DISHMAN & DISHMAN
[2019] FCCA 2786
•23 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DISHMAN & DISHMAN | [2019] FCCA 2786 |
| Catchwords: FAMILY LAW – Application for recusal – where myriad complaints raised by self-represented party – where no complaint asserts prejudgement of issues – where complaints relate to conduct of wife and her legal representatives, disclosure and the husband’s perceptions – where transcripts do not support complaints – where complaints are ill-conceived – where a reasonably minded lay observer would not apprehend bias or pre-judgement – application dismissed. |
| Legislation: Family Law Act 1975 (Cth), s.75(2) |
| Cases cited: Ebner v Official Trustee in Bankruptcy[2000] HCA 63; (2000) 205 CLR 337 |
| Applicant: | MS DISHMAN |
| Respondent: | MR DISHMAN |
| File Number: | PAC 6114 of 2018 |
| Judgment of: | Judge Harman |
| Hearing date: | 23 September 2019 |
| Date of Last Submission: | 23 September 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 23 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroeder |
| Solicitors for the Applicant: | Matthews Dooley & Gibson |
| The Respondent appeared in Person |
ORDERS
I dismiss the Application in a Case filed 28 August 2019.
IT IS NOTED that publication of this judgment under the pseudonym Dishman & Dishman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6114 of 2018
| MS DISHMAN |
Applicant
And
| MR DISHMAN |
Respondent
REASONS FOR JUDGMENT
These proceedings are listed today for trial.
The proceedings concern issues of property adjustment between a married couple, a wife and a husband, the applicant and the respondent respectively.
In the period between the matter being last before the Court and today’s trial date, an Application in a Case has been filed by the husband. The husband moves for relief in accordance with the Application in a Case this morning.
The Application in a Case was filed on 28 August 2019 and listed to today, the first available date on which it could be accommodated.
The husband seeks, to the extent that it is relevant, orders as follows:
(1)That the husband be granted leave to file his final affidavit out of time and on or before 26 August 2019. The affidavit was to be filed on 23 August, a Friday. It was, instead, filed on the following Monday. Properly, no objection is taken by the wife or her counsel in relation to the document being filed one business day late, thus no issue arises.
(2)That his Honour Judge Harman immediately recuse himself or be immediately removed from further participation in the proceedings.
(3)That the hearing date of 23 September, 2019 be vacated.
(4)That non-compliance with any rule or regulation be waived in order to allow this application to be listed for hearing between 14 and 20 September 2019.
It should be observed, from the outset, that complaint is raised by Mr Dishman that the Application in a Case was not listed prior to today. There is no application for review of the registrar’s decision in that regard. I do not propose to address it further, save, as already observed, to make clear that the matter is listed on the first available occasion after the Application’s filing, being less than four weeks after the date of filing.
The Application in a Case is supported by an affidavit filed the same date as the Application in a Case, together with submissions filed this morning. Those submissions were served upon counsel for the wife at the bar table when the matter was called.
Consequent upon receipt of those submissions, I make clear that the following material is considered for today’s purposes:
a)The Application in a Case and Affidavit, each filed 28 August 2019;[1]
b)Mr Dishman’s submissions filed in Court today;
c)An earlier Application in a Case and affidavit of Mr Dishman, filed on 10 July 2019. The written submissions make clear that this material is also relied upon. The earlier affidavit related to matters pertaining to the Application in a Case in support of which it was filed.
[1] It is clear from the Husband’s earlier Affidavit filed 10 July, 2019 (paragraph 12(a)) that the husband was absent the jurisdiction 25 August-13 September, 2019 and hence the specific range of listing date sought.
The earlier Application, to the extent relevant, sought orders as follows:
(1)That this application be listed on an urgent basis. The application was filed on 10 July and listed to 12 August, the first available listing date.
(2)That the applicant wife file and serve all her evidence in reply on or before 4 pm, 21 July 2019.
(3)That the applicant wife provide the respondent with her list of authorities on or before 4 pm, 21 July 2019.
(4)The respondent husband file any additional affidavit in reply to the applicant’s putative evidence the subject of order 2 above on or before 30 August 2019.
It is necessary to consider the orders to which that Application in a Case related, as the chain of events unfolds to reach today’s Application.
On 18 June 2019, the matter had returned before the Court following a first return date on 12 March 2019.
On the first return date, 12 March 2019, Mr Dishman had not yet filed a Response, Affidavit or Financial Statement, notwithstanding rule 4.03 of the Federal Circuit Court Rules2001. The matter was, however, advanced. An order was made for the filing of that material, which had been prepared and was available for filing within a short space of time, (thus, the order required that it be filed forthwith). The parties were directed to attend mediation or family dispute resolution. It is unclear whether the parties did or did not attend mediation although it seems, in all probability, that they did.
When the matter returned before the Court on 18 June, 2019, the matter was clearly not resolved. Accordingly, orders were made for trial in the following terms:
(1)Both parties are to file and serve such material as they propose to rely upon at trial, comprising no more than one affidavit per witness, by close of business 30 August 2019.
(2)That the matter be listed for final hearing before Judge Harman, 9.30 am, 23 September 2019 and to continue until completed.
It should be observed that 23 September, today, is, in fact, a judgment writing day, but surrendered to accommodate the conclusion of these proceedings.
The husband’s first Application in a Case, filed on 10 July, 2019, thus sought to vary those trial directions. There are a number of misapprehensions apparent from the relief that was sought and repeated within the written submissions and evidence now filed by Mr Dishman. I will deal with those shortly.
Finally, however, the material that is considered also comprises transcripts of the proceedings before the Court on each day thus far:
i)12 March, 2019;
ii)18 June, 2019; and,
iii)12 August, 2019.
It would not appear that the parties are at odds as to the relevant law to be applied, being that which arises from, amongst others, Ebner v Official Trustee in Bankruptcy[2000] HCA 63; (2000) 205 CLR 337 and Johnson & Johnson [2000] HCA 48; (2000) 201 CLR 488. The relevant principles are clearly articulated and eruditely so by Judge Kelly in the decision of Merrell & Merrell [2019] FCCA 1184, commencing at paragraph 69 and continuing until paragraph 74. I incorporate that portion of the judgment herein [footnotes omitted].
Recusal
69. Mr Duffy of counsel correctly drew attention to the principles stated in Vakauta v Kelly respecting apprehended bias.
70. The principles applicable to the determination of an application for recusal on the grounds of apprehended bias are well settled. The test for recusal on the ground of apprehended bias is to be determined by 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”: Ebner v Official Trustee in Bankruptcy.
71. The two elements of the test were stated in Ebner by Gleeson CJ, McHugh, Gummow and Hayne JJ at [8] as follows:
o 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. ... Only then can the reasonableness of the asserted apprehension of bias be assessed. (emphasis added)
72. Further, in Luck v Secretary, Department of Human Services, Kerr J stated:
o As was noted by L’Heureux-Dube and McLachlin JJ in R v S (RD) [1997]3 SCR 484 at [119]:
o ...the duty to be impartial ‘does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet....
o The informed fair minded observer would know that the judicial oath taken by all judges requires them to determine all matters on their legal and factual merits.
73. More recently, in Ugur v Attorney-General for New South Wales, White JA with whom Meagher and Brereton JJA agreed, examined a number of important principles which I have set out below. By way of overview, the NSW Court of Appeal reiterated that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice – it is not that he or she will decide the case adversely to one party. The principles recognise that: (1) the hypothetical fair-minded lay observer will recognise that a professional judge is capable of departing from an earlier expressed opinion; (2) judges cannot wait until the end of a case to start thinking about it; (3) there is no principle which requires that a judicial officer exercise greater reticence with a self-represented litigant than a party who is represented; (4) the circumstance that a judge had indicated a predilection to granting an application unless a fact or argument was put which would cause him or her to change their view is not a sufficient ground for disqualification and would not raise an apprehension that the issue would not be decided with an impartial and unprejudiced mind; (5) a judge should not lightly recuse him or herself. White JA stated as follows:
o The test as to whether a judge is disqualified by reason of appearance of bias, including bias by pre-judgment, 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 has to decide. Application of the test requires articulation of why the statements of the judge relied on as showing pre-judgment or partiality give rise to the apprehension of bias through pre-judgment or departure from impartial decision-making. Disparaging comments by the judge are unlikely to lead the hypothetical fair-minded lay observer to apprehend that the judge might be biased unless the observer might consider the comments not only to be inapt but to be so unreasonable as to indicate an inability to bring an impartial mind to the questions to be decided.
o In Re JRL; Ex parte CJL, Mason J said:
§ 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’.”
o The hypothetical fair-minded lay observer will recognise that a professional judge is capable of departing from an earlier expressed opinion. Disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he would decide the case adversely to a party.
o In Johnson v Johnson the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said (at [13]):
§ 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.”
o Although greater reticence is often observed by judges when dealing with self-represented litigants, that is not necessarily to the advantage of those litigants. Nor is there any principle that a judge should be more reticent in dealing with a self-represented litigant than with the litigant who is represented by counsel or a solicitor lest an apprehension of bias arise. The question is not whether the litigant apprehends that the judge might be biased, but whether a fair-minded lay observer might apprehend that the judge might not bring an impartial mind to the issues. In Johnson v Johnson, Kirby J gave separate reasons. His Honour said (at [53]):
§ Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. 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, which was taken out of context; Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
o . . . The hypothetical observer might apprehend that the primary judge might approach the Attorney General’s application for summary dismissal of Mr Ugur’s proceeding with a predilection to granting it unless Mr Ugur could point to some matter of fact, or some argument of law, that could cause him to change his view. That would not be sufficient to disqualify the judge from hearing the matter on the ground of apprehended bias. It would not raise an apprehension that the primary judge would not approach the application with an impartial and unprejudiced mind.
74. Speaking extra-judicially, The Hon Bathurst CJ reiterated the well-settled principles that there is a close relationship between case management in a docket list and the issue of bias. The Chief Justice observed it to be clear that judges cannot be expected to sit in silence during argument (or to begin thinking about the issues once the case had concluded) and would often form tentative opinions about the matters in issue. Bathurst CJ emphasised that: (1) judges should not sit silently through a proceeding; (2) the process of raising opinions during the course of proceedings was meant to draw a response which might assist the court to clarify an issue or correct a mistaken view: (3) the raising of issues during debate did not mean that the judges mind could not be altered; (4) case management in a modern docket court system would continue to raise issues regarding the possible appearance of pre-judgment.
What is made abundantly clear from the materials set out by Judge Kelly is that a number of matters must be addressed including:
(1)The hypothetical fair-minded lay observer will recognise that a professional judge is capable of departing from an earlier expressed opinion;
(2)Judges cannot wait until the end of a case to start thinking about it;
(3)There is no principle which requires that a judicial officer exercise greater reticence with a self-represented litigant than a party who is represented;
(4)The circumstances that a judge had indicated a predilection to granting an application unless a fact or argument was put which would cause him or her to change their view is not a sufficient ground for disqualification and would not raise an apprehension that the issue would not be decided with an impartial and unprejudiced mind;
(5)A judge should not lightly recuse him or herself.
The balance of the above material speaks for itself.
I propose to address the numerous complaints that are raised by the husband in support of his Application, commencing with those which arise in the affidavit filed 10 July, 2019. Therein, the following complaints arise, and I will address each in turn.
The wife did not file an affidavit in reply
As is observed by counsel for the wife, there is no such requirement. The affidavits filed by the parties at the commencement of these proceedings, those accompanying their Application and Response, are required in accordance with the Federal Circuit Court Rules 2001[2] to identify issues in dispute between them, nothing more. They are not trial affidavits. They are not intended to set out all of the evidence that might ultimately be relied upon by a party. Indeed, that would be entirely inconsistent with Practice Direction 2, 2017, limiting to 10 pages the filing of material to accompany an application or response. It is on that basis that subsequent trial directions were made.
[2] See Rule 4.05(1) “A person filing an application or response, whether seeking final, interim or procedural orders, must also file an affidavit stating the facts relied on” and Rule 24.02(1) “An applicant, or a respondent who files a response, must file and serve with the application or response a financial statement in accordance with the approved form or an affidavit of financial circumstances”.
To the extent that this is a complaint maintained by the husband, through the earlier Application in a Case and the present, a complaint that the Court has “predetermined” the issue by failing to require the wife to file an affidavit in reply to the husband’s, he is simply wrong. There is no such requirement, nor could it possibly be a basis for recusal.
Not requiring the wife to file an affidavit in reply is not prejudgment of any issue in the proceedings. It is merely an appropriate and proper application of procedural rules, consistent with 19 years of practice in this Court. As is also observed by counsel for the wife, it is apparent from the very transcript annexed by the husband to his material, that it was pointed out to the husband, on the earlier occasion in June, the appearance from which the matter was listed for hearing, that there was no such requirement and, thus, no such order would be made. It is a procedural and interlocutory order, in any event, and it does not determine, in any way, the rights or interests of any party.
The wife’s solicitors did not help the husband as the Court had indicated they would
There are two difficulties with this proposition. Firstly, whether the wife’s solicitors “helped” the husband or not need not be considered to any great extent. The wife’s solicitors owe a fiduciary obligation to the wife, not the husband. It would be entirely inappropriate for them to provide the husband with advice or what might be broadly described as assistance.
Secondly, to the extent that it is suggested that the husband had been misled by the Court to believe that such assistance would be forthcoming, any cursory examination of the transcript of proceedings 12 March 2019 dispels that reality. All that is suggested, in a lengthy discourse with the husband, comprising some 12 pages of transcript, is a suggestion that resolution of the issues might be desirable and that this would best occur through discourse and discussion.
Certainly, the husband complains that the wife’s solicitors, present or previous, have refused to discuss things with him or discuss things in a particular manner. They are matters for the parties and section 131 of the Evidence Act1995 would preclude evidence of settlement negotiations coming before the Court.
That the wife has failed, in her duties of disclosure, with respect to an inheritance, or that she has been mistaken or wrong in her evidence regarding the registered proprietorship of parcels of real estate
Whether that is so or not, it is to be observed, as was observed previously and is apparent from the transcript of proceedings 10 June 2019, that the husband has not ever sought any order with respect to disclosure. He has sought orders with respect to variation of trial directions and the sequential filing of material rather than simultaneous. That application was dealt with and I will return to it shortly.
The husband indicates in his earlier affidavit and submissions that he has made complaint to the Legal Services Commissioner about the wife’s then solicitor. If either party were to have a basis for seeking recusal, the disclosure of that fact might support an application by the wife. However, as was indicated to the husband when the matter was before the Court on the August date, those are not matters that need concern the Court. They are not taken into account positively or otherwise.
At paragraph 12(e) of the July affidavit, the husband again complains that the wife was required to file an affidavit in reply or that she should have been required to file material prior to the husband filing his material. The orders that were made in relation to trial affidavits required that both parties file simultaneously. It is perhaps on that basis, (to the extent that it might be inferred or imputed from the earlier Application in a Case, that the husband sought that the wife be required to place all of her evidence before the Court first so that the respondent might have it and respond to it), that the husband feels aggrieved. The husband is, again, clearly wrong. But that issue also gives purpose and meaning to the suggestion, within the transcript, that such an application would be, in effect, asking the Court to hear an appeal from its own orders. Trial directions had already been made requiring simultaneous filing.
The husband raises that he suffers a heart condition and needs to avoid stress. There is nothing that the Court can do to address that issue. Stress is inherent in Court proceedings. It is not suggested, nor could it validly be suggested, that anything has arisen in the conduct of the proceedings to date, other than inter parties, that has increased that stress.
On the first return date of the proceedings, 12 March, significant time was spent in discussing issues with the husband to obtain his input and assist his understanding of the proceedings. Some pages of the transcript are devoted to an explanation of the process of arbitration in the event that either party might consider consent to a referral to arbitration pursuant to section 13E of the Family Law Act 1975. Consent was not forthcoming.
The basis upon which proceedings are determined was explained at length to the husband on that occasion, commencing on page 6 of the transcript, including the need to ascertain the present legal and equitable interests of the parties, per Stanford v Stanford (2012) 247 CLR 108, to determine the parties’ contributions and to determine what adjustments, if any, should be made pursuant to section 75(2) of the Family Law Act 1975 and to then determine the proceedings by application of that law to the facts. Nothing further can be taken with respect to the issue.
At paragraph 13 of the earlier affidavit, the husband complains that the wife was wrong as to the percentage ownership of parcels of real estate, as discussed above, and that the wife had failed to make certain disclosure in relation to an inheritance received by her in or about 2007. Again, no application has been made, at any time, for specific orders with respect to disclosure, such as a declaration, pursuant to Rule 14.01 of the Federal Circuit Court Rules2001, allowing formal discovery or interlocutories. All that was sought by the Application in a Case filed in July, 2019, was a variation of trial directions so as to require that the parties file earlier to accommodate a trip to be undertaken by the husband.
At paragraphs 13 to 28, the husband raises those complaints, and specifically refers to a document that was apparently provided by the husband to the wife’s solicitors on or about the mention date, in June, 2019, when trial directions were made. That document seeks certain indications from the wife’s solicitors. The tender of that document, the husband suggests, although it is not apparent from the transcripts, was rejected. However, considering that document, (annexure A, page 8 to the July affidavit), it does not take the matter any further. All it does is to raise complaints as between the parties as to the very matters referred to above. They are matters for evidence at trial.
The trial had not yet commenced. The evidence had not yet been filed by the parties. What was required to be ascertained on 18 June was whether the matter was settled or not and, if not settled, to determine how the matter might be concluded. The parties had already participated or been ordered to participate in facilitative dispute resolution, (i.e., mediation). Accordingly, absent the consent of the parties to arbitration there was nothing left to do but to list the matter for trial. To fail to do so, whether the issues were clearly and specifically identified by the parties, one, both or otherwise, would have been a failure to engage with the proceedings.
Short Shrift
The affidavit filed in support of the present Application, that filed in August, raises complaints as follows:
That on the listing in August, the husband was given short shrift.
That may be the husband’s perception. His application came before the Court in a busy duty list. The time that was devoted to the matter, two separate tranches of address of the issues, was more substantial than was necessary. It should have been an issue, per Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46, that was resolved between the parties themselves, without the need for the matter to ever return before this Court. However, it did return. Whilst it is suggested that the matter was dealt with brusquely, certainly the husband was successful.
The husband complains that the order that he had sought, either for sequential filing or for the wife to file an affidavit in reply, was dismissed. He misunderstands this Court’s rules, or any fundamental rules of procedure, as to what is required in that regard. The husband’s Application was partially granted. It could not be granted as to the date the husband sought, as the date had passed by the time the matter came before the Court, the observation of which being a matter, the husband complains, involved his being “ridiculed”. To observe that an order cannot be made for the wife to file a document by 21 July when the proceedings are not before the Court until 12 August is far from ridiculing the husband. It is simply pointing out the obvious.
I do not accept that the husband was given short shrift.
Even if that is his perception, it is not the test, as articulated by the numerous authorities discussed in the passage from Merrell & Merrell above. There must be an apprehension of bias, a predetermination of fact, a sense that an impartial mind will not be brought to the determination of fact.
There has been no determination of fact in these proceedings to date. The only suggestion to the husband which could possibly relate to any such matter is contained at page 4 of the transcript on the first return date, in March. On that occasion it was put to the husband that based on the wife’s figures and calculations by the wife’s solicitors (not accepting those figures and calculations, not suggesting that the outcome sought by the wife was inevitable, but simply observing that which the Court had been told) that the husband would receive 14 per cent more than the wife. The husband was asked, if it was in fact so, why that might be so. Inquiry was necessary as the husband had not then filed his material.
The husband’s response and the response from the Court were as follows, (at points 15 and 20 of the transcript) respectively:
Husband
I believe that I have been the main wage earner for the whole period of time, that is, the relationship.
Response:
Let me tell you what that’s going to mean at a hearing: nothing at all.
That is perhaps an inarticulate description of that which fell from the Full Court in Jabour & Jabour [2019] FamCAFC 78, but nonetheless an accurate description of the present state of law. There is no provision for primary wage earning to take precedence over any other contribution. In some circumstances, that could arise. However, the specific inquiry put to the husband is in the context of the concession that the wife had introduced, on her figures, approximately $600,000 by way of inheritance. The husband opines, in his material, his belief that it is closer to $1 million. The husband does not complain about this statement. I do not accept that it could possibly meet the Ebner test.
Disclosure
The husband complains, (paragraph 6), of issues relating to disclosure. There is no suggestion of any step taken by the husband to address those issues, merely the complaint. It does not take the issue further, and it is already addressed above.
No enquiry of wife
At paragraph 10 of that affidavit, a complaint is raised that the Court did not inquire of the wife as to whether she could file her material more urgently than had previously been ordered. That is simply wrong. The very transcripts annexed to the husband’s material make it clear that it is so. The inquiry was made. “Can the wife file by…” is a question put to the then legal representative for the wife. The response is given in the affirmative. The order is changed to require that both parties file their trial material prior to the husband’s departure for some weeks of holiday.
“Equal Division” as a starting point
At paragraph 19, the husband complains that on 12 March, 2019, prejudgment occurred by indicating clearly that the starting point of the case, indeed the end point of the case, would be an equal division. That is nonsense.
The husband may not have had the benefit of the transcript for that date. The Court does. There is no such statement whatsoever. No inference or imputation that it is a starting point or an end point is raised.
Smoking
This also connects with the complaint, in paragraph 20, that the husband was told several times that he would better spend his time smoking than engaging in litigation. That, again, is not at all what was suggested to the husband. The metaphor may have been poorly chosen, I need not comment upon that. What is suggested and expressed to the husband is that absent a resolution of the dispute between these parties, that the Court would hear and determine the dispute for them. They would thus lose control of the proceedings.
What is indicated to the husband, at page 6, continuing page 7 is:
You can do whatever the hell you like. You can agree that you’re going to sell all of your property, give it to charity, fall back in love and go and live on the beach at Nimbin and smoke marijuana all day. If that’s what you want to do, do it. But if you want the court to make an order, well, you probably can’t do that. So it’s about just defining the range, and that’s defined very much by agreement as to facts, which is about making sure everyone has got symmetry of information – what might be described in the American context as disclosure – so, if there is a dispute about how much was this amount of money that was introduced, well, here’s the bank statement; that proves it once and for all. Because this should get sorted out.
The suggestion that the husband’s credit was judged by references to his smoking, that he should smoke, or anything of the nature, is clearly not what the transcript states. An attempt to introduce some levity for the husband might, in fact, be seen as addressing the very complaint he raises, regarding stress. It is not something which has assisted these parties resolve their dispute. It was a comment that the parties jointly and mutually might do something else with their time than litigate. They are here litigating.
Husband’s Material not read
At paragraph 24, the husband complains that his position paper, or submissions, provided on the August date were not read.
The transcripts make clear that, on not less than two occasions, that the husband was told that they had been read in full. The husband attempts, in his affidavit, to introduce inadmissible hearsay evidence of suggested conversations with my staff. I have not considered those matters nor sought to ascertain from my staff their view of the matter. It is simply not relevant. The evidence is not admissible. The transcripts themselves address the issue.
It is made clear to the husband, at least twice, that his submissions have been read in full. On the second occasion, it is made clear that the majority of those submissions, that which relates to complaints to the Legal Services Commissioner and the like, are not helpful or in any way germane or relevant to the issue to be addressed.
At paragraph 28, the issue of disclosure is again raised. I do not propose to address it further. It is discussed above.
Threats to the husband
At paragraph 33, the husband complains that “veiled threats” were raised that he must settle the case before hearing. I make clear from the outset, there is no such suggestion from the transcript. No reasonably minded lay observer would infer a threat, I am satisfied, from anything contained within that document.
Certainly, the husband is encouraged, and to the extent that he complains that the comment is directed to him and only him, it is not so, save that the wife has legal representatives and, thus, can receive the advice directly from them and through them, that he should now redouble efforts to resolve the case. Indeed, he should, if he wishes to avoid the very stress that he complains these proceedings cause him.
It is unclear what attempts have been made to resolve the case, but nor need I inquire. They are matters that would, as to their substance, be inadmissible in any event.
There are no veiled threats. All that is stated is that the proceedings are capable of resolution. Whether they are resolved or not simply determines whether the case must be heard by the Court.
Trivialising the Case
At paragraph 35, it is complained that the case is trivialised by “simply comparing the differences in the two applications”. One would think that is what fell from the High Court in U & U [2002] FLC 93-112, to consider the proposals of the parties as the starting point for adjudication of the proceedings. At that point, the evidence was not filed nor taken into account. Thus, there could not be any suggestion of trivialising the case on the basis of suggesting that one party’s evidence could not make out a fact that they allege. The facts that the parties were alleging at that time, and/or allege today, are still not agitated.
The case was not trivialised. It was simply sought to identify, as is common process and procedure before any civil Court, whether the matter is resolved and, if not, the extent of the controversy so as to then confirm the hearing dates. That is what occurred.
Threats of loss of control
At paragraph 37, complaint is raised that the Court had “basically threatened” the husband that he would “lose control over the outcome unless the case is settled, so now is the time to redouble efforts to find a solution if at all possible, because I don’t particularly want to interfere in your life, but that’s what I get paid to do”. Again, that may be a somewhat indelicate description of the Court’s role as the judicial branch of government, but the Court’s role is to quell controversy. It is what the Court will do if the parties cannot compromise their dispute. They have not. Thus, the Court will, whether constituted by this judge or any other, or, for that matter, through referral to arbitration, although the opportunity for that referral would seem to have passed, determine the case.
There is no threat to the husband that he alone will lose control. It is a statement of reality. He will lose control to the Court. The parties will present their evidence. The Court will determine the facts, from the Court’s perspective, and will apply the law to those facts to resolve this controversy.
If the husband does not wish to be advised that this is the nature of the proceedings, then he should not engage with them. He has, however, and the Court is grateful that he has. The case can be best heard with the involvement of both parties.
Electronic filing
At paragraph 45, complaint is raised that a statement was made at the commencement of the proceedings in August:
There’s an application in a case, but it’s not electronically filed, so I don’t know what it says.
That statement is clear and apparent from the transcript. The husband has filed many documents electronically, some not. The simple reality is that the matter was last listed on a Monday. I had returned from Canberra after a week of sitting away from registry and had had no opportunity to physically view the file. I had simply stated to the husband that his application had not been read, although I was aware it was there. It was very quickly made clear by the husband what was sought. The document was found and read and the matter proceeded, including on the basis of reading the submissions provided – provided, I hasten to add, that morning (it is unclear if or when they were served on the wife’s counsel or if prior to that morning). This complaint could not found recusal.
Deliberate attempts to unsettle the husband
At paragraph 47, complaint is raised that certain statements were made to the husband regarding the filing of documents, particularly the absence of electronic filing, to “unsettle me”. Nothing could be further from the truth. It was clearly disclosed to the husband that whilst I was aware that his application had been filed, I did not know what it sought. What it sought was ascertained very quickly, including with the husband’s involvement.
Humiliation
At paragraph 53, complaint is raised that the court was seeking to humiliate and destabilise the husband by saying to him, “You want me to hear an appeal from my own orders?” That is the effect of the husband seeking to vary the nature of the trial directions. The parties were required to file by a date certain and to file simultaneously. The husband sought that the wife file a document that she is not and could not be required by the rules or any civil procedure to file, that is, an affidavit in reply to the husband’s affidavit filed in support of his response, a document that is not read at hearing and thus need not be responded to.
It is a simple statement of reality. Ultimately, however, the husband was successful in obtaining a variation of the orders, not to the extent that he sought, but varied nonetheless. So much is made clear in paragraph 54.
At paragraph 56, it is suggested that the Court had sought to humiliate the husband by picking on a trivial point that he had used the terms “us” and “we” when he was an individual. There was no attempt to humiliate the husband. He was requested several times to indicate who he was referring to by “we”. He continued until further comment was made. It is a matter for the husband how he chooses to conduct his case, ultimately, but it is unhelpful and confusing to refer to himself in the plural or third person. The same complaint is repeated in paragraph 57.
Lack of input
At paragraph 62, the gist of the complaint is raised that the husband had not had the benefit of input to the decision that was made in August. Nothing could be further from the truth. He obtained a variation of the trial direction as he sought. It is again complained that his documents had not been read. That would appear to be on the basis that I had failed to confirm to him to the contrary. That is not my role.
On at least two occasions in the transcript a clear statement is contained that the document has being read word for word. It is also indicated, as previously noted, that much of that contained within the document was unhelpful and irrelevant.
At paragraph 85, the husband complains that he was not given the opportunity to present his case – presumably, the case for variation of the orders, as that is all that the matter was listed for in August - not to hear the case, not to determine what issues were in dispute. They are matters for trial. It was simply sought to ascertain what the parties were actually in dispute about. It was made abundantly clear from the wife’s perspective what was in dispute. The husband made very clear, through his written submissions, what was in dispute - issues relating to the wife’s inheritance, his income and the proprietorial ownership of parcels of real estate.
Again, the paragraph concludes with the complaint that the Court had attempted to humiliate the husband, make fun of him, and twisted and trivialised everything he had to say. I simply reject this submission.
Conclusion
For all of those reasons, I am not satisfied that the test, as articulated by Judge Kelly through reference to appellate authority, could be made out.
There is no suggestion by the husband, at least not any borne out by the transcripts of proceedings of prior occasions, that any indication was given by the Court as to the outcome of these proceedings, or how they would be approached, other than to explain, in significant detail on the first return date of the proceedings, the relevant law and process to be applied - to identify the issues so that the present legal and equitable interests in property of these parties, to determine their contributions, and to consider section 75(2) of the Family Law Act 1975, considering justice and equity at all times.
In those circumstances, there could not, to my mind, be any basis to suggest an apprehension of bias or that an impartial mind would not be brought to the issues in dispute between these parties. Those issues are not even yet articulated. No opinion has been expressed as to their conclusion or the approach to be taken other than as above.
In those circumstances, by reference to Bathurst CJs extra-curial writings, referred to in paragraph 74 of the above passage:[3]
[3] The Hon Bathurst CJ, Duties of Bar & Bench: Some reflections on case management and judicial bias: [2014] NSWJShol 20 cited in Merrell & Merrell [2019] FCCA 1184 above at paragraph 17.
Judges should not sit silently through proceedings.
I accept that I have not. However, nothing has been said to the husband which a reasonable mind could take as being a deliberate attempt to humiliate him or trivialise the proceeding, merely extoling that settlement might be a better outcome for these parties than judicial determination.
The process of raising opinions is meant to draw a response which might assist in clarifying an issue or correct a mistaken view.
There have not been any mistaken views complained of. There have been attempts to identify issues. Those issues are still unclear. They will be articulated at trial.
The raising of issues during debate does not mean that the judge’s mind could not be altered.
There has been nothing put to the husband of any view formed in relation to any aspect of the evidence, as there has not, prior to today, been evidence before the Court. The parties have simply filed documents to identify issues in dispute. There has been no comment as to how issues will be determined.
Case management in a modern docket court system would continue to raise issues regarding the possible appearance of pre-judgment.
However, in this case I am not satisfied that there could be any such suggestion.
Similarly, by reference to the points observed by Judge Kelly in summarising the numerous authorities (paragraph 73(1) of the above passage):
The hypothetical, fair-minded lay observer will recognise that a professional judgment is capable of departing from an earlier expressed opinion.
There has been no opinion expressed regarding the subject matter of the proceedings, save the one reference to the manner in which an argument that a party who has had a greater income and earning capacity during a relationship might expect this to produce a 14 per cent difference between those parties at conclusion. This is not complained of and is consistent with Jabour & Jabour [2019] FamCAFC 78.
I must consider that:
Judges cannot wait until the end of a case to start thinking about it.
The case has not been thought about or occupied any great attention to date, other than the first return date, the second occasion when the matter returned and was listed for trial, and now two Applications in a Case, disconnected from the factual matrix that will underpin the final determination.
I must be conscious that:
There is no principle that requires that a judicial officer exercise greater reticence with a self-represented litigation than a party who is represented.
If the court had wished to suggest to the husband that his input was not sought and that as a self-represented person his opinion was less valued, one wonders why 12 pages of transcript exist for the first return date describing the proceedings and the approach to be taken explained to them in detail.
I must consider:
The circumstances that a judge has indicated a predilection to granting an application unless an argument is put which would cause a change of mind.
This could not be made out as no predilection has been indicated.
Finally, I must be conscious that a judge should not lightly recuse themselves. I do not propose to.
Accordingly, orders are made as follows.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 8 October 2019
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