Seaward and MacDuff (No. 4)
[2012] FamCA 1147
FAMILY COURT OF AUSTRALIA
| SEAWARD & MACDUFF (NO. 4) | [2012] FamCA 1147 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Applications in a case – application for disqualification of judicial officer and independent children’s lawyer – application for permission to publish an account of proceedings. |
| Family Law Act 1975 (Cth): ss 69ZM; 69ZN; 69ZQ; 68LA; 129(9)(b); 129(9)(g) |
| Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Ebner v Official Trustee (2000) 205 CLR 337 |
| APPLICANT: | Mr Seaward |
| RESPONDENT: | Ms MacDuff |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel |
| FILE NUMBER: | SYC | 2177 | of | 2011 |
| DATE DELIVERED: | 19 October 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 19 October 2012 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Seaward appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Abrams Turner Whelan |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Brian Samuel & Associates |
Orders
That Order 4 of the father’s Application in a Case filed 3 August 2012 and Order 4 of the father’s Application in a Case filed 10 September 2012 is dismissed.
That Orders 5, 6, 7, 8, 9, 10, 12, 13, 15 and 16 of the father’s Application in a Case filed 3 August 2012 are dismissed.
That Order 14 of the father’s Application in a Case filed 3 August 2012 is withdrawn and dismissed.
That Orders 3 and 6 of the father’s Application in a Case filed 10 September 2012 are dismissed.
The Application in a Case filed by the applicant on 19 October 2012 is dismissed.
That the applicant has leave to reopen his Application for Final Orders limited to the following:
a.Paragraphs 31 to 50 of the applicant’s affidavit filed 2 October 2012;
b.Annexures D, F, G, H, I, J and K to the applicant’s affidavit filed 2 October 2012.
In the event that the respondent seeks to adduce evidence in relation to the above matters she shall file and serve any affidavits upon which she intends to rely by 10.00 am on 25 October 2012.
In the event that the respondent files evidence in accordance with the above order the further hearing of the substantive proceedings is listed at 10.00 am on 26 October 2012 before Ryan J.
In the event that the respondent does not file further evidence in accordance with Order 6 above the case shall be finalised by the receipt of written submissions in relation to which:
a.the applicant shall file and serve any submissions in relation to the reopened hearing by 31 October 2012;
b.the respondent and ICL shall file and serve written submissions in reply by 7 November 2012; and
c.any submissions in reply by 14 November 2012.
The respondent and ICL’s costs of today are reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Seaward & MacDuff (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2177 of 2011
| Mr Seaward |
Applicant
And
| Ms MacDuff |
Respondent
REASONS FOR JUDGMENT
These reasons are delivered orally.
Application to disqualify judicial officer
This is an application by Mr Seaward filed 19 October 2012 that I disqualify myself from further involvement in these proceedings. The gravamen of the application is that the completed final hearing of the parties’ parenting application would be aborted and a new hearing conducted before another judge. The affidavit filed in support of the application identifies the basis upon which it is made. In summary the applicant relies upon Order 5 dated 10 September 2012. This is an order I made as part of a suite of directions in relation to applications in a case filed by the applicant on 3 August 2012 and 10 September 2012. As will be apparent from my opening remarks these are applications made after judgment in the substantive hearing was reserved.
In support of his application the applicant relies on written submissions and hence by short oral argument today.
In terms of the applicable law he adopts much of what was said by me in my reasons published 27 August 2012. For the purposes of this application the applicable law is the law recited in those reasons, particularly paragraphs 5 to 11 as follows:
5.The test by which a judge decides to disqualify himself or herself is to be found in par 6 and part of par 8 in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee (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, per May, Boland and Thackray JJ, determined that the applicable law for applications such as this to be as follows, at pp 83,688 - 83,691:
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.
...
4. In the earlier decision of Johnson v Johnson (2000) 201 CLR 488; , the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492–493:
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. (original emphasis)
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)
6.In Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 the High Court determined a series of appeals which concerned allegations of bias by the then Minister for Immigration & Multicultural Affairs. In the course of their deliberations their Honours described what is meant by bias in the judicial and administrative setting. Hayne J, with whom Gleeson CJ and Gummow J agreed, said at par 183:
… It is necessary to consider more closely what is meant by “bias” and “apprehension of bias”. “Bias” is used to indicate some preponderating disposition or tendency, a “propensity; predisposition towards; predilection; prejudice”. It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is “anything which turns a man to a particular course, or gives the direction to his measure”.
7.Hayne J explained that the development and application of the reasonable apprehension of bias test turned what would otherwise have been a wholly subjective inquiry into one which is objective. Hayne J said:
Saying that a decision maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
8.In MIMA v Jia Gleeson CJ and Gummow J gave further consideration to the word ‘bias’ in the context of an assertion of actual bias. At [71] their Honours said:
Decision makers, including judicial decision makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
9. And at [72] their Honours continued:
The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. (footnotes omitted)
10.In Strahan the Full Court incorporated par 13 of Johnson into its reasons. This is where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ referred to the level of knowledge imputed to the hypothetical fair minded lay observer. This would include, as was made plain in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 per Mason CJ and Brennan J, the imputation that the fair minded lay observer would have knowledge of the actual circumstances of the case. See also Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43.
11.In Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Callinan J at [177] said:
It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried.
The thrust of the father’s submission is that Order 5 would be interpreted by the lay observer described in the authorities as my giving to the respondent and the Independent Children’s Lawyer (“ICL”) the answers to the exam. It being said that this would not be fair play.
In response counsel for the ICL and the mother point out that the order was of assistance to the applicant in that it gave him an indication that he might anticipate that his application would be met by an application of the type referred to in Order 5. It is submitted that particularly by the solicitor for the mother that the direction is consistent with s 69ZM of the Family Law Act 1975 (Cth) (“the Act”).
In my view it is permissible for the Court to raise and attempt to deal in an organised fashion with issues that are raised by an applicant and which one might anticipate will be raised by a respondent. The form of the order does not with respect to the submission made by the father go further than is permitted by ss 69ZN and 69ZQ. With respect to the submissions made by him I am not satisfied that the form of order would make it appropriate that I recuse myself and fail to complete the proceedings and that application will be dismissed.
Application to disqualify independent children’s lawyer
Before the Court is an application by the father that the ICL be removed and any and all representations made by that ICL be disregarded. The application is based upon what is said to be impermissible reference by the ICL on 22 August 2011 to the father’s demeanour.
On 22 August 2011, the mother applied to the Federal Magistrates Court for an ex parte recovery order. The circumstances of that application were the subject of considerable attention during the hearing of the substantive parenting proceedings.
Indeed the transcript of what occurred on 22 August 2011 was provided to the Court as an exhibit in the father’s case in May 2012.
On 22 August 2011, the mother’s application came before FM Sexton. It would appear that prior to that date the parties’ proceedings had been docketed to FM Monahan who had made orders only days beforehand. His Honour on that earlier occasion reserved his decision on larger issues. Thus, the matter came before a Federal Magistrate other than the docketed Federal Magistrate and one who had access to a raft of material but presumably not material which went to demeanour.
It is contended that on that occasion the ICL breached his responsibilities and duties. The role of the ICL is set out in s 68LA(2)(a) which provides as follows:
The Independent Children’s Lawyer must:
(a)form an independent view based on the evidence available to the Independent Children’s Lawyer of what is in the best interests of the child.
and at s 68LA (5)(a) provides:
Act impartially in dealings with the parties to the proceedings.
Reference is made by the father to the guidelines for Independent Children’s Lawyers published on 6 December 2007 by National Legal Aid. It has now been clarified that, notwithstanding the withdrawal of the Court’s guidelines for Independent Children’s Lawyers by the Chief Justice on 2 August 2007, there is, perhaps at least by implication, support by the Court for the guidelines relied upon by the applicant. It is reference to the importance of impartiality and that submissions are based on evidence and not merely a personal view, which underpins the father’s application. To the extent that those matters are drawn from the guidelines referred to they are consistent with authority from this Court about the role of the ICL which pre-dates the insertion of s 68LA into the Act. The insertion of s 68LA does not detract from the efficacy of those earlier decisions which emphasise impartiality and evidentiary-based submissions; so there is a consistency between what one sees in the guidelines, the Act and the earlier authorities.
The question that arises is does the material relied upon by the applicant establish that the ICL impermissibly acted other than in an impartial way and impermissibly relied upon demeanour?
It is not accepted that it is impermissible for courts to take into account demeanour, albeit, there is a volume of case law which counsels caution about the significance of demeanour in judging. It probably doesn’t overstate things to say that where demeanour is influential in a court’s decision then it is important for the facts which underpin the Court’s findings are clearly explained. Here, the argument by the father is tidily summarised in his written submission that the words on page 15 of the transcript commencing at line 13 in the paragraph “If he was made aware” through to the end of that paragraph as follows:
Shows categorically his distaste for the father. This is clear prejudice. He has no evidence but is prepared to make decisions because he does not like my demeanour.
But the words the ICL used whilst referring to the father’s demeanour must be understood in context, namely, he said:
I don’t have any evidence that the father would do anything to harm the children but it is just the father’s demeanour, general demeanour in the way he conducts these proceedings and some of the – his position he has taken in a lot of issues which have arisen, your Honour. I think on balance I would support an ex parte recovery order.
The use of the words “on balance” is a fair summary of the balanced submissions that precede the remarks the subject of complaint. I do not accept that a fair minded lay observer would properly regard the ICL’s reference to the father’s demeanour in the way he conducts the proceedings and the position that he has taken in relation to a number of the issues as impermissible or be speaking a bias against the father. To the extent that the father asserts there is a proper basis for removal I do not accept the submission.
Had it been necessary, I would have also have turned my mind to the issue of waiver. The remarks under challenge occurred on 22 August 2011. It is uncontroversial that on that occasion the hearing took place in the absence of the father. I infer that quite quickly, thereafter, he became aware that an ex parte hearing had taken place. It was a matter for him and those advising him to decide whether a transcript of what there occurred ought to be obtained. It is apparent that a transcript of what occurred was obtained, albeit, when that transcript was obtained is not in evidence.
There is no doubt, however, that it was in the possession of the father at least by the conclusion of the hearing which commenced on 22 May 2012. If the father considered he had a proper basis for bringing that application the time for him to do so has passed. Timeliness required that he bring this application at least no later than the end of the hearing in May 2012. Again, it is uncontroversial that throughout that hearing the father was represented by counsel; it being the father’s decision to terminate counsel’s retainer at the end of the hearing so that he could make closing addresses.
I would, had it been necessary, have considered the delay in bringing this application another ground for its dismissal. Accordingly, the application for the removal of the ICL is dismissed.
Transcript request
The father seeks an order that the Court, at its expense, provide him with all transcripts in this matter. He does not provide evidence about how much that is likely to cost. The Court has considered the provision of transcript at the Court’s expense in a number of cases and I need only refer to Forbes & Bream [2008] FamCAFC 189, Friscioni & Friscioni (Application for Transcript) [2009] FamCAFC 48 and Sampson & Hartnett [2010] FamCAFC 220 for the principles to which regard would be had on an application such as this. In my view nothing advanced by the father today would engage the favourable exercise of discretion for the Court to provide at its expense transcripts of the proceedings to the applicant and the application is dismissed.
publication
The father seeks that pursuant to s 121(9)(g) he is given permission to publish an account of the proceedings. The account of the proceedings that he would seek to publish is portions of the transcript in relation to which the children’s names would be deleted. The point of the latter is to protect the children’s anonymity. The application is opposed by the mother and the ICL. To the extent that there was reference by the father to matters of conduct relating to the ICL, s 121(9)(b) would enable the transcript to be provided to the relevant professional bodies.
The submission made by the ICL that even with the children’s names removed there is a possibility that the material may come to their attention is accepted. Whilst at this stage the risk relates to the child B, once the material is published and in the domain of the electronic mediums which comprise social media, the internet and the like the probability is that it would remain available indefinitely. What flows from that is that once published it is difficult to anticipate how the children could, perhaps not even in just during their minority, be protected from the full details of their parents’ accusations and counter-accusations. The risk is that at some stage the children would be more burdened with responsibility for events which have befallen the family including this litigation than is desirable.
It is not accepted that the father has made out a proper case either in the interests of justice or in the interests of the children for the Court to make an order in his favour as sought pursuant to s 121(9)(g) and the application is dismissed.
I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 19 October 2012.
Associate:
Date: 9 May 2013
8
0