Murtas & Murtas
[2024] FedCFamC1A 40
•27 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Murtas & Murtas [2024] FedCFamC1A 40
Appeal from: Murtas & Murtas [2023] FedCFamC2F 1631 Appeal number: NAA 333 of 2023 File number: SYC 392 of 2023 Judgment of: RIETHMULLER J Date of judgment: 27 March 2024 Catchwords: FAMILY LAW – APPEAL – Apprehended bias – Robust discussion at directions hearing does not satisfy apprehended bias test – Even if comments satisfied test, there was no application for disqualification of the judge made at the time the facts giving rise to the claim of apprehended bias were known to appellant’s legal representatives – Appellant taken to have waived right to seek disqualification of judge – Appeal dismissed.
FAMILY LAW – APPEAL – COSTS – Divorce Application – Date of separation in dispute – Hearing more than 12 months after date of separation alleged by Appellant – Initial Divorce Application discontinued and divorce granted by consent on oral application – Where appellant sought indemnity costs – Appellant’s costs application dismissed – Whether primary judge erred in refusing to hear hypothetical application in order to determine precise date of separation – No error by primary judge – Appeal dismissed.
Legislation: Family Law Act 1975 (Cth) ss 48, 117 Cases cited: Acheson & Begbie (No 2) [2024] FedCFamC1A 21
Ebnerv Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Michael Wilson and Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
Unions NSW v New South Wales (2023) 407 ALR 277; [2023] HCA 4
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Vang & Chung [2024] FedCFamC1A 25
Number of paragraphs: 24 Date of hearing: 25 March 2024 Place: Parramatta Counsel for the Appellant: Mr Levet Solicitor for the Appellant: Mills Oakley Counsel for the Respondent: Mr Liedermann Solicitor for the Respondent: IT Lawyers ORDERS
NAA 333 of 2023
SYC 392 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MURTAS
Appellant
AND: MR MURTAS
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
27 MARCH 2024
THE COURT ORDERS THAT:
1.Appeal NAA 333 of 2023 be dismissed.
2.The appellant pay the respondent's costs fixed at $11,674.65.
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 the pseudonym Murtas & Murtas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
The appellant appeals against a decision to dismiss an application for costs following the dismissal by consent of the respondent’s Divorce Application on 9 November 2023.
The respondent’s Divorce Application was filed on 25 January 2023, alleging that the parties had separated in January 2022, but had remained living under the one roof until January 2023. The appellant opposed the Divorce Application, alleging that the parties separated in November 2022 and therefore, the parties had not lived separately for a period of 12 months prior to the filing of the Divorce Application, as is required by s 48(2) of the Family Law Act 1975.
When the Divorce Application came before the primary judge, his Honour faced the prospect of hearing a trial to determine the date of separation solely for the purpose of determining whether the pending Divorce Application should be dismissed, even though on the wife’s case the parties had, by that time, been separated for 12 months. In order to overcome the technical issues, the parties agreed that the pending Divorce Application be dismissed, that leave be granted for the respondent to make an oral Divorce Application, and that a divorce be granted on the basis that separation occurred no later than 6 November 2022. The primary judge granted a divorce order on this basis.
The appellant then pressed an application for costs on the basis that the respondent knew, or ought to have known, that the Divorce Application would not be successful. The appellant had earlier written to the respondent stating that indemnity costs would be sought if the respondent’s Divorce Application was dismissed.
After hearing argument and considering the various factors identified in s 117(2A) of the Family Law Act, the primary judge declined to make a costs order.
GROUNDS OF APPEAL
The appellant argued two grounds at the hearing of the appeal, as identified in the appellant’s Summary of Argument filed 22 February 2024, and did not pursue the other Grounds of Appeal set out in the Notice of Appeal. As the second ground goes to procedural fairness it is appropriate to deal with it first.
Apprehended Bias
The test for apprehended bias is well-established, as set out in Ebnerv Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]:
... 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.
However, as I summarised in Acheson & Begbie (No 2) [2024] FedCFamC1A 21:
130. The test must be applied in the context of modern litigation, taking account of the need for active case management which demands that judges no longer remain as detached as a cricket umpire or “as inscrutable as the Sphinx”, until pronouncing judgment. Exchanges between judges and counsel “are not on that account alone to be taken as indicative of prejudgment”, indeed “counsel are usually assisted by hearing those opinions”: Johnson v Johnson (2000) 201 CLR 488 at [13] …
131. Importantly, as the High Court identified in Ebner at [8], “The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty”. The test does not require a standard of perfection from a judge and nor could it, given the difficult task of managing sharply contested hearings and trials: sometimes even Homer nods.
The appellant relies upon statements made by the primary judge on 15 September 2023 after identifying that a divorce order would be inevitable by November 2023 and that the issues appeared to centre on costs. The primary judge made a number of comments that are reasonably encapsulated by the following:
… how about you do this: you make a separate application for costs, if that’s where this is heading, and someone can determine that, but, quite frankly, it’s a waste of a judge’s time. It would be a matter that should be dealt with by a registrar seized of the divorce application.
…
… the legislation is also quite clear about proportionality. We don’t exist to hear esoteric questions. Your client has had a right. She has exercised it. But in relation to anything that flows from that, I’m sure the question will be determined under section 117, and the question whether the circumstances of the case require the court to depart from the position that each party pay their own costs – this was simply about the question of divorce. I’m not saying your client didn’t have a right, but the extent to which she put an effort into that, and the other side did so, must be considered in the light of the expectation concerning proportionality. In any event, make the application. I certainly won’t be dealing with it. Is there anything else?
(Transcript 15 September 2023, p.4 line 23 to p.5 line 11)
It is plain that the primary judge had a preliminary view that any costs application could appropriately be dealt with by a registrar and, unsurprisingly given the pressures of work in the court, that it was not an issue that warranted time from a judge of the court. The primary judge identified the section of the Family Law Act which sets out the considerations applicable to costs decisions. On the next date, 9 November 2023, the primary judge heard the costs application and addressed it, providing reasons addressing the various factors set out in s 117 of the Family Law Act.
Litigation is expensive for the parties. Providing judges and courts is a significant public expense which the public has a right to expect will be used efficiently. The courts are not a forum for spouses to freely engage in technical disputes about issues that are not of practical significance. In this case, the date of separation made no difference to other rights of the parties and, on both parties’ cases, was at least 12 months earlier than the November hearing date. The primary judge’s comments were for the purpose of focusing the parties’ minds upon the nature and significance of the issue.
I am not persuaded that “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” simply because the judge was robust in attempting to manage litigation which appeared to make no practical difference to the parties’ rights (other than for the purpose of one spouse attempting to obtain a costs order against the other on the Divorce Application).
Importantly, however, no application was made by the appellant for the primary judge to disqualify himself, either on that day or on 9 November 2023 when the application was heard. The facts and circumstances said to lead to the conclusion that “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” were all within the knowledge of the appellant and her lawyers prior to the conclusion of submissions before the primary judge. In this respect, the appellant is taken to have the knowledge of her solicitor and counsel: Smits v Roach (2006) 227 CLR 423.
It is not open to a party to await the outcome of an application before deciding whether to raise a complaint of apprehended bias. As was said in Vakauta v Kelly (1989) 167 CLR 568, at 572 (per Brennan, Deane and Gaudron JJ):
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment.
The appellant’s choice not to raise a complaint of apprehended bias at the relevant time is taken to be a waiver of the right to raise the issue (at least when represented by a lawyer, as was the case here): see Smits v Roach (2006) 227 CLR 423 at pp.439-440 [43] per Gleeson CJ, Heydon and Crennan JJ; and Michael Wilson and Partners Ltd v Nicholls (2011) 244 CLR 427 at [76].
Even if the comments by the primary judge satisfied the test for apprehended bias, the failure of the appellant to make any application that the primary judge disqualify himself resulted in a waiver of this right by the appellant in the circumstances of this case. As a result, this ground of appeal cannot succeed.
Failure to make a finding of fact as to the date of separation
The first ground argued by the appellant was that the primary judge erred by declining to determine the precise date of separation and therefore failed to have regard to a relevant consideration in the costs application: see generally House v The King (1936) 55 CLR 499 (at 504–505).
As the Divorce Application had been discontinued (and a second oral application granted) there were no proceedings requiring a finding as to the date of separation. As McHugh J said in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624:
The court cannot try a hypothetical action between the parties [Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201]. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action [Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201].
The reasons of McHugh J in Lai Qin have been cited with approval in Unions NSW v New South Wales (2023) 407 ALR 277 and applied in this court: see Vang & Chung [2024] FedCFamC1A 25. There is no reason to doubt these authorities. Therefore, the argument that the primary judge erred in declining to proceed to hear and determine the now hypothetical divorce issue cannot succeed.
Counsel for the appellant argued that there was a public policy requirement that the precise date of separation be determined in order to avoid divorce applicants alleging that separation occurred earlier than the true date of separation. I am not persuaded that there can be any public policy consideration that would result in a judge being required to hear a hypothetical dispute in the context of a costs application. If there were public policy issues concerning the divorce application, the primary judge would have had to deal with those issues when determining whether to make the divorce order.
As the primary judge did not err in declining to hear the now hypothetical dispute to determine the precise date of separation, it cannot be said that he failed to take it into account. For these reasons, this ground of appeal cannot succeed.
Conclusions
As the appellant has not established either ground of appeal the appeal must be dismissed.
The parties agreed that in the event the appeal was dismissed the appellant should pay the respondent’s costs fixed at $11,674.65.
I therefore make orders accordingly.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 27 March 2024
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