JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: G -v- W [2021] WASCA 180
CORAM: MURPHY JA
MITCHELL JA
ARCHER J
HEARD: 23 SEPTEMBER 2021
DELIVERED : 11 OCTOBER 2021
FILE NO/S: CACV 59 of 2020
BETWEEN: G
Appellant
AND
W
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: SUTHERLAND CJ
Citation: [G] v [W] [2020] FCWA 66
File Number : PTW 5345 of 2014
Catchwords:
Family law - Appeal - Parenting - Appeal against parenting orders granting relocation application - International relocation of mother with child - Father opposed child's move - Where trial judge made orders that child reside with and relocate with mother to Switzerland - Apprehended bias - Standard of appellate review of parenting orders - Whether trial judge erred in treatment of expert evidence - Whether trial judge erred in adopting findings made in previous decision by another judge relating to the same parties - Whether trial judge erred in finding that it was in the best interests of the child to relocate to live with mother in Switzerland
Legislation:
Family Court Act 1997 (WA), s 66, s 66A, s 66C, s 68, s 70, s 70A, s 84, s 89, s 202L
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | A R McShera |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Anthony R Clarke & Associates |
Case(s) referred to in decision(s):
Albert & Plowman [2020] FamCAFC 23
Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662
Charisteas v Charisteas [2020] FamCAFC 162; (2020) 354 FLR 167
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Jorgensen v Fair Work Commission [2019] FCAFC 113; (2019) 271 FCR 461
KWLD v The State of Western Australia [2020] WASCA 94
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184; [2019] 2 Qd R 271
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2
Ogbonna v CTI Logistics Ltd [2021] WASCA 25
R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
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- AGLC
- G v W [2021] WASCA 180
- Case
- [2021] WASCA 180
- Decision Date
CaseChat Overview and Summary
The central legal issue in the case was whether the applicant had met the heavy burden of proving that the judge was actually biased. The court needed to assess the state of mind of the judge in question, based on what the judge had said and done, to determine if there was any prejudgment or bias. The court also needed to consider whether the applicant's allegation of bias was 'firmly established' and met the 'stringent standard of proof' required for such claims.
The court concluded that the applicant had not met the required burden of proof. The applicant's argument was based on the judge's provisional views and the difficulties the applicant faced in persuading the judge to change those views. However, the court noted that this alone was not enough to demonstrate actual bias. The court emphasised that the principles of natural justice are concerned with the procedure observed in the exercise of power, not the merits of the decision. The focus must be on the position as it stood before the decision was made. The court also highlighted that disagreement with the reasoning of the decision-maker, or the perceived illogic or irrationality of the reasoning, does not in itself establish bias.
The court ultimately held that the applicant had not established that the judge was actually biased. The applicant's argument did not meet the stringent standard of proof required to demonstrate actual bias, and the court did not find any evidence of prejudgment or partiality in the judge's reasons for decision. The court dismissed the application.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
An inquiry about actual bias in the form of prejudgment requires assessment of the state of mind of the judge in question, ordinarily on the basis of what the judge has said and done.[63] As French J noted in Jia v Minister for Immigration and Multicultural Affairs:[64]The onus of demonstrating actual bias lies upon an applicant for judicial review and it is a heavy onus. The fact that an applicant may have demonstrated that on the decision-maker's provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias.That is, as Kirby J noted in Minister for Immigration and Multicultural Affairs v Jia Legeng,[65] an allegation of actual bias is subject to a 'stringent standard of proof' and will only be upheld 'where the accusations are distinctly made and clearly proved' and, as in the case of allegations of reasonable apprehension of bias,[66] where it is 'firmly established'.[63] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427[33].[64] Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87, 106, a judgment approved by members of the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng[72], [82].[65] Minister for Immigration and Multicultural Affairs v Jia Legeng[127].[66] See R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546, 553 - 554. As this court recently noted in KWLD v The State of Western Australia,[67] the question of whether there has been a failure to comply with the rules of natural justice is not answered by reference to the outcome of the exercise of the relevant power. The principles of natural justice are not concerned with the merits of a particular exercise of power, but with the procedure that must be observed in its exercise. The focus of attention must therefore be on the position as it stood before the impugned decision was taken. Where apprehended bias is alleged, the reasons ultimately given for the impugned decision are not relevant to the objective assessment of 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 issues.[68] [67] KWLD v The State of Western Australia [2020] WASCA 94 [104].[68] Michael Wilson & Partners [33], [67] - [68]. There will be cases where comments made by a judge in the course of his or her reasons for decision give rise to a reasonable apprehension of partiality in the process which led to the decision. The decision of the Queensland Court of Appeal in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd provides an example of such a case.[69] However, there is a difference between apprehending bias in the decision‑making process from statements in a court's reasons which might suggest partiality, on the one hand, and apprehending bias merely from the outcome of the decision-making process. The mere fact that a reviewing court does not agree with the reasoning of the decision-maker, or regards such reasoning as illogical, irrational or even perverse, is not, in itself, sufficient to establish actual or apprehended bias.[70][69] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184; [2019] 2 Qd R 271 [77] - [102]. While this decision was overturned on appeal, the High Court did not doubt the Queensland Court of Appeal's reasoning as to apprehended bias: see Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2. It is unnecessary to address the question of whether Sofronoff P was correct, at [103], to regard the fact that the member determined some issues in favour of a party as relevant in that case.[70] Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 [99] (per Kirby J). While Kirby J's observations were made in relation to the review of administrative decisions, they apply equally to allegations of actual bias by a judge.