Davison and Hannigan (No.2)

[2019] FCCA 877

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAVISON & HANNIGAN (No.2) [2019] FCCA 877

Catchwords:
FAMILY LAW – Procedural – Application in a case by the husband for judge to disqualify himself from hearing the proceedings on ground of apprehension of bias.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Livesey v NSW Bar Association (1983) 151 CLR 288

British-American Tobacco Australia Services v Laurie (2011) 242 CLR 283

Applicant: MS DAVISON

Respondent: MR HANNIGAN

File Number: SYC 5030 of 2016

Judgment of: Judge Young

Hearing date: 18 March 2019

Date of Last Submission: 18 March 2019

Delivered at: Darwin

Delivered on: 18 March 2019

REPRESENTATION

Counsel for the Applicant: Ms Holtham

Solicitors for the Applicant: Story & Associates

Counsel for the Respondent: Ms Beck

Solicitors for the Respondent: Shorehills Legal

ORDERS

1. Adjourned to a date to be advised before another Judge.

IT IS NOTED that publication of this judgment under the pseudonym Davison & Hannigan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

SYC 5030 of 2016

MS DAVISON

Applicant

And

MR HANNIGAN

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for me to disqualify myself from hearing a continuation of this property matter.  In October last year, the matter was set down for trial for three days for a property trial.  One of the issues to be determined in that trial was whether or not the parties had separated within the two years preceding the filing of proceedings.  The husband argued that the separation had taken place many years before – many more years than two years before – and that the wife’s application was brought out of time. The wife, on the other hand, said that the application had been brought within two years. 

3. After discussion with counsel in that matter, it was apparent that all of the issues would not be dealt with in the three days allowed and it was an agreed position that the court would deal with the question of when the parties had separated, in substance, as a preliminary issue before moving on to deal with the property issues between the parties. 

4. In those circumstances, what happened was that the question I have described was treated as a preliminary issue. In determining that preliminary issue in favour of the applicant wife, I made forceful credit findings against the de facto husband. 

5. There is no doubt in my mind, that if that preliminary hearing is to be treated as a prior trial or a separate trial then the principles described in Livesey v NSW Bar Association (1983) 151 CLR 288 at pages 299 to 300 (and British-American Tobacco Australia Services v Laurie (2011) 242 CLR 283, and other cases to the same effect) that an apprehension of bias arises if:

   A fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.

6. I am satisfied that that would apply if the October case was a previous case. It is difficult to know how to characterise the hearing of the preliminary issue.  It is not strictly a previous case. It is all the one case between these parties in relation to the wife seeking orders for alteration of property interests. 

7. The counsel for the respondent husband, who is seeking that I stand aside, has said that it is indistinguishable from the passage I have referred to in Livesey, that is, the preliminary hearing was, in reality, a previous case.  I am not part heard, because it was agreed that the earlier matters be dealt with as a preliminary issue.  Counsel for the husband says another judge could just as easily hear the next stage of the case. I think that is probably correct, and while I don’t think it is exactly on point with the circumstances described in the passage from Livesey that I have quoted, I think it is very similar. 

8. Although I have some hesitation in concluding that it is really the same, I think, on balance, I ought to accept that the principle from Livesey that I have just read does apply to this situation. Accordingly, I will disqualify myself from hearing the next stage of this matter. I should say, if I have not already said, that I expect that credibility issues will arise in the second part of the proceeding, as they did in the first. 

9. I propose to vacate the trial dates. I do not propose to transfer the matter to Sydney. I have, in front of me, the medical material that was before Judge Boyle in Sydney when she transferred the matter to Darwin. It consists of a letter dated 26 October 2016 from Mr Hannigan’s treating cardiologist, Dr A, who says:

   I am a consultant cardiologist involved in the care of Mr Hannigan.  He has a previous cardiac history of paroxysmal atrial fibrillation, hypertension, tachycardia, hyperlipidaemia, and sleep apnoea with previous investigation for mild coronary artery disease.  Mr Hannigan finds it incredibly difficult to travel long distances from home due to various issues, including his heart, but after his recent prolonged road trip from Darwin to Sydney, he had an episode of atrial fibrillation which required admission and treatment in hospital.  I would, therefore, advise that travel by road or air over long distances could be detrimental to his health and certainly likely to precipitate cardiac symptoms and arrhythmia.

10. There was a letter from Town B Health Service dated 19 September 2016, signed by a Dr C, which in part says,:

    Mr Hannigan has several medical issues which make it extremely difficult to travel from home.  Some of the issues are listed below, but in addition, he has benign prostatic hypertrophy, which is very debilitating, and also suffers from faecal incontinence.  Both of these are very limiting and unlikely to get better.

    Then there is a list of other matters: hypertension and atrial fibrillation, etcetera, that were previously mentioned by Dr A.

11. Counsel for the wife points out that I should approach that material cautiously, both because it is more than two years old and also because there is no up-to-date medical material to support the husband’s claim that he can’t travel to Sydney. The significance, of course, of Sydney is that the property is in Sydney. So there is some nexus between Sydney and the issues to be resolved in this case.

12. In any event, counsel for the wife points out that in an affidavit filed by the husband today, he says in particular at paragraph 7:

    I wish to be able to travel to Sydney to collect my belongings from the Property D property.  I, however, do not consider that I am able to afford to travel to Sydney on two occasions if the property proceedings are transferred to Sydney.

13. What is implicit in that paragraph, it appears to me, is a statement that the husband is seriously contemplating travel to Sydney to collect belongings from the matrimonial home. The problem about travel to Sydney twice, the second occasion being for trial, is not so much his health but the cost of travel.  Counsel for the wife points out that that seems to be quite inconsistent with a claim made today that he is unable to travel to Sydney. 

14. I think there is some force in that assertion, but paragraph 6 and 8 in the same affidavit also need to be taken into account. At paragraph 6, the husband says:

    My health has not improved.

    Presumably an implicit reference to his health in 2016.  And he goes on:

    I am scheduled to have surgery on … 2019.  On …, I am having cataract surgery and retinal correction on my eye.  On … 2018, I will be undergoing a nuclear medicine procedure in relation to my heart.  I have suffered a heart attack in January and have ongoing appointments with NT Cardiac. 

    At paragraph 8 he goes on:

    It may be that my health will prevent me from travelling to Sydney to sort through my belongings there.  If that was the case, I will need a family member or friend to attend on my behalf.

15. Considering my earlier findings about the husband’s lack of credibility, I would be very reluctant to accept any uncorroborated assertion by him. I consider that there is, in this case, abundant corroborative material, particularly that from 2016, which indicates that the husband has some very significant heart or cardiac problems that may affect his ability to travel. In the circumstances, I am not prepared to transfer the matter to Sydney.

16. I have vacated the trial dates. The parties will be advised when arrangements can be made to have another judge try the matter in Darwin. That could be many months, I suspect.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 5 April 2019