JOANS and SINGERSON

[2018] FCWA 43

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: JOANS and SINGERSON [2018] FCWA 43

CORAM: DUNCANSON J

HEARD: 7 MARCH 2018

DELIVERED : 22 MARCH 2018

FILE NO/S: PTW 726 of 2011

BETWEEN: MS JOANS

Applicant

AND

MR SINGERSON
First Respondent

Catchwords:

PRACTICE AND PROCEDURE - Where the respondent seeks the recusal of the Judge on the basis of actual and apprehended bias - Application dismissed

Legislation:

Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: [Ms Kyle]

First Respondent : Self-Represented Litigant

Solicitors:

Applicant: [A Law Firm]

First Respondent : Self-Represented Litigant

Case(s) referred to in judgment(s):

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Johnson v Johnson (2000) 201 CLR 488

Loveridge & Emery and Anor [2011] FamCAFC 226

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1In his response to an application in a case filed 29 December 2017 the father, [Mr Singerson] seeks an order in the following terms:

Justice Susan Duncanson be recused from all current and future proceedings associated with PTW 726 / 2011.

2The mother [Ms Joans] opposes the order sought by the father and her counsel made oral submissions with respect thereto.

3In support of the order sought by him, the father filed an affidavit on 29 December 2017. The father commenced his evidence with the following two paragraphs:

1I appreciate that you Justice Susan Duncanson will refuse to recuse yourself in respect of the file / case PTW 726 / 2011 but nevertheless for what are blatantly obvious reasons, I now ask you to do so.

2I long ago realized that the Family Court of Western Australia (FCWA) is a self serving, conflict promoting, child abusing organisation and an unrestrained law unto itself, that has absolutely nothing whatsoever to do with requiring Ethical Conduct by Officers of the Court, with the Truth, with Justice, with Equity nor the Best Interests of Children.

BRIEF BACKGROUND

4The father and the mother were parties to parenting proceedings. On 15 December 2014 after five days of evidence I pronounced final orders by consent of the parties in relation to their children, [Child A] born [in] 1999 and [Child B] born [in] 2002.

5The orders provided, inter alia that the mother have sole parental responsibility for the children and for the father to deliver Child B to the care of the mother.

6Since then I have delivered judgment in contravention proceedings, enforcement proceedings and with respect to costs applications.

7Further applications remain on foot. These include the mother's contempt application which is part-heard and in respect of which she filed an amended contempt application on 15 September 2017 and a minute of proposed orders, to which I refer below. Also on foot is the mother's application for a child support modification order. A costs order was made on 20 April 2016 and those costs have yet to be assessed.

8The father seeks a determination that I recuse myself on the bases of both actual bias and apprehended bias, although his submissions in these respects were at times conflated and confusing. As set out below the test to be applied in determining each basis is different.

THE LEGAL PRINCIPLES

9In the case of assertion of actual bias the test is a subjective one based upon the state of mind of the decision maker. In Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Gleeson CJ and Gummow J said as follows (footnotes omitted):

71… Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

72… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. This preliminary argument should be rejected.

10In Johnson v Johnson (2000) 201 CLR 488 the High Court set out the test in relation to an assertion of apprehended bias (footnotes omitted):

11… 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.

11In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the High Court confirmed the determination in Johnson.

12In Ebner the High Court explained that the application of the principle involves two steps. The first step is to identify what it is said might lead a judge to decide a case other than on its legal and factual merits. The second step is the consideration of "the logical connection" between the matter identified and the feared deviation from the course of deciding the case on its merits. Only then can the reasonableness of this asserted apprehension of bias be assessed.

DISCUSSION

13I have considered the father's evidence and submissions very carefully. In that context I have had to do the best I can to identify the basis upon which he relies in seeking my recusal.

14Many of the father's assertions as to bias relate to proceedings which have long since been concluded. Many relate to decisions which were not appealed.

15At the commencement of the hearing the father made an oral application that the mother's counsel be discharged as he did not believe she should be acting in the case. He submitted there was evidence that she purported to be the lawyer for his sister in obtaining market appraisals for their jointly owned property and he has reported the mother's counsel to the Legal Practice Complaints Committee ("LPCC"). I refused the father's oral application and he submitted that my refusal was an example of apprehended or actual bias.

16The father provided no evidence that the mother's counsel has conducted herself improperly. The father has a one half interest in property with his sister [Ms Singerson]. Ms Singerson was joined as a second respondent to enforcement proceedings as she would be affected by orders sought by the mother in relation to properties owned by her and the father. She was necessarily joined as a party. She was represented by solicitors in those proceedings and continues to be represented. The enforcement proceedings were concluded on 3 March 2017 when I delivered judgment. In my view the mother's counsel has demonstrated a high standard of professional conduct in these lengthy proceedings. The father's submission does not support an application for recusal.

17The father submits there is apprehended bias in relation to the approach which he submits I and the Family Court of Western Australia ("FCWA") take in reversing the onus of proof in respect of fathers. He submits the Court's approach is for the mother to make a hearsay allegation without supporting or arms-length third party evidence and the father having to prove his innocence. He submits the Court's approach is to start from the position of assuming the father to be guilty.

18As an example of this, the father refers to an affidavit filed by the mother on 15 September 2017 in support of her amended contempt application filed on that date. In her minute of proposed orders also filed on 15 September 2017, the contempt orders sought by the mother are that a final violence restraining order be made against the father protecting the mother and Child B for a period of two years. In her said affidavit the mother sets out her evidence as to what she describes as the father's continuing behaviours causing her to seek urgent protective orders for herself and the child.

19It was clear from the father's oral submissions that he strongly disputes the mother's evidence and he says there is a lack of evidence supporting the order she seeks. The father deposes:

28I note that [Ms Joans] and [Ms Kyle] have been challenged for years by myself and my lawyers to take their domestic violence allegations against me into the Domestic Violence Court jurisdiction where, TOTALLY UNLIKE the prevailing attitude of and approach taken by the FCWA, the rule of law applies, the onus of proof is on the accuser not the accused, where third party arms length evidence is respected and where perjury is prosecuted criminally – but they have never done so and are trying it on here because they know all they have to do as a supposedly victimised, poor, saintly mother is make an accusation and the FCWA will give them what they want.

20The contempt proceedings are part-heard. As yet the father has not chosen to file an affidavit responding to that of the mother. The mother's evidence has not been tested and no findings have been made. The mother's amended contempt application has yet to be determined although the father suggests it should be dismissed "out of hand".

21The father makes generalisations as to what he believes is the approach of myself and the FCWA to domestic violence allegations. I reject the father's submissions and find that there is no merit in his application for recusal in this respect.

22Many of the father's complaints of bias arise from the parenting proceedings to which I have referred above. These proceedings were concluded on 15 December 2014. The father provides no reason for the delay in making the application for recusal and no explanation why the application was not made in the earlier proceedings.

23The father's evidence in relation to the parenting proceedings is a repetition of his many complaints concerning the mother, her legal representatives, the FCWA process, myself and another judicial officer previously involved in the proceedings.

24The parenting orders dated 15 December 2014 were made by consent. In terms of those orders the father was restrained by injunction from inter alia communicating with the mother or the children, approaching within one kilometre of the mother, or within two kilometres of the children's school or activities. Child B’s time with the father was ordered to be in accordance with the mother's wishes, subject to a report by the Single Expert Witness, [Dr N] and the continued compliance with the orders by the father, and in accordance with the mother's proposal.

25The father deposes that since Child B went into the mother's care he has not been allowed "official contact" with Child B in over three years. The mother submits the father has not complied with the conditions referred to in the orders. The father provides no evidence that he has done so.

26The father asserts that with respect to the parenting proceedings and thereafter I purposefully lied by "purposeful omission and directly".

27The father alleges that had I disclosed "the truth of [Dr N’s] history" he would not have agreed to her appointment. The father deposes:

53[Dr N] is YOUR expert but you failed to tell me of her adverse / directly relevant involvement in [a tragic incident].

28He says in this respect I lied to him. Dr N was appointed as a further expert in the proceedings by orders dated 23 July 2014. These orders were made by consent. At the time the father was represented by Senior Counsel.

29The father complains about my findings as to his conduct in the parenting proceedings. In the mother's application for costs following upon the conclusion of those proceedings, the mother said the father's conduct as a litigant was appalling, vindictive and motivated by anger. The father said the mother refused to negotiate a solution and on 15 December 2014 in good faith he agreed to orders that were highly punitive.

30For reasons given on 20 April 2016, [2016] FCWA 20, I ordered that the father pay the mother's costs of and incidental to those parenting proceedings on a party/party basis with such costs to be assessed by a Registrar. I found that the father's conduct with respect to his correspondence with the mother's solicitors and the inflammatory and irrelevant evidence in his trial affidavit was a circumstance justifying an order for costs. At paragraph 72 of my reasons I also found that in contrast to the father's correspondence with the mother, her solicitors and Dr N, his conduct in Court was reasonable and more restrained. He was mostly respectful of the Court and receptive to its directions in relation to the parenting proceedings.

31The father did not appeal that decision.

32In the parenting proceedings an oral application was made by the father for the appointment of an Independent Children’s Lawyer ("ICL") in circumstances where the proceedings had been ongoing for many months and the matter was close to trial. At that time the Single Expert Witness had provided reports which included the children's views. A discussion took place regarding the utility of such an order and in the circumstances I did not consider it appropriate to appoint an ICL. I also refused the father's oral request made on 8 December 2017 that I order the appointment of an ICL in the ongoing proceedings which are for contempt.

33The father asserts I failed to deal with his Form 4 Notice of Abuse filed in February 2015. In fact that notice was accepted for filing, processed and an assessment received from the then Department for Child Protection and Family Support dated 14 April 2015. The Department reported that no information was raised which would warrant further assessment and it was concluded that no further action was required at that stage.

34The father takes issue with me determining his recusal application and deposes as follows:

62Everything that is wrong with this utterly disgraceful conflict promoting family destroying FCWA system is reflected in that you are now standing in judgment on / of yourself.

35The father describes this as utterly "scandalous and outrageous" and deposes that the basic concept of a "conflict of interest appears incompressible [sic] to you and the FCWA legal system".

36An application for recusal is heard by the judicial officer sought to be disqualified.

37The father asserts that I failed to answer correspondence from him dated 11 March 2015 in relation to the mother having changed Child B's school. On 12 March 2015 the Principal Registrar wrote to the father in the following terms:

I refer to your letter received 12 March 2015.

It is not possible to place evidence before the Court by way of correspondence. Your letter contains matters which if you intend to bring to the attention of Court must be pleaded via a sworn affidavit. Please note that the appropriate standard forms are available from the family court website at and should be used. Please seek proper legal advise in relation to the preparation of this document.

I draw your attention to paragrah 55 of the Case Management Guildelines. Please find enclosed a copy and your document returned. Enclosed is also a Form 8 – Notice of Address for Service.

38The father asserts that I have been unable to remember facts correctly and incapable of acknowledging and correcting mistakes, and that I am not able to put aside a personal conflict of interest. The father provides no specific references in this respect and no evidence in support of this assertion.

39At paragraph 93 of his affidavit, the father deposes that he requires to know if I know or have come across [Mr M] in any manner whatsoever outside of these proceedings. I understand Mr M is the mother's partner. As stated to the father during the course of his submissions I do not know Mr M and to the best of my knowledge I have never come across him in any manner whatsoever. Had I any knowledge of Mr M that would have been disclosed as soon as that came to my attention.

40Many of the father's complaints are directed against the mother, her legal representatives and the Court. The father deposes:

71It simply looks like exactly what it actually is – an intrinsically biased system and judge covering up for mother so they don't have rule against a mother's best interests and one lawyer / judge covering up for another lawyer's unethical and unscrupulous behaviour – clearly the WA legal fraternity is highly incestuous and you as a group are all mates and all in it together.

72I note that in last 7 years the only people to benefit from the PTW 726 / 2011 file are the fee gouging parasite on human misery lawyers, the fee generating supposed experts, the paid employees of the FCWA who process the paperwork and the paid, conflict escalating Judiciary.

CONCLUSION

41In Loveridge & Emery and Anor [2011] FamCAFC 226, the Full Court dealt with an appeal by a father against a refusal of the judge to disqualify himself in hearing parenting proceedings. At paragraph 86 the Full Court said:

Austin J then went on to note that the High Court has repeatedly cautioned judges against disqualifying themselves on the ground of apprehended bias unless the grounds for doing so are substantial. In an instructive summary of the relevant authorities, his Honour said the need for caution in acceding to disqualification applications had been expressed in different ways, including the following:

(1)It would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he/she should automatically disqualify himself/herself whenever requested by one party to do so (see Livesey v NSW Bar Association (1983) 151 CLR 288 at 294; Kartinyeri at 302).

(2)It is equally important that judicial officers discharge their duty to sit and do not accede too readily to suggestions of appearance of bias (see Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Bienstein at 233).

(3)A conclusion that there is a reasonable apprehension that a judge is biased should not be drawn lightly (see Vakauta v Kelly (1989) 167 CLR 568 at 584-585).

(4)When parties have been engaged in a proceeding for some time, with the inevitable commitment of resources and costs that entails, a judge should not disqualify himself/herself unless there is – not may be – an issue to which a disqualifying factor is relevant (see Re Polites at 92).

(5)A judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established (see Bienstein at 233).

(6)Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked. Judges do not choose their cases and litigants do not choose their judges. If one party to a case objects to a judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground (see Ebner at 348).

42The father has not established grounds upon which I should disqualify myself. The father does not identify any conduct of mine or views which I may have expressed which would demonstrate that my state of mind is one which is so committed to a conclusion already formed as to be incapable of alteration. Further, the father has not established that a fair‑minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question I am required to decide. That question relates to the contempt proceedings, which includes the violence restraining order sought. He has not identified a logical connection between his assertions as to my conduct of the proceedings and the real possibility of a deviation from the course of deciding the case on its merits.

43On various occasions I have allowed the father considerable latitude in the Court proceedings. I carefully explained procedure to him and have borne in mind that he is a self-represented litigant. This has been balanced with the requirement to be mindful of the toll these lengthy proceedings are taking on both parties and the desirability in the interests of the children to bring proceedings to a conclusion.

44In all the circumstances I refuse the order sought by the father.

45The father's said response does not address the orders sought by the mother in her application in a case for a child support modification order, or her minute of proposed orders in the amended contempt application. It will be necessary for the father to file an amended response. The proceedings will be listed for further directions.

THE ORDERS

1The application of the father that the Judge recuse herself from all current and future proceedings is dismissed.

2The proceedings be listed for directions on 7 August 2018 at 2.15 pm.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM
ASSOCIATE

22 MARCH 2018