Edhouse & Edhouse (No 2)
[2024] FedCFamC1A 111
•12 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Edhouse & Edhouse (No 2) [2024] FedCFamC1A 111
Appeal from: Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102 Appeal number: NAA 50 of 2024 File number: SYC 4161 of 2021 Judgment of: ALSTERGREN CJ, TREE & RIETHMULLER JJ Date of judgment: 12 July 2024 Catchwords: FAMILY LAW – APPEAL – Leave to appeal – Where the appellant alleges bias on behalf of the primary judge – Consideration of test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where no apprehended bias is shown – Leave to appeal refused – Appeal dismissed Legislation: Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) s 69ZN
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28, 67
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102
House v The King (1936) 55 CLR 499; [1936] HCA 40
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 42 Date of hearing: 17 June 2024 Place: Heard in Sydney, delivered in Cairns Counsel for the Applicant: Ms Kennedy Solicitor for the Applicant: Lander & Rogers The Respondent: Did not participate – Submitting Notice filed 26 April 2024 The Independent Children’s Lawyer: Did not participate – Submitting Notice filed 10 March 2024 ORDERS
NAA 50 of 2024
SYC 4161 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS EDHOUSE
Applicant
AND: MR EDHOUSE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALSTERGREN CJ, TREE & RIETHMULLER JJ
DATE OF ORDER:
12 JULY 2024
THE COURT ORDERS THAT:
1.The application for leave to appeal be refused.
2.Appeal NAA 50 of 2024 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Edhouse & Edhouse (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALSTERGREN CJ, TREE & RIETHMULLER JJ:
INTRODUCTION
The applicant mother seeks leave to appeal against a decision by the primary judge declining to recuse herself from further hearings in the matter.
The respondent and Independent Children’s Lawyer each filed Submitting Notices with respect to the appeal.
BACKGROUND
The proceedings from which this appeal arises concern the parenting arrangements for the parties’ five year old child. On 22 September 2021, Austin J made interim orders for the applicant to have sole parental responsibility of the child, who would live with the applicant and spend two nights each week with the respondent father.
A Family Report was obtained by the parties on 14 January 2022.
On 28 April 2023, the parties entered into consent orders for a mediation to be completed by 19 July 2023. Orders were also made for the applicant to file reports by her treating general practitioner and treating specialist as she had disclosed to the respondent that she had been diagnosed with cancer and had undergone treatment.
On 19 July 2023, the matter was listed before the primary judge for a case management hearing; however, the applicant did not attend. The applicant’s solicitor at the time advised that she had been unable to contact the applicant since around 30 June 2023, and that the mediation that had been planned for 18 July 2023 did not proceed. Further, the applicant had not filed reports from her medical practitioners concerning her alleged cancer diagnosis or treatment. The hearing was adjourned to 28 July 2023, with a notation on the order that the Court would consider issuing a warrant for the applicant’s arrest if she failed to attend on the next occasion.
On 28 July 2023, the applicant’s solicitor appeared, although they had filed a Notice of Ceasing to Act on 24 July 2023. The solicitor advised that the applicant had failed to attend on the last occasion as a result of an admission to hospital (described as “Pneumonia – Community acquired” in a document purporting to be from the hospital). No reports concerning the applicant’s cancer claims were filed, despite the earlier orders, nor an affidavit attesting to the applicant’s discharge summary from the recent hospitalisation. As a result, on 28 July 2023 the primary judge made orders that (in summary) provided the following:
(a)That the applicant’s solicitors file and serve a Notice of Address for Service;
(b)That there be an extension of time for the applicant to obtain and file the reports from her treating specialist and General Practitioner;
(c)Leave for the respondent to issue subpoenas to five different medical facilities/specialists in relation to the applicant’s medical treatment; and
(d)That the applicant file and serve a copy of the Discharge Summary dated [mid] 2023.
On 23 August 2023, the respondent filed an urgent Application in a Proceeding seeking orders for the child to live with him and have only supervised time with the applicant. The substantive concerns of the respondent were outlined by the primary judge at [33]. In summary, the respondent was concerned about the applicant’s “physical and/or mental health and her capacity to care for [the child]” as no material was produced containing any records of the applicant having received cancer treatment or the applicant having been admitted to hospital for pneumonia in answer to the subpoenas issued by the respondent. The respondent had also acquired an affidavit by the oncologist named by the applicant stating that there were no records of treating a patient with the applicant’s name or date of birth, and that seven letters purporting to be from the oncologist appeared to be fakes. The issues arise in the context of the applicant having “a history of mental health issues including threats of suicide in January 2020, November 2020 and January 2021. … [and] was also scheduled under the Mental Health Act by Police on one occasion [i]n [early] 2021” (Respondent’s affidavit filed 23 August 2023, paragraph 48).
The applicant filed an affidavit on 3 October 2023 attesting to having been treated (including with chemotherapy) by the oncologist under an assumed name and having made no claim on Medicare or private health insurance (see [42]).
The primary judge was thus confronted with the significant difficulty of determining whether the primary care arrangements for the child should be changed in circumstances where there was significant circumstantial evidence pointing to the applicant having falsely sworn to be suffering cancer, undertaking chemotherapy, and having had surgery in the context of a history of significant mental health issues and previous suicide attempts. This was made all the more difficult by the applicant then being unrepresented.
At the hearing on 26 October 2023, the applicant’s solicitors were granted leave to withdraw. The applicant declined to give the name under which she said she obtained treatment, saying “[w]ithout [a] certificate, I can’t answer” (Transcript 26 October 2023, p.10 line 31), and advising she had a new solicitor who was not able to attend on that day. Following a lengthy series of exchanges between the applicant and the primary judge her Honour granted the applicant an adjournment.
The matter was again before the primary judge on 13 December 2023, when the applicant was represented by counsel. The primary judge was appropriately focused upon whether interlocutory orders to change care arrangements would be appropriate in light of a trial date having been set only four months away, and interviews having been conducted for the purpose of a Family Report.
At that hearing, submissions were also made about the operation of s 128 of the Evidence Act 1995 (Cth) (“s 128”). Counsel for the applicant submitted that although the applicant may be compelled to give evidence at the trial concerning the treatment she claimed to have received, she had not yet been compelled to provide that evidence as the orders for her to file an affidavit for the interim hearing only required the filing of affidavit material on which she intended to rely “with respect to the extant interlocutory applications before the court” (Orders made 2 November 2023). After hearing the argument, the primary judge issued a certificate pursuant to s 128 with respect to the applicant’s evidence concerning cancer diagnosis and treatment to be set out in an affidavit.
On 16 February 2024, the matter was listed before the primary judge for a mention (to ensure that the parties had complied with the direction for the preparation of the matter for trial) and to hear an Application in a Proceeding filed by the applicant on 9 February 2024 which sought that the primary judge recuse herself for apprehended bias. The primary judge reserved her decision on the application, and on 29 February 2024, dismissed the application that she recuse herself and published written reasons: see Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102. The present appeal against that decision was lodged on 1 March 2024.
On 4 March 2024, the trial dates were vacated by consent.
LEAVE TO APPEAL
Section 28(3)(f) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) requires the applicant to obtain leave to appeal a decision of a judge of the Federal Circuit and Family Court of Australia (Division 1) “rejecting an application that the Judge disqualify … herself from further hearing a matter”.
The test for leave to appeal, as set out in Medlow & Medlow (2016) FLC 93-692 at [46], is whether:
… in all of the circumstances of the case, the decision is attended by sufficient doubt as to warrant it being reconsidered… and whether substantial injustice would result if leave were refused supposing the decision to be wrong.
(Emphasis in original)
It is therefore convenient to consider the merits of the proposed appeal before returning to the question of leave.
GROUND OF APPEAL
The applicant pursues only one ground of appeal, as set out in her Amended Notice of Appeal filed 30 April 2024:
That Her Honour erred… by failing to recuse herself and by failing to find that a fair-minded lay observer might reasonably apprehend that Her Honour might not bring an impartial mind to the resolution of the matter, and by applying wrong principles, and/or failing to provide adequate reasons for the decision.
The ground of appeal is argued on a number of bases:
(a)That the primary judge erred in identifying the test for apprehended bias.
(b)That the primary judge gave inadequate reasons.
(c)That the primary judge erred in concluding that the applicant had not established apprehended bias.
The test for apprehended bias
It is well settled that the test for apprehended bias is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [6]:
… 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.
The “double might” test set out in Ebner at [8] presents two steps, requiring:
(a)“[T]he identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits”; and
(b)“[A]n articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.”.
Where a court adopts a docket system (as this Court has for its work at first instance), cases are allocated to particular judges for management in order to properly prepare them for trial. Such a system “may well incline a trial judge towards a degree of outspokenness of a kind to which he or she would not be inclined in a conventional trial on largely oral evidence” and “may explain why a judge finds himself or herself speaking more candidly and strongly than he or she might otherwise do … in other jurisdictions”: see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 (“Parramatta Design & Developments”) at [176]. Further, in parenting proceedings, s 69ZN(4) of the Family Law Act 1975 (Cth) requires the court to “actively direct, control and manage the conduct of the proceedings”, and s 67 of the FCFCOA Act sets out as one of the overarching purposes the efficient use of judicial resources and the efficient disposal of caseloads. That a docket judge may make comments that are “[c]ritical, strong and candid” does not, of itself, lead to a finding of apprehended bias: see Parramatta Design & Developments at [180]. Similarly, as the High Court identified in Ebner at [8], “The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty”. The test does not require a standard of perfection from a judge and nor could it, given the difficult task of managing complex hearings and trials.
In the present case, the primary judge identified the correct test at [57] of her reasons, quoting the relevant passage from Ebner, and ultimately concluded at [98]:
When all of these matters are taken together, I do not consider that the conduct about which complaint is made, either individually, nor collectively meets the test in Ebner.
The applicant’s counsel points to a finding by the primary judge at [90] and argues that, after analysing a large number of facts raised by the applicant, her Honour did “not consider that the fair-minded lay observer would apprehend bias” and hence had failed to apply the correct test. In the context of the reasons as a whole (particularly the clear identification of the precise test early in the judgment, and the restatement of the precise test at the conclusion of the judgment), it is apparent that the passage identified by counsel was simply a short form reference to the test that the primary judge was applying. The argument that the primary judge applied the wrong test is without merit.
Adequacy of reasons
In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the test set out by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will… be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In the present case, the applicant does not allege that the primary judge failed to identify any relevant matter, nor failed to resolve any evidentiary dispute that was necessary for the purpose of considering the application. Having identified all of the matters relied upon by the applicant, the primary judge then made a finding as to whether the test was satisfied.
We are not persuaded that there is any inadequacy in the exposure or reasoning, nor that justice is not seen to have been done, and hence this challenge is without merit.
Whether the applicant established apprehended bias
The applicant approached the argument on the basis that the question of whether the test for apprehended bias is satisfied is a discretionary judgment, and thus argued that the Court must approach the appeal on the basis set out in House v The King (1936) 55 CLR 499. The application of the test is not a discretionary judgment. If apprehended bias is established there will be a failure to afford the litigant procedural fairness and the decision maker will have committed jurisdictional error.
The applicant’s case was argued on the basis that a large number of facts, when taken together, lead to an apprehension of bias. The applicant lists many circumstances of the 26 October 2023 interim hearing which individually provide no basis for a claim of apprehended bias (using the numbering from the applicant’s Summary of Argument filed 30 April 2024):
(i)–(ii)Inviting the applicant to come to the bar table after her solicitor had withdrawn as the applicant was now “representing herself”. This was an entirely appropriate course by the primary judge.
(iii)Identifying that the respondent had raised very serious matters that were “troubling” the primary judge “significantly”. The primary judge identifying that the issues were serious was also entirely appropriate as the primary judge had before her Honour an application to vary the primary care arrangements that was founded upon the claim that the applicant invented her claim to be suffering cancer and undergoing chemotherapy and having surgery in the context of a history of mental health issues including previous suicide attempts.
(iv)The primary judge was favourably disposed to obtaining a psychiatric assessment and appointing an Independent Children’s Lawyer in the circumstances that had arisen. That was entirely appropriate in the circumstances.
(v)Counsel for the respondent had alerted the primary judge to the applicant’s claim that she had attended treatment under an assumed name. This shows no more than counsel ensuring that the primary judge was aware of the applicant’s explanation in circumstances where the applicant was then unrepresented.
(vi)The applicant being sworn as a witness before being asked to respond to the allegations. This could not be said to be inappropriate when there was no affidavit from the applicant directly addressing the issues. The primary judge provided the applicant with a method of placing sworn evidence before the Court on the Application for change in residence of the child.
(vii)The primary judge declined to immediately grant the applicant an adjournment and proceeding to make enquiries of the applicant as to her claims. This was also appropriate as the mere loss of legal representation is generally not, of itself, a basis for an adjournment. The primary judge had an interim change of residence application pending based on concerns as to the applicant’s mental health.
(viii)–(x)The primary judge asked the applicant to state the name she used to obtain her cancer treatment, advising the applicant she was would not be obliged to answer, but that inferences could be drawn from the evidence if she failed to answer (the inference would be based upon the circumstantial evidence of the doctors responding to the subpoenas by advising there were no treatment records, which would be unexplained by evidence of the applicant): see generally; Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 at 94C. The applicant responded stating “[w]ithout [a] certificate, I can’t answer” (Transcript 26 October 2023, p.10 line 31). At this point, the applicant had not articulated that the answer may tend to incriminate her, rather that she had simply used an alias for obtaining treatment. On her case, as stated at this point, there was no apparent basis for considering she may be at risk of being prosecuted for committing an offence, such as fraud or perjury. The obvious inference from a failure by the applicant to answer was that her claims concerning cancer were untrue. It was appropriate that the applicant be alerted to the fact that the refusal to answer may not have prevented the primary judge from drawing such an inference.
(xi)Complaint is made that the primary judge said to the applicant, “if I have to have you here every day or once a week until the matter is on track, that is what’s going to occur” (Transcript 26 October 2023, p.11 lines 39–40). Whilst expressed in strong terms the statement highlighted that the primary judge was concerned to ensure that appropriate evidence was before her Honour, to attempt to identify whether the applicant’s plausible claims were true, rather than simply drawing an adverse inference against the applicant.
(xii) Discussion ensued between the primary judge and counsel for the respondent as to the operation of s 128. Those discussions did not lead to the primary judge making any orders or rulings adverse to the applicant, rather the primary judge adjourned the matter to allow the applicant to obtain representation.
(xiii)–(xiv)The primary judge made a notation on the orders that the applicant declined to answer a question as to the name under which she obtained cancer treatment. The notation accurately described what occurred. It is complained that the primary judge did not include a notation that the applicant had said that without a certificate she could not answer. The matter was obviously adjourned to allow the applicant to engage her lawyer to make submissions. The fact that the primary judge did not include more extensive notations (of her own motion) leads nowhere in the context of this case.
At best, the transcript of the hearing on 26 October 2023 shows no more than the primary judge becoming frustrated at the refusal of the applicant to state the alias she said she had used to obtain cancer treatment where:
(a)There is nothing in the exchanges individually or when taken together that provides a logical connection between these exchanges and the applicant’s fear that the primary judge might deviate from the course of deciding the case on its merits;
(b)The applicant’s claim, if true, would have effectively resulted in the interim parenting application by the respondent being doomed to fail; and
(c)The primary judge was not prepared to draw the adverse inference against the applicant at that point (no doubt out of concern that the applicant’s claim may have been true and that her conduct in refusing to answer was misguided).
At the hearing on 13 December 2023, the applicant was represented by counsel. There was considerable argument concerning the operation of s 128. The context of the discussion was the pending application to change the child’s primary care arrangements. The primary judge said to counsel for the applicant, with respect to the effect of the applicant not having provided evidence disclosing the alias she alleged she had used to obtain a cancer diagnosis and treatment, that:
If I was to hear that application then, I would draw the strongest inference against your client possible. Because she’s been [afforded] every opportunity to explain what has occurred. And at every turn, she’s decided not to.
(Transcript 13 December 2023, p.8 lines 13–15).
This statement was made after the primary judge declined to hear the application to change the child’s care arrangements on the previous occasion, in circumstances where an inference that the applicant had been untruthful about the cancer claims appeared to be almost unavoidable, unless the applicant provided the alias she alleged she had used. The comment was not that the primary judge had drawn the inference, but to highlight the real risks the applicant confronted on the material then before the court if the issue was not addressed. The fact that the primary judge had not yet drawn the inference nor acted upon it makes it clear that the primary judge continued to bring an open mind to the issue.
It transpired that the primary judge was mistaken in thinking that the applicant had already been compelled to file an affidavit addressing the cancer claims, as the form of the earlier order was permissive not mandatory. This was clarified in argument. There was some degree of uncertainty around the operation of s 128 that was also clarified in argument. The applicant never clearly articulated why she would be at risk of incriminating herself by giving the alias, although presumably there was some risk that the deception had involved providing false information to a government department. Ultimately, the primary judge ordered that a certificate be given under s 128. Of course, if the applicant’s claims in her affidavits concerning cancer were actually false, she had earlier committed perjury.
As with the 26 October 2023 hearing, there was nothing in the exchanges individually or when taken together which indicated that the primary judge might deviate from deciding the case on its merits. There was no logical basis upon which a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the question which the judge would be required to decide.
We are not persuaded that the applicant’s argument that the overall conduct of the primary judge, whilst robust, was such that “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 was required to decide” has any merit: Ebner at [6].
The fact that the applicant may have perjured herself earlier in the proceedings so convincingly that the primary judge was not prepared to reject her claims on the circumstantial evidence (the absence of medical records) cannot be relied upon as a basis for apprehended bias as that conduct will be relevant to the determination of the matter in due course. A litigant cannot seek disqualification of a judge on the basis that their own misconduct is likely to rationally affect the judge’s assessment of the case. The principles of apprehended bias protect against situations where the judicial officer might “not decide the case impartially or without prejudice, rather than that he [or she] will decide the case adversely to one party”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.
Following the primary judge’s decision, the applicant filed an affidavit addressing her cancer treatment claims. It transpires that her claims to have received cancer treatment, to have had chemotherapy, and to have had surgery were false and those medical documents she produced were fabrications.
There is no merit to this aspect of the ground of appeal.
CONCLUSION
Returning to the question of whether leave to appeal should be granted, the applicant has not shown that the decision is attended by sufficient doubt to warrant its reconsideration.
Moreover, even if the primary judge had formed a view that the applicant had perjured herself, we would not be satisfied that there is any substantial injustice, as it transpires that the applicant had in fact perjured herself, something that would be uncontroversial before any judge hearing the trial.
The application for leave to appeal must be refused and the appeal dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Alstergren, and Justices Tree and Riethmuller. Associate:
Dated: 12 July 2024
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