Langbridge & Nell
[2023] FedCFamC2F 689
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Langbridge & Nell [2023] FedCFamC2F 689
File number(s): MLC 8856 of 2020 Judgment of: JUDGE JENKINS Date of judgment: 24 May 2023 Catchwords: FAMILY LAW – practice and procedure – apprehended bias – application dismissed Legislation: Family Law Act 1975 (Cth) Cases cited: Ebner v The Official Trustee in Bankruptcy [200] HCA 63
Re J.R.L; Ex parte C.J.L. (1986) 161 CLR 342
Woodside Energy Limited v Australian Workers Union [2022] FCA 1391
Division: Division 2 Family Law Number of paragraphs: 18 Date of last submission/s: 19 May 2023 Date of hearing: 19 May 2023 and 24 May 2023 Place: Melbourne Counsel for the Applicant: The Applicant in person Counsel for the Respondent: Ms Skinner on 19 May 2023 & Mr Sharma solicitor on 24 May 2023 Solicitor for the Respondent: Kaj Sharma Legal Counsel for the Independent Children's Lawyer: Mr Leeton Solicitor for the Independent Children's Lawyer: Lampe Family Lawyers ORDERS
MLC 8856 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LANGBRIDGE
Applicant
AND: MS NELL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE JENKINS
DATE OF ORDER:
24 MAY 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Applicant father on 8 April 2023 is dismissed.
2.The matter remains listed for trial on 17 and 18 July 2023 at 10.00am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Langbridge & Nell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(EX TEMPORE)JUDGE JENKINS
These reasons were delivered orally and have been edited and corrected from transcript. I have endeavoured to correct grammatical errors, clarify any citations and generally make my oral reasons easier to read.
INTRODUCTION
This matter concerns the application of Mr Langbridge (“the father”) that I recuse myself on the basis of apprehended bias. The background of this matter is set out in a judgment I handed down on 22 March 2023. I do not propose to revisit that history in full save to note the following.
BRIEF HISTORY
This matter first came before me for Trial when it was transferred from Judge Forbes’ docket on 28 February 2023. Unfortunately, it was not able to proceed as there was another Trial that had priority on that day. At the end of that day the parties handed up a minute of orders which I was informed at that time was by consent except for one order. The minute provided for X to live with the mother and the order that was not agreed was that X be returned to the mother at 3:00 pm that day. I was told that this order was resisted on the basis that it was superfluous. I made the order nonetheless. The Trial was otherwise relisted with priority on 17 and 18 July 2023, these being the earliest dates on which it could be accommodated.
My Chambers subsequently received notification that X had not been returned to the mother pursuant to those orders. Consequently, the matter was relisted before me the following day being 1 March 2023 and at that hearing the father submitted to the Court that the orders made the previous day were not by consent. The father also wished to rely on texts sent to him by X to show that she did not wish to go to the mother. I denied the father the opportunity to rely on the texts on that day. On the face of it, the orders were made by consent and there was no application before the Court to appeal or stay those orders or to otherwise set them aside. The only question I had for the father at that time was whether he would be able to return X to the mother or whether I would have to issue a recovery order.
As the father was not able to satisfy me that he would be able to return X to the mother, I made the recovery order. Furthermore, I suspended the orders for the father’s time as I was not satisfied he would be able to get X to return to her mother if she spent time with him in the immediate future.
As the orders had been suspended without notice to the father and without the father having been able to file evidence, I listed the matter for an interim hearing on 17 March 2023 so as to give him the opportunity to be heard. The father subsequently filed an Application in a Proceeding and an affidavit in support. Having heard the argument on 17 March 2023 I determined in a judgment which was handed down on 22 March 2023 that it was not in X’s best interests to spend any time with the father on an interim basis.
APPREHENDED BIAS APPLICATION
The father has now filed a further Application in a Proceeding in which he seeks a myriad of orders. However, at the outset of the hearing he clarified that he now only sought my recusal.
In support of that application the father relied upon his affidavit which was filed on 8 April 2023. That affidavit is quite dense and largely contains evidence that is not relevant to the issue at hand. Likewise, the father’s submissions were, for the most part, based on his view that the decision made on 22 March 2023 was not in X’s best interests rather than matters that related to apprehended bias.
Insofar as the submissions related to apprehended bias, the father’s case appears to be that since he failed to comply with the orders made on 28 February 2023 that I have taken a dislike to him and have favoured the mother, albeit that a number of his complaints predate this non‑compliance.
The father firstly submits that he was disadvantaged by the adjournment of the original Trial from 14 February to 28 February 2023. However, this relisting was not personal to the father but was the consequence of the matter being transferred into my docket. The father also seems to believe that I made the consent orders on 28 February 2023 knowing he did not consent but this was simply not the case. In addition, he asserts that on 28 February 2023 I favoured the mother by not relisting the matter urgently however contrary to this the Trial was given the next available listing with priority.
Treatment of the father since 28 February 2023
The father made a number of submissions in regards to his treatment by the Court since his failure to comply with the orders of 28 February 2023.
·Firstly, the father asserts that at the hearing on 1 March 2023 he was not given an opportunity to explain why he had not returned X and that I did not allow him to rely on text messages sent by X;
·Secondly, that I had not ‘punished’ the mother for failing to cooperate with the father to return X which could have avoided the recovery order having to be executed;
·Thirdly, that at the hearing on 17 March 2023 I limited the father to the affidavit filed on 5 March 2023 and did not allow earlier affidavits or other documents filed in this matter to be relied upon and yet allowed counsel for the mother to rely on historical affidavit material and reports;
·Fourthly, that the father was ignored and cut off from speaking at the hearing on 17 March 2023; and
·Finally, that having heard the matter on 17 March 2023 I determined the father was “manipulative” and had influenced X and yet did not consider that X had been self‑harming at the mother’s house.
In regards to these assertions I say as follows.
·On 1 March 2023 there was no application before the Court. Accordingly, I did not allow the father to hand up evidence including texts from X or make submissions about the consent orders. Submissions were limited to how the orders would be enforced. However, the father was subsequently allowed to rely on the texts at the 17 March 2023 hearing which were annexed to an affidavit that was filed with the Court;
·On 1 March 2023 I made a recovery order and there was no order or otherwise any obligation on the mother to cooperate with the father as to X’s return to avoid that order being executed;
·In regard to the hearing on 17 March 2023 I have re-listened to the recording and at no point was the father limited to the affidavit he had filed for the interim hearing. I merely clarified which affidavit he was relying upon. It is also clear that the father was given many opportunities to make the submissions he wished to make. He was only interrupted to clarify issues of concern to the Court or to redirect him to matters of relevance. He was asked on more than one occasion if he had anything else to say. He was also given the opportunity to respond. Ms Skinner, Counsel for the mother, was likewise challenged about the information she relied upon and how it related to the mother’s position and having done so I formed the view that it was relevant;
·On that last issue, in my judgment on 22 March 2023 I do express concern, given the father’s lack of insight, that he is likely to continue to influence X. This was a live issue raised by both the mother’s Counsel and the Independent Children’s Lawyer. On the other hand, I did not see X self-harming in her mother’s care as particularly determinative given the father was proposing shared care.
THE LAW
The law in this area is well settled and a recent helpful example is set out in Woodside Energy Limited v Australian Workers Union [2022] FCA 1391. The test was clearly set out in that case as follows at [48] – [49]:
The test for reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not have brought an impartial and unprejudiced mind for the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337…A two-step process is involved. The first requires the identification of what is said that might lead the decision-maker to decide the case other than on its merits. The second requires the articulation of a logical connection between the suggested reason and the feared deviation from that course. See Ebner at [8].
A finding of apprehended bias is not to be reached lightly. The contrary it must be “firmly established” See Re JRL; Ex parte CJL. (1986) CLR 39 at 352 (Mason J); at 364 (Wilson J); 371 (Dawson J). There must be “strong grounds” for inferring the existence of a reasonable suspicion: Re JRL; Ex Parte CJL at 359-360 (Wilson J)…
(as per the original)
In this matter the large majority of the father’s submissions related to his belief that the orders made on 22 March 2023 were not in X’s best interests and that the Court did not place sufficient weight on his submissions and/or have regard to certain parts of his evidence. If the father is right these are matters which may have given rise to grounds for an appeal, however, the father has not sought to appeal those orders.
DETERMINATION
Having heard all of the father’s submissions and read the material on which he relies I do not find that there are strong grounds or, indeed, any grounds for inferring apprehended bias. To put it another way, I do not find that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of X’s care. The father’s application in a proceeding is, therefore, dismissed.
The matter remains listed for trial on 17 July 2023 before myself for two days. In that regard, it appears the real issue for the father is that because the case was adjourned on 14 February 2023, was not reached on 28 February 2023 and will not be heard until July at the earliest - that he believes his case for shared care will have no realistic prospect of success. The father is of the view that because X will have been in school near the mother from March until July that the Court is unlikely to move her and, if so, shared care will be unworkable.
The father ought to be reassured that the Court has not heard any of the evidence in this matter and, ultimately, where X lives and goes to school is yet to be determined. Just because X has attended a school for four or five months does not render this a fait accompli. Indeed, this is a very short period in a child’s life and the school is but one of a myriad of issues to be taken into consideration in this matter and the Court would not hesitate to move X’s school if it was determined at the end of the Trial that it would be in her best interests to do so. As I have said, the matter remains listed for Trial. The issue of costs has already been reserved to that Trial.
For all of these reasons, I make orders as set out at the commencement of my judgment.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Jenkins. Associate:
Dated: 16 June 2023
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