Jasper and Corrigan (No.3)

[2017] FCCA 2272

FEDERAL CIRCUIT COURT OF AUSTRALIA

JASPER & CORRIGAN (No.3) [2017] FCCA 2272

Catchwords:
FAMILY LAW – Recusal application – Where settlement offers disclosed – Where evidence has not yet commenced – Judge recuses himself – Transfer to Family Court of Australia at Sydney.

Legislation:

Family Law Act 1975

Cases cited:

Ebner & the Official Trustee in Bankruptcy (2000) 205 CLR 337

Applicant: MS JASPER

Respondent: MR CAPPETTA

File Number: WOC 732 of 2015

Judgment of: Judge Altobelli

Hearing date: 14 September 2017

Date of Last Submission: 14 September 2017

Delivered at: Wollongong

Delivered on: 14 September 2017

REPRESENTATION

The Applicant was self-represented.

Counsel for the Respondent: Ms Bridger

Solicitors for the Respondent: Williamson Isabella Lawyers & Public Notaries

ORDERS

1. The matter is transferred to the Sydney Registry of the Family Court of Australia and listed on 6 November 2017 at 10:30am.

2. I recuse myself from further hearing this matter.

3. My ex tempore reasons for judgment be taken out and placed on the Court file.

IT IS NOTED that publication of this judgment under the pseudonym Jasper & Corrigan (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 732 of 2015

MS JASPER

Applicant

And

MR CORRIGAN

Respondent

REASONS FOR JUDGMENT

1. I provide the following ex tempore reasons in a Recusal Application that has been made this morning.  When a trial judge becomes aware of the offers and counter-offers of settlement that are made in an acrimonious, complex and very emotional case such as the present one, the words of the High Court at paragraph 8 in Ebner & the Official Trustee in Bankruptcy (2000) 205 CLR 337 take on a profound meaning. The High Court said:

   8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. 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.

2. There is no doubt that in context the “human frailty” that the High Court refers to is that of the judge.  This means that recusal applications must take into account the particular frailties of the present judge.  In other cases, many judges I dare say, could put out of her or his mind information about settlement offers.  In other cases, this Judge could do likewise, but not in this case.  My knowledge of the offer and the counter-offer and the comments that I made this morning seeking to understand and explore those offers has led to three things. 

3. Firstly, my making certain observations as to the likely outcome of this case, based on my long history of involvement in it and my knowledge of the material before the Court.  Those observations, whilst regrettable in hindsight, have been made.  They are on the record.  The comments were intended to facilitate settlement discussions and to reality test the polarised positions adopted by the parties in this case.  The context of those observations should, in all fairness, be recognised and duly recorded in these Reasons.

4. There have been two previous published judgments dealing with interlocutory issues in this case.  This is a case that is now in its third day.  It was listed for a fourth day.  The evidence had not commenced.  It will not conclude on the fourth day, even with the best of good will, which is singularly absent in this case.  It would go over to 2018 at some time.  The case is being heard in a regional registry of the Court where cases are already listed to the end of 2018. 

5. The complexity of this case is now apparent.  Its eligibility to be transferred to the Family Court of Australia is now apparent.  What is also apparent is the lack of any sense of proportionality between the issues in the case and the manner in which it is being litigated.  For example, on my estimation, over 80 subpoena have been issued by the Applicant and in respect of many, many of those subpoena there are objections yet to be determined.  A reality check, a circuit-breaker if you will, was needed in this case.  The revelation of the settlement offers created an opportunity for me to make certain observations.  As I said, those observations, while regrettable, have been made.

6. Secondly, it is almost certain in my mind that the Respondent will have apprehended my comments as a firm indication that the orders he seeks will not be granted.  To that extent, he may well be of the view that I have prejudged his case.  Moreover, and indeed more relevantly, I am satisfied that, to use the words, again, of the High Court at paragraph 6 of Ebner:

   “A fair minded lay observer –“

   might reasonably apprehend that I could not bring an impartial mind to the resolution of the question of whether the Respondent was in fact entitled to the order that he seeks. 

7. But the third thing is just as important.  The Applicant is representing herself and it is possible that she has not turned her mind to the issue of whether I should recuse myself because of what I have said from her perspective.  Out of fairness to her, it must be recognised that in this Court’s mind a fair minded lay observer might reasonably apprehend that I regard her proposals, the orders that she seeks, as untenable. 

8. I acknowledge that it is possible that I have overstated my position.  It is possible that I have been dogmatic in my view, for example, about what the Applicant and the Respondent would think and, for example, that I have been dogmatic in suggesting that a fair minded observer might reasonably apprehend certain things.

9. Even if I have stated it too highly, I am comfortably satisfied that, again to adopt the language of the High Court in Ebner, but this time at paragraph 20, that this is a case of “real doubt” and that, therefore, I should not continue hearing this matter. The fact is that the Respondent Father has already previously mentioned the possibility of an appeal. The Applicant Mother certainly has. In these circumstances, to decline to recuse myself would involve a high risk of appeal. And, therefore, consistent with the High Court’s statements at paragraph 20 in Ebner, prudence dictates that I will reach the same conclusion, and that is to say, to recuse myself.

10. The inevitable result is that I must recuse myself.  Of course, I must determine procedurally what the next step is.  I transfer this matter to the Family Court of Australia in Sydney.  As I have foreshadowed in these Reasons, it bears all the hallmarks of a complex case.  The matter will be listed for Mention in that Court on 6 November 2017 at 10.30am.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 26 September 2017