CUNNINGHAM & CUNNINGHAM
[2015] FCCA 1007
•16 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUNNINGHAM & CUNNINGHAM | [2015] FCCA 1007 |
| Catchwords: FAMILY LAW – Application for disqualification – oral application – apprehended bias – test not satisfied – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka. (2001) 206 CLR 128 Johnson v Johnson (2000) 201 CLR 488 British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 377 Re J.R.L. Ex parte CJL (1986) 161 CLR 342 Strahan & Strahan (Disqualification) [2009] FamCA FC 204 Paisio and Paisio (1979) FLC 90-659 Goode & Goode [2006] FamCA 1346 MRR v GR (2010) 240 CLR 461 Eyton & Eyton & Ors [2013] FamCA 657 |
| Applicant: | MR CUNNINGHAM |
| Respondent: | MS CUNNINGHAM |
| File Number: | DGC 3065 of 2013 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 16 April 2015 |
| Date of Last Submission: | 16 April 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 16 April 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr P. Mulligan |
| Solicitors for the Applicant: | Goodman Group Lawyers |
| Counsel for the Respondent: | Ms S. Fisken |
| Solicitors for the Respondent: | Morley, Naughton, Pearn & Cook Solicitors |
ORDERS
The applicant’s oral application be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Cunningham & Cunningham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT MELBOURNE |
DGC 3065 of 2013
| MR CUNNINGHAM |
Applicant
And
| MS CUNNINGHAM |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court today 16 April 2015 are proceedings between Mr Cunningham (“the father”) and Ms Cunningham (“the mother”). The father is 40 years of age and the mother is 37 years of age.
The parties married in (omitted) 2003 and separated on 15 September 2012. There was a divorce order made on 11 December 2013. There are two children of the parties’ relationship, X born (omitted) 2009 and Y born (omitted) 2011 (“the children”) who are the subject of the parties competing applications for parenting orders in these proceedings.
The proceedings have been on foot since November 2013.
The proceedings did involve disputes over both parenting and property orders under the Family Law Act 1975 (“the Act”). The property part of the proceedings was resolved on 25 September 2014 and final orders were made by consent. The dispute over parenting orders was then fixed for a trial on 9 April 2014. The proceedings are at Court today, 16 April 2015 on day 3 of the trial which commenced on 9 April 2015.The father is represented by Mr Mulligan, Solicitor and the mother is represented by Ms Fisken of Counsel. Over the course of 9 and 10 April 2015 in the Dandenong Registry, the Court heard evidence from the father, the paternal grandmother and the mother. On 10 April 2015 the matter was adjourned to today, 16 April 2015 in the Melbourne Registry so that the Court could hear the evidence from the family consultant who had prepared two family reports in these proceedings and so the parties could have an opportunity to cross examine her.
This morning at the call over of the Court’s list, the matter was stood down at the request of the father’s solicitor to examine the notes provided by the family consultant pursuant to a notice to produce.
The matter was stood down initially for half an hour and then again for another half an hour. When the matter returned to Court the father’s solicitor then indicated to the Court that he wished to make an oral application that I recuse myself on the grounds of apprehended bias. The father’s solicitor confirmed that he had instructions to make that application and he sought to do so orally. The father’s solicitor sought relief from compliance with the Federal Circuit Court Rules 2001 (“the Rules”) to the extent necessary to allow him to do so.[1]
[1] Rule 1.06 of the Federal Circuit Court Rules 2001
The father’s solicitor told the Court he was relying on the principles as articulated in Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) as the appropriate test. The father’s solicitor indicated that “the issue” in this case was religion. The father’s solicitor submitted that he believed that there had been two comments made by the Court that were the basis for the oral application. One was there was a reference to a quote from Karl Marx as ‘religion being the opiate of the masses’. The second comment being that the Court had referred to ‘the year of our Lord 2015.’ The father’s solicitor submitted that those were sarcastic comments and I should recuse myself on that basis.
Counsel for the mother told the Court that in the interests of having the matter dealt with her client did not oppose the father having leave to make the oral application. However Counsel for the mother submitted there was no basis for the oral application and submitted it should be dismissed as the father’s solicitor was making a serious application which failed to satisfy the requisite test.
Counsel for mother noted that there was no prior notice of the oral application made today at the callover. There was no mention of this issue on either day 1 or day 2 of the trial and that there was no mention of the matter at the conclusion of day 2 of the trial. Counsel for the mother submitted that the oral application was being made on day 3 where purportedly one of the comments allegedly relied on had been made on day 1.
Counsel for the mother referred to the principles that should be applied, including those referred to by the father’s solicitor in Johnson (supra) and in the case of Strahan & Strahan (Disqualification) [2009] FamCA FC 204 (“Strahan”). Counsel for the mother also referred to the decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 377 (“Ebner”). Counsel for the mother referred to the Full Court in Strahan at paragraphs [3] to [6] which referred in turn to Ebner (supra) at paragraphs [19] to [24]:
“The relevant law
3.The law concerning disqualification on account of apprehended bias is well settled. In Ebner v Official Trustee in Bankruptcy[2000] HCA 63; (2000) 205 CLR 337, the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) held at 344-349:
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.
7.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.
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.
...
The principle to be applied
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.
20.This 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. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21.It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22.The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23.Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
24.In Webb v The Queen, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference. (footnotes omitted)
4.In the earlier decision of Johnson v Johnson[2000] HCA 48; (2000) 201 CLR 488; (2000) FLC 93-041, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492-493:
10.The disposition of this appeal depends upon the application of principles which are well established and which neither party disputed. The contention was that there had been a departure from those principles which the Full Court of the Family Court had wrongly failed to correct, thus calling for the intervention of this Court, if only to emphasise the importance of intermediate courts applying these principles. In these circumstances it is neither necessary nor appropriate to undertake any detailed analysis of the principles or their basis.
11.... 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.
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”.
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (footnotes omitted) (emphasis added)
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 plurality in Ebner articulated a two step process to be used in applying that test in individual cases. The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the “logical connection” between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.
6.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. This point was firmly made by Mason J in Re JRL; Ex parte CJL[1986] HCA 39;(1986) 161 CLR 342. Given the importance of the proposition, and the fact that Strickland J cited it in his reasons, we propose to set out what Mason J said at 352:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. 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. 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; Watson; Re Lusink; Ex parte Shaw. 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.
Counsel for the mother submitted that the test to be applied to this application was a two-step process. Firstly the identification of the relevant matters and then, and importantly, the logical connection. Counsel for the mother submitted that the father had completely failed to address the second step of the necessary test. It was submitted by Counsel for the mother it had not been said by the father how those comments would give rise to a reasonable apprehension of bias. There was simply, it was submitted, no logical connection and on that basis the oral application should be dismissed. It was also submitted that where the test is that connection must be firmly established, and it was submitted had not even been remotely established, the oral application should in any event be dismissed.
In response, the father’s solicitor again repeated that he believed that religion was the “critical issue” in this case. The father’s solicitor submitted he believed that religion had become a joke in these proceedings and that the comments made were sarcastic.
The test to be applied in Australia in determining whether a judge is disqualified by appearance of 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.[2] Allegations of apprehended bias must be firmly established.[3]
[2] Michael Wilson & Partners Limited & Nicholls (2011) 244 CLR 427 at [31]
[3] Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128; [2001] HCA 23 at [135]-[136]
In applying that test it must be borne in mind that an inquiry about the apprehension of bias is distinct from an inquiry about actual bias.[4]
The hypothetical lay observer while not a lawyer is not taken to be uninformed or uninstructed about the law or ordinary judicial practice.[5] Rather such a person may be expected to have taken the trouble to inform themselves of the basic considerations or context relevant to making a fair judgment and is taken to be neither complacent nor unduly sensitive or suspicious.[6] Thus as Kirby explained in Johnson (supra) acting reasonably the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives taken out of context.[7]
[4] Michael Wilson & Partners Limited & Nicholls (2011) 244 CLR 427at paragraph [33]
[5] Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [493]
[6] British American Tobacco Australia Services Limited & Laurie (2011) 242 CLR 283; [2011] HCA 2 at [306]
[7] Johnson v Johnson (2000) 201 CLR 488 at [53]
As noted by Counsel for the mother two steps must be addressed in considering the application as Gleeson CJ noted in Ebner[8] at paragraph [8]:
“First…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…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.”
[8] Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 377; [2000] HCA 63 at [8]
Also as the joint judgment stated in Michael Wilson & Partners Limited & Nicholls (2011) 244 CLR 427 at paragraph [63] noted:
“…the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgement and the possibility of departure from impartial decision making.” (emphasis added)
The importance of ensuring that litigants have their disputes determined by a judge who is impartial and appears to be so is based on the need for public confidence in the administration of justice.[9] It’s also important to note (and this has been noted in submissions made on behalf of the mother) that it’s the duty of the judge to sit where proper grounds for disqualification do not exist. As Mason J emphasised in Re J.R.L; Ex parte C.J.L. (1986) 161 CLR 342 at [352]:
“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.”
[9] Johnson v Johnson (2000) 201 CLR 488 at paragraph [12]
I acknowledge that the reference to the quote by Karl Marx was made. This was in exchange with the father’s solicitor on day 1 of the trial. When the matter was adjourned over to today at the end of day 2 the reference was also made to the matter being ‘adjourned to Thursday, 16 April in the year of our Lord 2015.’ There was no application made, on the first day or indeed on the second day. During the trial where those comments were made the Court also referred to comments of the Full Court of the Family Court to which no issue has been taken. They included cases such as Paisio and Paisio (1979) FLC 90-659 at page 78-514 as follows:
“There may be many paths to the top of the mountain. Some would say there is only one. Some would say there is no path. Some would say there is no mountain. It would be presumptuous, vain, and temerarious for a judge to make a finding of fact on such an issue. It has been said many times that a temporal court is not able to decide which religion affords the greatest benefits to its adherents.”
These are proceedings for parenting orders for the two children referred to earlier. The question I am asked to decide in these proceedings, in conformity with the requirements of Part VII of the Act is what orders ought be made in the best interests of the children.
That is the issue. The principles for that purpose have been authoritatively examined in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.[10]
[10] see for e.g. Eyton & Eyton & Ors [2013] FamCA 657 at paragraphs [31] to [38].
In the present case, I accept the submissions made by Counsel for the mother. I am not satisfied a fair minded lay observer might reasonably apprehend that I would not bring an impartial mind to the resolution of what orders were in the children’s best interests. Whether the comments could be interpreted as claimed by the father’s solicitor, the test is objective. There has been no logical connection between the comments made and any asserted departure from impartial decision making on the issues in this case established let alone firmly established. There must be a real possibility articulated of why given the comments, the Court would not apply the relevant provisions of Part VII of the Act in deciding what orders were in the child’s best interests and there hasn’t been. Given this and as no such connection was articulated or claimed I have reached the view that there are no proper grounds for me to disqualify myself, and therefore that my duty is to continue to sit. Accordingly, I dismiss the oral application for those reasons.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Associate:
Date: 16 April 2015
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