JUDD & PRYOR
[2020] FamCA 782
•18 September 2020
FAMILY COURT OF AUSTRALIA
| JUDD & PRYOR | [2020] FamCA 782 |
| FAMILY LAW – COURTS AND JUDGES – Disqualification – Application by the father to disqualify a judge on the ground of apprehended bias – Where the father alleges a judge’s expressed views in other parenting proceedings in which he was involved gives rise to apprehended bias in the current proceedings – Where principles in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 are applied – Where the only application currently requiring consideration is the mother’s interlocutory application for outright dismissal of the father’s substantive parenting application, in respect of which there is no need to make a finding about the reliability of the father’s evidence – Application for disqualification is dismissed – Application made by the mother for summary relief is relisted for hearing after expiration of the appeal limitation period. |
| Family Law Act 1975 (Cth) Pts VII, XIB, ss 45A(2), 94(1AA) |
| Dautry & Wemple (2018) FLC 93-876 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Jardine & Sackville [2020] FamCA 346 Johnson v Johnson (2000) 201 CLR 488 Moorcroft & Moorcroft (2018) FLC 93-881 Pryor & Judd [2016] FamCA 820 Pryor & Judd [2017] FamCA 55 Rice and Asplund (1979) FLC 90-725 Searson & Searson (2017) FLC 93-788 Spencer v Commonwealth of Australia (2010) 241 CLR 118 |
| APPLICANT: | Mr Judd |
| RESPONDENT: | Ms Pryor |
| FILE NUMBER: | NCC | 3004 | of | 2014 |
| DATE DELIVERED: | 18 September 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle (via telephone) |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 18 September 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Not Applicable |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Not Applicable |
Orders
The Application in a Case filed by the applicant father on 12 August 2020 is dismissed.
The proceedings are listed before Austin J at 9.30 am on Monday 26 October 2020 for hearing of the respondent mother’s application for the summary relief set out in her Amended Response filed on 26 July 2020.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Judd & Pryor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 3004 of 2014
| Mr Judd |
Applicant
And
| Ms Pryor |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Background
In September 2016, Cleary J made final parenting orders between the applicant father and the respondent mother under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of their only child – a son who is now aged 15 years (Pryor & Judd [2016] FamCA 820). Those orders provided for the child to live with the mother and for him to have no contact of any sort with the father. The mother was granted sole parental responsibility for the child.
In August 2018, the father started fresh proceedings, but they were dismissed by Cleary J in December 2018, apparently because the father could not demonstrate any changed circumstances to warrant reconsideration of the orders.
In April 2020, the father started these current proceedings seeking orders that the child live with the parties for “equal time” (though he has since also implied that suitable orders might alternatively provide for the child to spend “substantial and significant time” with him), even though the child has not seen or spoken to him for about five years.
As before, the mother seeks the immediate dismissal of the proceedings. As pleaded in her Amended Response filed on 26 July 2020, she seeks dismissal of the father’s Initiating Application either summarily (s 45A(2) of the Act) or pursuant to the guideline principles which require the demonstration of materially changed circumstances (Rice and Asplund (1979) FLC 90-725).
As an aside, the mother may even yet consider alternative applications for orders against the father dismissing the proceedings as being vexatious (Part XIB of the Act) or staying the proceedings pending his satisfaction of an outstanding costs order made in her favour by Cleary J in relation to the proceedings concluded in September 2016 (Pryor & Judd [2017] FamCA 55), despite the provisions of s 69F of the Act (Dautry & Wemple (2018) FLC 93-876 at [30]-[41]; Moorcroft & Moorcroft (2018) FLC 93-881 at [17]-[22]).
However, there is another application to consider beforehand. On 12 August 2020, the father filed an Application in a Case seeking my disqualification from the proceedings, which application is opposed by the mother.
The father relied on his affidavit filed on 12 August 2020 in support of his application. Drawing upon that affidavit, my disqualification is demanded for the reason he expressed in these terms:
I believe Justice Austin’s expressed views on a previous decision in [Jardine & Sackville [2020] FamCA 346] makes him biased & therefore can no longer play a part in [the current proceedings] & I ask that he be recused…
(As per the original)
Some more history is needed to explain the father’s belief of bias.
The father has at least two other children. He contested litigation over those children as well, which proceedings were concluded by final parenting orders made by me on 20 May 2020 (Jardine & Sackville [2020] FamCA 346). The orders made in that case essentially provide for the children to live with their mother, who has sole parental responsibility for them, and for the children to have no interaction with the father. Those orders are the subject of a current appeal by the father.
As can be seen, the result for those two children in May 2020 was virtually the same as it was for the child who is the subject of these proceedings under the orders made by Cleary J in September 2016.
In the other proceedings, Cleary J disqualified herself on the father’s application in June 2019 and so the proceedings were then allocated to my trial docket. For present purposes, the father contends my “expressed views” in those proceedings gives rise to an apprehension of my bias against him in these proceedings.
Legal principles
The principle of apprehended judicial bias is authoritatively established in these terms (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at 344-345; Johnson v Johnson (2000) 201 CLR 488 at 492):
…a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
(Footnotes omitted)
Application of that principle entails two distinct steps (Ebner at 345):
…First, it requires the identification of what it is said might lead a judge … 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 bare assertion that a judge’s conduct, through the expression of “views”, gives rise to an apprehension of bias is meaningless unless and until the party seeking the judge’s disqualification articulates the asserted connection between the “expressed views” and the possibility of departure from the judicial duty of impartiality. It is only then that the reasonableness of the asserted apprehension of bias can be assessed.
Conclusion
The father did not articulate the actual “views” I expressed in the other proceedings which now allegedly give rise to an apprehension of bias in these proceedings. He only complained of an “extremely negative result” in the other proceedings.
I allow for the fact that the father is not legally represented and so, without his assistance, I shall identify the “views” expressed by me which could conceivably be the subject of his complaint.
I have no transcript of the other proceedings before me and have no independent recollection of expressing any adverse view about the father or the lack of merit in his proposals during the trial conducted by me in April 2020.
Turning then to the reasons for judgment I delivered in the other proceedings in May 2020, at various points I made the following comments:
50.The mother suffered physical injuries in the assault perpetrated upon her by the father in April 2018 and, as a consequence, he was charged with and convicted of several serious criminal offences. He was sentenced to a suspended term of imprisonment. The father’s alleged ignorance of the bruising he inflicted to the mother’s eye on that occasion, to say nothing of her emotional distress, is not to the point. His denials, both to the Family Consultant and in cross-examination at trial, of ever having perpetrated family violence upon the mother was patently false in the face of such criminal convictions.
…
61.The father’s recent denial of the 2014 and 2015 convictions, is rejected as false. Even though certificates of criminal conviction were not tendered (s 178 of the Evidence Act 1995 (Cth)), his criminal record was sufficient proof because the accuracy of the entries was not disputed.
…
68.In his haste to criticise the mother for lack of credibility, the father overlooked the unreliability of his own evidence. As already mentioned, his denials to the Family Consultant and in his evidence of ever having perpetrated family violence upon the mother was patently false in the face of his criminal conviction for assaulting and injuring her. His denial of having any propensity for violence is also plainly false in the face of abundant indisputable evidence to the contrary, including his admissions of his natural reaction to threaten and intimidate people.
…
85.During cross-examination, the father: denied he has any propensity for violence; denied he committed any physical violence against the mother; alleged he only engaged in verbal arguments with the mother; and alleged he had only defended himself against physical attacks by the mother and, even then, he did not touch her body in any way which would cause any bruising. Obviously, that evidence cannot be correct in the face of his conviction for assaulting the mother and causing her “actual bodily harm” during the incident in April 2018, which assault precipitated their separation.
(Footnotes omitted)
As can be seen, those comments entail findings which impugn the father’s credit and hence his reliability as a witness, at least in the absence of independent corroboration.
Inferentially, the father’s point is that, because I found he was an unreliable witness in the other proceedings I might assume he would be an unreliable witness in these proceedings and decide factual controversies in the mother’s favour without approaching those controversies impartially with an open mind.
If these proceedings are to be heard on their merit in due course then perhaps there will be factual disputes needing determination between the parties and, perhaps, an apprehension of my bias against the father could be reasonably drawn. However, for the following reasons, I do not consider it necessary to form a concluded view about that.
Presently, there is no factual dispute to be determined between the parties at all. The only application currently requiring consideration is the mother’s interlocutory application for the outright dismissal of the father’s substantive parenting application because she contends it either has no reasonable prospects of success or he cannot demonstrate any material changed circumstances such as to warrant its entertainment.
In the first instance, the prospective merit of the father’s substantive application is examined by the unconditional acceptance of the father’s evidence, if it is untested (Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [25]-[34], [46]-[49]).
In the second instance, when the Rice and Asplund guideline principle is applied as a threshold inquiry (as the mother asserts it should be in this instance), the father’s untested evidence must be taken at its highest (Searson & Searson (2017) FLC 93-788 at [11], [43], [60]).
In other words, in either instance, the father’s credit (or lack thereof) is quite immaterial. The determination of the mother’s application to dismiss the proceedings for lack of reasonable prospects of success or for lack of proof of changed circumstances does not entail any decision about whether or not the father’s evidence should be accepted: it must be accepted.
I would therefore accept as an accurate and truthful representation of the father’s feelings this following evidence in his affidavit, filed on 1 September 2020 to meet the mother’s Amended Response filed on 26 July 2020:
…
3.It is what it is and nothing can change what has happened I used to have a lot of respect for [the mother] but after the way she has treated me I would not piss on her if she was on fire
…
5.[The mother] needs to grow up and get over herself she is a struck up little cow that has done everything in her power to stop me from seeing my son
6.She has always known me and know I can be a hot head and opinionated
7.She chose to have a baby with me now she does not want to share
…
(As per the original)
It will also be recalled it is common ground the child has not seen or spoken with the father since well before Cleary J made the existing orders in September 2016, so there is no controversy over that fact.
In the absence of any immediate need to make a finding about the reliability of the father’s evidence, his disqualification application will be dismissed. The father has not demonstrated any connection between my adverse findings about his lack of reliability as a witness in the other proceedings and my prospective lack of impartiality when determining the mother’s interlocutory application seeking to dismiss his substantive application in these proceedings.
I could therefore have now proceeded to determine the mother’s application to dismiss the father’s substantive application on either of the two grounds she posits, but in fairness to the father, he said he was only ready to contest the disqualification application and was not ready or prepared to meet the mother’s application. I will therefore adjourn the mother’s application for relief, as set out in her Amended Response filed 26 July 2020, for more than one month to give the father the chance to appeal from these orders under s 94(1AA) of the Act.
If the father chooses to appeal and does so successfully, the Full Court will set aside my dismissal order and presumably disqualify me from the proceedings. The mother’s application to dismiss the proceedings will then need to be determined by a judge other than Cleary J or I, since both of us will then have been disqualified from hearing proceedings involving the father.
If the father does not appeal, or alternatively he appeals unsuccessfully, I will hear and determine the mother’s application either after the expiry of the appeal limitation period or after the appeal is dismissed. If the mother ultimately fails in her bid to have the proceedings dismissed, in which event the proceedings will then progress towards a hearing on its merits, there would be no impediment to the father renewing his application for my disqualification in advance of the trial. By that time, the full ambit of the contest and any attendant uncorroborated factual disputes between the parties will be well known.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Austin delivered on 18 September 2020.
Associate:
Date: 22 September 2020
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