Edhouse & Edhouse (No 2)

Case [2024] FedCFamC1F 102

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102

File number(s): SYC 4161 of 2021
Judgment of: KARI J
Date of judgment: 29 February 2024
Catchwords: FAMILY LAW - COURTS AND JUDGES –  Apprehended Bias – Application for disqualification of a judicial officer –Whether the judge’s comments might lead fair-minded lay observer to reasonably apprehend that the judge may not decide the case other than on its legal and factual merits –  Consideration of the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 - Where the comments of the judge should be read in the full context in which they were made – Where the docketed judge has acquired cumulative knowledge of the matter – Apprehended bias not established – Application dismissed
Legislation:

Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) ss 69ZN, 69ZP, 69ZQ, 69ZR
Cases cited:

Acheson & Begbie [2023] FedCFamC1F 704

Adlin & Northern Territory Central Authority (No.5) (2021) FLC 94-019

Charisteas v Charisteas (2021) 273 CLR 289

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Edhouse & Edhouse [2021] FedCFamC1F 79

Edhouse & Edhouse [2022] FedCFamC1A 84

Field v Kingston (2018) FLC 93-850

Johnson v Johnson (2000) 201 CLR 488

Johnson N v Johnson ML (1997) FLC 92-764

Re F: Litigants in Person Guidelines (2001) FLC 93-072

Re JRL; Ex parte CJL (1986) 161 CLR 342
Division: Division 1 First Instance
Number of paragraphs: 100
Date of hearing: 16 February 2024
Place: Heard in Adelaide via Microsoft Teams, delivered in Adelaide
Counsel for the Applicant: Mr Grew
Solicitor for the Applicant: Coleman Greig Lawyers
Counsel for the Respondent: Ms Cantrall
Solicitor for the Respondent: Lander & Rogers
Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors

ORDERS

SYC 4161 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR EDHOUSE

Applicant
AND:

MS EDHOUSE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

29 FEBRUARY 2024

THE COURT ORDERS THAT:

1.That paragraph 2 of the Application in a Proceeding filed 9 February 2024 be dismissed.

2.That the balance of the Application in a Proceeding filed 9 February 2024 (paragraphs 3 and 4) be listed for hearing at 10.00 am on the first day of trial, 4 March 2024.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated…

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AGLC
Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102
Case
[2024] FedCFamC1F 102
Decision Date

CaseChat Overview and Summary

The case of Edhouse & Edhouse (No 2) involves the applicant, Mr. Edhouse, and the respondent, Ms. Edhouse, in a family law matter before the Federal Circuit and Family Court of Australia. The primary dispute centres on an application by Ms. Edhouse for the disqualification of the judicial officer, Kari J, on the grounds of apprehended bias. The court had to determine whether the judge's comments during the proceedings could lead a fair-minded lay observer to reasonably apprehend that the judge might not decide the case impartially. This determination hinged on the application of the test established in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, which examines whether the comments of the judge, read in the full context in which they were made, might cause such apprehension.

The court considered the context in which the judicial officer had managed the case, including the benefits of active case management, which had allowed the judge to acquire cumulative knowledge of the matter. This familiarity, while beneficial for the administration of justice, was also considered in evaluating any potential bias. The court held that the comments made by the judge were part of an active case management approach and did not suggest any preconceived judgments that would lead a fair-minded lay observer to doubt the judge's impartiality. Consequently, the court concluded that the apprehension of bias was not established.

As a result, the application for the disqualification of the judicial officer was dismissed. The court ordered that the application for a certificate to issue be dismissed and that the remaining parts of the application be listed for hearing on the first day of the trial. The specific order dismissed paragraph 2 of the application filed on 9 February 2024 and scheduled the remaining paragraphs for hearing on 4 March 2024.

Orders

Orders of the court

SYC 4161 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR EDHOUSE

Applicant

AND:

MS EDHOUSE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

29 FEBRUARY 2024

THE COURT ORDERS THAT:

1. That paragraph 2 of the Application in a Proceeding filed 9 February 2024 be dismissed.

2. That the balance of the Application in a Proceeding filed 9 February 2024 (paragraphs 3 and 4) be listed for hearing at 10.00 am on the first day of trial, 4 March 2024.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, the application is to be dismissed.BACKGROUNDPreliminary comment To understand the disqualification application, the context in which it has arisen needs to be understood. This context is important in circumstances where the matter has been docketed to me and actively case managed by me for some time prior to the events which form the foundation of the mother’s application. Necessarily, where a case had been docketed and/or judicially managed, the judicial officer brings cumulative knowledge about the proceedings, acquired over several hearings, to each hearing and ultimately any final hearing. Moreover, when proceedings are docketed and/or judicially managed, it would be impossible for any judicial officer not to bring that acquired cumulative knowledge to each hearing and ultimately any final hearing. The benefits of active case management of this nature are numerous. Amongst the benefits is that the judicial officer is familiar with the matter, the disputed facts and the issues to be tried. This familiarity allows for case specific management, targeted at focussing the parties and the court on the resolution of those facts and issues; whether through some form of alternate dispute resolution (avoiding the delays and costs of a final hearing), or through a contested final hearing. In addition, this familiarity allows for a case to proceed to a final hearing at the earliest opportunity, as the attention of the court and the parties is focussed, with less opportunity for distraction by issues that do not go to the heart of the disputed facts and/or issues to be tried. From the perspective of the court there are overarching benefits to the administration of justice derived from active case management of this nature. Amongst those benefits is maximising the use and availability of judicial resources, as amongst other things, less time is required addressing the background of the proceedings at every court hearing and/or in preparation for the same. As discussed by the High Court in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 (at [174]-[177]):174.The Federal Court has adopted a docket system. In that system a number of cases are assigned to a particular judge who then oversees, and makes directions with respect to, all interlocutory matters before hearing a case assigned to him or her. The procedure for trials in the jurisdiction also involves the preparation, exchanging and filing of statements and documents in advance of the hearing which may, and almost always will, be read before the trial begins.175.This system has its disadvantages and dangers. On the one hand, the trial judge will be well educated in many of the details of the case on each side by the time that the hearing starts. But on the other hand, it may sometimes be difficult for the trial judge, apparently fully conversant with the facts and issues, not to have formed some provisional view at least of the outcome of the case…176.I mention these matters because in sum they 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. That this is so does not provide any excuse for the manifestation of apparent bias on the part of a trial judge but it may explain why a judge finds himself or herself speaking more candidly and strongly than he or she might otherwise do, or even have been able to do, in the past or in other jurisdictions. The question nonetheless remains whether the fair-minded lay observer might reasonably have apprehended that the judge might not be bringing an impartial and unprejudiced mind to the resolution of the questions he was required to decide.177.It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried. In any event, it would have been apparent to any observer from the trial judge's remarks here that his Honour was already well acquainted with the issues, and many of the details of the respective cases of the parties. Indeed, no other conclusion would have been open having regard to the matters which the trial judge raised and the way in which he expressed himself. That he had not formed any final view appears from the number and type of questions that he asked. For example, at one stage he enquired whether one way of looking at the case was a distorted way of doing so. A little later he said that the responses which had been made to him had given him useful background.(Footnotes omitted)

Evidence

Evidence Before The Court

In doing so I understand that the complaints are made both individually and collectively as ones giving rise to an apprehension of bias.Having the mother sworn into evidence without explanation to her As identified earlier, the complaint from the mother centres on the exchange between myself and the mother once she became self-represented at the hearing on 26 October 2023. In particular, the mother’s concern is that she was sworn in without explanation as to why, with the effect as described by me to her that “the matters that you put to me from the bar table form part of your evidence before the court, all right?”.[17][17] Transcript 26 October 2023, p.9 line 9. It is apparent from the submissions made on behalf of the mother that the gravamen of the mother’s concern is one of procedural fairness. Quite properly, the concern is not over the fact that the mother was sworn in and/or that her submissions would form part of her evidence. Rather the mother’s concern is that this course was taken without explanation to the mother as to why this course was taken. The mother asserts that the failure to explain why she was being sworn in was a breach of the “obligations which fell upon Her Honour as they regard unrepresented litigants”,[18] with reference to Johnson N v Johnson ML (1997) FLC 92-764 at 84,404 (“Johnson”) in which the Full Court of the Family Court identified:[18] Mother’s Case Outline filed 16 February 2024, Annexure ‘A’, paragraph 10.4.The obligations of trial Judges when hearing cases involving unrepresented litigants under Part VII of the Family Law Act are:(i)To inform the litigant in person of the manner in which the trial is to proceed, the order of witnesses and the party’s right to cross-examine witnesses;(ii) to explain to him or her any procedures relevant to the litigation;(iii) to assist unrepresented litigants by taking basic information from witnesses such as name, address and occupation;(iv)to explain to the unrepresented party the effect and possible undesirability of the interposition of witnesses and the right to object to the same;(v)to advise the litigant in person of his or her possible right to object to the tendering of evidence which is or may be inadmissible;(vi)to inform the litigant of his or her possible right to a claim of privilege in relation to a question or tendering of evidence;(vii)to ensure as far as possible that a level playing field is maintained at all times;(viii)to attempt to clarify the substance of submissions of unrepresented parties, especially where garrulous or misconceived advocacy ignores or obfuscates the substantive issues. In the Case Outline, the mother’s counsel articulated the “obligation” said to have been breached in the following terms:12. … her Honour, by no means, ensured the maintenance of an equal playing field, nor informed the mother of her rights. It is contended that this was in consequence of her Honour’s confidence in her pre conceived judgments.

Decision

Reasons for decision

Having been successful in her application before the court for a certificate to issue, I do not consider this exchange to be one that could give rise to an apprehension of bias.Conclusion 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. I accordingly shall make an order dismissing the application. Given the proximity of the trial, I now propose to hear the application to adjourn the trial on the first day of trial.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.