Sawer and Hugh (Disqualification)
[2010] FamCA 373
•17 May 2010
FAMILY COURT OF AUSTRALIA
| SAWER & HUGH (DISQUALIFICATION) | [2010] FamCA 373 |
| FAMILY LAW – COURTS AND JUDGES – Application for disqualification of judicial officer – apprehended bias |
| Family Law Act 1975 (Cth) ss 43, 44, 70NBA, 117 Family Law Rules 2004, r.9.05. |
| Coleman & Hindle and Ors (Disqualification) [2010] FamCAFC 29 (Unreported, 5 March 2010) Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Johnson v Johnson (No 1) (Bias Issue) [1999] FamCA 369; (2000) FLC 93-039 Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342 Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072 Strahan and Strahan [2009] FamCAFC 204 In the Marriage of Kohn (1977) 30 FLR 175 LAC and TRF and LKL [2005] Fam CA 158 Brown & Brown (1998) FLC 92-822 C and C [2006] FamCA 258 Doyle & Lombardi and Anor (Costs) [2009] FamCAFC 201 Oxenham & Oxenham [2009] FamCAFC 167 |
| APPLICANT: | Mr Sawer |
| RESPONDENT: | Ms Hugh |
| INDEPENDENT CHILDREN’S LAWYER: | David Walker & Co |
| FILE NUMBER: | LNC | 511 | of | 2008 |
| DATE DELIVERED: | 17 May 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 12 May 2010 |
REPRESENTATION
| APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Lewis |
| SOLICITOR FOR THE RESPONDENT: | Temple-Smith Partners |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | David Walker & Co |
Orders
That the father’s application in a case filed 29 April 2010 be and is hereby dismissed.
That the father pay the mother’s costs of and incidental to the said application, fixed in the sum of $928 and to be paid by 16 July 2010.
That the father pay the costs of the Independent Children’s Lawyer of and incidental to the said application, fixed in the sum of $1,600 and payment to be made by 16 July 2010.
IT IS NOTED that publication of this judgment under the pseudonym Sawer & Hugh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: LNC 511 of 2008
| MR SAWER |
Applicant
And
| MS HUGH |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
By application filed 29 April 2010, the father seeks inter alia my disqualification from further hearing or determination of proceedings.
The substantive proceedings in this matter concern the children J, born in May 1996 (“J”), and the twins, E and H (“the twins”), born in January 1999. The twins reside with the mother pursuant to orders of the Court. J ran away from the mother’s home in the middle of last year and lives with the father. Currently there are no orders about parental responsibility of J or with whom he should live.
There are parallel applications pending. First, the paternal grandparents seek orders against the mother that they spend time with the twins. Whilst the twins are with them, they will spend time with the father and J. Second, in the context of contravention proceedings brought by the mother against the father, the mother seeks a variation of parenting orders and injunctions so as to prevent the father and his partner, Ms B, from attending at or approaching the twins at their sporting or school events.
Historically, the father has been a participant in the contravention proceedings and the consequential application to vary injunctions directed to the attendance by him and Ms B at functions attended by the children. Those proceedings are brought pursuant to s.70NBA(a)(ii), which provides that the Court can vary a primary order if proceedings in relation to the primary order are before the Court and the Court finds that a person has contravened the order. The primary order was one of various orders made by me on 12 March 2009, relevantly it provided as follows:-
5.That until further order the entitlement of the father to communicate or spend time with the children or any of them or to have the children or any of them live with him be reserved with the effect that there is no enforceable entitlement of the father to communicate or spend time with the children or have the children live with him.
6.That until further order the father be prohibited from communicating with the children by placing any call to a mobile telephone service in the possession of the children or any of them.
7.That until further order, pursuant to s68B of the Family Law Act, the father be prohibited from contacting the mother and the children or any of them or from approaching at or within two hundred (200) metres of the mother’s residence at [R] or the children’s schools AND IT IS NOTED this order is made for the personal protection of the mother and the children and has attached to it a Power of Arrest pursuant to s68C of the Act.
On 17 March 2010 I made orders which temporarily extended the operation of the injunctions to preclude the father and his partner from attending the twins’ school events which are conducted away from the school grounds and from attending sporting events such as their Saturday club basketball competition. The orders were holding orders to operate until the Court recommences sitting in this matter, in the week of 24 May 2010, when I will hear evidence (if any further evidence is sought to be called) and submissions. The father has lodged an appeal against those interim orders and I have refused his application for a stay of the operation of the orders.
The parties to the parenting proceedings relevant to the twins are the paternal grandparents, the mother and the Independent Children’s Lawyer. Except for an appeal against my decision on 17 March 2010, the father has no application before the Court in relation to any child. The father has not been a party to or participated in the parenting proceedings under Pt.VII since March 2009 when he abandoned his own application.
In the hearing of the contravention proceedings, senior counsel who appeared for the father informed the Court that the father would not engage in any proceedings nor pursue orders other than those sought by consent. The father says that he will participate in the s 70NBA proceedings if they are heard by a judge other than myself. I understand that is also the case with the paternal grandparents’ proceedings although, absent him seeking or opposing orders or being a witness, there is no basis for his participation. I will proceed on the basis that, as matters currently stand, the father may participate in the s 70NBA application on 24 May 2010, but that he is not currently involved in the proceedings between the paternal grandparents and the mother.
The father’s application, filed 29 April 2010, seeks the following orders:
1.That Justice Bennett be dismissed from all duties in the matter of [Sawer & Hugh] LNC 511 of 2008 SA 24 of 2010.
2.That the uncontested application to stay which was heard on 23 and 24 April 2010 be upheld pending the appeal SA 24 of 2010.
3.That a true transcript of the reasons for judgment as read out by Justice Bennett of 17 March 2010 be Made available to the parties forthwith.
4.That a new judge be appointed to hear the matter set down for hearing on 17 May 2010 as soon as possible.
5.That the parties be directed to have a conciliation conference before the first hearing date.
The father is self-represented and appears on his own behalf. I permitted the lawyer for the paternal grandparents, Ms Gibson, to sit by the father at the bar table to offer support. The paternal grandfather was also present in court.
Mr Lewis, of counsel, appeared for the mother.
Mr Walker, solicitor, appeared as the Independent Children’s Lawyer.
The father relied upon his affidavit sworn on 16 April 2010, the affidavit of his partner Ms B sworn 15 April 2010[1] and the affidavit of Charmaine Gibson sworn 22 April 2010. The father said that he placed reliance on all of Ms N’s reports. The father also relied upon a memorandum dated 28 September 2009 from the Department of Health and Human Services. The father relied on two exhibits being:-
a)A letter[2] dated 16 March 2009 from the father’s partner, Ms B, to the Commonwealth Attorney General headed “Her Honour Justice Victoria Bennett; Misappropriation of Federal Legal Aid Funding”;
b)An email[3] dated 6 May 2010 “For the attention of Judge bennet (sic)”.
[1] Annexure “F” to father’s affidavit sworn 16 April 2010.
[2] Exhibit “F1”
[3] Exhibit “F2”
The mother did not file a response or any evidence and did not seek to adduce evidence. Counsel for the mother sought that I dispense with the operation of r.9.05 of the Family Law Rules 2004 (Cth) so as to permit his client to oppose the father’s application and seek costs. The father objected to the absence of responding documentation. He contended that, absent responding documentation, the mother should have no right to be heard and that, absent filing a response to an application in a case, Mr Lewis’s participation was tantamount to coming along to court to collect costs, or an order for costs.
Rule 9.05 of the Family Law Rules 2004 (Cth) (‘FLR’) requires that a party seeking to oppose an application in a case must file a response. I am satisfied, however, that the father is not disadvantaged by the mother’s lack of documentation in the particular circumstances of this case. This is a disqualification application. It is largely a matter for the Court considering the applicant’s evidence and submissions. As the mother does not seek to adduce evidence and seeks only a dismissal of the father’s application and costs, I can see no prejudice to the father in the Court dispensing with the operation of r.9.05 and permitting the matter to proceed. Indeed, it is consistent with the principle of proportionality and the purpose of the Rules of Court to “ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case.”[4] I therefore dispense with the operation of r.9.05 FLR.
[4] Rule 1.04 FLR 2004
The Independent Children’s Lawyer (“ICL”) filed a response seeking that the father’s application be dismissed and that the father pay the ICL’s costs of and incidental to this application in a case. He did not seek to adduce evidence. He tendered as an aide memoir a chronology of significant dates (Exhibit “ICL1”) and a faxed copy of “Guidelines for Independent Children’s Lawyers” published by CCH in the Australian Family Law Handbook Practice Directions.[5]
[5] Dated 6 December 2007, at [26-120]
On 5 May 2010, the father filed an application seeking the dismissal of the ICL and the appointment of a new ICL. That matter was listed only for mention.
Disqualification application
The father seeks an order “that Justice Bennett be dismissed from all duties in the matter of [Sawer & Hugh] LNC 511 of 2008 SA 24 of 2010.” The proceedings in LNC 511 of 2008 encompass the s 70NBA proceedings and the application of the paternal grandparents. The proceedings in SA24 of 2010 is the father’s appeal against my order of 17 March 2010. That appeal lies to the Full Court of this Court, not to me.
A recent decision of the Full Court, Coleman & Hindle and Ors (Disqualification),[6] sets out the relevant legal principles in relation to judicial bias in the following terms:
[6] [2010] FamCAFC 29 (Unreported, 5 March 2010, Finn, May & Thackray JJ)
36.The law with respect to judicial bias is well settled by the High Court. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, the plurality held at 344-349:
6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. It is convenient to refer to it as the apprehension of bias principle.
7.The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
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.
...
The principle to be applied
19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20.This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21.It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22.The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23.Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
24.In Webb v The Queen, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference.
(footnotes omitted)In an earlier decision of Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, an appeal from the Full Court of the Family Court of Australia, the High Court considered whether a judge erred in declining to disqualify himself for apprehended bias resulting from a comment made by him during the hearing.
The Full Court of the Family Court affirmed his Honour’s decision, and emphasised that offending remarks “need to be read as a whole and in context”: Johnson v Johnson (No 1) (Bias Issue) [1999] FamCA 369; (2000) FLC 93-039 at 87,618.
The plurality of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), in dismissing the appeal said at 492-493:
10.The disposition of this appeal depends upon the application of principles which are well established and which neither party disputed. The contention was that there had been a departure from those principles which the Full Court of the Family Court had wrongly failed to correct, thus calling for the intervention of this Court, if only to emphasise the importance of intermediate courts applying these principles. In these circumstances it is neither necessary nor appropriate to undertake any detailed analysis of the principles or their basis.
11.... It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether 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.
12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public 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”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (footnotes omitted, emphasis added)
I would also make reference to the comments of Mason J in Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342, where he said at 352:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. (footnotes omitted)
Self-represented litigants
I have regard to the principles relevant to procedural fairness and self-represented litigants, which were outlined by the Full Court in Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072.
Recently, in Strahan and Strahan [2009] FamCAFC 204, the Full Court endorsed the two step process in Ebner’s case. Their Honours reiterated that judges have a duty to sit and to not accede too readily to suggestions of the appearance of bias.
The father’s case is that I will not bring an impartial or independent mind to the determination of proceedings because I am or appear to be biased. The father identified the following aspects of bias:-
a)actual bias;
b)perceived bias;
c)interest; and
d)conduct.
The mother and the ICL each oppose the application for disqualification, me standing aside from the further hearing of the case or the assignment of the matter to another judge. Each appeared to have input into any decision which may disrupt this case recommencing in the week of 24 May 2010.
Step 1: Matters giving rise to apprehended and /or actual bias
The father’s affidavit in support of his application sets out that the grounds of his appeal are that:
a) Justice Bennett is biased, incompetent, not focusing on the children as paramount and consequently the penalty was manifestly excessive.
b) My appeal alleges Justice Bennett’s incompetence.
According to the father, since lodging his appeal he believes “Justice Bennett’s incompetence is continually being proven via prejudice through her associate, via prejudice through delaying tactics and during the hearing of the stay.” The father did not integrate the evidence upon which he relied into the alleged grounds of bias. However, Exhibit “F2” may have some relevance here because, whilst addressed to me, the father refers to my associate’s “blunders” (his words not mine), her refusal to deal with him and a number of proverbial ‘back flips’. The email communication reads as an attempt at a submission in support of this case and is far from the regular administrative communication permissible between court staff and litigants or those who represent them. It is a wholly inappropriate communication and I am not at all surprised that it was never shown to me. Leaving to one side that the email should never have been sent, in my view, the contents do not disclose any principled basis for me to disqualify myself.
The father’s affidavit has annexed to it a series of letters which I will deal with below in relation to another aspect of his application. It is sufficient to note, on the issue of bias, that the father refers to a letter from my associate which contained an inaccuracy as to the hearing date. On 19 April 2010, my associate sent a letter to the father advising of a hearing date for his application for a stay pending appeal on Wednesday 22 April 2010.[7] The 22 April 2010 was in fact a Thursday. In further correspondence on 21 April 2010 my associate corrected the error.[8]. The day of the week was incorrect but the date of 22 April 2010 was correct. I assume that the father’s point is that he is in some way prejudiced by the error of my associate. I am not satisfied that he was prejudiced or that there is anything in the father’s submission on this point which indicates that I may not be impartial.
[7] Affidavit of the father sworn and filed 29 April 2010, Annexure “E”.
[8] Affidavit of the father sworn and filed 29 April 2010, Annexure “F”.
At the hearing of this application, the father further alleged that my consideration of the further listing of the case indicated that I had a pre-determined view and did not bring an open mind to my determination of his disqualification application. This is also apparent from Exhibit “F2”. That is not the case. I reminded the father that unless, or until, I am disqualified either by my own order or an order of the Full Court to which an appeal from my decision lies, I would continue in the case. It is implicit that, if I accede to the father’s application for disqualification, other listing arrangements will have to be made at that time. My discussion of future hearing dates was not indicative of having already made up my mind about this application.
In discussion about the test in Australia in determining whether a judge is disqualified by reason of the appearance of bias as whether 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, the father asked me to hear from the paternal grandfather in his capacity as “a fair minded lay observer”. I declined to do so and further declined the father’s next suggestion to ask the security guard who was seated in court as to what he thought. I explained to the father that “lay observer” was distinct from “lay participant”. A hypothetical reasonable observer of the judge’s conduct is used to emphasise that the test is objective, and is not based purely upon the assessment of one judge by a number of his colleagues, or by an actual observer seated in court. Most significantly, the application of the test does not involve the Court taking evidence from the postulated lay person. I mention this discussion because the father then expanded his reference to bias to include my opinion that the paternal grandfather was not “fair minded” or “reasonable”. The father’s submissions in this regard are misconceived.
Various alleged grounds of bias may be gleaned from the father’s affidavit.
On the first application in this case which came before me in March 2009, the father deposes to “hearing and receiving a vicious attack from the new judge for attending by phone link, and then suffering an un-checked character assassination” which resulted in him withdrawing his parenting and costs applications. The father could not refer me to the transcript. He submitted that he relied upon the principle that, where no transcript is available, evidence of a person present at the time will suffice. I am not satisfied that the transcript is unavailable. In any event, there was nothing particular in his evidence. It did not set out the words from which bias may be apprehended. I find that there is no basis to this ground.
I made orders on 12 March 2009 that the father describes as destroying “a status quo of some two years, severing all contact with my children.” According to the father, the orders were “described by several senior practitioners as unprecedented in the harshest they’d ever seen in their career.” It appears from Exhibit “F1” that at least one of the “senior practitioners” was the father’s partner, Ms B. Benjamin J had adjourned proceedings to 12 March 2009 and made an order that the father attend personally on that day. He did not attend. On the afternoon of 11 March 2009 an application was sent to the Court for him to appear electronically. It was an inappropriate course because, in the event it was not granted, neither he nor his lawyer would be at Court. The basis of the application was that he was not able to pay for a lawyer to attend Court in Hobart. That lawyer was Ms Gibson who now swears an affidavit in support of his case in the s 70NBA proceedings. A number of orders were made on 12 March 2009 and I delivered Reasons for Judgment. The father did not appeal any of the orders made and neither did any other party. The father has not made out a case on the evidence of the proceedings on 12 March 2009.
A distinction must be drawn between unfavourable outcomes as opposed to outcomes which can be reasonably said to have been obtained irregularly or which are tainted with bias. The remedy for the latter is an appeal. Here, the father has waited for more than a year and now applies for the disqualification of the judicial officer on the basis of general, rather than specific, criticisms and grievances. I am satisfied that the hearing which gives rise to this complaint is an unfavourable result which the father, for whatever reason, chose not to appeal.
Step 2: Conduct in proceedings from which bias can be inferred
In submissions the father contended that bias can be inferred from conduct. He submitted that, since March 2009, I have made a number of decisions and have published my reasons for decision to the public at large. He further submits that it is in my interest to ensure that the final outcome is consistent with any interim disposition or, more precisely, is not indicative of my earlier decisions having been incorrect. In essence, the father contends that I will manipulate the result on a final disposition to avoid myself being embarrassed by any of my interim dispositions. I reminded the father that cases are published in anonymised form. However, he says “everyone knows who the case is about”. He contends that bias can be inferred from the fact that I will not allow myself to be in a position where I “have egg on my face”.
The father’s submission ignores the fact that all interim dispositions of this matter to date have been made without evidence having been tested or any findings of fact other than those which the circumstances of the matter required I make. In that respect, the interim determinations are heavily qualified. The case has not been thoroughly assessed on the basis of tested evidence (the opportunity for which should arise on 24 and 25 May 2010 and thereafter). It is possible that an interim issue may have been decided in another way if the father had participated constructively in the interim proceedings. However, as matters stand, my earlier decisions do not set the kind of “precedents” which the father seems to fear.
The final hearing is part of a continuum. It is largely a prospective enquiry and assessment by the Court of the benefit to the children of having a meaningful relationship with members of their family, including the father, and what is necessary to be done to protect the children from any physical or emotional abuse. The final hearing has a forward-looking perspective. Past conduct by the parties and other relevant persons are frequently considered to be valuable indictors of future conduct. However, the future hearings are not vantage points from which to assess per se the propriety of earlier decisions of the Court.
It would be an error for the father to approach the proceedings on 24 and 25 May 2010 (and thereafter) as an opportunity to criticise the Court or the process. It should be a constructive enquiry about what is in the best interests of the children having regard to the benefit that they will derive from having a meaningful relationship with their parents and others and the need to protect them from physical or emotional harm.
The fact that the father chose not to appeal any of the interim decisions or to participate in his parents’ application will also make it difficult, indeed irrelevant, for him to argue that the interim decisions are incorrect or can be impugned.
Step 3: An interest in proceedings from which bias can be inferred
The father resisted my requests to make submissions under headings. He asked not to be interrupted. The consequence is that his submissions cannot be linked readily to particular aspects of bias. The categories of bias are said to be overlapping so the father’s lack of specificity is not fatal. I will do the best I can with what the father said.
In submissions the father contended that bias can be inferred from my interest in the proceedings. I think that the father’s contention is that I have treated him unfairly in matters of court procedure because I dislike him. I interpreted the gist of his submissions to be something like - “I don’t like you and you don’t like me but that does not permit you to treat me unfairly.”
The father submitted that, in allowing other parties to oppose his application for a stay and/or this application without having filed a formal response was a failure to observe a duty to him, as an unrepresented litigant, to explain departures in usual procedures such as, for example, calling a witness out of turn. The father’s submission in this regard is misconceived. If he wishes to challenge my decisions to dispense with the operation of r.9.05 FLR, he may do so by appeal. Before me, he did not articulate any prejudice suffered by him.
The gravest misconception by the father is, however, his assumption that I do not like him or that he should be “liked”. The judicial process and the exercise of my discretion is not informed by goodwill or disaffection for the father or for those who from time to time have represented him. The father’s presentation has a heavily egocentric quality to it. He refers to his anguish, his heartache, the suffering which led him to shoot himself “in the guts” (his words) and the injustice that led him to collapse outside court. From that perspective it is probably difficult for the father to appreciate that the proceedings are about the children rather than about him. Fortunately, the Court remains focussed on the children and, to that end, is not unduly distracted by impertinence and insult. If this was not the case, a litigant could thwart the rights of the children and the other party to a determination of justiciable issues simply by insulting the Court until there were no more judges left to hear the matter.
I appreciate that a poorly behaved litigant is not necessarily a poor parent.
Step 4: Logical connection
I have regard to the complaints of the father as outlined above and to the general sense of grievance he carries. Whilst I have not mentioned each and every complaint the father makes about me having presided over his case, I am mindful that he does not think that he has had a fair go. However, the father’s subjective view is not the test. The test is whether a fair-minded lay observer in court might reasonably apprehend that I may not bring an impartial and unprejudiced mind to the resolution of the issues. It is an objective test. The circumstance that the father considers that I am biased or have prejudged issues is in itself not sufficient. It is necessary for him to show that the reasonable observer might reach such a conclusion.
Having regard to all matters and to the father’s presentation in general, I am not satisfied that the father has demonstrated that I have done other than decide the proceedings on the merits. I am not satisfied that, by reason of conduct or prejudgment, a fair-minded lay observer might (not would) reasonably apprehend that I may not bring an impartial and unprejudiced mind to the resolution of the issues.
Conclusion on bias
I have decided that the father has failed to make out his allegation of bias. However, that is not the end of the matter. Lack of bias is not necessarily decisive. Whilst I am satisfied that the application is misconceived I could recuse myself if, for instance, there was no harm or prejudice to any party in doing so. I have considered whether it would be preferable for all parties for me to stand aside so as to avoid the possibility of a subsequent appeal at which the Full Court finds in favour of the father on the issue of bias and everything has to be heard again. However, the persons whose positions stand to be affected, being the mother and the ICL, did not suggest that I do so.
I am satisfied that, if I were to stand aside now, the interests of the children would be severely compromised. The hearings on 24 and 25 May 2010 could not proceed because there is no other judicial officer available to hear them. In proceedings to which Div.12A of Pt.VII applies, continuity of judicial officer is something that litigants and children are entitled to expect unless it is not reasonably practicable. This is not such a case.
It is my duty to determine cases where I have jurisdiction to do so and the Court’s powers are regularly invoked. This is such a case.
As the authorities make clear, a judge is no more entitled to choose his or her cases as a litigant is entitled to choose his or her judge.
For the aforementioned reasons, I will not accede to the father’s application that I disqualify myself from hearing further proceedings or otherwise stand down from future proceedings.
This determination does not preclude the father raising the issue of bias as part of an appeal against any orders which I subsequently make when matters recommence, in Hobart, in the week of 24 May 2010 or thereafter. In other words, it is open to the father to participate in the s 70NBA proceedings and/or in the paternal grandparents’ application later this month and then contend, on appeal, that I should have disqualified myself now.
The father’s application for “the uncontested application to stay which was heard on 23 and 24 April 2010 be upheld pending the appeal SA 24 of 2010.”
The father acknowledged that his remedy in relation to my decision to refuse his application for a stay is an appeal. Accordingly, he did not pursue this application before me.
The father’s application that “a true transcript of the reasons for judgment as read out by Justice Bennett of 17 March 2010 be made available to the parties forthwith.”
The father “requires” a true transcript of my reasons for judgment delivered on 17 March 2010.
I delivered extempore reasons on 17 March 2010. I returned to my home Registry of Melbourne on 18 March 2010. I was then absent from my home Registry and the Court from 19 March to 14 April 2010. I settled my reasons upon my return to the Court. The reasons were published and bear the date
19 April 2010. Correspondence on the Court file indicates that the Reasons for Judgment were sent to each party, by express post, and by facsimile on 20 April 2010.
The father annexes the following letters and emails to his affidavit:
· Letter from the father to the Regional Appeal Registry dated 14 April 2010 stating that he has filed an appeal, has not received a transcript of my Reasons for Judgment in accordance with paragraph 14 of my orders made 17 March 2010, and requesting a reason as to why this order has not been complied with.[9]
· Letter from the father to my associate dated 22 April 2010 requesting the ‘actual transcription’ of my Reasons for Judgment on 17 March 2010 ‘as a matter of urgency’.[10]
· Letter from the Regional Registry Manager for Victoria and Tasmania to the father dated 21 April 2010 requesting that the father refrain from contacting my associate in future.[11]
· Email from Registry Services Team Leader, Launceston, to the father dated 29 April 2010 stating that his email dated 27 April 2010 has been forwarded to the Regional Registry Manager and the Southern Appeals Registrar. The father’s email states that contrary to the orders I made on 17 March 2010, he has not been provided a “transcribed copy of the reasons” given in court on 17 March 2010, but rather has been provided with “carefully edited reasons” in an “effort to pervert justice.” The father further complains that there was delay in providing him with the transcript which was provided; that he requested and was not given a timeframe within which my reserved decision on his application for a stay would be provided; that there was delay in allocating a hearing date for the stay application. The father states in the email that he intends “to rely on this correspondence, to further proving incompetence in my appeal”, and notes that he takes offence and objection to the letter from the Regional Registry Manager requesting that he refrain from contacting my associate.[12]
· An email from my associate to the father dated 21 April 2010 apologising for the error in her facsimile regarding the listing of the father’s application, stating that a letter from my associate to the father dated 19 April 2010 advising that the date for hearing the father’s application has been listed for Wednesday 22 April 2010.[13] The 22 April 2010 was in fact a Thursday.
· An email from the mother’s solicitor to the father dated 21 April 2010, attaching a letter from my associate dated 21 April 2010 which advises that the date for hearing the father’s application has been listed for Thursday 22 April 2010.[14]
· The incorrect day of Wednesday was stated in the latter but the date of 22 April 2010 was correct. The email confirms, in response to the father’s request for the ‘actual transcript’ of my reasons delivered on 17 March 2010, that the reasons for judgment have been provided to the father in the correct format.[15]
[9] Affidavit of the father sworn and filed 29 April 2010, Annexure “A”.
[10] Affidavit of the father sworn and filed 29 April 2010, Annexure “B”.
[11] Affidavit of the father sworn and filed 29 April 2010, Annexure “C”.
[12] Affidavit of the father sworn and filed 29 April 2010, Annexure “D”.
[13] Affidavit of the father sworn and filed 29 April 2010, Annexure “E”.
[14] Affidavit of the father sworn and filed 29 April 2010, Annexure “F”.
[15] Affidavit of the father sworn and filed 29 April 2010, Annexure “G”.
The father places reliance on the part of my order made 17 March 2010 which required that “my reasons be transcribed and, when transcribed, a copy be made available to the parties”. On reflection, it is perhaps inapt expression not to have included the fact that the reasons would be settled before being published, particularly having regard to the father as a litigant in person.
An appeal lies from a judgment, not from reasons. Insofar as the father alleges that I made “derogatory” remarks about him on 17 March 2010, he is incorrect. He provides no detail or particulars or extracts. To the extent that such remarks were allegedly made in the running of the case, as opposed to during my reasons for decision, the father should have obtained transcript and referred to specific passages. To the extent that such comments were allegedly made in my reasons, the father should have provided particulars from his memory. If he lacks recollection, the paternal grandfather and, as best I recall, the lawyer for the paternal grandfather were each in Court on 17 March 2010 as well as at this hearing.
The Court’s Reasons for Judgment have been provided in the appropriate form. The father’s application for “a true transcript” is misconceived.
The father’s application that at a new judge be appointed to hear the matter set down for hearing on 17 May 2010 as soon as possible.
I have dealt with this in my conclusions on the disqualification application.
For the sake of completeness, I mention that the further hearing has been moved from 17 to 24 May 2010. The alteration in hearing date is by reason of judicial availability. A matter under the Family Law (Child Abduction Convention) Regulations 1987 was required to be moved from 24 May 2010 to
17 May 2010 so a very significant witness in that proceeding could be cross examined in person, rather than across international times zones and by electronic means. The Court had ascertained at an earlier hearing of this matter that neither week conflicted with circuit work for the practitioners or commitments of relevant parties. At the hearing of this application, the father seemed disconcerted by the change in hearing date, but I do not know on what basis. So that he not be under any misapprehension that the date was changed on a whim or to maximise any inconvenience to him, I provided the explanation just stated.
The father’s application that the parties be directed to have a conciliation conference before the first hearing date.
The father wants a mediation with the mother, the ICL and, presumably, the paternal grandparents prior to the recommencement of the matter in the week of 24 May 2010 or prior to another judge assuming responsibility for hearing this matter. Given that I will not stand aside from the matter, the latter circumstance is irrelevant.
On 17 March 2010, the father indicated that he wanted the other parties to have a settlement or conciliation conference about parenting issues but made no formal application. Neither the mother’s counsel nor the ICL favoured or would commit to a conference with the father.
The father clarified that he seeks a conciliation about:-
• child support;
• the issue of the children spending time with him;
•the issue of the twin girls spending time with the paternal grandparents; and
• “all matter ambiguous”.
The father explained that he did not require the mother to attend any conciliation, it would be sufficient for her lawyer to attend. In the context of the father’s application that “the parties” be directed to conciliate, neither of the other parties would agree to this occurring or could identify any merit to the proposition. The mother’s position was that all matters required a judicial determination. The view of the ICL was that a conciliation is unlikely to resolve the matter, and “frankly I don’t think a conference can work. There has been an intractable conflict in this matter from the beginning.”
I have considered whether, notwithstanding the negative stance of the mother and the resigned stance of the ICL, I ought to compel “the parties” to conciliate.
The first issue to identify “the parties”. The father informed the Court that he and his partner, Ms B, may participate in the completion of the variation application under s 70NBA but said that he will not participate in the parenting proceedings between the mother and the paternal grandparents unless those proceedings are heard by a judge other than myself. Earlier in these reasons, I referred to the abandonment by the father in March 2009 of any parenting application before the Court and the indication from his then counsel, Mr Dixon SC, in March 2010 that he will not seek any order from this Court other than an order to which all parties consent. It is entirely possible that the father will not bother to be an active participant in any proceedings before the Court. It is therefore not appropriate, in my view, to compel other parties or interested persons, who pay for representation, to conciliate a cause of action in which the father will not even commit himself to participate.
The next issue in relation to the identification of the parties is that the father has a pending application for the removal of Mr Walker as the ICL. I asked the father if he still proposed to proceed with that application to which he replied “yes 150 percent”. The ICL submitted, in my view correctly, that any conciliation would be futile until after the father’s application for his removal has been determined. That application has been set down for hearing on Tuesday 18 May 2010 at 9.00 a.m. It will be conducted by video link. I have allocated the matter one hour of which the father can take up to 30 minutes and each other party can take up to 15 minutes. Given that my defended matter starts at 10.00 a.m., I am likely to reserve my decision or at least my reasons for decision. Regardless of other factors, it seems to me to be impracticable to convene any conciliation conference prior to the recommencement of the proceedings on 24 May 2010.
Finally, in relation to the parties, I was not informed of who the parties are in the pending child support proceedings.
I accept the benefits of conciliation and that the principles behind conciliation are one of the cornerstones of our jurisdiction. I am mindful of the stated principles to be applied by the Court generally including, as set out in s 43(1)(b) and (d) of the Family Law Act 1975 (“the Act”), to have regard to the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children and to the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.
I also have regard to the emphasis in our legislation to family dispute resolution and the principles underlying the object of Pt.VII including that, except when it is or would be contrary to a child’s best interests, parents should agree about the future parenting of their children[16]. However, conciliation is not an opportunity to state a view already stated, much less to harangue or wear down a party. If the mother and the ICL have no interest or do not wish to conciliate with the father, I do not consider that it is in the best interests of any of the children to make them do so. It is also my view that participation by the children in any conciliation process would place an intolerable and unacceptable burden on their young shoulders.
[16] S60B(2)(d)
I will not accede to the father’s application that “the parties” be directed to conciliate.
My refusal of the father’s application for conciliation does not stop him, or those who advise and support him, from putting forward an offer or proposal for consideration by the mother and the ICL. He will just have to formulate his position without input from them and not be offended if they don’t reply.
Costs
I took submissions in relation to costs.
The father’s position is that, if he is successful with his application, he seeks costs but could not tell me what they would be. He opposes a costs order being made against him. His comments paint the mother’s counsel and the ICL as opportunistic in coming to court to oppose his application, without evidence, and then seeking costs.
The mother seeks costs fixed in the sum of $928 in accordance with Item 203 of the scale of costs in the FLR 2004 referrable to a short matter.
The ICL seeks costs in the sum of $1,603 made up as follows:-
e)Drafting response $22.50 (Items 101 & 102)
f)Preparation of 2.5 hours $578 (Items 104 &108)
g)Appearance $600 (Item 203)
h)Travelling from Devonport to Hobart $90
Section 117(1) of the Act contains the general rule that each party to proceedings under the Act shall bear his or her own costs. The object of the rule is to ensure that spouses are not deterred from bringing or maintaining legitimate applications for fear of incurring an intolerable financial burden if they lose.[17] However, pursuant to s 117(2), the Court retains a discretion to make an order for costs if it is of the opinion there are circumstances that justify that course and it would be just to do so.
[17] In the Marriage of Kohn (1977) 30 FLR 175 at 177.
In considering whether to make an order the Court must have regard to the matters set out in s 117(2A). The weight to be attached to any of the considerations in sub-s (2A) is wholly discretionary. While no single factor out-ranks any other, there is nothing to prevent one or other of them from being the sole foundation for a costs order.[18] As Kay J observed in Brown & Brown[19] :
"In many cases there will be an outstanding feature . . . that makes an order for costs appropriate, a feature which so dominates the scene that it can outweigh any of the other s 117(2A) considerations".
[18] LAC and TRF and LKL [2005] Fam CA 158 at [41].
[19] (1998) FLC 92-822 at 85,347.
In considering what (if any) order should be made under s 117(2), I am required to take into account such of the matters set out in s 117(2A) as are relevant.
The mother is employed and, the Court was informed, is not in receipt of assistance by way of legal aid. I accept that the mother has incurred costs.
The father informed the Court that he has to pay his partner’s legal firm for “printing”. I ought not consider that any assistance is free of charge. In the context of allegedly not having access to the FLR, the father said that he does not get any help or assistance from his partner for these proceedings. The father says that he has just paid $8,000 to Mr Dixon SC for his appearance in March 2010. The father describes liabilities hanging “over my head” of $9,200 in costs and a fine from the proceedings in March 2010, a potential liability for costs of this application of about $2,500 and that he is being “chased in the magistrates’ court for $20,000” in child support. The father said that the previous proceedings between himself and the mother caused him to lose his house and very successful business and to pay $150,000 in legal costs and $136,000 to the mother. He says that he has been unemployed since he lost his house and business. He says he is “unable to pay” costs which he calculates to be the equivalent of $40,000 in pre-tax earnings and that “there is no advantage to the two children if I pay costs”.
As I have previously held, not being able to pay costs is different to not wanting to pay costs. Even if the father is unable to pay costs, impecuniosity is not a defence or protection against an order being made under s 117(2) provided that all relevant factors are considered.
In the context of s 117(4), I have considered whether the father would suffer financial hardship if he has to bear a proportion of the costs of the ICL. The father denies that his partner, Ms B, will meet any cost liabilities incurred by him. He says that he cannot pay costs. Section 117(4)(b) qualifies the relevant hardship as “financial hardship”. There are no factors to take into account. In the context of granting leave to a party to commence property proceedings out of time, s 44(4) incorporates a “hardship” clause which has been authoritatively stated as meaning significant hardship[20]. I appreciate that in the context of s 44(4), the hardship is longer lasting and more permanent because it relates to the ability to institute proceedings under Part VIII, not the imposition of a responsibility to pay $2,500 in costs. I am satisfied that hardship in the context of s 117(4) must also be significant. It is not enough to be transitory, temporary deprivation. In C and C [2006] FamCA 258, Warnick J ordered that the father pay the costs of the ICL because he was of stronger financial circumstances than the mother. In Doyle & Lombardi and Anor (Costs) [2009] FamCAFC 201 Coleman J ordered that a grandmother who was in receipt of an income-tested pension make a contribution of $1,000 towards the ICL’s costs of her unsuccessful appeal. In considering what constitutes hardship, his Honour reasoned:-
26.But for the modest financial circumstances of the appellant grandmother, the Court would have little difficulty forming the opinion that the successful parties should have the benefit of orders for costs on a party and party basis as agreed or assessed.
27.The Court is not persuaded that the appellant grandmother would suffer financial hardship if she had to bear a proportion of the costs of the ICL. There is a material distinction between a financial burden or imposition, and the causing of hardship. Where the former ends and the latter begins is not always easy to suggest. In this case, the line can be clearly drawn.
28.On balance, to make an order for costs in favour of the parents in the sum of $1000 and the ICL in a similar amount would, in the Court’s view, fairly recognise the appellant grandmother’s financial circumstances and the reality that, by persisting with an unmeritorious appeal, the appellant grandmother unreasonably put the parents and the ICL to expense which they should never have been obliged to incur. To allow the appellant grandmother to walk away from the financial consequences which her appeal has had for the wholly successful respondents to it would be unjust.
[20] Per O’Ryan J in Oxenham & Oxenham [2009] FamCAFC 167 at 98 to 103
With respect, I adopt his Honour’s reasons as applicable to this case.
The fact that payment of the father’s liabilities may result in less money being made available to his household, does not necessarily equate to hardship or significant hardship. I note the father’s submission that payment of costs would not benefit the two children in his primary care. He did not say that a costs order would leave them without sufficient funds to support his household. He has just paid $8,000 to senior counsel who appeared for him on part of the contravention proceeding and did not allege hardship in making that payment.
The father states, and for the purpose of this application I accept, that his leisure activities are funded by others. However, I am still not satisfied any hardship is such that the father ought not be responsible for the ICL having incurred costs that he should not have had to incur.
I do not underestimate the burden of costs or an order for costs. The purpose of a costs order is to compensate a party for costs unnecessarily incurred. The father’s application was without merit vis-à-vis the ICL as well as the mother. The ICL should have the benefit of an order for most of his costs.
That the ICL is in receipt of legal assistance by way of legal aid is not a matter to which I have regard (s 117(5)). The mother may be in receipt of legal assistance for this part of the proceeding. However, I take judicial notice of the fact that legal aid funding is finite and what is spent on one matter cannot be spent elsewhere. This factor does not mitigate against a costs order being made against the father.
There is no non-compliance with orders which bears directly on the costs of the father’s application under consideration.
The father was wholly unsuccessful in his application for the orders sought. I was not addressed on any offer of settlement relevant to this costs application.
I was not addressed on any other matter which is relevant to my considerations.
It is appropriate that the father bear most of the costs of the other parties in this application by reason of him having been unsuccessful in his application.
The costs as claimed are reasonable. I will order that the father pay them.
No one sought time to pay. The father has previously confused no specified time with no compulsion to pay. Where no time is specified, the payment is to be forthwith. In the circumstances of this case, both sums should be paid within 60 days.
I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 17 May 2010
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