Fierro & Fierro (No 3)
[2022] FedCFamC1F 462
•10 June 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fierro & Fierro (No 3) [2022] FedCFamC1F 462
File number(s): SYC 7639 of 2021 Judgment of: HENDERSON J Date of judgment: 10 June 2022 Catchwords: FAMILY LAW – COURTS AND JUDGES – Disqualification – Application for recusal on the basis of actual bias – Where the alleged actual bias arises out of prejudgment – Consideration of whether there is apprehended bias if no actual bias established – Discussion of applicable principles – Where it is in the interests of the administration of justice for disqualification – Application for disqualification granted. Cases cited: Anae v R [2018] NSWCCA 73.
Beck & Beck (2004) FLC 93-181; [2004] FamCA 92.
Bigg & Suzi (1998) FLC 92-799.
Ebner v Official Trustee (2000) 205 CLR 337; [2000] HCA 63.
Friar & Friar [2011] FamCAFC 71.
Hartnett & Sampson [2008] FamCA 75.
Pelerman & Pelerman (2000) FLC 93-037; [2000] FamCA 881.
R v Watson; Ex parte Armstrong (1976) 136 CLR 248.
Webster & Lampard (1993) 177 CLR 598; [1993] HCA 57.
Division: Division 1 First Instance Number of paragraphs: 12 Date of last submission/s: 10 June 2022 Date of hearing: 10 June 2022 Place: Sydney The Applicant: The Applicant appeared in person The First Respondent: The First Respondent appeared in person Counsel for the Second Respondent: Mr Trezise Solicitor for the Second Respondent: Dobson Mitchell Allport Solicitor Advocate for the Independent Children's Lawyer: Ms Watson Solicitor for the Independent Children's Lawyer: Legal Aid Commission ORDERS
SYC 7639 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FIERRO
Applicant
AND: MR A FIERRO
First Respondent
MS BIEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HENDERSON J
DATE OF ORDER:
10 JUNE 2022
THE COURT ORDERS THAT:
1.The Application in Proceedings filed 22 May 2022 be granted.
2.The Contravention Application filed 16 March 2022 and the two Contempt Applications filed 11 and 15 February 2022 be reallocated to a Judge other than Justice Henderson.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Fierro & Fierro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE JUDGMENT
HENDERSON J
In the matter of Fierro, an application has been made by the applicant Mr Fierro that I disqualify myself, having regard to what he says is actual, and if not actual, apprehended bias on my part by comments I made when this matter was listed for mention before me on 20 May 2022.
I have a copy of the transcript of those proceedings and I have read that. Mr Fierro filed an application and affidavit in support of his orders together with his submissions.
This is an interesting matter in terms of apprehension of bias or actual bias in that one might regard a statement of fact as not being biased, but just a statement of fact as it was apparent to me, and is still apparent to me, that I could see no breach of any order as pleaded by Mr Fierro in the applications for contraventions. I was unable to ascertain what orders had been breached by the mother and father of the child, the subject of these proceedings. I told Mr Fierro this, and also that if he continued the matter, it was a possibility that, if there was a proper final hearing and the evidence was tested, it could be regarded as an abuse of process of court, namely his application.
There is much case law in relation to disqualification applications. It is an application that is made quite often.
Decisions of the Full Court of the Family Court in Friar & Friar,[1] Beck & Beck,[2] Bigg & Suzi,[3] Pelerman & Pelerman,[4] Webster & Lampard.[5] Sorry this is incorrect.
[1] [2011] FamCAFC 71.
[2] (2004) FLC 93–181; [2004] FamCA 92.
[3] (1998) FLC 92–799.
[4] (2000) FLC 93–037; [2000] FamCA 881.
[5] (1993) 177 CLR 598; [1993] HCA 57.
Many such applications have gone to the High Court, as this does, as Mr Fierro said, go to the heart of the administration of justice. That is, litigants must have confidence in the judicial officer hearing their matter; that they will come to it with an impartial mind. These are important principles and it is an important matter that I am dealing with.
The matter of Anae v R in the New South Wales Court of Criminal Appeal,[6] Ebner v Official Trustee,[7] are the decisions in relation to courts and judges disqualifying themselves. The decision of Moore J in this Court of Hartnett & Sampson sets out the relevant principles as follows, being “whether the fair-minded observer could conclude the judge had formed opinions which might affect his or her determination of the outstanding matters”.[8]
[6] [2018] NSWCCA 73.
[7] (2000) 205 CLR 337; [2000] HCA 63.
[8] [2008] FamCA 75 at [13] (Moore J) (citations omitted).
In the High Court decision of R v Watson; Ex parte Armstrong, the High Court described the principle and test as follows:
The view that a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he [or in my case she] 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.[9]
[9] (1976) 136 CLR 248 at 262–3 (Barwick CJ, Gibbs, Stephen and Mason JJ).
This is the basis of Mr Fierro’s application.
Going now to what I said to Mr Fierro in the transcript which was as follows at point 15:
I know you’re self-represented, [Mr Fierro], I’ve read through your contravention applications. You are sorely mistaken in what you believe the orders provide. What contravention applications are about is parties failing to comply with orders of the court. Right? Just don’t interrupt me either. And the orders of the court are set out in orders that were made on 21 May 2021. Am I correct? “Yes”. Because I don’t have the entire file here. They seem to me to be the current extant orders.[10]
Unless the mother and father and you agree you or [X] initiates contact with you, the series of orders commencing in your contravention 1, 2 and 3, going on for numerous contraventions with large words you’ve used that mean nothing, that the father has rendered himself not contactable. He has no obligation to be contactable by you. There’s no order that says you are able to contact him. So that cannot possibly be a breach. The orders that you refer to in your contravention application that you say that the mother agreed for you to speak to the child or spend time with the child cannot be in breach of an order because all three of you have to agree, and the father didn’t agree. You have no order or right to contact the first or second respondent. There’s no order that says you can do it and there’s on obligation on them to contact you or to respond to you. Your entire application for contravention is misconceived, is doomed to fail and could be regarded by me if I did a proper final hearing, tested the evidence as an abuse of process of the court. Have you obtained any legal advice at all in relation to these multitude of counts you allege the mother and father have in some contravened orders? “No”.[11]
Well, I suggest you do so because it seems to me what you’re trying to do via a back door or another approach is circumvent the clear intent of these orders, which is you’re not to have anything to do with this child unless her mum and dad agree or she wants to. That’s what the orders tell me. Are you going to pursue your application? “Yes”.[12]
[10] Transcript 20 May 2022, p.2 lines 14–20.
[11] Transcript 20 May 2022, p.2 line 38 to p.3 line 9.
[12] Transcript 20 May 2022, p.3 lines 11–16.
Ultimately I listed the contravention for trial. Mr Fierro said I had prejudged the matter and there is no doubt saying to him, “Your entire application for contravention is misconceived, is doomed to fail and could be regarded by me …”, is in his mind a prejudgment of the matter, despite the fact I listed the matter for hearing. Although I have formed the view that I have not prejudged the matter because I listed the matter for trial to give Mr Fierro an opportunity to satisfy me that he had a prima facie case, Mr Fierro is not of that view. It is imperative that a litigant have confidence in the judicial system and the judge who is hearing the matter. Mr Fierro does not have that confidence and if I dismissed this application and did not accept what he tells me, he would have every right and would no doubt appeal any decision I made unless it was in his favour.
In those circumstances, it cannot be in the interest of the administration of justice, but more importantly, in the interest of the parents and particularly the child X, that I conduct a hearing, there is an appeal and then perhaps a rehearing of the matter. For those reasons I have formed the view that I should disqualify myself from hearing this contravention application, and the matter before the Court in the Sydney registry will now be dealt with by another judicial officer.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Henderson delivered on 10 June 2022. Associate:
Dated: 1 July 2022
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