Klearchos and Klearchos and Ors

[2015] FamCA 309

FAMILY COURT OF AUSTRALIA

KLEARCHOS & KLEARCHOS & ORS [2015] FamCA 309

FAMILY LAW – PRACTICE AND PROCEDURE – Disqualification – Where the husband submits apprehended bias – Where the test is an objective one

Family Law Act 1975 (Cth) -

Johnson v Johnson (No. 3) (2000) FLC 93-041
Re JRL; ex parte CJL (1986) 161 CLR 342 at 352

APPLICANT: Mr Klearchos

1^ST RESPONDENT: Ms Klearchos

2^ND RESPONDENT: E Pty Ltd

3^RD RESPONDENT: Q Pty Ltd

4^TH RESPONDENT: R Pty Ltd

FILE NUMBER: SYC 2977 of 2013

DATE DELIVERED: 26 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 26 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd, SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan Family Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Mr Bell

SOLICITOR FOR THE 1^ST RESPONDENT: Neville & Hourn Legal

COUNSEL FOR THE 2^ND, 3^RD & 4^TH RESPONDENTS: Mr Connor

SOLICITOR FOR THE 2^ND, 3^RD & 4^TH RESPONDENTS:: Rockwell Olivier

Orders

1. That the disqualification application contained at paragraph 2 of the husband’s Response to an Application in a Case filed on 13 February 2015 is dismissed.

2. That the nine days allocated for the hearing of the substantive proceedings commencing 9 June 2015 are vacated.

3. That it is noted that the husband does not press his application for a stay of the orders made on 13 November 2014 at this time.

4. That the wife’s contravention application returnable on 16 March 2015 is adjourned for mention only to 2:15 pm on 13 April 2015.

5. That 16 March 2015 is vacated.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Klearchos & Klearchos and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2977 of 2013

Mr Klearchos

Applicant

And

Ms Klearchos

1^st Respondent

And

E Pty Ltd

2^nd Respondent

And

Q Pty Ltd

3^rd Respondent

And

R Pty Ltd

4^th Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Klearchos for an order that I disqualify myself from hearing further proceedings between him and Ms Klearchos.  For convenience, I shall refer to Mr Klearchos as “the husband”.  The application is opposed by Ms Klearchos, to whom for convenience I shall refer as “the wife”.  There are other respondents in the proceedings, being various corporations.  Learned counsel for these respondents informed the Court that he did not wish to be heard on the disqualification application.

2. The disqualification application follows interim and interlocutory orders made by me on 13 November 2014 in financial proceedings between the husband and the wife.  It is said that it arises particularly from my reasons for judgment.  The orders included orders that pending further order, the husband pay to the wife specified periodic spousal maintenance and that he pay to her solicitors money for her legal fees on a “dollar by dollar” basis.

3. It is submitted on behalf of the husband that I disqualify myself on the basis of apprehended bias.  It is submitted that in the course of determining the applications in relation to interim spousal maintenance and costs, I have made a number of findings of fact which were not supported by the evidence.  It is submitted that as a consequence, the husband has been given the impression of apprehended bias.

4. The first of these matters said to support apprehended bias is at paragraph 97 of my reasons for judgment and it is as follows:

   He (the husband) is able to influence the directors of [E] to continue to provide benefits for the wife and the children.

5. The second matter raised by learned senior counsel for the husband is a passage in the conclusion at paragraph 98.  I shall refer to the whole conclusion and underline the sentence referred to by senior counsel.  Paragraph 98 is as follows:

   In all the circumstances, I find it more probable than not that the husband would be able arrange his admittedly complex financial circumstances in such a manner as to enable him to pay the wife interim costs and interim spousal maintenance in an appropriate amount.  His assertions about his relatively impoverished state stand in marked contrast against the affluent lifestyle he continues to enjoy.

6. And this is the part that was raised:

   And in all the circumstances as I have expressed them to be above, in my view, it would be just for him to be required to do so, even if this meant that he borrowed funds to do so.

7. And then paragraph 98 goes on to say:

   There would be nothing new about the husband borrowing money because on his own evidence, he has demonstrated capacity to borrow considerable amounts for business purposes.

8. The other matter said to support a claim of apprehended bias is at paragraph 37 and is as follows:

   The husband has asserted consistently that his liabilities exceed the value of his property.  This is not clear to the wife or the Court at this time.  One would anticipate that this situation will become much clearer once a single expert has been able to prepare a report about the husband’s financial circumstances.

9. In my view, these matters said to support the claim are to be viewed in the context in which they occur, namely, a determination of the interim or interlocutory applications, which each of the husband and the wife sought to have considered and determined.  In hearing such applications, it is correct to say that the Court is unable to make final findings of fact.  I have not done so and the views expressed are preliminary views only based on the limited, untested material in what was a circumscribed hearing.

10. In any event, the test to be applied is an objective one.  It has been set out in numerous authorities over the years, including the High Court case of Johnson v Johnson (No. 3) (2000) FLC 93-041, where the majority said at pages 87,631 and 87,632 as follows:

    … 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 or unprejudiced mind to the resolution of the question the judge is required to decide.

11. I note also, in Callinan J’s judgment, his Honour refers to the following passage by Mason J in Re JRL; ex parte CJL (1986) 161 CLR 342 at 352:

    It needs to be said 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.  There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties.  But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring there is a reasonable apprehension that he will approach the issues in this way.

12. Upon applying this test, I am not persuaded that my reasons for judgment in relation to interlocutory matters provide an acceptable basis for any reasonable apprehension that I will approach the issues in these proceedings in other than an impartial manner.  I propose to dismiss the application.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 26 February 2015.

Associate:     

Date:              30 April 2015