Gillard and Gillard and Ors

[2016] FamCA 1033

FAMILY COURT OF AUSTRALIA

GILLARD & GILLARD & ORS [2016] FamCA 1033

FAMILY LAW – PRACTICE & PROCEDURE – Disqualification – Application for recusal on the basis of apprehended bias – Consideration of the test in Ebner v Official Trustee in Bankruptcy [2000] 205 CLR 337 – Where it is appropriate that the trial judge be recused – Order made that the trial judge is recused from further involvement in these proceedings.

Family Law Act 1975 (Cth)

Ebner v Official Trustee in Bankruptcy [2000] 205 CLR 337

APPLICANT: Mr Gillard

1st RESPONDENT: Ms Gillard

2nd RESPONDENT: Mr LL Gillard

3rd RESPONDENT: Ms NN Gillard

FILE NUMBER: PAC 383 of 2008

DATE DELIVERED: 21 October 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 21 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom, SC

SOLICITOR FOR THE APPLICANT: Marina Voncina

FOR THE 1ST RESPONDENT: Ms Gillard in person

COUNSEL FOR THE 2ND RESPONDENT: Ms Spain

SOLICITOR FOR THE 2ND RESPONDENT: Mcauley Hawach Lawyers

COUNSEL FOR THE 3RD RESPONDENT: Ms Spain

SOLICITOR FOR THE 3RD RESPONDENT: Mcauley Hawach Lawyers

Orders

1. That Johnston J is recused from further involvement in these proceedings.

1. That these proceedings are listed for telephone directions hearing with Registrar Campbell at 3.45 pm on 28 November 2016.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilliard & Gilliard and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 383 of 2008

Mr Gillard

Applicant

And

Ms Gillard

1^st Respondent

And

Mr LL Gillard

2^nd Respondent

And

Ms MM Gillard

3^rd Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Gillard for orders that I recuse myself from further dealing with or hearing these proceedings between himself and Ms Gillard involving their children, L, who was born in 2002 and B and S who were both born in 2005.

2. On 23 January 2015 I made substantive orders about the parenting arrangements for the three children.  I noted at the time that the proceedings were very complex, and that the children’s parents have been involved in litigation about the parenting arrangements for the children over many years.  On 23 January 2015 I made certain substantive orders and then subsequently there was an appeal by the children’s father in respect of those orders.  Mr Gillard asked that I stay the orders pending the completion of that appeal. 

3. The appeal was subsequently heard within a few months.  The appeal was dismissed and the substantive orders required the children to live with their mother, and that she would have sole parental responsibility for them.  The orders also required that the children would spend no time with their father, for a period of three months after which time they were to spend time with him at a supervised contact centre, on what I would describe as an increasing time basis.  The substantive live with order required L’s residence to change from living with his father to living with his mother and siblings.  Initially there were difficulties and a need for a recovery order.

4. It appeared to me that L had settled down in the care of his mother.   He had to change schools and at least, on the mother’s account as it came to me in subsequent proceedings, he appeared to have settled down into school.  But there appeared to be fairly serious difficulties with L from the commencement of time spent with his father at the supervised contact centre.  And from what I understand from the earlier occasion when this matter came before me, apparently L has been upset to the point where the contact centre had declined to continue to offer their services to the family. 

5. Subsequently, the father filed an Initiating Application in the Federal Circuit Court, seeking substantive variation of my orders, and what I might describe as certain machinery changes and perhaps other changes to the orders on an interim basis.  Those proceedings came before Judge Newbrun of the Federal Circuit Court and his Honour transferred the proceedings to this Court. 

6. On the earlier occasion when the matter was before me, there was an application foreshadowed that I disqualify myself from further involvement in the proceedings.  The children’s paternal grandparents were also seeking leave to intervene in the proceedings so that they could become parties to the proceedings in their own right, and seek orders to spend time and communicate directly with their grandchildren.

7. The immediate application before me is an application that I recuse myself from further involvement in the proceedings.  This application is put on behalf of the children’s father.  In short, the father’s case is that having made so many findings of fact about the father which underpinned, ultimately, the Court’s finding about what arrangements would be in the best interests of the children, and having made numerous findings critical of the father or adverse to him, a hypothetical person sitting in the back of the Court would have a serious concern that the Court would be able to bring an impartial mind to determination of any matters in respect of these children.  It is submitted that in all those circumstances where so many findings have been made against the children’s father then that hypothetical person would not accept that the judge would be able to bring an impartial mind to the matters to be determined.

8. As learned senior counsel submitted, the test has been referred to in numerous very well known authorities including the High Court decision in Ebner v Official Trustee in Bankruptcy [2000] 205 CLR 337 (“Ebner”) where the plurality said, as follows at [6]:

   Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.  That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.  It is convenient to refer to it as the apprehension of bias principle.

9. And as learned senior counsel went on to submit, the application of this bias principle, and this is at [8] of their Honours’ judgment requires two steps:

   … First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits.  The second step is no less important.  There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

10. Learned senior counsel took me to numerous paragraphs and findings in my judgment.  I do not propose to go through these slavishly but suffice it to say that in respect of my credit findings about parties and witnesses, I refer to the father at paragraphs 86 and 87.  At paragraph 86 I said as follows:

    86.The father had some difficulty giving answers which were responsive to the question.  On many occasions he appeared not to be able to resist the need to say things which it appeared to me that he perceived were favourable to his case.  At one point he was requested by counsel for the ICL to stop reading a letter by [Dr CC] but the father clearly found himself unable to do so and insisted on continuing to read the remaining part of the letter aloud.  On other occasions the father gave considerable attention to providing a very precise answer.  On a few occasions he appeared to be confused by the question. 

    87.I would accept that most of the father’s evidence was truthful.  But in relation to the mother’s allegations about his controlling behaviours in the home and in the parties’ motor vehicle, which he strongly denied, I do not accept his denials and prefer the evidence of the mother.  In my view it is more likely than not that her version is correct.  I shall refer to this in more detail below. 

11. Learned senior counsel took me to findings that I had made about violence. I was also referred to many of the matters which the court is required to consider, particularly under ss 60CC(2) and (3) of the Family Law Act 1975 (Cth) where I have made findings which were adverse to the father and which a properly informed lay observer, when informed about such findings would, in fact, take the view that the judge who had made such findings, when having a duty to consider impartially aspects of parenting responsibilities and arrangements concerning these children, would be in considerable difficulty.

12. Accordingly, I am satisfied that the bias principle test as referred to in the well-known authorities, and particularly the authority of Ebner which I have referred to, has been established in this case.  That, as I say, both aspects are available and relevant in this matter.  Firstly, the identification of those matters which are complained about and secondly the logical connection between those matters and the feared deviation.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 21 October 2016.

Associate:     

Date:              2 December 2016