Bulow & Bulow
[2020] FamCAFC 120
•19 May 2020
FAMILY COURT OF AUSTRALIA
| BULOW & BULOW | [2020] FamCAFC 120 |
| FAMILY LAW – APPEAL – PROPERTY – Where the appellant alleges apprehended and actual bias by the primary judge – Where it is readily apparent that all the appellant is doing in many of his grounds of appeal is identifying orders made or reasons delivered by the primary judge with which he disagrees and suggesting therefore that his Honour was biased – Where none of the grounds of appeal demonstrate bias on the part of the primary judge nor error in his Honour refusing to recuse himself – Appeal dismissed. |
| Family Law Act 1975 (Cth) Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 |
| APPELLANT: | Mr Bulow |
| RESPONDENT: | Ms Bulow |
| FILE NUMBER: | ADC | 1674 | of | 2014 |
| APPEAL NUMBER: | SOA | 43 | of | 2019 |
| DATE DELIVERED: | 19 May 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 25 February 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 July 2019 |
| LOWER COURT MNC: | [2019] FCCA 2251 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders 25 February 2020
The Application in an Appeal filed by the husband on 21 February 2020 be dismissed.
The Notice of Appeal filed on 26 August 2019 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bulow & Bulow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 43 of 2019
File Number: ADC 1674 of 2014
| Mr Bulow |
Appellant
And
| Ms Bulow |
Respondent
REASONS FOR JUDGMENT
Introduction
On 26 August 2019 Mr Bulow (“the husband”) filed a Notice of Appeal from an order made by a Judge of the Federal Circuit Court of Australia on 29 July 2019. The appeal is opposed by Ms Bulow (“the wife”).
The order appealed from dismissed paragraphs 1, 2, 3, 5, 6 and 7 of the orders sought by the husband in an Application in a Case filed on 28 June 2019. Those orders sought were as follows:
1.That Honourable [primary Judge] is recused from the future rehearing ordered by the Full Court of the Family Court of Australia on 18 January 2019 in the Appeal Case SOA3 of 2018 from ADC1674/2014.
2.That Case ADC1674/2014 is transferred to such other Judge of the Federal Circuit Court or the Family Court of Australia as might be allocated, pursuant to Order 7 issued by the Full Court of the Family Court of Australia on 18 January 2019 in the Appeal Case SOA3 of 2018.
3.That pursuant to Family Law Act SEC79(2)(4) a full rehearing before such other Judge be heard within the scope of Order 6 issued by the Full Court of the Family Court of Australia on 18 January 2019 in the Appeal Case SOA3 of 2018.
…
5.That case file ADC1674/2014 be wholly dismissed if Order 6 issued by the Full Court of the Family Court of Australia on 18 January 2019 in the Appeal Case SOA3 of 2018 is not fully enacted to revoke Orders 1(a) and 2 of the orders made by [the primary Judge] on 22 November 2017 and reverse the financial effects of the property division.
6.That no further orders are issued to alter the property interests of the parties to the marriage.
7.That the respondent is at liberty to apply for any consequential orders to recover financial losses effected by paragraphs 1(a) and 2 of the orders made by [the primary Judge] on 22 November 2017.
On 21 February 2020, the husband filed an Application in an Appeal seeking leave to adduce further evidence.
On 25 February 2020, this Court heard the appeal, and made orders dismissing the Application in an Appeal and the Notice of Appeal. However, as a result of time constraints, it was not possible to deliver ex tempore reasons for judgment, and they were left to be delivered at the earliest available opportunity. These are those reasons.
Background
The parties were married in 1993, separated in November 2012, and divorced in 2014.
Property settlement proceedings were instituted by the wife in the Federal Circuit Court of Australia, and the trial of those proceedings took place in November 2016. Judgment was delivered on 27 November 2017 and orders made.
The husband sought and obtained an extension of time to appeal those orders, and the Notice of Appeal was filed on 21 March 2018.
That appeal was heard on 27 August 2018, and judgment was reserved. Subsequently, the husband filed an Application in an Appeal, and further submissions were received by the Full Court in November and December 2018.
The Full Court delivered judgment on 18 January 2019, and relevantly made the following orders:
…
(5) The appeal be allowed.
(6)Paragraphs 1(a) and 2 of the orders made by [the primary Judge] on 22 November 2017 be set aside.
(7)The matter be remitted for rehearing before [the primary Judge] or such other Judge of the Federal Circuit Court of Australia as might be allocated.
…
Paragraphs 1(a) and 2 of the orders made by the primary judge on 22 November 2017 are as follows:
UPON NOTING that the amount to be disbursed to the husband pursuant to paragraph 1(a)(i) of these orders has been adjusted to reflect the quantum of costs awarded to the wife
ORDERS
(1)There be a 60:40 division of the non-superannuation assets of the parties in favour of the wife with the following orders to give effect to the same:
(a)Within 7 days of the making of these orders, the parties shall do all such acts and things to facilitate the balance of the proceeds from the sale of property A presently held in the Bank Account BSB: … …, Account Number ……… (controlled by Ms L, conveyancer) being disbursed as follows:
(i) The sum of $87,332.80 to the husband; and
(ii)The balance then remaining to the Johnston Withers Solicitors Trust Account for and on behalf of the wife.
…
(2)Paragraph 2 (inclusive) of this order is binding on the Trustee of The Public Sector Superannuation Scheme (‘the Fund’):
(a)In accordance with section 90MT(4) of the Family Law Act 1975 (‘the Act’) the base amount of $173,154 is to be allocated to the applicant of the interest of the respondent in the Fund (Member No: ……..);
(b)Pursuant to section 90MT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the respondent’s interest in the Fund, the applicant shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (‘the Regulations’) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the spittable (sic) payment would have been made but for this order;
(c)Paragraph 2(a) has effect from the operative time.
(d)The operative time for the purpose of paragraph 2(a) of this order is four (4) business days after the date of service of this sealed order upon the Trustee of the Fund;
(e)The applicant’s solicitors serve a copy of the sealed orders upon the Trustee of the Public Sector Superannuation Scheme within 7 days of receipt of the sealed copy of the orders;
The reasons of the Full Court as to why only those orders were set aside, what was to be the subject of the rehearing, and why the primary judge was able to conduct that rehearing are as follows:
CONCLUSIONS AND ORDERS
106.The form of his Honour’s orders saw each of the parties retaining property in their respective ownership or possession; a cash sum payable from the proceeds of sale of the former matrimonial home being paid to the husband and the balance of proceeds paid to the wife. Separately, as has been seen, a splitting order was made in respect of the husband’s superannuation interest. We consider that error attends the assessment of contributions applicable to the latter.
107.However, as we have sought to explain, that error, which pertains to the nature, form and characteristics of the husband’s superannuation interest, has ramifications for the totality of the s 79 orders. A consideration of the same impacts potentially upon any splitting order but also, by reason of the scheme specific provisions in respect of any splitting order, upon an assessment of the relevant s 75(2) factors.
108.As a consequence, both paragraph 2 of his Honour’s orders and paragraph 1(a) of those orders must be set aside.
109.In light of our conclusion that his Honour was not favoured with evidence as to the ramifications of the proposed, or any, splitting order, it is not possible for this Court to contemplate re-exercising the discretion; the evidence before us does not permit of that outcome. Unfortunately for the parties, the matter must be remitted for rehearing.
110.We see no reason why the remitted proceedings cannot be reheard by [the primary Judge]. Indeed, it might be thought expeditious that his Honour does so. However, our orders will leave that issue for the Federal Circuit Court of Australia.
111.We hasten to point out that nothing we have said suggests that any different splitting order, or other order, must necessarily be made. Rather, the parties’ respective contentions must be seen in light of evidence that permits a court to understand the effects for both parties of any splitting order and the ramifications of the same within a consideration of s 79 as a whole.
The matter was duly listed before the primary judge on 28 February 2019 for directions. At that time it was noted that there was an outstanding Application of the wife in relation to the costs of the trial, and a Response to that application by the husband. His Honour indicated that that should await the outcome of the rehearing, and he ordered the documents relevant to that matter be placed in a sealed envelope.
As to the rehearing, his Honour raised with the counsel for the wife and the husband how he saw that proceeding, and invited and received submissions from both sides as to that issue. I note that the husband’s position was that there needed to be an entirely new hearing, but that was not the position of his Honour, or counsel for the wife. I record at this early stage of these reasons that the husband was entirely misguided in relation to his understanding of what was to happen in the rehearing.
There was no resolution of that issue though at that directions hearing, and his Honour adjourned the matter to 16 April 2019, and in the meantime referred the same to a conciliation conference.
On 3 April 2019, the conciliation conference took place, but it was unsuccessful in resolving the matter.
On 11 April 2019, the wife filed an Application seeking procedural orders as to the rehearing.
On 15 April 2019, the husband filed an Application seeking an order that the primary judge recuse himself.
On 16 April 2019, his Honour adjourned these applications to 14 June 2019, and the matter generally, to a callover on 1 July 2019.
On 14 June 2019, his Honour heard argument, but not as to the recusal application, and adjourned the matter to 20 June 2019.
On 20 June 2019, his Honour made certain declarations and orders and further adjourned the matter to 27 June 2019.
On 27 June 2019, inter alia, his Honour vacated the listing on 1 July 2019 and listed the application that he recuse himself for argument on 2 July 2019.
Then, as referred to above, on 28 June 2019, the husband filed his Application in a Case, repeating his application for his Honour to recuse himself, and seeking various other orders.
His Honour heard that application on 2 July 2019, and then orally delivered his reasons for judgment on 29 July 2019, and made the order appealed against.
The appeal
In his Notice of Appeal the husband agitated 14 grounds of appeal.
Ground 1 asserts error by the primary judge in refusing to recuse himself, and it seems that Grounds 4 – 13 comprise the specific complaints which support Ground 1. However, the allegations in Grounds 4 – 9 inclusive, and in the second part of Ground 2, were not allegations raised by the husband before his Honour in support of his application that his Honour recuse himself, and thus it is not open to the husband to raise that in this appeal (Metwally v University of Wollongong (1985) 60 ALR 68). Nevertheless, I propose to address these grounds of appeal to the extent necessary.
In relation to these grounds of appeal I also note that Grounds 7, 8, 9 and 10 assert actual bias on the part of his Honour, and Ground 11 asserts an apprehension of bias.
Ground 3 does not allege error by the primary judge, and thus will not be considered, and Grounds 2 and 14 are not grounds of appeal at all, and do not need to be addressed. I do say though that the husband’s description of the view taken by the Full Court of his Honour’s reasons for judgment as expressed in Ground 2, is completely inaccurate.
At this point, I also note that the appeal is against order (1) made by his Honour wherein, as referred to above, his Honour dismissed paragraphs 1, 2, 3, 5, 6 and 7 of the husband’s application in a case. However, none of the grounds of appeal go to paragraphs 2, 3, 5, 6 or 7 of the Application in a Case. They all go to paragraph 1, which sought that his Honour recuse himself. Accordingly, I will not be saying anything about those other paragraphs of the application.
I also need to say something about the husband’s written summary of argument filed on 11 February 2020. All that the husband has done is to repeat the grounds of appeal, and add other complaints which are not the subject of any ground of appeal. With some of the paragraphs repeating the grounds, he has added a reference to what he describes as “evidence”. However, invariably what is referred to, does not assist in explaining or amplifying the ground. In short, the summary of argument is inadequate.
Next, before addressing the grounds of appeal, it is necessary to set out the well-established principles applicable to a claim of apprehended bias, and a claim of actual bias.
Apprehended bias
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the High Court said this:
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.
…
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.
…
(Footnotes omitted)
In the earlier High Court decision of Johnson v Johnson (2000) 201 CLR 488, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said this:
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”.
(Footnotes omitted)
In an even earlier High Court decision of Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, Mason J relevantly said, at 352:
… 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. … [D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”…
Actual bias
A claim of actual bias prima facie requires a complainant to establish “the subjective motives, attitudes, predilections or purposes of the decision-maker” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, per Kirby J at [111]). However, that creates an almost impossible onus, and thus it is accepted that actual bias, like any other conclusion of fact, may be established as an inference from circumstances, or rather from the proven objective facts (Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, per Burchett J at 555; MIMA v Jia Legeng per Kirby J at [125]).
Further, actual bias need not be confined to an intentional state of mind; bias may be subconscious, provided it is real (Sun Zhan Qui v MIEA, per Burchett J at 555).
Importantly, aside from the heavy onus of proof, like a claim of apprehended bias, an accusation of actual bias must be distinctly made and firmly established.
An allegation of actual bias sometimes takes the form of an allegation of pre-judgment. In other words, where the decision-maker is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (MIMA v Jia Legeng, per Gleeson CJ and Gummow J at [72], per Kirby J at [127]).
Relevantly, this test of actual bias in the form of pre-judgment, requires an assessment of the state of mind of the judge in question (Michael Wilson and Partners Limited v Nicholls (2011) 244 CLR 427 at [33]). Again though, even this form of actual bias need not be confined to an intentional state of mind, but it must be real, and may be established by inference from the circumstances, including from the decision itself (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 668 at [37]).
However, as was said by Von Doussa J in SCAA v MIMIA at [38]:
In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion…
Ground 4
[The primary judge] (and Associates) has had communication with the legal representatives of the wife (principally barrister Ms Penelope Kari) throughout the proceedings, in the absence of, and without the consent or approval of the Husband (e.g. page 6 para 0-5 of the Transcript of the Proceedings).
The transcript referred to is the transcript of the hearing on 22 February 2019, namely the initial hearing before his Honour following the making of the orders by the Full Court on 18 January 2019.
As can be seen, in the ground the husband directs the court’s attention to “page 6 para 0-5”, and in paragraph 14 of his written summary of argument filed on 4 February 2020, he also identified “page 5 para 5”.
However, I fail to see how either of those parts of the transcript establish what is alleged in the ground. They read as follows:
MS KARI: To be fair, can I say this. My preliminary view is that – and I don’t have instructions – but my preliminary view is that there is scope to limit the rehearing, and we certainly at this end support your Honour’s observations about the findings made – that your Honour made at trial and what the Full Court did about those. The appeal was on a very narrow point.
(Transcript 28 February 2019, p.5 lines 1-5)
HIS HONOUR: And, presumably, given costs implications to date, you would prefer someone like registrar Paxton to be saying, well, off you go to Mr Burg, for example, which would - - -
MS KARI: No, I - - -
(Transcript 28 February 2019, p.6 lines 1-5)
The first part of the transcript is in the context of his Honour’s enquiry of the wife’s counsel as to what her position is in relation to the rehearing, and what would be involved.
The second part of the transcript is in the context of his Honour suggesting that there be a conciliation conference with a registrar, namely Registrar Paxton, who has some expertise in superannuation matters.
Plainly this ground is not established. It does not demonstrate bias on the part of his Honour, or error in refusing to recuse himself.
Ground 5
[The primary judge] has made findings of credit against the Husband in his reasons throughut (sic) the proceedings in case ADC1674/2014 and displayed racial bias based on the Husband’s ethnic background.
As to the findings of credit, in paragraph 5 of his written summary of argument, the husband identified his Honour’s reasons for judgment delivered on 22 November 2017 as containing those findings.
Pausing there, those reasons supported the final orders for property settlement made on 22 November 2017, and which were the subject of the husband’s appeal to the Full Court.
It is readily apparent from a perusal of those reasons for judgment that there were disputes between the parties, for example, as to their respective contributions, and that his Honour resolved those disputes by accepting or rejecting the evidence of one or other of the parties.
That is a perfectly orthodox approach by a trial judge hearing contested applications for property settlement. Further, none of the grounds of appeal asserted by the husband in his appeal against his Honour’s orders of 22 November 2017, challenged any factual or credit findings by his Honour. Indeed, it is instructive to note that although there were disputes on the evidence, the husband chose not to cross-examine the wife on the contents of her trial affidavit.
Moreover, although the Full Court allowed the appeal as explained above, that was not based on, and did not relate to, any credit finding by his Honour against the husband.
Finally, and crucially, the husband has failed to identify in this ground of appeal, or in his written summary of argument, the credit findings to which he now takes exception, and he has also failed to establish how any credit findings demonstrate bias on the part of his Honour.
In a similar vein, the husband has failed to identify either in the ground of appeal or in his summary of argument, where and how his Honour “displayed racial bias based on the husband’s ethnic background”. However, at the hearing of the appeal he referred the court to [4] of his Honour’s reasons delivered on 22 November 2017, and claimed that in setting out the background of the parties, his Honour “displayed racial bias based on the husband’s ethnic background” by recording that the husband was born [overseas]. This perhaps exemplifies how much of a waste of the resources of this Court this appeal has been.
There is no merit in this ground of appeal. It does not demonstrate bias on the part of his Honour, and no error in his Honour refusing to disqualify himself.
Ground 6
[The primary judge] has made threats lacking legal basis of issuing a warrant for the husband’s arrest in Orders of 07 February 2018 in relation to a legitimate absence of the Husband from the directional hearing for the Application in a Case (costs) filed by the wife on 18 December 2019, and issued further verbal threats at the directional hearing of 02 July 2019 to the effect of exercising discretion to issue enforcement orders to negatively affect the Husband’s security clearances and consequentely (sic) his ability to hold his current employment.
Before his Honour on 7 February 2018 was an Application in a Case filed by the wife on 18 December 2017, seeking an order for costs consequent upon the final orders for property settlement made by his Honour on 22 November 2017.
That application with a return date of 7 February 2018, was served on the husband by email on 19 December 2018, and also by registered post, with the husband acknowledging receipt on 21 December 2017. Yet, the husband failed to attend the hearing, and his Honour determined to adjourn the application and require the husband to attend the adjourned hearing. In his order, his Honour indicated that failure to attend may result in a warrant being issued for the husband’s arrest.
The husband suggests that there was a “legitimate” reason for his failure to attend the hearing, but of course, he had filed nothing, and his Honour was not aware of why the husband was not present at the hearing.
In these circumstances, it was perfectly proper, and quite orthodox, for his Honour to require the husband’s attendance on the adjourned date, and indicate the consequences of not doing so.
This cannot and does not raise the spectre of bias on the part of his Honour.
As for the verbal threats, they were allegedly made, not during the hearing on 2 July 2019, but on 27 June 2019, and the husband corrected that in his summary of argument.
However, the husband failed to obtain the transcript of the latter hearing prior to the hearing of the appeal, and thus he was not able to take this Court to the alleged verbal threats. He did though provide the transcript to the court on 26 February 2020, and I have been able to identify what was said by his Honour to which the husband takes exception. I need to go back though, to the hearing on 20 June 2019.
On 20 June 2019, it was raised by the wife that the husband had not complied with the order made by this Court on 8 August 2018, that he pay costs of $5,000. The husband suggested that that order was “rescinded or overruled” by the orders of the Full Court of 18 January 2019. However, that was not the case, and his Honour made declarations that the order “was an obligation to pay money for the purposes of the Federal Circuit Court Rules 2001 (Cth)”, and that it was not “rescinded or in any way overruled by the orders of the Full Court”.
His Honour further ordered that the husband file and serve a Financial Statement within seven days, and adjourned the matter to 27 June 2019.
The husband failed to comply with the order for the filing of a Financial Statement, and he still did not pay the $5,000. Accordingly, on 27 June 2019, his Honour, after quizzing the husband about his Financial Statement, turned to the costs order, and the following exchange ensued:
HIS HONOUR: Have you paid the $5000?
MR BULOW: No. I haven’t, your Honour.
HIS HONOUR: No. Why not? You heard my ruling last week, didn’t you?
MR BULOW: Yes.
HIS HONOUR: Yes. You are in contempt of an order of the Full Court of the Family Court.
MR BULOW: I’m undertaking the steps to pay it, your Honour.
HIS HONOUR: Well, you’ve had since August last year to pay, and you told the court prior to the appeal that you had $100,000 in a bank account. You had better take those steps very, very quickly. This matter is listed for a callover to be listed for trial on Monday. If that money has not been paid, I will do one of either two things: I will issue an enforcement warrant or I will issue a third-party debt notice. If I issue a third-party debt notice, that will be a notice to your employer to take money out of your wages every week and pay it to Mrs Bulow. My concern is, given the nature of your industry, Mr Bulow, that may affect your security clearance. In fact, any order I make in the nature of an enforcement warrant or a third-party debt notice, I would have thought, given that you work still in the [public service], might affect any security clearance you have.
That’s one of the reasons I am giving you opportunities, rather than coming in heavy-handed and simply issuing the warrant last week. I adjourned it off so that you could do that. This is not some sort of conspiracy against you, Mr Bulow. An order was made that you pay a certain amount of money. I don’t want to make a coercive order, issuing a warrant or a third-party debt notice, unless I absolutely have to, and that’s one of the reasons I gave you until today. Now, what is the problem with paying that amount of $5000?
MR BULOW: There’s no problem, your Honour. I was of a firm belief, in accordance with the application that I put in an affidavit, that the final orders of the Full Court superseded that order.
HIS HONOUR: Yes. That’s right.
MR BULOW: So I was absolutely of the firm belief that I haven’t been given any direction or any advice any other ways. So now I have - - -
HIS HONOUR: Yes. And, on the basis of that, you made an application. I made my ruling on the application a week ago, and I gave you a grace period until today in order to make that payment. Now, if there’s not a problem with having the funds to make that payment, why has the payment not been made?
MR BULOW: There is no problem there, your Honour.
HIS HONOUR: Right. Well, can you make the payment by the end of the day?
MR BULOW: Yes. I can.
(Transcript 27 June 2019, p.2 line 41 to p.3 line 46)
His Honour then twice repeated his concern for the effect of a coercive order on the husband’s employment.
Thus, this aspect of this ground of appeal is a complete misrepresentation by the husband, and when the true situation is revealed, far from demonstrating bias on the part of his Honour, demonstrates his Honour’s appreciation for the husband’s employment circumstances, and his preparedness to allow the husband time to comply with orders of the court. Other judges may not have been so understanding or generous to the husband.
This ground of appeal fails, and again, does not demonstrate bias or error by the primary judge in refusing to recuse himself.
Ground 7
[The primary judge] has demonstrated actual judicial bias in that Orders made on 22 November 2017 are plainly unjust in dividing the assets of the marriage 63%/37% for non-superannuation assets and also 63%/37% for superannuation distribution as valued at separation, both in favour of the wife; the Application for Costs filed by the wife 18/12/2018 seeks a further distribution totalling 82%/18%.
What the husband claims here is “actual judicial bias” by his Honour in making the orders that he did on 22 November 2017.
However, there has been no attempt by the husband to establish the “subjective motives, attitudes, predilections, or purposes” of his Honour in making those orders. All that the husband does is suggest that the orders are “plainly unjust”, but he neither explains why that is so, nor how that demonstrates actual bias. There is also no suggestion by the husband of actual bias in the form of pre-judgment. Indeed, I suggest that such a claim would not be available to the husband recalling what Von Doussa J said in SCAA v MIMIA quoted at [39] above.
Nor does the decision of the Full Court assist the husband in providing a basis for this claim. The appeal was allowed on a limited basis; of the 30 grounds of appeal, only five were successful, and they related primarily to issues of superannuation, not because the orders were “plainly unjust”. Indeed, nowhere does the Full Court make such a finding, and in [111] even indicated that nothing the Full Court said in allowing the appeal and setting aside orders 1(a) and 2, “suggests that any different splitting order or other order, must necessarily be made”. His Honour did not have before him the necessary evidence in order to reach his conclusions, and it may be that with that evidence available on a rehearing, the same result would ensue.
There is no merit in this ground of appeal, and again, it does not demonstrate that his Honour erred in refusing to disqualify himself.
Ground 8
[The primary judge] has demonstrated actual judicial bias in facilitating the claims for legal costs submitted by the legal representatives of the wife against the Husband that lacked legal basis, and in issuing Orders for the claimed costs in full against the Husband.
In addition to the competing applications for orders for property settlement, his Honour heard and determined the wife’s applications for orders for costs against the husband in three contested interim applications during the course of the proceedings. His Honour had referred those applications to the trial.
His Honour dealt with those costs applications at [108] – [118], and made the order sought by the wife. The total amount awarded by his Honour was $11,889, and his Honour deducted that amount from the amount payable to the husband by way of property settlement.
That order was a subject of the husband’s appeal, but no error was found by the Full Court
There is no basis identified by the husband for finding that how his Honour dealt with these applications demonstrated “actual bias”. Indeed, there is no such basis to be found.
It is readily apparent that what the husband is doing with this and other grounds of appeal, is identifying orders made by his Honour and or reasons for judgment delivered by his Honour, that the husband simply disagrees with, and suggesting that therefore his Honour was biased. That provides no basis for a finding of bias, and it has been a complete waste of this Court’s time and resources to have to consider the same.
Ground 9
[The primary judge] demonstrated actual judicial bias in accepting post-trial the submission by the legal representatives of the wife of evidence containing suspicious data in the form of the PSS Form 6 response in the letter datd (sic) 15 November 2016 and the E report dated same day 15 November 2019, and in rejecting the verified evidence to the same that was agreed by both parties in the filed Joint Statement of Experts.
This is a prime example of an allegation that was not raised before his Honour, and thus cannot be raised on appeal. In any event, it is a complaint that can go nowhere.
There is insufficient detail in the ground to enable this Court to understand what the issue is, and all that the husband does in his written summary of argument is repeat the ground without any reference to anything in the appeal record.
There is no basis on which to address this ground.
Ground 10
[The primary judge] has demonstrated actual judicial bias in delaying the issuing of the Orders of 22 November 2017 by 12 months from the date of the trial to the financial benefit of the wife and effecting a direct negative financial impact on the husband (sic) superannuation, as well as a negative financial impact on the Commonwealth Superannuation Corporation.
The trial took place on 23 and 24 November 2016, and his Honour made his orders and delivered his reasons for judgment on 22 November 2017.
Plainly the allegation is that his Honour deliberately delayed making his orders in order to benefit the wife and negatively impact the husband in relation to his superannuation.
I note that this complaint was not the subject of any ground of appeal before the Full Court.
In any event, to succeed with that claim, the husband would have to provide a basis for his Honour to find that that was his state of mind. The husband did not do that before his Honour, and thus he did not satisfy the heavy onus placed on him in that regard as referred to above. Accordingly, bias has not been established, and this does not demonstrate error by his Honour in refusing to recuse himself.
Ground 11
There is a perception of apprehension of bias following [the primary judge’s] statements at the direction hearing on 28 February 2019 in relation to the Orders of the Full Court of the Family Court of Australia, e.g. page 8 para 20-25 of Transcript of Proceedings: “They [the Full Court of the Family Court of Australia] can’t possibly have meant that I would rehear the matter and come to a different conclusion about these things”
In this ground the husband asserts apprehended bias rather than actual bias on the part of his Honour.
Thus, it is necessary to apply the two step test set out in Ebner. First, it requires the identification of what it is said might lead his Honour to decide the case other than on its legal and factual merits. Presumably, here, what is identified in that regard, is what his Honour said on 28 February 2019. Pausing there though, it is not explained by the husband how that statement might lead his Honour to decide the case other than on its legal and factual merits.
Indeed, what his Honour says is an accurate interpretation of the decision of the Full Court. Further, it is not open to the husband to cherry-pick one sentence from a lengthy discussion by his Honour in considering what he is required to do in the rehearing (see Transcript 28 February 2019, p.8 lines 13-41). Moreover, his Honour amply explained the context and meaning of that sentence in [16] – [22], of his reasons for judgment delivered on 2 July 2019.
Thus, the first step is not satisfied.
Turning to the second step from Ebner; that certainly has not been satisfied. In other words, and to adopt the words of the High Court, there has been no articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
This ground does not demonstrate apprehended bias on his Honour’s part, nor, that his Honour erred in refusing to recuse himself.
Ground 12
[The primary judge] has acquiesced to the reqest (sic) of the barrister of the wife (Ms Penelope Kari) and sealed the Application in a Case for costs filed by the respondent wife on 18 December 2017 and has not heard the matter following the Orders being issued by the Full Court of the Family Court of Australia on 18 January 2019 in the Appeal Case SOA3 of 2018 from ADC674/2014.
The husband does not identify the complaint as demonstrating either actual or apprehended bias, and it is a struggle to understand it as either. However, presumably it is his Honour’s alleged acquiescence which creates the problem. If it is though, the question must be asked, what is the problem that that creates?
As referred to above, on 18 December 2017 the wife filed an Application seeking an order for the costs of the trial, supported by an affidavit which contained details of offers of settlement.
At the hearing on 28 February 2019, the husband provided a Response to that Application and an affidavit which also referred to offers of settlement.
Given that as a result of the orders of the Full Court there was then to be a limited rehearing of the matter, and before his Honour, as referred to above, the wife’s counsel proposed that that Application, the Response and the affidavits be placed in a sealed envelope pending the completion of the rehearing, and the hearing of the application for costs, if still appropriate. The basis of that proposal was that that would prevent that material from being seen by his Honour during the rehearing.
The husband objected to that course, wanting the Application to be heard separately, and to be dismissed.
Understandably, his Honour agreed with the proposal of the wife’s counsel, and made an appropriate order.
There is no basis for any complaint that the husband may have about that process. It was absolutely appropriate and necessary. The Application simply had to await the rehearing, and the documents needed to be quarantined in the meantime.
The proposal and the order made by his Honour cannot and does not raise any suggestion of bias, and does not demonstrate error by his Honour in refusing to recuse himself.
Ground 13
The Application in a Case for costs filed by the respondent wife on 18 December 2017 and the Responses and supporting Affidavits have been placed on the Court file and there is a perception that [the primary judge] has had access to the file and the offers of settlement for over 12 months.
This ground follows on from the previous ground, and suggests that given the sealed envelope has remained with the file, there is the “perception” that his Honour has accessed it.
It is unclear whether the husband is asserting actual bias or apprehended bias, but regardless, neither are established. There is nothing that this Court has been taken to which would demonstrate that his Honour has accessed the sealed envelope, and/or it has not been established that the hypothetical reasonable observer would reasonably apprehend that the prospect of his Honour accessing the documents demonstrates that his Honour might not bring an impartial mind to the resolution of the question the judge is required to decide. Indeed, to state the issue in that way demonstrates the fallacy in this ground of appeal.
Again, this does not demonstrate that his Honour erred in refusing to recuse himself.
Ground 1
[The primary judge] erred in refusing to recuse himself from the further rehearing of the proceeding ordered by the Full Court of the Family Court of Australia on 18 January 2019 in the Appeal Case SOA3 of 2018 from ADC1674/2014 and for the case to be transferred to such other Judge of the Federal Circuit Court of Australia or the Family Court as might be allocated (sic) the Family Court of Australia.
Given none of the other grounds demonstrate bias by his Honour, nor that his Honour erred in failing to recuse himself, this ground can have no merit.
Conclusion
Given no ground of appeal has succeeded, the appeal must be dismissed.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 19 May 2020.
Associate:
Date: 19 May 2020
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