Scott & Munayallan
[2022] FedCFamC1A 44
•1 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Scott & Munayallan [2022] FedCFamC1A 44
Appeal from: Scott & Munayallan (No. 3) [2021] FamCA 617 Appeal number(s): NAA 6 of 2021 File number(s): SYC 59 of 2010 Judgment of: AUSTIN, TREE & SCHONELL JJ Date of judgment: 1 April 2022 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant sought leave to appeal an order dismissing an adjournment application – Where the proposed appeal from that order is incompetent pursuant to s 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the applicant sought leave to appeal an order dismissing an application for the primary judge’s disqualification – Apprehended Bias – Where the conduct relied upon to establish apprehended bias was not made clear – Where the applicant’s contention appeared to rest upon two decisions made earlier in the proceedings by the primary judge – Where no error is demonstrated in the determination of the disqualification application – Leave to appeal refused – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII, s 69ZR
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28
Cases cited: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300; [1998] HCA 52
Livesey v NSW Bar Association (1983) 151 CLR 288; [1983] HCA 17
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Munayallan & Scott [2020] FamCA 1141
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Scott & Munayallan (2021) 62 Fam LR 504; [2021] FamCA 79
Scott & Munayallan [2021] FamCAFC 133
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Number of paragraphs: 32 Date of hearing: 28 March 2022 Place: Sydney (via video link) The Applicant: Litigant in person Counsel for the Respondent: Mr Duc (direct brief) ORDERS
NAA 6 of 2021
SYC 59 of 2010FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SCOTT
Applicant
AND: MS MUNAYALLAN
Respondent
ORDER MADE BY:
AUSTIN, TREE & SCHONELL JJ
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS THAT:
1.Leave to appeal is refused.
2.The Notice of Appeal filed on 8 September 2021 is dismissed.
3.The applicant shall pay the respondent’s party/party costs of and incidental to the application for leave to appeal, fixed in the sum of $8,946.44.
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 Scott & Munayallan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, TREE & SCHONELL JJ:
By a Notice of Appeal filed on 8 September 2021, subject to the grant of leave to do so, the applicant appeals from orders made by a judge of the Family Court of Australia (as the Court was then known) on 13 August 2021.
The subject orders provide as follows:
1.The husband’s application for my disqualification from further hearing these proceedings be dismissed.
2.The husband’s application for an adjournment of the final hearing in this matter be dismissed.
3.The costs of each party of this hearing be reserved to the final hearing.
Although the proposed appeal is ostensibly from all orders, at an earlier procedural hearing in these proceedings, the applicant conceded it relates only to the first two orders.
While an appeal lies from a judgment in the exercise of original jurisdiction (s 26(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), the right is subject to certain exceptions.
Here, the proposed appeal from Order 2, dismissing the application for an adjournment of the trial fixed for September 2021, is incompetent because s 26(2)(b)(ii) of the FCFCA Act provides as follows:
Certain kinds of appeals prohibited
(2)An appeal must not be brought from a judgment referred to in subsection (1) if the judgment is:
…
(b) a decision to do, or not to do, any of the following:
…
(ii)adjourn … a hearing;
That leaves the appeal from Order 1 for consideration, which order dismissed the application for the primary judge’s disqualification from any further adjudication of the proceedings. At the earlier procedural hearing, the applicant said his complaints about Order 1 are addressed by Grounds 1, 2, 4, 5 and 6. It follows that Ground 3 can therefore be ignored.
The grounds of appeal are pleaded in these terms:
1. Apprehend bias, against applicant.
2. Procedural fairness was not granted to the applicant.
3. Misscarry of justice against the applicant.
4.The learned Judge erred, by not recusing herself, as her honour already had challenged interlocutory orders on the 09-10 July 2021, 28 Feburary 2021 and not adjourning the proceedings until the Supreme Court proceedings are completed. This incurred a double court costs for all parties, double proceedings, fustrustion on the witnesses.
5.The learned Judge erred , overstep in granting the orders by advising what directions and path the mother should conduct her case.
6.The Judge provided unlimited Subpoenas for the mother to be issued and provided the father no Supoenas to the father to issue.
(As per the original)
Regrettably, the applicant laboured under the disadvantage of being self-represented in the appeal proceedings and his Summary of Argument does not elaborate or particularise the grounds of appeal in any meaningful way, but rather narrates his story of woe from the commencement of the litigation between the parties in 2014.
Leave to Appeal
Since Order 1 is an order dismissing the applicant’s application for the primary judge’s disqualification for apprehended bias, the grant of leave is necessary to prosecute the appeal (s 28(3)(f) of the FCFCA Act).
While the discretion to grant leave is unfettered, it ordinarily requires the applicant to show the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).
For the reasons which follow, the decision of the primary judge is not attended by sufficient doubt to justify entertaining the appeal and so, regardless of the injustice the applicant believes he will thereby suffer, leave to appeal should be refused.
Grounds 1 and 4
In August 2021, the applicant applied for the primary judge to disqualify herself from further involvement in the proceedings due to the apprehension of her Honour’s bias against him.
As is well established, application of the doctrine of apprehended judicial bias entails two steps (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345). First, the applicant must identify the conduct which it is said might lead the judge to decide the case other than on its legal and factual merits. Secondly, the applicant must articulate the logical connection between the conduct and the feared deviation from impartiality.
The applicant referred, both before the primary judge and in the appeal proceedings, to various authorities which either distil or apply the legal principles governing apprehended judicial bias. There was no dispute between the parties about those principles. It is their application which is at stake.
There are recognised to be several distinct but overlapping categories of cases covered by the doctrine of apprehended bias (Ebner at 348–349; Webb v The Queen (1994) 181 CLR 41 at 74) and, although the applicant’s submissions lacked any precision, the flavour of his contention was that the primary judge’s apprehended bias arose from her Honour’s conduct.
Neither the grounds nor the written submissions made in support of them make clear whether the alleged apprehension of bias arises from precisely the same conduct to which he referred in the original hearing before her Honour in August 2021 or whether it encompasses something more. At the appeal hearing it became plain the assertion of bias was merely repetition of the arguments he unsuccessfully made before the primary judge in August 2021. If that is so, the appeal does not succeed simply by re-running the case which was rejected at first instance. The applicant was refused to rely upon additional written submissions he circulated just 30 minutes before the appeal hearing commenced, but those submissions repeated existing complaints or referred to events after August 2021 and were therefore of no help.
In the reasons for judgment, the primary judge dealt with the authorities cited by the applicant (at [6]–[10]) and acknowledged how the applicant’s contention of the apprehension of her Honour’s bias rested upon two decisions made by her Honour earlier in the proceedings, in July 2020 and February 2021, with which decisions the applicant was evidently dissatisfied (at [11]–[19]). The thrust of the applicant’s submission in the proposed appeal was identical.
The decision in July 2020 entailed the primary judge making an order for the recovery of the parties’ children from the applicant (Munayallan & Scott [2020] FamCA 1141). The applicant submitted to the primary judge that her Honour had “overstepped [herself]” when making those orders, but there was no appeal from the orders made in July 2020, as the applicant’s application for leave to appeal out of time was refused (at [25]).
The applicant made an identical submission to the primary judge in August 2021 about having “overstepped”, in relation to which her Honour said:
22.[The applicant] said in issuing a recovery order and suspending his time, I overstepped as I only relied upon the mother’s oral evidence and not written evidence. This is not unusual in a parenting matter, particularly where a recovery order is sought. The father later tendered documentation from the medical centre and doctor showing, he says, that the mother had not told the truth and that I should have conducted a hearing after this recovery order to validate or otherwise the mother’s evidence. I did not do that, that is, conduct a hearing in relation to resumption of time, for the very reason that I was in the throes of preparing this matter for final hearing in relation to property, that then being the only outstanding issue, and I was concerned to not put myself in a position to make credit findings in relation to either party given I wanted this matter to proceed to hearing as soon as possible on the outstanding issue of property.
23.Thus I left that determination and issue to another judicial officer. I listed the matter before the Senior Registrar for hearing on 16 September 2020. That date was vacated at the request of [the applicant] and the Senior Registrar listed it again in November. In November I believe there was a change of lawyer or different application – perhaps a combination of both – put by [the applicant] and the hearing had, again, to be adjourned. Ultimately, the Senior Registrar conducted a final interim hearing on 30 March 2021 and the father’s time with his children recommenced.
24.I issued a recovery order to lie in the Registry on 9 July 2020 and only activated that recovery order on 10 July 2020. I issued it to lie in the Registry on 9 July to give the husband an opportunity to return his daughter to her mother so that I did not have to issue the recovery order, which he refused to do, seeking, rather, a stay of the orders I made, which I refused. I made no findings at all against the father, rather, was enforcing existing orders of the Court. There is no bias, apprehension of bias against the husband demonstrated in the recovery order application, nor is pleaded by [the applicant] in his affidavit or his materials. He disagrees fundamentally with the decision I made and the material I relied upon in my decision but does not say I was biased against him or prejudged the matter or in some way did not entertain his application.
The applicant inferentially contends the primary judge’s bias may be apprehended from her Honour’s acceptance in July 2020 of the respondent’s submissions about the need for the recovery order and, in addition, how the primary judge’s temporary suspension of the children’s time with the applicant implied her Honour was thereby orchestrating the respondent’s later entitlement to a greater share of the parties’ property. Though the applicant may genuinely believe that to be so, no such apprehension of bias can be objectively inferred from her Honour’s former decision.
The other decision in February 2021 involved the determination of two applications brought by the applicant: the first to review a registrar’s taxation of costs; the second to vary or set aside some earlier costs orders made in June 2019 on the basis of an alleged fraud perpetrated by a third party (Scott & Munayallan (2021) 62 Fam LR 504). The review application succeeded, but the variation application did not.
In the reasons for judgment which is the subject of this proposed appeal, delivered in August 2021 (at [16]–[19]), her Honour acknowledged having formerly found the applicant was motivated by an ulterior purpose to make the allegation of fraud against the third party. There was no appeal from the judgment delivered in February 2021 and the primary judge relevantly found in August 2021:
20.There is no bias or apprehension of bias in the findings I made on the facts contained in the judgment. [The applicant] did not appeal this decision. The fact that he, to use his words, says “The father disagrees with [the primary judge’s] point of view” does not support an apprehension of bias or any reason why a fair-minded person reading my judgment would form the view that I would not bring an impartial or fair mind to subsequent proceedings in which [the applicant] is involved. There was no complaint by [the applicant] regarding how the matter was run or conduct during the trial. [The applicant] disagrees with my decision and findings, as he is entitled to do. But no more. There is no apprehension of bias in that decision.
…
26.The husband’s evidence in relation to both counts as I read his material, his case outline, and his affidavits and annexures, would not cause a fair-minded lay observer to be concerned that I, the judicial officer, would not bring a fair and objective mind to the determination of the issues before the Court at the final hearing which is the entitlement of each of the wife and the husband to their property, and whether the orders made Berman J on 15 August 2019 in relation to the children be reinstated, as [the applicant] seeks, or the interim orders made by Senior Registrar Campbell in March 2021 continue as the final orders, as the mother seeks.
While the primary judge did attribute an ulterior motive to the applicant in February 2021, due to the manner in which he conducted the discrete costs dispute against the third party, the applicant did not attempt to articulate how that finding might cause the primary judge to deviate from her Honour’s duty of impartiality when entertaining the substantive dispute between he and respondent over their property and children at trial in September 2021. The applicant conveniently overlooked that he actually succeeded with his review application in February 2021, despite the finding about his motives in the second application, which tends to undermine any contention that the primary judge appeared biased against him.
It has been held there will usually be an unacceptable appearance of pre-judgment requiring disqualification if the judge has previously dealt with an issue of fact or credibility which is again before the judge for further consideration (Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 per Mahoney JA at 438 and 441–442, with whom Kirby P at 419–420 and Meagher JA at 447 agreed), though that would not be the case in parenting proceedings conducted under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) on account of the provisions of s 69ZR(3) of the Act. But that is not the situation at hand. In February 2021, the primary judge found the applicant had an ulterior motive in proceedings concerning a costs dispute with a third party, which was neither the same factual nor credibility issue at stake between the parties in their quite separate dispute over property and children.
The High Court of Australia has made plain it would be both an abdication of judicial function and an encouragement of procedural abuse for a judge to impulsively or too readily disqualify him or herself whenever requested by one party to do so (Livesey v NSW Bar Association (1983) 151 CLR 288 at 294; Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300 at 302). A judge should not disqualify him or herself for reasonable apprehension of bias unless substantial grounds exist (Bienstein v Bienstein (2003) 195 ALR 225 at 233; Vakauta v Kelly (1989) 167 CLR 568 at 584–585; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352).
No error is demonstrated in the primary judge’s determination of the disqualification application in August 2021.
Ground 2
The applicant made no submission at all to elaborate how he was denied procedural fairness at the hearing in August 2021, such as to impugn the dismissal of his disqualification application. No error is demonstrated.
Ground 5
At the procedural hearing of these appeal proceedings, the applicant informed the Court that Ground 5 “principally” relates to the orders made by the primary judge in July 2020. The applicant was previously refused leave to belatedly appeal from the July 2020 orders (Scott & Munayallan [2021] FamCAFC 133), so he cannot use this proposed appeal from the August 2021 orders as the vehicle to mount a collateral attack on those former orders, as it would be an abuse of process for him to do so.
As for Order 1 made in August 2021, dismissing the disqualification application, the applicant did not make any submission at all about how the primary judge erred by “overstep[ping]” when deciding that application.
Ground 6
Self-evidently, the complaint within this proposed ground of appeal concerning the issue of subpoenas has nothing at all to do with the dismissal of the applicant’s disqualification application in August 2021.
Costs
Assuming dismissal of either the application for leave to appeal or the appeal, the respondent sought a party/party costs order against the applicant, which order should be granted. The application for leave to appeal was wholly unsuccessful as the proposed appeal lacked any merit. The applicant may be unemployed and experiencing difficult financial circumstances, but penury is not necessarily a shield against costs orders. Unmeritorious litigation is no less unmeritorious because it is pursued by a person who is impecunious (Northern Territory v Sangare (2019) 265 CLR 164 at [27]).
The respondent’s schedule of party/party scale costs totalled $10,760.98 but, as the applicant correctly observed, the respondent could not claim the estimated preparation costs of her former solicitors for the appeal as they withdrew in advance of the appeal. That required the discount of $1,814.54 from the respondent’s claim, leaving a net sum of $8,946.44. We reject the applicant’s claim that the respondent’s counsel’s costs were unreasonable.
I certify that the preceding thirty-three (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Tree & Schonell. Associate:
Dated: 1 April 2022
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