Pierson & Romilly (No 2)
[2025] FedCFamC1F 239
•27 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pierson & Romilly (No 2) [2025] FedCFamC1F 239
File number(s): SYC 9722 of 2024 Judgment of: BOYLE J Date of judgment: 27 March 2025 Catchwords: FAMILY LAW – Recusal application. Legislation: Family Law Act 1975 Cases cited: Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 Division: Division 1 First Instance Number of paragraphs: 7 Date of hearing: 27 March 2025 Place: Sydney Counsel for the Applicant: Self Represented Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Dezarnaulds Basten ORDERS
SYC 9722 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PIERSON
Applicant
AND: MR ROMILLY
Respondent
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
27 MARCH 2025
THE COURT ORDERS THAT:
1.The listing for interim hearing on 1 April 2025 at 10am is vacated.
2.Justice Boyle is recused from further dealing with this matter.
3.The matter be allocated to the chambers of His Honour Justice Campton for further directions to be made for the hearing of the s 102QB application.
4.Order 3 of the Orders dated 12 February 2025 is vacated.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BOYLE J:
The wife has filed an application in a case on 19 March 2025, which seeks orders, amongst other orders, for another judge to hear a 102QB application made by the husband. The wife indicates in her affidavit that she has made a complaint to the Judicial Commission about me and the conduct of the matter.
Judgment was delivered ex tempore 12 February 2025. And as I understand it, orders were published 7 March 2025, and the settled reasons available from 12 March 2025. And as I have already indicated, I accept that that is a significant delay which should not have occurred. The wife draws various matters from that irregularity that cause her to be concerned. She points to various issues that she sees in the reasons which seem to me to be matters that will largely be covered by the appeal.
Ebner v The Official Trustee in Bankruptcy[1] provides the test with respect to recusal, and that a judge should disqualify themselves 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. The principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement that reflects the fundamental importance of the principle that tribunals need to be independent and impartial.
[1] [2000] HCA 63.
It is an approach that requires identifying what is said to have been done that led to the circumstances of apprehension of bias, then a consideration of any logical connection between that and any possible future departure by the judge deciding a case on its merits, to assessing the reasonableness of the complaint of apprehension of bias. The concern that I have in this matter is that the complaint made by the wife about the publishing of reasons and orders is not unreasonable, because it should not have been delayed. As I have indicated, I have apologised to the wife for that delay.
My concern is that dealing with an application that the wife be declared vexatious is something that is best done by a judge in whom the wife has confidence. She does not have confidence in me. Whilst I accept that is somewhat a departure from the rule in Ebner, I am concerned about perceptions. The wife has had a long history of litigation in this court through hearing, appeal, and then special leave to the High Court. From her perspective, these are very serious matters. Although the orders were not complex when pronounced, in the sense that the order made was simply that it be dismissed, the reasons were critical to the wife being able to properly file an appeal.
The concern that I have is that there is a factual basis, if I can put it that way, for complaint; there has been a complaint made to the Judicial Commission. In those circumstances, anyone considering the matter may be concerned that in my future dealings with the matter, I may not bring an impartial mind.
I have also considered the aspect of what prejudice might arise from any delay of that hearing, and it seems to me that, given an appeal has been filed by the wife, the application made by the husband is not going to be prejudiced by any delay by me vacating the 1 April hearing date. I propose vacating the date, and then allocating the matter to the chambers of Campton J so that, as case management judge, he can allocate that application for hearing.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 9 April 2025
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