Channing & Channing (No 2)
[2024] FedCFamC2F 413
•21 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Channing & Channing (No 2) [2024] FedCFamC2F 413
File number(s): PAC 5460 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 21 March 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay pending appeal. Cases cited: Acheson & Begbie (No 2) [2024] FedCFamC1A 21
Channing & Channing [2024] FedCFamC2F 293
Macris & Galanis [2015] FCCA 2623
Michael Wilson & Partners Ltd v Nicholls & Ors [2011] HCA 48
QYFM & Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
Division: Division 2 Family Law Number of paragraphs: 31 Date of hearing: 21 March 2024 Place: Parramatta Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: AJL Legal Counsel for the Respondent: Mr Batey Solicitor for the Respondent: Hikma Legal Counsel for the Independent Children's Lawyer: Dr McConaghy Solicitor for the Independent Children's Lawyer: Legal Aid NSW Bankstown Family Law ORDERS
PAC 5460 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CHANNING
Applicant
AND: MS CHANNING
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
21 MARCH 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 13 March 2024 is dismissed.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
This matter is part heard from 25 October 2023 and is listed today for the continuation of the final hearing.
The parenting proceedings came before the Court for final hearing on 23 to 25 October 2023. The father is yet to complete his evidence and his case. The expert is yet to be cross-examined. On 20 February 2024, the father filed an Application in a Proceeding asking me to recuse myself from hearing this matter further.
On 1 March 2024, the Court heard the application for recusal. The application was dismissed on 7 March 2024, with written reasons being provided on the day[1].
[1] With a correction to the Reasons for Judgment being made on 8 March 2024; see Channing & Channing [2024] FedCFamC2F 293.
On 13 March 2024, the father filed the present application, which the Court heard this morning, being an application for a stay of the continuation of the parenting proceedings. In support of that application, the father relies upon an affidavit of his solicitor, Mr Laface, filed on 13 March 2024. That affidavit is very brief, and I will read it in full onto the record. It reads as follows:
1. I am the Respondent’s solicitor in these proceedings.
2.On 7 March 2024, her Honour Judge Obradovic made orders and published a judgment in [Channing & Channing] [2024] FedCFamC2F 293. Annexed hereto and marked “A” is a copy of the said judgment.
3.On 8 March 2024, an amended judgment was issued by the Court to the parties to the proceedings.
4.On 12 March 2024, I was instructed to file an appeal and I caused to be filed an appeal against the decision of Judge Obradovic made on 7 March 2024.
5. Annexed hereto and marked “B” is a copy of the said Notice of Appeal.
6.The proceedings which are listed for hearing on 21 & 22 March 2024 should be vacated.
7.The orders vacating the hearing date should be made in chambers by her Honour.
8. I swear that this affidavit is true and correct.
As I have already indicated that affidavit is very brief, and it purports to make submissions and conclusions as to what should occur in these proceedings. The affidavit, as indicated, annexes to it the Notice of Appeal which was filed on 12 March 2024 in the Appeals Registry. The father seeks leave to appeal from the Court’s decision of 7 March 2024 and raises one ground of appeal.
The leave to appeal is based on the following:
The father’s contention in [sic] that her Honour the primary Judge failed to recuse her Honour and that a fair-minded lay observer might reasonably apprehend the primary Judge might not bring impartial and unprejudice [sic] mind to the resolution of the question her Honour is required to decide. If leave is not granted in these circumstances the father would suffer a substantial injustice.
No particulars whatsoever are provided in respect of those matters, and when I say that, what I am referring to is that there are no particulars of how it is that the father would suffer a substantial injustice if leave was not granted and why such substantial injustice would be suffered by the father.
In respect of the ground of appeal, one ground of appeal is noted in the Notice of Appeal which has been filed. The ground of appeal is as follows:
THAT her Honour the primary Judge erred in failing to correctly apply the established principals [sic] in respect to apprehended bias to the facts and, as a result, refuse the father’s application that her Honour recuse herself from further hearing and determing [sic] the matter.
Once again, no particulars whatsoever are provided in relation to that ground of appeal.
The judgment which is appealed from is a judgment of some 19 pages, the majority of those dealing with the recusal application and about two or three dealing with a further application for the appointment of a single expert. Presumably, it is only the recusal application which is being appealed and not the decision in respect of the further appointment of a single expert.
No response to the application for a stay has been filed; however, all parties made submissions in respect of the stay application. The mother through her counsel opposes the stay, and the ICL through her counsel does not.
The principles applicable to stay applications are well known, for example, the Full Court’s decision in Aldridge & Keaton[2] where these principles are summarised and which have been referred to as a helpful guide for trial judges dealing with applications for a stay pending the determination of an appeal[3]. The relevant principles include the following considerations:
[2] [2009] FamCAFC 106.
[3] Macris & Galanis [2015] FCCA 2623.
(a)The onus to establish a proper basis for a stay is on the applicant for the stay;
(b)It is not necessary for the applicant to demonstrate any special or exceptional circumstances;
(c)A person who has obtained judgment is entitled to the benefit of that judgment;
(d)A person who has obtained judgment is entitled to presume that the judgment is correct. The mere filing of an appeal is insufficient to grant a stay;
(e)The bona fides of the applicant;
(f)The stay may be granted on terms that are fair to all of the parties, and this may involve the Court weighing the balance of convenience and the competing rights of the parties;
(g)Whether not granting the stay would render the appeal nugatory. This is, at all times, a substantial factor in determining whether or not the stay should be granted;
(h)There should be some preliminary assessment of the strength of the proposed appeal, that is, whether the appellant has an arguable case; and
(i)The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time.
That decision, of course, dealt with an application for a stay of final orders, not interlocutory orders. However, for all intents and purposes, the principles are applicable to interlocutory orders as well, albeit only insofar as they can apply. The submissions the father’s counsel made to the Court today focus on the assertion that the appeal will be rendered nugatory if the stay is not granted. The father submits that all of the other considerations favour a stay and asserts that the appeal will be dealt with quickly.
The making of a stay order is, of course, a discretionary remedy which the Court is being asked to grant, and it is up to the applicant father to convince the Court that the Court should exercise its discretion in the manner that he seeks.
There is no evidence in respect of the period of time in which the application for leave to appeal and appeal can be heard and the status of that application except by way of submissions from the bar table. There is nothing in the affidavit that has been filed in support, nor has any further affidavit been prepared and filed, nor has leave been sought to rely on any further evidence.
In considering the stay application, the Court has conducted a preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case.
The father asserts that the Court has failed to correctly apply the established principles in respect of apprehended bias. As I have already indicated, the father does not provide any particulars as to how that was said to be done by the Court.
In this regard, the Court notes that[4]:
The test [for apprehended bias] …must be applied in the context of modern litigation, taking account of the need for active case management which demands that judges no longer remain as detached as a cricket umpire or “as inscrutable as a Sphynx” until pronouncing the judgment. Exchanges between judges and counsel “are not, on that account alone, to be taken as indicative of prejudgment”, indeed, “counsel are usually assisted by hearing those opinions.” In the context of [the Federal Circuit and Family Court (Division 1)], the government has placed considerable importance [and, indeed, in the context of this Court, the government has placed considerable importance] …upon “achieving timely and efficient outcomes for litigants” by making this an “overriding principle” [of the Act] and in parenting cases requiring the Court “to actively direct, control and manage the conduct of the proceedings”. Of course, this does not derogate from the fundamental requirement that cases be determined according to law. The basis requirement that there be a just resolution according to the law remains and would be constitutionally demanded… in any event.
(citations omitted)
[4] Acheson & Begbie (No 2) [2024] FedCFamC1A 21 per Riethmuller J at [130].
In QYFM & Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[5], Kiefel CJ and Gageler J said, at paragraph 45:
The pivotal stage in the analysis on this strand of the appellant's argument lies in the assessment of the reasonableness, in the circumstances of the case, of an apprehension of that kind from the perspective of a fair-minded lay observer. In undertaking that assessment, “it is the Court's view of the public's view, not the Court's own view, which is determinative.” The hypothetical fair-minded lay observer is a deliberate and necessary construct which tethers the Court's analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system. The construct provides “the standard by which the Courts address what may appear to the public served by the Courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system.”
(citations omitted)
[5] [2023] HCA 15 at [45].
The father has not, either in his evidence or in his submissions today, identified how the Court has failed to apply the correct principles. There are no particulars provided, nor has the assertion been expanded upon by the submissions made to the Court today. Given the bare assertion made in the Notice of Appeal and no particulars or submissions addressing the sole ground of appeal, it is difficult to see how the appeal, on its face, can be said to be arguable.
Since the delivery of my recusal judgment, the Full Court of the Federal Circuit and Family Court of Australia (Division 1) has delivered its judgment in Acheson & Begbie (No 2)[6].
[6] [2024] FedCFamC1A 21.
That decision dealt with an appeal from a decision of a judge of Division 1 where the primary judge declined to recuse herself. Leave to appeal was refused in the majority judgment. It was recognised in the minority[7] judgment that if apprehended bias is established at any point, subsequent events are not able to overcome the apprehended bias save for where the party affected expressly or impliedly waives their right in that respect.
[7] Per Riethmuller J at [129]; The appeal being decided on a different basis by the majority.
Certainly in this instance, the father has not, either expressly or impliedly, waived his right in relation to any allegation of apprehended bias in these proceedings.
As recognised by the High Court[8]:
[86]It is, however,… important to add, contrary to what was said in the Court of Appeal, that an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias may well be a case where the usual criteria would require leave to be granted, at least if a long and costly trial would be wasted if the judge's decision were incorrect.
[8] Michael Wilson & Partners Ltd v Nicholls & Ors [2011] HCA 48 at [86].
Not granting a stay will see these proceedings proceed to their conclusion and judgment, ultimately, being delivered, presumably, within the usual three-month timeframe but perhaps longer, particularly noting the complexities of this matter.
In terms of the bona fides of the applicant and the balance of convenience in respect of the terms upon which a stay may be granted, the Notice of Appeal was filed on 12 March 2024. The first return date is likely to be on or about 9 April 2024, which is when, in all likelihood, directions will be made for the preparation of the leave to appeal and, perhaps, the appeal, to be heard. There is no application to expedite the appeal or the leave to appeal.
The recusal application itself was filed a few days shy of four months after the matter was adjourned part heard and about one month before the hearing was due to recommence. No explanation for that delay has ever been forthcoming from the father. He says, through his counsel, that he does not seek to delay these proceedings. That is precisely the effect of what he seeks to do, or precisely the effect of what would occur if he is successful in his application for a stay. If he is successful on the leave to appeal, and appeal, the matter will recommence before another judge of Division 2 at a time yet unknown, likely months down the track.
On the issue of change of residence and what, if anything, might be the effect on the children: if a stay is not granted, the outcome of these parenting proceedings is yet to be determined. The father is asking that the proceedings recommence before another judge. When and if that will happen is a matter to be determined by the Full Court of the Family Circuit and Federal Court of Australia (Division 1), and then the bureaucratic machine of Division 2.
It is therefore difficult to see how the continuation of the proceedings will render the appeal nugatory, except in the strict sense that if the appeal is granted and the appeal is successful, the matter will likely be remitted to another judge for hearing. The only thing which will be wasted are two further days of hearing. The matter is already part heard. The father has sought leave to appeal, and thus appealing the Court’s decision in respect of the recusal will mean that the father will not later be prevented from raising these matters on any future appeal[9].
[9] Acheson & Begbie (No 2) Riethmuller J in the minority judgment said at [121]: “If apprehended bias is established by the appellant, the result is a failure to afford procedural fairness when determining the parenting issues. The requirement for leave to appeal from a disqualification decision made during a trial does not prevent the appellant from relying upon apprehended bias grounds in his appeal against final orders, in order to attempt to establish a lack of procedural fairness with respect to the final orders (as it could not be said that it was unreasonable not to appeal the ruling during the course of the trial in this case): as discussed in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [85] and see generally Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 458.”
In summary:
(a)The Court is not satisfied as to the father’s bona fides of the application, noting that the delay in filing the recusal application was without adequate explanation initially. The Court, however, accepts that the Notice of Appeal was filed promptly after the recusal decision was handed down.
(b)The Court is not able to form the view that the appeal has merit, given the lack of particulars and the lack of any submissions in respect of why the appeal has merit. Although this is only to be a preliminary assessment of the strength of the appeal, a mere assertion that a judge has failed to do something is not sufficient to ground a finding that there is merit in the appeal.
(c)The mother is entitled to the benefit of the judgment, and the judgment is presumed to be correct.
(d)While strictly correct that the appeal will be rendered nugatory in the sense that the final hearing will proceed, the father’s appeal rights with respect to any final orders will remain and he will not be estopped from arguing procedural unfairness in respect of the application for recusal. At most, all that will be wasted are two days of hearing time. In the context of the matter already being part heard and having previously had four days of hearing time: if the appeal is successful and the matter proceeds today to final hearing, with a further two days, it will be six days of hearing time that will be wasted, in their entirety, and if a stay is granted and the appeal is successful, it will still be four days of final hearing that would have been wasted.
(e)There is no evidence as to when the leave to appeal and the appeal will be heard, or if they will be heard together. As I have already noted, there is no application to expedite the appeal.
(f)Lastly, the best interests of the children are yet to be determined, and no final decision has yet been made.
For all of those reasons, the application for a stay is dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Obradovic. Associate:
Dated: 3 April 2024
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