Dickens & Dickens (No. 3) - [2019] FamCAFC 202

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS (NO. 3)

[2019] FamCAFC 202

FAMILY LAW – APPEAL – RECUSAL – Where the appellant made an oral application that her Honour recuse herself from hearing this appeal on the basis of apprehended bias – Where the appellant relies on her Honour hearing previous appeals and applications in this matter and contends that her Honour did not consider complaints made by the father –Where the test for apprehended bias is not made out – Application dismissed.

Dickens & Levine; Dickens & Dickens [2017] FamCAFC 24
Dickens & Dickens [2019] FamCAFC 150
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

APPELLANT:

Mr Dickens

RESPONDENT:

Ms Dickens

INDEPENDENT CHILDREN’S LAWYER:

Moylan Family Lawyers

FILE NUMBER:

SYC

739

2010

APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

7 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace 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 Ainslie-Wallace 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. 3) 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

The Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 3 September 2019 in the course of hearing an application to review a decision of the Appeal Registrar (“Registrar”), the appellant made an oral application that I recuse myself from hearing his review of the Registrar’s decision. The basis for that application was that I had on 14 April 2015 dismissed his application for an extension of time in which to appeal orders made by Rees J and Johnston J and on 21 February 2017 I was a member of a Full Court bench which dismissed an appeal brought by the appellant against orders of Johnston J.
The appellant argued that having dismissed the application and the appeal, a fair minded observer may apprehend that I would not bring an open mind to the determination of this present application.
Further, the appellant asserted that in the reasons I, in the sense that the Full Court said, that his allegations against the Independent Children's Lawyer were “ludicrous” and thus had taken a view adverse his case.
In fact, the paragraph to which the appellant refers is at [71]:[1]
… The father’s complaint about the Independent Children’s Lawyer was that he accepted the mother’s assertion and did not independently verify the correctness of the statement. In oral argument on this point, the father developed the theme to the point that he contended that it was the duty of the Independent Children’s Lawyer to check the correctness of every statement “of significance” made by either party in the proceedings. The ludicrous nature of the submission need only be set out to be demonstrated.
[1] Dickens & Levine; Dickens & Dickens [2017] FamCAFC 24.
Clearly then the comment was about the submission rather than his grievance with the Independent Children's Lawyer, however, even if it were, I am of the view that it is insufficient to ground a successful application for recusal.
The appellant further contended that in these two decisions I had not dealt with the evidence then before the trial court nor had I quelled the dispute but, rather my decision had perpetuated the dispute between the parties.
I refused that application and delivered reasons for that decision as part of the reasons delivered on that application.[2]
[2]Dickens & Dickens [2019] FamCAFC 150.
At the commencement of the appeal hearing on 23 September 2019, the appellant again sought that I recuse myself. I refused to recuse myself indicating that I would give reasons for that decision later. These are the reasons.
In remaking his application, the appellant repeated and relied on his earlier complaints, however added that I had “condoned” the abuse of his children by ignoring the complaints of abuse of the children and by ignoring what he said was an admission that one of the children had been assaulted. An additional reason why my conduct of the earlier application lent an apprehension of bias was that I did not mention these last two allegations when dealing with the earlier application.
He added further matters which concerned my recent decision and orders made on the review of the registrar’s decision. He said for example that the order made which refused to permit him to photocopy documents was inconsistent with the orders foreshadowed during the hearing of the application. That is indeed the case. He pointed to other matters which he said were errors of fact and law contained within the reasons. While acknowledging that he knew that he could appeal that decision and in that appeal rely on all of the errors to which he referred, he said he did not have time, instead, it appears he relies on those errors to support an application for recusal.
It is difficult to understand how asserted errors and inconsistencies in the reasons for decision on the review of a Registrar’s decision support an application for recusal. However, it seems that the appellant argues that those errors show that I was biased against him, or perhaps, biased in favour of the Independent Children’s Lawyer and the mother or perhaps all of those. He further asserted that by commenting that the destruction of certain documents was “inadvertent” and “unfortunate”, in the face of the appellant’s insinuations that the documents had been deliberately destroyed to thwart his appeal, I demonstrated that I was more concerned with protecting the image of the Court and perhaps the Independent Children’s Lawyer than being concerned with the welfare of the children. Again the father contended that in appeal judgments that I had written I had dismissed those concerns, ignored evidence and failed to act in the best interests of the children.
It is difficult to understand how the decisions of the Full Court, as opposed to a court of first instance, can in any considered context be accused of ignoring evidence and making decisions which are not in the best interests of a child. It might be thought that such a submission made by a self-represented litigant while wrong merely represents a misunderstanding of the difference between the roles of a court of first instance and appeal. However, the father here has lodged at least seven appeals and has attempted to obtain special leave to appeal to the High Court at least once. He well understands the different processes of the two courts.
The law in relation to disqualification on account of apprehended bias is well settled. To found a recusal it must be established that a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question”^[3] to be decided.^[4] To satisfy that test, the applicant must first identify the matter that it is said might lead the judge to not bring an impartial mind to the resolution of the issue and,^[5] secondly the applicant must demonstrate a logical connection between the identified matter and the possibility that the judge might depart from impartial decision making.^[6]
[3]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] (“Ebner”).
[4] In Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 (“Royal Guardian”) at [232] the New South Wales Court of Appeal said “that the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally”.
[5]Ebner, [8].
[6]Ebner, [8].
In Johnson v Johnson (2000) 201 CLR 488, the plurality of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492-493:
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. …
(Footnotes omitted)
Judges are called on every day to hear and determine applications, often in the same suit. That is the case here. I observe that in one of the matters which the father said had given rise to his concern, I was but one member of a bench of three who came to a unanimous decision on the application. While neither the application nor the appeal to which the father referred as foundation for his action was successful, I am comfortably satisfied that the fair minded reasonable observer understanding the context of the applications decided by me and the Full Court would not apprehend that I would fail to bring an impartial mind to the issue to be determined in the present appeal.
Thus I rejected the application to recuse myself.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

7 November 2019.

Associate:

Date: 7 November 2019