PAINTAL & PAINTAL

[2020] FamCA 697

FAMILY COURT OF AUSTRALIA

PAINTAL & PAINTAL [2020] FamCA 697

FAMILY LAW – PRACTICE AND PROCEDURE – application for recusal – apprehension of bias – where matter was dealt with by another judicial officer for a short period of time – where the Judge was previously employed by the Legal Aid Office – where the representative for the Mother is employed by an organisation akin to the Legal Aid office – where the Father filed a notice of appeal-application dismissed

Family Law Act 1975 (Cth)

Vakauta & Kelly (1989) 167 CLR 568
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Livesey v New South Wales Bar Association (1983) 151 CLR 288

APPLICANT: Mr Paintal

RESPONDENT: Ms Paintal

INDEPENDENT CHILDREN’S LAWYER: Mrs McGregor

FILE NUMBER: CAC 273 of 2014

DATE DELIVERED: 18 August 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 18 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT: Women’s Legal Centre

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid

IT IS NOTED THAT

1. The Chief Justice has previously given procedural directions in this matter which provided for filing arrangements for the parties which set dates for the filing of material which were contingent on the allocation of a trial date.  At present a trial date is unable to be allocated but it is anticipated that filing directions should be made for the proper preparation of the matter, such that if time becomes available a date may be allocated or a date may be otherwise allocated for the matter in the first half of 2021.

2. The Husband opposes the making of any procedural directions at this point on the basis that, despite the matter being listed for procedural directions and those orders being posted on the portal, he denies having had sufficient opportunity to prepare submissions to the Court as to the appropriate procedural directions to be made.  The Wife has filed today, 18 August 2020, a complex minute of procedural orders sought.  The complexity of the matters raised by that minute indicate that the Husband’s application for an adjournment of the procedural directions should be granted to enable him to receive legal advice.

3. It is noted that the parties or the proceedings are the subject of a s 102NA order made by the Chief Justice.

4. The Mother and Independent Children’s Lawyer seek that an order be made for the preparation of a Family Report, such order being opposed by the Father on the basis that he does not wish to further involve the parties’ daughter X in assessment.

5. It is noted that this is a case of high conflict between the parties and that the most recent Family Report has been prepared some years ago, demonstrating the necessity for the preparation of an updated Family Report so that the Court may have before it proper evidence in terms to determine what is in X’s best interests.

6. It is noted that from the time of directing the preparation of a Family Report there is a considerable lag before the preparation of the Family Report is able to take place, due to the queue in relation to the preparation of Family Reports currently before the Registry.

IT IS ORDERED THAT

1. I direct the preparation of an updated Family Report.

2. I give the Father leave to make an application for the discharge of the above orders when the matter is next before me for further procedural directions.

3. I adjourn the procedural directions in this matter to 4pm on 17 September 2020.

4. The parties are to be in a position to advise me as to the necessary steps to prepare this matter for trial on that occasion, including as to the appropriate persons to appoint as a Single Expert.

5. In the event that the parties have been unable to agree on the appointment of an appropriate Single Expert, then a party is entitled to bring an application before the Court, provided it is filed 7 days in advance of the directions date for the appointment of a particular person as the Single Expert, provided that such application is properly supported by affidavit evidence.

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 Paintal & Paintal 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 CANBERRA

FILE NUMBER: CAC 273 OF 2014

Mr Paintal

Applicant

And

Ms Paintal

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The proceedings were listed for trial directions to be given.  In the context of that listing Mr Paintal filed on 17 August 2020 an Application in a Case seeking that I recuse myself from the matter, along with a supporting affidavit setting out the factual matters that Mr Paintal relies upon in support of that application.

2. Mr Paintal has today been given the opportunity to verbally address me in relation to his application and has done so, reinforcing matters contained in that affidavit. 

3. He has also identified two other matters which perhaps were not apparent on the affidavit.  One is that for a period of time his proceedings were dealt with by judicial officers other than myself, occurring during a period of time in which he had lodged but had not resolved an appeal in relation to some determination that I had made. 

4. He has also identified that I have been associated with the Legal Aid Office, having been employed by the Legal Aid Office previously.  It may be observed that the Legal Aid Office has provided the Independent Children’s Lawyer in these proceedings. 

5. Mr Paintal, also additionally to the matters contained in his affidavit, identifies that Ms Callahan who is employed by the Women’s Legal Centre is employed by an organisation akin to the Legal Aid Office, hence the suite of matters that Mr Paintal relies upon are those that I have just identified accompanied by the matters that he has set out in his affidavit. 

6. Of the matters set out in Mr Paintal’s affidavit to support the recusal application, he identifies that he lodged an appeal which was determined by the Full Court, being dismissed by the Full Court on 22 May 2020.  Apparently that was a notice of appeal made against orders that I had previously made.  He says that, not withstanding that the appeal was dismissed, the fact of the appeal in the context of that dismissal means that there should be a perception of bias. 

7. Mr Paintal further details other matters in his affidavit relating to my background as a legal professional and his views of the legal profession and as indicated earlier in the judgment, identifies that I have previously been associated with the Legal Aid Office.  It may be observed that I have not been employed by the Legal Aid Office since 1999. 

8. In his affidavit Mr Paintal has also raised matters that he says that I have failed to address in the evidential material, noting that as yet the matters have only been dealt with on an interim basis, and has alleged that I have not acted in the best interests of the parties’ daughter, noting that interim orders have been made to promote her best interests, although they are interim orders which are against what was sought by Mr Paintal. 

9. Those matters appear to form the essential matters that Mr Paintal relies on in order to have me recuse myself, when accompanied by his observation that while the appeal was extant other judicial officers dealt with the matter.  As far as I am aware of, one judicial officer dealt with the matters, being the Chief Justice who heard the matter on a callover. 

10. The relevant test for recusal is set out in the High court case of Vakauta & Kelly. Although in dissent, Justice Dawson set out the appropriate test in a non-controversial manner.  He set it out in the following terms, drawing the reference from R v Watson; Ex parte Armstrong (1976) 136 CLR 248 and Livesey v New South Wales Bar Association (1983) 151 CLR 288 as follows, namely that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.

11. As noted previously in addressing Mr Paintal, elsewhere in that judgment as set out by Justice Toohey is the observation that the apprehension would be one entertained by a fair minded observer.  A fair minded observer is someone who is aware of the facts of the case and general nature of the proceedings in courts. 

12. Ms Callahan who appears for the Mother and Mrs McGregor as the ICL both say that that threshold has not been met.  I agree with their assessment of the matter. 

13. The matters raised by Mr Paintal do not point to such a conclusion being raised.  The mere fact of the lodging of an appeal is insufficient to raise an issue of apprehension of bias. Similarly, the fact that I was previously a legal professional before being appointed to the bench is also a matter that does not raise the spectre of an apprehension of bias.  Similarly, having orders made adverse to his position, without more, does not lead to such a conclusion.  Similarly, not having factual matters resolved to his satisfaction in interlocutory proceedings does not point to a reasonable apprehension of bias.  Similarly again the fact that I was previously employed by the Legal Aid Office up until 1999 and that the Independent Children’s Lawyer is employed by the Legal Aid Office and that Ms Callahan who appears for the Mother is employed by the Women’s Legal Centre do not point to such a reasonable apprehension of bias. 

14. Whether taken individually or taken collectively the matters are not sufficient to reach the threshold set out in Vakauta & Kelly and I dismiss the application. Accordingly it is ordered that the Application in a Case filed by Mr Paintal on 17 August 2020 for my recusal is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 August 2020.

Associate: 

Date:  18 August 2020