Hazan &Elias (No 2)
[2011] FamCA 391
•25 May 2011
FAMILY COURT OF AUSTRALIA
| HAZAN &ELIAS (NO 2) | [2011] FamCA 391 |
| FAMILY LAW - COURTS AND JUDGES – Disqualification – Application for disqualification of judge on the ground of apprehended bias arising from prejudgment – where the proceedings were governed by the provisions of Division 12A Part VII Family Law Act – where s 69ZR Family Law Act applies in circumstances where findings have been made – considering Full Court decision where s 69ZR was not raised as an issue |
| Family Law Act 1975 (Cth) |
| Hazan & Elias [2011] FamCA 376 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| APPLICANT: | Ms Hazan |
| RESPONDENT: | Mr Elias |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
| FILE NUMBER: | CSC | 442 | of | 2010 |
| DATE DELIVERED: | 25 May 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 25 May 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fellows |
| SOLICITOR FOR THE APPLICANT: | Lehmann Featherstone |
| SOLICITOR FOR THE RESPONDENT: | Bottoms English |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Victoire |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
Orders
Orders made 25 May 2011
Leave be granted to the father to make an oral application that I disqualify myself.
The father’s oral application for disqualification be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hazan & Elias (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CSC 442 of 2010
| Ms Hazan |
Applicant
And
| Mr Elias |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
I have, by consent, granted the father leave to make an oral application that I disqualify myself.
On 19 January 2011, the father secretly recorded his interview with the family consultant.
On 6 May 2011 I made an order that the recording and transcript of the father’s interview with the family consultant not be admitted into evidence. On 24 May I published my reasons for this decision. I found that the evidence was inadmissible by virtue of s138 Evidence Act 1995 (Cth) (“EA”) as the evidence had been obtained illegally and improperly and, in the alternative by virtue of s 135(c) EA, the admission of the evidence would result in an undue waste of time.
In my reasons I made a number of comments about the father’s behaviour including paragraph 95:
95.On the issue of whether or not the father’s behaviour was improper, counsel for the mother makes the following submissions:
95.1.the father is a solicitor admitted to practice and an officer of the Supreme Court;
95.2.if he were a solicitor acting for a party, there is no doubt that he would be bound by principles of “honesty and fairness” in his dealings with the family consultant (see the statement of general principle appearing in the Legal Profession (Solicitor) Rule (2007) (Qld) at page 29).
95.3.even a litigant in person is required to refrain from conduct during the proceedings which is “dishonest”. Counsel for the wife submits and that an obvious criticism of secret recording is that the person conducting the recording modifies or falsifies their behaviour so as to present her or himself in a better light.
95.4.the father was dishonest with the report writer.
95.5.the other person in the conversation was a court officer conducting a court ordered function.
I accept these submissions.
Further comments that I made about the father’s behaviour include:
[92] …I find that the father contravened that Australian law (rule 1.19 Family Law Rules) when he secretly recorded his interview with the family consultant…
[97] I find that the father has improperly obtained the evidence that he seeks to tender.
[123] I find that the father has unlawfully interfered with the privacy of the family consultant and that the father’s impropriety and contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights.
[125] … The father is a lawyer. It is possible that the breach of a court rule by a lawyer, even when acting as a self represented litigant, might be drawn to the attention of that lawyer’s professional body.
The father’s lawyer submitted that these comments constituted an attack on the father’s credit that would prevent me from hearing further evidence of the father in an unbiased manner. Accordingly, he made an oral application that I disqualify myself for reasonable apprehension of bias. I refused this application for the reasons that now follow.
The first finding referred to above was that the father was dishonest with the report writer. That finding in my view cannot of itself be the basis of me disqualifying myself for apprehended bias in circumstances where the father concedes through his legal representative, that he was dishonest with the report writer in the conversation that took place between the two of them which is recorded on page three of the transcript of the secret interview between the report writer and the father (exhibit 2). As for the other findings that relate to the father improperly obtaining evidence, the improper nature of the obtaining of the evidence flows from that conversation in which the father concedes he was dishonest.
In regards to the father obtaining that recording of the interview in contravention of an Australian law, that turns around my interpretation of various provisions as set out in my reasons. The father indicated that at the time, he thought Australian law allowed him to do what he did. My finding that the father contravened an Australian law makes no finding about whether or not he did so with a guilty intent.
The father’s lawyer took me to well known legal authorities that deal with disqualification of a judicial officer for apprehension of bias. I set out and discuss these authorities and others in Aligante and Waugh (No. 2) [2010] FamCA 554 and incorporate that discussion into these reasons.
The High Court recently in British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429 reaffirmed the basic test discussed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 of a reasonable apprehension of bias by the fair-minded lay observer. In British American Tobacco Australia Services Ltd v Laurie the majority of the High Court were of the view that the trial judge’s express acknowledgment, in the interim decision, that the tested and/or different evidence at the final trial might lead to a different result, was insufficient to save the judge from having to recuse himself.
Division 12A of Part VII of the Family Law Act 1975 (Cth) sets out the basis for conducting child-related proceedings in a less adversarial manner. Section 69ZR FLA provides power to make determinations, findings and orders at any stage of the hearing of child-related proceedings and is in the following terms:
(1) If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c) make an order in relation to an issue arising out of the proceedings
Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2) Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3) To avoid doubt, a Judge, Judicial Registrar, Registrar, Federal Magistrate or Magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
In Aligante and Waugh (No. 2), after a very lengthy defended hearing, I made significant findings, including credit findings, against the mother. Nonetheless, I found I was able to conclude the determination of that case given the provisions of s 69ZR FLA, as the matter was dealt with under Division 12A of the Family Law Act 1975 (Cth). I indicated that absent s 69ZR FLA I would have disqualified myself. I am not sure I would agree with counsel for the mother’s categorisation that my comments in that case are absolutely non-controversial. They have yet to be tested.
The recently published Full Court judgment of Murray & Tomas and Anor [2011] FamCAFC 81, at first blush, would seem to place doubt over my reasoning and conclusion in Aligante and Waugh (No. 2). However, it is not clear to me from a reading of Murray & Thomas, that it was a case which was heard under the current Division 12A. I note the Full Court did not refer to Division 12A in their reasons, and certainly the provisions of s 69ZR FLA were not considered in their reasons and I infer not argued during submissions.
Given that Aligante and Waugh (No. 2) was a decision relying upon s 69ZR FLA, and it is not clear the Full Court in Murray & Thomas considered that section, it is my view that the Full Court’s decision in Murray & Thomas does not compel me to disqualify myself for apprehended bias in Division 12A cases.
I therefore rely on what I said in Aligante and Waugh (No. 2) regarding disqualification for apprehended bias arising out of interim findings. I find that the nature of the findings I made in the reasons of 24 May 2011 do not otherwise require me to disqualify myself and I decline to do so.
I certify that the preceding fifteen (15) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 25 May 2011.
Associate:
Date: 27 May 2011
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