Fadel and Jarrah (No. 2)

[2013] FamCA 531

FAMILY COURT OF AUSTRALIA

FADEL & JARRAH (NO. 2) [2013] FamCA 531

FAMILY LAW – COURTS AND JUDGES – Disqualification – Bias – Application for disqualification on grounds of perceived bias – Order refused

Family Law Act 1975 (Cth)

APPLICANT: Ms Fadel

RESPONDENT: Mr Jarrah

INDEPENDENT CHILDREN’S LAWYER: Karen L Haga & Associates

FILE NUMBER: PAC 2015 of 2011

DATE DELIVERED: 19 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 3 June 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Beach

SOLICITOR FOR THE RESPONDENT: Mr Jarrah appeared on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Haga

Orders

1. That the father’s Application in a Case filed 25 March 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fadel & Jarrah (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2015 of 2011

Ms Fadel

Applicant

And

Mr Jarrah

Respondent

The Proceedings

1. On 25 March 2013 I heard an Application in a Case filed by the father, Mr Jarrah, by which he sought various interim orders in contested parenting proceedings.  On 3 April 2013 I made orders and provided a written judgment which should be read in conjunction with these reasons. 

2. On 21 May 2013 the father filed a further Application in a Case by which he sought the following : 

   1.That the Hounourable Justice Stevenson be Disqualified from Hearing these Prceedings.

   That application was listed for hearing on 28 May 2013.  It was necessary, however, for the proceedings to be adjourned to 3 June 2013 because no interpreter was available to assist the father.

3. In support of his application of 21 May 2013 the father affirmed an affidavit on 3 May 2013.  On the date of the hearing I enquired of the father whether he wished to add anything to the contents of his affidavit in support of his application.  The father stated clearly that he did not wish to put anything further to that material.

4. I now set out in full the contents of the father’s affidavit affirmed on 3 May 2013: 

   1.        The father has heard rumours around the Honour Justice Stevenson since last year from the ICL and a registrar at Parramatta Court and he is concerned about his case being heard in this court and before this Judge.

   2.The father stated more than 10, times in 25/3/2013, to his Honour his objection about her personality but she decided to continue this conduct making the father more suspect about her and he feels because of this conduct the rumours are true.

   3.The father’s entire Suspicions around the Judge’s personality he believed after the judge made her decision in 25/3/2013, in his application case and support affidavit that was filed in 13/3/2013.  That is totally biased and aggravated the little children.

   4.The applicants still have reservations concerning the Honour Justice Stevenson’s personality and possible biased opinion to review my case.  The father believes the judge may have had contact with other parties to obtain information regarding others who were present in the courtroom with the father.  E.g. she stated “is the father’s friend a newspaper man?”

   5.His honour’s decision came down against formal documents and against the children’s best interest, but more than that the Honour in 25/3/2013, compulsories the father to continue in a procedure with his objection to her many times.  She stated to the ICL barrister she did not do anything concerning the discharge of ICL and her decision was made before as she stated she made it.  She dismissed and destroyed every formally document the father supported by his application case dated 13/3/2013, and even destroyed the Honour Justice Collier decision dated 5/2/2013, expert report in relation assault in place on my children, two witness statement, and did not allow the father to have his children to make another expert report, and the second psychologist report but she showed up her opinion to deal with [Dr K’s] corrupt expert report and that is firmly affirmed the rumours are true-

   6.The Honour did not discharge the ICL when all the father evidence was firmly affirmed is ICL worked against his children best interest.

   7.His Honour ignored all fabricated stories from the mother about who assaulted my children and destroy the father evidences concern that assault.

   8.The applicant lost confidence of his Honour Justice Stevenson and he did not like to make my case listed for hearing or any proceedings before your honour so please disqualify yourself.

   9.The applicant made an application seeking your honour to disqualify yourself from this case and transfer this case to another court of Sydney.

   (Errors as per original)

Relevant Legal Principles

1. In Hillier & Wootton 2013 FamCAFC 11 the Full Court, (Finn, May and Strickland JJ) said: 

   In Johnsonv Johnson (2000) 201 CLR 488, (at page 492) their Honours Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ summarised the test to be applied in cases in Australian courts where apprehension of bias is claimed:

   11 … It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide [eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41].

   The specific two-step inquiry to be applied upon such claim being made was explained by Gleeson CJ, McHugh, Gummow and Hayne JJ in the subsequent case of Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group Ltd (2000) 205 CLR 337 (at page 345):

   8 … 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 rationale for the description of the fair-minded lay observer and explanation for the test was explained by their Honours in Johnson (at pages 492-493):

   12.…It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.

   13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. 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.

Discussion

1. With all due respect, I consider that the evidence adduced by the father inaccurately summarises events of 25 March 2013 and establishes no basis upon which any “fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question [I] am required to determine”.  The father completely failed to identify “what it is said might lead [me] to decide the case other than on its legal and factual merits”.  Consequently, the father could not “articulate a logical connection between the matter and a feared deviation from the course of deciding the case on its merits”. 

2. All that the father’s affidavit advanced was a series of inaccurate propositions, his own suspicions and speculations.  The father failed to identify an objective basis for his supposed suspicions and speculations.

3. It is inaccurate to suggest that I “may have had contact with other parties”.  The father offered no evidence in support of that contention and, obviously, it is not the case that I communicated outside the courtroom with any other person involved with the proceedings.

4. The father’s application to discharge Ms Haga as the Independent Children’s Lawyer had been dealt with and refused by Collier J before the proceedings were listed before me.  It is the father’s opinion only that any decision which I made on 25 March 2013 was “against formal documents and against the children’s best interests”. 

5. It is my view that the father failed to advance any reason why I should disqualify myself from proceeding to hear this matter on a final basis on August 2013.  I am conscious that the mother and the children will benefit from a final decision and an end to these proceedings at the earliest possible time.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on  19 June 2013.

Associate:     

Date:              19 June 2013