Rilak & Tsocas (No. 2)

[2021] FamCA 351

FAMILY COURT OF AUSTRALIA

Rilak & Tsocas (No. 2) [2021] FamCA 351

File number(s):	SYC 2062 of 2010
Judgment of:	HENDERSON J
Date of judgment:	20 May 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application for disqualification on the basis of actual bias – Importance of maintaining confidence in the administration of justice – Application for disqualification granted.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Anae v R [2018] NSWCCA 73 Hartnett v Sampson [2008] FamCA 75 R v Watson (1976) 136 CLR 248
Number of paragraphs:	13
Date of hearing:	20 May 2021
Place:	Sydney
The Applicant:	Litigant in person
The Respondent:	Litigant in person

ORDERS

SYC 2062 of 2010
BETWEEN:	MS RILAK Applicant
AND:	MR TSOCAS Respondent

ORDER MADE BY:	HENDERSON J
DATE OF ORDER:	20 MAY 2021

THE COURT ORDERS THAT:

1.That Justice Henderson be disqualified from further hearing this matter in any capacity.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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).

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the mother has made an application that I disqualify myself from further hearing this matter, which is two contravention applications she has brought in respect of what she says are orders contravened by the father and made by Loughnan J on 13 November 2015.

2. I am part way through hearing this matter in that I am yet to deliver a judgment in relation to whether there is a prima facie case regarding the father's agreed failure to provide telephone time between the mother and the child pursuant to his Honour's orders, namely order 12. I am yet to hear and determine the second application which is the father's failure to advise the mother prior to changing the child's address and school, which matter I have listed for a hearing on 18 August 2015. 

3. I found there was a prima facie case against the father in respect of that contravention and I stood over for hearing his reasonable excuse.  I am still to deliver the judgment as to whether I accept the father's position that there is no prima facie case in respect of the alleged contraventions of telephone time.  The applications for contravention were listed before me pursuant to leave I granted to the mother to file these applications given that Gill J had declared her, for want of a better word, a vexatious litigant under the Family Law Act 1975 (Cth) and leave was required before she could commence any fresh applications. The mother now seeks I disqualify myself on the basis of three points.

4. The first is she has lost confidence in my capacity to exercise impartiality.  I am not entirely sure what that relates to, however it would appear to be that on 18 February 2021, I did not give her leave to commence or proceed with a hearing of an Application in a Case filed 12 February 2021 seeking to set aside the orders of Gill J made 4 February 2020.  The mother asserts that in so doing, I was being partial and not impartial.  Secondly, during the hearing in the contravention proceedings, the mother raised an issue that she wanted to adjourn the contravention hearing - this is, in particular, in relation to the alleged breaches of telephone time - because she asserts that there was an improper delegation or conferring of Federal judicial power on Ms RR, psychologist, by Order 27 of orders made by Loughnan J on 13 November 2015, which order reads as follows:

   The parents shall attend such appointments as the therapist makes…

   This is the offending part of his Honour's orders as the mother alleges:

   …and follow all recommendations made by the therapist, including but not limited to referrals to other treating professionals for either or both of the parents and for B. 

5. This is the order that the father says he is relying upon to prove there is no prima facie case and he is not in breach of his Honour's orders, despite the fact he agrees the child has not had telephone contact with her mother for some time.  I refused to adjourn the contravention applications and advised the mother she was entitled to take whatever action she wanted in the High Court, seeking the intervention of Attorney-Generals of the State and the Commonwealth.  The mother has, in fact, done that and tendered to me today a document which is marked mother's exhibit 3, consisting of three pages where she has notified both the Federal, New South Wales and Victorian Attorney-Generals that she is raising this constitutional point.

6. All three Attorney-Generals have basically written back and said they will not be intervening in the Family Court or applying to remove the cause from that court to the High Court.  Further, that if the proceeding is taken further on appeal, or is removed to the High Court, they may consider intervening. That is basically what each three Attorney-Generals have said.

7. Secondly, the mother says I bullied her and told her that if she raised the constitutional point, I would dismiss both the contraventions, even if she only raised the constitutional point in respect of one contravention.  In those circumstances it seems the argument is I displayed actual bias, not apprehended bias, but actual bias.  In those circumstances, she tells me she has written two letters of complaint to my Chief Justice and a letter of complaint to the Federal Parliament, neither of which document I have seen and that is certainly her right to exercise in our democracy. 

8. Third, the mother raises the issue that I should disqualify myself because I did not give leave to proceed with the application to set aside Gill J’s order and in circumstances where she says she has lost confidence in my capacity to exercise my judicial power impartially.

9. The law in relation to disqualification is lengthy and there are many decisions. Moore J’s decision in this Court of Hartnett v Sampson [2008] FamCA 75 sets out the principles which is whether the fair-minded observer could conclude the judge had formed opinions which might affect his or her determination of outstanding matters. In the High Court decision of 1976 in R v Watson (1976) 136 CLR 248, the High Court described the principle and test [at 263]:

   The view that a judge should not…hear a case if in all the circumstances the parties or the public might reasonably suspect…he was not unprejudiced and impartial, and that if a judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct in principle…It is of fundamental importance that the public should have confidence in the administration of justice.  If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.

10. There is no allegation I have prejudged the case. I am yet to judge it. What the allegation is, is that I bullied the mother and threatened I would dismiss her contravention application if she raised a constitutional issue.  My memory is I said she could raise a constitutional issue at any time and a consequence may be the contravention applications were dismissed, however I have no transcript in relation to those issues.  Further, a decision of Anae v R [2018] NSWCCA 73 at [50] referred to the test being:

    The test for apprehended bias is uncontroversial and the relevant principles were summarised by the court in Tarrant v R [2018] NSWCCA 21 at [9]:

    “…Where actual bias is not alleged the legal test, as expressed in Johnson v Johnson, requires the court to be satisfied that a ‘fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide’…

    These matters are contravention applications. Their Honours confirm again the importance that there is public confidence in the administration of justice, which is sought to be preserved and not the capacity of the judge.

    …Secondly, the test as described is objective, meaning a third party's assessment of the judge's conduct and capacity and not, as with actual bias, the judge's state of mind.

    (3) Thirdly, [it is] a two-stage process…It is necessary to articulate ‘the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial, persistent decision-making.’

    (4) Fourthly, the use of the term 'might' lowers the burden of proof below that of probabilities…the court need not be satisfied that a fair-minded lay observer ‘would’ have such an apprehension; nor need any apprehension in the mind of the observer itself involve a state of satisfaction on the probabilities.”

11. In those cases, apprehension of bias was found. 

12. There is no argument that I have prejudged the matter, rather that there is actual bias and rather that the mother has lost confidence in my capacity to exercise impartiality and believes that I bullied her and that I threatened to dismiss applications if she raised a constitutional matter, a matter she is perfectly entitled to raise at any time in court proceedings.  I note this issue of a constitutional matter was not raised when she took on appeal of Loughnan J’s decision of 2015.  No constitutional issue was raised then. 

13. However, it is important that there is confidence in the administration of justice and the parties before the Court are confident that the judge will bring a fair and impartial mind to any decision.  Given that the mother is under a disability, and I use that word “disability” to mean she cannot bring applications without leave of the court, it is particularly important that the mother in this matter has confidence in a judge exercising their jurisdiction: that they will do so in an impartial way; that she has confidence in their capacity to exercise their power impartially; and does not feel threatened or bullied in any way by any conduct, behaviour or words of a judge. My concern in this matter is to ensure that the administration of justice is maintained.  It is not acceptable, as I see it, at any level for that administration to be minimised. In those circumstances, I will accede to the mother's request and I will disqualify myself from further hearing this matter. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson.

Associate:

Dated:       28 May 2021