SCVG and KLD and Anor (No 2)
[2016] FamCAFC 99
•27 May 2016
FAMILY COURT OF AUSTRALIA
| SCVG & KLD AND ANOR (NO. 2) | [2016] FamCAFC 99 |
| FAMILY LAW – APPEAL – DISQUALIFICATION – Where the applicant made an oral application that one of the members of the Full Court be recused from hearing the appeal – Where the applicant alleges apprehended bias because the judge had previously formed part of the Full Court bench which dismissed an earlier appeal – Where the test for apprehended bias is not made out – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 SCVG & KLD (2014) FLC 93-582 Strahan & Strahan(Disqualification) (2009) FLC 93-414 Vakauta v Kelly (1989) 167 CLR 568 |
| APPLICANT: | Mr SCVG |
| FIRST RESPONDENT: | Ms KLD |
| SECOND RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | SYC | 2044 | of | 2013 |
| FIRST APPEAL NUMBER: | EA | 75 | of | 2015 |
| SECOND APPEAL NUMBER: | EA | 156 | of | 2015 |
| THIRD APPEAL NUMBER: | EA | 51 | of | 2016 |
| DATE DELIVERED: | 27 May 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 27 May 2016 |
| LOWER COURT JURISDICTIONS: | Federal Circuit Court of Australia; Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 30 April 2015; 20 August 2015; |
| LOWER COURT MNC: | [2015] FCCA 1073; [2015] FamCA 687; [2016] FamCA 302 |
REPRESENTATION
| FOR THE APPLICANT: | Mr SCVG in Person |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms Tonkin |
| SOLICITOR FOR THE FIRST RESPONDENT: | Macphillamy’s Solicitors |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Kaplan |
| SOLICITOR FOR THE SECOND RESPONDENT: | Sparke Helmore Lawyers |
Orders
The application made by the Applicant father on 27 May 2016 that Ryan J disqualify herself from these proceedings be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 75 of 2015; EA 156 of 2015; EA 51 of 2016
File Number: SYC 2044 of 2013
| Mr SCVG |
Applicant
And
| Ms KLD |
First Respondent
And
| Child Support Registrar |
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an application by Mr SCVG (“the applicant”) that I recuse myself from these proceedings on the basis of apprehended bias. The proceedings comprise appeals EA 75 of 2015 and EA 156 of 2015. Also listed for hearing are numerous Applications in an Appeal filed in these appeals and in EA 51 of 2016 which is, in fact, an application for leave to file another appeal.
This application was made orally and about two hours into the appeal hearing. Having heard the argument in support of the application, it was dismissed. I said I would give my reasons for doing so after lunch. These are the reasons.
To give these appeals context, it needs to be understood that the applicant and Ms KLD, who was the first respondent in the appeals, have since their separation over a decade ago engaged in extensive litigation about their children and other matters associated with the marriage having come to an end.
The history of their litigation, both at first instance and on appeal is well set out in the respective judgments. I was a member of the Full Court who unanimously dismissed the applicant’s appeal against interim parenting orders made by Faulks DCJ on 4 July 2013 (SCVG & KLD (2014) FLC 93-582). It is my involvement in that appeal, upon which the applicant relies in this application. According to the applicant, the judges in that appeal, including me, repeatedly interjected during his senior counsel’s oral addresses, questioning him about the authorities upon which he relied and asking that he address other authorities. The interjections were said to be rapid fire and it is the applicant’s submission that the hypothetical lay observer would have regarded that hearing as an ambush. No application was made during the appeal hearing for the bench to be reconstituted or more relevantly, that I stand aside.
The test by which a judge decides to disqualify himself or herself is to be found in paragraphs 6 and 7 in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. Ebner was adopted by the Full Court of the Family Court in Strahan & Strahan(Disqualification) (2009) FLC 93-414.
In Strahan the Full Court determined that the applicable law for applications such as this and I incorporate into these reasons paragraphs 3 and 4 of that judgment as follows:
3.The law concerning disqualification on account of apprehended bias is well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) 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)
4.In the earlier decision of Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) 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)
Turning, then, to the first step, it is difficult to see how a fair-minded lay observer might, based on “rapid fire” questions directed to senior counsel in an appeal as to relevant authorities and propositions of law, would reasonably form the view that the judge might not determine these appeals and applications on their legal merits.
However, even if my involvement in that earlier appeal in the manner asserted could be seen as satisfying the first step, the application of the second step demonstrates why the application should fail. Reference has been made to Johnson v Johnson (2000) 201 CLR 488 and Vakauta v Kelly (1989) 167 CLR 568 in the paragraphs incorporated into my reasons and the importance of the dialogue that passes between bench and bar. As is explained in Vakauta v Kelly, exchanges between the bench and bar can be helpful to both the presiding judges and counsel in the identification of real issues and the strengths and weaknesses of propositions and arguments as to the law. The hypothetical fair-minded lay observer would know this and would also have knowledge of the actual circumstances of the case (Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43).
With respect to the applicant, “rapid fire” questions addressed to senior counsel on relevant matters in a difficult case is insufficient to establish the second limb of the test.
However, there is yet another reason why the application should fail. In Vakauta v Kelly (1989) 167 CLR 568 it was put beyond doubt that a litigant who was aware of circumstances which would give rise to an objection to the constitution of the Court but who failed to object is taken to have waived his or her right to do so. In that judgment, at 572, Brennan, Deane and Gaudron JJ explain the rationale for the waiver principle. Relevantly, their Honours said:
By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing.
As was mentioned earlier, the applicant was represented by senior counsel on the appeal hearing. There was no application that I recuse myself. In my view, on a proper application of the waiver principles discussed in Vakauta v Kelly, the application should be dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 27 May 2016.
Associate:
Date: 16 June 2016
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