JARRAH & FADEL (DISQUALIFICATION) - [2015] FamCAFC 163

FAMILY COURT OF AUSTRALIA

JARRAH & FADEL (DISQUALIFICATION)

[2015] FamCAFC 163

FAMILY LAW – APPEAL – DISQUALIFICATION – Where the appellant made an oral application that the presiding judge disqualify herself from hearing the appeal – Where the test for apprehended bias is not satisfied – Application dismissed.

Family Law Act 1975 (Cth) s 93

Jarrah & Fadel [2014] FamCAFC 14
Jarrah & Fadel [2015] FamCAFC 47
Johnson v Johnson (2000) 201 CLR 488

APPELLANT:

Mr Jarrah

RESPONDENT:

Ms Fadel

INDEPENDENT CHILDREN’S LAWYER:

Karen L Haga & Associates

FILE NUMBER:

PAC

2015

2011

APPEAL NUMBER:

2014

DATE DELIVERED:

18 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

29 July 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 February 2014

LOWER COURT MNC:

[2014] FamCA 85

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Eldershaw

SOLICITOR FOR THE RESPONDENT:

Mahony Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Karen L Haga & Associates

Orders

The oral application for disqualification of Ainslie-Wallace J made by the Appellant on 29 July 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarrah & Fadel (Disqualification) 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 SYDNEY

Appeal Number: EA 37 of 2014
File Number: PAC 2015 of 2011

Mr Jarrah

Appellant

and

Ms Fadel

Respondent

and

Karen L Haga & Associates

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Mr Jarrah (“the father”) appeals against parenting orders made by Johnston J on 21 February 2014 in relation to the three children of the father’s relationship with Ms Fadel (“the mother”). His Honour’s orders were made at the conclusion of a final hearing of the parenting issues in respect of which the father neither filed evidence nor attended. The hearing took place on 17 and

18 February 2014.
At the commencement of the appeal hearing, the father made what I understand to be an application that I not sit on the instant appeal. That being the case, the application was heard by me sitting alone and, after hearing the father’s reasons for the application, I declined to recuse myself and indicated that I would deliver reasons for that decision later. These are the reasons.
The father contended that he was “afraid” of me, by which I understood him to mean that he was concerned that should I sit on this appeal, I would not bring an open mind to the consideration of the issues in the appeal because I have on other occasions sat either in the Full Court or as a single judge of appeal on applications brought by the father which have been dismissed.
To lend understanding to the application, I will set out some brief background.

Background

The father cited two instances which have caused him to ask me to recuse myself.
The first relates to a Full Court decision delivered on 12 February 2014 (see Jarrah & Fadel [2014] FamCAFC 14). The circumstances of that appeal were, briefly, that the parenting dispute between the father and the mother was listed for hearing before Johnston J on 17 and 18 February 2014. The mother’s application for parenting orders was filed in May 2011 and had not been heard because, while it had been listed for hearing on at least four prior occasions, the hearing dates were vacated. It was uncontentious that but for one instance, the adjournments were at the behest of the father.
Thus it was that a further hearing date was set for the final hearing of the parenting matters before Johnston J on 17 and 18 February 2014. His Honour made directions for the filing of affidavits of evidence. The father did not file any evidence as directed.
On 24 January 2014, the father filed an application before Johnston J seeking that the hearing dates be vacated. That application was opposed by both the mother and the Independent Children's Lawyer (“the ICL”). On

31 January 2014 his Honour declined to vacate the dates and dismissed the father’s application. On 7 February 2014 the father filed an application for leave to appeal his Honour’s orders. That appeal was listed before the Full Court on 12 February. In that appeal, I sat as the presiding judge with Murphy and Aldridge JJ.
On the evening before the appeal hearing, a letter was sent to the Appeal Registry ostensibly from the father seeking that the hearing be adjourned. The request was supported by a report from the father’s treating psychologist and by a letter from his solicitor who said that on 10 February 2014 the father was engaged in litigation in the Local Court for the whole day and was, as a result, “visibly distressed”.
I say “ostensibly” because during the appeal hearing in the instant appeal the father denied that he had written to the court seeking that adjournment. In any event, the application for adjournment was refused and the application for leave to appeal was then considered and refused.
In the course of making submissions on the application that I recuse myself, the father referred to the fact that although he did not serve the application for leave to appeal on the ICL, the ICL was nonetheless represented at the hearing, a matter which obviously concerned him. When it was pointed out to him that it was reasonable to think that the Appeals Registrar would have notified all relevant parties, the father contended that it was his application and he would determine who was served. I am unable to say what relevance this fact had on the application.
The second matter which caused the father to seek my recusal was in relation to an application seeking an extension of time in which to appeal a divorce order as between him and the mother made in the Federal Circuit Court on

3 November 2014 (see Jarrah & Fadel [2015] FamCAFC 47).
The mother sought a divorce by application filed on 20 February 2014. The father opposed the order being made and filed a response to her application. The father’s evidence in opposition to the application was considered and rejected and the trial judge made an order for divorce on 3 November 2014 and that order was expressed to take effect on 4 December 2014.
The application for an extension of time in which to appeal was refused because of the operation of s 93 of the Family Law Act 1975 (Cth) which provides that no appeal lies from a divorce order after it has taken effect. Thus, the appeal was incompetent and the application dismissed.
The thrust of the father’s application was that because I had dismissed two appeals brought by him, he apprehended that I might not bring an impartial mind to the determination of the instant appeal.
The law in relation to disqualification on account of apprehended bias is well settled. In Johnson v Johnson (2000) 201 CLR 488, the plurality of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) held at 492-493:
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.
12. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. 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. …
Judges are called on every day to hear and determine applications, often in the same suit. That is the case here. I observe that in one of the matters which the father said had given rise to his concern, I was but one member of a bench of three who came to a unanimous decision on the application. While neither application to which the father referred as foundation for his action was successful, I am comfortably satisfied that the fair minded reasonable observer understanding the context of the applications decided by me and the Full Court would not apprehend that I would fail to bring an impartial mind to the issue to be determined in the present appeal.
Thus I refused the application that I disqualify myself from further hearing the appeal.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace J) delivered on 18 August 2015.

Associate:

Date: 18 August 2015