Dickens & Dickens (No 2)
[2019] FamCAFC 201
•6 November 2019
FAMILY COURT OF AUSTRALIA
| DICKENS & DICKENS (NO. 2) | [2019] FamCAFC 201 |
| FAMILY LAW – APPEAL – DISQUALIFICATION – Where the appellant seeks that a member of the Full Court be disqualified from further hearing this appeal on the basis of apprehended bias – Where the test for apprehended bias is not satisfied – Where the appellant has not provided any evidence which demonstrates apprehended bias – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342; [1986] HCA 39 |
| APPELLANT: | Mr Dickens |
| RESPONDENT: | Ms Dickens |
| INDEPENDENT CHILDREN’S LAWYER: | Moylan Family Lawyers |
| FILE NUMBER: | SYC | 739 | of | 2010 |
| APPEAL NUMBER: | EAA | 10 | of | 2019 |
| DATE DELIVERED: | 6 November 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 23 September 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 December 2018 |
| LOWER COURT MNC: | [2018] FamCA 1109 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Messner |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Moylan Family Lawyers |
Order made 23 September 2019
The appellant father’s oral application made on 23 September 2019 for the recusal of Justice Strickland be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 10 of 2019
File Number: SYC 739 of 2010
| Mr Dickens |
Appellant
And
| Ms Dickens |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 23 September 2019, whilst the Full Court was hearing an Amended Notice of Appeal filed by Mr Dickens (“the father”) on 10 July 2019 seeking that final parenting orders be set aside, the father made an oral application that I disqualify myself from further hearing the appeal, along with one of the other judges on the bench, namely Ainslie-Wallace J.
After hearing submissions from the father, I dismissed the application, and indicated that I would provide my reasons at a later date. I now provide those reasons as follows.
The father initially submitted that I should disqualify myself for the same reasons he submitted as to why Ainslie-Wallace J should be disqualified. However, the submissions in relation to Ainslie-Wallace J primarily went to her Honour’s reasons for judgment delivered in this matter on 5 September 2019 and do not concern me.
When asked to confine his submissions to myself, the father submitted that I should disqualify myself on the basis of apprehended bias. The father asserted that my bias was demonstrated in a previous judgment delivered by the Full Court, which comprised myself, Ainslie-Wallace and Aldridge JJ, on 21 February 2017. That judgment concerned multiple appeals brought by the father from various interlocutory and procedural orders made by Watts and Johnston JJ. Amongst those orders included an order dismissing an application that Watts J disqualify himself, an order dismissing an application that the Independent Children’s Lawyer be discharged, and an order dismissing the father’s contravention application against the mother’s partner. In that decision, the Full Court also rejected the father’s application for leave to adduce further evidence in that appeal.
The father submitted that during that appeal there was evidence before the Court in relation to an alleged incident occurring on 14 March 2014 between the child C and the mother’s partner, Mr Levine. The father seems to assert that because the evidence in relation to this incident was before the Court (by way of police subpoena material), and the reasons delivered and the orders made were not favourable to the father, in that I upheld the decision of Watts J, that I “ignored and condoned” that evidence and that makes me biased. It is not explained though how that evidence went to any of the grounds of appeal agitated by the father in those appeals.
The law concerning disqualification on account of apprehended bias is well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), the High Court said this:
6Where, 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.
…
8The 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.
…
(Footnotes omitted)
It is also of relevance here to refer to the earlier decision of Johnson v Johnson (2000) 201 CLR 488 (“Johnson”), where the High Court said this:
12… 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”.
(Emphasis added) (Footnotes omitted)
I also refer to the High Court decision in Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, where Mason J said, at 352:
… 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. … [D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”…
(Emphasis added)
As to the application that I disqualify myself, the tests laid out in Johnson and in Ebner have not been satisfied. In particular the two steps referred to in Ebner have not been undertaken by the father. Not only has he failed to identify what it is said that might lead me, the judge, to decide the case other than on its legal and factual merits, but he has not articulated the logical connection between the matter and the feared deviation of deciding the case on its merits.
It seems to me that the difficulty the father has in making this application is that he has overlooked that the test is objective, not subjective. The test is not whether the father considers that I am biased, the test is “whether 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.”
In my view, this is nothing more than the father disagreeing with the decision of the Full Court on 21 February 2017 because none of his appeals or applications for leave to appeal were successful. That is no basis for me to disqualify myself from hearing this appeal, and in the circumstances, the oral application of the father must be dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 6 November 2019.
Associate:
Date: 6 November 2019
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