Riemann and Riemann and Ors (No 6)
[2017] FamCA 1115
•20 December 2017
FAMILY COURT OF AUSTRALIA
| RIEMANN & RIEMANN & ORS (NO. 6) | [2017] FamCA 1115 |
| FAMILY LAW – PRACTICE AND PROCEDURE – where the wife contended that there was a reasonable apprehension of bias – whether the judicial officer is biased or ostensibly biased – whether the test in Ebner can be applied - application granted – recusal of judicial officer. Family Law Act 1975 (Cth) ss British American Tobacco Australia Limited & Laurie and others (2011) 242 CLR 283 |
| APPLICANT: | Ms Riemann |
| RESPONDENT: | Mr Riemann |
| SECOND RESPONDENT: THIRD RESPONDENT: | Ms Lindrum Ms Gildas |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | SYC | 5764 | of | 2014 |
| DATE DELIVERED: | 20 December 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 20 December 2017 |
REPRESENTATION
| The Applicant appeared in person | |
COUNSEL FOR THE RESPONDENT: | Mr Richardson SC |
| SOLICITOR FOR THE RESPONDENT: | Broun Abrahams Burreket |
No appearance by the Second Respondent
No appearance by the Third Respondent
| Ms Nielson of Legal Aid New South Wales |
Orders
THE COURT ORDERS THAT:
I recuse myself from these proceedings.
The Court will list this matter for mention at a time and date as soon as is reasonably practicable before a Judge or Registrar
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 Riemann & Riemann & Ors (No.6) 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 SYDNEY |
FILE NUMBER: SYC 5764 of 2014
| Ms Riemann |
Applicant
And
| Mr Riemann |
Respondent
And
| Ms Lindrum |
Second Respondent
And
Ms Gildas
Third Respondent
And
Legal Aid New South Wales
Independent Children’s Lawyer
EX TEMPORE
REASONS FOR JUDGMENT
This matter has been listed today as a result of the wife filing an Application in a Case dated 15 December 2017 seeking to stay interlocutory orders that have been made in three separate proceedings, pending the wife filing notices of appeal against each of the relevant decisions. Those decisions were respectively dated 17 November 2017, 20 November 2017 and 4 December 2017. The wife also seeks an adjournment of the proceedings which have been listed for two weeks commencing 29 January 2018. The wife’s application is supported by an affidavit also filed on 15 December 2017.
The background of this matter has been set out in seven separate decisions that I have made during the course of those proceedings. The respective dates of those decisions are 8 April 2016, 12 December 2016, 1 May 2017, 4 October 2017, 17 November 2017, 20 November 2017 and 4 December 2017.
During the course of the wife addressing the matters relevant to her Application in a Case, the wife stated that she believed that I was biased against her or that, at least, there was a reasonable apprehension that I was biased.
The wife’s argument initially focused upon her criticism of my acceptance of contentions that have been advanced on the part of the husband and intervenors in the interim proceedings to which I have referred above. Most relevantly, the wife stated that I have declined to make orders that she has sought for the further production of documents on the part of the husband.
The wife stated that, as a consequence of those decisions, she is now in a position where she is unable to properly prepare for the hearing listed on 29 January 2018. The wife further contends that, as a result of my decision declining her application for a further partial property distribution, she and the parties’ children are facing financial hardship which has resulted in the wife and the children moving to live with the wife’s mother in Queensland.
As result of the wife raising the matter of bias, I sought clarification from the wife as to whether she wished to make a formal application for me to recuse myself from the proceedings.
After a short adjournment, the wife indicated that she did wish to make a formal application. The wife stated that her application was made on the basis that I was not actually biased but that a fair-minded observer would conclude that there is a risk I would not be fair, reasonable and neutral in the proceedings.
By way of summary, the basis of the mother’s argument in support of the recusal application was:
·That she has been left “broke”;
·That I have not compelled the husband to comply with order 11(d) of the orders made on 31 July 2017, which order provided for the husband to provide non-privileged documents from a bundle of documents that I have previously referred to as the e-documents to the wife;
·That I have failed to require the husband to disclose relevant documents to assist preparation of her case; and
·That I have put her in a position where she cannot prepare her case to the point where she can be ready to conduct that case on 29 January 2018;
·That I have failed to have regard to the fact that she has a learning disability and was only educated to year 8 and, accordingly, has difficulty in preparing and conducting her case as a self-represented litigant.
In circumstances where the wife is self-represented, I sought clarification from the wife as to whether, in contending that I was ostensibly biased, she relied upon comments and/or findings that I have made in earlier interim decisions.
I also sought clarification as to whether the wife contended that it is relevant that I have read the husband’s affidavit dated 26 October 2017 which included references to some formerly privileged material in the nature of communications between the wife and her former legal advisors. That material had been set out in the affidavit as a consequence of findings I made on 17 November 2017 that there had been a partial waiver of legal professional privilege by the wife as a result of contentions that were made by her previous legal advisors in proceedings where the wife sought to join third parties to these proceedings.
In reply, senior counsel for the husband referred to the decision of the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 (“Ebner”) as setting out the appropriate two step test to apply in determining whether there is a reasonable apprehension that a judicial officer is biased. Relevantly the High Court said at paragraph 8:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
Of further relevance is the decision of the High Court in British American Tobacco Australia Limited & Laurie and others (2011) 242 CLR 283 (“British American Tabacco”), where the majority relevantly said:
It is fundamental to the administration of justice that the Judge be neutral. It is for this reason, that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public’s perception of neutrality with which the rule is concerned. In Livesey, it was recognised that the lay observer might reasonably apprehend that a Judge who has found a state of affairs to exist or who has come to a clear view about the credit of a witness may not be declined to depart from the view in a subsequent case. It is a recognition of human nature.[1]
[1] at [139].
The High Court further said:
Of course, Judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence. Trial judges are frequently required to make rulings excluding irrelevant or prejudicial material from evidence. Routine rulings of this mature are unlikely to disqualify the Judge from further hearing the proceedings. This is not a case of that kind. It does not raise considerations of case management and active rule of the Judge in the identification of issues with which Johnson, a previous authority, was concerned. At issue is not the incautious remark or expression or a tentative opinion, but the impression reasonably conveyed to a fair-minded lay observer who knows the trial Judge in that case as found that the corporation in that case engaged in fraud and who has read his Honour’s reasons for that finding.[2]
[2] at [140].
In this matter, I have made a number of comments expressing the Court’s concern regarding the manner in which these proceedings have been conducted. Those comments can appropriately be categorised as comments that have been made in the context of routine rulings as part of the case management process. Those comments do not, in my view, give rise to a reasonable apprehension of bias.
I respectfully accept the argument of senior counsel for the husband that the mere fact that I have published seven separate judgments in respect to matters that have arisen during the course of this litigation does not establish a basis for contending that I am biased or ostensibly biased.
Senior counsel for the husband contended that I have not been referred to a specific statement or finding in any of those decisions which would satisfy the first leg of the Ebner test to which I have earlier referred. In those circumstances, it was further submitted that the second leg of the Ebner test could not be applied. That is, without identifying the relevant statement or finding, it was not possible to determine that a reasonable, informed observer would have a reasonable apprehension that I may not fairly adjudicate in respect to this matter.
Senior counsel for the husband submitted that unless bias or ostensible bias is established, that I have a duty to proceed to hear and determine this matter.
It was submitted that, insofar as the basis of the wife’s contentions concerning bias are based on decisions that have been made against her interest, it is significant that several of my decisions have also fallen against the husband.
It was contended by senior counsel for the husband that I should be reluctant to recuse myself at this stage of the litigation in circumstances where the case is listed for hearing in two weeks on 29 January 2018 and in circumstances where the proceedings have previously been adjourned at considerable cost of the parties and the public purse.
A difficulty in this matter is the fact that the wife has not referred me to any specific statement or finding that she contends establishes that I am biased or ostensibly biased. However, in circumstances where the wife is self-represented I acknowledge that, in proceedings immediately after the adjournment of this matter in June 2017, I made findings and orders restraining the wife and intervenors from communicating aspects of this matter to the media. In the course of those proceedings, it was submitted that the Court could reasonably infer that certain of the information published by the media had inappropriately been communicated by the wife. I accepted the validity of those contentions in imposing the restraints on further publication.
In my decision dated 4 December 2017, I declined to make orders, as sought by the wife, for a further partial property distribution. One of the grounds for declining to make that order was that, with the exception of a portion spent on legal fees, the wife was unable to explain how she had applied an amount of $4,550,000 that she has received, during the course of these proceedings, by way of partial property distributions. A fair-minded lay observer might reasonably apprehend that I have formed a view that the wife has unreasonably and inappropriately sought to maintain a particular lifestyle. This is in circumstances where it can reasonably be expected that issue will be traversed in the final hearing.
I have also referred to contents of the affidavit of Mr Riemann dated 26 October 2017, which set out by way of extract and annexure details of communications between the wife and her previous legal advisors. One such reference of significance is to a file note dated 6 June 2017 recording oral advice provided by senior counsel who was, at that time, instructed by the wife.
The High Court in British American Tobacco noted that, as a result of their training, oath of office and experience, a trial judge can ordinarily be expected to put information that they have read which is prejudicial to the interests of a party out of their mind in considering the merits of the parties’ evidence and contentions.
My decision dated 20 November 2017 dismissing the wife’s application to join third parties to the litigation did not refer to the formerly privileged material attached to the husband’s affidavit dated 26 October 2017. However, a fair-minded lay observer might reasonably apprehend that comments I have made in these proceedings, cautioning the wife against lightly dismissing professional advice she has received, has been informed by material I have read in that affidavit.
I acknowledge that the wife has not referred to a specific statement or finding that I have made during the course of interim proceedings or in reasons for judgement that have been published in respect to those proceedings and, in that sense, there is merit the submissions by senior counsel for the husband that the tests set out in Ebner cannot be applied in this case.
However, the decision as to whether a judicial officer is biased or ostensibly biased needs to be made in the context of all of the circumstances of the case[3] and in accordance with the principal adumbrated by the High Court in British American Tobacco that it is fundamental to the administration of justice that the judge not only be neutral, but be seen by a reasonable observer to be neutral.
[3]Livesey v New South Wales Bar Association (1983) 151 CLR 288 at [293 - 294].
Having regard to all of the matters to which I have referred, it is my view that, in all the circumstances of this case, a reasonable bystander, properly informed of the issues in the proceedings, may apprehend that I may not be able to bring a fair and objective mind to the matters in these proceedings. Accordingly, I will therefore recuse myself from these proceedings.
In so doing, I acknowledge the inconvenience that this course of action will cause to the parties present in terms of cast and additional delay. That consequence must however, be balanced against the principle that it is fundamental to the administration of justice that a judge must be and be seen to be neutral. As noted, I am satisfied that the application of that principle, in this case, requires me to recuse myself from these proceedings.
For all these reasons I make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 20 December 2017.
Associate:
Date: 22 December 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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