POOLE & POOLE
[2012] FMCAfam 380
•3 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POOLE & POOLE | [2012] FMCAfam 380 |
| FAMILY LAW – Practice and procedure – application for disqualification – leave to re-open – both applications made whilst judgment in parenting relocation case reserved. |
| Family Law Act 1975 |
| Ebner v Official Trustee in Bankruptcy [2000] HCA 63 Nadkarni & Nadkarni [2011] FamCAFC 160 R v Fisher [2009] VSCA 100 Suell v Suell (Re-Opening) [2009] FamCA 55 U v U [2002] HCA 36 |
| Applicant: | MS POOLE |
| Respondent: | MR POOLE |
| File Number: | DUC 446 of 2010 |
| Judgment of: | Dunkley FM |
| Hearing date: | 30 March 2012 |
| Date of Last Submission: | 30 March 2012 |
| Delivered at: | Dubbo |
| Delivered on: | 3 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Applicant: | Campbell Paton & Taylor |
| Counsel for the Respondent: | Mr Schroder |
| Solicitors for the Respondent: | Baldock Stacy & Niven |
ORDERS
That the Response to an Application in a Case filed 22 February 2012 is dismissed.
That leave is granted to the Applicant wife to re-open her case in order to admit further evidence, subject to further directions.
IT IS NOTED that publication of this judgment under the pseudonym Poole & Poole is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
DUC 446 of 2010
| MS POOLE |
Applicant
And
| MR POOLE |
Respondent
REASONS FOR JUDGMENT
Application for Disqualification
Ms Poole and Mr Poole are in dispute about final parenting orders and final property orders.
The case was listed for final hearing for three (3) days on 28, 29 and 30 November 2011, during the circuit sittings in [Suburb omitted].
At the commencement of the proceedings it was the joint position of Counsel for the party’s that the case could not be completed within three days. It was the joint position of Counsel for the party’s that the case be severed such that the parenting component of the final hearing be heard on the allocated days of 28, 29 and 30 November 2011 and that the property component of the final hearing be adjourned for final hearing at a date to be fixed.
The proceedings were conducted as sought by Counsel and the parenting component of the case was completed within the three days including the making of submissions.
Judgment relating to the parenting case was reserved with judgment to be delivered on a date to be advised. At the time judgement was reserved it was indicated to the parties that it was hoped judgment could be delivered before the end of the January school holiday period 2011/2012 as the parties child [X], born [in] 2006, was to commence Kindergarten at the beginning of the school year in 2012.
The property component of the final hearing was listed for final hearing for two (2) days on 2 and 3 July 2012.
By email dated 21 December 2011 the solicitors for Ms Poole wrote to my Associate seeking to have the case relisted prior to judgment being delivered.
On 11 January 2012 the solicitors for Ms Poole filed an Application in a Case seeking leave to re-open. That Application in a Case was listed for hearing on 30 March 2012.
The solicitors for Mr Poole filed a Response to an Application in a Case in which they sought that I disqualify myself in relation to the further hearing of the matter or further dealing with the matter, or in the alternative, that the Applicant’s Application in a Case seeking an order to reopen the case be dismissed.
The application for disqualification, based on an apprehension of bias arising from the email to my Associate dated 21 December 2011, and the application to re-open were heard together.
It is a matter of controversy between the parties as to whether the email to my Associate dated 21 December 2011 gives rise to an apprehension of bias.
The High Court of Australia in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 sets out the now well accepted test to be applied in determining disqualification applications.
His Honour Chief Justice Gleeson and their Honours McHugh, Gummow and Hayne in paragraph 6 of the judgment wrote:
“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle”.
In Nadkarni & Nadkarni [2011] FamCAFC 160 the Full Court of the Family Court constituted by her Honour Chief Justice Bryant and their Honours Finn and Strickland in paragraphs 51 to 54 of their Judgment said:
“In her comprehensive written submissions in support of the re-determination by us of the disqualification application, Counsel for the wife relied on the formulation of the well settled test in this country for disqualification of a judge by reason of the appearance of bias provided by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson (supra) being:
...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 ...
It is also well settled that the hypothetical fair-minded lay observer would have knowledge of all relevant circumstances (see for example Deane J in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at [73] to [74] and Kirby J in Johnson (supra) at [53].)
It has further been explained by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner (supra), that the apprehended bias test requires a two step-process, being: first the identification of the matters which it is said might lead a judge to decide a case other than on its legal and factual merits; and secondly an articulation of the logical connection between the matters and the feared deviation from the course of deciding the case on its merits.
Counsel also relied on the identification by Deane J in Webb v The Queen (supra) of at least four distinct (but sometimes overlapping) categories covered by the doctrine of disqualification by reason of the appearance of bias. Those four categories are interest, conduct, association and extraneous information”.
The issue of waiver or necessity did not arise before me in this case.
Before applying the apprehension of bias principle it will be useful to consider the email said to give rise to the apprehension of bias, and the practice and procedure of the Federal Magistrates Court of Australia.
The email that is said to give rise to the apprehension of bias is annexed hereto as Annexure A.
In June 2011 a notice to litigants and legal practitioner regarding communication with Federal Magistrates Chambers was issued by the Federal Magistrates Court of Australia. That notice is annexed hereto as Annexure B.
During the course of submissions on the disqualification application it became apparent that the parties had engaged in correspondence with each other through their legal representatives about relisting the case prior to the email of 21 December 2011 being sent to my Associate.
That chain of correspondence can be found annexed to the Affidavit of Mr Poole sworn 21 February 2012 which was relied on for the purposes of the disqualification application.
It is clear from Annexure [omitted] of that Affidavit that the solicitors for Mr Poole had on 20 December 2011 been provided with a copy of the proposed draft letter to be sent to my Associate and specifically did not consent to that letter being forwarded to my Associate and required that the case be relisted by the filing of an Application in a Case. It is beyond dispute that the solicitors for Mrs Poole disregarded the letter from Mr Poole’s solicitors and sent an email to my Associate on 21 December 2011 and then subsequently filed an Application in a Case on 11 January 2012.
The solicitors for Mrs Poole have acted in accordance with the notice to practitioners. The notice to practitioners, is however, simply a notice and does not have binding authority in the way that Ebner v Official Trustee in Bankruptcy does. Consequently, the application for disqualification must be decided having regard to the test laid down in Ebner[1].
[1] Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at 8
In identifying what is said that might lead me to decide the case on other than its legal and factual merits Counsel for Mr Poole pointed to the second paragraph of the email of 21 December 2011:
“It has come to our client’s knowledge that certain fact which is relevant to our client’s relocation Application has arisen since the hearing concluded…”.
It is worth noting what their Honours Redlich and Dodds-Streeton sitting in the Court of Appeal in Victoria in the case of R v Fisher [2009] VSCA 100 at paragraph 37 said:
“The present case…as it involved email communication with, and from, an Associate acting on behalf of a judicial officer. But there is no inflexible rule that any communication between the judge and a party will necessarily disqualify the judge from making a decision.”
In discussing the categories identified in paragraph 54 of the decision in Nadkarni & Nadkarni, Counsel for Mr Poole advised that he was relying on “extraneous information”. He submitted that the words “it has come to our client’s knowledge that certain fact which is relevant to our client’s relocation application” was extraneous information. He conceded none of the other categories being “interest, conduct, or association” were relevant to the decision regarding disqualification that I have to make.
As it transpired the effect of the email and filing of the subsequent Application in a Case resulted in preparation of the judgment being halted. The first available date for hearing the Application in a Case on circuit was 30 March 2012.
The words in the second paragraph of the email of 21 December 2011 are entirely neutral. The “fact” was not expounded, nor was it attributed to a party. It could have equally been attributable to both party’s as to either party.
Consideration should also be given to the time of year of the communication. As at 21 December 2011, both partys solicitors were to shortly close their offices for the Christmas vacation. The Court was shortly to go into recess for the Christmas vacation between 23 December 2011 and 8 January 2012.
It would have been difficult for solicitors located in rural New South Wales to file an Application in a Case prior to the Christmas vacation. Email was the most expedient method of communication.
Indeed without email communication it may have been possible that judgment might have been ready to be delivered on the day that the solicitors’ offices reopened with the consequent “embarrassment” of the delivery of judgment being met on that day with an application to reopen.
A fair minded lay observer would not reasonably apprehend that there might not be brought an impartial unprejudiced mind to the resolution of the parenting proceeding by reason of the content of the email dated 21 December 2011, given the neutrality of its content.
The sending of the email and the filing of the Application in a Case caused the suspension of the writing of judgment but nothing more.
Consequently, the application for disqualification is dismissed.
Application to Re-Open
The decision in Suell & Suell (Re-Opening) [2009] FamCA 55 sets out a number of principles applicable to whether or not leave to re-open is to be granted.
The parenting proceedings between Mr and Mrs Poole have been conducted pursuant to Division 12A of the Family Law Act 1975. At paragraph 27 of Suell & Suell his Honour Justice Murphy set out the factors relevant to the exercise of discretion in determining whether to allow the re-opening of a parenting case as follows:
·“Is the further evidence relevant to issues directly affecting [the child’s] best interest and the ultimate decision about that?;
·Is the evidence likely to affect, in substantial way, the ultimate finding or findings that would otherwise have been available on the evidence at the hearing?;
·Could the further evidence have, with due diligence and preparation, been discovered so as to be led at the trial and, associated therewith has there been undue delay on the part of the applicant in bringing the application, particularly in light of s.69ZN(7);
·The nature and extent of any prejudice which is likely to be caused to the respondent in responding to any such evidence within a reasonable time;
·Is [the child] likely to suffer detriment if the evidence is admitted and the trial re-opened, and, if so, the nature and extent of any such detriment;
·Recognition of the principle that it is in [the child’s] best interests (and his parents) that parenting litigation be finalised as soon as possible;
·Recognition of the fact that proceedings for parenting orders are not in the nature of ordinary inter-party proceedings; they may involve a broader inquiry into the best interests of children that that which is circumscribed by the issues identified by the parties
·The fact that the discretion to admit further evidence “…needs to be exercised with much care in parenting cases” (See CDJ v VAJ @ [152].”
It is clear from the affidavits filed by Mr Poole sworn 21 February 2012 and Mrs Poole sworn 10 January 2012 that the evidence sought to be adduced is directly and extremely relevant to the final parenting issue that is awaiting determination.
That evidence is that Mrs Poole is now pregnant to her fiancé Mr W and expects to give birth in August 2012 and that Mr Poole’s mother, Ms P Poole, died [in] December 2012.
It was during the parenting hearing Mr Poole’s case that he had commitments in caring for his mother in [Suburb omitted] and that was one factor that made it difficult for him to move from [Suburb omitted].
His ability to relocate or not if Mrs Poole is permitted to relocate is made relevant by the decision in U v U [2002] HCA 36.
It was argued by Counsel for Mr Poole in opposing the application to re-open that the potential for Mrs Poole to have more children and the potential for Mr Poole’s mother to die was canvassed in submissions. Whilst that is true, it was canvassed in general terms as a likelihood of a change in circumstances within the next three to five years.
That both facts have now come to pass so soon means that such consideration is no longer theoretical but real and must be considered in more than a general sense.
Consequently, the evidence of the mother’s pregnancy with a likely birth of a half sibling for [X] is a relevant factor directly affecting [X] and the ultimate decision. This evidence is likely to affect in a substantial way the ultimate finding regarding relocation.
It was not a fact that was in existence at the time of the hearing.
The nature and prejudice to the respondent is a delay in judgment, with continued uncertainty as to outcome, and a need to give further evidence and the cost of doing so. It is in [X]’s best interest that the potential relationship with a half-sibling be considered and it would not be in [X]’s best interest to exclude such evidence.
However, it is simply not possible to consider that evidence in isolation. Further evidence will need to be given by Mrs Poole and Mr W. Mr W’s previous position that he would not move to [Suburb omitted] may have changed in light of Mrs Poole’s pregnancy.
Similarly, Mr Poole’s decision that he would not move if Ms Poole were permitted to relocate might also have changed given his mother’s death.
It is in [X]’s best interest that the hearing be re-opened so that evidence about these two factors can be further explored even though this results in continued uncertainty for [X] with respect to final parenting orders.
Given the nature of the evidence to be led such evidence was not available during the hearing. There has been no delay in seeking to adduce this evidence.
Whilst it prolongs the litigation it is in [X]’s best interest that the new evidence and its impact be traversed.
Balancing all the above leave to re-open will be granted.
It will however be necessary for further directions to be given regarding the filing of evidence.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Dunkley FM
Date: 3 May 2012
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