidavit claims that the decisions were “unfathomable” and not “impartial”.  This is the husband’s opinion, but it is not established on a sufficient basis or objective basis that these interim financial decisions made, pending a final hearing, mean that I should not hear the final financial trial. 

3. Similarly, the husband’s claims that I ignored “his financial distress” and favoured the wife by allowing her to remain in the former matrimonial home, are not established by the material which the husband sets out in his affidavit and in his oral submissions.

4. These matters were considered and decisions made on an interim basis.  The same factors apply to his complaints about the interim orders made and not made about motor vehicles. 

5. The husband also refers to the interim hearing and orders made concerning the wife’s de facto husband and his behaviour relating to the parties’ son, R.  The husband acknowledged that I made an order preventing Mr A from residing in the house with the child initially.  The husband asserts that the wife breached this order.  The wife denies this.  There has been no testing of this allegation in the appropriate sense by hearing of evidence. 

6. Subsequently, in March 2015, the trial in relation to the children’s orders commenced and consent orders were made in relation to those matters, save and except, as I indicated, in relation to the question of overseas travel.

7. On this basis, and taking into account the history of the proceedings and the consent orders, I am not satisfied that the allegations concerning the children’s matters establish any actual or apprehended bias. 

8. The husband refers to my receipt of a letter from Mr DD as an indication of bias or apprehended bias.  The receipt of that letter does not indicate that I gave the contents of the letter any weight when making any decisions in relation to the interim matters thus far decided. 

9. The husband also claims in paragraph 18 of the affidavit that I ignored the husband’s “substantial equitable ownership” in the J Street asset.  He conceded that the asset was “placed in her name for commercial reasons”.  The significant property and the legal and equitable rights and financial resources of the parties are matters which I have not determined. 

10. The interim orders made by me have been made on the basis that the final orders would be made after a full trial and determination of all disputed facts and relevant issues. 

11. I, therefore, reject the husband’s claim that the interim decisions show the appropriate or necessary bias. 

12. The husband asserts in his affidavit that “it simply wasn’t moral” for the Court to expect others to support him.  I do not accept that any decision was made by me based upon any expectation that other people should support the husband. 

13. The husband claims in paragraph 24 of his affidavit that I said in open Court, “I don’t care if you go bankrupt.”  I do not recall saying this.  No transcript has been provided.  Of the transcript that is available which discussed the husband’s debts and him being sued by his previous lawyers, that transcript does not have any indication in it that I said the words alleged by the husband. 

14. I was aware of proceedings in which the husband’s former solicitors were seeking orders which might have resulted in bankruptcy orders. 

15. The interim decisions made concerning financial matters took into account the information provided to this Court, some of which was heavily disputed.  The Court will always take into account the matters required by the legislation including the Family Law Act 1975 (Cth), the Corporations Act 2001 (Cth) and, where necessary, the bankruptcy provisions.

16. The husband has alleged that I did not hear his application which he requested be heard urgently.  He was unable to identify which application this was. 

17. These matters do not establish bias, actual or apprehended.  They merely establish that the husband did not like the interim orders made. 

18. The husband asserts that my decisions concerning his son not being permitted to travel outside Australia with him established the bias.  The reasons given for this decision are set out in the judgment which has been delivered. 

19. The husband specifically claims that I did not permit the Independent Children’s Lawyer to ascertain the views of the child.  The decision I made on that occasion was not based upon the views of the child, it being conceded by the wife that the child would express a wish to travel overseas with the father if asked.  The transcript of this hearing is available and indicates that the decision was not made on the basis that the child did not want to travel overseas with the father.  Rather, it was made on the understanding that that factor was taken into account, but was not the determining factor.  This does not indicate any bias against the husband.  The husband’s affidavit and submissions asserted that the statements made by the child to the report writer were misleading.  The husband claims that I ignored or gave little consideration to these factors.  This complaint made now should be considered in light of the final consent orders made concerning the child. 

20. The wife made submissions challenging some of the facts alleged by the husband concerning his financial circumstances.  These are not matters which can be determined without proper testing of the evidence.  Therefore, I do not rely on the matters put forward by the wife which are challenged by the husband.  I do accept that there was and is a very strained, acrimonious relationship between the husband and wife. 

21. The application made by the husband alleges there was actual or apprehended bias dating back to the decisions made and the events occurring in 2013 and thereafter.  His application was only brought in late June 2016, well after the March 2016 orders when I set the matter down for trial in early August 2016. 

22. I have considered each of the matters that the husband refers to as exhibiting my actual or apprehended bias.  I have also considered the overall combination of those claims and, when considered together, whether he has established any actual or apprehended bias.  After careful consideration, I am not satisfied that the husband has firmly established the requisite basis for concluding that I have any actual bias or that there is any apprehended bias which would disqualify me from hearing the trial in these proceedings. 

23. I, therefore, dismiss the application to disqualify myself and to adjourn the trial.  The trial was listed to commence before me yesterday on 1 August 2016. 

24. I will now hear the outstanding application of the wife in relation to having the matter dealt with on an undefended basis.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 2 August 2016.

Associate: 

Date:  12 August 2016