Garwood & Shipton (No 9)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Garwood & Shipton (No 9) [2024] FedCFamC1F 350

File number(s): ADC 4995 of 2018
Judgment of: KARI J
Date of judgment: 27 May 2024
Catchwords: FAMILY LAW – COURTS AND JUDGES – Apprehended Bias – Application for disqualification of a judicial officer – Where the mother apprehends that the judge may not bring an impartial mind to the proceedings – Whether the judge’s conduct might lead a fair-minded lay observer to reasonably apprehend that the judge may decide the case other than on its legal and factual merits – Consideration of the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 - Where the conduct of the judge should be considered with the background and context to which the conduct took place – Apprehended bias not established – Application dismissed
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:

Adlin & Northern Territory Central Authority (No. 5) (2021) FLC 94-019

Charisteas v Charisteas (2021) 273 CLR 289

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Garwood & Shipton (No 6) [2023] FedCFamC1F 813

Garwood & Shipton (No 7) [2023] FedCFamC1F 935

Garwood & Shipton (No 8) [2024] FedCFamC1F 208

Johnson v Johnson (2000) 201 CLR 488

Re JRL; Ex parte CJL (1986) 161 CLR 342

Webb v The Queen (1994) 181 CLR 41
Division: Division 1 First Instance
Number of paragraphs: 85
Date of hearing: 5 February 2024
Place: Adelaide
Counsel for the Applicant: Mr Rice KC, assisted by Mr Manetta
Solicitor for the Applicant: Mills Oakley Lawyers
Counsel for the Respondent: Mr Cox SC, assisted by Ms Hume
Solicitor for the Respondent: Angela Ferdinandy

ORDERS

ADC 4995 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR GARWOOD

Applicant
AND:

MS SHIPTON

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

24 MAY 2024

THE COURT ORDERS THAT:

1.That paragraph 1 of the Application in a Proceeding filed 31 January 2024 be dismissed.

2.That the proceedings be listed for Case Management on 12 June 2024 at 12 noon, with Counsel instructed for trial to appear.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Garwood & Shipton has been approved pursuant to…

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Details
Case
[2024] FedCFamC1F 350
Decision Date

CaseChat Overview and Summary

The case of ADC 4995 of 2018, brought before the Federal Circuit and Family Court of Australia, involved a dispute between Mr Garwood and Ms Shipton, primarily focused on issues related to family law. The primary issue before the court was whether the judge, Kari J, should be disqualified due to apprehensions of bias raised by Ms Shipton. This concern arose from the judge's conduct during previous proceedings and the subsequent written reasons delivered on 3 November 2023. Ms Shipton argued that the judge's actions and decisions indicated a potential bias, warranting his disqualification.

The legal issues the court needed to address involved determining whether the judge's conduct could reasonably lead a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the proceedings. The court considered the established test from Ebner v Official Trustee in Bankruptcy, where it was necessary to assess whether the judge's conduct, viewed in the context of the entire proceeding, might give rise to a reasonable apprehension of bias. The court scrutinised various conduct complaints, including the handling of written submissions, the consideration of oral submissions, and the fixing of costs in the reasons delivered. The judge found that the complaints did not meet the threshold for apprehended bias under the established legal principles.

The court concluded that none of the conduct complaints presented a valid ground for disqualification, as they did not indicate any bias on the part of the judge. The complaints were deemed to be more appropriately addressed through the appellate process rather than through an application for disqualification. The judge dismissed the application for disqualification and ordered that the proceedings be listed for a Case Management hearing to address the numerous interlocutory applications and to set dates for concluding the part-heard trial. This decision underscored the importance of adhering to legal principles and the appropriate forums for challenging judicial conduct.

The court's final order dismissed the application for disqualification and scheduled a Case Management hearing for 12 June 2024. This decision effectively rejected Ms Shipton's claims of bias and ensured the continuation of the proceedings under the judge's oversight.

Orders

Orders of the court

ADC 4995 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR GARWOOD

Applicant

AND:

MS SHIPTON

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

24 MAY 2024

THE COURT ORDERS THAT:

1. That paragraph 1 of the Application in a Proceeding filed 31 January 2024 be dismissed.

2. That the proceedings be listed for Case Management on 12 June 2024 at 12 noon, with Counsel instructed for trial to appear.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Understanding these matters it is not only difficult to understand the basis of the concerns raised, but importantly it is impossible to see how the conduct (whatever it might be) could give rise to any apprehension of bias with reference to the relevant legal principles.Ignoring the mother’s evidence and submissions of counsel at the hearing on 15 September 2023 (1.7 and 1.8) The conduct complained of in this instance again appears to be a complaint in relation to the reasons delivered on 3 November 2023. I accordingly repeat those matters earlier identified as to the appellate process being the appropriate forum to challenge the reasons. However, a number of comments can be made about this conduct complaint:(a)To the extent that it is a repetition of those matters raised in 1.1 of Annexure “A”, true it is that the written submissions were not received by the court at the hearing on 15 September 2023, it cannot however be said that the submissions of senior counsel at that hearing were ignored.(b)Rather as observed by me during the hearing of this application, it was apparent that at the hearing on 15 September 2023, senior counsel for the mother appeared to read verbatim from the written submissions that had been prepared. Whether this was actually the case or not however is irrelevant.(c)That is because senior counsel for the mother made oral submissions and those submissions were not ignored. Indeed, specific reference was made to matters raised in the oral submissions throughout the reasons together with specific reference to the submissions at [44]-[45].[11](d)In addition, specific reference was made in the reasons to the material before the court for the purposes of the hearing and to which regard was had in the reasons, that included numerous affidavits filed by each of the parties.[11] Garwood & Shipton (No 7) [2023] FedCFamC1F 935 at [44]-[45]. In all of those circumstances it is again difficult to understand how this complaint could give rise to an apprehension of bias with reference to the relevant legal principles.Fixing costs in determining the costs application (1.9) The conduct complained of in this instance again appears to be a complaint in relation to the reasons delivered on 3 November 2023. I therefore again repeat my earlier comments about the appellate process being the appropriate forum to deal with those matters. However, again, this is a complaint which is difficult to categorise as one that could ground an apprehension of bias. The quintessential task required of the court in determining the father’s application for costs was to consider s 117 and s 117(2A) of the Act. These matters were considered in the reasons. Having determined it appropriate to exercise discretion and make an order for costs in favour of the father, and in the face of an application that costs be assessed on an indemnity basis, it was necessary to proceed to consider the basis upon which costs were to be assessed. As it turned out, an order for costs calculated on an indemnity basis was not made, and instead costs were fixed at amount of less than half that which was claimed, an outcome entirely permissible pursuant to r 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).

Decision

Reasons for decision

If, however, I am wrong about the timing of the hearing, and if it is the case that a direction was given to the mother that she confer with the father’s legal representatives at either of the hearings on 15 or 16 February 2023, this is an unfortunate reality that occurs when a litigant is self-represented. To suggest that the same could possibly ground an apprehension of bias is entirely meritless.CONCLUSION Having found no merit in any of the conduct complaints made by the mother, it follows that the two-stage test required by Ebner fails. For all of the foregoing reasons, the application that I disqualify myself shall be dismissed. I shall make an order that the proceedings be listed for a Case Management hearing to manage the numerous extant interlocutory applications, and the allocation of hearing dates to conclude the part-heard trial.

Ratio Decidendi

Legal Principle Established

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