Sarkozy & Sarkozy

[2024] FedCFamC1A 172

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Sarkozy & Sarkozy [2024] FedCFamC1A 172

Appeal from:

Sarkozy & Sarkozy [2024] FedCFamC1F 338

Appeal number:

NAA 148 of 2024

File number:

SYC 4887 of 2021

Judgment of:

AUSTIN, WILLIAMS & SCHONELL JJ

Date of judgment:

1 October 2024

Catchwords:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – Where two business days before the hearing of the appeal before the Full Court the appellant filed an application seeking disqualification of two members of the bench – Separate reasons provided by each judge – Where the appellant alleges apprehended bias of the presiding judge in the appeal – Where the appellant failed to articulate how an objective bystander could reasonably apprehend bias of the presiding judge –Application relating to the disqualification of the primary judge dismissed.

Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Kartinyeri & Anor v Commonwealth of Australia (1998) 156 ALR 300; [1998] HCA 52

Livesey v NSW Bar Association (1983) 151 CLR 288; [1983] HCA 17

Sarkozy & Sarkozy (No 2) [2024] FedCFamC1F 620

Number of paragraphs:

13

Date of hearing:

1 October 2024

Place:

Sydney

The Appellant:

Litigant in person

Counsel for the Respondent:

Mr Chegwidden

Solicitor for the Respondent:

Graham Chegwidden Solicitor and Barrister

Counsel for the Independent Children's Lawyer:

Mr Livingstone

Solicitor for the Independent Children's Lawyer:

Marsdens Law Group

ORDERS

NAA 148 of 2024
SYC 4887 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS SARKOZY

Appellant

AND:

MR SARKOZY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN, WILLIAMS & SCHONELL JJ
DATE OF ORDER:	1 OCTOBER 2024

THE COURT ORDERS THAT:

1.The appellant’s application for Order 1 within the Application in an Appeal filed on 27 September 2024, in so far as she seeks to disqualify Austin J from this appellate proceeding, is dismissed.

2.Intentionally omitted.

3.Intentionally omitted.

4.Intentionally omitted.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sarkozy & Sarkozy has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J

1. On 27 September 2024, two business days before the hearing of this appeal was listed before the Full Court on 1 October 2024, the appellant filed an Application in an Appeal seeking various forms of relief. However, these reasons deal only with that part of the appellant’s application to disqualify me from the proceeding for apprehended bias, which aspect of the application should be dismissed.

2. The appellant filed her appeal on 18 June 2024 and the appeal was subsequently listed for hearing on 1 October 2024.

3. Several days in advance of the hearing date, the appellant sent an email to the appeal registrar foreshadowing her objection to two of the three judges of the Full Court, one of whom was me, sitting on the appeal. Her email said in part:

   I note that the Appeal hearing is listed on 1 October 2024 before two judges who have previously dealt with significant aspects of the same case.

   …

   I request that the case is reallocated and that the Appeal hearing is postponed as I have identified the concern of a bias.

   …

   In all the circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the appeal.

4. The appellant then filed an Application in an Appeal seeking my disqualification but, because it was filed so close to the hearing fixed for the appeal, the interlocutory application was listed to the same date and heard before the appeal.

5. In support of the disqualification application, the appellant relied upon her affidavit filed on 27 September 2024 in which she relevantly said this:

   7.I wish to draw concerns about impartiality and, to bring to attention a perception of bias and conflict of interest which would undermine confidence in the Federal Circuit and Family court, as Justice Schonell and Justice Austin have had direct connection and interaction with the case, and have not volunteered a substitution for the Appeal.

   8.Justice Schonell was the Presiding Officer over the case on 27 October 2023 and 4 June 2024, and Justice Austin was the Presiding Officer over the case on 16 September 2024.

   9.Justice Austin commented in his judgment delivered on 16 September 2024 that the welfare of the children is a significant but not paramount consideration, and this does not provide confidence in the Appeal.

   10.In all the circumstances, a fair-minded lay observer ‘might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question’.

   11.The possible conflict has not been identified by the Federal Circuit and Family court at the allocation stage, and I request that the case be reassigned so as to avoid issues of bias in the Appeal, and allow time for a more competent case to be presented.

6. The appellant conspicuously failed, either in her evidence or by submission, to articulate how an objective bystander could reasonably apprehend my bias. The bare assertion of her own apprehension of bias is not an explanation of its existence and her mere expression of “concern” is meaningless because concerns can be spurious even if genuinely held. Litigants can no sooner choose their judges than judges can choose their cases, so disqualification applications should not be granted without good reason (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348). It would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt an approach that he or she should automatically disqualify him or herself whenever demanded or requested by one party to do so (Livesey v NSW Bar Association (1983) 151 CLR 288 at 294; Kartinyeri & Anor v Commonwealth of Australia (1998) 156 ALR 300 at 302).

7. The appellant’s contention that I have previously dealt with “significant aspects” of her case is rejected for inaccuracy. My “direct connection” with the litigation of which she speaks was limited to the recent dismissal of her application to stay the appealed orders pending the determination of this appeal (Sarkozy & Sarkozy (No 2) [2024] FedCFamC1F 620). However, the dismissal order followed a decision made on the papers in chambers in the parties’ absence, consonantly with the appellant’s request. No question of the appellant’s credibility was at stake and there was no need to consider the merit of her grounds of appeal. The stay application was refused solely because it lacked any utility.

8. The specific comment about the welfare of children, with which the appellant is apparently concerned, was part of the recitation of legal principles governing stay applications when an appeal is pending. The commentary was in these terms:

   17. For appeals brought from parenting orders, the welfare of the children is a significant but not paramount consideration. Residential changes should desirably be avoided. Consideration should be given to the adequacy of the children’s present circumstances and the likely delay before the appeal is heard and determined. 

9. Against that background, it is impossible to see how the principles of apprehended judicial bias could be properly engaged (Ebner v Official Trustee in Bankruptcy at 344–345).

10. Subject to the disposition of the appellant’s application to also disqualify Schonell J from the appeal, the remaining aspect of the appellant’s application to adjourn the hearing of the appeal should be determined by the Full Court.

    WILLIAMS J

11. I have listened to the reasons for judgment delivered by Austin J in relation to the appellant’s application to disqualify his Honour from hearing the appeal.

12. I agree with the reasons delivered by his Honour and the proposed order his Honour intends to make, which is that the Application in an Appeal filed 24 September 2024 in so far as it relates to the disqualification application, should be dismissed.

    SCHONELL J

13. I too agree with the reasons delivered by his Honour and the proposed order that the application that he be recused should be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justices Austin, Williams & Schonell.

Associate:

Dated:       4 October 2024