Cassell & Kolar (No 2)
[2022] FedCFamC1F 984
Federal Circuit and Family Court of Australia
(DIVISION 1)
Cassell & Kolar (No 2) [2022] FedCFamC1F 984
File number(s): MLC 4879 of 2019 Judgment of: STRUM J Date of judgment: 18 November 2022 Catchwords: FAMILY LAW – COURTS AND JUDGES – Disqualification – Recusal application on the basis of apprehended bias – Where there is no basis for apprehended bias – Application dismissed. Legislation: Evidence Act 1995 (Cth), s 41
Family Law Act1975 (Cth)
Federal Circuit and Family Court of Australia, Family Law Case Management – Central Practice Direction, 1 September 2021 para 5.22
Cases cited: Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Rilak & Tsocas [2017] FamCA 757
Strahan & Strahan (Disqualification) (2009) FLC 93-414; [2009] FamCAFC 204
Tsocas & Rilak(No 4) [2022] FedCFamC1F 296
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 18 November 2022 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms Dellidis Solicitor for the Respondent: Hargreaves Family Lawyers Counsel for the Independent Children’s Lawyer: Mr James Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid ORDERS
MLC 4879 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CASSELL
Applicant
AND: MR KOLAR
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
STRUM J
DATE OF ORDER:
18 November 2022
THE COURT ORDERS THAT:
1.The part-heard trial be relisted before the Honourable Justice Strum to resume at 10.00am on 17 – 21 April 2023 and on 26-28 April 2023 (if necessary).
2.All subpoena objections be listed for hearing at 10.00am on 31 January 2023 before a Senior Judicial Registrar.
3.The Applicant mother have leave to make an oral application this day.
4.The Applicant mother’s oral application made this day that the Honourable Justice Strum recuse himself for apprehended bias be dismissed.
5.The Applicant mother seek leave from the court prior to making any further interim parenting applications.
6.Pursuant to rule 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court certifies that it was reasonable to engage counsel.
7.Costs of the Mother and Father be reserved.
AND IT IS REQUESTED THAT:
8.In the circumstances of this case, Victoria Legal Aid re-appoint a new lawyer as soon as practicable (and substantially more than four weeks prior to the resumed trial, if possible) on behalf of the Applicant mother in these proceedings, pursuant to paragraph 7 of the Orders made on 18 January 2022, under the s.102NA cross examine scheme.
AND THE COURT NOTES THAT:
A.The Respondent Father and the Independent Children’s Lawyer are excused from the subpoena objection hearing.
B.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the trial.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Cassell & Kolar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Delivered Ex TemporeSTRUM J:
These proceedings have been extant since 2019. They concern both parenting arrangements for the child of the marriage X, born in 2018, and property settlement. The trial of this matter commenced before me on 29 August this year. It was set down for up to two weeks. The case proceeded over three days before coming to an abrupt halt. The applicant wife was represented at trial by Mr L of counsel, who was instructed by N Lawyers, pursuant to a grant of legal aid by reason of an order made pursuant to s 102NA of the Family Law Act1975 (Cth) (“Act”). The wife was in the course of cross-examination by Ms Dellidis of counsel appearing on behalf of the respondent husband when the trial was adjourned.
On the first day and the morning of the second day of the hearing, I pointed out to Mr L that it was unclear to me what property relief the wife sought. I directed him to prepare a minute of property orders. After lunch on the second day, instead of a minute, unusually I was provided with a spreadsheet by Mr L, which he told me represented the wife’s claim to property adjustment. At that stage, the wife was in the witness box awaiting the resumption of cross-examination by Ms Dellidis. During my exchanges with Mr L, in order to understand what the spreadsheet meant and to clarify what it was, precisely, that the wife sought by way of alteration of interests in property, the wife spoke up from the witness box, uninvited, to disagree with her counsel. I stood the matter down so that the apparent disagreement between the wife and her counsel could be resolved.
The matter came back before me on a couple of occasions that afternoon, and on each occasion it was stood down to enable Mr L to clarify whether he continued to be retained by the wife or not, and whether or not he sought leave to withdraw. It was then adjourned to the third day, on the morning of which Mr L sought my leave to withdraw, essentially on two bases: an inability to obtain instructions from his client and/or a refusal by his client to take his advice. I gave Mr L leave to withdraw and then required his instructing solicitor, Ms P, to attend, which she eventually did, albeit reluctantly. She then similarly sought leave to withdraw which, in the circumstances, I granted.
The wife today has expressed some concern that by reason of the conduct of her barrister or her solicitor, that might somehow be held against her when the trial resumes before me. Insofar as she may hold that fear, she is wrong. Whilst I agree that Ms P did show a degree of disrespect to the Court, by her initial refusal to appear after Mr L was granted leave to withdraw, that is not something which should or could be held against the wife. The wife was left as a litigant in person after the withdrawal of both her barrister and her solicitor, and in circumstances where she was subject to a s 102NA order, which would not have precluded her from continuing the case by representing herself, but would have precluded her from cross-examining the husband. At her request, in order to secure other representation and because of that inability to cross-examine the husband, I granted an adjournment of the part-heard trial. It was initially opposed by Ms Dellidis, but ultimately and sensibly Ms Dellidis conceded that the matter had to be adjourned.
The matter was adjourned to today to enable the wife to secure alternative representation through Victoria Legal Aid under the Commonwealth Family Violence and Cross-examination of Parties Scheme (“Scheme”) pursuant to s 102NA of the Act, and to enable that alternative representation, whether solicitor or counsel or both, to familiarise themselves with this matter that has now been pending for some three years and in circumstances where the wife was already in the course of cross-examination when the matter was adjourned on the last occasion.
Unfortunately, the matter is no further advanced today. I cannot, on what I have been told, hold any of the parties, and certainly not the wife, responsible for that. I was told by Mr James of counsel, who appeared on behalf of the Independent Children’s Lawyer, that Victoria Legal Aid will not allocate representation under the Scheme until a trial date has been fixed, and that the legal representation will not be appointed until four weeks prior to the trial commencing. That accords with my experience of Victoria Legal Aid in these types of matters. On the other hand, this matter has been adjourned part-heard and, in the circumstances, there is good reason to wonder why Victoria Legal Aid would wait to appoint new legal representation for the wife until only four weeks prior to the resumption of the part-heard trial.
The wife appears before me in person today. She has made an oral application that I disqualify myself on the grounds of apprehended bias. Insofar as she needs my leave to do so, I grant her leave to make that application, and I treat that application as having been made, in circumstances where I am acutely conscious not just of the particular circumstances of this case but also of the case management requirements in the Central Practice Direction of this Court.
The bases for the wife’s disqualification application are somewhat opaque. She complains of the manner in which she was cross-examined by Ms Dellidis of counsel for the husband. However, whilst she was being cross-examined (which has not concluded), she was represented by Mr L of counsel. Even if Mr L had not objected if there were matters, which I considered to improper, she can rest assured that I would have intervened in the face of any failure by her barrister to do so, but there was none. Section 41 of the Evidence Act 1995 (Cth) would have required me to do so.
The wife complains about the tone adopted by Ms Dellidis in cross-examination. Again, there was nothing in Ms Dellidis’ cross-examination that struck me as improper, and had it done so I would have brought it to Ms Dellidis’ attention. As a litigant in person, the wife may not understand that cross-examination is meant to test the opposing witness’s case; it is not to bolster the witness’ own case. It may be observed that cross-examination is rarely, if ever, a pleasant experience for a witness. Different barristers have different styles of cross-examination. The wife was robustly cross-examined by Ms Dellidis, but counsel was doing no more than her job and doing it very well. She did not transgress s 41 of the Evidence Act.
The wife complains that, by reason of the hearing to date, with which she is apparently dissatisfied, I cannot “unhear” what I have heard. She is mistaken in that respect. Judges often are required to rule upon matters of evidence which, if they disallow it, notwithstanding the fact that they may have read or heard the evidence, they must, can and do put out of their mind in deciding the matters that are necessary to be decided. It would appear from the absence of objection by the wife’s counsel and, in any event, in my opinion, that I did not hear anything which I should not have heard.
Regardless, nothing that I heard in the course of the trial over the three days that it ran in would require me to recuse myself. The wife described the three days of the trial as “a circus”. I am not clear what she means by that. She made reference to Ms P, when she reluctantly attended at Court, as attending “in pyjamas”. That is certainly not my recollection. Ms Cassell may not share Ms P’s fashion sense, but she can rest well assured that if any lawyer or layperson had the temerity to appear in my Court in pyjamas or otherwise improperly attired, I would not forget it – nor would they likely do so – in a rush.
The wife also referred to the disagreement that occurred between her counsel and her on the afternoon of the second day of the hearing. I read nothing into that. It may simply have been a misunderstanding between Mr L and the wife. When the matter returns, it will continue, and her new counsel will have the benefit of the transcript, and if there are any matters which require re-examination of the wife arising out of the cross-examination that occurred before new counsel’s involvement in the case, then those matters (as well as any matters hereafter) can be the subject of re-examination. However, I find that the wife’s application that I recuse myself on the basis of apprehended bias is entirely misconceived.
These being ex tempore reasons and the wife’s recusal application having only been flagged (and made) today, there are two first-instance decisions by judges of Division 1 of this Court and previously of the Family Court of Australia that I refer to. The first is Rilak & Tsocas [2017] FamCA 757, a decision of by Rees J. More recently, there is the decision of Altobelli J in a later iteration of that case, Tsocas & Rilak(No 4) [2022] FedCFamC1F 296. In the second in that line of cases, Altobelli J referred to the decision of Rees J in the earlier case in 2017, where her Honour referred to several well-known decisions of the High Court of Australia and one of the Full Court of the Family Court.
In Re JRL; Ex parte CJL (1986) 161 CLR 342 (at [5]), Mason J 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. …
The nub of the wife’s complaint is that, having heard what I have heard or observed what I have observed, I may decide the case adversely to her. That is not the test.
Mason J continued:
… 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. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established” (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). 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.
In Johnson v Johnson (2000) 201 CLR 488 (at [11]), the plurality of the High Court (Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ) set out the principles to be applied in such an application as follows:
… It has been established by a series of decisions of this Court that 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.
(Footnotes omitted)
It has not been demonstrated by the wife how it could be said that a fair-minded lay observer might reasonably apprehend, based on what they had observed over the three days of the hearing before me to date, that I might not bring an impartial and unprejudiced mind to the resolution of the questions that I am required to decide. The plurality in the High Court continued (at [12]):
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.” 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)
The wife has not pointed to any matters which she says I should (let alone could not) disregard as being irrelevant, immaterial or prejudicial, but even if she could identify any such matters, they need to be viewed in the light of what the High Court said in the preceding passage and, in particular, that I must discharge the affirmation that I took when I was appointed a judge.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (at [7]-[8]), the High Court explained the concept of apprehension of bias in the following terms:
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.
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. …
There is nothing in this regard that has been identified to me by the wife. As she is a litigant in person, she has been given some latitude by me today. I tried to engage with her to understand exactly what it was she said might lead me to decide the case other than on its legal and factual merits. She was unable to identify anything. Their Honours in the High Court continued (at [8]):
… 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.
I acknowledge that this is not a case in which the wife has asserted, or it could be asserted that, I have any interest in the case. What is important is that there has been no articulation of the logical connection between any matter relied upon by the wife and the feared deviation from the course of deciding the case on its merits. Even if the wife had been able to establish the first step, she was unable to identify what might lead me to decide the case other than on its legal and factual merits. Thus, the second step, namely, that of articulating the logical connection between that matter and any deviation she fears, has not been discharged. The High Court continued (at [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.
The last authority to which I refer is the decision of the Full Court of the Family Court in Strahan & Strahan (Disqualification) (2009) FLC 93-414, where the Full Court said (at [5]):
It will be noted that the plurality in Johnson considered it unnecessary to undertake a detailed analysis of the principles relating to apprehended bias, preferring to rely on the test of “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.”…
The Full Court then continued (at [6]), in relation to the two-step process articulated in Ebner:
In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. …
In accordance with the authorities to which I have referred, and for the brief ex-tempore reasons which I have given, I will dismiss the wife’s oral application that I recuse myself for apprehended bias.
Intertwined with the wife’s application that I recuse myself is her suggestion, not based on any legal principle that could be identified by her, that the trial to date should be aborted and commence afresh. The wife was still in the relatively early stages of cross-examination. It was indicated by counsel for the father that there is at least one more day (but I suspect more) required by her for to complete cross-examination of the mother, as well as cross-examination by counsel for the Independent Children’s Lawyer. There is no basis whatsoever to abort the trial. Even if I could and did do so, the transcript of the evidence already given by her could be used in any fresh trial. The trial will resume before me part-heard in April of next year.
The orders that I made on 2 September did not contain the requirement for leave to issue further applications that Ms Cassell asserted I had made. However, under para 5.22 of the Central Practice Direction of this Court she is limited in the number of applications she can make, and if she wishes to bring a fresh one, she will need leave to do that.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment delivered ex tempore of the Honourable Justice Strum. Associate:
Dated: 12 December 2022
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