ERICSSON & JARROLD
[2020] FamCAFC 298
•2 December 2020
FAMILY COURT OF AUSTRALIA
| ERICSSON & JARROLD | [2020] FamCAFC 298 |
| FAMILY LAW – APPEAL – PARENTING – BIAS – Where the appellant complains of apprehended bias by the primary judge – Where no apprehended bias is demonstrated – Where none of the complaints made by the appellant satisfy the two step test propounded in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where there is no merit in the appeal – Appeal dismissed. FAMILY LAW – APPEAL – CONTRAVENTION – APPLICATION IN AN APPEAL – Where the appellant seeks leave to adduce further evidence – Where the evidence sought to be adduced is arguably inadmissible and even if admitted would be controversial – Where the evidence fails to demonstrate error by the primary judge – Application dismissed – Where there is no merit in any of the so-called grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs in the event that the appeals are dismissed – Costs to be dealt with separately. |
| Family Law Act 1975 (Cth) s 93A(2) |
| Beesley & Ericsson (No 4) [2017] FCCA 2189 |
| APPELLANT: | Mr Ericsson |
| RESPONDENT: | Ms Jarrold |
| FILE NUMBER: | DGC | 1317 | of | 2013 |
| APPEAL NUMBERS: | SOA | 34 | of | 2020 |
| SOA | 96 | of | 2018 |
| DATE DELIVERED: | 2 December 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide by video link |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 4 August 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 12 November 2018 28 November 2018 |
| LOWER COURT MNC: | [2018] FCCA 3987 [2018] FCCA 3462 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL-ADVOCATE FOR THE RESPONDENT: | Mr Rockman |
| SOLICITOR FOR THE RESPONDENT: | Rockman & Rockman Lawyers |
Orders
The Application in an Appeal filed on 16 July 2020 be dismissed.
Appeal nos. SOA 34 of 2020 and SOA 96 of 2018 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 Ericsson & Jarrold 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Numbers: SOA 34 of 2020; SOA 96 of 2018
File Number: DGC 1317 of 2013
| Mr Ericsson |
Appellant
And
| Ms Jarrold |
Respondent
REASONS FOR JUDGMENT
Introduction
There are two appeals before this Court in this matter.
The first is a Notice of Appeal filed by Mr Ericsson (“the father”) on 24 June 2020 in appeal no. SOA 34 of 2020, appealing against an order made by Judge Small on 12 November 2018, dismissing the father’s application that her Honour recuse herself.
The second is an Amended Notice of Appeal filed by the father on 23 April 2020 appealing against an order made by Judge Small on 28 November 2018 in appeal no. SOA 96 of 2018, that the father enter into a bond of three months duration, commencing on 12 September 2019, with a surety of $1,000 to be of good behaviour and to comply with all orders of the Federal Circuit Court of Australia.
Ms Jarrold (“the mother”) opposes these appeals.
In the second appeal the father filed an Application in an Appeal on 16 July 2020, seeking leave to adduce further evidence. On 28 July 2020, the mother filed a Response seeking dismissal of this Application in an Appeal.
It is necessary to address the appeal filed on 24 June 2020 first, because if successful, the allegation of bias “strike[s] at the validity and acceptability of the trial and its outcome” (Concrete Pty Ltd v Parramatta Design and Development Pty Ltd (2006) 229 CLR 577 per Kirby and Crennan JJ at [117]), and would lead for that reason alone to the orders made on 28 November 2018 being set aside, and those proceedings being remitted for rehearing.
Background
The father was born in 1963 and is now 56 years of age. He is a professional, but at the time of the relevant hearings he was unemployed due to health reasons.
The mother was born in 1974 and is now 46 years of age. She is employed full-time as a manager.
The parties commenced to live together in 1993; they married in 1993; separated in 2012; and divorced in 2015.
There are three children of the marriage, X born in 2003, Y born in 2006, and Z born in 2008. These children all live with the mother and her current husband, Mr Jarrold.
The father has also remarried, and his current wife has two children who live with them.
The parties have been engaged in continuous litigation since 2013, and the children were spending time with the father pursuant to final orders made on 18 December 2014, as varied in August 2016 and in January 2018, and orders made on 12 September 2017 as a result of contravention proceedings brought by the mother against the father in 2016. I also note that on 12 September 2017 Judge Small placed the father on a two year good behaviour bond with a surety of $1,000.
On 15 November 2017, contravention applications filed by the mother on 24 April 2017, 8 August 2017 and 10 November 2017 were consolidated and listed for trial before Judge Small on 12 November 2018.
On 16 August 2018, the father filed an Application in a Case seeking an order that Judge Small recuse herself in all current and future proceedings between the parties.
That application was heard by her Honour before proceeding with the trial on 12 November 2018, and her Honour dismissed it. That order is the subject of the first appeal.
Her Honour proceeded with the hearing of the trial, finding that the father had contravened previous orders of the court on five occasions without reasonable excuse, and made the order referred to above, and which order is the subject of the second appeal.
The First Appeal
The grounds of appeal relied on by the father are difficult to decipher, and provide some irrelevant detail, but the following appears to comprise the principal basis of his complaints:
…
c)The grounds for my application were clear. As I have clear reasons for apprehension of bias with her honour previous findings, Judgements and reasons for judgement. They were both racist and unbalanced to the point were in her order and Reasons for Judgement of 12 September 2017 in para 166 of Case: BEESLEY & ERICSSON (No.4) [2017] FCCA 2189, Judge Small put my religious practice and the difference in the parties observance of practice to be catalyst of the many procedures in this Court.
d)Her Honour decision to disregard my apprehension of bias was unjust as she has found me in contraventions in her judgement delivery 12/09/2017 against clear final order 2014 and amendment made by his Honour Judge O’Sullivan-Elrom & Bateman (No.3) [2016] FCCA 2111
…
(as per original)
The principles concerning disqualification on the ground of apprehended bias are well settled. For example, in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the High Court said this:
6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
…
19Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
(Footnotes omitted)
Further, and with the specific reference to the allegations here, I refer to what Mason J said in the High Court decision of Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. … [D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”.
(Emphasis added)
There were three specific bases put by the father to her Honour in support of his application that she recuse herself.
First, in making the orders in January 2018, about which school the eldest child should attend, her Honour only partially adopted the recommendations of the family consultant. However, as her Honour explained in adopting the submissions of the mother’s counsel in her reasons for judgment at [13] and [14], a judge is not obliged to accept or follow all, or indeed any of the recommendations of a family consultant, and this does not demonstrate apprehended bias per se.
Secondly, the father asserted that there had been the “overlooking and disallowance of hearing a key witness”, namely a religious leader, in those previous proceedings. However, again, as her Honour explained at [14]-[18], the evidence of the two religious leaders who filed affidavits was taken into account, and her Honour even accepted the same. Thus, there is no apprehended bias to be found here.
Thirdly, the father contended that her Honour had found that his religious practices were the cause of the ongoing acrimony between the parties. Her Honour though did not accept that that was what she had said. What she in fact said was that the differences in religious practices between the parties “combined with the father’s passionate and almost single-minded commitment to his [religious practice], is the catalyst for many of the disputes which arise between the parties” (Beesley & Ericsson (No 4) [2017] FCCA 2189, at [166]).
Accordingly, again, there is no apprehended bias demonstrated in relation to this issue.
Plainly, none of these complaints satisfy the two step test propounded in Ebner, and the primary judge was correct in finding that a fair-minded lay observer would not reasonably apprehend that her Honour might not bring an impartial mind to the resolution of the question to be decided.
In reality, and this is borne out in his summary of argument filed on 10 July 2020, the complaints of the father were based on nothing more than the fact that he disagreed with the orders that her Honour had made in previous decisions, and with her reasons for those orders. However, that is not a basis for disqualification. Indeed, the remedy for the father was to appeal those orders if he was dissatisfied, but he chose not to.
There is no merit in this appeal and it must be dismissed.
The Second Appeal
The Amended Notice of Appeal filed on 23 April 2020 initially raised seven grounds of appeal. However, on 12 May 2020, this Court struck out Grounds 3-8 as incompetent. That left Ground 1 which contended as follows:
1.I wish to appeal order (1) of [2018] FCCA 3462. The brief grounds of this appeal are:
a)Lack of evidence presented in court (Paragraphs. 56 to 70 in the evidence section) as to the allegation of my early collection of my children from school.
b)I believe that an error at Law applies in her Honour findings and Judgement
c)Judge Small did not have the supporting evidence by mean of records of attendance from school to clarify whether I did attend to school and collected the children at 3.0pm
d)No evidence in submission from school log book or statement from school.
e)Judge to accept submission of the applicants’ husband which is not a sworn affidavit.
f)The sworn statement was witnessed by a police officer …
g)Acting principle … was not available in Court to be cross examined for her call with Mr Jarrold (Applicant’s Husband)
h)I was not given the chance in court to cross examine the applicants’ husband for the content of his signed submission
i)I believe that the exercising of her honour Small discretion to arrive at her conclusion at order (1) was wrong
(as per original)
It is convenient to first deal with the father’s application for leave to adduce further evidence, because the father claims that that relates to Grounds 1(a), (b), (c), (d), (g), (h) and (i).
The further evidence is contained in the father’s affidavit filed on 16 July 2020, and comprises an extract from the “E Primary School in/out sheet” for 21 April 2017 as follows:
DATE TIME STUDENT’S NAME
OUT 21/4/2017 3:15 Z + Y
GR. ADULT PICKING UP R’SHIP TO REASON
or DROPPING OFF STUDENTGr 3K+5K Mr Ericsson Father Personal
The principles applicable to the receipt of further evidence pursuant to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) are well settled, and are found in the decision of the High Court in CDJ v VAJ (1998) 197 CLR 172.
In short, the evidence must be admissible, non-controversial, and demonstrate that the order under appeal is erroneous. Further, in the exercise of the discretion to admit further evidence or not, the reasons for it not being presented at first instance are relevant.
Here, the evidence is arguably inadmissible without the teacher who forwarded the document to the father being called as a witness, but even if admitted, it would be controversial, and may even require the mother having the opportunity to cross-examine the teacher.
In any event, it fails to demonstrate error by the primary judge. The allegation in count one of the contraventions was as follows:
[t]hat on 21 April 2017 at 3:00 p.m. the father without reasonable excuse collected Y and Z from school before the end of the school day in contravention of paragraph 4(a) of the Final Orders.
Paragraph 4(a) of the final orders provided:
4. That the children spend time and communicate with the [father] during the school term as follows:
(a) Each alternate weekend from after school or like time on Friday to 5.00 p.m. Sunday;
…
The evidence in support of the allegation is described by her Honour as follows:
58.In her Affidavit affirmed on 6 August 2017 and filed 8 August 2017 (“the mother’s August Affidavit”), the mother states that on 21 April 2017, “[The father] picked up Y and Z from their school, E Primary School, before the end of school”.
59.She goes on to describe how her husband, Mr Jarrold, was contacted by the Acting Principal of E Primary School and informed that [the father] had attended the school at 3:00 p.m. on that day, and despite being informed that he was not permitted to remove the children, he had done so. Mr Jarrold’s sworn statement to the police in relation to that telephone call is annexed to the mother’s August Affidavit.
The father’s evidence was that he could not remember the date, and he put the mother to proof.
Her Honour accepted the mother’s evidence and found as follows:
63.I am satisfied, on the balance of probabilities, and accepting the evidence of [the mother], as confirmed by the sworn statement of Mr Jarrold, that on 21 April 2017, [the father] did attend E Primary School at 3:00 p.m. and that he removed Y and Z from their classrooms before the conclusion of school.
Her Honour went on to find that the father did not establish that he had a reasonable excuse for picking the children up from the school before the end of the school day, and found him guilty of the contravention.
The further “evidence” sought to be relied on by the father does not contradict the evidence of the mother, or the statement by her husband. All it demonstrates is that the in/out sheet was signed at 3:15pm, and plainly, as deposed to by the mother in her affidavit filed on 28 July 2020, that would have been when the father finally left with the children, having arrived at 3:00pm and collected the children. Further, and in any event, 3:15pm was still before the end of the school day at 3:30pm, and as the mother also deposed, the in/out sheet is only completed if a parent is removing a child prior to the conclusion of school.
Thus, I propose to dismiss the application seeking leave to adduce further evidence.
That also deals with Grounds 1(a), (c), (d), (g) and (i).
As to Ground 1(b), that is not a competent ground of appeal; it fails to identify the so-called “error at Law”.
As for Grounds 1(e) and (f), the latter is also not a competent ground of appeal; it is a mere statement and does not identify any appealable error. With the former, it was open to her Honour to receive and accept the sworn statement of the mother’s current husband, and no error is demonstrated ([61]).
As for Ground 1(h), no request was made by the father to cross-examine Mr Jarrold, and thus there is also no error by her Honour here.
In summary then, there is no merit in these so-called grounds of appeal.
I pause to refer to the father’s summary of argument filed on 17 July 2020.
The submission in that summary of argument which related to the one remaining ground of appeal still did not provide a basis for finding merit in that ground. However, a significant part of the summary of argument sought to address the grounds of appeal that were struck out by order made on 12 May 2020, and thus I have disregarded that part of the summary of argument entirely.
Conclusion
Having found no merit in the one ground of appeal, this appeal must be dismissed.
Costs
In the event that these appeals were dismissed, the mother sought an order for costs, and I propose to address that application for costs, together with the application for costs in appeal no. SOA 73 of 2019, in a separate judgment.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 2 December 2020.
Associate:
Date: 2 December 2020
0
7
6