RILAK & TSOCAS
[2015] FamCAFC 120
•24 June 2015
FAMILY COURT OF AUSTRALIA
| RILAK & TSOCAS | [2015] FamCAFC 120 |
| FAMILY LAW – APPEAL – DISQUALIFICATION – Where the primary judge disclosed that his legal associate had secured a contract of employment with a firm of solicitors representing a party – Where the trial proceedings were part heard – Where application that the primary judge disqualify himself on the ground of apprehended bias – Where the primary judge refused to disqualify himself – Where the mother sought the assistance of an interpreter part way through the trial proceedings – Alleged procedural unfairness by the mother – Where error not established – Appeal dismissed. FAMILY LAW – COSTS – Where the mother failed to establish appellate error – Costs ordered. |
| Family Law Act 1975 (Cth) |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Smits v Roach (2006) 227 CLR 423 |
| APPELLANT: | Ms Rilak |
| RESPONDENT: | Mr Tsocas |
| FILE NUMBER: | SYC | 2062 | of | 2010 |
| APPEAL NUMBER: | EA | 77 | of | 2015 |
| DATE DELIVERED: | 24 June 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Le Poer Trench JJ |
| HEARING DATE: | 22 June 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 June 2015 |
| LOWER COURT MNC: | [2015] FamCA 425 |
REPRESENTATION
| FOR THE APPELLANT: | Ms Rilak in Person with the assistance of a Slovakian interpreter |
| COUNSEL FOR THE RESPONDENT: | Ms Lawson |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray |
Orders
The appeal be dismissed.
The mother pay the father’s costs of and incidental to the appeal as agreed or assessed.
The mother shall pay the costs due pursuant to Order 2 above from her share of property received from the property settlement proceedings. In the event the mother is not entitled to receive an adjustment of property, the amount due pursuant to Order 2 is payable twenty eight (28) days after final property orders are made between the parties.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 77 of 2015
File Number: SYC 2062 of 2010
| Ms Rilak |
Appellant
And
| Mr Tsocas |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 4 June 2015, Ms Rilak (“the mother”) appeals against Order 1 of the orders made by Loughnan J on 2 June 2015. By that order the mother’s application that his Honour recuse himself was dismissed, as was her application to restrain the father’s solicitors from continuing to represent him. At the appeal the mother withdrew her appeal in relation to the solicitors.
The respondent is Mr Tsocas (“the father”). He and the mother are the parents of the child B, who was born in 2010 (“the child”).
Proceedings about the child and other family law issues commenced in this court on 6 December 2011. The final hearing of those proceedings started before his Honour on 27 January 2015, the hearing having been adjourned part heard is scheduled to continue on 4 August 2015.
On the morning of the sixth day of the hearing, his Honour disclosed that his legal associate had secured a position as a solicitor with the firm of solicitors retained by the father to represent him in the family law proceedings. When his Honour first raised the issue, it was on the basis that his legal associate would commence employment with the father’s solicitor within the following fortnight and thus prior to the completion of the hearing and judgment. However, the father’s solicitors recast the offer of employment so that the legal associate would not commence her position with them until the proceedings were finalised by orders and publication of his Honour’s reasons for judgment.
The father opposes the appeal and seeks to uphold the orders of the primary judge.
The child is represented by an Independent Children’s Lawyer (“ICL”) who, before his Honour, argued that the mother’s applications should be dismissed. The ICL did not participate in the appeal.
Although the mother sought leave to appeal, insofar as Order 1 dealt with the recusal issue, the effect of s 94(1AA) of the Family Law Act 1975 (Cth) (“the Act”) is that that aspect of the appeal can be brought as of right.
Background facts
So as to give this appeal context, it is necessary to record a few seemingly uncontroversial background facts.
On 21 May 2015, his Honour disclosed to the court that his legal associate had secured a position in the law firm who presently represent the father. She was due to start the position on 1 June 2015 in relation to which it was noted that the proceedings would be part heard.
The mother was at this time represented. Upon learning of the association between the legal associate and the father’s solicitors, she instructed her solicitor to make an oral application seeking that the primary judge disqualify himself from further hearing the matter and that the father’s solicitors be restrained from acting. It appears that the mother understood
his Honour to be making an offer to disqualify himself. The mother’s solicitor accepted the “offer” and advised his Honour that she objected to the continuation of the hearing.
In response, counsel who appeared for the father said he would need to obtain instructions from the firm’s partners in orders to determine how to proceed.
His Honour declined to disqualify himself.
As arrangements had been put in place to take the evidence of the single expert that day, his Honour related his desire to continue with the hearing until such time as the partners could instruct on how they wished to proceed; including in relation to whether other arrangements could be made in relation to the legal associate’s employment. The point being, as his Honour explained, although there was no reason he should disqualify himself at that time, a problem might arise if the hearing was not finished (with judgment given) by the time the legal associate started.
It appears that contrary to the mother’s initial position about the continuation of the hearing there was no objection to that course being adopted. Indeed, having been given the opportunity to address his Honour about whether the hearing should continue in the interregnum, those appearing made it clear that it could. It needs to be understood that the mother’s solicitor also indicated that on the following day the mother would also seek to have his Honour determine an urgent application for financial support.
Thus the single expert gave evidence and was cross-examined by the mother’s solicitor.
The following day, on 22 May 2015 the mother withdrew instructions from her solicitor who was subsequently excused. The mother then made an oral application that his Honour disqualify himself and the hearing be allocated to a different judge at Wollongong. Notwithstanding that his Honour told the mother he would recuse himself if the legal associate commenced with the firm before judgment was delivered, the mother said she wanted her application determined forthwith and the proceedings suspended until it was. After extensive exchanges during which his Honour explained why he would not then disqualify himself, the matter was adjourned to enable the mother to speak to her solicitor.
When the matter resumed the mother filed an application in a case seeking that his Honour disqualify himself. His Honour declined to hear the application immediately and explained how important it was to complete the expert’s evidence. Even though she knew the hearing would continue the mother chose to leave and not participate in the hearing. In the absence of the mother a number of interim orders were made which essentially ensured that the child cannot be removed from Australia.
An amended application was filed by the mother on 2 June 2015, again seeking his Honour’s recusal and relevantly a stay of the orders made on 22 May 2015.
On 2 June 2015, his Honour made orders dismissing the mother’s application that he disqualify himself from determining the matter. His Honour also dismissed the stay application. His Honour’s reasons for those orders were published on 5 June 2015.
The grounds of appeal
The mother is unrepresented and prepared her grounds of appeal. The grounds upon which she relies are set out below:
1.Justice Loughnan knew that grounds exist to recuse himself from any proceedings;
a.On 21 May 2015 in the morning he entered the Court room and said the words to this effect:
“My legal Associate has secured a job in the solicitor’s firm who acts for the Father. She will start this job in a week or two.”
b.The Justice has expressed twice that this information is serious and he apologised for the short notice of this announcement.
He said the words to this effect:
“It’s so serious, I’m sorry I didn’t occurred to me, to inform you earlier.”
“I would still have some concerns about your client” […mother’s solicitor].
2.His impartiality is questioned.
3.Incorrect manner of informing the parties to the proceedings about his recusal for the conflict of interest;
a.He said on 21 May 2015: “It has just occurred to me, while I was left the Court room.”, i.e. about 45 minutes into the commencement of the hearing.
4. Justice incorrectly handled his recusal.
5.Justice continued in the hearing and presiding the proceedings in despite my written application for his recusal and accepting his offer for his recusal.
6.Justice unlawfully refused my acceptance of his offer for his recusal;
7.On 21 May 2015 afternoon Justice unlawfully refused my oral acceptance of his offer for his recusal, that I instructed to my solicitor […],
8.Justice agreed and informed parties that his “intentions were to finish this hearing as soon as possible so he could make interim parenting orders before the final hearings.
9.Justice disregarded my disagreement with his continuation of the hearing;
a.My solicitor’s […] request for his recusal was ignored on the same day of his disclosure, 21.5.2015
b.In despite of [mother’s solicitor] accepting his recusal, he continued in the proceedings he informed parties that his “intentions were to finish this hearing as soon as possible so he could make interim parenting order before the final hearings.”.
c.By this he disregarded my rights to proper and natural justice and equity. It was in the time when the Father was not cross examined and also his witnesses.
d.On the following day, 22 May 2015 I did not agree with the continuation of the hearing.
e.He did not agree with my acceptance of his recusal
f.Mr repeated requests were ignored on the same day on 22 May 2015.
10.Justice disregarded my disagreement with his continuation of the hearing;
a.My solicitor’s […] request for his recusal was ignored on the same day of his disclosure, 21.5.2015
b.In despite of [mother’s solicitor] accepting his recusal, he continued in the proceedings he informed parties that his “intentions were to finish this hearing as soon as possible so he could make interim parenting orders before the final hearings.”.
c.By this he disregarded my rights to proper and natural justice and equity. It was in the time when the Father was not cross examined and also his witnesses.
d.On the following day, 22 May 2015 I did not agree with the continuation of the hearing
e.He did not agree with my acceptance of his recusal
f.My repeated requests were ignored on the same day on 22 May 2015.
11.Justice continued the following day on Friday, 22 May 2015 in the hearing and presiding the proceedings in despite the applicant mother’s second application (written) for his recusal who accepted his offer of his recusal.
12.On 22 May 2015 afternoon, Justice continued with the hearing and made the Court Orders in mother’s absence after his offer for his recusal was accepted.
13. Mistakes in regards with his recusal:
a.He informed parties late
b.He informed the parties 6 business days before his Legal Associate was to take up the job in the solicitors firm representing husband
14.Justice continued in the hearing and presiding the proceedings in despite my written application for his recusal and accepting his offer for his recusal.
15.Justice made the Court Orders after his offer for recusal was accepted.
(As per original)
Although the grounds do not articulate the point, as we mentioned earlier, the mother initially sought to appeal the order concerning the father’s solicitor. Her point being that because of private communication between the legal associate and the father’s solicitor, there is the potential for the misuse of confidential information. She withdrew this aspect of the appeal as a consequence of which it will be formally dismissed.
It will be immediately apparent that a number of the grounds overlap and they are, in some respects, repetitive. A number of the challenges were clarified in the mother’s summary of argument and in oral addresses. It seems to us that the challenges raised by the mother can be summarised as error by his Honour in that he:
· Failed to properly apply the test for judicial disqualification (grounds 1 and 2);
· Having said he should disqualify himself erred by not doing so (ground 6);
· Failed to determine the disqualification application when it was first made (grounds 3, 4, 5, 7, 8, 9 and 12);
· Continued the hearing after he was asked to disqualify himself (grounds 11, 14 and 15);
· Did not disclose the matter said to give rise to the apprehended bias as soon as he knew of it (ground 13); and
· Denied procedural fairness to the mother in the continuation of the hearing in her absence and after she asked for an interpreter (grounds 10 and 9(c)).
It needs to be understood that the mother’s appeal was listed for hearing before us on 16 June 2015. At that hearing and so as to assist the mother present her challenges as asserted errors of law we outlined the challenges as we saw them and as set out above (albeit the challenge raised by ground 13 was not discussed at that time).
The gravamen of grounds 1 and 2 is that his Honour failed to properly apply the test for judicial disqualification. No challenge is made to his Honour’s statement of the applicable law which need not be set out in detail. It is sufficient to observe that his Honour looked to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488 for the principles by which the disqualification application would be decided.
Consistent with those authorities, his Honour examined the evidence in order to determine whether a fair minded lay observer might reasonably apprehend that he might not bring an impartial and unprejudiced mind to the resolution of the question he was required to decide. His Honour adopted the traditional two-step process to be used in applying that test; namely:
·the identification of the matters said to give rise to the apprehended bias; and
·consideration of the logical connection between the matters identified so as to establish whether or not there was a real (not remote) possibility of a deviation from the course of deciding the case on its merits.
His Honour correctly understood that the mother’s argument was predicated upon his Honour’s association with the father’s solicitor said to have arisen because the legal associate was, to use the mother’s words, a “potential employee” of that firm. His Honour correctly understood that the mother’s case was based on “the appearance” and thus apprehension of bias and that the mischief of which the mother complained was the risk that the legal associate would pass confidential information to the firm.
The proposition was explained thus:
36.… A solicitor is bound to apply his or her knowledge and skill for the benefit of a client. If my legal associate became an employee of the firm of solicitors acting for the father, she could be placed in a position of conflict between her obligation to a client of the firm and her obligation not to disseminate information obtained in the course of her employment with the Court. In the latter regard the only relevant information would be information as to a developing judgment. The concern would be that, prior to the conclusion of the trial, the father might thereby have unique access to the developing reasoning process of the trial judge and could have an unfair advantage in presenting evidence or making submissions in his case.
As to the second step, his Honour at [38] said “[t]here could be no risk of conflict if the employment started after judgment because upon judgment the judge has finalised his work, is thereafter functus officio and does not need to have any further role…” (footnote omitted). In circumstances where the legal associate would not commence employment with the firm until after judgment was delivered, his Honour was satisfied he was obliged to continue with the hearing and to dismiss the mother’s application. In so doing, he pointed out the privacy obligations which govern Commonwealth public servants and the fact that judges determine cases on the basis of evidence and do not have access to extraneous information about the parties or the proceedings. The fictional observer, properly informed, would understand these matters and appreciate that whatever information the judge had was equally available to all of the parties. We agree.
We also accept the mother’s submission that his Honour failed to consider her argument that the association arose from when the legal associate applied to the firm and thereafter, was strengthened by her dealings with them during the recruitment process. This aspect of the mother’s argument was put in the following terms:
[The Mother]: You disclosed, your Honour, on 21 May that she has helped you over the month to draft the papers. And so she would have intimate knowledge where - on which direction would you take. So on that light, I believe that you should recuse yourself, because of your legal assistant have this intimate knowledge of the court proceedings, where it is going, and that she could convey that to [the father’s solicitors], even though they’re saying that they did not employ her yesterday, as it was agreed in the contract. That she’s going to wait. I’m not sure how long it is wait. And it’s not even fair for her.
HIS HONOUR: I think it has, ma’am. I think it’s - I think [the father’s solicitor] said that ‑ ‑ ‑
[The Mother]: She’s not ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ they will wait until after judgment ‑ ‑ ‑
[The Mother]: That’s right.
HIS HONOUR: ‑ ‑ ‑ is delivered. Yes.
[The Mother]: But the first appearance happened on 11 of - the appearance of judicial partiality ‑ ‑ ‑
HIS HONOUR: You mean the first interview.
(Transcript, 2 June 2015, p 11, lines 24-47)
As the mother went on to explain to his Honour, he could not guarantee that the legal associate had not shared her knowledge of the developing draft judgment. As a theoretical exercise, that is of course possible. However, the evidence included evidence from the firm concerning their dealings with the legal associate. That evidence, which was not challenged, established there had been no discussions about the proceedings by the legal associate and those involved in her recruitment. Nor would the properly informed fictional observer anticipate there might have been.
Not every argument advanced to a trial judge must be addressed in the trial judge’s reasons for decision. In our view, it was sufficient that his Honour addressed the challenge in the manner which he did. The mother did not establish he was obliged to recuse himself.
Grounds 1 and 2 are not made out.
By ground 6, it is argued that his Honour offered to disqualify himself and erred by not doing so.
It will be recalled that the issue arose at a time when the mother was represented. His Honour raised the issue thus:
HIS HONOUR: Something has just occurred to me that’s going to have something of an impact on the case I think. My legal associate has secured a job with the solicitors who act for the father and she starts that job, I think, in a week or two. So what that means is the parties getting instructions about whether there would be a basis for objecting to me continuing to hear the case. It’s not something that is done on the run so – and it’s obviously your client’s ‑ ‑ ‑
[Mother’s Solicitor]: Decision.
HIS HONOUR: ‑ ‑ ‑ the issue for your client.
[Mother’s Solicitor]: Okay.
HIS HONOUR: I won’t say any more about it. Can I just leave that with you.
[Mother’s Solicitor]: Sure.
HIS HONOUR: My legal associate has assisted me in the preparation of the draft that has been developed over these months. That’s all I can usefully say. No. You don’t have to do it while I’m here, and it might take you some time and, [mother’s solicitor], it’s so serious – and I’m sorry I didn’t – it didn’t occur to me. This has happened while in the interregnum. So it wasn’t as though this was something in prospect when the hearing started. This is something that just happens in the course of things, and it’s not – you know, I certainly – it’s not my legal associate’s fault. It’s just something that happens. When cases run on things – you know, the world doesn’t stop and things happen. These legal associate jobs are temporary jobs and it’s intended that the legal associates go out and work in the profession. But it’s so serious that even if there was an unqualified support from your client I would still have some concerns about it. So the first step is informing you about that.
[Mother’s Solicitor]: Yes.
HIS HONOUR: And you’re probably aware of the line of cases to do with disqualification or solicitors ceasing to act because of the obligation a solicitor has to apply their knowledge and their skill for the benefit of their client and the problems of Chinese walls within firms and so on. Anyway, first step is you explaining to your client what the issue is; I suppose, if you need to, getting some advice about it; putting her in a position to give you instructions about the issue; and then we come back and talk about it. You know, there’s a whole lot of options in terms of what could be salvaged but that’s the first step…
(Transcript, 21 May 2015, pp 12-13, lines 42-47 & 1-33)
(Emphasis added)
His Honour went on to agree with counsel for the father that the issue of his recusal would not arise unless the legal associate joined the firm before judgment. With his Honour’s position thus clarified, the proceedings were stood down to enable the parties and ICL to consider their positions. When the hearing resumed, the mother’s solicitor informed his Honour “[h]er instructions are to accept your offer of disqualifying yourself from proceedings”. The exchange continued:
HIS HONOUR: Is the concern that the trial is still running at the time the legal associate moves to [the father’s solicitors] or is the concern that there won’t be a judgment by the time she moves to [the father’s solicitors]?
[Mother’s Solicitor]: She takes the view that she would be worried if the trial continued at all with what has been divulged. She would have a concern, as you – I mean, your Honour has volunteered this information and has volunteered the disqualification and we talked that through. It would be an unavoidable – a conclusion in her mind to take would be that any involvement from here on in with the current – would prejudice her case.
(Transcript, 21 May 2015, p 16, lines 8-17)
In certain situations, a judge, as a matter of prudence and professional practice, should disclose interests and associations which may give rise to an apprehension of bias. In Ebner, it was said that a judge should disclose such interests if there exists a serious possibility that they would be potentially disqualifying.
In Smits v Roach (2006) 227 CLR 423, Kirby J set the bar lower and described the situation thus:
102.The adoption of relatively strict rules and practices in respect of the disclosure by judges of a potentially disqualifying interest or association has many advantages. It promotes transparency in the judicial process. It relieves the parties of enquiring into, or otherwise investigating, judicial interests and associations. It invites a timely and informed decision on the part of the judge, litigants and legal practitioners as to whether any disclosed interest should be waived. It removes a cause of judicial resentment or irritation when the question of disqualification is raised belatedly, as it was in this case. The practice of prior disclosure of any possible interests, statements, associations, relationships and extrinsic knowledge thus operates prophylactically. It helps to maintain respect for the integrity of judicial performance in the nation, as a model for the region and the building of the rule of law globally. This is not just a question of prudence. It is part of the governing law.
(Footnotes omitted)
When his Honour’s remarks are considered in the context of the passage above, there can be no doubt they were made with the intention of satisfying the prudency and professionalism expected of a judge. However, it needs to be made clear that a disclosure of a matter that may potentially attract apprehended bias is not the same thing as “an offer to disqualify” and nor is it an admission that the matter does, in fact, attract apprehended bias. We do not accept the mother’s contention that his Honour “offered” to disqualify himself unconditionally. As we will shortly discuss, he later explained that if the legal associate joined the firm before he delivered judgment, he would do so.
Ground 6 is not made out.
The third tranche of challenges made by the mother concern his Honour’s failure to determine the disqualification application when it was first made. As the mother correctly identifies in her summary of argument, there were four occasions spanning 21 May 2015 – 2 June 2015 on which the mother or her solicitor asked his Honour to disqualify himself. Although it was only on the fourth occasion that the mother’s application resulted in a formal order by which her application in a case was dismissed, on a fair reading of the transcript it is apparent that on the first two applications his Honour considered the arguments in favour of recusal and for reasons which are apparent from the transcript of the proceedings below, determined there was no basis upon which he should do so. In our view, far from his Honour failing to engage the disqualification application, he permitted the same application to be made repeatedly. So that it is clear, he dealt with the third and fourth applications simultaneously.
In relation to the first application which, as the mother correctly identifies is to be found at page 15 of the transcript of 21 May 2015, it can be seen in the pages which follow that the mother’s solicitor was given the opportunity to address his Honour on the issue. His Honour’s reasons for not acceding to that application are tidily summarised as:
HIS HONOUR: If, for example, I was to determine the case prior to my legal associate commencing at [the father’s solicitors], then I don’t think there’s any basis on which I could or would disqualify myself because there can’t be any contamination of the conduct of the proceedings through a perception of what might be communicated to [the father’s solicitors].
[Mother’s Solicitor]: Okay.
HIS HONOUR: So it can’t be a problem.
[Mother’s Solicitor]: All right.
HIS HONOUR: There’s an argument about there being a problem if my associate starts in the period between reserving judgment and delivery of judgment. I would be happy to hear from [counsel for the ICL] and [counsel for the father] about that. I haven’t really turned my mind to it. I think the answer falls where I’ve indicated just as to the risk of somebody re-opening. I think there can’t be a problem at all if I’ve concluded the proceedings before that contract of employment commences.
(Transcript, 21 May 2015, p 19, lines 10-27)
The second application occurred on 22 May 2015 and is recorded at page 69 of the transcript when the mother said:
We accepted your offer of dismissal yesterday, your Honour.
After his Honour took further submissions from the mother, he said:
HIS HONOUR: No, ma’am. People make applications that judges recuse themselves or disqualify themselves. It’s not a matter of personality – or, sometimes it is. But that’s the least of our concerns. I have already indicated to the courtroom that in the event that my legal associate was to move to the firm instructed by the father before the conclusion of the trial then I would be obliged to excuse myself, to cease the trial. But I assumed from the fact that we were proceeding yesterday and today that there was a possibility that something would be done – I don’t know what it might be – to avoid that situation. So I don’t know whether it’s any comfort to you, but I repeat that statement: I think it would be inappropriate, not because I think there would be any actual damage done, but because of the perception. And as I said to your solicitor yesterday, I could see that there’s an argument about the impact of my associate moving to [the father’s solicitors] after the conclusion of the trial but before I delivered judgment. I could see that there’s an argument to be made about that, and I would be happy to hear from you all about that. But I don’t know that either of those things is going to arise.
(Transcript, 22 May 2015, p 70, lines 12-26)
Notwithstanding his Honour’s indication, the mother’s submissions continued until his Honour confirmed he would recuse himself if his legal associate had joined the firm before judgment and then (at page 78 of the transcript) formally refused that disqualification application.
The third and fourth applications were dealt with by the amended application in a case filed on 2 June 2015.
According to the mother, his Honour “ignored [her] four (4) applications for his recusal, without any legal reasons” (summary of argument, p 6).
It is incorrect to say her applications were ignored and no less erroneous to say they were dealt with without reasons. As we have attempted to portray, the mother was permitted to repeatedly return to this issue and even when the mother was represented, his Honour went to considerable effort to explain why it was that her applications were refused.
These grounds (3, 4, 5, 7, 8, 9 and 12) are not made out.
By grounds 11, 14 and 15, the mother challenges the continuation of the hearing after she asked the primary judge to disqualify himself. As we have already explained, we are satisfied his Honour considered and ruled on the first two of the mother’s disqualification applications when they arose. Her applications were not ignored. Having so ruled, it was not necessary that he address the issue immediately it arose on the third occasion and sufficient that it was dealt with the following sitting day.
It also needs to be understood that after his Honour refused the first application on 21 May 2015, the mother’s solicitor foreshadowed that an application for interim spousal maintenance and partial property settlement was to be made the next day which his Honour was asked to determine.
The combined effect of the mother not taking steps on 21 May 2015 to appeal his Honour’s refusal to recuse himself and her invitation that he determine the foreshadowed interim financial application is inconsistent with her complaint that he continued the hearing. Otherwise, these grounds misconceive the facts in that they proceed on the basis that his Honour failed to address the various disqualification applications and only dealt with the application made on 2 June 2015.
The premise for each of the grounds having not been established, they must fail.
The mother’s submissions in support of her challenge raised by ground 13 are tidily summarised in her summary of argument:
8. The judicial errors in regard to the disclosure:
a.Justice did not disclose as soon as he find out that his legal associate was in the contact with [the father’s solicitors] outside the Court. Reasons for Judgment dated 5 June 2015 Page 14, Paragraph 49.
b.It appears that Justice knew this fact sometimes ago, but only just disclosed it to the parties, when “occurred to him” – one week prior her employment
Transcript P-12 Paragraph 40 and P-14 Paragraph 5.
c.Justice failed to disclose conflict of interest clearly:
i.When the contact was established (see [the father’s solicitor’s] Affidavit sworn 29.5.2015 Paragraph 3 – by initial actual contact on 11 March 2015);
ii.Since when did his legal associate worked on the draft documents;
iii.The exact day of legal associate’s commencement of her employment. Justice was not sure – “She starts that job, I think, in a week or two.”
Transcript from 21 May 2015 P-12 Paragraph 40;
Transcript from 22 May 2015 P-70 Paragraph 30
d.Justice determines which concern is actual Reasons for Judgment dated 5 June 2015 Page 12, Paragraph 40.
e.Justice determines whether there is a qualified reason for his recusal Reasons for Judgment dated 5 June 2015 Page 12, Paragraph 40.
(As per original and original emphasis)
The primary challenge made by this ground is that his Honour ought to have disclosed the facts sooner than he did. There can be no doubt on a fair reading of the transcript that his Honour disclosed the facts as soon as it occurred to him that prudence suggested he ought. We have already explained why the facts do not establish grounds for recusal. When considered in that light, it can be easily understood why the primary judge may have needed a little time to appreciate that facts which would not require recusal should, in the interests of prudence, nonetheless be disclosed.
We do not know when his Honour was told the legal associate would join the father’s solicitors. However, evidence presented by the firm establishes that the offer of employment was made on 1 May 2015. The hearing resumed on 20 May 2015 and the disclosure was made at 10.39 am the following day.
In our view, his Honour’s disclosure was sufficiently timely. Nor do the other matters raised by the mother concerning timing and it might be said, the nature of the disclosure, establish a basis for us to intervene.
Before we consider the challenges raised by grounds 10 and 9(c), we should mention that in her notice of appeal, the mother appealed Order 4 of 2 June 2015. By this order, his Honour refused the mother’s application to stay the proceedings pending determination of her appeal. However, the mother also abandoned that challenge and thus, she is not entitled to now assert error in that regard.
In any event, we turn then to his Honour’s decision to continue the proceedings even though the mother walked out. Before the mother departed, the following exchanges took place:
HIS HONOUR: …You have an opportunity to finish – if you wanted to – you mightn’t have had any more questions. I think you indicated you did. You have an opportunity to cross-examine [the single expert]. If you choose not to take that up it might be that that’s to your disadvantage in the final hearing – in the final outcome. So I can’t stop you leaving the building or withdrawing from the case but the risk you run is that orders – including interlocutory orders – in relation to your daughter might be made in your absence. So it’s a very serious matter. Do you understand that?
[The Mother]: I understand. Yes.
HIS HONOUR: All right, then. Thank you. Do you have any further questions for [the single expert]?
[The Mother]: I would but I not feel comfortable proceed.
HIS HONOUR: Okay, ma’am. I mean, what you could do, if you wanted – [counsel for the father] is going to have some questions for her now. If, when he’s finished, you do feel as though you’re able to do it ‑ ‑ ‑
[The Mother]: I – no. I object. So I don’t want to do ‑ ‑ ‑
(Transcript, 22 May 2015, pp 78-79, lines 31-46 & 1-5)
Procedural fairness is not the sole domain of the mother. Her interests are relevant, but so too are those of the child and the father, as well as the court’s obligation to use its finite resources effectively. Litigants are not entitled to come and go from hearings as they choose or to expect that a hearing will stop merely because they are aggrieved by the process. His Honour was involved in a complex parenting case in which very serious issues concerning the welfare of a young child were at stake. As reference to the transcript reveals, his Honour was concerned to bring the proceedings to conclusion; which concerns were expressed by reference to the child’s interests, the interests of the parties, the costs of the proceedings and the court’s availability. As to the latter, he was particularly concerned that the expert witness be given the opportunity to complete her evidence and avoid the type of problems that can arise in scheduling mutually convenient hearing dates.
These were all relevant considerations and it behoved the mother to heed his Honour’s warning that the hearing would continue and to reconsider her decision to depart. His Honour did not proceed unfairly in continuing the hearing and this aspect of the mother’s challenge has not been made out.
The next aspect of this challenge concerns his Honour’s decision to proceed with the hearing even though the court was unable to meet the mother’s request for assistance from a Slovakian interpreter.
Context is important and in this instance critically important. As the mother’s summary of argument reveals, proceedings between these parties in one form or another have persisted for years. In that time, the mother has given oral evidence and been cross-examined; she has completed a vast array of written material for consideration by the court and had not previously requested an interpreter. There have been 55 court appearances. A quick perusal of the mother’s documents presented in this appeal show her to have a sufficiently sophisticated grasp of the English language that her documents could be presented in English and without translation.
Notwithstanding it would seem after the mother left the hearing on 22 May 2015, she asked that the court provide her with a Slovakian interpreter for 2 June 2015. As the transcript reveals, the court was unable to obtain an interpreter. After this was explained to the mother, there follows pages of transcript which demonstrate effective communication between the mother and his Honour about her most recent disqualification application. This culminated in the following exchanges:
HIS HONOUR: All right. Now, ma’am, you mentioned an interpreter this morning. As you probably were advised, the registry made efforts throughout Australia to try and locate an interpreter in the Slovak language. And they weren’t able to. And, in fact, I think you kindly identified somebody. And the registry made inquiries with that person. And she, I think, wasn’t available. But I take it, ma’am, that you’re pressing your application, even though we don’t have an interpreter.
[The Mother]: I do.
HIS HONOUR: Is that right? Okay. Ma’am, if there are any - if you want anybody to speak more slowly or you want some time to consider what has happened, just say so. Having said that, ma’am, you conducted the proceedings for a long time without an interpreter.
[The Mother]: I have some difficulties, your Honour, because the things are going - things are going strange. And I have some concerns, your Honour.
HIS HONOUR: Sure. Well, ma’am, if there’s something that you don’t understand that you think somebody might be explain to more clearly, please say so.
[The Mother]: Thank you.
(Transcript, 2 June 2015, p 9, lines 7 – 27)
Although the mother may have been comforted by the presence of a Slovakian interpreter, in the unusual circumstances of this case, we are not satisfied that procedural fairness to the mother required his Honour to stop the hearing until one could be located. Indeed, doing so would have been inconsistent with the mother’s stated position that his Honour should proceed to determine her application notwithstanding the lack of interpreter.
We have read the entirety of the transcript of the proceedings which form this appeal. We are satisfied the mother was not disadvantaged by the absence of an interpreter and that it was open to his Honour to continue the hearing in the manner which he did.
This ground is not made out.
It is appropriate to note that the mother made other wide ranging submissions about his Honour’s reasons for judgment, the process of the final hearing and orders he made on 5 June 2015. Self-evidently, we had only modest success in our attempts to persuade the mother to limit her submissions to her grounds of appeal. None of those additional matters demonstrated that the primary judge ought to have recused himself.
Conclusion and Costs
The mother has failed to establish error and her appeal will be dismissed.
In the event the appeal was dismissed, an application was made by the father that the mother pays his costs.
The mother opposed an order for costs and argued that her financial circumstances are such that she could not pay any ordered costs. We understand she is in receipt of Centrelink benefits.
However, and notwithstanding the father’s apparently superior financial circumstances, we attach greater weight to the fact that the mother’s appeal has been wholly unsuccessful. That she cannot afford to pay a costs order does not warrant that no order be made. We understand that there are proceedings for the adjustment of property and it is the mother’s expectation she will receive property by way of adjustment. In those circumstances, we will order that the costs be paid from her settlement. In the event she is not successful in securing an adjustment payable by the father she will need to pay the amount due from her own resources.
I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Le Poer Trench JJ) delivered on 24 June 2015.
Associate:
Date: 24 June 2015
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