McMillan and McMillan
[2019] FamCA 928
•5 December 2019
FAMILY COURT OF AUSTRALIA
| MCMILLAN & MCMILLAN | [2019] FamCA 928 |
| FAMILY LAW – RECUSAL – Where the applicant seeks that his Honour recuse himself from hearing any further matters between the parties – Where the test in Johnson v Johnson (2000) 201 CLR 488 applied – Where the court is not satisfied that by permitting the matter to proceed, a fair minded lay observer would reasonably apprehend that his Honour was not bringing an impartial mind to bear in adjudicating the issues arising from the respondent’s enforcement warrant – Where the court is not satisfied that any of the allegations demonstrate a proper basis for his Honour to recuse himself – Application in a Case dismissed – Order for the applicant to pay the respondent’s costs as assessed on a party/party basis. |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 McMillan & McMillan [2016] FamCA 387 McMillan & McMillan (No 2) [2016] FamCA 894 |
| APPLICANT: | Mr McMillan |
| RESPONDENT: | Ms McMillan |
| FILE NUMBER: | CSC | 355 | of | 2015 |
| DATE DELIVERED: | 5 December 2019 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 30 September 2019 |
REPRESENTATION
| THE APPLICANT: | In Person |
| SOLICITORS FOR THE APPLICANT: | WGC Lawyers |
Orders
The applicant’s Application in a Case filed 3 September 2019 is dismissed.
The applicant pay the respondent’s cost of and incidental to his Application in a Case filed 3 September 2019, as assessed on a party/party basis.
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 McMillan & McMillan 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 CAIRNS |
FILE NUMBER: CSC 355 of 2015
| MR McMILLAN |
Applicant
And
| MS McMILLAN |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Application in a Case filed 3 September 2019, Mr McMillan (“the applicant”) seeks that I “stand down from hearing any further matters between the parties in these matters.” By her Response also filed 3 September 2019, Ms McMillan (“the respondent”) seeks that the Application in a Case be dismissed, and an order that the applicant pay her costs of and incidental to his application. On 20 August 2019 I made orders for a timetable for the filing of material and written submissions, at the conclusion of which the decision would stand reserved. This is that decision and the reasons for it.
BACKGROUND
The background to these proceedings is, to say the least, tortured. I have traversed their extensive history in earlier reasons, being McMillan & McMillan [2016] FamCA 387, and updated them in the subsequent reasons for decision in McMillan & McMillan (No 2) [2016] FamCA 894 (“McMillan & McMillan (No 2”). But in broad terms there are outstanding costs owing by the applicant to the respondent, which the respondent is seeking to recover by way of enforcement warrant. Most of those costs date back many, many, years. The applicant seeks to set aside or stay the enforcement warrant on several bases, but common themes are his allegations that the respondent and her solicitor have engaged in a species of dishonesty and fraud. Further, this is not the first occasion that the applicant has sought that I recuse myself from dealing with the matter; in McMillan & McMillan (No 2) I refused to do so for the reasons then given.
RELEVANT LEGAL PRINCIPLES
In Johnson v Johnson (2000) 201 CLR 488 at 492-3 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:
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)
Later in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348 Gleeson CJ, McHugh, Gummow and Hayne JJ said:
The principle to be applied
19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20.This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21.It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22.The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23.Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
THE APPLICATION
Both in his affidavit filed 3 September 2019, and his subsequent written submissions filed 17 September 2019, the applicant sets out the matters which he says would cause a fair minded lay observer to reasonably apprehend that I may not bring an impartial mind to bear in adjudicating the issues arising from the respondent’s enforcement warrant. Many of the allegations are difficult to follow, but helpfully the wife in her written submissions filed 23 September 2019, distilled the matters of complaint as follows:
6. The Husband’s case as stated in his Submissions is as follows:-
(a)The Judge has shown bias from the outset by allowing such a matter to proceed.
(b)The Judge made comments that show him to be totally unsuitable to continuing in this matter when he said “It seems probable that in fact the Husband and his second Wife continued to cohabit after those orders” and that he made a finding of fact echoing the Respondent lawyer’s lies to the court.
(c)The Judge to date has shown an inability to bring these matters to a finality. He has prolonged these matters for his own entertainment and to the detriment of all parties. He has wasted more of the court’s and the Applicant’s time and resources by not “striking out” the matter “forevermore.”
(d)The Judge is aware that the Mother is liable for prosecution for making false and misleading statements, misleading a Federal Court, obtaining financial gain by deceit and perjury. The Judge is aware that the Wife’s lawyer is liable for prosecution because he ought to have known that the Wife’s sworn statement to the court were false and misleading. It follows that the Judge has shown himself to be biased in protecting the Wife and the Wife’s lawyer by failing to refer them for further investigation by a suitable criminal investigation body and in doing so has assisted in the concealing of a crime.
6.2 The Husband makes further submissions in relation to Res Judicata but [it] is submitted that those submissions do not and can not relate in any way to the recusal application.
(As per the original) (Emphasis in original)
Adopting that list and dealing with the matters of complaint in that order, I am not satisfied that by permitting the matter to proceed at all, a fair minded lay observer would reasonably apprehend that I was not bringing an impartial mind to bear.
The probability or otherwise that the applicant and his second wife continued to cohabit after some earlier orders, reflects no judicial attitude to the applicant, and does not suggest pre-judgment or a lack of impartiality.
It is not correct to say that I have prolonged these matters, and I am at a loss to understand how any prolongation of them would be some form of entertainment for me. I am not satisfied that there are facts which exist that underpin this aspect of the complaint, nor that even if they did, that they could possibly suggest bias, pre-judgment or a failure to bring an impartial mind to bear.
Turning to the applicant’s last matter of complaint, as I have already noted, he has long asserted that the conduct of the respondent and her solicitor was in some way illegal, which I have at various stages of these proceedings sought to persuade him is unlikely to be a matter within the jurisdiction of the Family Court, and to the extent that there may be any truth to the allegations, his remedy likely lies elsewhere. No basis for a reasonable apprehension of pre-judgement or lack of impartiality in that regard has been established.
However now the applicant has gone one step further, and in his submissions has accused me also of being corrupt, assisting to conceal a crime, and acting to pervert the cause of justice. Those are, of course, perhaps the most serious allegations that a litigant can make against a judicial officer. There is absolutely no factual or legal basis to them. Although not raised by the applicant, I have nonetheless given some thought as to whether or not the fact that he has made such serious allegations directed towards me may, of itself, reasonably suggest to a fair minded lay observer that, in some generalised way, I may not bring an impartial mind to bear in determining questions of fact and law as between the person who has made those allegations against me, and another party.
Upon balance however, I am not satisfied that a fair minded lay observer would reasonably so apprehend. Rather, such an observer would likely conclude that the applicant is most disgruntled that some ancient costs orders are now being sought to be enforced against him, which puts his assets at risk, and which he is most anxious to defeat. Whilst the respondent in her written submissions filed 23 September 2019 at paragraph 7(d) characterises the allegations as “mere mutterings” on the part of the applicant, I think that a fair minded observer would likely characterise them, in relation to myself, as an angry outburst from a most unhappy person. They would recognise that, absent any factual foundation to them, in the context of ordinary judicial practice, a judge, including myself, would simply brush the allegations aside, and focus upon the substantive issues which the litigation raises.
I am not satisfied that any of the allegations, whether individually or taken collectively, demonstrate any proper basis to recuse myself from dealing with this matter.
The applicant’s res judicata argument is without any substance.
The Application in a Case filed 3 September 2019 will be dismissed.
COSTS
In her written submissions filed 23 September 2019 at paragraph 9(g) the respondent sought an order for “indemnity costs on a solicitor/own client basis.” In support of that application, at paragraph 9 of those submissions, she said as follows:
9. If successful in opposing the Husband’s recusal application the Wife seeks an order for costs. In support of that Application she submits as follows:-
(a)The Husband has the financial means to meet the payment of a costs order. In paragraph 54 of his Affidavit filed in these proceedings on 14 September 2015 he deposed to having property with a net value of $230,000.00. In paragraph 34 of his Affidavit filed on 12 September 2016 he deposes to owning two properties at G Street, D Town, and H Street, D Town which are totally unencumbered and worth approximately $50,000.00 each.
(b)Neither party to these proceedings is in receipt of assistance by way of legal aid.
(c)It is not submitted that the Husband has been guilty of any misconduct in these proceedings.
(d)The proceedings from the outset have been necessitated by the failure of the Husband to meet payment of various costs orders requiring the Wife to pursue enforcement proceedings to recover the amounts outstanding.
(e)If the Husband is unsuccessful with this application (as he has been previously) he will have been wholly unsuccessful;
(f)There have been no offers in writing made by either party.
(g)The Husband has brought a similar application in the past. He was unsuccessful at the hearing of the application and subsequently unsuccessful on appeal. Nothing has changed in this matter for the Husband to make a further similar application. The Wife has been put to further expense to oppose the Husband’s application in respect of which he has been previously unsuccessful, twice. The Wife submits that the costs order should be for indemnity costs on a solicitor/own client basis.
(As per the Original)
Inexplicably, the applicant did not traverse that application or those submissions in his response to the respondent’s submissions filed 30 September 2019. However I assume that he would oppose an order for costs. Notwithstanding that assumed opposition, I am satisfied that, for the reasons advanced by the respondent, this is a matter where the usual rule for costs should be displaced. Particularly the applicant has been wholly unsuccessful, is a man of assets and the application was without any sound evidentiary basis. However I am not satisfied that there should be any departure from the ordinary rule that costs are recovered on a party/party basis, and particularly I am not satisfied that this is an appropriate case for either an order of indemnity costs, or for solicitor/own client costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 5 December 2019.
Associate:
Date: 5 December 2019
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