Lesley and Atkinson and Ors

[2020] FamCA 233

FAMILY COURT OF AUSTRALIA

LESLEY & ATKINSON AND ORS [2020] FamCA 233

FAMILY LAW – PRACTICE AND PROCEDURE – application for recusal on the basis of apprehended bias – order of transfer to Federal Circuit Court – recusal.

Family Law Act 1975 (Cth)

Johnson & Johnson (2000) 201 CLR 488

APPLICANT: Ms Lesley

RESPONDENT: Mr Atkinson

SECOND RESPONDENTS: Mr C Atkinson & Ms B Atkinson

FILE NUMBER: CAC 1799 of 2019

DATE DELIVERED: 3 April 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 2 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Phelps Reid Foster Johnson Lawyers

COUNSEL FOR THE APPLICANT: Mr Haddock

SOLICITOR FOR THE RESPONDENT: Hughes And Co Lawyers and Conveyancing

COUNSEL FOR THE RESPONDENT: Ms Webb

SOLICITOR FOR THE SECOND RESPONDENTS: Matthews Williams Solicitors

COUNSEL FOR THE SECOND RESPONDENTS: Mr Breeze

Orders

1. That on transfer of this matter to the Federal Circuit Court in accordance with this order of transfer, that is that the matter be transferred at a date to suit the Federal Circuit Court for the next appearance, that I recuse myself from these proceedings.

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 Lesley & Atkinson 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 CANBERRA

FILE NUMBER: CAC 1799 of 2019

Ms Lesley

Applicant

And

Mr Atkinson

Respondent

And

Mr C Atkinson & Ms B Atkinson 

Second Respondents

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me following transfer from the Canberra Registry of the Federal Circuit Court made earlier today.  That transfer I understand from the terms of the order was made with the consent of the parties. 

2. The transfer of the proceedings occurred in a context where there was today listed before that Court a complex, interim application.  The matter was transferred to this Court and this Court was about to embark upon a determination of those complex interim matters. 

3. As has been indicated for the Father, although perhaps it did not require indication, the subject matter of the dispute between the parties is of great importance to them.  The subject matter concerns parenting arrangements, and it also concerns property arrangements concerning a farm which I understand has been within the Father's family for some significant period of time.  The application concerns the potential sale of that farm on an interim basis. 

4. When the matter came before me this afternoon, there was promptly raised an application that I recuse myself on the basis of apprehended bias. 

5. I was referred to leading authority by the High Court including Johnson & Johnson as to the test to be applied in respect of apprehended bias.[1]  It was reinforced before me that there was no allegation of actual bias or indication of actual bias on my part, but that the test that I was to apply, as is uncontroversial and set out in Johnson & Johnson, 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. 

   [1] (2000) 201 CLR 488

6. Such applications are sometimes difficult to bring.  They are brought in the context where the Court is to exercise a mandatory jurisdiction to hear matters.  It is no small thing to make application to the Court that it not hear a matter that is within its jurisdiction on the basis of apprehended bias.  Notwithstanding those difficulties, the application has been made promptly on the matters transferred to me. 

7. It is not suggested that I have given any indication in the case that would give rise to an apprehension of bias.  It is not suggested that I've conducted myself in any manner which would give rise to such an indication nor that I have any relationship with the parties or any witnesses in the matter that might give rise to such an application. 

8. Ordinarily, one would consider that that would result in the prompt disposal of an application such as was made today.  However, the rule is in place for the protection of the integrity of the Courts and also the protection of the objective appearance of that integrity, such that there might be appropriate trust in the Court that matters are being discharged of impartially. 

9. Here the matter arises as a member of what is a closely knit Chambers staff, via a relationship that she has with a previous member of the Family Court of Australia's Chambers in Canberra and by virtue of interactions between the staff member and one of the parties in this case flowing from that relationship, has raised the issue. 

10. It should be remembered in considering this matter that no criticism is made by any of the parties of the member of Chambers staff having an interaction with one of the parties in the public area of the Courts.  Indeed, how could there be any criticism.  At that time, this matter was proceeding before the Federal Circuit Court of Australia.  One would think that no such issue could arise, given the separateness of that Court.  However, it is a matter that does arise once it was transferred to this Court this morning. 

11. This is not a run-of-the-mill application on the basis of apprehended bias.  However, the protection of public confidence in the objectivity and impartiality of the Courts is sufficient in these circumstances to accede to the application.  The circumstances where a member of the Chambers staff has a close relationship, or is alleged to have a close relationship with a close family member of one of the parties, and thereby has a relationship with one of the parties, is sufficient to justify acceding to the application and accordingly I will recuse myself. 

12. It has been indicated for the party seeking the recusal that I take the step of transferring the matter to the Federal Circuit Court.  On doing so, no demurrer has been made by the other parties as to that particular course of action and it appears to me that that will give the parties the most rapid hearing of the outstanding interim matters which would have otherwise been heard today, and so I intend to make that order following recusal. 

13. Accordingly it is ordered that on transfer of this matter to the Federal Circuit Court in accordance with this order of transfer, that is that the matter be transferred at a date to suit the Federal Circuit Court for the next appearance, that I recuse myself from these proceedings.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 3 April 2020.

Associate:

Date:  8 April 2020