Hillier & Wootton
[2013] FamCAFC 11
FAMILY COURT OF AUSTRALIA
| HILLIER & WOOTTON | [2013] FamCAFC 11 |
FAMILY LAW – APPEAL – DISQUALIFICATION OF TRIAL JUDGE – Where the husband appeals from a decision of the Federal Magistrate dismissing an application that his Honour recuse himself for reasonable apprehension of bias – Where the proceedings concerned an application by the wife in relation to a binding financial agreement entered into by herself and the husband post-separation – Whether a reasonable apprehension of bias arose from the conduct of the Federal Magistrate during the trial – Where the impugned conduct occurred on the second day of the hearing after the wife had been sworn in as a witness – Where the Federal Magistrate asked counsel for the wife whether the literature and case law regarding “battered wife syndrome” was part of the wife’s case – Where the question was asked in the express absence of the parties – Where the wife’s counsel replied in the affirmative – Where one of the grounds on which the wife sought to set aside the agreement was duress, which included serious allegations of family violence – Where the wife had filed an “Outline of Contentions” one month before the hearing – Where lengthy discussions were had between counsel and the Federal Magistrate on the first day of the hearing as to what would be the issues in the case – Where nowhere in the expert evidence of the wife was the syndrome raised – Where counsel for the husband made the disqualification application immediately after the conversation between counsel and the Federal Magistrate – Where the Federal Magistrate characterised the exchange as no more than an “inquiry” seeking “clarification” of the case and therefore part of frank “dialogue” recognised by the High Court – Appeal allowed – Federal Magistrate disqualified from further hearing the proceedings between the parties in relation to the financial agreement.
| Family Law Act 1975 (Cth) ss 90G, 90K Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 |
| Antoun v The Queen (2006) 224 ALR 51 Ian Leader-Elliott ‘Battered But Not Beaten: Women Who Kill in Self Defence’ (1993) |
| APPELLANT: | Mr Hillier |
| RESPONDENT: | Ms Wootton |
| FILE NUMBER: | CAC 2423 of 2007 |
| APPEAL NUMBER: | EA 117 of 2012 |
| DATE DELIVERED: | 15 February 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Finn, May and Strickland JJ |
| HEARING DATE: | 25 October 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 September 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1045 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Newlinds SC |
| SOLICITOR FOR THE APPELLANT: | Somerville Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Livingstone |
| SOLICITOR FOR THE RESPONDENT: | Armstrong Legal |
Orders
The appeal EA 117 of 2012 be allowed.
The order of Federal Magistrate Neville made 18 September 2012 be set aside.
Federal Magistrate Neville be disqualified from further hearing the proceedings between the husband and the wife in relation to a financial agreement entered into on 31 May 2007.
The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hillier & Wootton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 117 of 2012
File Number: CAC 2423 of 2007
| Mr Hillier |
Appellant
And
| Ms Wootton |
Respondent
REASONS FOR JUDGMENT
Finn and Strickland JJ
This is an appeal by Mr Hillier (“the husband”) against an order made by Neville FM on 18 September 2012 whereby his Honour refused an application made by the husband that his Honour disqualify himself from further hearing proceedings between the husband and Ms Wootton (“the wife”). Such an appeal can be brought as of right because of the provisions of s 94AAA(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) and does not require leave (as was suggested before us notably in the written outline of argument of the respondent wife).
The context in which the husband’s disqualification application was made and refused is fully explained in the reasons of May J. But essentially the disqualification application was made and refused on the second day of a hearing by the Federal Magistrate of an application by the wife in relation to a financial agreement entered into by herself and the husband on 31 May 2007.
The wife’s application as it came before the Court for hearing, was for a declaration that there was no financial agreement between the parties which was binding for the purposes of s 71A of the Act for the reason that the wife had not received the independent legal advice required under s 90G of the Act; or alternatively, that if there was a binding financial agreement, it be set aside by an order under s 90K of the Act.
The grounds on which the wife sought the setting aside of the agreement, as set out in an outline of contentions filed on her behalf prior to the hearing before the Federal Magistrate, included the ground that the agreement was “void and/or voidable as a result of duress”. The particulars of this ground as contained in the outline of contentions were in the following terms:
7.The Agreement is void and/or voidable as a result of duress, in that:
7.1the husband had engaged in a history of violent, threatening and intimidatory conduct directed to the wife from approximately 2001 and throughout the parties relationship to the date of signing of the Agreement; and,
7.2the husband assaulted and threatened the wife on numerous occasions in the months preceding the signing of the Agreement;
which conduct had the effect of compelling and/or persuading the wife to enter into the Agreement and which conduct the husband intended and/or was aware would have such effect upon the wife.
In an affidavit by the wife (filed 27 August 2012) she set out under the heading “History of emotional, verbal and physical abuse”, allegations against the husband of such abuse. The wife also relied in support of this aspect of her case on affidavits from a general practitioner, Dr B and a psychologist, Ms M.
The first day of the hearing was largely taken up with discussions between the Federal Magistrate and both counsel as to what would be the issues in the case. On the second day at a time when an adjournment was taken during the cross-examination of the wife, his Honour asked counsel for the wife “whether or not the literature and case law regarding ‘battered wife syndrome’ is part of the landscape.” This question was asked in the absence of the parties, but in our view, that fact has no significance for present purposes.
As will be seen from the passages of the transcript set out in the reasons of
May J, counsel replied to this question in the affirmative and went on to tell
his Honour that he intended, before the cross-examination of the (wife’s) experts, to identify literature to which, he would suggest, his Honour should have regard, with his Honour then making reference to the High Court decision of Osland v The Queen (1998) 197 CLR 316 (Osland) and to two articles in law journals. (That decision and the two articles are concerned with issues in the criminal law).
However, counsel for the wife also informed his Honour that he “had not anticipated, nor…thought about any evidence of an expert nature outside of” Ms M or Dr B. (The evidence of those two experts was not of the type required by Osland in order to establish “battered wife syndrome”).
The adjournment was then taken, and when the Court resumed, counsel for the husband made an oral application for his Honour to disqualify himself from further hearing the case on the basis of apprehended bias.
The submissions then made by counsel in support of that application and
his Honour’s immediate responses are in large part set out in the reasons of May J. It is sufficient here to say that counsel’s contention was that the discussion which had occurred before the adjournment (in which his Honour had referred to the literature and case law regarding “battered wife syndrome”) was “outside the case that [had] been contemplated by the wife by way of…her own evidence or the evidence…of a medical nature [on] which she relies” and went “to the very contention of duress that was part of the wife’s case in order to challenge…the financial agreement….”
Counsel went on to raise some other matters in support of the disqualification application but these matters are not relied on in the appeal. In concluding his submissions in support of the application, counsel explained the essential complaint, which is still pursued, in the following way:
…There is simply not a scintilla of reference in any of the material to a contention as to capacity being impaired some way because of a syndrome being the subject of some psychiatric or other medical diagnosis and finding.
Those matters have originated, with respect, from your Honour, not from the evidence and it’s that particular position, how rhetorically, the person sitting in the back of the court will think, “Well, where has that come from?” because it’s not part of the case. It’s not promoted in the case. The evidence doesn’t say or doesn’t suggest that there has been that syndrome suffered, but it has come from somewhere and it has come from the bench. And it has come from the bench in circumstances where the cross-examination of the mother is only part completed, and there has been – I say again, and I shouldn’t repeat myself, but not a skerrick of evidence in the wife’s case concerning that particular diagnosis or disability. (Transcript 18 September 2012, p. 176, lines 21-34).
After a short adjournment, his Honour dismissed the disqualification application, and delivered some oral reasons at the time. However, he reserved the right to revise his reasons and subsequently on 2 October 2012 published his revised reasons.
Again in her reasons for judgment May J has explained at length his Honour’s reasons as they appear in their revised form. It is only necessary here to say that having undertaken a detailed analysis (which was unchallenged before us) of High Court authority in relation to the disqualification of a judicial officer on the grounds of apprehended bias, his Honour can be read as concluding that his raising the question as to whether “battered wife syndrome” was part of the wife’s case, was no more than an “inquiry” seeking “clarification” of the case, and thus part of the frank “dialogue” between Bench and Bar recognised by High Court decisions such as Vakauta v Kelly (1989) 167 CLR 568, 571 and Johnson v Johnson (2000) 201 CLR 488, 493.
In his submissions in support of the appeal, senior counsel for the appellant accepted that his Honour’s question was indeed an inquiry. But senior counsel’s complaint was that against the background of the previous day’s discussions between his Honour and counsel as to what were the issues in the case, this inquiry amounted to “a judicial hint” in the sense that it appeared as if his Honour was “seeking to inject” an issue which was not an issue, and in relation to which there was not the required expert opinion. (Appeal Transcript,
p. 31-32).
Thus it was submitted that a “reasonable objective observer would come to the conclusion that [his Honour] had become partisan towards the wife’s interest in what is a very serious case” given the allegations made and “the consequence of undoing an agreement.” (Appeal Transcript, p. 36). It was this consideration which, as we understood the submissions of senior counsel, would attract our intervention on the basis of apprehended bias, although, and again as we understood the submissions, it was conceded that none of the existing authorities on that topic could be said to be exactly on point, and in senior counsel’s words, this decision would turn “on a pin.” (Appeal Transcript,
p. 33).
In our view, this case is indeed borderline as to whether his Honour’s question was no more than a valid query made to assist him understand the wife’s case, or whether the reasonable and properly informed observer would understand the question as being one which was designed to assist the wife’s case thereby leading to a perception of partiality on his Honour’s part towards her case and an apprehension that the case would not be decided impartially.
The fact that shortly after raising the question of whether “battered wife syndrome” formed part of the wife’s case, his Honour made reference to the High Court decision in Osland and to two journal articles on the subject (although it seems that he had not yet looked at any of those articles) might be seen, in our opinion, as adding to the impression that his Honour was seeking to expand the wife’s case into a new and hitherto unintended area.
The task of deciding this matter is complicated by the fact that, as was common ground before us, his Honour was, with respect, wrong as a matter of law in suggesting that “battered wife syndrome” as it is known to the criminal law could have a role in the Family Law Act proceedings then before him. That Act certainly contains a heavy emphasis on what is now termed “family violence”, but neither the expression, nor the concept of, “battered wife syndrome” have been to date employed, at least to our knowledge, in the application of the Act. But it must also be remembered, as was also common ground before us, that an error of law on the part of a judicial officer does not constitute a ground for disqualification, but rather is a ground of appeal against a decision reached on the basis of the error.
Nevertheless, and leaving to one side the scope of the law relating to “battered wife syndrome”, we are concerned that use of the expression could itself carry an implication or impression of partiality towards a party to proceedings who has raised in support of his or her case, allegations of violence against the other party. Accordingly, and on balance, we agree with May J that his Honour should be disqualified from further hearing the proceedings between the husband and the wife on the basis of apprehended bias.
We also agree that there should be no order for costs in favour of either party and that each should receive the appropriate certificate under the Federal Proceedings (Costs) Act 1981 (Cth) with respect to their costs incurred in the appeal.
May J
This is an appeal from a decision of Federal Magistrate Neville dismissing an application to disqualify himself on the basis of apprehended bias. The primary issue for determination in the appeal is whether a reasonable apprehension of bias arose from the conduct of the Federal Magistrate during the trial.
The impugned conduct consisted of comments and inquiry, initiated by the Federal Magistrate on the second day of trial. As will be explained, the dialogue between the Federal Magistrate and counsel for the parties took place in a semi-closed court, and included an inquiry by his Honour whether “battered woman syndrome” formed a part of the wife’s case. In essence it is argued that by his conduct the Federal Magistrate could, in the context of this case, be reasonably apprehended to have sought to assist the wife’s case, such that a fair-minded lay observer might reasonably apprehend that his Honour might not bring an impartial and unprejudiced mind to the resolution of the case.
The proceedings between the parties commenced with an initiating application of the wife, seeking to set aside a binding financial agreement dated
31 May 2007. It was on 18 September 2012, the second day of the trial proceedings, that the application for disqualification was made orally by the husband’s counsel. That day the Federal Magistrate dismissed the application with short oral reasons. The husband filed a notice of appeal on
19 September 2012. Written reasons were then published on 2 October 2012. The appeal was brought on for urgent hearing before us on 25 October 2012.
I note that senior counsel for the husband placed considerable emphasis on the manner in which the wife’s case was framed and defined. As will be seen,
I accept that the nature of the proceedings, together with the evidence in support of the wife’s case, and the timing in which the Federal Magistrate’s comments were made, are significant factors in determining the appeal.
Although it was contended on behalf of the respondent wife that leave to appeal is necessary, I do not take that view. Thus, I will consider the relatively narrow question of whether the Federal Magistrate was wrong not to recuse himself in these circumstances.
Background
As the issue for determination in the appeal is discrete, it is unnecessary to set out at length the factual background. I note however the following points in the litigation history, which provide some context to the appeal.
The parties commenced cohabitation in June 2001, married in January 2002, separated in February 2007 and divorced in May 2008. The parties entered into a binding financial agreement (“the BFA”) on 31 May 2007, after separation.
On 7 October 2011 the wife filed an initiating application in the Federal Magistrates Court, seeking a declaration that the BFA was void, and in the alternative orders to set it aside based on s 90K of the Family Law Act 1975 (Cth) (“the Act”).
The wife subsequently filed an amended initiating application on
8 February 2012. In addition to the orders sought in her initiating application, the wife sought leave to commence proceedings for property settlement, and orders that the net assets be divided equally between her and the husband.
Prior to the commencement of the trial, a conflict of interest issue arose in relation to the wife’s solicitors. The husband filed an application on
3 April 2012 seeking that the solicitors be restrained from acting for the wife. The husband also sought particulars of the grounds, the evidentiary facts and circumstances upon which the wife relied as the basis for setting aside the BFA.
That the husband strongly contested the wife’s claims and denied her serious allegations made against him, including family violence, is an important ingredient in appreciating the nature of this case as it came to be heard before the Federal Magistrate.
It was explained at the appeal hearing that the issue in relation to the wife’s solicitor was ultimately resolved by a consent order made on 14 August 2012. As a consequence, however, the proceedings were somewhat delayed. The balance of the husband’s application was not formally dealt with by the Court.
On 17 August 2012, prior to the trial, the wife served an “Outline of Contentions” document (formally filed on 14 September 2012). Therein, the wife contended the BFA was not an agreement which operated to preclude a claim under Part VIII of the Act, on the basis that she did not receive the requisite advice under s 90G(1)(b).
In the alternative, the wife contended that the BFA ought be set aside pursuant to the provisions of s 90K on the basis that it was void, voidable, or unenforceable by reason of misrepresentation, or as a result of duress (common law) or undue influence, or that it ought not be enforced as a result of unconscionability or material change in circumstances since the making of the agreement. The document also contained a statement that, “[t]he wife reserves the right to amend, including by expanding, these contentions upon the husband attending to compliance with his obligations of disclosure”.
The final paragraph of the document stated that the evidence in relation to each of the contentions was to be filed and served in accordance with directions of the Court by 27 August 2012, but that the husband may have regard to the affidavit of the wife filed 7 October 2011 as “outlining (non-exhaustively) the facts relied upon”. The wife subsequently filed three affidavits: her own trial affidavit, and affidavits by two different treating psychologists.
The husband’s trial affidavit was filed on 30 August 2012. In his reasons for judgment in the disqualification application, the Federal Magistrate noted that this affidavit did not address any matter in the wife’s trial affidavit, and that this was never explained nor explored. The husband’s affidavit did though address the wife’s affidavit of 7 October 2011.
On 6 September 2012 a directions hearing was held before the Federal Magistrate. His Honour noted in his reasons for judgment that no objection or other issue was taken at that hearing, to the Outline of Contentions document served by the wife on 17 August 2012. As senior counsel for the husband correctly observed, no complaint was made at that time that the claim was unparticularised, or that the matter was going to proceed in an unfair manner.
On the first day of the trial, counsel for the husband indicated an adjournment may be sought as the wife’s case had apparently fundamentally changed. Counsel raised the necessity for the wife to seek leave to expand the grounds relied upon, but counsel for the wife indicated that no application to amend was required. It became apparent though that the case could not be concluded within the three days originally allocated and an adjournment would be necessary in any event. Thus, the trial commenced and counsel for the husband conceded that any risk of prejudice to the husband in meeting a changed case could be remedied during the period of the adjournment.
In explaining the wife’s position, her counsel submitted to the Federal Magistrate that the factual evidentiary basis upon which the wife’s case was based had been presented to the husband in the wife’s affidavit of
7 October 2011, and that the particulars of her claims had been communicated in the Outline of Contentions document served the month before. Counsel confirmed, in effect, that the full extent of the wife’s case was now before the Court, and known to the husband.
In the following excerpts from the transcript of proceedings, the husband’s counsel will be referred to as Mr C and the wife’s counsel as Mr K.
The hearing continued and the remainder of the first day was directed to objections to evidence. At the commencement of the second day, the wife was sworn in as a witness. After a morning adjournment, the Federal Magistrate said this (Transcript 18 September 2012, page126, lines 40-47):
HIS HONOUR: Just while I have the floor, so to speak, I was wondering if I might, just before we break for lunch, if I could just have a quick word just to the lawyers by themselves.
[MR C]: Certainly.
HIS HONOUR: Thank you. For the parties, there’s nothing sinister in me speaking to the lawyers together…
As the lunchtime adjournment was called, his Honour asked everyone except the parties’ barristers to leave the Court room. His Honour first raised with counsel two procedural matters, then asked the question which forms the basis of the impugned conduct in this appeal. His Honour said (Transcript
18 September 2012, page 168, lines 35-38):
HIS HONOUR: The matter of – more by way of question, that’s all – is given the range of evidence and the nature of it – and this is really more a question for you, [Mr K] – is whether or not the literature and the case law regarding “battered wife syndrome” is part of the landscape.
(emphasis added)
Most unfortunately, in my view, counsel for the wife opportunistically responded, as is seen in the following excerpt from the transcript
(18 September 2013, page168, line 40 – page 169, line 3):
[MR K]: Your Honour sees me chuckle for no reason other than again it was something that – well, the shorter answer is yes. The answer to it is that there’s obviously debate as to how that’s most appropriately approached. I intend amongst other things, and certainly before [Mr C’s] cross-examination of what I will broadly call the experts, identify for your Honour that literature that I would be suggesting your Honour would have regard to. And some of it has usefully been canvassed recently by Benjamin J and the Full Court, for example. But I’m sure your Honour will before that stage of the proceedings identify anything that either your Honour might have regard to or equally, that I haven’t notified to your Honour. So long-winded answer – I’m catching [Mr C’s] disease a little bit, but the answer is yes.
His Honour then immediately identified the case and literature references of which he was apparently aware in this regard. Counsel for the wife gave some response, as can be seen from this exchange in the transcript
(18 September 2012, page 169, lines 5-20):
HIS HONOUR: No, thank you. I haven’t started going back over any of the “literature” or the case law save obviously subject to this discussion, obviously the High Court in Osland; Leader-Elliott’s article (1993) 15 SLR; Ian Freckelton’s article in the 1994 Criminal Law Journal – they’re the only ones that at least I’ve sorted of tagged. I haven’t looked at them in any shape or form. That’s really as far as I’ve – but ---
[MR K]: Look, I will get you, and I’m happy to get Mr [C], certainly the decision that just immediately eludes me – it’s been too long a morning – of Benjamin J reconsidered by the Full Court where there was a fairly useful review of some of the literature, including some by a [sic] academic…I will take your Honour to it.
HIS HONOUR: Yes. No, no. But again, I thought it was important (a) to raise it…..and (b) but to do so in the absence of the parties at the very least…..
His Honour did not otherwise explain why he took the extraordinary step of excluding the parties.
Counsel for the wife made a brief reference to expert evidence, saying (Transcript 18 September 2012, page 169, lines 29-35):
[MR K]: And your Honour, I had not anticipated, nor had I thought about any evidence of an expert nature outside of Ms [M] and the general practitioner, and what’s contained in their material.
HIS HONOUR: No, no. I didn’t understand that there was to be such, but--
[MR K]: All right, thank you.
The significance of this interchange relates to the expert evidence filed in the wife’s case. It is sufficient at this point to observe that nowhere in that expert evidence was there reference to “battered wife syndrome”.
The matter was adjourned for the lunchbreak, and immediately upon return the husband’s counsel made the oral application for disqualification. Counsel explained that application to his Honour in this way (Transcript
18 September 2012, page 170, lines 24-37; page 173, lines 16-24):
[MR C]: …Your Honour, the exchange that occurred just prior to lunch, albeit without the parties, but recorded on the transcript, raised an aspect in the proceedings that are applicable, I would submit, directly in relation to any contention as to duress that it hasn’t formed part of the evidentiary landscape at all.
The discussion occurred outside the case that has been contemplated by the wife by way of her evidence, whether it be her own evidence or the evidence of that of a medical nature to which she relies, and goes, in my respectful submission, to the very contention of duress that is part of the wife’s case in order to challenge the effect of the financial agreement and to otherwise have it set aside. In circumstances where those particular matters did not form part of the wife’s case, nor did they form part of the evidence that was contained even in her contentions, there are other threads we would submit that, coupled together if that not sufficient in itself, to ground the application to support the apprehension that’s contended.
…
…I concede that exchange between the bar table and the bench can and should be robust. However, comments made that enable counsel to engage with the bench to ascertain thoughts that are ruminating from the bench are very different when those particular areas for discussion or exchange on a preliminary basis are found within the case that is presented and the foundations for this application is that the exchange that occurred prior to the luncheon adjournment in the absence of the parties had an entirely – had an entire foundation in evidence that doesn’t form part of the case. Never did, hasn’t thus far, doesn’t form part of the contentions.
The Federal Magistrate sought to clarify his comments in the exchange, and the husband’s counsel reaffirmed his position in the application. His Honour conceded that his inquiry had been whether battered wife syndrome was intended to be part of the wife’s case (Transcript 18 September 2012, page 175, lines 22-33; page 176, lines 3-13):
HIS HONOUR: Sorry. Sorry to interrupt there but that I fear that that’s a slight misinterpretation. I thought I had asked whether or not that particular syndrome was intended to be part of the case in any shape or form, and that’s why I put the question to you in your initial comments on the application. That I had understood it, that I had asked it as a question because I didn’t know. But it was not stated as a ruling. It was simply posed as it is now. It was nothing more than a question, an inquiry.
[MR C]: …If your Honour is correct in relation to it being a consideration or an inquiry, again, it is not a consideration or inquiry that arose within the landscape of evidence and contentions that were presented to your Honour at the commencement of this case.
…
…[I]t’s the fact of that inquiry, if that’s what it was, and the way in which it was progressed and promoted, we would say, leaves the fair minded lay observer to reasonably apprehend that that was a course that your Honour had taken in relation to this particular duress issue and what I did, perhaps ineloquently, in my earlier submissions, was to couple that particular exchange, which we say would be sufficient to ground the disqualification application with the thread of events that had occurred, both in the shadow of the trial, in the week leading up to the trial, by way of the email which specifically went to one of your Honour’s decisions about duress in relation to a section 79A context, but also in relation to the overall tenor, import and effect of what was a lengthy exchange yesterday concerning the contentions.
(emphasis added)
The other “threads” referred to by counsel for the husband were not matters raised or pressed in the appeal. Senior counsel confirmed that the appeal “turns on a pin”, in relation to the in Court exchange between the Federal Magistrate and counsel for the wife about battered wife syndrome.
The Federal Magistrate dismissed the application that day with short reasons. Counsel for the husband immediately indicated that he had instructions to file an appeal the following day, and made a further oral application for a stay of the order. His Honour granted a stay pending determination of this appeal and the matter was adjourned.
The Appeal
The husband filed a notice of appeal on 19 September 2012. The notice contains three grounds of appeal:
That His Honour erred in failing to find that a fair minded lay observer might reasonably apprehend that he might not bring an impartial mind to the resolution of the matter.
That His Honour erred in failing to disqualify himself having pre-determined an issue in the proceedings as to “battered wife syndrome” when no such issue had been raised by the wife.
That His Honour erred in failing to recognise in adversarial proceedings that an action by suggesting that Counsel should give consideration to an issue at trial that by its nature could only assist one of the parties conveys to the reasonable observer an apprehension that His Honour was pre-disposed to determine.
If the appeal is successful, the husband seeks orders that the Federal Magistrate be disqualified from further hearing the proceedings, and that the matter be heard by another Federal Magistrate, or alternatively be transferred to the Family Court. Counsel confirmed at the appeal hearing that the matter was listed in the Federal Magistrates Court for a directions hearing on
26 November 2012, and the remainder of the trial listed for five days from
18 March 2013.
Relevant Legal Principles
The legal principles applicable to reasonable apprehension of bias are well known and have been recently reaffirmed by the High Court in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427. The husband did not cavil with the Federal Magistrate’s identification of the legal principles, but rather his Honour’s application of those principles to the circumstances in this case.
As there was no issue about the correct principles to be applied I regard it unnecessary to refer at any length to the relevant decisions of the High Court, other than the well known excerpts from the following decisions demonstrating the development of the law in this respect.
In Johnsonv Johnson (2000) 201 CLR 488, their Honours Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ summarised the test to be applied in cases in Australian courts where apprehension of bias is claimed
(at page 492):
11 … It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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 [eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41].
The specific two-step inquiry to be applied upon such claim being made was explained by Gleeson CJ, McHugh, Gummow and Hayne JJ in the subsequent case of Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group Ltd (2000) 205 CLR 337 (at page 345):
8 … 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. …
The rationale for the description of the fair-minded lay observer and explanation for the test was explained by their Honours in Johnson (at pages 492-493):
12.…It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial” .
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(footnotes omitted)
As will be seen under the heading Reasons of the Federal Magistrate, considerable reliance was placed by his Honour on the decision of the High Court in Michael Wilson, as it might be applied in this case. While the Federal Magistrate was correct to note that the case involved “complex factual and procedural circumstances” (paragraphs 37 and 41 of the Federal Magistrate’s reasons), the nature of those proceedings and the involvement of the judge were entirely different to the present case.
Stated briefly, the Michael Wilson case was a commercial dispute involving serious allegations of breach of fiduciary duties. The trial judge heard and determined several interlocutory applications, made ex parte by the company Michael Wilson & Partners Limited, in their favour. Those applications were heard in a closed court and confidentiality orders were made about the conduct of the applications.
Two of the former employees of the company, being some of the defendants, unsuccessfully applied on two occasions to the judge that he recuse himself. After the judgment was delivered in the substantive proceedings, the former employees sought a new trial on the basis that the judge should have recused himself.
The plurality of the High Court rejected this claim and gave the following reasons (at pages 447-448):
69.Here, however, it was said that “the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern”. That concern was identified as the possibility “in such circumstances that the judge’s mind will become familiar with the character of the plaintiff’s case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure” (emphasis added). But the existence of a “concern” described as the possibility of placing the evidence led at trial into a “pre-existing mental structure” does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
70.The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. It may well be that the directions not to disclose material should not have been left in force for as long as they were. Perhaps they should not have been made at all. But if their making or the failure to limit their duration was wrong, that did not found a reasonable apprehension of bias.
…
72.In none of the applications was Einstein J required to make, and in none of the applications did he make, any determination of any issue that was to be decided at trial. Einstein J did decide that the disclosure affidavits could be made available for use in applications made to another court (for freezing orders and appointment of receivers) and for use by investigating authorities in other countries. And he decided that the proceedings which yielded those orders and the orders themselves should not be disclosed to the present respondents. But in none of the applications was it necessary for Einstein J to make any finding about the reliability of any party or witness, and in none did he make such a finding. Nor was Einstein J required to make any choice between competing versions of events. All that was required, and all that was found, was that there was apparently credible evidence of a sufficient risk of dissipation of assets to warrant making the confidentiality orders that were made.
(footnotes omitted)
In dismissing the appeal against the judge’s failure to recuse himself, it is apparent that the High Court regarded of some significance that the issues in the trial were unrelated to the issues in the interlocutory applications in which the impugned conduct in that case was related to. Those circumstances are clearly distinguishable from this case, where the subject of the impugned conduct was directly related to a primary issue in the trial.
We were also referred by counsel to an earlier decision, Galea v Galea (1990)
19 NSWLR 263, where Kirby J A-CJ reviewed various authorities and identified guidelines for considering whether or not excessive intervention by a trial judge may amount to a reasonable apprehension of bias.
Reasons of the Federal Magistrate
As earlier explained, on 2 October 2012 the Federal Magistrate delivered in written format extensive reasons for judgment for dismissing the husband’s application.
His Honour set out at length the procedural history of the litigation leading to the commencement of the hearing and the making of the application. I have repeated the relevant history in the Background section of these reasons.
His Honour then turned to consider the well established principles in relation to apprehension of bias as pronounced by the High Court, referring to Antoun v The Queen (2006) 224 ALR 51, Re JRL; Ex Parte CJL (1986) 161 CLR 342, Johnson and in particular the recent case of Michael Wilson. As was emphasised by senior counsel for the husband at the appeal hearing, the husband does not cavil with the legal principles identified by
his Honour, but rather the application of those principles to the facts and circumstances of the case.
The Federal Magistrate prefaced his discussion and conclusion of the legal principles with the following statements:
41.In addition to what is said below, I simply observe that, (a) accepting that each case turns on its own facts, and (b) on a comparative basis only, if the High Court found no ground to sustain an allegation of apprehended bias in the complex factual and procedural circumstances in Michael Wilson, where there had been many interlocutory rulings in favour of one party and in the absence of the other party, the facts and circumstances in this case suggest that the application for disqualification, based primarily on a single inquiry posed to both Counsel and a very brief discussion that followed, and where allegations of domestic violence and abuse have been highlighted since October 2011, respectfully, is misconceived.
The Federal Magistrate concluded that the impugned conduct was a “frank inquiry” to be viewed as an attempt at “further clarification”. His Honour said that to be concerned by the conduct would require a relevant observer to be “unduly sensitive and suspicious”. His Honour clearly believed his questions and comments to counsel to be a reasonable inquiry as to the parameters of the wife’s case, on the second day of a minimum five day trial. His Honour said:
42.By way of summary, and in the light of the authority to which I have referred, I note the following.
43.The inquiry to Counsel about a particular syndrome was nothing more than that – an inquiry. It was a frank inquiry. According to the High Court in Vakauta v Kelly, Johnson, and Antoun, ‘frank dialogue’ is not a ground for disqualification. Nor, according to Johnson, is robust exchange, per se, a ground for disqualification.
44.Given how much of the hearing had been taken up with earnest dialogue over the parameters of the issues in dispute, the Court’s inquiry should properly be seen as an attempt at further clarification of the metes and bounds of the trial. So viewed, the inquiry was both unexceptional and unexceptionable.
45.Also in Johnson, the High Court cautioned against the reasonable, fair-minded bystander being complacent on the one hand, or unduly sensitive or suspicious on the other. Respectfully, the concern expressed by learned Counsel for the Husband in relation to one or all of the three matters that he says concern him, and should (in his view) concern the reasonably well-informed, fair-minded lay observer, in my view, is ill-founded. To be so concerned about the matters alleged would require the relevant observer to be ‘unduly sensitive and suspicious.’ Such an observer, according to the High Court’s clear instruction about relevant character traits, has a necessarily jaundiced view of matters, and therefore cannot be said to be ‘fair-minded’ in the requisite sense or to the requisite degree.
46.As I apprehend his substantive submission, it is said that the concern of the Husband is that by raising a question about whether ‘battered wife syndrome’ is, in any way, part of the Wife’s case (and, to interpolate, I accept that (a) the syndrome had not previously been raised in affidavit material, or (b) in Counsel’s Outline of Contentions but (c) a significant history of emotional, verbal and physical abuse against the Husband had long been alleged), that question alone either unfairly prejudiced the Husband or unfairly favoured the Wife. Using the terminology of the High Court in Michael Wilson, and accepting that learned Counsel for the Husband was unaware of that decision, it might further be said that in making that inquiry, there was a risk that the Court, consciously or subconsciously, might place or have a tendency to place the evidence “within the pre-existing mental structure” of ‘battered wife syndrome.’
47.If it be argued that there is such a risk, the High Court plainly said in Michael Wilson, at [69], that
… the existence of a "concern" described as the possibility of placing the evidence led at trial into a "pre-existing mental structure" does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
48.Any analysis of the relevant connection between the conduct asserted (posing a question to Counsel) and the possibility or apprehension of pre-judgment could not, in my view, satisfy the fair-minded lay observer, and who is not unduly sensitive or suspicious, that there is any basis for a claim of apprehended bias.
49.Further, and as previously stated, the fact that so much of the trial had been taken up with seeking to define the precise parameters of the matters in issue, and in circumstances where, since October 2011 in relation to the substantive application issues of domestic violence and abuse had been detailed to support grounds of, among other things, duress, it was more than reasonable for the Court to seek further clarification from the party who relied upon such allegations.
…
51.In relation to both of these grounds – inquiries about (i) battered wife syndrome, and (ii) the factual basis for claims on the grounds of duress, undue influence and unconscionable conduct – are, and remain, subject to evidence and submissions. Nothing was or has been foreclosed. Kirby J in Johnson confirmed that ‘views change.’ Here there has been no expression of any view; only an inquiry made. Nor has there been any challenge to any evidentiary ruling. At such an early stage in the proceeding, there have been no other relevant rulings.
52.For the disqualification application to succeed on the basis of an inquiry (or two), would lead to a conclusion that (a) no questions could or should be asked during the hearing, and or (b) a Sphinx-like disposition be maintained during the course of the trial (to use the terminology of the High Court in Johnson at [13]). Both such courses would be and remain contrary to the High Court authority cited.
…
54.In my view, it would be a curious if not troubling case if, on the one hand, a party complained vigorously about the unknown ambit and or the alleged fluidity of the case to be met, but on the other hand, the same party sought to discharge the judicial officer hearing it on the ground that he also asked a question that had the same object – namely, to clarify with as much precision as possible the scope of the issues to be determined and the grounds upon which they were made. Moreover, to state what is hopefully obvious: (a) the oral evidence was scarcely underway when the disqualification application was made; (b) there remains much evidence to be explored and tested; and (c) there has been no foreclosure in relation to either evidence or submissions.…
55.Finally, it is important to recall the following comments from the plurality judgment in Johnson, where it was said, at [13] (internal citation omitted) (emphasis added):
At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(original emphasis)
Discussion
In written submissions and at the hearing before us, senior counsel for the husband sought to place much emphasis on the context in which the impugned conduct of the Federal Magistrate occurred. The thrust of the husband’s argument is that in the circumstances of this case, his Honour’s comments and inquiries could be reasonably interpreted as assisting the wife’s case to the point of injecting a new issue into it, thus calling into doubt the Federal Magistrate’s impartiality in hearing and dealing with the trial.
The setting and context of the exchange between his Honour and counsel were identified by senior counsel for the husband as comprising the following factors:
3.1.1The legitimate issues raised on behalf of the husband at the commencement of the hearing as to the change in nature of the wife’s case (transcript 3-24);
3.1.2The extremely serious nature of the allegations of duress and unconscionability;
3.1.3The even more serious specific nature of allegations of physical assault;
3.1.4Properly characterised, these proceedings are truly adversarial;
3.1.5Directions had long since been made for the filing and service of evidence and no evidence had been served or foreshadowed by the wife of an expert or other nature supporting any case based on an allegation of “battered wife syndrome”;
3.1.6The request for orders for particulars that had been filed by the husband but not dealt with by the Court;
3.1.7The fact that the cross examination of the wife was well advanced;
3.1.8The fact that the Magistrate’s query was raised in the absence of the parties;
3.1.9The fact that the Magistrate displayed more than a passing familiarity with the topic and had clearly “tagged” various specific cases and articles.
Senior counsel for the husband accepted that if we find the exchange between the Federal Magistrate and counsel to have been merely frank dialogue, an inquiry or clarification of the issues, then the appeal must fail. It was submitted however that, taken in context, the exchange characterised by his Honour as an “inquiry” ought be reasonably seen by the hypothetical objective observer as the Bench offering assistance to the wife by way of a suggested case theory.
In relation to “clarification”, the Federal Magistrate said at paragraph 41 of his reasons for judgment that the exchange was not inappropriate, because allegations of family and domestic violence had been apparent in the wife’s case and on her evidence since October 2011.
Senior counsel for the husband emphasised the lengthy discussions which took place on the first day of the trial, and the objections then raised by counsel for the husband concerning the parameters of the wife’s case. It is suggested that in the context of these factors, there could have been no need for further clarification, inquiry, or dialogue in relation to the parameters of the wife’s case, at least insofar as new or further claims were to be considered.
It was submitted for the husband that the cases referred to by the Federal Magistrate in his reasons for judgment speak in terms of clarification or narrowing of issues. Senior counsel sought to distinguish his Honour’s exchange from such clarification or narrowing of issues, which are open on the facts or evidence before a Court. His Honour’s exchange, it is submitted, was akin to suggesting to a party (the wife) that they ought expand the case, by adding a new issue or claim.
The submission that battered wife syndrome was not open on the evidence put before the Court by the wife is of some significance. To raise battered wife syndrome in this case would necessarily have involved compelling and further evidence from the wife and suitably qualified experts. Yet the evidence was closed subject to the wife and her witnesses being cross-examined.
The impression created by his Honour, it is said, is that he thought battered wife syndrome was something which fitted with the evidence, or that he would likely allow the wife, upon application, to change her case and call evidence in that regard. Consequently, it is submitted, his Honour’s ability to thereafter impartially deal with any application by the wife to adduce further evidence, or even in the absence of such evidence, to make submissions on the topic, was so compromised that the appearance of a fair trial had been lost. I accept the submission of senior counsel that subsequent assurances from the Bench, that the Federal Magistrate had not made up his mind about anything yet, are irrelevant in a matter where the allegation is an apprehension of bias.
Counsel for the wife submitted that the husband, by his counsel, ought be deemed to have waived his right to assert an apprehension of bias on the second day of the trial, because some of the conduct complained of occurred the day and month before. It was said that legitimate recusal applications should be made immediately. I consider counsel made the application in an entirely proper manner.
The wife’s counsel also suggested that the husband’s counsel ought to have objected to his Honour excluding the parties from the courtroom. I do not see how counsel could have done so, especially as this took place when the wife was being cross-examined and when counsel could not have known what the Federal Magistrate was about to say.
Counsel for the wife submitted that by referring the parties to authorities and social science research pertaining to battered wife syndrome, his Honour was fulfilling a procedural fairness obligation, to flag to the parties authorities which had not been addressed and might be relied on.
As to the substantive complaint, counsel for the wife submitted that it was apparent by reference to the Outline of Contentions that the issue of family violence was one which the husband would need to confront at trial. Accordingly it was said that his Honour’s reference to battered wife syndrome was “no more than a statement that family violence would become an obvious issue in the trial”.
This is not the occasion to discuss at length what has become known as “battered woman syndrome” as described in decisions of other courts. However, in view of counsel’s submissions to the Federal Magistrate, I am obliged to point out that there is considerable difference between an allegation of family violence in family law proceedings, and battered wife syndrome as raised in a defence to a criminal charge.
In the case referred to by his Honour, Osland v The Queen (1998) 197 CLR 316, the accused woman was charged with the murder of her husband.
The woman did not dispute that she had contributed to the death of the man. The question was whether the woman could rely on provocation and self-defence, and in this respect she adduced expert evidence of “battered woman syndrome”. In the context of discussions about such expert evidence and the defence, Gaudron and Gummow JJ referred to some of the matters which, according to the expert in that case, are characteristic of women with the syndrome (at page 335-336):
1. They are ashamed, fear telling others of their predicament and keep it secret.
2. They tend to relive their experiences and, if frightened or intimidated, their thinking may be cloudy and unfocused.
3. They have an increased arousal and become acutely aware of any signal of danger from their partner.
4. They may stay in an abusive relationship because they believe that, if they leave, the other person will find them or take revenge on other members of the family.
5. In severe cases, they may live with the belief that one day they will be killed by the other person.
Their Honours also said (at page 337):
57Given that the ordinary person is likely to approach the evidence of a battered woman without knowledge of her heightened perception of danger, the impact of fear on her thinking, her fear of telling others of her predicament and her belief that she can’t escape from the relationship, it must now be accepted that the battered wife syndrome is a proper matter for expert evidence.…
…
60It need hardly be said that there is an obligation on counsel to make clear to the jury and the trial judge the precise manner in which they seek to rely on expert evidence of battered wife syndrome and to relate it to the other evidence and the issues in the case.…
(emphasis added)
In the article by Ian Leader-Elliott (‘Battered But Not Beaten: Women Who Kill in Self Defence’ (1993) 15 Sydney Law Review 403, 412), referred to by his Honour, two defining elements of the syndrome are described. The first being “subjection of the victim to violence in a repeating three phase pattern: [I] a period of mounting tension, [II] an “acute battering incident” followed by [III] a period of loving contrition”. The second element is “learned helplessness”, in which the woman is “reduced to a condition where action is impossible” (at 413).
A very interesting discussion of the syndrome and its applications is expressed in the other article referred to by his Honour (Ian Freckelton, ‘When Plight Makes Right – The Forensic Abuse Syndrome’ (1994) 18 Criminal Law Journal 29, 32). In that article, Mr Freckelton SC deals at length with the difficulties of admissibility of expert evidence suggesting that a woman has suffered from this “syndrome”. He lists criticisms from many quarters of the use of such a defence in criminal proceedings. Both articles deal with cases where a woman has killed her spouse and expert evidence is given in a criminal trial.
Importantly, in this case the evidence about the wife’s psychological state and the effect she said the husband’s conduct had upon her bore no resemblance to such symptoms. As importantly, the expert psychologists for the wife had not identified such a syndrome as being suffered by her.
The wife’s counsel submitted that a reasonable lay observer would certainly not think, hearing the exchange between the Federal Magistrate and counsel, that his Honour was giving any hints or had made up his made about the issues before him. It was suggested that the fact that his Honour was “so far off the track” in relation to battered wife syndrome and the relevant evidence, in fact indicated that he “was bringing and continuing to bring to the matter an open mind” (Appeal transcript 25 October 2012, page 47, lines 7-9).
In reply, senior counsel for the husband emphasised that the complaint was not and is not that his Honour had pre-judged the case, but rather that he had acted in a way that is so partial to one side that the observer would come to that conclusion (Appeal transcript 25 October 2012, page 47).
It was further submitted on behalf of the wife that during or following the exchange with his Honour, the wife’s counsel did not indicate that the wife would seek to pursue her case any differently from the case which was before the Court. Counsel for the wife submitted that the reasonable lay observer would not conclude or assume the trial counsel would alter the course which he had adopted on behalf of the wife at trial. With respect, this is an irrelevant consideration, and it is not borne out by reference to what counsel said as recorded in the transcript (paragraph 42 above).
Conclusions
With respect to his Honour, while general issues of family or domestic violence were arguably identifiable in the wife’s case from early in the proceedings, the specificity of claims, especially in cases such as this with grave allegations and consequences, is of utmost importance.
Insofar as the Federal Magistrate considered battered wife syndrome to be a matter open on the wife’s evidence, as it stood without relevant expert evidence, his Honour erred in law (senior counsel referred us generally to Osland).
Senior counsel for the husband agreed though that an error of law is not a ground for disqualification, but provides a basis for an appeal. The error of law is not a bar to a successful appeal from the disqualification decision, especially as the case has not concluded. If the husband’s counsel had not brought the application asking that the Federal Magistrate recuse himself and the trial had been concluded, he may well have been criticised on an appeal for not doing so.
I do not accept the submissions of counsel for the wife that the husband should be taken to have waived any right of complaint about apprehension of bias. As senior counsel for the husband conceded at the outset, the conduct complained of in the appeal is limited to the exchange between his Honour and counsel on the morning of the second day. The application for disqualification having been made orally immediately after that exchange, there can be no reasonable claim of waiver.
Nor do I consider a possible adjournment of the proceedings, and resulting time available to the husband and his legal representatives to answer the wife’s case, to be relevant to the disqualification application or appeal. The focus of apprehension of bias cases is on the conduct of judicial officers and the perception of reasonable observers, not on the conduct of legal representatives.
Senior counsel correctly submitted that it is the particular circumstances of this case, the seriousness of the allegations in the wife’s case (not of that of battered wife syndrome), together with the lengthy discussions between counsel and the Bench at the commencement of the hearing dealing conclusively with the parameters of the wife’s case, which prevent his Honour’s words from being characterised as clarification, frank dialogue or inquiry. I note in particular counsel for the wife’s submissions to his Honour on the first day of the trial, that “the evidentiary matters filed by the parties more than adequately disclosed, in conjunction with the case outline documents, the propositions to be advanced at trial…” (Transcript 17 September 2012, page 28, lines 28-30).
Raising such a specific possible claim, not mentioned at all in the wife’s application, her outline of contentions or indeed the experts’ evidence in her case, in circumstances where lengthy discussions had been had in the lead up to and on the first day of trial about the parameters of the wife’s case, then this being finalised and the evidence effectively confirmed as “closed” was not, in my view, a reasonable inquiry or clarification.
The test identified in Ebner and in Johnson and confirmed in Michael Wilson is met, having regard to the context of the whole trial and the circumstances of the intervention (Galea). It is the Federal Magistrate’s raising of a specific claim, not raised by the wife, in the absence of the parties, at a time in the proceedings when the parameters of her case and evidence were accepted as closed, which might be reasonably apprehended as leading his Honour to decide the case other than on its legal and factual merits. There is a clearly articulated, logical connection between that specific claim and the circumstances in which it was raised, and the issues for determination before his Honour, such that I accept it might be reasonably apprehended that
his Honour would not bring an impartial and unprejudiced mind to the resolution of the question his Honour was required to decide. Accordingly, the appeal should be allowed, the order set aside and the Federal Magistrate disqualified from further hearing the proceedings.
Costs
In the event that the appeal was successful, both parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). As the appeal has succeeded on the basis of an error of law by the Federal Magistrate, it is appropriate that there be no order as to costs and the parties be issued costs certificates in the appeal.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, May and Strickland JJ) delivered on 15 February 2013.
Associate:
Date: 15 February 2013
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