Murray & Tomas & Anor
[2011] FamCAFC 81
•15 March 2011
FAMILY COURT OF AUSTRALIA
| MURRAY & TOMAS AND ANOR | [2011] FamCAFC 81 |
| FAMILY LAW - APPEAL – Whether the trial Judge erred in refusing to recuse himself from further hearing of proceedings between the parties – Whether there would be a perception of an absence of impartiality on the part of the trial Judge, if he was to hear further proceedings between the parties – Whether there was a nexus between the lack of impartiality and the issues requiring determination in the future – Held that there was an error of principle on the part of the trial Judge in not recusing himself in the circumstances, and/or that the refusal, if this Court did not intervene, would be likely to cause a substantial injustice to the mother – Appeal allowed. |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; (2011) 85 ALJR 348 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644 Rutherford and Rutherford (1991) FLC 92-255 |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Ms Murray |
| 1ST RESPONDENT: | Ms Tomas |
| 2ND RESPONDENT: | Mr Tomas |
| FILE NUMBER: | PAC | 1187 | of | 2009 |
| APPEAL NUMBER(S): | EA | 22 | of | 2011 & |
| EA | 130 | of | 2010 |
| DATE DELIVERED: | 15 March 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Ainslie-Wallace & Johnston JJ |
| HEARING DATE: | 15 March 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE(S): | 14 December 2010 & 2 June 2010 |
| LOWER COURT MNC: | [2010] FamCA 437 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Conte-Mills |
| SOLICITOR FOR THE APPELLANT: | Neagle Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Weaver |
| SOLICITOR FOR THE 1ST RESPONDENT: | Selective Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Weaver |
| SOLICITOR FOR THE 2ND RESPONDENT: | Selective Lawyers |
Orders in Appeal No. EA 22 of 2011
That, the time for filing of the Appellant’s Notice of Appeal against Order 2 of the Orders of Justice Benjamin made on 14 December 2010 be extended to 4 pm on 2 March 2011.
That the Appellant’s Draft Notice of Appeal dated 2 March 2011 is deemed to have been filed within time.
That the appeal against Order 2 of the Orders of Justice Benjamin made on 14 December 2010 be allowed.
That Order 2 of the Orders of Justice Benjamin made on 14 December 2010 be set aside.
That Justice Benjamin be recused from further hearing proceedings between the parties to this appeal.
That the Court grants to the Appellant mother a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (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 appellant in respect of the costs incurred by her in relation to the application and appeal.
That the Court grants to the respondents costs certificates pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 respondents in respect of the costs incurred by them in relation to the application and appeal.
Request that the final hearing of the proceedings be fixed for trial before a Judge in the Parramatta Registry with all possible expedition.
That the parties be granted liberty to apply for further directions, by telephone, on 72 hours notice.
That a Family Report be prepared as soon as possible to address the usual matters and such other matters as the Manager, Child Dispute Services considers appropriate.
IT IS NOTED:
That Justice Johnston has, without being asked, recused himself from hearing further proceedings between the parties.
ORDERS in Appeal No. EA 130 of 2010
That leave be granted to the Applicant for an extension of time within which to appeal against interim parenting Orders made by Justice Benjamin on 2 June 2010 to withdraw such Application.
That the Application for an extension of time filed 14 October 2010 be dismissed.
That there be no orders as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Murray & Tomas is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 22 of 2011 & EA 130 of 2010
File Number: PAC 1187 of 2009
| Ms Murray |
Appellant
And
| Ms Tomas |
1st Respondent
And
| Mr Tomas |
2nd Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Coleman J (Ainslie-Wallace & Johnston JJ agreeing):
Introduction
By application filed on 2 March 2011, Ms Murray (“the mother”) applied for an extension of time within which to appeal against the decision of Benjamin J made on 14 December 2010. The order of his Honour which gives rise to that application was an order declining to recuse himself from the further hearing of proceedings between the mother and Ms Tomas and Mr Tomas (“the respondents”).
The proceedings which were before the trial Judge on 14 December 2010 and on earlier occasions, most notably 2 June 2010, were parenting proceedings with respect to a child of the mother who was born in June 2007, that being the child S.
Background
By way of background to the application, which has been resisted by the respondents, some brief material facts may be instructive. The Court has had the benefit of an agreed chronology prepared by Counsel for the parties, which has been of considerable assistance to the Court in understanding the history of the proceedings which give rise to the present application. It is sufficient for present purposes to record only some very brief material facts.
As noted earlier, the child, the subject of the parenting proceedings, the child S, was born in June 2007, and is approximately three and a half years of age at present.
The respondents are Samoans who have New Zealand citizenship and reside in Australia. At least until April 2009, pursuant to orders made in Samoa, they were and can be described as having been the adoptive parents of the child.
As noted earlier, Ms Murray is the natural mother of the child. The child’s natural father, Mr Murray, is not a party to the proceedings, although he has apparently throughout the history of the dispute between the parties supported the relief sought by the mother.
For reasons which do not presently assume significance, the child has been in the full time care of the respondents since March 2009. The respondents wish to continue to have the full time care of the child.
The mother, who had the full time care of the child from the date of her birth, in June 2007, until March 2009, seeks, and has at all material times sought, the return of the child to her. She wishes to take the child back to Samoa to live with her husband, herself and the child’s numerous siblings.
Those material facts find expression in the Reasons for Judgment of the trial Judge of 2 June 2010. They are not controversial.
The orders of the trial Judge which give rise to the present application, as noted earlier, were made on 14 October 2010. Regrettably, no Reasons for those orders appear to have ever been taken out. The submissions before us suggest that, to the extent that reasons for the order in relation to the refusal to recuse himself were made by the trial Judge, they were very brief and, if the submission in relation to their content be correct, would not materially advance matters today. The absence of Reasons for Judgment with respect to the recusal application cannot, in my view, on the material that I have seen, prejudice the position of either party, regrettable though it is that we do not have the benefit of the reasoning process which led the trial Judge to conclude as he did.
The starting point for present purposes, and ultimately the material by reference to which the current application falls to be determined, finds expression in an interlocutory judgment of the trial Judge dated 2 June 2010. It is the contention of the applicant that the matters identified by her in the judgment of 2 June 2010 ought to have led the trial Judge to recuse himself from further hearing of proceedings between the parties.
Before turning to consider those paragraphs, it is perhaps appropriate to record that, sensibly, in my view, Counsel for the parties agree that, consistent with the decision of the Full Court of this Court in Rutherford and Rutherford (1991) FLC 92-255, which followed the decision of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, the application for an extension of time within which to appeal against the orders of 14 December 2010 has been heard with the Notice of Appeal upon which the mother would move this Court in the event that the time for her bringing an appeal was extended.
Subject to two matters to which reference will later be made, it is common ground that if the mother’s Counsel demonstrates either an error of principle and/or that the decision appealed from caused her a substantial injustice, then the discretion to extend the time for the mother to appeal that decision is likely to be enlivened. There are, as the authorities make clear, in those circumstances, a limited but significant number of discretionary matters to which regard must then be had.
The Counsel for each of the parties has filed comprehensive and carefully reasoned written submissions, which the Court has had the benefit of reading prior to convening to hear the present application and/or appeal. With commendable frankness, Counsel for both parties have engaged with what clearly emerges as the real issue requiring adjudication – that is, whether the various paragraphs of the judgment of the trial Judge of 2 June 2010 identified and relied upon by Counsel for the mother satisfy the test in relation to recusal, the law in relation to which is not in doubt will be but briefly referred to later in these Reasons.
Counsel for the mother took the Court chronologically but, as she submitted, not necessarily in order of asserted significance, to numerous paragraphs in the judgment of the trial Judge. Those paragraphs were identified in pursuit of Counsel for the mother’s contention that this Court would be satisfied, firstly, that a reasonable observer would form the view that there was a lack of impartiality on the part of the trial Judge with respect to any later proceedings which he might be called upon to hear and determine between these parties, and secondly, that there was an appropriate nexus between the findings and/or conclusions recorded in the judgment of 2 June 2010 and the issues which would require determination or adjudication at a final hearing.
Without referring in every instance to the totality of them, I now refer to the paragraphs relied upon by Counsel for the mother, the first of which is paragraph 15 [Appeal Book page 28]. With respect to Counsel for the mother, for my part I am not sure that anything there said would advance the present challenge.
The second paragraph is paragraph 36 [Appeal Book page 32], the effect of which, although perhaps somewhat cryptically expressed, can be seen when subsequent paragraphs of the trial Judge’s reasons are read, to be a preference for the evidence of the respondents to that of the mother where the two are in conflict.
Ultimately, for reasons which will become apparent, nothing really turns on what paragraph 36 really means in terms of credibility or impartiality, subsequent paragraphs of the trial Judge’s Reasons for Judgment, in my view, leaving little scope for doubt that his Honour had formed certain views as to the reliability of the evidence of the mother.
Paragraph 49 [Appeal Book page 35] is the next relevant paragraph of his Honour’s Reasons for Judgment. There one finds articulated his “concerns about the evidence” of, it is clear in context, the mother, and the view that, perhaps, the assessment of her by the family consultant was “somewhat benign.”
At paragraph 61 [Appeal Book page 37] his Honour reiterated his concerns about the mother’s evidence and expressed his belief that the mother “exaggerated or prevaricated” in relation to her evidence with respect to her “change of mind” with respect to the proceedings relating to the child in the courts of Samoa.
The next paragraph, paragraph 69 [Appeal Book page 39] records, having described some evidence given by the mother, that the evidence was “unreliable” and that the trial Judge had “some concerns about its veracity.”
At paragraph 71 [Appeal Book page 39], the trial Judge reiterated his general preference for the evidence of the first respondent to that of the mother, and to the absence of a satisfactory explanation by the mother in relation to an absence of notice in the proceedings in the Court of Samoa.
At paragraph 77 [Appeal Book page 41], his Honour reiterated that he was “concerned” about the evidence given by the mother. He suggested that some of the evidence given by the mother was untrue and that the allegations raised by the mother in an affidavit were “sometimes out of context and sometimes exaggerated.”
At paragraph 78 [Appeal Book page 41], the trial Judge, though not making the finding of fact, expresses the prospect that orders made in the District Court of Samoa could have been “not regularly obtained or was obtained based upon false evidence”. It is not in doubt that if any false evidence was given in the District Court of Samoa, that could only be seen in context as a reference to evidence which the mother gave, or may have given.
At paragraph 107 [Appeal Book page 48], the trial Judge returned to consider aspects of the proceedings in the District Court of Samoa. For my part, it is not clear to me how that paragraph could advance the present contention, save that it does clearly identify, as a matter which will remain in issue at the final determination of the proceedings between the parties, the circumstances surrounding the making of orders in relation to the child, the subject of the proceedings, in the courts of Samoa. It is thus potentially relevant to the second aspect of the recusal challenge.
At paragraph 114 [Appeal Book page 56], a passage relied upon by Counsel for the mother, the trial Judge records that he does not accept the assertion of the mother that it was the behaviour or lifestyle of the respondents which caused her to change her mind about the placement of the child. His Honour was further satisfied by the evidence before him, as he recorded, that:
… it was a change of mind and the attacks by [the mother] upon the character and life style of [the respondents] were created (either expressly or implicitly) to justify this change of mind and heart.
At para 115 [Appeal Book page 57], the trial Judge referred to a number of allegations which he concluded to have been “calculated” to show the various things which he there described. At para 116 [Appeal Book page 57], his Honour rejected the submissions made on behalf of the mother in relation to the character of the respondents as not “well founded”, and reiterated that the mother’s concerns about the standard of care able to be provided by the respondents for her child were “not well founded”. That passage, to my mind, has dual significance: firstly, in relation to the perception of an absence of impartiality on the part of the trial Judge, if he is to hear further proceedings between the parties; and, secondly, and relevant to the second limb of the recusal application, the nexus between the lack of impartiality and the issues requiring determination in the future.
In the next paragraph, paragraph 171 [Appeal Book page 69], his Honour there said that an application, to which he referred, in the District Court of Samoa made by the mother was “based upon an assertion of facts which was untrue.”
At paragraph 174 [Appeal Book page 69], his Honour referred to a submission “based upon the mendacious behaviour” of the mother. His Honour identified, as one of the issues that may need to be explored on a final hearing, what the intent of the mother was in relation to the removal of the child to Samoa. Ultimately, at para 175 [Appeal Book page 69], the trial Judge recorded that:
There must also be concerns about the veracity of the evidence of [the mother] as to her concerns about the welfare of the child.
Against that background of statements by the trial Judge, it was submitted by Counsel for the mother that this Court would be satisfied, firstly, as to the reasonable apprehension of a lack of impartiality on the part of the trial Judge, and, secondly, that such a lack of impartiality would have the effect which the authorities require that the Court be established that it would, by virtue of the nexus between matters with respect to which the trial Judge made findings or expressed conclusions and matters which it is clear from his judgment remain for adjudication at a final hearing.
Counsel for the respondents faced with the very considerable number of passages of the trial Judge’s 2 June 2010 Reasons, and the terms in which they were expressed, in my view, sensibly, submitted that in a further hearing at which there would be more evidence, this Court could not be persuaded that his Honour would not come to a different conclusion or make different findings of fact. It was submitted, correctly, in my view, that his Honour clearly contemplated in his June judgment that at a final hearing there would be further evidence.
The real question is whether a balanced reading of the passages in the June 2010 judgment upon which Counsel for the mother relies, and to which reference has been made, establishes the second proposition urged upon the Court by Counsel for the respondents.
The law which governs this application is not in doubt. It does not need to be referred to in any great detail, although, particularly as the respondents are present in Court and have been present throughout the hearing of the proceedings, perhaps a little more exposition than might otherwise be provided is appropriate.
The Court was referred to the very recent decision of the High Court in British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; (2011) 85 ALJR 348 (“British American”). In that case, by majority of three to two (the minority including French CJ), the High Court concluded that the trial Judge should have recused himself from further hearing of the proceedings. I perceive, in the limited time that has been available to digest the totality of their Honours’ reasons, that there was not a distinction in principle between the majority and the minority as to the relevant legal principles, but rather a difference of opinion between their Honours as to whether, in the circumstances revealed by the evidence before them, the District Court Judge, whose previous judgment was scrutinised, did, or did not, manifest what a reasonable observer could classify as a lack of impartiality.
The case, I think, is significant on the facts because, as the Chief Justice recorded, the District Court Judge in question made it clear, in an interlocutory ruling, that he was basing his conclusions on the limited evidence put before him and that a different picture might emerge at trial. The Chief Justice concluded that the finding would not appear to a fair-minded lay observer to give rise to a reasonable apprehension of bias in different proceedings some years later against the same defendant. And, as his Honour recorded in subsequent paragraphs, that was the crux of the disagreement between the Chief Justice and the three Judges who constituted the minority.
Later in his judgment, the Chief Justice referred (at paragraph 37) to the earlier decision of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644. When British American was raised in debate with Counsel earlier this morning, the Court asked whether British American said anything materially different from what the High Court had said in 2000 in Ebner. The Court was informed, and with respect, I believe, accurately, that there was no substantive difference in terms of the test or tests applicable to a recusal application.
For convenience, I refer to paragraph 37 of French CJ’s judgment, in which his Honour referred to Ebner and said (at ALR 440) that Ebner “requires two steps”:
… The first is “the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”. The second is an “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”. In Ebner the constructed observer was the “fair-minded lay observer” concerned only with a reasonable apprehension of bias. The test is generally applicable to cases of asserted apprehended bias… (footnotes omitted)
And his Honour gave a number of examples.
The majority, notwithstanding the clear qualifying statements of the District Court Judge in his interlocutory judgment, nevertheless concluded that the District Court Judge, in all the circumstances, was required to recuse himself from further hearing of the proceedings. In the course of their judgment, the majority (per Heydon, Kiefel and Bell JJ) said:
It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public’s perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature. (footnotes omitted)
Later (at paragraph 145) the majority said (at ALR 464):
Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, …
I pause here to say that in this case it is in the same proceedings,
… and whether between the same parties or different parties, …
I again pause to say that in this case it is the same parties,
… the judge will be aware that different evidence may be led at the later trial. Judge Curtis’s express acknowledgment of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings. (original emphasis)
Their Honours went on to say (at ALR 466):
… In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge’s finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS’s denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge…
Whilst, in my view, the circumstances of the present application fall short in numerous respects of those there described, in my view, there is nothing expressly stated or implied by the trial Judge’s Reasons which suggests that he retains, or could be expected to retain, the kind of open mind which the test clearly requires. That is to say, his Honour could not be expected, having regard to what he has said, and the terms in which he has said it, in his Judgment of 2 June 2010, to be neutral in the legal sense. I’m satisfied that the first step requirement of the recusal test has been satisfied.
As is not in doubt, that is not conclusive of the issue. As is also not in doubt, the proceedings which his Honour may continue to hear, but for this Court concluding that he ought not, involve the same parties and the same issues as those with which he was concerned in June 2010.
At least two very significant issues emerge from the judgment of 2 June 2010 as requiring adjudication at a final hearing, and his Honour identified these and made clear that he saw them, with respect, correctly, as major issues for later and final determination. They related in broad terms to the Samoan proceedings and to the welfare of the child, the subject of the parenting proceedings.
So far as the former is concerned, as his Honour’s Reasons for Judgment make clear, the spectre of fraud loomed over that issue. So far as the latter is concerned, the mother’s case, it seems from the judgment of 2 June 2010, involved significant issues of neglect or perhaps, more neutrally, custodial unsuitability. Even on the trial Judge’s Reasons for Judgment of 2 June 2010, it could not, in my view, be suggested that those issues would be capable of only one determination which was adverse to the mother. They may or may not, but, for my part, I’m not persuaded by the evidence that the issue was not one which the mother is entitled to continue to agitate.
In those circumstances, for my part, I would be persuaded that, if an extension of time were granted within which to appeal against the trial Judge’s refusal to recuse himself on 14 December 2010, the appeal thereby allowed to be instituted would have merit. In my view, it would satisfy both limbs of the Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (supra) test. That is to say, there would have been an error of principle on the part of the trial Judge in not recusing himself in the circumstances, and/or that the refusal, if this Court did not intervene, would be likely to cause a substantial injustice to the mother. That being so, in my view, the mother makes out an entitlement to the relief she seeks.
As noted earlier, however, as Counsel for the respondent has reminded the Court in his written submissions and briefly in his oral submissions, there are other aspects of a discretionary nature to which regard must be had. In no particular order of significance they are, in essence, the adequacy of the explanation for delay in seeking to challenge the orders of 14 December 2010, and the prejudice to the respondent in permitting the mother to challenge those orders out of time.
It goes without saying that in the exercise of discretion, the merits of a potential appeal must be weighed against the discretionary factors and, for my part, I would suggest that, in essence, the stronger the apparent merit of the appeal the less significant the discretionary issues become, and vice versa.
The mother has provided an adequate explanation of her delay. Even if she hadn’t that would not, in my view, be a reason for declining to exercise the discretion to extend time in which to permit her to appeal. To the extent that allowing the mother to appeal out of time prejudices the respondents, I am not persuaded that it does, or, if it does, that the prejudice suffered by the respondents could fairly be seen as referable to anything done or not done by the mother.
With respect to the learned trial Judge, the Judgment on 2 June 2010 clearly contemplated a further, and final, hearing. Whatever may, or may not, have happened on 14 December 2010, about which I would not speculate or need to speculate, there has not been a final trial.
Nothing to which we have been referred persuades me that the mother’s application seeking an extension of time within which to apply to appeal against the recusal refusal on 14 December 2010 has, or could, prejudice the respondents in a material way. That being so, I would not refuse the mother the relief to which I believe she is entitled.
Having allowed, as the Court has, the appeal against Benjamin J’s refusal to recuse himself from further hearing of the proceedings between the parties, it becomes necessary to consider the fate of the mother’s application to appeal against Benjamin J’s interlocutory orders of 2 June 2010.
Given that those orders were interlocutory, and contemplated a final hearing, and that, by virtue of orders made by this Court a short time ago, there will be a final hearing, hopefully expeditiously, before a Judge other than Benjamin J, other than satisfying some perverse academic interest, no possible utility, or benefit or purpose, would be served by this Court embarking upon a hearing of the application or appeal against the interlocutory orders of 2 June 2010.
Counsel for the mother has sought leave to withdraw the application and, as a consequence, for this Court to the extent necessary to dismiss it. So doing does not involve any admission that the application is devoid of merit, nor, for that matter, does it involve any implication that the application would have succeeded had it been necessary to do so. In my view, the determination of the final hearing of the parenting proceeding between the parties on their merits would be no more impacted by the interlocutory judgment being impugned or not impugned, and I would grant leave to withdraw the application filed on 14 October 2010, and dismiss it.
I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace & Johnston JJ) delivered on 15 March 2011.
Associate:
Date: 12.04.11
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