Caughey & Peckham

[2021] FedCFamC1F 312

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Caughey & Peckham [2021] FedCFamC1F 312

File number(s):

SYC 3782 of 2019

Judgment of:

CAMPTON J

Date of judgment:

24 November 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE –Where the applicant seeks that the Judge recuse himself from further hearing of the proceedings – The relevant test as to apprehended bias identified in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488 – Where the Judge appeared as counsel for the applicant’s former husband at trial five years prior to the hearing of this application and cross-examined the applicant in that trial – Where the Court is satisfied that a fair minded lay observer may reasonably apprehend that the Judge may not bring an impartial and unprejudiced mind to the resolution of the issues in the case – Where the proceedings can be expeditiously and efficiently progressed in the docket of another Judge without prejudice, delay or additional cost – Application for recusal granted.

Legislation:

Family Law Act1975 (Cth) ss 90RD, 90SM

Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Division:

Division 1 First Instance

Number of paragraphs:

15

Date of hearing:

24 November 2021

Place:

Sydney

Counsel for the Applicant:

Mr Givney

Solicitor for the Applicant:

Apex Legal

Solicitor for the Respondent:

Holmes Donelly & Co Solicitors

ORDERS

SYC 3782 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CAUGHEY Applicant
AND:	MR PECKHAM Respondent

ORDER MADE BY:	CAMPTON J
DATE OF ORDER:	24 NOVEMBER 2021

THE COURT ORDERS THAT:

1.This matter be listed for case management before Christie J of this registry by Microsoft Teams format at 11.30 am today and that the matter be allocated to Christie J's docket.

2.I recuse myself from any further hearing of the proceedings.

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 Caughey & Peckham has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

CAMPTON J

1. The applicant by way of an Initiating Application filed 13 June 2019, commenced proceedings for financial adjustment pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) arising from her contention as to a statutory de facto relationship pursuant to the Act commencing on or about April of 2016 and terminating on or about 23 March 2019. The respondent in his Response to an Initiating Application filed 26 July 2019 puts into issue the fact of a statutory de facto relationship being of greater than two years in duration and hence the jurisdiction of the court to hear any prayer for relief for financial adjustment pursuant to s 90SM of the Act.

2. The proceedings were initially listed by way of orders made on 22 July 2019 to determine what is commonly identified as a threshold s 90RD issue. I am told that a date for the hearing of the preliminary or threshold application was not allocated.

3. By way of orders made by, as he was then, Loughnan J on 20 February 2020, the proceedings were to be allocated for listing by the judicial services team manager for a five day trial. There was an order made permitting the parties to this matter to undertake an inspection of file number SYC1927 of 2013, being financial proceedings as between the applicant in this matter and her prior husband.

4. By way of further orders made by Henderson J on 17 February 2021, the matter has been allocated for final hearing with listing priority before the first available trial judge.

5. In those circumstances, the matter came before me in my docket on 2 November 2021. On that day, Mr Givney of counsel on behalf of the applicant, sought and obtained leave to make an oral application that I recuse myself from any further hearing in these proceedings in circumstances where I appeared as counsel for the applicant's ex-husband in proceedings number SYC1927 of 2013 on a defended basis before Stevenson J in this registry, commencing on 10 February 2016. That oral application is now reduced to an Application in a Proceeding filed by the applicant on 18 November 2021 (“the Application”), supported by an affidavit of the applicant sworn and filed 18 November 2021.

6. The respondent neither consents to nor opposes the Application. The respondent has filed written submissions that I have read in support of his position as prepared by his solicitor, Mr Holmes, dated 23 November 2021.

7. The test of apprehended bias does not require a determination as to the actual mind of a judge. Rather, the question is whether a fair minded and informed lay observer might reasonably apprehend that a judge might not bring an impartial or unprejudiced mind to the resolution of the issues in the case, or putting it in another way, might have predetermined an issue, such that he or she was not open to persuasion, rather than whether that particular judge did so.

8. The principles are identified in Johnson v Johnson (2000) 201 CLR 488 and Ebner v the Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”). There is no suggestion of any waiver in this matter in circumstances where counsel for the applicant raised the issue as to recusal at the first available opportunity.

9. The evidence of the applicant as contained in her affidavit records the matters identified in this judgment thus far and records that in my role as counsel for her ex-husband in the hearing on 10 February 2016, I cross-examined the applicant from 2.51 pm until 4.04 pm. The respondent's submissions helpfully identify the foundations for his position as to neither consenting to nor opposing the Application for recusal.

10. It is his submission that the evidence in support of the Application may be insufficient in that it is not plain, it is submitted from the evidence, to identify what the authorities have recorded as the logical connection between the relevant conduct to otherwise warrant a recusal order being made. The respondent quite properly records that the relevant authorities indicate that judges should be cautious and slow to accede to applications of this nature. He highlights in the submissions that the applicant has not identified whether or not credit was in issue in the 2016 trial. In the listing on 2 November 2021 before me, the respondent, through Mr Holmes, made it clear that it would be his position at trial that the applicant could not be believed on her oath.

11. The authorities equate to an important consideration as to the impression of the lay observer. In the context of this litigation, it is apparent from what has been submitted on behalf of the respondent that credit will form a significant role in a number of fundamental factual determinations to be made at trial.

12. I am mindful that a challenge as to apprehended bias is a challenge to the integrity of the administration of justice. The High Court cautions litigants from being unduly sensitive or suspicious. The substantiation of the two steps identified in Ebner must be real and substantial. In Ebner at [348], their Honours said this:

    That is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification.

13. In my view, it is important for litigants to have confidence in the conduct of a hearing of their dispute. It is also important, especially in the circumstances of this case, for this matter to be determined expeditiously and efficiently. While being mindful of the submissions of the respondent, I am satisfied that there is a connection or nexus between what is asserted and the possibility of the apprehension of prejudgment. I am satisfied that the appearance in this matter of an absence of a fair trial in the mind of the lay observer may exist. I am mindful of the availability now, having regard to the recent funding made available by the government to this court, for another alternate judge to manage and hear this matter without prejudice, delay or additional cost to the parties.

14. I find that it is not necessary for the applicant to establish that I have made some predetermination of the issues in the case. I have made aware to the parties in exchanges that I now do have, after reading the material, some recollection of the prior litigation. I have recollections as to the identity of the parties in the dispute and of the issues that were in dispute in the prior litigation. I do not have a specific recollection as to the events of the afternoon of 10 February 2021.

15. On balance, in all of the circumstances, I find that it is open to conclude that a fair minded and informed lay observer might reasonably apprehend that I may not bring an impartial and unprejudiced mind to the resolution of the issues in the case. In the circumstances of the matter, I recuse myself from any further hearing of these proceedings.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.

Associate:

Dated:       24 November 2021