KABRA and SACHIN
[2019] FCWA 212
•27 SEPTEMBER 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: KABRA and SACHIN [2019] FCWA 212
CORAM: TYSON J
HEARD: 28 AUGUST and 23 SEPTEMBER 2019
DELIVERED : 27 SEPTEMBER 2019
FILE NO/S: PTW 3451 of 2017
BETWEEN: MR KABRA
Applicant
AND
MS SACHIN
Respondent
Catchwords:
FAMILY LAW - PRACTICE AND PROCEDURE – Apprehended bias – Where the father seeks that the Judge recuse herself – Application for recusal made after trial and final orders made – Where the husband has appealed the final orders made on the ground of bias and has been unsuccessful in his appeal - Where there is a pending application for enforcement of the final orders and application for re-appointment of the Independent Children’s Lawyer – Application for recusal dismissed - Case turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Self Represented Litigant |
| Independent Children's Lawyer | : | Ms C |
Solicitors:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Self Represented Litigant |
| Independent Children's Lawyer | : | Legal Aid WA |
Case(s) referred to in decision(s):
Antoun v The Queen (2006) 224 ALR 51
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
Charisteas & Charisteas [2016] FCWA 106
Ding & Ding (2019) FLC 93-893
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Galea v Galea (1990) 19 NSWLR 263
Gambaro v Mobycom Mobile Pty Ltd & Ors [2019] FCAFC 144
Johnson v Johnson (2000) 201 CLR 488
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
XYZ Pty Ltd and Anor & Charisteas & Ors (2017) FLC 93-782
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kabra and Sachin has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act (Cth).
1The applicant father [Mr Kabra] seeks that I recuse myself. That application is opposed by the respondent mother, [Ms Sachin].
BRIEF BACKGROUND
2The father was born [in] 1976 and the mother was born [in] 1981. Both parents were born in India. The father is an [architect]. The mother is a full-time homemaker and parent.
3The parties married [in late] 2003 in Perth and commenced living together on 1 May 2004. The parties lived in India, [the Middle East] and Perth throughout their marriage.
4There is one child of the parties, [child X] [(“the child”)] born [in] 2010.
5Following the breakdown of the parties’ marriage, the parents were unable to agree on the parenting arrangements that were in the child’s best interests. As a result of a number of competing allegations, an Independent Children’s Lawyer was appointed for the child. [Dr N] was appointed as the Single Expert Witness.
6Child-related proceedings culminated in a trial before me on 10 September 2018. At that time, both parties were represented by solicitors and counsel. To the parties’ credit, they agreed on the majority of parenting issues between them and executed a signed minute of consent orders. I was satisfied those arrangements were in the child’s best interests and supported by the available evidence.
7The parties were unable to agree on five discrete matters, which I set out in paragraph 17 of my Reasons. The parties agreed, given the narrow ambit of matters in dispute, to proceed on the basis of submissions only. Accordingly, there was no cross-examination of any party, their witnesses nor the Single Expert.
8On 26 September 2018 I delivered Judgment. In my Reasons I determined that it was in the child’s best interests and reasonably practicable that he:
(a)Spend gradually increased time with his father, in accordance with the proposals of the ICL and the mother. Those arrangements included [the child] spending time with his father from after school Wednesday until the commencement of school the following day and each alternate weekend from after school on Friday until Saturday afternoon, to be extended to Sundays from 30 June 2019, and five consecutive nights in the April school holidays.
(b)Have electronic communication twice each week when the father was in Perth. When either [the child] or his father was overseas and direct contact was not taking place, then the electronic communication was to occur three times each week.
(c)Be permitted to travel to India with the mother for four weeks in January 2019.
9I declined the father’s request to:
(a)Grant an injunction restraining the mother from:
i. changing [the child’s] primary school without his prior written consent;
ii. placing calls between [the child] and his father on speaker phone;
iii. travelling to India only through a specified route via Singapore.
(b)Order make-up time between [the child] and his father.
10On that date, I made Final Orders in terms of the agreement between the parties, together with the orders I concluded were in the child’s best interests.
11The father filed a Notice of Appeal against the Final Orders. The appeal was heard on 19 February 2019. By that time, both parties were self-represented litigants. Ms [C] as counsel appeared on behalf of the ICL. The mother and the ICL opposed the appeal.
WHAT IS THE EVIDENCE RELIED UPON?
12The father relies upon his application and affidavits filed 31 July 2019 and 26 August 2019. The mother relies upon her response and affidavit filed 22 August 2018.
13The application was heard on 28 August 2019. At that time, Ms C appeared as amicus. She did not address the Court in circumstances of the scope of the application.
14Both parties had the opportunity to make detailed submissions. I reserved my decision.
15Subsequently, I became aware that Justice Strickland had delivered Judgment on 12 September 2019 in relation to the father’s appeal. It then became clear that the father in his appeal, had also argued a reasonable apprehension of bias. In light of that and the fact his appeal had since been determined after the hearing I held, I considered it was appropriate to relist the proceedings, to afford each party the opportunity to make any further submissions.
16The proceedings were relisted on 23 September 2019. At the hearing, I made it clear that I considered it appropriate to take into account his Honour’s Judgment delivered on 12 September 2019. I invited the parties and the ICL to make any further submissions that they wished, in those circumstances. None wished to do so.
THE LEGAL PRINCIPLES
17The father seeks an order that I recuse myself on the grounds of apprehended bias.
18The High Court in Johnson v Johnson (2000) 201 CLR 488 sets out the test for apprehended bias, which has been restated by the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [31] – [33]. The relevant test is as follows:
[31]…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.
…
[32]As the plurality in Johnson v Johnson explained, “(t)he 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”.
[33]Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias…
(citations omitted)
19In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the High Court confirmed the determination in Johnson (supra).
20In Ebner (supra) the High Court explained that the application of the principle involves two steps. The first step is to identify what it is that 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.
21The application of the apprehended bias test is an objective one. The High Court has cautioned about the need to be precise and not to conflate consideration of actual bias and apprehended bias. The High Court said in Michael Wilson (supra) at [67]:
…an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment.
22I also refer to the comments by Kirby J in Antoun v The Queen (2006) 224 ALR 51 where his Honour said at [34]:
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL: Ex parte CJL, this Court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases.
(citations omitted)
23The Full Court in Ding & Ding (2019) FLC 93-893, considered an appeal against a trial Judge’s decision not to recuse himself on the basis of apprehended bias. The Full Court referred to the previous decisions of the High Court, beginning with British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 in some detail and from paragraph [28] had this to say:
[28] French CJ opened his judgment with a quote from an earlier decision of Mason J (as that Chief Justice then was) which is, with respect, fundamental:
It needs to be loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.
[29] To similar effect, French CJ said “courts should be astute not to defer to that kind of apprehension that is engendered by the anticipation of an adverse outcome, rather than a legitimate concern about partiality” before later saying:
[45] The scrutiny required of claims of bias based on prior findings by a decision-maker was emphasised, in relation to administrative decisions, by Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal [(1990) 170 CLR 70]. Their Honours…said [at [100]]:
“When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.”
(emphasis added)
The requirement of an apprehension of bias, based on judicial conduct, be “firmly established” is consistent with the most recent decisions of this Court and gives content to the requirement that an apprehension of bias, in that class of case, be reasonable.
(citations omitted)
[30] Gummow J also referred to that passage and said that reference to apprehended bias being “firmly established” was “important”.
[31] The relevant inquiry seeks to put both the trial judge - and an appeal court examining that decision - in the position of a lay observer; to see the claim “through the eyes of non-judicial observers”, but not a non-judicial observer ignorant or wilfully blind to a knowledge of the law in general or the issue to be decided. The hypothetical observer “is reasonable and understands that [the trial judge] is a professional judge” but is “not presumed to reject the possibility of pre-judgment”.
24The test for apprehended bias 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. “The question the judge is required to decide” therefore becomes an important matter.
25At present, the outstanding matters for determination relate to the father’s applications for enforcement of the Final Orders and the mother’s application to re-appoint the ICL.
26The authorities establish that the following considerations are relevant:
(a)the fair-minded lay observer:-
(i)is reasonable;
(ii)is not unduly sensitive or suspicious but rather fair-minded and informed;
(iii)is willing and able to consider “the whole circumstances”; and
(iv)understands that a judicial officers training equips him or her to discard irrelevancies;
(b)the test for apprehended bias is an objective test of possibility (as distinct from probability), but the possibility must be real and not remote;
(c)the judicial officer should avoid any tendency to be over-ready to disqualify himself or herself from presiding over an appointed trial; and
(d)the case for disqualification must be “firmly established.” [1]
DISCUSSION
[1] See Charisteas & Charisteas [2016] FCWA 106 at [25] which was appealed; See XYZ Pty Ltd and Anor & Charisteas & Ors (2017) FLC 93-782. The Full Court found no error in the trial Judge’s refusal to recuse himself.
27The father has set out at length in his affidavits a series of complaints and criticisms which he asserts are demonstrative of bias. In the father’s oral submissions, he said he was relying primarily on three grounds in support of the recusal application:
(a)Denial of procedural fairness.
(b)Conflict of interest.
(c)Complaints about the trial and my Judgment.
28I now turn to each of the father’s complaints, as best I understand them. While I have not referred to each and every complaint which he has raised, I have carefully considered all of them. I have also carefully read and considered each of his affidavits. I intend to focus on what I have identified as the broad categories into which each of his complaints fall.
Denial of Procedural Fairness
29The father asserts that I denied him procedural fairness by refusing to allow him to file a further affidavit in support of his enforcement applications.
30On 14 May 2019 the father filed an application in a case, together with an affidavit in support. The father sought, amongst other matters, to enforce the Final Orders. Specifically he referred to:
(a)Order 8(b) which related to [the child] spending time with him in the school holidays in April 2019 and each year thereafter;
(b)Order 27 which required the mother to attend Mums and Dads Forever and provide him with proof of her completion; and
(c)Order 42 which required the mother to facilitate contact between [the child] and the father when both were in India, pursuant to a preceding order 41.
31The father’s application was accepted for filing and listed for directions only on 17 June 2019.
32The father then filed an amended application and further affidavit on 7 June 2019. He sought to enforce two additional orders namely:
(a)“Order 10(j)” which sought for [the child] to spend time with him on Hindu festivals as agreed; and
(b)“Order 15(b)” which sought for him to have electronic communication with [the child], when he was not in Perth.
33On 17 June 2019 the matter came before the Court for directions only. Both parties attended. The mother handed up her Form 2A and affidavit in response, which were accepted for filing. The father’s further affidavit sworn 13 June 2019 was also accepted for filing.
34The mother deposed her Form 2A and affidavit only responded to the father’s original application and affidavit, not his amended application and affidavit, which she had only been served with on 14 June 2019.
35I made orders granting the mother leave to file and serve a further affidavit, limited to responding to the father’s amended Application filed 7 June 2019 and further affidavit filed 13 June 2019. I then adjourned the proceedings to an interim hearing on 28 August 2019.
36The father complains on 17 June 2019 he sought leave to file another affidavit in response to the mother’s further affidavit, which I declined. He made that request on three occasions during the hearing. On each occasion, I declined his request.
37As I observed during that hearing, the father has filed three affidavits in support of his enforcement applications. The mother had not yet had an opportunity to respond to his recently amended application. I gave her leave to do so, only in relation to the new matters raised. She did and filed a further brief three page affidavit.
38It is well established that a judicial officer is entitled to take an active role in the management of proceedings.[2] It is not for litigants to dictate the conduct of proceedings. A judicial officer has responsibilities for the efficient and timely disposition of proceedings. The Court is a publicly funded resource. It is critical that resource is used efficiently and properly, as part of maintaining public confidence in the judicial system, in addition to the interests of other litigants in having their own cases heard in a timely manner.
[2] See Galea v Galea (1990) 19 NSWLR 263 at [281].
39With respect to both parties, each of their affidavit material contains irrelevant and inadmissible material. For example, the father makes a number of complaints about the mother’s previous solicitors. The mother makes a number of complaints about child support issues. As self-represented litigants, I appreciate they may have difficulties identifying relevant evidence to the issues now before the Court.
40While the father submitted that the mother had raised in her responding material that was “false and misleading” it was not apparent that any new matters had been raised, which were relevant or admissible.
41During the father’s oral submissions, he referred the Court to the facts of Gambaro v Mobycom Mobile Pty Ltd & Ors [2018] FCAFC 144. In that case, the Federal Court upheld an appeal from the Federal Circuit Court.
42During the course of those proceedings in first instance, the presiding Judge ordered the appellant’s removal from the court room and the matter proceeded in his absence. On appeal, it was asserted there was an apprehension of apprehended bias on the part of the primary judge; that the conduct of the hearing was unfair because of intimidating and excessive judicial intervention; and the appellant was denied an opportunity to be heard when he was removed from the courtroom.
43The respondents conceded the appellant had been denied procedural fairness because of interventions by the primary judge and his removal from the courtroom. As a consequence, the Court found it unnecessary to consider the apprehension of bias as asserted.
44The Federal Court found the primary judge had frequently been aggressive, rude and overbearing; that his conduct was intimidating, which made it difficult for the appellant to argue his case; that he wrongly threatened to have the appellant charged with contempt of court or accused him of having committed a contempt. Further, they found there was no justification for the primary judge to have directed that the appellant be removed from the courtroom.
45With respect to the father, that case is readily distinguishable from the current circumstances. The father has had the opportunity to file evidence in support of his application. The hearing of his application has not yet occurred. It cannot be said that the father has been deprived of the opportunity to make submissions in support of his application as the application has not yet been heard.
46A directions hearing only was listed on 17 June 2019. The transcript of the hearing, to which the father refers, demonstrates that he was given an opportunity to address the Court in support of his application to file further evidence. His complaint seems to be more to the fact that his application to do so was denied.
47In the circumstances, I do not consider there is substance to the father’s complaint about a denial of procedural fairness.
The Trial
48The father was represented by experienced counsel and solicitor during the trial. A recusal application should ordinarily be made without delay. Failure to do so may result in the complaining party having waived their right to seek a remedy in respect of the alleged bias.
49To the extent the father complains about my conduct of the trial, he had the benefit of independent legal advice during that time. No application was made during the trial that I recuse myself. In my view, the father has not provided any appropriate or adequate explanation for the delay.
50Notwithstanding that view, even if the father’s complaints are considered to have been raised in a timely manner, I do not consider they have any merit. The father was unable to point to anything specific in terms of the conduct of the trial to support his claims that there was a reasonable apprehension that I was not independent, impartial or had otherwise predetermined the matter.
51On appeal, Justice Strickland accepted the ICL’s submissions that the father’s appeal was broadly based on a number of grounds, as set out in paragraph 24 of his Honour’s Judgment. The father’s assertions in support of the appeal included the following complaints:
(a)The trial was heard by a Magistrate, and ought to have been heard by a Judge given the complexity of the matter.
(b)I was biased, or there was an apprehension of bias.
(c)The ICL was biased or acted in a manner so as to reasonably create an apprehension of bias.
52Justice Strickland found the father’s complaint about the trial being listed before a Magistrate, as opposed to a Judge, had no merit.
53His Honour considered jointly the father’s assertions in relation to bias concerning the Magistrate and the ICL, because the father asserted he had suspicions the mother’s solicitor and the ICL were colluding and that my decision was biased as a result.
54His Honour found at [35] the father led no admissible evidence in support of the alleged collusion. His Honour went on to state:
36What seems to be more the case is that the father suggests that her Honour was biased because her Honour failed to take account of his affidavit material, relied more on the evidence of the mother, was influenced by the submissions of the ICL based on the report of the single expert witness, and failed to make the orders that he sought.
37.As will be seen when I address this issue later in these reasons, it is not the case that her Honour failed to take into account the father’s affidavit material. Further, given that there was no cross-examination at the request of the parties, it was open to the Magistrate to rely on the unchallenged report of the single expert witness, and the ICL’s recommendations based on that report. Further, bias is not demonstrated by a judicial officer failing to make orders sought by one of the parties (Prantage & Prantage (2015) FamCAFC 145 at [85]).
38.It is also not open to a litigant to seek to mount an appeal alleging bias where that complaint was not raised before the first instance judicial officer, and that is the case here (Vakauta v Kelly (1989) 167 CLR 568).
39.Accordingly these assertions have no merit.
55Many of the father’s complaints centred on the outcome I determined, which did not accord with his proposals. The mere fact that my Judgment did not go the father’s way is not demonstrative of bias, and falls into the very category of fallacious argument against which the High Court warned in Michael Wilson (supra) at [67].
56In relation to the balance of complaints raised by the father, he submitted his Notice of Appeal identified in excess of 20 factual errors. The appeal has been determined and dismissed. Justice Strickland found, amongst other matters, that the father’s amended appeal did not contain identifiable and competent grounds of appeal; that the father failed to identify any appealable error made by me nor was any error apparent; that none of the father’s complaints had merit; and the father fell into the trap of simply looking to re-run his case in the Court.
Conflict of Interest
57The father says there is a conflict of interest in my ongoing conduct of the proceedings, in circumstances where I heard the trial and made the Final Orders, which he has sought to appeal.
58The appeal has now been determined and dismissed. The father was unsuccessful.
59The father complains that his application to enforce the Final Orders and his application for my recusal were listed before me. As I explained to the father during the hearing, an application for recusal is ordinarily required to be heard by the judicial officer who is sought to be recused, as reflected in the authorities to which I have referred.
60I further explained to the father that it is standard practice for enforcement applications to be heard by the judicial officer who made the orders, where practicable.
61The father has not identified any conflict of interest, nor am I satisfied that any such conflict exists.
62I am not satisfied the father’s claims sustain an allegation of an apprehension of bias.
CONCLUSIONS
63I accept the father’s beliefs are genuinely held. I accept he, as a self-represented litigant, struggles to put himself into the shoes of a reasonable fair-minded lay observer, in circumstances where the proceedings are highly personal and important to him. I accept he is aggrieved with the outcome of the trial. He has appealed that outcome, which has been dismissed.
64However, the inquiry is not directed towards the father’s subjective views. The relevant question is whether a reasonable observer may find that I have closed my mind or am not capable of being persuaded, in determining the outstanding applications which are limited to those I have already identified. As identified the fictional observer is “reasonable and understands that [the trial judge] is a professional judge”.[3]
[3] British American Tobacco (supra) at [144].
65The reasonable observer is one who is presumed not to be unduly sensitive or suspicious. A reasonable observer is informed and understands that a judicial officer is equipped to disregard irrelevancies. The reasonable observer is able to consider the entire circumstances.
66The authorities establish that a judicial officer should avoid a tendency to readily recuse themselves and applications for disqualification must be firmly established.
67In my view, nothing raised by the father properly or relevantly satisfies, as a matter of fact and/or law, the principles that apply in relation to apprehension of bias applications. I am not satisfied that he has established a basis for my recusal and accordingly, I will dismiss the application.
68The outstanding applications relate to enforcement and the mother’s application for re-appointment of the ICL. Given the delays in those applications being listed for hearing, I propose to hear from the parties as to what further directions, if any, are required to program those applications for hearing.
PROPOSED ORDERS
69I propose, subject to hearing from the parties, to make the following procedural orders:
1.The Applicant’s Form 2 Application in a Case filed 31 July 2019 with the Respondent’s Form 2A Response filed 22 August 2019 be dismissed.
2.Legal Aid be included on the distribution list of these orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary27 SEPTEMBER 2019
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