Carlson and Carlson

[2017] FamCA 1169

FAMILY COURT OF AUSTRALIA

CARLSON & CARLSON [2017] FamCA 1169

FAMILY LAW – COURTS AND JUDGES – Disqualification – Application by husband seeking disqualification of judge on ground of alleged apprehended bias and prejudgment – Whether comments made by the judge during final hearing would lead to a reasonable apprehension of bias or show prejudgment – Whether a fair-minded lay observer would reasonably apprehend the judge may not bring an impartial and unprejudiced mind to the resolution of the matter – Application for disqualification dismissed.

Family Law Act 1975 (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488

Vakauta & Kelly (1989) 167 CLR 568

APPLICANT: Ms Carlson

RESPONDENT:	Mr Carlson
INDEPENT CHILDREN’S LAWYER:	Legal Aid NSW Newcastle Family Law
FILE NUMBER:	NCC	1538	of		2015

DATE DELIVERED: 9 November 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 9 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Gillard Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Duane

SOLICITOR FOR THE RESPONDENT: Rankin Ellison

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms O’Rourke
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW Newcastle Family Law

Orders

1. The Application in a Case filed by the husband on 18 October 2017 is dismissed.

2. The order made on 14 September 2017 for timetable of submissions is suspended pending further order.

IT IS FURTHER ORDERED THAT

1. The timetable for the filing of submissions is varied to enable the husband to file his submissions by Thursday 23 November 2017 and the wife shall file any submissions in reply by Thursday 30 November 2017.

2. All parties may file any submissions in reply by Friday 8 December 2017.

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 Carlson & Carlson 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).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1538 of 2015

Ms Carlson

Applicant

And

Mr Carlson

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an Application in a Case filed by Mr Carlson, the husband, on 18 October 2017.

2. The following orders for determination are sought:

   Order 3That the Honourable Justice Cleary disqualify herself from further hearing of these proceedings; 

   Order 4That the time for filing submissions on behalf of the applicant husband be extended to enable the Application in a Case to be brought.

3. The Application in a Case was supported by an affidavit of the husband sworn on the same day, 18 October 2017.

Brief History of Relevant Events

1. The matter came before me on the first available date, namely, today, 9 November 2017.

2. Both parties were represented by counsel. The solicitor advocate for the Independent Children’s Lawyer was also present.

3. The application for disqualification was not supported by the wife or the Independent Children’s Lawyer.

4. The matter proceeded by way of oral submissions. At the conclusion of submissions, I indicated that an order would be made suspending the operation of the submissions timetable, pending the delivery of the orders and reasons in this application. The variation of the timetable will be discussed at the conclusion of these reasons.

5. This application comes late in the course of proceedings. The trial ran during the four days allocated, 11 to 14 September 2017. There was both property and parenting to be determined for the parties’ children, boys aged 15 and 12. The evidence was able to be concluded in those four days, but not submissions. An application for further Court time to be allocated was made on behalf of the husband, which was not supported and declined.

6. A timetable was established for written submissions:  the Independent Children’s Lawyer by 29 September 2017, the husband by 13 October 2017, the wife by 27 October 2017 and replies by 3 November 2017. Judgment was reserved pending receipt of submissions.

7. Submissions have been filed by the Independent Children’s Lawyer and the wife but not yet read by me.

8. There are two significant issues.  One is the nature of the evidence put forward in support of the application. The other is the timing of the application.

Evidence Put Forward

1. The affidavit of the husband canvassed a history of court events for the parties in this Court after the matter was transferred here from the Federal Circuit Court on 15 July 2015. Other than one appearance before the other permanent judge in this registry, the various applications have come before me.

2. Taken together with the submissions on behalf of the husband, it appears the husband has analysed this history, including the recent trial. In retrospect, he has identified a pattern of what he perceives to be prejudgment by me in favour of the wife. There is a fundamental difficulty with this approach.

3. The test for apprehended bias 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.

4. This test is established in the High Court decision in Johnson & Johnson,[1] an appeal from the Full Court of the Family Court. It is in keeping with the earlier authority of Ebner & The Official Trustee in Bankruptcy.[2]  Having referred to the test, their Honours went on to say, quoting the decision in Vakauta & Kelly:[3]

   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.

   [1] Johnson & Johnson (2000) 201 CLR 488

   [2] Ebner & The Official Trustee in Bankruptcy (2000) 205 CLR 337

   [3] Vakauta & Kelly (1989) 167 CLR 568

5. By this application, the Court is effectively being asked to consider whether a fair-minded observer over more than two years would conclude that there has been prejudgment. Such a submission overlooks an application for disqualification being made at any intermediate point considered necessary to do so.

6. In his affidavit[4], the husband has focused on his own reaction to each of the court events and his view that outcomes should have been otherwise. Paragraphs 3 to 12 of his affidavit raise the interim orders made by me on 10 August 2015. There was an appeal against that decision, which was unsuccessful. Counsel referred in submissions to the Court having “embraced the wife’s position and denied the husband’s” in those proceedings.

   [4] Affidavit filed by the husband on 18/10/2017

7. This is factually incorrect. The wife had applied for the father to spend time with the parties’ children for two hours in a supervised centre, on the basis that he represented an unacceptable risk of harm to the children. The husband applied for the children to live with him and spend substantial and significant time with the mother. The outcome, residence with the mother and alternate weekends and other times with the father, is irrelevant to this application, other than to illuminate the husband’s subjective view of events. The husband could not be expected to be dispassionate about the outcomes of events. With respect to him, his subjective view is irrelevant in this application. His legal representatives, however, can be expected to have understood the relevant law.

8. The husband went on to refer to further court events. In paragraph 16, a contravention heard on 5 August 2016 and determined on 9 August;  an application by the husband for additional time with the children, particularly holiday time, referred to in paragraphs 22 to 23 and dealt with on 20 September 2016;  a second contravention referred to in paragraph 25 and dealt with by me on 24 April 2017;  an application relating to the liquidation, or the intended liquidation, of a company; an application made by the wife, referred to in paragraph 26, dealt with by me on 2 and 3 May 2017. There were orders made by consent, referred to in paragraph 32, dealt with on 21 July 2017.

9. In paragraph 34, there were complaints about rejection of evidence sought to be tendered on the first and subsequent days of the September 2017 trial, conceded by counsel at the time to be late and well outside directions.

10. Without suggesting that the remarks referred to in those paragraphs, if made, were problematic, it would certainly be the case that transcript would be necessary. In paragraphs 12, 32, 42 and 44, there are recollections of the husband ranging back over two years about statements that he recalled being made. Without transcript, any such remarks, if they were made, and conversations between bench and bar table, if they did take place, it would be important for them to be put in context.

11. It would be inappropriate for me to rely on my own recollection, to the extent that there is one, of those particular events. The husband also referred to section 128 certificates of the Evidence Act 1995 (Cth) as an issue which he saw as representing apprehended bias.

12. The next issue is the timing of the application. In this case, the application is made at the conclusion of evidence, with written submissions pending, and prior to delivery of judgment. The explanation is remarks said to have been made by me in respect to the granting or not of section 128 certificates to each party, that it was this issue that, “tipped the balance” in favour of the application now made. In Vakauta & Kelly, a decision in 1989, the remarks made by the judge in a personal injury context were held to be such as would have excited a reasonable apprehension of a prejudiced judicial mind.

13. However, their Honours went on to say that where a judge has made comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias, a party who has legal representation is not entitled to stand by until the final judgment is known and then, if its contents are unpalatable, attack the judgment on the ground that, by reason of the earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By not objecting to the judge’s remarks in that case at the time, the party was taken to have waived the right to appeal.

14. In keeping with that authority and in this context, it cannot be the case that the husband can rely on two years of court events without any application for a different bench or disqualification of the hearing judge and then make an application based on his own retrospective views of events.

15. The disadvantage to all parties, including the Independent Children’s Lawyer representing the interests of the children, is obvious in terms of delay in final determination and the further costs of a second trial.

16. The parties are aware and concede through their counsel that judges of this Court have a docket so that usually, although not invariably, applications arising are heard by the docket judge. It is also true that another judge may hear an application by necessity, convenience, chance or application. No such application has ever been made.

17. To disqualify myself at this stage, even if I did consider that the test for apprehended bias had been met, would be to impose an unreasonable burden of costs and delay on all parties. The wife and the Independent Children’s Lawyer do not support the application. It is arguably unjust to allocate a new trial at some further date in 2018 over their opposition.

18. In that event I do not consider that there is evidence that supports apprehended bias, for the reasons here given. Accordingly, I decline the application. The husband will be permitted a further period of time for filing of submissions to now be discussed.

19. I make orders accordingly.

I certify that the preceding thirty (30) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 9 November 2017.

Associate:

Date:  9 November 2017