Hanas and Jolaha (No 3)

[2019] FamCA 342

FAMILY COURT OF AUSTRALIA

HANAS & JOLAHA (NO. 3) [2019] FamCA 342

FAMILY LAW – COURTS AND JUDGES – Disqualification

Family Law Act 1975 (Cth)

Anae v R [2018] NSWCCA 73
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Concrete Pty Ltd v Parramatta Design and Development Pty Ltd [2006] HCA 55
Hartnett & Sampson [2008] FamCA 75
Huda & Huda & Laham [2018] FamCAFC 85
R v Watson [1976] HCA 39
Royal Guardian Mortgage Management Pty Ltd v Ngyuen [2016] NSWCA 88

APPLICANT: Ms Hanas

RESPONDENT: Mr Jolaha

FILE NUMBER: SYC 113 of 2019

DATE DELIVERED: 3 June 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 21 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie SC

SOLICITOR FOR THE APPLICANT: John R Quinn & Co

COUNSEL FOR THE RESPONDENT: Mr O'Ryan QC

SOLICITOR FOR THE RESPONDENT: York Law Family Law Specialists

Orders

1. That Justice Henderson be disqualified from further hearing this matter in any capacity.

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 Hanas & Jolaha 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: SYC 113 of 2019

Ms Hanas

Applicant

And

Mr Jolaha

Respondent

REASONS FOR JUDGMENT

1. This was an application for disqualification filed by the husband on 15 May 2019. The matter was made returnable on 21 May 2019 which was the date of the interim hearing of the wife’s application for spousal maintenance.

2. The husband’s disqualification application was supported by an affidavit of three paragraphs filed by him as follows:

   a)That Justice Henderson recuse herself.

   b)I am the respondent in the substantive proceedings.

   c)My Counsel will outline at the hearing the basis for making the judicial recusal application as I understand that the issues relate to legal matters and arguments.

3. Thus neither the Court, the wife or her legal team understood the basis of or the evidence in support of the application for disqualification until the day of the hearing of the application. However, given the importance of this application and that it goes to the administration of justice and operation of the Rule of Law Ms Christie SC Counsel for the wife met the application. Mr O’ Ryan QC acted for the husband.

4. The material upon which the application is based is as follows:

   d)Judgment of 27 February 2019;

   e)The transcript of proceedings of 27 February 2019;

   f)The judgment of 11 April 2019;

   g)The transcript of proceedings of 11 April 2019.

5. The husband has filed an appeal against my decision of 11 April 2019 relating to interim parenting orders I made for him to spend time with his daughter X born in 2017. That appeal is listed for hearing in August 2019 before Justice Watts.

6. Mr O Ryan filed a lengthy and detailed case outline and his submissions were careful and thorough and true to his words he took well over one hour to make his submissions. During his submissions I was referred to 3 decisions. The first is a New South Wales Court of Appeal decision of Royal Guardian Mortgage Management Pty Ltd v Ngyuen[1], the second was a decision of the New South Wales Court of Criminal Appeal in Anae v R[2] and the third a decision of the Family Court Appeal division of Huda & Huda & Laham[3].

   [1]Royal Guardian Mortgage Management Pty Ltd v Ngyuen [2016] NSWCA 88.

   [2]Anae v R [2018] NSWCCA 73.

   [3]Huda & Huda & Laham [2018] FamCAFC 85.

7. The first ground upon which the application is based is one of apprehended bias in that I had prejudged the ultimate decision I made in April 2019 in February 2019 and April 2019.

8. Secondly, my comments in relation to the American proceedings, the husband’s pursuit of those proceedings and generally would lead the fair-minded lay observer to reasonably apprehend that as the judge I would not bring an impartial mind to the ultimate issue of fact before me. Mr O’Ryan also alluded to procedural unfairness to his client which was not part of his application for disqualification.

9. The law in relation to a disqualification is well settled. Justice Moore’s decision in Hartnett v Sampson[4] sets out the principle. It is as follows “whether the fair-minded observer could conclude the judge had formed opinions which might affect his or her determination of outstanding matters”.

   [4]Hartnett & Sampson [2008] FamCA 75.

10. In the 1976 High Court decision of R v Watson[5] their Honours described principal and test as thus:

    [5]R v Watson [1976] HCA 39.

    The view that a judge should not hear a case if in all the circumstances the parties or the public might reasonably suspect he was not unprejudiced and impartial, and that if a judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct principle. It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend all suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.

11. This last position was further explored in Ebner v Official Trustee in Bankruptcy[6] “in case of real doubt it will often be prudent for a judge to decide whether or not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view of the matter of disqualification”.

    [6]Ebner v Official Trustee in Bankruptcy [2000] HCA 63.

12. Going to the decisions referred to me by Mr O’Ryan and dealing with first the Royal Guardian[7] case in which apprehended bias was found. It is clear from paragraph 10 of that judgement that I must deal with the bias application first and this was expressed by Justice Callinan in Concrete Pty Ltd v Parramatta Design and Development Pty Ltd.[8]

    [7] Above, note 1.

    [8]Concrete Pty Ltd v Parramatta Design and Development Pty Ltd [2006] HCA 55.

13. I was referred in particular to paragraph 17 of that decision and the quote of Lord Brown which is as follows:

    Of course he can clear ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses. Especially not during evidence in chief. He must not appeared hostile to witnesses least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced. I note in passing that apprehended bias was found in that commercial trial by the Appeal Division of the Supreme Court of New South Wales.

14. In the second decision of Anae[9] the test as expressed begins at paragraphs 50 and is as follows:

    [9] Above, note 2.

    The test for apprehended bias is uncontroversial and the relevant principles were summarised by this court in Tarrant.

15. Their Honours went on to state:

    Where actual bias is not alleged the legal test as expressed in Johnson v Johnson requires that the court is satisfied that 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.

16. Their Honours state that this double test is by no means easy to apply and its application requires attention to 4 discrete elements which are as follows:

    First there is the postulate of the fair-minded lay observer. Their Honours comment this reflects the principle that it is public confidence in the administration of justice which is sought to be preserved and not the capacity of a judge.

    Secondly, the test is being described as objective by which it is meant a third party’s assessment of the judge’s conduct and capacity, and not, as with actual bias and assessment of the judge’s state of mind.

    Thirdly, there is said to be as two-stage process required, it is necessary to articulate the connection between the events giving rise to the apprehension of bias through pre-judgement and the possibility of departure from impartial persistent decision-making.

    Fourthly, use of the term “might” lowers the burden of proof below that of probabilities. Thus the court not need not be satisfied that the fair-minded lay observer would have such an apprehension, nor need any apprehension in the mind of the observer involve a state of satisfaction on the probabilities. Apprehended bias was found in that matter by the trial judge by the court of criminal appeal.

17. Apprehended bias was found in Anae[10].

    [10] Above, note 2.

18. In Huda,[11] the third matter, apprehended bias was not found by the Full Court of the Family Court however procedural unfairness was found on the basis of the Trial Judge’s interventions, the number of interventions, the length of the interventions, the circumstances of the intervention which led to procedural unfairness but not bias.

    [11] Above, note 3.

19. All three decisions referred to me by Mr O’Ryan were final hearings were witnesses were subject to examination cross-examination. Although it is clear the principles apply to all matters not just final hearings I hasten to add the proceedings before me were interim and there was no cross-examination or examination rather discussions between bench and those at the bar table, submissions made and then a judgement produced together with orders.

20. The wife does not agree with the husband’s position as to apprehended bias or that I should disqualify myself.

21. The first ground is that I had formed a view in February 2019 that there would be no overnight time between the father and his daughter until she was aged three which is the position it is said I adopted in April 2019 when I delivered my decision. However, my April decision provided for the following. The father was to have three periods of overnight time prior to the child’s third birthday which is on the 29th of July 2017, namely at Christmas, late January and at Easter. At age three the child is to commence regular overnight time with her father on alternate weekends and at age three and a half years she will be spending three nights a fortnight with her father. Thus I do not accept my decision reflects what was put to me by Mr O’ Ryan, namely, that I had formed a view or prejudged the matter in February 2019 that there would be no overnight time until the child was three years of age as that is not what my orders reflect.

22. As to my comments generally. I expressed my lack of understanding why the father pursued the litigation in America when he and his wife and child had all permanently relocated to Australia where each of them are citizens. Mr O’Ryan commented I only spent some 23 to 27 minutes reading the husband’s material and had I read it, “properly” my inference, I would have known why he pursued the American litigation. I expressed my concern at the consequences of pursuing that litigation for the child and the mother being draconian orders of Judge Boyd that the mother, in her absence on 11 January 2019, had been found guilty of contempt for not following the American orders, sentenced to a term of imprisonment purged by payment of $10,000, she was to hand the child to the father, he was to have sole parental responsibility and the mother’s time was to be at the father’s discretion. At that time mother, father and X had all relocated to Australia permanently and X was 18 months of age.

23. I accept I was concerned in February 2019 that there be some social science to assist me in my decision in April 2019 and that I ordered a Child Inclusive Conference which did not occur until May 2019. I further accept that in the absence of the social science I did entertain the husband’s application for overnight time against the clear wishes of the mother for no overnight time until the child was 4 as I was concerned that given delays in this registry there might be two years before a final hearing and X would four years of age and no overnight time until then would be inappropriate. I referred to this at paragraph 2 of my April 2019 decision. That may be a valid criticism of my decision and this perhaps has led to procedural unfairness, however, the decision I made in April 2019 in no way prevented the father from bringing a further application for overnight time with his daughter once the Child Inclusive Conference Memorandum had been released to the parties. With young children such as X it is not uncommon to have several interim applications.

24. I praised the father’s capacity as a parent at paragraph 27 of my judgment, commented that this was not a matter about the father’s capacity but the child’s capacity to be away from her primary carer. I did comment at paragraph 39 on the father’s possible lack of insight into a young child’s needs given the application he had filed in the American courts for an equal time arrangement and his interim application filed in his response in this Court that the child spend six nights a fortnight in his care broken up over a two week period. Otherwise, I complimented each parent’s competence and capacity as parents.

25. On these facts I do not see the fair-minded lay observer would have formed a view I had prejudged this matter and thus support a finding of apprehension of bias. However, I am not the litmus test.

26. The real and most concerning issue for me is not a finding or not of an apprehension of bias but the clear position that the husband’s legal team, and perhaps the husband, although I am not clear given his affidavit evidence, have formed a view that I will not bring an objective and impartial mind to this matter. For me to continue hearing this matter in any capacity with that clear view expressed by the husband’s his legal team via submission only, may result in the father losing confidence in the administration of justice and that is not an acceptable outcome at any level.

27. As stated in Ebner[12] in cases of real doubt, and I cannot say here there is no doubt, the statement “whether or not to sit in order to avoid the inconvenience that could result if the appellate court were to take a different view on the matter of disqualification” has resounded with me.

    [12] Above, note 6.

28. Given my concern to minimise further court hearings for this young couple not to disqualify myself may inevitably lead to further appeals and that too is unacceptable.

29. It would be a distraction from the real issues which is X’s s right to a meaningful relationship with and to spend time with each parent and resolving their property dispute.

30. For these reasons I accede to the husband’s request that I be further disqualified hearing this matter in any capacity.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 28 May 2019.

Associate:

Date: 3 June 2019