Ostap & Sidak
[2024] FedCFamC1A 74
•7 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ostap & Sidak [2024] FedCFamC1A 74
Appeal from: Ostap & Sidak [2023] FedCFamC2F 1575 Appeal number: NAA 352 of 2023 File number: ADC 4458 of 2021 Judgment of: ALDRIDGE J Date of judgment: 7 May 2024 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Proposed appeal from primary judge’s refusal to disqualify himself and discharge the Independent Children’s Lawyer (“ICL”) – Leave to appeal is required – Where the applicant did not identify any matter the primary judge failed to have regard to in the recusal application – Primary judge’s “intimation” was insufficient to constitute apprehended bias – Primary judge properly dismissed the application for the removal of the ICL – Appeal has no merit – No basis for grant of leave to appeal. Legislation: Family Law Act 1975 (Cth) s 60CA and s 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26 and s 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Paco & Racina [2014] FamCAFC 195
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 50 Date of hearing: 9 April 2024 Place: Sydney (via video link) The Applicant: Self-represented litigant Solicitor for the Respondent: Stevens Law (submitting notice filed) Counsel for the Independent Children’s Lawyer: Mr Roberts Solicitor for the Independent Children’s Lawyer: Legal Services Commission of South Australia ORDERS
NAA 352 of 2023
ADC 4458 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS OSTAP
Applicant
AND: MR SIDAK
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
7 MAY 2024
THE COURT ORDERS THAT:
1.Leave to appeal in appeal NAA 352 of 2023 is refused.
2.The Notice of Appeal filed 20 December 2023 is dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Ostap & Sidak has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
Ms Ostap (“the mother”) and Mr Sidak (“the father”) are engaged in part-heard parenting proceedings which have continued for three days before a judge of the Federal Circuit and Family Court of Australia (Division 2).
On 7 December 2023 the primary judge declined to recuse himself and refused to discharge the Independent Children’s Lawyer (“ICL”). The mother has appealed both decisions.
LEAVE TO APPEAL
Although the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to hear and determine appeals from a judge refusing to disqualify themselves per se (s 26(1)(h) of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“FCFCOA Act”)), leave to appeal is required (s 28(1)(c) of the FCFCOA Act). In the absence of a provision such as s 26(1)(h), a dissatisfied litigant is limited ordinarily to appealing the orders said to be affected by the reasonable apprehension of bias or actual bias, relying on those matters as the grounds. There may also have been a doubt as to whether such a refusal is an order against which an appeal lies, in the absence of the section.
It follows that in part heard matters where the outcome is yet unknown, that factor must play a part in determining whether leave should be granted.
Leave to appeal is also required to appeal against the refusal to discharge the ICL. Section 28(1)(b) of the FCFCOA Act provides that leave is required to appeal against prescribed judgments. Regulation 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) identifies the prescribed judgments. Leave to appeal is required against an interlocutory decree other than a decree in relation to child welfare matters.
The order refusing to discharge the ICL is interlocutory because it does not decide the rights of any party and because, at least as a matter of law, the application could be made again. Such an order does not fall within the definition of a child welfare matter provided by reg 4.02(2).
Whilst the discretion to grant leave is unfettered, generally it is exercised by looking to see whether the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave was refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692).
THE APPEAL
In order to understand the mother’s complaints, it is necessary to set out some relevant facts.
The hearing commenced on 28 June 2023. The parties’ children, who were born in 2010 and 2009 had been in the father’s care since 25 November 2020 when they refused to return to their mother. They have spent limited time with her since.
The mother, father and ICL were each legally represented at the start of the hearing. All of the parties’ lawyers asked the primary judge to give an ‘intimation’, which his Honour did. The parties then negotiated for a while but were unable to agree. A preliminary discussion about evidence then ensued including an application for obtaining a District Court criminal file relating to the mother.
On return, after luncheon adjournment, the mother’s lawyers asked to withdraw and leave was granted. The mother then sought an adjournment, which was refused. The hearing then continued.
The mother, as the applicant, was still being cross-examined at the time she made her application for recusal. Therefore, the difficulty that she had raised in seeking the adjournment (that she was unable to herself cross-examine the father because of an order made under s 102NA of the Family Law Act 1975 (Cth) (“the Act”)) was yet to arise.
Before turning to the grounds of appeal it is helpful to observe that the mother’s arguments, both written and oral, bore little relation to the grounds. I have endeavoured to address what I understood to be the substance of her complaints.
Did the primary judge apply the incorrect test for apprehension of bias? (Ground 1)
His Honour clearly identified the correct test, referring to and quoting well-known passages in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) and Charisteas v Charisteas (2021) 273 CLR 289.
The mother’s actual complaint, however, was that the primary judge had not considered all of the matters that she had put before him.
The mother had filed an affidavit in support of her recusal application setting out her complaints which the primary judge summarised at [30]. She also relied on written submissions which the primary judge said echoed the affidavit (at [31]).
The mother disputed that proposition saying that the submissions went further than the affidavit. She also claimed that the oral arguments made by her at the recusal hearing on 21 August 2023 were not referred to. I asked her to identify the matters in the written submissions which were not taken into account but she was not able to do so with any precision.
Unless error be reasonably apparent, it is not for an appeals court to try to search out potential error. Therefore, it is not my task to rummage through her written submissions to the primary judge to try to identify what I think the mother might have had in mind as the matters that the primary judge ignored. In Bahonko v Sterjov (2008) 166 FCR 415, the Full Court of the Federal Court said:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
The written submissions given to the primary judge were 21 pages in length. In these submissions the mother raised the following as the main issues (at paragraph 3):
·Failure to adhere to the overarching principles of s 60CA of the Act;
·Failure to exercise duties in accordance with the Central Practice Directions, Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and best practice principles; and
·Behaviour and conduct that was “abusive, oppressive, failed to independently determine the facts by narrowing down the issues in dispute, obstructed and denied due process”.
None of these directly deals with the issue of apprehended bias, although the mother said at the end of paragraph 3(c) that these matters constituted apprehended bias.
Thereafter, the submissions complain about the conduct of her lawyers and the refusal of the primary judge to grant the adjournment before veering into the merits of the substantive proceedings.
The oral submissions made on appeal also veered quickly into a discussion of the merits of the parenting proceedings and did not focus on the recusal application.
I am unable to glean from them any matter that ought to have been dealt with by his Honour but was not.
The “intimation”
As I have said, the intimation was given at the request of each of the lawyers, including the mother’s counsel. The mother now contends that it demonstrated prejudgment.
His Honour said:
HIS HONOUR: A preliminary intimation is something where I talk about the issues that I see coming off the documents in front of me, noting that I’ve yet to hear all of the evidence from each of you in the course of the trial. One of the difficulties for me is that these kids are on their way to becoming young adults, and they’ve asked – been asked for their views on more than one occasion, and I appreciate mum says that there’s influence and things, and the evidence may come out that way. But one of the problems is that they’ve expressed their views on more than one occasion, and I have a concern that, having voiced those views, they may feel that they should be listened to, and forcing an outcome on them may be something that would lead to more problems for them than the world they currently find themself in.
I also have a concern that they’re under some significant pressure, knowing mum and dad are in court again about them, and I pose the question that, if that pressure was eased, whether things would find their own level eventually, once the dust settles. The court is a fairly blunt instrument, and if there was an order that imposed an outcome on the kids it may go either way in terms of – subject to how the evidence comes, but the risk for me is it might entrench them in the views, in that they will become more resistant rather than more cooperative. I worry about that risk because kids, at the end of the day, want to know mum and dad, but then you’ve got this awkward position where they’re of this age and they’re starting to become young grownups, and so they also want their voice listened to.
So my worry would be that, if I was to override what they’re talking about, I might create more damage than less. Now, I haven’t heard all the evidence. [The] evidence may lead me to another conclusion, but these are the worries for me at the moment, and you’re all well represented by very able and experienced counsel. My reflections on this are on what I’ve read to date and also my knowledge of the history of the matter. The concern – another concern is that, if their wishes were to be adhered to, it does put a reasonable amount of pressure on the person who’s the one they’re living with because you have an obligation, on the long game, to make sure that mum is not out of the link.
So there needs to be a mechanism whereby information can be relayed across, and when the kids find their own voice and start making their movements mum is abreast of what’s happening, because the perfect solution, in some ways, is to provide a world where there’s no conflict between their grownups who look after them, none of that pressure, and that they can find their own pathway eventually, but in a safe and proper environment. So I would have thought that, if there’s to be an outcome similar to what they’ve been talking about, some mechanisms for the communication flow in a proper and sensible way may also assist. So you set the pathway up.
But hopefully, when your first grandchild is born, you’re both able to attend the christening – assuming, in these days, that the child is christened – and, when your grandchild is married, you can go to the wedding together – not – in the same room; I’m not saying together– but because you don’t want to be one of those families where, if the kids include both of you in their celebrations, they have to hold two parties. So the choice of whether you acknowledge the wishes, albeit the controversy, and if you acknowledge the wishes how it works, are choices for you today, but they’re concerns for me for the children, and removal of the pressure so things can find a more even keel without the court system interfering. [Counsel for the ICL], have I covered the bases?
[COUNSEL FOR THE ICL]: Yes, I think you have, thank you, your Honour.
HIS HONOUR: All right.
[COUNSEL FOR THE ICL]: It’s appreciated.
HIS HONOUR: And, just for the parties, again, this is based on my reading and the information to date. I’ve yet to hear all of the evidence, but these are the problems that I see, should the trial proceed, that will need – that I will need help from your counsel and you in terms of the evidence. Understood? All right. We will adjourn…
(Emphasis added)
(Transcript 28 June 2023, p.4 line 1 to p.5 line 17)
The general principle to be applied is that “a judge is disqualified if a fair-mined 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.” (Ebner at [6]). That test is likely to be satisfied if, at the beginning of the hearing the judge made comments which indicated the outcome of the hearing.
In Johnson the majority said at [13]:
In Vakuata v Kelly, Brennan, Deane and Gaudron JJ, referring to both 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.
His Honour was raising the obvious point that the views of the children were likely of significance, given their age, adding that the potential for them to act as they saw fit was also a matter to be considered. However, those comments were hedged and caveated by the emphasised words which make it clear that the view was very much tentative and subject to the further evidence and submissions, particularly as to whether those views had been improperly influenced.
The words of Kirby J in Johnson seem apt to describe the primary judges’ comments. His Honour said ([55]):
…The judge’s statement here was more qualified, less emphatic and less personal to the parties. It was apparently open to dissuasion or modification.
Whilst there is always a danger of crossing the line in a judge giving an “intimation”, particularly at the outset of the proceedings, here his Honour did not do so. What the primary judge did was identify two matters of significance which, if they remained unaffected by the evidence and submissions yet to come, were likely to drive the outcome.
That matter, with the hedges and caveats already noted, is insufficient to lead to a reasonable fair-minded lay observer apprehending that the primary judge might not bring an impartial and unprejudiced mind to the resolution of the proceedings.
Further, no application for recusal was made at that time by counsel for the mother. Ordinarily, that would create a difficulty for her because less an application for recusal is made promptly, the right to do so is waived (see Vakauta v Kelly (1989) 167 CLR 568 at 577). Here, counsel, withdrew shortly after the intimation was given. Nonetheless, it was not until day three of the hearing that the recusal application was made.
Other transcript references
In her written submissions, the mother identified passages in the transcript that she asserted indicated an appearance of prejudgment.
Just after the mother’s counsel sought to be excused, the primary judge sought to clarify the orders being sought. His honour asked the father’s counsel “and the orders you’re seeking are no time now, or maybe no time?” (Transcript 28 June 2023, p.14 line 14). The answer was no – that time was to be in accordance with the children’s wishes.
The mother then outlined her approach to the hearing which included the following:
[THE MOTHER]: …It’s not in their best interests to lose a relationship with me altogether or to have no way facilitated for them to repair the relationship with me.
HIS HONOUR: You appreciate that that is one of the options now on the table.
[THE MOTHER]: So that they have no relationship or time with me?
HIS HONOUR: Correct.
(Transcript 28 June 2023, p.16 lines 33–41)
In these passages, his Honour is doing no more than identifying the orders sought and making it clear to the mother what the possible outcomes could include.
In the course of counsel for the ICL addressing the court on the mother’s adjournment application, his Honour said:
HIS HONOUR: If the option of no link or the cutting of the tie, no communication, no time, is on the table – and it may be; you’ve caveated that with how the evidence unfolds – then what is the safest and most – for the children and the other party, most expeditious way of dealing with this?
(Transcript 28 June 2023, p.19 lines 15–18)
The primary judge here is seeking submissions as to the best way forward having regard to both the serious nature of some of the orders in contemplation and the effect of continuing proceedings on the children.
Counsel’s reply was that the serious nature of the orders now identified supported the mother’s application on one hand but if the adjournment application was successful, it may require the children to be interviewed yet again, which was felt to not be in their best interests, on the other hand.
A short time later the adjournment was refused. Contrary to the mother’s submission, this refusal, of itself, does not give rise to an apprehension of bias. It is the quintessential task of a judge to choose between competing contentions and simply making a decision cannot, of itself, indicate prejudgment.
I am quite unable to see where in the above passages his Honour has expressed a view as to the likely outcome of the proceedings as opposed to seeking clarification of the orders sought and appropriately making the mother aware of them. I do not accept that what the mother described as repeated reference to the issue constituted a threat. In fact, in a passage the mother also complains about, the primary judge made precisely those points to her (Transcript 21 August 2023, p.3–5).
The mother complained that the primary judge should not have permitted the ICL’s questioning of her (she gave the example of Transcript 29 June 2023, p.144–147). I cannot see anything improper in the questions even though the mother does not accept the premise or the apparent logic of them.
I am quite unable to see any basis for the primary judge to have disqualified himself. This ground does not succeed.
Did the primary judge deny the mother procedural fairness by refusing to disqualify himself or discharge the ICL? (Ground 2)
As the premise for this ground has not been established it must fail. Further, procedural fairness is not demonstrated merely by a lack of success on an application.
“The [mother] will be prejudiced if forced to continue to be tried before a judge they have lost faith in due to a reasonably apprehended lack of impartiality” (Ground 3)
Again, the premise for this ground has not been established. In any event, the subjective view of a litigant is not relevant – litigants do not get to choose their judge. Rather, the test for apprehended bias is objective and based on the perception of a reasonable bystander.
“The interests of justice require clarification of how recusal/bias applications should be handled at interlocutory stage to prevent unfair trials” (Ground 4)
The law, as stated by the High Court in a number of cases, is clear.
In any event, this is not a competent ground of appeal as it does not identify any error on the part of the primary judge.
The ICL
The complaint about the ICL is that she proposed orders which the mother thinks are inappropriate and unfair and cross-examined the mother in a manner which she did not like. That is far from a sufficient basis to justify her discharge (Paco & Racina [2014] FamCAFC 195 at [52]–[53]). The primary judge properly dismissed the application for the ICL’s removal.
DISPOSITION
There is no merit in the appeal and it follows that there is no basis for a grant of leave to appeal.
COSTS
The ICL did not seek an order for costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 7 May 2024
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