McMillan and McMillan (No.1)

[2013] FCCA 1399

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCMILLAN & MCMILLAN (No.1) [2013] FCCA 1399

Catchwords:
PRACTICE AND PROCEDURE – Application for recusal on the grounds of apprehended bias – application dismissed.

Antoun v R (2006) 224 ALR 51
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
VFAB v the Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102

Applicant: MS MCMILLAN

Respondent: MR MCMILLAN

File Number: MLC 8457 of 2012

Judgment of: Judge Whelan

Hearing date: 9 September 2013

Date of Last Submission: 9 September 2013

Delivered at: Melbourne

Delivered on: 10 September 2013

REPRESENTATION

Counsel for the Applicant: Mr Atkinson

Solicitors for the Applicant: Cantwell Family Lawyers

Counsel for the Respondent: Mr Stavris

Solicitors for the Respondent: James McDermott Solicitor & Barrister

Counsel for the Independent Children's Lawyer: Mr Ambrose

Solicitors for the Independent Children's Lawyer: Lampe Family Lawyers

ORDERS

1. The application for recusal on the grounds of apprehended bias is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym McMillan & McMillan (No.1) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8457 of 2012

MS MCMILLAN

Applicant

And

MR MCMILLAN

Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

1. I intend to deal firstly with the application that was made yesterday in relation to the question of whether I should recuse myself from further hearing this matter. It is an application by the Respondent,

   
   

   MR MCMILLAN (“the Respondent”), which I have taken to be an application to recuse myself, although it was not elaborated upon in what was put before the Court yesterday. It was not entirely clear, but I have taken it to be that I should recuse myself on the grounds of apprehended bias.

2. The first issue arises from the following exchange between Counsel for the Respondent, Mr Stavris, and myself:

   Mr Stavris: There’s – apparently there’s another solicitor involved, we don’t know who that solicitor is. The wife has deposed there is another solicitor helping her, we don’t know who that solicitor was. We’re entitled to ‑ ‑ ‑

   Her Honour: I’m sure the name of that solicitor was mentioned last time we were before the court, Mr Stavris.

   Mr Stavris: Well, I wasn’t here, your Honour, I can’t – I don’t know who it was or wasn’t. [1]

   [1] Extract of Proceedings, 9 September 2013, p.5 at lines 33–41.

3. The Respondent, in support of the application, stated:

   Mr Stavris:    You made comment that the solicitor acting on behalf of the wife in the insurance claim ‑ ‑ ‑ had been named in court. My instructor says he wasn’t named.[2]

   [2] Further Extract of Proceedings, 9 September 2013, p.2 at lines 29–30 and 34.

4. There then followed the following exchange between myself and

   
   

   Mr Stavris: 

   Her Honour: I thought that he was named by the applicant’s solicitor ‑ ‑ ‑

   Mr Stavris:    Ms ‑ ‑ ‑

   Her Honour: ‑ ‑ ‑ or that I had told the applicant’s solicitor to provide the information.

   Mr Stavris: Well, that’s the problem, your Honour ‑ ‑ ‑ That information wasn’t provided. Ms M apparently did say that she knew who it was but she couldn’t recall who it was and that she would try and remember and provide those details.

   Her Honour: I thought she was to provide him with the information, yes.

   Mr Stavris: Okay. Well, she didn’t provide him ‑ ‑ ‑ And certainly earlier on today, you did say that it had been provided on the day.

   Her Honour: Right  ‑ ‑ ‑ That was my understanding, that that was going to happen. [3]

   [3] Ibid, p.2 at lines 40–47 and p.3 at lines 3–20.

5. The Respondent’s second issue was that I had made comment about

   
   

   Mr W (“Mr W”). That appears to be based on the following exchange:

   Mr Stavris: Now, if your Honour wants to hear more about Mr W, he is available on that issue.

   Her Honour: Well, I know who – I know who Mr W is, Mr Stavris. I’m quite well aware of who he is.

   Mr Stavris:    I don’t understand exactly what ‑ ‑ ‑

   Her Honour: Well, I’m just saying I know who he is.

   Mr Stavris:    Well ‑ ‑ ‑

   Her Honour: I’ve read the statement as to his credentials; I know who he is.[4]

   [4] Extract of Proceedings, 9 September 2013, p.4 at lines 28–40.

6. The third issue raised by Respondent Counsel was expressed as follows:

   Mr Stavris: Your Honour, you dismissed any interim application before I had even made it. You said that – I’m not going to make any interim orders in relation to this matter until I hear this matter in May if it is adjourned.[5]

   [5] Further Extract of Proceedings, 9 September 2013, p.4 at lines 15–17.

7. That appears to be based on the following exchange:

   Her Honour: Well, Mr Stavris, can I tell you right now that if this matter does not proceed, and it is adjourned, I have no intention of changing any existing orders, and it will be May next year before I hear the case.

   Mr Stavris:    Well, if – if ‑ ‑ ‑

   Her Honour: I’m just telling you that so that you’re all quite aware that if the matter does not proceed today or in the next few days, because it may not proceed today, but it – if it doesn’t proceed within the next few days and it is adjourned, it will be adjourned until May next year and I have no intention of changing any interim orders at the moment.

   Mr Stavris:    Not even the supervised regime?

   Her Honour:  No. Not on the basis of the material that I have.[6]

   [6] Extract of Proceedings, 9 September 2013, p.5 at lines 45–47 and p.6 at lines 1-11.

8. On the basis of that material, Counsel for the Respondent submits that his client feels that I have already made up my mind and he feels that there is bias.

9. The principles to be applied with respect to an application to a judge to recuse themselves on the grounds of apprehended bias are set out in the judgment of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”). The decision in Ebner was unanimous, with a joint judgment delivered by Gleeson CJ, McHugh, Gummow and Hayne JJ and separate concurring judgments by Kirby, Gaudron and Callinan JJ. At paragraph 6 of Ebner, the Court says:

   Where … a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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 be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.[7]

   [7] (2000) 205 CLR 337 at 344, para.6.

10. The Court then goes on at paragraph 8 to say:

    Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits.
    

    [8] Ibid at 345, para.8.

    The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[8]

11. The Court went on further to say at paragraph 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.[9]

    [9] (2000) 205 CLR 337 at 348, para.19.

12. I can see nothing in either my comments concerning the naming of the solicitor dealing with the Applicant’s insurance claim or the comments with respect to Mr W that would suggest that I might decide the case other than on its legal and factual merits. Nor can I see any logical connection between those statements and any fear in the mind of a fair-minded lay observer that I would fail to deal with the matters on its merits.

13. I accept sometimes it is not necessarily the words themselves which may cause concern about the impartiality of a judicial officer, but the tone in which they are delivered. Kenny J made the following observations about what would not constitute a reasonable apprehension of bias in that context in the matter of

    
    VFAB v the Minister for Immigration and Multicultural and Indigenous Affairs

    (2003) 131 FCR 102 at paragraph 81:

    Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230:

    While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Galea v Galea (1990) 90 NSWLR 263 at 279-80, 283.

14. I readily admit that I displayed signs of irritation over the very late lodgement of affidavits in this matter. This is the only Court, or more particularly, the only area of jurisdiction exercised by this Court, where I have experienced a total disregard by practitioners for orders made by the Court with respect to the process of the trial. Had the parties been present when the next matter came before me, the parties would have seen me raise the same issues and the same tone with Ms S, whose instructor had also lodged affidavits on Friday, which in my view could have been easily lodged in accordance with the orders that had been made.

15. This is a busy trial Court. From time to time, judges find it necessary to warn the parties of what is the likely outcome if they pursue a particular course of action. Indeed, the practitioners may appreciate such indications in determining how best to advise their clients. In Antoun v R (2006) 224 ALR 51 at paragraph 27, Kirby J had this to say with respect to that practice:

    For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court’s time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.

16. His Honour went on to say at paragraph 29:

    A line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings.[10]

    [10] (2006) 224 ALR 51 at 59, para.29. Also see Vakauta v Kelly (1989) 167 CLR 568 at 571.

17. In relation to the third issue, I said the following:

    Her Honour: If it doesn’t proceed within the next few days and it is adjourned, it will be adjourned until May next year and I have no intention of changing any interim orders at the moment.

    Mr Stavris:    Not even the supervised regime?

    Her Honour: No. Not on the basis of the material that I have.[11]

    [11] Extract of Proceedings, 9 September 2013, p.6 at lines 5-11

18. This is a case where serious allegations have been raised. Indeed, the Respondent’s Counsel himself acknowledged that, saying:

    “These are very serious allegations that are levelled against him. They’re very serious, violent matters that are alleged and there is a history that is very serious”.[12]

    In the context of an adjournment where none of the evidence has been tested and the allegations are of such a nature, this Court is always inclined to be very conservative in making any orders which may be contrary to the best interests of the children.

    [12] Further Extract of Proceedings, 9 September 2013, p.4 at lines 26–28.

19. As I indicated to the parties, I had no intention of changing any interim orders at the moment on the basis of the material that was before me. That would not have precluded the Respondent, had the matter been adjourned, from, for example, completing a Parenting After Separation Program, as suggested by the Family Report writer, and making an Application in a Case prior to May next year for some variation to the orders on that basis.

20. It is insufficient that the Respondent feels that there is a bias. That is not the test. The Respondent is not a fair-minded lay observer; he is a party to the proceedings. I am not satisfied that the Respondent has identified any matters of which it might be said might lead me to decide this case other than on its legal and factual merits. Further, I am not satisfied that the Respondent has articulated a logical connection between any of the matters raised and any feared deviation from the course of deciding the case on its merits.

21. For these reasons, I reject the application to recuse myself from further hearing this matter.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Date: 18 September 2013