Maselli & Maselli
[2023] FedCFamC2F 1033
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maselli & Maselli [2023] FedCFamC2F 1033
File number(s): MLC 7946 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 8 August 2023 Catchwords: FAMILY LAW – parenting – application for recusal on basis of apprehended bias – where judge read proposed final consent orders of the parties – where judge made ruling that the proposed final consent orders were not in the children’s best interests – where parties sought to proceed with final hearing – where application for costs certificate made and granted. Legislation: Family Law Act 1975 (Cth), s 69ZL.
Federal Proceedings Costs Act 1981 (Cth), ss 2, 3.
Cases cited: Jess & Jess [2021] FamCAFC 159
Johnson & Johnson [2000] HCA 48, 201 CLR 488, FLC ¶93–014
Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 8 August 2023 Place: Melbourne Counsel for the Applicant: Ms A. O’Connell Solicitor for the Applicant: Baird & Mcgregor Counsel for the Respondent: Mr J. Gates Solicitor for the Respondent: Ranges Legal Pty Ltd ORDERS
MLC 7946 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MASELLI
Applicant
AND: MS MASELLI
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
8 AUGUST 2023
THE COURT ORDERS THAT:
1.The proceedings be adjourned to be heard by a Judge other than Judge O’Shannessy and is directed to the Case Management Judge for reallocation.
2.The final hearing listed before Judge O’Shannessy on 8 August 2023 is vacated and a new hearing is ordered.
3.The Court grants to each of the parties, a costs certificate pursuant to the provisions of section 10 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the parties in respect of the costs incurred by the parties, including solicitor attending and counsel, in relation to the incomplete proceedings heard before Judge O’Shannessy on 7 August 2023.
AND THE COURT NOTES THAT:
A.The matter has been reallocated to Judge Champion to commence this day.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and passages of authorities added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.
In this matter the question I must determine is whether I should accept the application of the Mother to disqualify myself from further hearing of the matter. Such application is supported by the Father having had the opportunity to reflect overnight.
These are parenting proceedings concerning three boys aged 8, 5 and 4 years. On 15 July 2021 the Father issued proceedings in this Court to spent time with the boys. On 31 March 2023 a Family Report was prepared. The final hearing commenced before me on 7 August 2023. After careful discussion with counsel it was apparent that the matter was very likely to be able to be contained within the three day estimate, partly because of the efficiency and judgment of counsel.
APPLICATION FOR RECUSAL
At the morning break at about 11.30am, the Father having already been under cross-examination in the witness box, the parties asked that the matter be stood down for, initially, half an hour for discussions, and then for further discussions thereafter. At about 4:15pm the parties advised that they had mostly settled the matter and handed up two separate minutes, one signed by each party, identical save for one aspect in dispute that the parties invited me to determine on the basis of submissions without further evidence. In the course of looking at the minutes, there was one aspect of the minutes that I was not satisfied was in the best interests of the children, and I told the parties that and invited them to have some further discussions. The parties did accept my invitation and had some further discussions, however, were unable to reach further agreement.
One of the objects of the Family Law Act 1975 (Cth) is that the parents should agree to matters of parenting of their children. It is an unusual and serious matter that a judge would not readily agree with what the parties have proposed as in the best interests of the children. That parents agree on parenting arrangements is usually of great advantage to children. When the matter returned at about 5pm no resolution had been reached and the hearing was to continue. Counsel for one of the parties made an application that I disqualify myself on the basis of apprehended bias because of my decision (it was more than just a comment) that one aspect of the proposed orders was not in the children’s best interests. Further, counsel submitted I was now privy to the unhappy compromise in the proposed consent orders and when the matter proceeded as a contest, those matters were no longer agreed and the parties were prejudiced in those circumstances.
The test for apprehended bias is quite clear, and is set out at paragraph 11 of the Full Court of the Family Court decision of Johnson & Johnson [2000] HCA 48, 201 CLR 488, FLC ¶93–014:
[11]It is not contended that Anderson J was affected by actual bias. 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.
(citations omitted, emphasis added)
That was 23 years ago, but the law has remained settled and as recently as 2021 in the matter of Jess & Jess [2021] FamCAFC 159 (‘Jess’).
In the present case, it would have been the continuing matter that I would have been required to decide. Hence, it is what has also been described as the “double might test”. That is that the fair-minded lay observer, not the parties, might think that a judge might not bring an impartial and unprejudiced mind to the resolution of the parties’ dispute.
In the Full Court decision of Jess, the test was described:
[400]…a reasonable observer might possibly apprehend that at the trial the Court might not move its mind from the position reached on one set of materials, even if different materials were presented at the trial.
That is, again, in slightly different words, reemphasising the “double might test”. It is not to the point that had the matter proceeded, I would have determined the matter on the basis of the evidence, including the continuing cross-examination of the Father and the evidence of the Mother and the evidence of the family report writer. The fact that I am confident that I would have been able to deal with the matter on its merits is not the test to be applied. So I will accept the application that I disqualify myself. I do so because I am satisfied that a fair minded lay observed might reasonably apprehend that I might not bring an impartial mind to the parties dispute when that dispute included the aspect that I had ruled, on the evidence I had at that point, was not in the children’s best interests.
COSTS CERTIFICATE
Following my finding that I would disqualify myself on the basis of apprehended bias, there was an application by each party for a certificate pursuant to the Federal Proceedings Costs Act 1981 (Cth). It was submitted that my disqualifying myself would come within the words of “or otherwise becomes unable to continue…” within the meaning of section 2, and that the limiting factor of subsection (3)(c) (that the matter was not attributable to the neglect, default or improper act of the parties) was not triggered or applied.
That is, the fact that I disagreed that the orders were in the best interests of the children did not mean that the parties had been neglectful, in default or improper in any way. I accept those submissions, and I will grant a certificate for day one of this trial only. The application was in regard to yesterday and today, but by the generosity and assistance of another judge, I understand another judge will be available to hear the matter from today to conclusion.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 August 2023
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