Niem and Tong - [2017] FamCA 134

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Niem and Tong

Details

AGLC: Niem and Tong [2017] FamCA 134
Case: [2017] FamCA 134
Decision Date: 10 March 2017

CaseChat Overview and Summary

In this matter before Foster J, the husband sought the disqualification of the judicial officer on the grounds of apprehended bias. The dispute concerned the husband's assertion that the judge had prejudged the case, thereby necessitating recusal.

The central legal issue before the court was to determine 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 questions before them. This required the court to consider the established principles governing apprehended bias, as articulated in cases such as *Johnson v Johnson* and *Ebner v Official Trustee in Bankruptcy*.

Foster J applied the well-settled test for apprehended bias, which focuses on the objective standard of a reasonable lay observer. The court noted that judges are expected to engage with the proceedings, form tentative views, and participate in a dialogue with counsel, and that such engagement does not, in itself, indicate prejudgment. The principles from *Johnson v Johnson* were reiterated, emphasizing that the test is not based on the judge's subjective belief but on public confidence in the administration of justice, requiring that justice be both done and seen to be done. The court also considered the principle that judges do not select their cases and that objections to a judge sitting must be based on substantial grounds, as an insubstantial objection should not allow parties to influence the composition of the bench.

The husband's application for disqualification was dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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-judgment53. 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.

Ratio Decidendi

Legal Principle Established

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