Gade and Jabbar (No.7)

[2017] FCCA 779

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.7) [2017] FCCA 779

Catchwords:
FAMILY LAW – Application for Judge to disqualify herself from further hearing a matter and for transfer of proceedings to another registry.

Legislation:

Family Law Act 1975

Cases cited:

Johnson v Johnson (2000) 201 CLR 488
Strahan & Strahan (Disqualification) [2009] FamCAFC 204
Re JRL; Ex parte CJL (1986) 161 CLR 342

Applicant: MS JABBAR

Respondent: MR GADE

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 19 April 2017

Date of Last Submission: 19 April 2017

Delivered at: Newcastle

Delivered on: 20 April 2017

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Weightman

Solicitors for the Respondent: NLS Law

Solicitors for the Independent Children's Lawyer: Legal Aid NSW Newcastle

ORDERS

1. The wife’s application for orders:

   (a)that Judge Terry be disqualified from further hearing this matter;

   (b)that there be a change of venue; and

   (c)that until final disposal of appeals pending in the Full Court there be no further orders in this case

   is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.7) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2265 of 2015

MS JABBAR

Applicant

And

MR GADE

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 10 April 2017, Ms Jabbar (“the wife”) filed an application in a case seeking the following orders:

   1. Matter should be heard on the first available date, on urgent basis.

   2. My case i.e. (File No. NCC2265/2015) should be shifted from the Newcastle Federal Circuit Court registry.

   3. Judge Terry should be declared disqualifies for this case.

   4. Till the final disposal of this application, as well as final disposal of appeals pending in Full Court (EA 46/2016 and EA 118/2016), no further orders will be made in this case (File No. NCC2265/2015).

2. The wife filed a brief affidavit in support of the application.

3. The application was listed at 10.00am on 19 April 2017 for consideration, the same day on which an application in a case filed by Mr Gade (“the husband”) seeking interim property orders was also listed for consideration.

4. The parenting matter had also been adjourned to that day for further consideration including consideration of whether the suspension of the orders concerning the children spending time with the wife should be continued or lifted and whether the matter should be listed for an expedited hearing.

5. On 19 April 2017 the husband’s Counsel and the Independent Children’s Lawyer agreed that the wife’s application needed to be heard and determined before any other matters were considered and although there were issues with timely service of the wife’s documents they both agreed to deal with the application forthwith.

6. As a result later that day I heard submissions from the parties.

7. The husband and the Independent Children’s Lawyer opposed the wife’s application.

The wife’s case

1. The matters the wife raised in support of her application for my disqualification can be summarised as follows:

   ·All of the interim parenting decisions I had made in this matter were bad. I had made decisions based on evidence fabricated by the husband, relied on evidence in an 11F memorandum prepared by Dr T about a discharge summary which was wrong and accepted the husband’s assertion that he feared for the children’s safety as a result of a text message when the evidence suggested that he clearly did not.

   ·I had accepted Dr K’s report and Dr K also had regard to the fabricated evidence and his report was so flawed that it should be disregarded and another report commissioned.

   ·I was not seeing the whole picture and was not making orders which were in the best interests of the children.

   ·It was clear that I did not understand the significance of the District Court overturning her convictions by a Local Court Magistrate and the significance of the comments made by the Judge in overturning the convictions.

   ·There were appeals on foot against some of my interim decisions.

   ·In the course of disposing of an interim property issue in December 2016, I commented that the husband would not be happy if I made a particular order and then did not make it and this suggested that I was predisposed to favour the husband.

   ·Decisions I made in three other parenting matters suggested that I was pre-disposed to make an order in favour of the husband.

2. In support of her application for a change of venue, the wife made some complaints from the bar table about the registry of this court, alleging in particular that counter staff had made an error in respect of a date placed on a subpoena.

The husband’s case

1. The husband’s counsel referred me to the Full Court decision of Strahan & Strahan (Disqualification)[1] which he submitted set out the matters to which I should have regard in considering the wife’s application for me to disqualify myself.

   [1] Strahan & Strahan (Disqualification) [2009] FamCAFC 204

2. He submitted that the wife had not made out a case for me to disqualify myself.

3. He submitted that the mere fact that appeals were on foot was not a reason for a judge to disqualify him or herself, nor was the fact that the judge had made interim decisions adverse to one party.

4. He pointed out that in the interim decision I made on 23 March 2017, I commented several times that Dr K’s evidence was untested and that it could and would be tested at trial.

5. He submitted that there was nothing to suggest that I was pre-disposed to make a decision in favour of the husband and that the wife’s complaint that evidence had been fabricated was a trial issue.

6. He submitted that there was no justification for transferring the matter to another registry or for me declining to deal in particular with the husband’s application for interim property orders.

The Independent Children’s Lawyer’s submissions

1. The Independent Children’s Lawyer submitted that the wife had not made out a case for me to disqualify myself or change the venue of the proceedings but did not otherwise make submissions.

Discussion

1. The wife’s case although not articulated as such, was clearly that I should disqualify myself from further hearing this matter on the ground of apprehended bias.

2. In Strahan & Strahan the Full Court referred to the following passage from Johnson v Johnson (2000) 201 CLR 488:

   ….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.[2]

   [2] Johnson v Johnson (2000) 201 CLR 488 (Paragraph 11)

3. The Full Court also said that the court should follow a two-step process in applying the test in individual cases and went on to say as follows:

   …The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the “logical connection” between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.

   In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias: [3]

   It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. 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. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expressions is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v Commonwealth Conciliation and Arbitrations Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.[4]

   [3] Strahan & Strahan (Disqualification) [2009] FamCAFC 204 (Paragraphs 5 and 6) - This point was firmly made by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342. Given the importance of the proposition, and the fact the Strickland J cited in his reasons, we propose to set out what Mason J said at 352.

   [4] Johnson v Johnson (2000) 201 CLR 488 (Paragraph 352)

4. Parenting proceedings in respect of the parties’ children Y & X were commenced on 21 August 2015 and since then I have made a number of interim parenting decisions, including on 31 August 2015 when I ordered that the children live with the husband and spend supervised time with the wife, 11 March 2016 when I ordered that the wife return Y to the husband’s care, 24 June 2016 when I conducted an interim hearing of about half a day in length and after considering submissions and a quantity of subpoena material ordered that the existing orders that the children live with the father and spend supervised time with the mother continue, 20 December 2016 when I dismissed the wife’s application to attend X’s first day at school and 23 March 2017 when on the day the expert report was released I suspended the “spend time with” orders until 19 April 2017.

5. I also made some interim property orders on 20 December 2016 which provided for the wife to pay the mortgage on the former matrimonial home in which she is living and for the husband to have the right to rent out the investment property but also the responsibility to pay the mortgage in respect of it including any shortfall.

6. The wife is not happy with any of these decisions and has appealed or sought leave to appeal all of them. Two of her appeals are due to be heard by the Full Court in May 2017.

7. However the mere fact that the wife is not happy with the decisions and considers them all to be wrong is not a reason for me to disqualify myself nor is the fact that there are appeals on foot.

8. The wife alleged that I had “accepted” Dr K’s report (or perhaps better put his evidence) but this is demonstrably untrue as the husband’s counsel pointed out.

9. In my view the wife was not able to point to anything which suggested that I would “deviate from the course of deciding the case on its merits” if I was asked to make further interim decisions or if I conducted a final hearing.

10. The wife has repeatedly complained that I have made decisions based on evidence fabricated by the husband (a text message and a video) but it is not possible at an interim hearing to test her claims about this evidence. The claims will be tested at the hearing of her contempt applications in July or if she consents to withdraw those applications at a final hearing of the matter which I remain prepared to expedite and to hear in the week commencing 7 August 2017.

11. The parenting matter needs a final hearing because it is only at a final hearing that all the evidence (including the expert’s report) can be tested and the complete picture the wife refers to obtained.

12. I intend to dismiss the wife’s application for me to disqualify myself.

13. The wife did not establish any basis for me to make an order that the proceedings be transferred to another registry of the court. Both parties reside in (omitted) and Newcastle is the logical and convenient venue for the matter. If the wife has issues with the way the registry is processing her documents or has any other concerns about things which have occurred in the registry she can raise them with the Registry Manager. There was nothing to suggest that she had yet availed herself of that option.

14. The husband’s counsel reminded me that the wife had a third application on foot, namely that until the outstanding appeals were determined by the Full Court, I should make no further orders in the case.

15. I cannot accede to the wife’s request that I blanket decline to deal with any other applications pending the hearing of her appeals and in particular there are two matters on foot which need to be dealt with and which I cannot refuse to deal with absent disqualifying myself. One is the interim property application filed by the husband on 14 March 2017. He submits that it is urgent because the wife’s non-payment of the mortgage secured over the former matrimonial home is affecting his credit rating and his ability to obtain finance. He is entitled to have this application considered and entitled to ask the court to assess, after hearing from the wife if she chooses to take part, whether it is appropriate to make the orders he seeks.

16. The other is the suspension of the “spend time with orders.”

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:   20 April 2017