Riddler & Riddler
[2024] FedCFamC1A 173
•4 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Riddler & Riddler [2024] FedCFamC1A 173
Appeal from: Riddler & Riddler (No 2) [2024] FedCFamC2F 751 Appeal number: NAA 138 of 2024 File number: PAC 3657 of 2022 Judgment of: SCHONELL J Date of judgment: 4 October 2024 Catchwords: FAMILY LAW – APPEAL – Actual bias – Apprehended bias – Where the appellant contended that the primary judge’s determination was tainted by actual or in the alternative apprehended bias – Where the appellant contended that the way in which the primary judge conducted the proceedings denied the appellant a fair hearing – Where the appellant contended that the primary judge prejudged the contributions and the s 75(2) adjustment – Where the primary judge did not make findings of fact on contested issues instead dismissing the appellant’s relief as a consequence of the appellant’s repeated failure to comply with directions – Appeal dismissed – Costs ordered in favour of respondent in a fixed sum. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.23, 10.27 Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Finch & Finch (2020) FLC 93-949; [2020] FamCAFC 60
Fowles & Fowles (No 2) [2024] FedCFamC1A 115
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369; [2023] HCA 15
R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556; [1938] HCA 10
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 48 Date of hearing: 30 September 2024 Place: Sydney Counsel for the Appellant: Mr Shaw Solicitor for the Appellant: Jessie Icao Solicitors Counsel for the Respondent: Mr Bunning Solicitor for the Respondent: Noosa & Hinterland Family Lawyers ORDERS
NAA 138 of 2024
PAC 3657 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS RIDDLER
Appellant
AND: MR RIDDLER
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
4 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed 21 August 2024 is dismissed.
2.The appellant is to pay the respondent’s costs in the sum of $19,879.75 within three months of the date of this Order.
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 Riddler & Riddler has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Amended Notice of Appeal filed 21 August 2024, the appellant appeals all orders made on 13 May 2024 by a Judge of the Federal Circuit and Family Court of Australia (Division 2).
The orders made that day were as follows:
1.The Applicant is not granted leave to rely on the Amended Initiating Application filed 20 September 2023.
2.The Applicant is not granted leave to rely on the Affidavit filed on 8 April 2024 and sealed and served on 9 April 2024.
(Riddler & Riddler [2024] FedCFamC2F 741)
1. The recusal application is dismissed.
2. The Application for Final Orders filed 5 July 2022 is dismissed.
3. All extent applications are dismissed, including the Amended Initiating Application filed 20 September 2023.
(Riddler & Riddler (No 2) [2024] FedCFamC2F 751)
1.The Applicant to pay within 6 months of the date of these orders the costs of the First and Second Respondents in the amount of $60,000.
(Riddler & Riddler (No 3) [2024] FedCFamC2F 752)
The Amended Notice of Appeal contains three grounds. The Summary of Argument filed 21 August 2024, however, addresses only one ground. Not unsurprisingly, the respondent’s Summary of Argument filed 18 September 2024 responded to only that ground.
The appellant’s Summary of Argument was prepared by the same counsel who prepared the Notice of Appeal. Accordingly, I proceeded on the basis that it was not overlooked. Consistent with r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), a Summary of Argument must “set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on…”. Pursuant to r 13.23(4), issues not identified in the Summary of Argument may not be advanced at the hearing, except with leave.
Leave was not sought. The appellant’s counsel conceded that only one ground was pressed.
For reasons that will become apparent, the appeal will be dismissed. To provide context to the determination, a consideration of the background is instructive.
BACKGROUND
Proceedings were first commenced by the appellant on 5 July 2022 seeking a payment from the respondent of $800,000 following the breakdown of the parties’ marriage.
On 13 February 2023, the parties were directed to file and serve no less than seven days prior to the next listing an Amended Initiating Application or Response setting out the precise orders sought. The appellant did not comply with that direction.
On 18 May 2023, the matter came before a judge of Division 2 who ordered both parties to file and serve updated Financial Statements and a single consolidated trial affidavit by 31 July 2023 with the matter listed for final hearing for two days on 31 August 2023.
The appellant complied with the direction as to affidavits but did not file an updated Financial Statement. The appellant also filed an application seeking joinder of a second respondent, orders pursuant to s 106B and vacation of the final hearing dates.
On the return date of the joinder application, a judge of Division 2 vacated the hearing dates, made the order as to joinder, directed the appellant to again file and serve an Amended Initiating Application and an affidavit in support.
The appellant served an Amended Initiating Application outside the time directed. The appellant did not comply with the direction for the filing of affidavits.
Further orders were made on 4 December 2023 requiring the appellant to file and serve an affidavit in response to the affidavit of the second respondent. The appellant did not comply with that order.
On 8 April 2024, some four weeks or so before the hearing, the appellant filed the affidavit she had been directed to file almost 12 months earlier.
At the hearing, the appellant by oral application sought leave to rely upon the Amended Initiating Application and affidavit filed outside the time provided for in the directions. The primary judge dismissed the appellant’s oral application for leave.
The primary judge then enquired of counsel as to why the appellant’s application should not be dismissed pursuant to r 10.27 of the Rules for failure to comply with directions, and if not, what application the appellant was moving on and what affidavit was relied upon. Following a short adjournment, the appellant indicated that she sought to move on her Initiating Application filed 5 July 2022, a Financial Statement of the same date and affidavits filed 31 July 2023.
The primary judge then enquired of counsel for the appellant as to the pool of assets. Counsel conceded the net pool of assets was approximately $350,000. The following exchange then took place:
HER HONOUR: What you have is an application that the respondent husband pay your client $800,000 - - -
MR [E]: Yes, your Honour.
HER HONOUR: - - - out of a pool that’s $350,000.
MR [E]: Yes, your Honour.
HER HONOUR: So how can that succeed on any basis?
MR [E]: No, it can’t. I agree with that, your Honour.
(Transcript dated 13 May 2024, p. 16 lines 30–45)
There was then a discussion about some other assets and the primary judge asked counsel for the appellant whether or not his client had ever been a party to any other family law proceedings not involving the respondent. Counsel for the appellant responded that there were proceedings relating to the applicant’s children but no proceedings in relation to property.
Counsel for the respondent opposed the applicant relying upon the Initiating Application and submitted that the application should be summarily dismissed. Counsel for the appellant opposed summary dismissal and sought leave to call evidence from his solicitor as to the difficulties in complying with orders. The primary judge refused to grant that leave contending that it should have been done “well and truly before today” (Transcript dated 13 May 2024, p. 22, line 45).
The respondent’s counsel then pressed that the appellant’s application be dismissed. The transcript records:
MR BUNNING: I seek that the application be dismissed.
HER HONOUR: And there is a recent Full Court authority on that as well, and I will just go off the bench while I find that case. But I am aware that it was a matter that Riethmuller J did that went on appeal where he dismissed an application on the basis that it would not be – that it is just an equitable that no orders be made. So I just want to have a look at that binder. But before I do so - - -
MR BUNNING: Your Honour, I think that case is referred to in our case outline document.
HER HONOUR: There is an affidavit filed by the applicant in proceedings PAC1354/2013, affidavit that was filed on 1 December 2015. At paragraph 18 of that affidavit it reads as follows:
The property in which I reside at [Property C] has five bedrooms. Each of the children has their own room. I occupy a fourth room and our landlord, [Mr Riddler] occupies the fifth room. I have a close relationship or friendship with [Mr Riddler], with whom I am very grateful as I only have to pay $200 a week for the use of those four rooms. I have lived at [Property C] continuously since … 2012 when I separated from [Mr D].
You might need to get some instructions about that, Mr [E].
MR [E]: Yes, your Honour. If I could have the document?
HER HONOUR: Certainly. Just one that I’ve quickly found. I will go off the bench briefly, thank you.
(Transcript dated 13 May 2024, p. 24 lines 10–40)
The Court then adjourned briefly.
Upon return, counsel for the appellant made an application that the primary judge recuse herself. The submissions in support of the application were as follows:
MR [E]: - - - for apprehended bias. I do that, your Honour because, of your Honour’s own volition, your Honour has pursued a previous Family Court file for the purpose of looking at an affidavit by the applicant. And your Honour read out in open court a statement by the applicant which is inconsistent with the applicant’s case in this case. And on that basis, in my respectful opinion, your Honour has entered into the arena. And it is essential that your Honour disqualify yourself from dealing further with this matter.
HER HONOUR: Anything further, Mr [E]? Anything further on that application?
MR [E]: I’m sorry, your Honour?
HER HONOUR: Anything further on that application?
MR [E]: No, your Honour, no. Thank you.
(Transcript dated 13 May 2024, p. 25 lines 10–25)
The respondent thereafter made some short submissions and counsel for the appellant indicated that he did not intend to make any submissions in reply. The primary judge thereafter delivered judgment dismissing the application for recusal and then dismissed the appellant’s application for final relief and made orders as to costs.
THE APPEAL
As identified earlier, the appellant moved only one ground in the Amended Notice of Appeal which was to the following effect:
The primary judge conducted the proceedings in such a manner as to raise an apprehension on the part of the appellant that she would not be afforded the facility of an impartial and independent adjudicator of her case and which led to a decision and orders that were adverse to her and were tainted with bias or at the least a justified apprehension of bias. Accordingly those orders should be set aside in toto.
(Original emphasis)
In oral submissions, counsel for the appellant contended that the primary judge’s determination was tainted not just by apprehended bias, but actual bias, and that the way in which the primary judge conducted the proceedings denied the appellant a fair hearing.
The Summary of Argument contended “that the fictitious fair-minded observer” would apprehend that the primary judge would not bring an impartial mind to the determination as a consequence of the following matters:
(a)The primary judge having accessed an earlier court file between the appellant and a former partner (Paragraph 4.1).
(b)The primary judge creating “in the mind of the fictional lay observer a notion that it was improper for the [appellant] to seek a financial adjustment that exceeded what was reasonable” and that the appellant would not be permitted to fall back on claim that was more reasonable and would not be permitted to run her case (Paragraph 4.2).
(c)The primary judge having clearly prejudged the contributions and s 75(2) matters (Paragraph 4.3).
(d)The primary judge’s refusal to grant a short adjournment to enable the giving of evidence in support of the application for leave to amend the relief sought (Paragraph 4.4)
(e)The primary judge having read out a portion of an affidavit filed by the appellant in proceedings with a former partner meant that if the matter continued and the appellant were called to give evidence she may not have been allowed “a proper opportunity to present her case and be given a fair hearing” (Paragraph 4.5)
APPLICABLE LAW
The apprehended bias test requires the establishment of two limbs or what has been referred to as “the double might test” (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”)).
In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369, Keifel CJ and Gageler J observed that application of the Ebner test entails the following:
38.(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
In the context of actual bias, the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 observed:
32.As the plurality in Johnson v Johnson explained, "[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”.
33.Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias…
Where it is contended that conduct occurred during the course of the hearing such as to constitute a miscarriage of justice, a close analysis of what is said, when it is said, its context and frequency is necessary (sometimes identified as ‘the dust of conflict’ ground). In that respect, the Full Court recently observed in Fowles & Fowles (No 2) [2024] FedCFamC1A 115 as follows:
72.It is clear that some interventions may attract attention for both apprehended bias and the dust of conflict ground. Indeed, there is some overlap between the two grounds as “the ultimate question is always whether the intervention was unjustifiable and resulted in a miscarriage of justice” (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 (“Royal Guardian”) at [169]).
…
112.The relationship between the dust of conflict ground and apprehended bias was discussed in Royal Guardian by Basten JA who said:
35.In R v T, WA, Kourakis CJ acknowledged “the subtlety of the distinction between the bias ground and the dust of conflict ground as I have articulated it.” It will be recalled, that the Chief Justice identified the “dust of conflict” ground as conduct demonstrating a compromised capacity to adjudicate on the issues raised at trial. Although it may be possible that both grounds are satisfied in a particular case, it is also possible that a particular case is better judged by reference to one ground than the other. In any event, a ground more broadly identified as the unfair trial ground is also more clearly distinguishable from an apprehension of bias than the more limited concern about a compromised capacity to adjudicate.
The Full Court in Finch & Finch (2020) FLC 93-949, referencing a long line of earlier authority, recognised that the way in which the trial is conducted can intersect with an assertion of apprehended bias but remain of itself a discrete basis for appellate intervention. Their Honours further observed that:
16. …
(b)A failure to assert a want of procedural fairness at the trial does not preclude it being first raised on appeal (Royal Guardian at [30]–[33] and [255]);
DISCUSSION
The various assertions by the appellant need to be placed in their factual and chronological context as the matter proceeded before the primary judge. It is only by doing so that a proper appreciation of what occurred and the reasons for it can be assessed within the context of the appellant’s contentions as to bias, prejudgement and miscarriage of justice.
The first factual contention asserted by the appellant was that the primary judge in reviewing the appellant’s affidavit filed 3 July 2022 observed that it:
… doesn’t say very much at all and I don’t know how you could possibly run your case based on that affidavit. And if you do there might be an application for summary dismissal.
(Transcript dated 13 May 2024, p 12, line 10-15).
The appellant submitted, hyperbolically, that the primary judge’s observation constituted intimidation, was an indicator of bias and prejudgement. The observations of the primary judge do not demonstrate or point to apprehended, let alone actual bias, nor are they intimidatory or amount to prejudgement. If they are anything, they are at best a banal observation of the quality of the appellant’s evidence. A reading of the appellant’s affidavit reinforces the accuracy of the primary judge’s observation. Moreover, the mere expression of a tentative view or views is not to be taken as demonstrative of prejudgement.
Next in time was the appellant’s contention that the primary judge prejudged the contributions and the s 75(2) adjustment, relying upon that part of the transcript where the primary judge observed that the appellant could not succeed on an application seeking $800,000 as against a pool of assets of approximately $350,000. Apart from a statement of the obvious, it does not demonstrate bias (apprehended or actual) nor prejudgement such as to give rise to a miscarriage of justice, not the least because the appellant’s counsel agreed that the appellant could not succeed on an application seeking such an amount.
It was not explained in submissions how it could amount to a prejudgement of the appellant’s contributions or s 75(2) adjustment where the observation was directed to the quantum sought as against the identifiable pool of assets. The appellant conceded that at no time did the primary judge undertake any contribution or s 75(2) assessment. In those circumstances prejudgement cannot arise. A contention that the observation of the primary judge (the subject of agreement by the appellant’s then counsel) foreclosed the appellant seeking a different amount is erroneous in circumstances where the appellant’s application was ultimately dismissed not on the merits but rather for failure to comply with multiple directions. No element of prejudgement arises.
The appellant’s Summary of Argument proceeded then to contend that the “ordinary lay observer” would reflect about the fairness of the primary judge’s approach in rejecting the appellant’s request for a short adjournment to provide affidavit evidence in support of the wife’s application for leave to amend the relief sought. An examination of the transcript reveals that in fact what the appellant’s counsel sought to do was adduce evidence from the appellant’s solicitor that was said to go to various health matters by way of explanation for the appellant’s failure to comply with directions.
The primary judge refused the appellant’s application for leave observing that it should have been done “well and truly before today” (Transcript dated 13 May 2024, p. 22, line 45). The appellant’s submissions do not identify how the primary judge’s application of the Rules and practice directions demonstrated either bias or prejudgement such that the appellant received an unfair trial. Such refusal, the appellant submitted, demonstrated the primary judge was “bent on summarily dismissing the wife’s application” (appellant’s Summary of Argument filed 21 August 2024, paragraph 6.6). In circumstances where prejudgement is not established by the anterior proposition, anything founded upon it cannot succeed.
The appellant’s Summary of Argument then submits that the primary judge:
6.7… chooses to summarily dismiss the [appellant’s] proceedings after introducing into the evidence of her own motion evidence given by the [appellant] in proceedings number PAC1354/2013 in an affidavit filed 1 December 2015 by reading out [18] of that affidavit. This constitutes an attack by her Honour on the credit worthiness of the [appellant] in order, as it were to justify her Honour’s prejudgment of the [appellant’s] credit worthiness.
6.8This precipitates an application by counsel for the [appellant] for the trial judge to recuse herself…
The appellant has sought to conflate two propositions: the application to dismiss the appellant’s application and the referral by the primary judge to the earlier affidavit. The chronology referred to earlier clearly identifies that the primary judge received submissions from both counsel on the dismissal of the appellant’s application before the issue of the affidavit is read by the primary judge. The affidavit forms no part of the application for dismissal of the appellant’s application nor is it referred to or relied upon by any party or the primary judge. It is the reading of the affidavit that then promotes the application for recusal. The appellant has conflated the two propositions which on a fair reading of the transcript are entirely separate and not connected.
In relation to any challenge to the refusal to recuse, it is important to recognise that the application as framed by counsel was limited solely to the primary judge’s reference to the affidavit and not to anything said by the primary judge prior to that point in time. The appellant’s then counsel did not submit that the primary judge’s words or conduct evidenced prejudgement. These are very much matters of afterthought inviting consideration of the issue of waiver (Vakauta v Kelly (1989) 167 CLR 568).
The ground as drafted did not identify error in the primary judge’s determination of the application for recusal. That said it is apposite to record that the appellant’s then counsel did not identify the logical connection between the relevant matters identified and the ‘feared deviation from the course of deciding the case on its merits’. Nor did Counsel identify how the fair-minded lay observer with knowledge that the primary judge was not making either a finding upon disputed facts or a reflection upon the credit of a party would conclude that the judge would act partially.
The considerations that inform a conclusion as to actual bias as opposed to apprehended bias are quite different. The appellant in her Summary of Argument and oral submissions conflated impermissibly the two propositions and did not seek to identify the element of prejudgement such as to ground an application for actual bias.
At no point in the hearing before the primary judge was her Honour making a finding of fact, making a finding about credit or making a choice between different versions of fact. All that was determined was a dismissal of the appellant’s relief as a consequence of her repeated failure to comply with directions, of which there was no contest. No element of prejudgement was involved and consequentially no bias, actual or apprehended. Nor has the appellant demonstrated that the conduct of the hearing when viewed in its entirety and taking into all of the circumstances referred to above could give rise to a denial of procedural fairness or was conducted in a way such that there was a miscarriage of justice.
This conclusion should not however be taken as constituting an endorsement of the primary judges’ approach in accessing a previous court file. A distinguishing feature of the adversarial, as opposed to the inquisitorial system, is that the Court does not undertake its own enquiries or embark upon its own search for the truth (see R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556). Put simply, what occurred should not have happened.
DISPOSITION
The Amended Notice of Appeal will, for the above reasons, be dismissed.
COSTS
Counsel for the appellant submitted that in the event the appeal was dismissed, he could not resist the making of a cost order and also agreed that the costs estimate of the respondent was reasonable in all the circumstances. I am satisfied that a costs order should be made and assess the cost payable in the amount sought by the respondent.
I propose to make an order that costs in the sum of $19,879.75 be paid within three months.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 4 October 2024
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