Hartnett & Sampson - [2008] FamCA 75

FAMILY COURT OF AUSTRALIA

HARTNETT & SAMPSON

[2008] FamCA 75

FAMILY LAW – PROCEDURAL – Disqualification

Family Law Act 1975 (Cth)

APPLICANT:

Mr Hartnett

RESPONDENT:

Ms Sampson

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission NSW

FILE NUMBER:

SYF

3827

2004

DATE DELIVERED:

7 February 2008

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

17, 19 December 2007 and 30 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney

SOLICITOR FOR THE APPLICANT:

Karras Partners

COUNSEL FOR THE RESPONDENT:

Mr Livingstone

SOLICITOR FOR THE RESPONDENT:

Paul & Paul Lawyers

INDEPENDENT CHILDREN’S LAWYER:

Ms Karagiannis

Orders

The rehearing of this matter is to be expedited and heard by another judge.

The matter is listed for mention before Le Poer Trench J at 2.30pm on 7 March 2008 for such directions as his Honour considers appropriate.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Moore delivered this day will for all publication and reporting purposes be referred to as Hartnett & Sampson.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3827 of 2004

MR HARTNETT

Applicant

And

MS SAMPSON

Respondent

REASONS FOR JUDGMENT

On 22 November 2007 the Full Court allowed the wife’s appeal from parenting orders I had made on 21 March 2007, set aside orders 15 to 18, and ordered that the application for parenting orders be remitted to me ‘for hearing and determination in accordance with the reasons of this Court.’
There is dispute about what this means and my attempt to have the scope of the remitter resolved by agreement has been to no avail. The more immediate issue, and the subject of these reasons, is the wife’s application that I disqualify myself from hearing the matter further on the basis of reasonable apprehension of bias. Determination of the other issue will follow accordingly.
As set out in the initial written submissions of the wife’s counsel, elaborated in oral argument, the apprehension is one of pre-judgment arising from the credit findings made already against the wife. Cited in support is this passage from paragraph 5 of my Reasons:
‘It is the compound combination of a number of aspects to her evidence on several issues, in some instances purposefully given and not retracted despite the opportunity, that were shown to have been either wrong or unlikely on the balance of probabilities. As each layer was placed on top of the other, by the time the evidence drew to a close her reliability vis-à-vis [the husband] was an issue that could not be resolved in her favour. An adverse view of her credit is the only finding reasonably open on the evidence as a whole.’
The wider context of the passage extracted is this:
‘5. The stark differences on several core facts require a view to be expressed about the confidence that can be placed in each party’s reliability for accuracy and objectivity in relaying information integral to the decisions they have relinquished to the Court. Analysis of the evidence demonstrates [the wife] to have significant shortcomings in this area. That conclusion is not the result of just one incongruity that might be amenable to explanation other than an attempt to mislead or obfuscate or one implausibility that might be overlooked in recognition of understandable fallibility, and nor is it the result of failing a supposed ‘memory test’. It is the compound combination of a number of aspects to her evidence on several issues, in some instances purposefully given and not retracted despite the opportunity, that were shown to have been either wrong or unlikely on the balance of probabilities. As each layer was placed one upon the other, by the time the evidence drew to a close her reliability vis-à-vis [the husband] was an issue that could not be resolved in her favour. An adverse view of her credit is the only finding reasonably open on the evidence as a whole. The particulars to support the finding will emerge from discussion to follow of the background facts. Having been brought into clearer focus as a result, there are implications not only for the evaluation of how parental responsibility has been discharged to date but also for the various decisions to be made about future parenting responsibilities. That is not to imply [the father] is on clear high ground, but it is to say that in stacking up his account of past events against that given by [the wife], his should be seen as the more reliable unless there is some clear and incontrovertible piece of evidence supporting the contrary.’
In the further written submissions made by the wife’s solicitor - to meet the contention for the husband that findings giving rising to such an apprehension had not been identified - reference is made to other passages in the Reasons; in particular –
‘b. Paragraph 29
“[The wife] casts herself in poor light”
c. Paragraph 60 of the Judgment
“there is an air of implausibility about her account of what happened and [the husband] is more likely to be accurate”
d.60(d) of the Judgment when your Honour deals with the tape recording issue “it indicates in an incontestable way the unreliability of her evidence” – this being a very general remark and is to the effect that her evidence cannot be relied upon.
e.60(h) – “overall analysis of the evidence leads to the conclusion that [the wife’s] account of [the husband’s] conduct cannot be accept and his version…is preferred”’
It is said that these findings led to an assessment of the wife’s attitude towards fostering the father’s relationship with the children, citing these passages from the Reasons:
‘a.       Paragraph 82(ii)
“[The husband’s] relationship with the children has been developed in quite difficult circumstances….not only by reason of the place and travel it has entailed but also because it has been the subject of resistance from [the wife] from the outset of their separation in one way or another” (emphasis added).
b.Paragraph 88 and 89 – when setting out Section 60CC(4) your Honour says:
“Several shortcomings in these areas have been discussed in the evidence already. From the outset of the separation [the wife] insisted on short terms and supervised contact between [the husband] and [A] in circumstances where there was nothing to substantiate any concerns requiring the protection implicit in supervision” (emphasis added).
c.        Paragraph 90:
“in other respects, unrelated to [the wife’s] attitude towards [the father] and her attempts to marginalise his role in the children’s lives……”
d.        Paragraph 98:
“…the continuation of the current circumstances has potentially serious consequences for these children … [the mother’s] parenting capacity is less than is necessary for the children’s needs”’
It is common ground, and apparent from the Full Court majority judgment at paragraph 91, that there will be further evidence about matters arising since the trial and there is a very high probability – indeed, inevitability – there will be disputes of fact and findings will be necessary before their application to the assessments underpinning the ultimate outcome. Accordingly, it is argued for the wife, the findings I have already made against the wife’s credit require the matter to be heard by another Judge, consistent with established authority.
As for authority, the submissions for the wife cite this passage from the decision of Kirby P (as he then was) in Australian National Industries Limited v Spedley Securities (1992) 26 NSWLR 411 at 421-422:
‘But in comparison to the entitlement of the appellants to have, in a matter of such importance to them, a trial of manifest impartiality by a judge who comes to their main contest unburdened by earlier findings and expressed opinions about the credit of central witnesses, such considerations pale into less importance.’
Otherwise cited as setting out relevant principle are three decisions of the High Court: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344-355 348; and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 548-549.
Opposing the application, the submissions for the husband raise two arguments preliminary to the merit of the apprehension point which is said to have no basis: as a matter of law and also by operation of estoppel the wife is precluded from seeking the disqualification.
As for preclusion as a matter of law, having been remitted specifically to me by the order of the Full Court on 22 November, the proper avenue for relief is to seek to vary/set aside/appeal that order. The wife’s failure to do so means she is asking that I (impermissibly) revisit the order of the Full Court. As for estoppel, that is said to arise from these circumstances:
·the findings on which the application is based were made in the course of the judgment delivered on 14 February 2007;
·no issue was raised by the wife before the Full Court about my continuing to hear and determine applications in the proceedings [including the remitter of the grant of the stay by the Full Court ] and nor was any issue taken with my hearing the terms of the grant of a stay;
·at the hearing of the substantive appeal no issue was raised by the wife about my continuing to hear and determine applications in circumstances where the prospect of remitter was the subject of express discussion with members of the Court [the submissions for the wife concede the point was not raised by the wife];
·having elected not to advance the proposition that I should be disqualified from further hearing the proceedings – either before me or before the Full Court – she is now estopped from doing so and it would be ‘unconscionable’ to permit it now. Port of Melbourne Authority v Anshun (1981) 147 CLR 589 is cited in support of that proposition.
It is submitted the application lacks merit since I fulfilled my judicial function by making findings on relevant issues, including material facts and the credibility of the parties, and no complaint was raised by the wife on the appeal regarding any finding of fact or credit. Therefore the contention of reasonable apprehension of bias is not now open. There has been no challenge to the propriety of the findings said to give rise to the apprehension sufficient to warrant disqualification and to accede to it is to grant relief which the wife should have properly pursued on appeal but elected not to. Moreover, disqualification requires the reasonable apprehension of bias to be ‘firmly established’ [cited is Johnson v Johnson (2000) 201 CLR 488]; in determining such applications it is important that judicial officers discharge their duty to hear and determine proceedings and not accede too readily to such claims [cited is Aussie Airlines Pty Ltd v Australian Airlines Pty Limited (1996) FCR 215]; and an expectation about the manner in which a judge is likely to decide a case is insufficient [cited is Re JRL; ex parte CJL (1986) 161 CLR 342].

Discussion

The apprehension of bias principle is well settled and can be found discussed in a number of cases such as Johnson v Johnson (2000) 201 CLR 488 [per Gleeson J, Gaudron, McHugh, Gummow and Hayne JJ] at 492-493 drawing on the earlier cases of Re Lusink, Ex parte Shaw (1981) 55 ALJR 12; 32 ALR 47; Livesey v The New South Wales Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568 and Webb v The Queen (1994) 181 CLR 41 and also the later case that same year of Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group Ltd (2001) 205 CLR 337. That is, the test to be applied in determining whether a judge is disqualified by reason of the appearance of bias 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’. Pre-judgment is a sub-set of the principle, more suited to the circumstances here in my view, and another way of expressing it from that footing is ‘…whether a fair-minded observer would conclude that the judge had formed opinions which might affect his determination of outstanding matters.’ [Australian National Industries Ltd v Spedley Securities Ltd (in liq) & Ors; Maher v Spedley Securities Ltd (in liq) & Ors (1992) 26 NSWLR 411].
It is true, as counsel for the husband points out in his reference to authority, that there are cautions against acceding too readily to such an application and this passage from the judgment of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 is an example:
‘…..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 expression 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"……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.’
Along the same vein, in Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group Ltd (supra) the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) observed at 348:
‘Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.’
This passage more recently from Kirby J in Antoun v R (2006) 224 ALR 51 at 34:
‘It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this court has "loudly and clearly" expressed a corrective against any view that a judge should too readily accept refusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases. It was not questioned in this appeal.
His Honour went on to say at 35:
‘The duty to discharge judicial functions is necessarily subject to any disqualifying conduct on the part of the judge subject to a recusal submission. The observations in Re JRL are a corrective to over-ready disqualification. But they are not a blanket that smothers the effect of disqualification where it has already arisen.’
The principle put to one side, its application is complicated here by the terms of the Full Court’s order remitting the rehearing specifically to me rather than to another judge in circumstances where I have made findings about credit in the judgment which concluded the final hearing. The majority [Bryant CJ and Warnick J] gave their reasons for doing so at paragraph 91:
‘Commonly, remission for rehearing is to a judge other than the trial Judge. However, in this instance we think the remission should be to Moore J for further consideration. This is because her Honour has made many significant findings which were unchallenged. These include findings about the parties’ financial circumstances which are interwoven with the practicalities of relocation. Of course upon reconsideration, her Honour may form the view that what she originally sought to achieve is not achievable. Thus, the parenting orders ought be set aside by us to allow a fresh consideration of all issues, including any arising from the period since trial. The status of her Honour’s findings will then be a matter for the parties and her Honour, but the prospect of relitigating every matter relevant to the issues to be determined is greatly lessened. [my emphasis]
It is said that I made many significant findings which were unchallenged; in fact I am told there was no challenge to the findings of fact or, more particularly, to the credit finding. Yet the status of those findings was not locked in by the appeal result but left as a matter for the parties and me, arguably including the credit finding. That there is contest about what status those findings are to have comes as no surprise, and if credit is one finding in dispute it is difficult to see how I could resolve it in any direction but one. It is also clear that further evidence was contemplated, arising during the period since trial, and it is inevitable, as both parties readily acknowledge, that will entail a fact finding process – necessarily undertaken in circumstances where I have already made findings critical of the credit of the wife. So the fresh consideration of all issues and the ensuing result would be founded on my resolution of dispute about whether findings I made in my earlier judgment could be re-visited and on further findings to be made about events after the trial where I expressed my opinion about shortcomings in the wife’s credibility. If there were agreement between the parties about it the way forward would not be so hazardous, but it is an impossible situation as things stand.
The question is whether a reasonable fair-minder observer would entertain a reasonable apprehension of pre-judgment in the exercise foreshadowed by reason of the credit findings I have made and their application to the evaluations necessary to the outcome. That question must be resolved here by asking how such an observer would regard my re-determining all of the issues leading to an outcome after hearing further evidence from the wife when I have expressed findings about her credit in the judgment I delivered. Knowing the criticism and with a knowledge of the material facts, in my view the reasonable observer could well conclude I would decide questions of credit or issues of fact on the basis of material I had already considered. This leads me to conclude that I should disqualify myself from further hearing the case by reason of reasonable apprehension of pre-judgment.
I do so mindful of the principle discussed and also the unquestionable undesirability of acceding too readily to such an application. I have also been assisted by a reading of the New South Wales Court of Appeal decision in Australian National Industries Ltd v Spedley (supra) which more directly addressed the issue of pre-judgment where findings had been made by a judge critical of the credit of a party.
It remains to say that I see no merit in the arguments put on behalf of the husband that a disqualification decision would be an impermissible interference with the order of the Full Court which specifically remitted the matter to me for rehearing. Being no argument on the point in the course of the appeal, their Honours were not called upon to consider or evaluate the arguments about it. There is no mechanism provided in the orders, such as liberty to apply, to have the matter referred back to the Full Court for the argument to be had there and I am left to determine the application according to principle as I see it. I am also unpersuaded the doctrine of estoppel has any application to the undoubtedly unusual circumstances confronting me. Without the point being developed in argument I would have thought waiver rather than estoppel might be more apposite, though its application to a situation where the administration of justice is at the heart of the question may well require some further consideration. Even so, and notwithstanding the strong argument put for the husband against the application, I can see no other proper course but to accede to it. Were there some doubt about the outcome – and I see the matter as beyond that - these passages from the majority decision in Ebner [20] might tip the result in this case in any event in the same direction:
‘In a case of real doubt it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification.
and later:
‘This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification.’

Given the long and protracted history this litigation has now built up and the successful appeal, it is appropriate to direct that the rehearing before another judge be expedited. To ensure that occurs, and to have the matter allocated elsewhere the matter will be listed for mention before the case management judge, Le Poer Trench J, to see that occurs expeditiously.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate:

Date: