FAIRCHILD & MEDINA (No.2)
[2017] FCCA 1613
•13 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIRCHILD & MEDINA (No.2) | [2017] FCCA 1613 |
| Catchwords: FAMILY LAW – Disqualification application – apprehended bias. |
| Legislation: Family Law Act 1975 |
| Cases cited: Ebner & The Official Trustee in Bankruptcy [2000] HCA 63 Hartnett & Sampson [2008] FamCA 75 |
| Applicant: | MR FAIRCHILD |
| Respondent: | MS MEDINA |
| File Number: | SYC 6362 of 2007 |
| Judgment of: | Judge Henderson |
| Hearing date: | 9 June 2017 |
| Date of Last Submission: | 9 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell SC |
| Solicitors for the Applicant: | Swaab Attorneys |
| Counsel for the Respondent: | Mr Livingstone |
| Solicitors for the Respondent: | Armstrong Legal |
ORDERS
The father’s Application in a Case dated 24 February 2017 be dismissed.
The mother is to file and serve written submissions as to costs within 21 days.
The father is to file and serve written submissions in response within 21 days thereafter.
IT IS NOTED that publication of this judgment under the pseudonym Fairchild & Medina (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6362 of 2007
| MR FAIRCHILD |
Applicant
And
| MS MEDINA |
Respondent
REASONS FOR JUDGMENT
The matter of Fairchild & Medina, is an application by the husband that I disqualify myself from further hearing of this matter, due to an apprehension of bias against him.
The application springs from a decision I made on 25 May 2016, and delivered in written form on 20 July 2016. That was an application in relation to the mother’s application for indemnity costs following the father’s unsuccessful interim parenting application.
Mr Schonell, Senior Counsel, acted for the father and Mr Livingstone, of counsel, for the mother. The mother resists the father’s application.
I have read the following for this particular matter:
a)For the husband:
i)Senior Counsel’s very helpful case outline; and
ii)Application in a case and affidavit of the father of 24 February 2017.
b)For the mother:
i)Response and affidavit filed 17 May 2017.
At first blush, in matters such as this, there is an attraction to the argument to disqualify, particularly whereas here, in the Sydney registry there are numerous suitably qualified judges who can hear the matter as well as I, in a similar timeframe.
There is also some attraction to disqualify on the argument as I see it in the words of the High Court in the decision of Ebner & The Official Trustee in Bankruptcy[1] which are apposite, and as set out at the last page of Senior Counsel’s case outline:
In a case of real doubt, it will often be prudent for a judge to decide whether or not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification.
[1] Ebner & The Official Trustee in Bankruptcy [2000] HCA 63.
Secondly, such an approach is even more compelling when, as here, we are dealing with children. The Court’s aim must always be to minimise litigation involving children, not maximise it.
Thirdly, if the matter is transferred to another judge then the interests of justice will be seen to be done, by the husband at least, and one element to support an appeal simply vanishes.
However, the wife has a different opinion in relation to this application, well put by Mr Livingstone – as was the husband’s case well put by Mr Schonell SC. Thus the issues and facts before me must be properly ascertained and identified and dealt with, as I see it.
Ultimately, the husband seeks to reopen the final parenting matter, which were orders made substantially by consent on 23 September 2009. There have been some variations, but they are the substantive orders. The wife has resisted this application to reopen, and the matter has been listed on the threshold issue on 16 November 2017 before me. If I agree to the husband’s application, there may be a delay of this matter being heard on the threshold issue; however it would not be of significant compass.
Going now to the substance of the husband’s argument. He asserts the apprehension of bias arises from at least paragraphs 13, 15, 16, 17, 32, 33, and 35 of my reasons delivered in writing on 20 July 2017. Senior counsel points out in his written submissions:
The test of apprehension of bias is well settled, and it is whether a fair-minded lay observer might reasonably apprehend that the judge will not bring a fair and impartial mind to the ultimate issue of fact before them.
Thus the gravamen of the husband’s contention is that, flowing from my decision in relation to the wife’s indemnity costs application, a fair-minded observer might reasonably infer I might not bring an impartial mind to the resolution of the ultimate question before the Court that I am required to decide, and which in this matter is a threshold issue and, if the husband is successful, ultimately a parenting application.
The words “prejudgment” also appear in the written submissions. That is I have prejudged the matter, that is another reason for disqualification, and Mr Schonell, Senior Counsel, referred to Justice Moore’s decision in Hartnett & Sampson[2], well known in this jurisdiction, which is:
Whether a fair-minded observer could conclude the judge had formed opinions which might affect his or her determination of outstanding matters.
[2] Hartnett & Sampson [2008] FamCA 75.
The husband’s further contentions, as contained in the written submissions, are at paragraphs 3, 4, 5, and 6. They are that the test that the evidence must get to, that the person bringing the application has the onus of proof and that the test is one of possibility of bias not remote, and not probability. I accept that is the test. It may be trite, as Mr Schonell SC says, but it is very important that the principle behind disqualification applications is that justice must not only be done, but must be seen to be done.
There are long established decisions in relation to disqualification, starting for example in the Family Court, R v Watson[3], 1976 decision, where the High Court laid down the following principles:
The view that a judge should not hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial, and that if a judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct in principle… It is of fundamental importance that the public should have 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.
[3] R v Watson; Ex parte Armstrong [1976] HCA 39.
As I see it, my next step is to determine what is the apprehended bias, or the prejudgment, complained of.
Going to the paragraphs of my judgment that the husband refers to, paragraph 30, the husband’s conduct in the proceedings, as I read onto the record in the interim hearing was:
Threatening, coercive, and bullying of the wife. There were 11 threats of litigation made by the husband against the wife from 25 January 2016 to 23 April 2016.
In my reasons I said:
I do not understand threats to bring contravention proceedings against the wife, if she was to greet [X] at the conclusion of an entry exam for (omitted) College, letters from solicitors threatening breach of orders if the wife delivered [Y] to a particular venue, are appropriate.
I read onto the record instances of what I regarded as improper behaviour by the husband. Paragraph 15:
There are no violence issues, there is no drug taking or neglect by these parents, matters I too frequently see. These are good people, excellent children.
I read this behaviour to demonstrate to the husband what I regarded as his poor conduct and attitude to the wife, and his responsibilities to parenthood. Paragraph 16:
The husband’s significant income, and capacity to engage lawyers at his whim, and whenever he wished, is a factor I considered relevant because the husband has used that capacity – that is his significant wealth and financial capacity – to overbear on the mother on whom he is to share parental responsibility for his precious children.
Paragraph 17:
Therefore, consistent with decisions such as Prantage[4], Stephens[5], Penfold[6], and Kohan[7], I find there are reasons to depart from the usual rule that each party pay its own costs, due to the husband being wholly unsuccessful in his application and what I regard as his overbearing and threatening behaviour to the mother of his children, made all the more easier for him because of his significant wealth, income, and earning capacity.
[4] Prantage & Prantage [2013] FamCAFC 105.
[5] Stephens & Stephens [2010] FamCA 184.
[6] Penfold v Penfold (1980) 144 CLR 311.
[7] Kohan & Kohan (1993) FLC 92-340.
Paragraph 32:
Fourthly, the husband’s conduct in threatening the mother by SMS, through various solicitors’ letters, contraventions, and breaches of the court order, telling the mother, “I will go back to Court and let the Court decide”, in matter which are clearly matters of parents working things out together, not matters for this Court to determine. It is not the role of this Court to determine every matter and dispute between the parents. It is for parents to sit down in a respectful, polite, courteous fashion and talk about these matters, having their children’s best interests at the forefront of their mind when they so do.
Paragraph 33:
The behaviour of the father and his view that the Court was here to resolve these issues, the mother could be threatened with contraventions or such other actions by being at a venue or not being at a venue, greeting a child or not greeting a child, suggest to me as the mother put forward in the material that the father believes he can use this court for his personal vendetta and for his personal position. That is not appropriate. This Court is not here to adjudicate every dispute between parents; that is not the Court’s role.
Paragraph 35:
The husband’s attitude to the mother, and his attitude to his role as a parent, combined with his wealth are the special and unusual circumstances which take this matter out of the ordinary, as I see it, and which has resulted in my determination to order indemnity, and I will so order.
In paragraphs 13, 15, 16, and 17, as I see it I have described the outcome for the mother of the husband’s conduct and threats contained in his own emails, letters, and SMS, and instructions to his lawyers and letters coming from them. There was no requirement for cross-examination of the husband because the evidence I looked at came from him, his letters, and his instructions to his lawyers, his correspondence. I read that evidence and that evidence enabled me to conclude from the father’s own words or instructions that the consequence of his words, for the mother, were threatening, coercion, and bullying of her.
The husband’s own evidence was one of the very bases upon which I departed from the usual order in a costs application that each party bear its own costs, or scale costs, or some other costs to order indemnity costs as assessed, which were effectively assessed by me.
The second basis of the decision was his wealth, and those two matters combined, took the matter out of the ordinary as I saw it. The comments I made went to his behaviour and its impact on the mother, and the impact upon, and legislated by order that the parents have, namely the sharing of parental responsibility.
How it could now be said I was biased against the husband in reality on that issue, or that there was a possibility of an apprehension of bias to the fair-minded lay observer because I made a decision based upon his own words and conduct, escapes me. For, as Mr Livingstone submitted, I was also positive of the father as a parent and a father. Paragraph 6 of my decision:
However, while the wife’s capacity is far more limited than the husband, she is not a person without means. At the hearing, it was submitted the husband earns about $1.2 million per annum. He is highly successful and skilled at his occupation.
Paragraph 14:
The reason I regard it as improper behaviour is the husband is a parent who, by final orders, has equal shared parental responsibility with the wife, the other parent, and I fail to see how this behaviour is an appropriate way to conduct yourself in circumstances when the reality is we have two good parents and two excellent children.
Paragraph 15:
There are no violence issues, there is no drug taking or neglect by these parents, matters I too frequently see. These are good people, excellent children.
Paragraph 16: I referred to their children being precious to them, which they clearly are.
Paragraph 34:
The Court makes orders in the best interests of children, to enable them to benefit from their meaningful relationship with each of their parents and significant others in their life. It is for the parents to parent their children thereafter.
I cannot see, on the evidence, that I have prejudged any decision I am ultimately to make on the threshold issue and, if successful, on the parenting issue due to the comments and the findings I made in relation to the father’s behaviour over a very limited period of time between 25 January 2016 and 23 April 2016. This is what I was commenting upon: this limited period of time. That was what was before me. This behaviour may never be repeated, it may have been an aberration; it may be due to some personal issues or some other events at the time matters I know absolutely nothing about.
As I did in my judgment, and so often attempt to do, I sought to educate the father on how to go about dealing with the mother and his children at paragraph 32, 33, and 34, and point out to him – perhaps in a robust way, I may accept that – how not to go about dealing with the mother. How not to do it. The fair-minded observer would have known, from my judgment and would have taken from my judgment that I was dealing with a limited period of time from January to April 2016 of conduct relevant to a costs application.
The fair-minded observer would have known I believe the parents to be good people: the father highly successful and skilled at his occupation, given his significant income and earning capacity; a good parent; and that the parents have excellent children. A fair-minded observer would have seen that I did not accept the wife’s claim for indemnity costs, as set out by her, at $25,000 because of what I regarded as a comingling of property and parenting issues, and I reduced her claim to $15,000. A judge need, as I said, not disqualify themselves merely because they made an adverse comment about a parent resulting from their own conduct or communication, or the like.
This is particularly so when the uncontroverted conduct of the parent is capable of supporting the adverse comments or the adverse finding, as is the case here. Given the issue I determined was in relation to a discrete issue, the costs application, was related to conduct over a short period of time, I do not accept that the fair-minded lay observer would apprehend I was possibly biased, or would be so. Rather, that I was saying it as I saw it: that is, setting out the good and the bad, and the facts as they were.
The issues to be raised in the future, and the decision to be made, will be determined on a multitude of factual bases over a period from April 2009 to date, not merely a four-month period, and will have as the paramount consideration ultimately the best interest of the children at all times.
The other issue is, when I look at the words in Ebner[8], “In a case of real doubt”, and that is the beginning of the paragraph. I do not see my comments on the husband’s behaviour, gleaned from his own communications and words, coupled with his wealth, as making this a matter of a case of real doubt.
[8] Ebner & The Official Trustee in Bankruptcy [2000] HCA 63.
For those reason I dismiss the husband’s application.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 12 July 2017
Key Legal Topics
Areas of Law
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Civil Procedure
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Family Law
Legal Concepts
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Costs
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