REDDING and HOFMANN

[2015] FCWA 47

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: REDDING and HOFMANN [2015] FCWA 47

CORAM: CRISFORD J

HEARD: 16 JUNE 2015

DELIVERED : 16 JUNE 2015

FILE NO/S: PTW 4930 of 2010

BETWEEN: MS REDDING

Applicant

AND

MR HOFMANN
Respondent

Catchwords:

COURTS AND JUDGES - Disqualification - where the husband seeks the judge be disqualified from hearing an enforcement application - where the wife opposes the application - where the judge made the decision at first instance subject to the enforcement application - where the husband submits that the judge has lost impartiality - where the Court is not persuaded that the matters raised by the husband form a ground for disqualification - where the test for apprehended bias is not satisfied - application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

Solicitors:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

Case(s) referred to in judgment(s):

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Fitzgerald v DPP (1991) 24 NSWLR 45

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 527

Re JRL; ex parte CJL (1986) 161 CLR 342

Re Morling, Ex parte Australasian Meat Industry Employees Union (1985) 60 ALJR 402

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

1On 13 December 2012, after ten days of trial, I delivered my reasons for decision which disposed of both parenting and financial proceedings between [Ms Redding] (“the applicant”) and [Mr Hofmann] (“the respondent”).

2On 6 June 2014 the applicant sought enforcement of the orders I had made. She also filed further applications on 29 August and 29 December 2014. The matter had numerous interim hearings before a Magistrate.

3On 29 December 2014 the respondent also filed an application in a case, seeking in the main, that the presiding Magistrate be disqualified from continuing to hear the matter.

4On 19 January 2015 the matter came before me in a Duty Judge List. I made orders for the filing of affidavit material and included the matter in a Callover for the allocation of a trial date. At the Callover, on 24 April 2015, the enforcement proceedings were listed for trial before me commencing not before 22 June 2015.

5On 8 June 2015 the matter came before me for directions. I made orders for the respondent to file any application he wished to make to have this Court disqualified from presiding over the trial. The applicant did not seek any disqualification. The respondent filed his application on 10 June 2015.

6In summary the respondent seeks I be disqualified from hearing the proceedings on the following grounds:

•Throughout the ten day trial in 2012 the applicant was represented and the respondent was self-represented. The respondent says this “resulted in the proceedings and the final result being skewed, in my opinion, heavily against [him]”;

•That at hearings before myself in 2015 I “was clearly frustrated” by my involvement in drawn out proceedings between the parties and the respondent is concerned that I will apply a “heavy hand” in determining the enforcement application. The respondent says this leaves the applicant with “little to no exposure while leaving [him] highly exposed”;

•I failed to voluntarily “step aside” from hearing the matter and seem to have refused to do so;

•It is inappropriate for me to hear the application for me to be disqualified;

•The applicant did not support the need for me to disqualify myself and therefore expects to be more favourably dealt with; and

•The extensive dealings I have had with the matter has resulted in my loss of impartiality when dealing with the parties.

7Before I consider the grounds, or what I understand the grounds to be, I will briefly canvass the law.

The Law

8Actual or apprehended bias of a trial judge connotes the absence of impartiality. It is the crux of the respondent’s application that I have lost my impartiality.

9Actual bias can arise through interest or by reason of relationship, friendship or enmity (R v Watson; Ex parte Armstrong (1976) 136 CLR 248). In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the High Court outlined the test for disqualification on the grounds of apprehended bias as:

… 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. …

10The High Court then identified that the application of the principle requires two steps. The first is an identification of what might lead a judge to decide a case other than on its legal and factual merits. The second, requires an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

11In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Gaudron and McHugh JJ said at p 100 (references omitted):

A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry…This Court rejected the notion that a fair and unprejudiced mind was “necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it”. …

12The High Court also said in Re JRL; ex parte CJL (1986) 161 CLR 342 per Mason J:

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring there is a reasonable apprehension that he will approach the issues in this way.

What is the basis upon which I might be led to decide the case other than on its legal or factual merits:

13I will turn to the facts. In my decision at first instance I had cause to comment on the parties:

[58]The Court finds [Ms Redding]’s reactions to the attempts by [Mr Hofmann] to facilitate [Ashley] having a relationship with her mother whilst in his care to be overly sensitive. Her reaction was out of proportion to the attempts by [Mr Hofmann]. [Ashley] was aware of the return of the show bag. However, the Court also accepts that [Mr Hofmann]’s longstanding propensity to badger and bully [Ms Redding] has left its mark on her ability to trust his motives, even in what might simply be anodyne gestures.

…

[135][Mr Hofmann] represented himself in these proceedings. He had taken some legal advice from friends who are lawyers and also his stepfather, [Mr Tree], who is a lawyer. The reason for representing himself was not entirely clear. He said he could not afford the cost of legal representation. However, he also made comments about the inability of lawyers to understand his complex financial structures and that he was better equipped to deal with matters himself. There is no doubt that [Mr Hofmann] is an intelligent and able person. I formed the view he used his status as a litigant in person as a shield against allegations of failure to disclose documents and general non-compliance with court procedures and the Family Law Rules. He was far from diligent with his obligation to disclose relevant documents in a timely fashion. I am not satisfied that the fact of self-representation hampered the presentation of his case. However, it did afford the Court, as a trial court, the opportunity to see and hear things from him which might otherwise have been buffered by the expertise of legal representation.

…

[195]Due to the failure by [Mr Hofmann] to provide the Court with appropriate financial material upon which to examine and analyse the financial position of the entities, the Court is not in a position to determine any value. I have no doubt that [Mr Hofmann] uses the various entities for the distribution of income - albeit in various guises. Most of the income received by the entities is generated by him. To simply look at the cash available at any point in time or to select one of the entities to analyse does not give an accurate value of all the entities [Mr Hofmann] is intimately involved with. The cause for any inability to value these entities lies fairly and squarely with [Mr Hofmann]. The matter will be addressed later in my judgment when considering matters under s 75(2)(o) of the Act.

…

[279]His behaviour ranged from breaching court orders to manipulating and misusing caveats to achieve his aims. One reason he gave for not removing or facilitating the removal of caveats was he could not afford it.

14On 19 January 2015, in the context of a busy Duty Judge List and confronted with a number of irrelevant issues, I remarked:

HH:[directed to [[Ms Redding]] I am going to lose my patience with both of you if I remember this matter.

…

HH:How long is it going to take me to hear this matter taking into account your personalities?

…

[HOFMANN], MR: There’s more fundamental questions of whose hearing the matter.

HH:Well I am going to be hearing it – Well let’s knock that on the head I will deal with the matter so you now know you’re stuck with me again.

[HOFFMANN], MR: Well your Honour with respect, and I sincerely mean that, the issues that I have with Magistrate Stewart hearing the matter was the fact that she had lost her impartiality and the fact that the way things have panned out in the last 25 minutes makes it very very clear to me that you have a very clear memory of 10 days of trial that we put you through.

HH:No I don’t have a memory of the content I have a memory of you and [Ms Redding], very clear memory.

[HOFMANN], MR: I understand your Honour and I would be seeking for the Court to have someone independent which is exactly what I put in my affidavit.

HH: That’s fine but that’s not going to stop me from progressing it today and you can make your Form 2 application to disqualify me as well but let’s find out what I need to do to get this moving.

15After his exchange I made procedural orders for the filing of documents and placed it in a Callover for the allocation of a trial date.

16On 24 April 2015, at a Callover, a trial date was allocated by the Chief Judge (acting as List Judge) noting I was to preside over the hearing. The respondent did not raise the issue of disqualification.

17On becoming aware of my role as the trial judge I listed the matter for directions to ensure any issue of disqualification was dealt with before the trial thus, avoiding a last minute adjournment. On 8 June 2015, I ordered the respondent to file an application if he continued to object to my hearing the matter. This is my determination of his application.

Discussion

18I now turn to consider whether there is any adverse connection between my conduct of the first instance hearing; my findings; and the present application for enforcement of some parts of the first instance decision.

19It is noted that there was no appeal against the first instance decision.

20It is common ground between the parties and myself that the progress of the trial at first instance was difficult. Each of the parties found it difficult. There was an enormous amount of, often irrelevant, evidence to deal with. It was an emotional and highly charged trial. Neither party was at their best.

21As was said in Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272:

It is important that a judge discharges the duty to sit and does not, by acceding too readily to a suggested appearance of bias, encourage parties to believe that by applying for the disqualification of a judge they can have their case tried by a judge thought to be more likely to decide in their favour.

22It is also important that a judge be slow to find grounds to disqualify themself. There are principles at law which guide the exercise of recusal, not merely the subjective views of the judge or the parties.

23The fact that a judge has decided an issue in a particular way, and is likely to decide it in the same way when it arises again, does not amount to a pre-judgment that may require the judge to recuse in order to avoid an apprehension of bias. A reasonable apprehension, which should lead to disqualification, must be that the judge will not decide the case impartially or without prejudice. Not simply that the judge will decide the case adversely to one party; see Fitzgerald v DPP (1991) 24 NSWLR 45. This is an important distinction, often lost.

24Although, not specifically raised by the respondent I have pointed out certain findings I made at first instance. They were views I expressed when arriving at a conclusion in relation to an application for property settlement. The matter now before me is for enforcement of the orders I made. It is the practice of the court that the first instance decision maker also be responsible for matters of enforcement if at all possible. It is common practice.

25The views I expressed about the respondent were reached in the context of parenting and financial matters. The proceedings now before me are of a different nature but with the same parties and much the same subject matter – the finances of the parties. In such circumstances the nature of case management does require conclusions to be reached at different stages and upon different material. That fact alone does not create partiality.

26In Re Morling, Ex parte Australasian Meat Industry Employees Union (1985) 60 ALJR 402, in the context of split proceedings relating to damages and injunctions, the High Court noted:

… Difficult, perhaps undesirable, as such a mode of proceeding might be, it does not carry with it the implication that the judge, in reaching a conclusion upon one issue in the case must subsequently approach another issue with a closed mind, unable to give proper weight to any further material which might be put before him.

…

The way in which the proceedings have been conducted carries with it the difficulty that the judge must reach conclusions at different stages upon evidence which may not be the same, but there is no reason to suppose that [the judge] will be unable to approach the resolution of that difficulty in a fair and impartial manner. …

27I am not persuaded that there is any real basis for the respondent, or a fair minded lay person, to be so concerned about my impartiality to the extent I should not preside over the enforcement hearing. The matters raised by the respondent do not form a ground for disqualification.

Balance of the application

28The respondent also seeks that the Court appoint a lawyer on his behalf. This is an enforcement proceeding and the Court has no facility to appoint such a lawyer. However, and in any event, I am satisfied that the respondent who has represented himself in this Court, and in the State Administrative Tribunal, over a number of years is capable of conducting his own matter in a competent fashion.

Orders

1.The Form 2 application filed by the Respondent, [MR HOFMANN], on 8 June 2015 be and is hereby dismissed.

2.The proceedings otherwise be adjourned to the trial listed on not before 22 June 2015 at 10:00am before the Honourable Justice Crisford.

I certify that the preceding [28] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate