SCVG & KLD - [2016] FamCAFC 22

FAMILY COURT OF AUSTRALIA

SCVG & KLD

[2016] FamCAFC 22

FAMILY LAW – APPEAL – DISQUALIFICATION – Where the applicant made an oral application that the presiding judge disqualify herself from hearing the during the applications in an appeal – Where the applicant alleges apprehended bias because the judge had previously presided on a Full Court which dismissed an appeal– Where the test for apprehended bias is not made out – Application dismissed.

Judiciary Act 1903 (Cth) s 35A

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337Morris v R (1987) 163 CLR 454
Vakauta v Kelly (1989) 167 CLR 568

APPLICANT:

SCVG

RESPONDENT:

KLD

FILE NUMBER:

SYC

4380

2008

FIRST APPEAL NUMBER:

107

2013

SECOND APPEAL NUMBER:

174

2015

DATE DELIVERED:

24 February 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

3 November 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 February 2015

LOWER COURT MNC:

[2015] FamCA 110

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Messner

SOLICITOR FOR THE RESPONDENT:

MacPhillamy’s Lawyers

Orders

The application for disqualification is dismissed.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Numbers: EA 107 of 2013; EA 174 of 2015
File Number: SYC 4380 of 2008

SCVG

Applicant

and

KLD

Respondent

REASONS FOR JUDGMENT

SCVG (“the applicant”) seeks an extension of time in which to file a Notice of Appeal against parenting orders made by Cronin J on 27 February 2015. He further seeks an extension of time in which to seek a review of a costs assessment order made by a Registrar on 9 October 2014.
Both applications were listed for hearing together. During the argument on the applications, the applicant sought that I disqualify myself. He had prepared submissions on the point.
The basis of his application is thus taken from his oral and written submissions.

Background

On 4 July 2013 Faulks DCJ made interim parenting orders in proceedings between the applicant and KLD (“the respondent”). The applicant appealed those orders and the appeal was heard by a Full Court of which I was the presiding judge. The appeal was dismissed on 25 March 2014 and the applicant ordered to pay the respondent’s costs of the appeal, such costs to be agreed or assessed.
The applicant was represented on the appeal by senior counsel.
The applicant sought Special Leave to appeal from the determination of the Full Court. That leave was refused by the High Court of Australia.
The first basis for the application is that the conduct of the Full Court hearing the appeal against the orders of Faulks DCJ gave rise to apprehended bias.
It was contended that during the appeal, the judges “…did not give my counsel a fair hearing, constantly interrupting his submissions and demanding he answer a series of rapid fire detailed questions about precedents, keeping him off balance…”
No application for recusal of the bench was made by senior counsel for the applicant during the hearing of the appeal.
By failing to make that application during the appeal hearing, or at all, the applicant has waived his right to later agitate it.
The question of waiver is discussed by the High Court in Vakauta v Kelly (1989) 167 CLR 568. Brennan, Deane and Gaudron JJ, having referred to comments made by a trial judge said at 572:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object…
Dawson J, at 575, explained the principles relating to apprehended bias and, at 579, said:
…In my view, where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it.
The applicant further assumes that although he raised the issue of apprehended bias in his application for Special Leave and it was not specifically addressed in the reasons refusing that leave, it somehow left the issue unconsidered.
Special leave is given where, in the opinion of the High Court, the matter involves a question of law of public importance and the administration of justice requires the issue to be considered by the High Court. Clearly it did not in the applicant’s case as leave was refused. In forming that opinion the High Court may consider any matters it considered relevant (see Morris v R (1987) 163 CLR 454 and s 35A of the Judiciary Act 1903 (Cth)).
The second basis of the application is that the decision of the Full Court ignored key failures by the judge from whom the appeal was brought and ignored the fact that the trial judge had shown “actual bias and prejudgment” of the issues.
It is relevant to a consideration of this matter to first observe that the grounds of appeal in relation to his Honour’s orders did not include an assertion of “actual bias and prejudgment”. Little wonder then that considerations of bias, whether apprehended or otherwise, did not form part of the reasoning of the Full Court in considering the appeal.
This is, in itself, sufficient to dispose of this assertion.
The applicant’s submission then observes that the members of the Full Court are colleagues of other judges of the Family Court who have had dealings with these proceedings, and that by reason of the Deputy Chief Justice’s responsibilities, he “oversees” the Full Court judges. The submission then refers to a document received from the Marshal of the court and claims that all of the judges of the court “would have received a copy of that document”.
It is not suggested that all or any of these matters give rise to an apprehension of bias and I do not propose to consider the matters raised in the submission.
The law in relation to disqualification on account of apprehended bias is well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ held:
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.
I am comfortably satisfied that the fair minded reasonable observer understanding the context of the applications decided by me and the Full Court would not apprehend that I would fail to bring an impartial mind to the issue to be determined in the present application.
Thus I refuse the application that I disqualify myself from further hearing the appeal.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

24 February 2016.

Associate:

Date: 24 February 2016