Gin & Hing (No 5)
[2023] FedCFamC1F 63
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gin & Hing (No 5) [2023] FedCFamC1F 63
File number MLC 4528 of 2010 Judgment WILSON J Date of judgment 15 February 2023 Catchwords FAMILY LAW – ALLEGED APPREHENDED BIAS – application for recusal – where ore tenus application made on the morning of 27th day of the trial – application dismissed. Legislation Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04
Cases cited Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Charisteas v Charisteas (2021) 95 ALJR 824
Division Division 1 First Instance Number of paragraphs 24 Date of last submission 15 February 2023 Date of hearing 15 February 2023 Place Melbourne Counsel for the applicant in person Solicitor for the applicant M Legal Counsel for the respondent Mr F. Dixon SC Solicitor for the respondent Clancy & Triado Counsel for the Independent Children's Lawyer Mr D. Whitchurch ORDERS
MLC 4528 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR GIN
Applicant
AND MS HING
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by
WILSON J
DATE OF ORDER
15 FEBRUARY 2023
THE COURT ORDERS THAT the applicant’s application made ore tenus on 15 February 2023 for me to recuse myself from this proceeding on the ground of apprehended bias is dismissed.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
Today is the 27th day of the trial of this parenting application. The evidence is not yet complete. Ms N has been required to attend for cross-examination. She has spent four days to date in the witness box. She is presently due to return to the witness box tomorrow for the fifth day of her evidence, most (although not all) of which has been taken up by the father asking questions to Ms N, a great deal with which Ms N takes issue. She disagrees with a great deal of the points put by the father.
Today at 9.50am, the father filed an affidavit that he said supported an application he said he brought verbally for me to disqualify myself on the ground of apprehended bias. Mr Dixon SC opposed the application as did Mr Whitchurch. The father produced a lengthy written submission on the issue.
Today the father spent almost three hours debating his points about his application for disqualification.
This application is brought on the 27th day of the trial, as has already been observed. I asked the father today for his submissions on the impact of the High Court's decision in Aon Risk Services Australia Ltd v Australian National University.[1] The father told me he did not wish to make submissions on Aon. He also said he had not previously read the case, a point I find extraordinary having regard to the fact that the decision in Aon is important on an application such as this.
[1] (2009) 239 CLR 175.
The precise order the father sought was that I recuse myself from the whole of this proceeding. He wants another judge to take over the case. He recognises that if his application is successful the trial may need to start from scratch again, 27 days having been wasted.
At the outset, I state that this application is refused. Applying the test recently pronounced in Charisteas v Charisteas,[2] I do not take the view that a lay observer properly instructed might take the view that I might not bring an impartial mind to bear on the determination of this case.
[2] (2021) 95 ALJR 824.
In the course of his submissions, the father made a collection of discourteous and disparaging comments about my conduct of the case. I put those comments out of my mind in determining this application.
The affidavit in support of this application was short. It was as follows –
1.I am the Respondent father.
2.On Thursday evening, 1 September 2022, when I was dining with my wife and our two sons at a [restaurant], I saw a barrister I knew sitting at a table nearby with other people. I did not say hello until after I had paid the bill and was about to leave soon.
3.The barrister and I had some chit-chat and as my family was leaving, the barrister stopped me said in a very serious tone to the effect “[Mr Gin], give me a call on Monday morning. There is something important I need to talk to you about”. I said I will call and left with my family.
4.I didn't call on the Monday but on Tuesday, 6 September 2022, I called the barrister initially at 9:26AM but no one picked up, and then at 9:31AM and a 6 minute 45 seconds long conversation took place.
5.I was told by the barrister to the effect that “You have a very lovely young family, I am very concerned about you. I have heard that Justice Wilson is going to make new law and make you pay the other party's costs. You are a smart guy, and you should use your wits to settle the case, because I don't want to see you and your family in financial ruins.” I asked the barrister how this was known. The barrister said to me to the effect “I cannot tell you. I cannot tell you more details. But as a barrister in the legal circle, people talk, I hear things, and I am very concerned for you.” I told him that settlement would be very hard as the attitude of the mother and her senior counsel are very aggressive and arrogant, and they won't talk to me, and they probably believe the report writing will be their star witness. The barrister again urged me solemnly that I should do whatever I can to settle, the person doesn't want to see me hurt.
6.During the entire conversation, the barrister maintained a very serious and concerned tone, giving me no doubt that this is serious problem.
7.I have not sought an affidavit from this barrister because I believe it would be stretching the-relationship and be viewed as potentially placing the barrister who tried to warn with kind intentions in harm's way by potentially compromising1he barrister's career and relationship with other barrister and the Court.
8.Soon after this conversation I sought leave to re-open the case and include affidavit content regarding my change if work, as I had hoped that His Honour might get the hint that I am not earning money as an expensive lawyer. However, when cost of a mention on 7 February was reserved when there was no party who won and no formal issue to contest, I feel ever more concerned about the implications of the rumours.
Several matters of importance emerged from that affidavit. In no special order they included the following –
(a)the father, as the person who prepared the affidavit, is a professional;
(b)the date of the relevant event at the restaurant was 1 September 2022, over five months ago;
(c)the barrister to whom the father was allegedly speaking was not named in the affidavit (although in court the father did in fact name the barrister);
(d)then followed a telephone conversation between the barrister and the father on Tuesday, 6 September 2022, the duration of which was allegedly six minutes 45 seconds;
(e)during the telephone call the barrister told the father he (the father) should attempt to settle the case;
(f)the barrister told the father (and the father used the following words as a quotation of the actual words said) –
I have heard that Justice Wilson is going to make new law and make you pay the other party's costs;
(g)The barrister told the father that the barrister was very concerned for the father;
(h)the father has not sought an affidavit from the barrister because he (the father) believed that –
It would be stretching the relationship and be viewed as potentially placing the barrister who tried to warn with kind intentions in harm’s way by potentially compromising the barrister's career with other barrister (sic) and the court;
(i)the father subsequently sought leave to re-open his case; and
(j)he described something (although he did not say what) as “rumours”.
The father took no step to bring this conversation to my attention prior to today. That was surprising in view of the significance the father attached to it. To the contrary, on 30 September 2022 the case returned before me for the resumption of Ms N's cross-examination by the father. No mention was made on that day of the conversation between the father and the unnamed barrister on 6 September 2022. For that matter, when the case was before me for mention last week the father did not foreshadow this recusal application.
This application is made without explanation for its lateness. The father said he wants the application decided immediately. In opposing the recusal application, Mr Dixon SC and Mr Whitchurch submitted that a recusal application is a serious application, and as such a serious matter, it calls for solid evidence. They said the evidence in this case was bereft of substance. The father submitted that there need not be substance in the rumour as the important issue was whether a fair-minded lay observer, properly informed, might take the view that the judge might not bring an impartial mind to bear in the determination of this proceeding.
During his expansive viva voce submissions today, the father emphasised that my ordering the father to previously pay costs on the father's failed applications represented a predetermination of the case in that I formed an adverse view about him. I disagree. Under s 117(2) of the Family Law Act, the court's discretion to make an order that deviates from the more usual costs order under s 117(1) is premised on the court being satisfied that one of the matters in s 117(2A) has been engaged, and that the making of a costs order is just in all the circumstances. The making of a costs order is insufficient to found a basis for my recusing myself.
In the course of developing other submissions in support of his recusal application the father trawled through a large number of episodes over the 27 days of the trial in this proceeding where the father contended that I have made rulings against him and therefore a lay person might take the view that I as trial judge might not bring an impartial mind to bear on the hearing of this proceeding. He relied on six points in his written submissions, namely –
(a)the appearance of protecting the witness Ms N at the expense of the father;
(b)advising the father to pursue a point doomed to fail;
(c)prejudging the case;
(d)giving the appearance of what he called “one rule for them and one rule for me”;
(e)giving the appearance of being against the father; and
(f)gossip of the case reaching the father.
The father relied on transcript references over the life of the trial in an endeavour to make good those six points. Let me say at once I reject each and every one of them.
The first proposition related to Ms N and her evidence. As Ms N's evidence has not concluded, it is desirable that I say as little as possible to deal with this grievance. The father has cross-examined Ms N at length in an endeavour to prove that she is biased. Ms N has rejected his contentions. I have ruled on various questions put by the father to Ms N, many of which have been in objectionable form. That does not mean I am protecting the witness. Whether the father can demonstrate in final address that Ms N is in fact to be taken to be a biased witness must await final addresses.
In his second ground of complaint, the father submitted that by putting him in touch with a case he had not previously seen on a question of apprehended bias represented “advising” him to pursue a course doomed to fail. He is a professional. I did not advise him to do anything. It is for him to make submissions. He was given every chance to do that. I reject proposition 2.
In his third proposition, the father said I appeared to prejudge his case. I reject that contention. My mind remains open to persuasion. I have not heard the totality of the evidence nor final addresses and will not form a view until that occurs.
The father's fourth point is preposterous and I reject it. He has been accorded an even hand throughout. I am not against the father so I likewise reject the fifth proposition.
The gossip and rumour point was devoid of merit. A costs order is scarcely likely to make new law.
Mr Dixon SC made a valid point that no affidavit had been provided from the alleged other participant in the conversation with the father on 6 September 2022. The reasons for not seeking such an affidavit were absurd.
Mr Whitchurch submitted that it was of great concern that this recusal application, if granted, might hijack the entire litigation, now in its 27th day if a new judge were appointed to start afresh. There is considerable force in that submission.
The father took umbrage at the suggestion that this application was a deliberate tactical ploy. It is not necessary for me to rule definitively on point. However, in the reasons of French CJ in Aon, a relevant matter was whether the impugned application was made as a tactical ploy, hence I brought it to the attention of counsel.
This application is without substance. I reject that a lay person might take the view that I might not bring an impartial mind to bear in the determination of this case. The lateness of this application is unexplained. The other party to the 6 September 2022 conversation was not called. The application is made on the 27th day of the trial. The final witness has almost completed her evidence. At no prior time has this recusal application been foreshadowed. If the application were granted, it would orchestrate near insuperable consequences to this family, to the child in particular, whose parents would likely have to start again in this litigation. The grant of this application is fundamentally anathema to the overarching purpose of the rules of the court as expressed in rule 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
I dismiss this recusal application.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 15 February 2023