Leroux & Leroux & Ors (No 2)

[2016] FamCA 524

FAMILY COURT OF AUSTRALIA

LEROUX & LEROUX AND ORS (NO 2) [2016] FamCA 524

FAMILY LAW – PRACTICE AND PROCEDURE – Application by father for an adjournment of his application that judge disqualify himself – Adjournment application refused -Application that judge disqualify himself dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – Application by father for adjournment of his application for a review of a registrars determination – Application adjourned to a fixed hearing date

FAMILY LAW – PRACTICE AND PROCEDURE - Application by father for an adjournment of his application seeking procedural orders – Application adjourned for hearing to a fixed date

FAMILY LAW – PRACTICE AND PROCEDURE – Application by father for an adjournment of application by Independent Children’s Lawyer for procedural orders – Application adjourned to fixed dated

Family Law Act 1975 (Cth)

Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041
Re JRL; Ex Parte CJL (1986) 161 CLR 342

APPLICANT: Mr Leroux

RESPONDENT: Ms Leroux

INTERVENORS: Mr H Digby and Ms Digby

INDEPENDENT CHILDREN’S LAWYER: Mr P Fitzgerald

FILE NUMBER: HBC 909 of 2014

DATE DELIVERED: 13 May 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 13 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Blissenden

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERVENERS:

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Blissenden Lawyers

In person

Mr P Fitzgerald

Legal Aid Commission of Tasmania

Orders

1. The application made on behalf of the applicant dated 12 May 2016 that Benjamin J disqualify himself from further hearing of the application in these proceedings is dismissed.

2. The interim applications and the review of the Registrar’s determination is listed for interim hearing at 8.00am on Wednesday 18 May 2016.

3. Costs of all parties be reserved.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leroux & Leroux and Ors (No 2) 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 HOBART

FILE NUMBER: HBC 909 of 2014

Mr Leroux

Applicant

And

Ms Leroux

Respondent

And

Mr H Digby and Ms Digby
Intervenors

EX TEMPORE REASONS FOR JUDGMENT

1. In these proceedings there are a number of interim applications and a review of a determination by a registrar for me to consider and determine. 

2. One of the applications is an application by Mr Leroux (‘the father’) that I disqualify myself from further involvement in these proceedings.  I indicated to the father that I would deal with that application first.  He then pressed an application for adjournment based upon a medical certificate by Dr I, dated 26 April 2016, which was annexed to his affidavit filed 27 April 2016.  That medical certificate was provided on Centrelink letterhead and makes a diagnosis of the father of “stress overload”. 

3. The onset of the “stress overload” was 25 August 2015, and the psychiatrist describes the condition as temporary.  He estimates that the patient’s capacity for work or for study will be affected for a period of less than three months.  The symptoms are ‘exhaustion, insomnia and startle response prevalent’.  The treatment is supportive psychotherapy, which has occurred in the past, and current supportive psychotherapy and planned supportive psychotherapy.  In relation to the question, “Please give details of any other medical conditions which impact upon the patient’s capacity to work or study,” Dr I observes:-

   He is involved in court cases that he runs himself (with no lawyers).

4. Dr I then says that in his opinion the father is unfit for work or study from 26 April 2016 to 18 May 2016.  As I said, that document is dated 26 April 2016.  The submission of the father is that a short adjournment would not seriously impact on these proceedings. 

5. In response, the legal practitioner for Ms Leroux (‘the mother’) has taken me to paragraphs 10 and 15 of the mother’s affidavit filed 6 May 2016.  In paragraph 10, she says that on 27 April 2016 the Registrar, on being presented with the medical certificate referred to, adjourned her application as to disclosure by the father and the appointment of a single expert to 25 May 2016 for hearing. 

6. The mother goes on to say since that time the father has prepared and filed the application and supporting material to which he was concerned, and continued to engage in extensive correspondence, including numerous emails between 27 April 2016 and 5 May 2016.  Further, she deposes that the father had made an application to vary the Family Violence Order listed in the Magistrates Court on 28 April 2016.  She sets out at paragraph 15 the amount of litigation in which the parties have been involved, much of which has been on the motion of the father. 

7. The application of the father was supported by the intervenor, his father, Mr Digby.  The Independent Children’s Lawyer took me to the relevant authorities and noted the material upon which the mother relied, and expressed his view that given all of the circumstances the adjournment should be granted.  The practical effect of the adjournment would be that, if granted, it would be for a period of at least two and a half weeks, on the basis that I am unavailable in this Registry on Thursday and Friday of next week.

8. I intend to deal with part of the application today and I intend to deal with the balance of the applications next Wednesday morning at 9.00 am.  The part of the application with which I intend to deal today will be that in relation to the application that I disqualify myself from further hearing these proceedings.  Otherwise, if we come back next Wednesday and I determine that I should disqualify myself, it will go to another day and we will have a cascading event.  I am very conscious that on 11 February 2016 this matter was listed for hearing in late August 2016, some eight or nine months ahead and that as the time passes the ability for this matter to be heard at that time is becoming problematic. 

9. I am concerned about the impact of these proceedings on all parties, not just the father, but the mother and, in particular, the children who are the subject of this litigation.  It needs to come to an end and a determination needs to be made so that these children are not further burdened by ongoing poking and prodding by a court.  Accordingly, I refuse the application for the adjournment in terms of the application that I disqualify myself.  I grant the application in terms of the other outstanding matters and list those for hearing at 8.00am on Wednesday of next week. 

10. There is an application before me filed by the father, asking that I disqualify myself from further involvement in this proceeding based on actual and perceived bias.  The factual matters upon which the father makes that application are contained in his affidavit, filed and sworn 12 May 2016.  They fall into two areas.  Firstly, that I have previous knowledge of a related matter;  and, secondly, that I have previous dealings with a related matter,. 

11. During the course of the father’s address or at the commencement of his address, I went through, as I understood it, my involvement with that particular matter which ended just over three years ago.  It would appear that I had made directions for a hearing and interlocutory directions in relation to property proceedings.  The proceedings were listed before me and were settled.  I made consent orders in those proceedings without making any findings of credit. 

12. During the course of his address, the father endeavoured to provide evidence of my state of mind or state of behaviour during the course of that hearing.  No transcripts were provided and I rejected his submissions in that regard.  I reminded him, as I have in the past, that he has an obligation to provide evidence in support of any application, but particularly an application as serious as asking a judge to disqualify himself or herself from determining a case, particularly in a case such as this, where I became involved in it in August of 2015 and where I listed the matter for hearing before me, by orders made on 11 February 2016, for a final hearing in late August 2016. 

13. The law in relation to disqualification is well settled and is set out in Johnson & Johnson (2000) 201 CLR 488, where the plurality of the High Court, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ set out the approach at 492 and 493:-

    10.  The disposition of this appeal depends upon the application of principles which are well established and which neither party disputed. The contention was that there had been a departure from those principles which the Full Court of the Family Court had wrongly failed to correct, thus calling for the intervention of this Court, if only to emphasise the importance of intermediate courts applying these principles. In these circumstances it is neither necessary nor appropriate to undertake any detailed analysis of the principles or their basis.

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

    12.  That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The 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. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.

    13.  Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

    (footnotes omitted)

14. I also have regard to the comments made by Mason J in Re JRL; Ex Parte CJL (1986) 161 CLR 342 where at page 352 his Honour said:-

    It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation.  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 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 or 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 the case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that this previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.  In cases of this kind, disqualification is only made by showing that there is a reasonable apprehension of bias by reason of prejudgment and that must be “firmly established.  See Regina v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw.  Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. 

15. The fact that I was involved in an administrative sense in terms of readying the related case for hearing and in terms of making a consent order at the request of each of the parties, in my view, does not give rise to a perception of bias or a perception of apprehended bias. 

16. There were no findings by me in relation to those proceedings.  In relation to the publicity which the father says surrounded some perennial proceedings, I asked the father for authorities, and he indicated that he could get some, but said they would be likely to be from the United States. 

17. This is a case where the father has been involved in the court system in Tasmania extensively in the last 12 or 18 months.  This is a case where, like many cases, there may be some people who have notoriety or are famous.  I do not know.  This Court does not judge people and has not judged people.  Australian courts do not judge people and will not judge people on what they may or may not read in the paper or hear in the media.  On the material before me, the application by the father that I disqualify myself cannot succeed.  Accordingly, I make the following orders.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 13 May 2016.

Associate:     

Date:              13 May 2016