SALERNO & SALERNO

[2015] FamCA 774

FAMILY COURT OF AUSTRALIA

SALERNO & SALERNO [2015] FamCA 774

FAMILY LAW – COURTS AND JUDGES – Disqualification – Apprehension of bias—Application granted.

Family Law Act 1975 (Cth) s 33B

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63.
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48.

APPLICANT: Ms Salerno

RESPONDENT: Mr Salerno

INDEPENDENT CHILDREN’S LAWYER: Ms Soliman

FILE NUMBER: PAC 3648 of 2013

DATE DELIVERED: 16 September 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 1 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schroder

SOLICITOR FOR THE APPLICANT: Rafton Family Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Iuliano of Armstrong Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Soliman of Legal Aid NSW

Orders

1. I recuse myself from further hearing these parenting proceedings.

2. This matter is declassified from the Magellan protocol.

3. Pursuant to section 33B of the Family Law Act 1975 (Cth) the proceedings are transferred to the Federal Circuit Court at Parramatta to be listed on a date fixed by that Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Salerno & Salerno has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3648  of 2013

Ms Salerno

Applicant

And

Mr Salerno

Respondent

REASONS FOR JUDGMENT

Introduction

1. In the course of parenting proceedings relating to B, an 11 year old child of the parties, application was made that I recuse myself on the basis of apprehended bias.

2. The application was made on behalf the father and supported by the mother and Independent Children’s Lawyer. The father’s legal representative indicated that he required reasons to be given even in the event that I disqualified myself.

3. I am of the view that it is appropriate for me to recuse myself from the further hearing in this matter as a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the question I am to determine due to information that I received in the course of the parties attempting to settle the matter.

Background

1. The proceedings relate to B, who is 11, one of five children of the parties’ marriage.

2. The parent’s relationship broke down in November 2012 after 21 years.

3. Originally there had been both property and parenting proceedings concerning B and another child of the marriage, but in January 2014 and on 6 May 2015, many of the matters in dispute were settled by the parties and Foster J made final orders.

4. The final orders of May 2015 included relevantly an order that the parents have equal shared parental responsibility for the two children of the marriage that the proceedings were concerned with, including B. Final orders were also made with respect to the living and parenting arrangements for the other child C.

5. In the 6 May 2015 orders, trial directions were also made with respect to the hearing of the outstanding matters. It was assessed that the remaining issues would take two days to resolve and his Honour made the following notation:

   B. The outstanding issues for determination at trial are limited to:

   a.Parenting insofar as it relates to the live with and time with arrangements for the child B

   b.The question of overseas travel for the children or any of them;

   c.The issue of passports for the children

6. Prior to the commencement of the trial on 31 August 2015, the mother objected to the father’s late inclusion in his Amended Response to Initiating Application (filed outside the date provided for in the trial directions) of a number of additional orders which were described as “welfare orders”. Objection was also made to those parts of the father’s affidavit that relate to the proposed welfare orders.

7. The objection was made on two bases. Firstly, it was submitted that the orders sought in the category of “welfare orders” were in fact matters that fall within the ambit of parental responsibility which had been settled with the making of final orders on 6 May 2015. Second, it was also submitted that even if the Court were prepared to entertain hearing the application for welfare orders, as the evidence in support was served at such a late stage in the proceedings the mother would be denied procedural fairness if the Court were to proceed with that matter. The third area of concern from the Court’s point of view was that the matter had been allocated only two hearing days and there was a risk that if the additional evidence was heard in relation to the welfare orders, that the hearing would not be contained within the two days.

8. Prior to determining the objections raised by the mother, the parties indicated that the entire matter would be able to be resolved by agreement. In these circumstances, the matter was stood down and for a large part of the first day, 31 August 2015, the parties were involved in negotiations.

9. Late in the afternoon on 31 August the parties handed up a partly typed and partly handwritten document which reflected the settlement that had been at that stage reached between them. Some of the issues which were resolved by agreement at that stage necessarily involved a compromise in the position that each of the parties had been taking in the dispute. The document was difficult to read and it was apparent that some of the matters, in relation to travel and the issue of passports, which had been listed as matters to be resolved at the trial had not been resolved. The parties indicated that they expected to settle all outstanding issues by the following day and the matter was adjourned for that purpose.

10. Throughout the morning of the second day, I received information that the parties were still in negotiations but when the proceedings were resumed, the parties indicated that the matter had been unable to be resolved by agreement.

11. In the circumstances there was no alternative other than to vacate the remaining part of the second day and make trial directions for further hearing. However, it was first necessary to deal with the issue of the mother’s objection to the Court dealing with matters of parental responsibility when that matter had been determined by final orders.

12. As I commenced dealing with this issue and sought submissions from the father’s legal representative, the application for me to disqualify myself was made.

The application

1. The basis of the application for recusal made by the father and with which the other parties agreed was that an apprehension of bias may arise in the mind of a fair-minded lay observer, as I was aware of the matters upon which the parties had reached agreement at the end of the first day as consent orders in these terms had been handed up. It was submitted that this awareness, while not being suggested to give rise to actual bias, would give rise to a reasonable apprehension of bias.

2. The test for disqualification on the grounds of apprehended bias, set out by the High Court in Ebner v Official Trustee in Bankruptcy[1], is as follows at [6]:

   … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. …

   [1] (2000) 205 CLR 337; [2000] HCA 63.

3. In that case, the High Court went on to say that the application of the principle requires two steps.  First, it requires the identification of what is said might lead a judge to decide a case other than on its legal and factual merits.  Secondly, 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.

4. So far as the first question is concerned, it has been clearly identified that my knowledge of the parties’ position arising from negotiations is the matter that might lead me to decide the case other than on its legal and factual merits. The logical connection between that matter and an apprehension of deviation from the course of deciding the case on its merits is that a fair-minded lay observer may consider that it is impossible for me to put this knowledge of the parties’ position including any compromise they may have reached, out of my mind in determining the matter.

5. Although the authorities also make it clear that a fair-minded lay observer is taken to be a reasonable person and also that the person being observed is a professional judge[2], in all of the circumstances I am of the view that a fair-minded lay observer might reasonably apprehend that armed with the knowledge that I have about the matter I might not bring an impartial mind to determining the application before me. The application to be determined at the stage the parties sought my recusal was in relation to whether the mother’s objections dealing with the father’s proposals for “welfare orders” were to be upheld, but the parenting trial itself was then to follow.

Other matters

[2]Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ .

Transfer to the Federal Circuit Court

1. In addition to dealing with the application before me I am also of the view that it is appropriate to transfer the further hearing of this matter to the Federal Circuit Court.

2. Section 33B of the Family Law Act 1975 (Cth) provides that if a proceeding is pending in the Family Court the Court may transfer to the Federal Circuit Court and pursuant to subsection (2)(b) such a transfer may occur on the Court’s own initiative.

3. These proceedings are not complex parenting proceedings and it had been determined that it was appropriate to fix the matter for a two day trial. While the matter had been identified as a Magellan protocol matter which required hearing in the Family Court, the issues that gave rise to that classification have since been abandoned by the parties and in my view it is appropriate to remove it from the Magellan protocol. In these circumstances, in my view, having regard to the matters set out in s 33B(6), it is appropriate for the matter to be transferred to the Federal Circuit Court. Accordingly, I also make orders to that effect.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 September 2015.

Associate: 

Date:  16 September 2015