Niem and Tong
[2017] FamCA 134
•10 March 2017
FAMILY COURT OF AUSTRALIA
| NIEM & TONG | [2017] FamCA 134 |
| FAMILY LAW – COURTS AND JUDGES – Disqualification – Where application that the Court disqualify itself by reason of apprehended judicial bias – Where consideration of the applicable “test” and considerations pertaining thereto – Where necessity for the answer to the test to be “firmly established” – Application dismissed. |
| British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 9 Cleane Pty Ltd v ANZ Banking Group Ltd (2000) 205 CLR 337 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Niem & Tong [2016] FamCA 1089 Re JRL; Ex parte CJL [1986] HCA 39 Theophane & Hunt and Anor [2016] FamCAFC 87 |
| APPLICANT: | Ms Niem |
| RESPONDENT: | Mr Tong |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Truong |
| FILE NUMBER: | PAC | 3572 | of | 2014 |
| DATE DELIVERED: | 10 March 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 10 February 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Givney |
| SOLICITOR FOR THE APPLICANT: | Maclarens Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Campton SC |
| SOLICITOR FOR THE RESPONDENT: | Steven Stefanou & Co |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Truong of Legal Aid NSW Bankstown Family Law |
Orders
That the husband’s application for disqualification be dismissed.
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 Niem & Tong 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 PARRAMATTA |
FILE NUMBER: PAC 3572 of 2014
| Ms Niem |
Applicant
And
| Mr Tong |
Respondent
REASONS FOR JUDGMENT
In these proceedings commenced in August 2014 that relate to both parenting and property the Court delivered an interim judgment on 19 December 2016. (Niem & Tong [2016] FamCA 1089).
The interim determination related to the issues of interim parenting arrangements for the subject children of the parties’ marriage and interim property orders.
Orders were made on 19 December 2016 as follows:
Parenting
(1) That the mother and father have equal shared parental responsibility for the children [B] born … 2001, [C] born … 2005 and [D] born … 2010.
(2) That the child [B] live with the father and spend time with the mother in accordance with his wishes.
(3) That the child [C] live with the father.
(4) That the child [C] spend time with the mother as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the first weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following Tuesday.
(5) That the child [D] live with the mother.
(6) That the child [D] spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the second weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following Tuesday.
(7) That the mother and father be and are hereby restrained from physically disciplining the children.
(8) That the mother and father are at liberty to attend on occasions significant to the welfare of the children and each of them in relation to the children’s schooling, religious education, extracurricular activities, and such other occasions significant to the welfare of the children where the attendance of either or both parents is to be reasonably expected.
(9) That the mother and father keep each other informed at all times of their respective mobile telephone numbers and landline telephone numbers, if applicable, and notify the other in the event of any change within 24 hours of any such change occurring.
(10) That the mother and father keep each other informed at all times of any general practitioner or other health practitioner on which any of the children attend and do all necessary things so as to authorise the other to be provided with any reasonably requested information in relation to the attendance on such practitioners.
(11) That for the purposes of changeovers where not at school the father as necessary shall deliver the child [C] to the mother’s residence or any other venue agreed to and reasonably nominated by the mother for the commencement of the mother’s time with the child and the mother shall deliver the child [D] to the father’s residence or any other venue agreed to and reasonably nominated by the father for the commencement of the father’s time with the child and that at the conclusion of each parent’s time with [C] or with [D], as applicable, the parent with whom the child has been spending time shall return the child to the other parent’s residence or any other venue agreed to and reasonably nominated by that other parent.
Property and Injunctions
(12) That within 14 days from this date the husband as Appointor of the [E] Trust shall appoint [Mr F], Solicitor as Trustee of the Trust for the purposes of selling by public auction the real estate properties [1 and 2 G Street, Suburb H] for the best price reasonably obtainable and upon sale disburse the proceeds of sale in the following order and priority:
(a) in payment of auction and advertising expenses and agents commission on the sale;
(b) in payment of legal expenses of and incidental to the sale;
(c) in payment of the Trustee’s reasonable fees and expenses of and incidental to the sale of the said properties;
(d) in discharge of the mortgage encumbrances secured thereon including any arrears payable at the time of sale;
(e) in payment of the then remaining balance of proceeds of sale to an interest-bearing controlled monies account in the names of the solicitor for the husband and the solicitor for the wife jointly with such account to be held on trust for [E] Pty Ltd as trustee of the [E] Trust pending further order.
(13) That forthwith upon final settlement of the sale of the real estate properties as provided for in the previous order, the husband shall do all things necessary as Appointor of the [E] Trust to reappoint [E] Pty Ltd as trustee of the [E] Trust.
(14) That within seven days from this date the husband do all necessary things and sign all necessary documents and authorities so as to authorise and permit the wife to contact and negotiate with [I] Pty Ltd being the plaintiff in proceedings 2016/… in the District Court of New South Wales so as to procure, if possible, a compromise and final settlement of the claims made in those proceedings.
(15) That within seven days from this date the husband do all necessary things and sign all necessary documents and authorities to authorise and direct Stephen Stefanou and Co, Solicitors to pay $50,000.00 of the trust monies presently held by him on behalf of the husband to the wife as she may direct the solicitor in writing and thereafter the husband be at liberty to direct the application of the balance then remaining.
(16) That within seven days from this date the husband do all necessary things and sign all necessary documents and authorities to authorise and direct [Mr J], Solicitor to account for the trust monies presently held by him on behalf of the husband in the following manner and priority:
(a) as to the sum of $50,000.00 provided for in orders made 13 October 2016 if not already paid, to be paid to the wife as she may direct the solicitor in writing;
(b) as to the balance of funds then remaining in trust (estimated to be about $142,000.00) to the wife’s solicitors to be held in trust by those solicitors for the parties jointly and only to be disbursed in payment of all or part of any settlement reached in relation to the [I] Pty Ltd proceedings.
(17) That the wife is hereby authorised and permitted to apply funds presently held in the parties’ ANZ Joint Account as necessary in payment of any settlement reached in relation to the [I] Pty Ltd proceedings after payment of funds as provided for in the previous order.
(18) That otherwise the husband and wife are restrained from dealing with in any way or permitting the withdrawal or diminution of the balance of funds thereafter remaining in their ANZ Joint Account pending further order.
(19) That the wife, having sole use and occupation of the former matrimonial home at [K Street, Suburb L] to the exclusion of the husband by reason of orders made 13 October 2016, shall pay as they fall due and payable outgoings in relation to that property including but not limited to Council rates, water rates and property and contents insurances.
(20) That the husband be and is hereby restrained from selling, mortgaging, leasing, encumbering or otherwise dealing with the property at [K Street, Suburb L] pending further order.
(21) That otherwise all interim applications before the Court are dismissed.
(22) That proceedings be adjourned for further judicial case management to 9.30 am on Friday, 10 February 2017 and it is noted that such listing is to facilitate the appearance of the Independent Children’s Lawyer appointed by order on 14 November 2016 and to give consideration to the appointment of an appropriate Chapter 15 expert as to parenting issues and an appropriate Chapter 15 expert for the purpose of corporate valuations.
There has been no appeal in relation to those interim orders.
On the matter being listed before the Court for further case management directions on 10 February 2017 the husband made application for me to disqualify myself on the basis of “a reasonable apprehension of bias”.
As a consequence of that application it was ordered that each of the parties file and serve short submissions in relation to the question of disqualification.
The two step test as to apprehended bias was set out in Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group Ltd (2000) 205 CLR 337 (at page 345):
8 … 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. 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. …
The applicable considerations in relation to apprehension of bias are well settled and were more recently summarised by the Full Court in Theophane & Hunt and Anor [2016] FamCAFC 87 as follows:
Bias and pre-judgment
53. Amongst the various “grounds” of appeal, there are a variety of complaints that we have distilled to the issues in [8]. Doing the best we can, a major complaint of the father is that his Honour was biased in that he pre-judged the case and ought to have disqualified himself.
54. The principles to be applied in respect of disqualification for apprehended bias are set out in Johnson v Johnson (2000) 201 CLR 488 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. In the former, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492-493 as follows:
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)
55. In Ebner, the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at 348:
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.
It is necessary to bear in mind the caution expressed by Mason J in Re JRL; Ex parte CJL [1986] HCA 39:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation.
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.
There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.
Submissions received from a Senior Counsel for the husband illuminated the application for disqualification and the grounds upon which it is based.
It is contended that certain paragraphs of the reasons for judgment of 19 December 2016:
clearly [convey] a predetermination of a very, if not the most, significant issue in the substantive section 79 proceedings – the husband’s use and application of funds in the shadow of the separation and thereafter.
The impugned paragraphs of the reasons for judgment are paragraphs 45, 66 and 69. Although, save for the general proposition, no specific submission is addressed towards paragraph 66.
Paragraph 45 of the reasons for judgment is as follows:
45. The husband’s “Schedules” of expenditure reveal little regard as to his obligations to his creditors but more an abandonment of any responsibility. Indeed, the funds sourced from [Country T] could all but have liquidated the liabilities in respect to which he now seeks to apply other matrimonial assets to the detriment of the remaining asset pool such as it is known. Emphasis added.
Paragraph 45 is preceded by the following short discussion as to funds had and received by the husband:
41. The husband has had access in the last 18 months to funds as follows:
$50,000.00 from joint ANZ account October 2015
$30,624.00 motor vehicle insurance payout June 2015
$195,000.00 funds from [Country T] March 2015
$304,958.00 refinance of the husband’s [Country T] properties November 2015
$150,000.00 legal fees debited to solicitors trust account from property funds
$212,290.00 funds paid to the husband CBA a/c from sale of [Suburb N] property
$142,240.00 funds paid to the husband CBA a/c from sale of [Suburb S]
$1,085,112.00
42. From these funds the husband has expended significant sums on his own legal fees and, it appears, the ongoing conduct of his business interests, in particular, the renovation and improvement of the properties owned by [V] Trust in respect to which in May 2014 [V] entered into an asset Finance agreement with [Y] (now [I Pty Ltd]) guaranteed by the husband to purchase medical equipment and fit out for the husband’s … business.
43. Many of the invoices provided by him relate to the period pre separation and provided little or no explanation for his asserted expenditure of the above funds more recently available to him.
44. His business, it appears, remained open until July 2016. He fails to account for any income that may have been derived from the [business] in respect to which he expended significant funds including payment of wages and continues to rent the property as a [business]: “[Company AA]”. He complains that he cannot complete the refurbishment without further funds.
The husband’s complaint in relation to the wording of paragraph 45 in the use of the words “abandonment of responsibility” is that the words so used “are not the subject of qualification, not a mere passing impression but reflective as to a finding or conclusion of misconduct that directly impugns the husband’s motivation and character”.
The undisputed evidence was that over the period prior to and after separation the husband had access to very significant funds that he applied for purposes other than meeting ongoing liabilities of the parties including secured liabilities relating to his business enterprise. As a consequence of his use of funds debt recovery proceedings had been commenced, judgment entered and enforcement action imminent. This was, in part, a reason for orders made on an interim basis. A fair minded lay observer would not reasonably apprehend the absence of an impartial mind on the basis of the use of the words “abandonment of responsibility” in the context of such undisputed evidence and in the context of an interim hearing. This complaint of the husband is rejected.
Paragraph 66 of the reasons for judgment is as follows:
66. Regrettably, the asset pool is far from settled and there are significant issues as to the receipt and application of most significant funds by the husband since separation. The financial circumstances of the parties have been adversely affected by the husband’s professional misconduct in relation to the abuse of drugs leading to his suspension from practice. His inability to practice by reason of his personal misconduct and its effect on the available asset pool is a matter for final hearing.
There is no submission from the husband in support of his reliance upon this particular paragraph in the interim reasons for judgment other than to suggest that it conveys (either singly or in company with the other paragraphs complained of) a predetermination of a significant issue in the proceedings: his use and application of funds. It is clear that the ultimate determination was seen to be a matter for final trial. It is not suggested that the terms of paragraph 66, or other findings were not supported by the evidence or adverse to the evidence that was before the Court. A reasonable apprehension of prejudice cannot arise for the fair minded lay observer in this context. This complaint of the husband is rejected.
Paragraph 69 of the reasons for judgment is in the following terms:
69. Otherwise, the husband has had significant funds with which to pay legal fees. He will need to find further funds from his own resources other than funds presently held by his solicitors. His asserted prospective liability for funds held drawn against corporate loan accounts has not been the subject of any demand or assessment and as such is merely putative with the prospect other accounting methods being available to minimise any such liability. Emphasis added.
The complaint contended by the husband is that “the use of the word putative in paragraphs 69 of the judgment is not cast in the context of an open enquiry or query, but conveys a general consideration and reasoning rejecting the case to (sic) promoted by the husband at trial”.
In the reasons for judgment the following appears:
50. Otherwise the husband asserts various credit card debts of about $66,000.00, unpaid personal tax of $34,799.00 (for which no assessment was produced) and a personal liability for unpaid wages of $24,561.00 notwithstanding that he traded through a corporate entity. The husband otherwise asserts he has borrowed from family $76,000.00 for living expenses.
It is clear from the assessment of the husband’s evidence as contained in paragraph 50 that there were asserted liabilities and obligations that were indeterminate or prospective in nature and indeed would need to be clarified at a final hearing when issues of fact can be determined.
The common or ordinary meaning ascribed to the word putative is “reputed or supposed”: (Macquarie Dictionary: Revised Third Edition). It is patently clear that the word putative as to those various asserted liabilities was used in that context.
It is important to be mindful that the matters complained of by the husband arise in the context of interim proceedings where ultimately many matters of contested fact remained to be determined at a final hearing.
It is also important to bear in mind that “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”.
In the context of an interim judgment, in which it is clear that many contentions as to factual matters still need to be determined, the fair minded and reasonable lay observer would not interpret the use of the word “putative” to mean anything other than its ordinary meaning of “reputed or supposed”.
The answer to the test for apprehended bias must be “firmly established”. As observed by Gummow J. in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 9:
[70] …But it was remarked in the joint reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson to which further reference is made below, that the hypothetical observer would be no more entitled to make snap judgments than would be the decision maker under observation. Accordingly, and as the joint reasons make clear, later statements which qualify earlier statements may be relevant. There is no logical reason why any temporal element should be brought into that general principle; it depends upon the circumstances of the particular case…
[71] To that perception of the role of the hypothetical observer must be added the consideration that "the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party". The words are those of Mason J in Re JRL; Ex parte CJL, in a passage adopted by Callinan J in Johnson v Johnson. Mason J. also said in that passage, using words later said by the English Court of Appeal to have "great persuasive force", and adopted by the New Zealand Court of Appeal:
In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
It is incumbent for the husband to firmly establish the “logical connection” between his complaints and the feared deviation from the course of deciding the case on its merits. Each of the complaints is dealt with above. The context is an interlocutory hearing where in due course the final factual matrix will ultimately be resolved by a full hearing.
It is not contended that any matter complained of was inconsistent with the evidence or inferences that could arise from the evidence at interim hearing.
This “logical connection” with the feared deviation from the course of deciding the ultimate case on its merits has not been established by any of the contentions or the contentions as a whole.
The application for recusal is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 10 March 2017 .
Associate:
Date: 8 March 2017
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