Matthews and Norris (No 4)

[2018] FamCA 1167

FAMILY COURT OF AUSTRALIA

MATTHEWS & NORRIS (NO. 4) [2018] FamCA 1167

FAMILY LAW – COURTS AND JUDGES – Disqualification – Application by mother seeking disqualification of the Judge on grounds of actual and apprehended bias – Where the mother’s allegation of actual bias was unproven and her application confined to apprehended bias – Where the principles in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 are applied – Concluded it could reasonably be contended that a fair-minded lay observer might apprehend the Judge may not bring an impartial mind to the resolution of the matter by reason of adverse comments made about the mother’s reliability in previous Judgments – Ordered that the Judge be disqualified

Family Law Act 1975 (Cth), Pts VII, VIII

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

APPLICANT: Mr Matthews

RESPONDENT: Ms Norris

FILE NUMBER: NCC 2226 of 2015

DATE DELIVERED: 15 June 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 15 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carty

SOLICITOR FOR THE APPLICANT: Oliver Campbell Heslop Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

1. Justice Austin is disqualified from any further hearing in these proceedings.

2. The following outstanding applications are listed for hearing before Justice Cleary at 10:00 am on Thursday, 2 August 2018:

   a.The question of costs as between the mother and father arising out of Order 4 made by Justice Cleary on 7 February 2017;

   b.The Application in a Case filed on 21 March 2018 by the mother’s trustee in bankruptcy;

c.The Response to an Application in a Case filed on 18 May 2018 by the mother;

d.The Application in a Case filed on 23 May 2018 by the father; and

e.The Application in a Case filed on 13 June 2018 by the mother (but only in respect of proposed Order 2, as proposed Order 1 merges in Order 1 hereof).

1. Leave is granted to the mother and father to appear at the next Court event by telephone link.

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 Matthews & Norris 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 NEWCASTLE

FILE NUMBER: NCC 2226 of 2015

Mr Matthews

Applicant

And

Ms Norris

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 13 June 2018 the mother filed an Application in a Case. One aspect of her application is that I be disqualified from hearing and determining any further applications involving her and the father. Also pending before the Court today are applications filed by the mother’s trustee in bankruptcy on 21 March 2018 and by the father on 23 May 2018. However, the mother’s disqualification application must be heard first. 

2. Although not articulated by the mother, she purports to rely upon my judicial conduct as the basis for my disqualification. In support of her application the mother relied upon her affidavit filed on 13 June 2018. It is a reasonably lengthy affidavit which asserts my actual bias and not merely an apprehension of my bias against her. 

3. She contends such bias arises cumulatively from:

   (a)my alleged “blatant denial of natural justice and procedural fairness” at her very first court appearance before me, which was in January 2016; 

   (b)the decision I made as between the parties on 22 December 2016 to resolve an interim dispute; 

   (c)the decision I made and published on 30 June 2017 to finally determine the dispute between them over their only child under Part VII of the Family Law Act 1975 (Cth) (“the Act”); and

   (d)the decision I made to summarily dismiss the mother’s contempt application against the father on 9 May 2018. 

4. The mother seems to confuse two concepts: on the one hand, acceptance or rejection of conflicting evidence on the balance of probabilities and, on the other hand, actual bias by the judge. Self-evidently, a judge’s rejection of evidence adduced by a party does not thereby mean the judge is actually biased against that party. If that were so, no case could ever be decided. The mother’s allegation of my actual bias against her is rejected as arrant nonsense. It is only that, in some prior instances, her evidence was rejected by application of orthodox legal principles.

5. However, there remains the question of ostensible bias in the mind of an objective observer. The principle for the disqualification of judicial officers for apprehended bias is well known (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 and Johnson v Johnson (2000) 201 CLR 488 at 492). The principle is articulated as follows:

   …a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.

6. In the judgment I delivered on 30 June 2017, I said of the mother: 

   (a)her evidence was “not particularly reliable” in some respects; 

   (b)the father’s evidence was preferred to hers because his veracity was not found wanting; and

   (c)her behaviour was opportunistic and, in some respects, disingenuous. 

7. In an interlocutory judgment I later delivered on 27 October 2017 in relation to the parties’ outstanding property settlement dispute under Part VIII of the Act, I observed the mother’s attitude was “difficult to fathom” and furthermore explained why her position was contradictory and illogical.

8. By reason of the adverse comments I made about the mother’s reliability in June and October 2017 it could reasonably be contended that a fair-minded lay observer might apprehend I would not bring an impartial mind to the resolution of any further disputes between the parties. For that reason alone, I will accede to the mother’s application. The other bases upon which the mother sought my disqualification are rejected.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 15 June 2018.

Associate: 

Date:  30 January 2020