Marino & Bello
[2020] FamCAFC 314
•11 December 2020
FAMILY COURT OF AUSTRALIA
| MARINO & BELLO AND ANOR | [2020] FamCAFC 314 |
| FAMILY LAW – APPEAL – PARENTING – RECUSAL – SUMMARY DISMISSAL – Apprehended bias – Procedural fairness – Error of law – Recusal order plainly wrong – Where the respondents concede the appeals – Appeals allowed – No order as to costs. |
| Family Law Act 1975 (Cth) |
| Bretton & Bondai [2013] FamCAFC 168 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Lindon v Commonwealth of Australia(No 2) (1996) 136 ALR 251; [1996] HCA 14 Marino & Bello & Anor [2020] FCCA 1727 Marino & Bello & Anor (No.2) [2020] FCCA 2203 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 |
| APPELLANT: | Mr Marino |
| FIRST RESPONDENT: | Mr Bello |
| SECOND RESPONDENT: | Ms Bello |
| FILE NUMBER: | PAC | 437 | of | 2020 |
| FIRST APPEAL NUMBER: | EAA | 106 | of | 2020 |
| SECOND APPEAL NUMBER: | EAA | 136 | of | 2020 |
| DATE DELIVERED: | 11 December 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 6 November 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 June 2020; and 15 September 2020 |
| LOWER COURT MNC: | [2020] FCCA 1727; and [2020] FCCA 2203 |
REPRESENTATION
| APPELLANT: | Litigant in person |
| COUNSEL FOR THE FIRST AND SECOND RESPONDENTS: | Ms Dart |
| SOLICITOR FOR THE FIRST AND SECOND RESPONDENTS: | Rowlandson & Co Solicitors |
Orders made on 6 November 2020
Leave be granted to the appellant to rely on his Submissions in Reply dated 4 November 2020.
Leave be granted to the first and second respondents to rely on their Amended Summary of Argument received by the Court on 5 November 2020 and Amended Schedule of Costs received by the Court on 5 November 2020.
The appeals EAA 106 of 2020 & EAA 136 of 2020 be allowed.
The orders of the primary judge made on 26 June 2020 and 15 September 2020 be set aside.
By no later than 4 December 2020 at 4.00 pm the appellant is to file and serve a Summary of Argument of no more than five (5) pages as to the point of his standing to bring proceedings.
By no later than 18 December 2020 at 4.00 pm the first and second respondents are to file and serve a Summary of Argument in response of no more than five (5) pages.
It is further ordered on 11 December 2020
The Application in an Appeal to adduce further evidence filed on 28 October 2020 is dismissed.
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 Marino & Bello and Anor 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EAA 106 of 2020 & EAA 136 of 2020
File Number: PAC 437 of 2020
| Mr Marino |
Appellant
And
| Mr Bello |
First Respondent
And
| Ms Bello |
Second Respondent
REASONS FOR JUDGMENT
Mr Marino (“the appellant”) appeals orders made by a judge of the Federal Circuit Court on 26 June 2020 in which the primary judge refused to recuse himself from further hearing the appellant’s application to spend time with his sister’s children (Appeal No. EAA 106 of 2020). The primary judge thereafter proceeded to list and hear a summary dismissal application brought by Mr Bello and Ms Bello (“the respondents”) as a result of which on 15 September 2020 his Honour ordered that the appellant’s application be summarily dismissed. His Honour further made a costs order in favour of the respondents. The appellant also appeals those orders (Appeal No. EAA 136 of 2020).
The appellant, who represents himself, contends that the primary judge showed both actual and apprehended bias against him, denied him procedural fairness and made incorrect findings of fact. The appellant also contends that the primary judge made errors of law and failed to take into account relevant considerations or took into account irrelevant considerations in proceeding to summarily dismiss his application.
The appellant, through his Application in an Appeal filed on 28 October 2020 also sought to adduce further evidence on the appeal. Given the appeals were allowed and the impugned orders set aside, there was no point in considering the application as it related to the appeal hearing. This application will thus be dismissed.
The appeals were heard on 6 November 2020 and after hearing argument, the respondent conceded the appeals. Thus orders were made allowing the appeals and the challenged orders were set aside. Reasons were reserved.
During the period in which the reasons were reserved, further Applications in an Appeal were filed by the appellant and the hearing of those applications and the delivery of the reserved reasons were listed for 11 December 2020.
Before turning to the grounds of appeal it is important to give a brief background to the proceedings.
Background
The appellant is the maternal uncle to the respondents’ three children X, Y and Z (“the children”) who are between the ages of eight and four years. The respondent has had two contacts with the oldest of these children and has never met the two younger children.
Another child of the appellant’s sister, C, is presently living with the appellant’s mother. On 30 January 2020 the appellant by Initiating Application sought orders that he and C spend time with the children and be allowed to “attend any and all important life events including… birthdays, christenings [and] [C]hristmas”. In response to that application, the respondents sought that it be summarily dismissed and challenged his standing to bring the proceedings.
The respondents’ application for summary dismissal was listed for hearing on 15 June 2020.
On 1 June 2020 the appellant filed an Application in a Case seeking that that judge before whom the summary dismissal was listed recuse himself on the basis of actual or apprehended bias. This application was heard on 15 June 2020 and the judge recused himself from further hearing the matter and it was transferred to the docket of the primary judge.
On 16 June 2020 the appellant filed an Application in a Case seeking in effect that all orders made subsequent to the judge’s recusal on 15 June 2020 be “voided” and other earlier made orders also be “voided”. That application was listed for hearing by the primary judge on 26 June 2020.
The hearing of 26 June 2020
After setting out the chronology of the matter and how it came to be listed before him, the primary judge commenced to deal with the appellant’s application and, in particular, the submission that the orders made after the earlier judge recused himself had in some way tainted the proceedings before the primary judge. In the course of his reasons, his Honour said (Marino & Bello & Anor [2020] FCCA 1727):
33.A further issue arose during the course of the Directions Hearing. I advised the [appellant] that prior to my appointment as a Judge of this Court, I was a member of the Council for the Law Society of NSW when it took action against him in the Supreme Court of NSW, in relation to his fitness to be on the legal practitioners roll. Those proceedings were unsuccessful. However, they were over taken by action by the Prothonotary, which is referred to above.
His Honour continued:
34.The [appellant] objects to me continuing to hear the matter on the basis of apprehended bias. Firstly, I am not aware of any information in regards to the [appellant] that was not dealt with in the proceedings instituted by the Prothonotary. Secondly, the decision to commence proceedings was taken by the Council of the Law Society, which consists of 21 elected members of the solicitor’s branch of the profession in NSW, not by me personally. I am not satisfied, in these circumstances, where I am to determine a completely different matter, that a reasonable bystander would perceive that I have a bias against the [appellant].
Thus his Honour declined to recuse himself.
At [31] of his reasons,[1] in the course of considering whether the orders of the earlier judge “taint[ed]” his consideration of the matter then before him, his Honour said, in that regard: “I do not accept that a fair minded observer would conclude a reasonable apprehension or actual bias on my part” and his Honour referred to the very familiar authority of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. His Honour’s summary of the test is not entirely correct, it being necessary to establish that a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question”[2] to be decided (emphasis added).[3]
[1]Marino & Bello & Anor [2020] FCCA 1727.
[2]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6].
[3] In Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232], the New South Wales Court of Appeal said “the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally”.
However, it seems at least from paragraph [31] that his Honour understood the test to be an objective one; that is, what apprehension might arise in the mind of the “fair minded observer”.
In considering the application that his Honour recuse himself because of his prior association with the appellant, his Honour relied on three matters.
First, he referred to information relevant to other proceedings, the referral of the appellant to the Prothonotary, and observed that he knew nothing else about the appellant but for what was in those proceedings. Of course whatever information might have been available to the primary judge as part of those proceedings was not before him on the application and, of course, neither did the parties necessarily know what that information may have been.
Secondly, the primary judge observed that it was not his Honour alone but he together with 20 other elected members of the Law Society of New South Wales, who concluded that it was necessary to commence proceedings in the Supreme Court of New South Wales on the basis that the appellant was not a fit and proper person to hold a practising certificate as a solicitor.
Thirdly, his Honour observed that the proceedings then before him were concerned with a different subject matter.
Thus, his Honour, based on those matters, was not satisfied that “a reasonable bystander would perceive that [he has] a bias against the [appellant]” and at [34], rejected the application.
It is from this decision that the first appeal arises.
The recusal appeal
The appeal from the primary judge’s failure to recuse himself was resisted. Counsel for the respondents was unable, by reference to authority, to support his Honour’s order or the reasoning for his decision. In our opinion the opposition to the appeal was futile and it ought to have been conceded from the outset. As we have said, during the appeal hearing the respondents conceded the appeal and it was allowed.
The primary judge’s order was “plainly wrong”.[4] Although his Honour cited the relevant authority earlier in the decision, the reasons make it clear that the primary judge misunderstood the principles derived from the authority. Had his Honour had regard to what was there said, in our view, he would have been driven to the conclusion that the recusal application must be allowed.
[4]Norbis v Norbis (1986) 161 CLR 513 at 539–540.
The hearing of 10 August 2020
Having declined to recuse himself, the primary judge then listed the respondents’ application for summary dismissal before him which was heard on 10 August 2020 in the absence of the appellant, who did not attend. His Honour summarily dismissed the appellant’s application for parenting orders on the basis that the appellant had no standing to bring the proceedings and, further, made orders that the appellant pay the costs of the respondents (Marino & Bello & Anor (No.2) [2020] FCCA 2203). The costs order seems to have been made on an indemnity basis, although it is not entirely clear from his Honour’s reasons.
These orders too were the subject of appeal which, like the appeal against his Honour’s refusal to recuse himself, was conceded during the argument on the appeal, as well it ought to have been.
It was accepted that there being a proper basis on which his Honour ought to have recused himself, his subsequent decision on the summary dismissal is tainted and must be set aside.
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006)
229 CLR 577, Kirby and Crennan JJ with whom Gummow A-CJ, Hayne and Callinan JJ agreed, said:117.… An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias…
(Footnote omitted)
It was inevitable that his Honour’s decision on the summary dismissal application should founder on the reef of apprehended bias.
However, we feel compelled to note that his Honour’s reasons for judgment for summary dismissal delivered on 15 September 2020 are themselves beset by error. His Honour decided the matter not by taking the appellant’s evidence at its highest as the authorities require,[5] but rather, his Honour relied solely on the evidence of the respondents, noting in reference to the respondents’ evidence that there was an “absence of any evidence from the [appellant] to the contrary” (at [30]).
[5] Lindon v The Commonwealth (No 2) (1996) 136 ALR 251; Spencer v Commonwealth of Australia (2010) 241 CLR 118; Bretton & Bondai [2013] FamCAFC 168.
Thus, as we have said, the appeals were conceded, both appeals were upheld and the orders of the primary judge were set aside.
Costs
The appellant sought an order that the respondents pay his costs of the appeal which he said on a “rough estimate” amounted to $700. Given that he had not filed a schedule of his costs in accordance with the direction of the Appeal Registrar on 30 September 2020, we are not inclined to make an order in his favour as to costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 11 December 2020.
Associate:
Date: 11 December 2020
3
9
1