Shee and Hale (No 2)
[2020] FamCA 494
•19 June 2020
FAMILY COURT OF AUSTRALIA
| SHEE & HALE (NO. 2) | [2020 ] FamCA 494 |
| FAMILY LAW – PRACTICE AND PROCEDURE – RECUSAL – where the Applicant seeks the trial Judge recuse himself except as regards issues of costs arising from the Applications already determined – where the trial Judge has made findings and delivered Reasons on the issues of whether and for how long a de facto relationship existed between the parties –where the Reasons delivered do not indicate an actual or apprehended lack of impartiality – where the trial Judge is not satisfied that the Reasons delivered give rise to a basis for recusal FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR COSTS – where the Applicant seeks that the issues of costs arising from the interlocutory Applications already determined be deferred until the finalisation of the substantive proceedings – where the Respondent opposes the Application – where the Applicant is unable to comply with directions for filing of submissions as to costs due to the impact of travel restrictions – where the Applicant is granted an extension of time for the Applicant to file submissions as to costs |
| Family Law Act 1975 ss 90RD, 44(6) |
| Shee & Hale [2020] FamCA 84 Re Renaud Ex parte CJL (1986) 60 ALJR 528 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Ebner and Isbester v Knox City Council (2015) 89 ALJR 609 British American Tobaco Australia Services Limited v Laurie and Ors (2011) 242 CLR 283 |
| APPLICANT: | Ms Shee |
| RESPONDENT: | Mr Hale |
| FILE NUMBER: | SYC | 2311 | of | 2017 |
| DATE DELIVERED: | 19 June 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 10 June 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr N Wahhab, York Law Family Law Specialists |
| COUNSEL FOR THE RESPONDENT: | Mr T Kirk QC |
| SOLICITOR FOR THE RESPONDENT: | Broun Abrahams Burreket |
Orders
That the Application for recusal be dismissed.
That the directions for the filing of costs submissions made 2 April 2020 are varied as follows:
(a) Order 2 is extended to 17 August 2020; and
(b) Order 3 is extended to 31 August 2020.
The determination of the issue of costs arising from the hearing conducted on
5 & 6 July and 8 & 9 October 2019, be reserved for determination after the determination of the pending Application under s 44(6) of the Family Law Act 1975.
That the parties costs of the Application in a Case filed 19 May 2020 are reserved.
That these proceedings be listed for Case Management Hearing at 9.30am on
7 July 2020.
That all parties have leave to appear by telephone on 7 July 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:
(a)They shall each telephone … (within Australia only) (toll free) by 9.25am on 7 July 2020;
(b) They shall each then enter the pass code …; and
(c)Hold the line until the Court is ready to connect and proceed with the matter.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shee & Hale has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: SYC 2311 of 2017
| Ms Shee |
Applicant
And
| Mr Hale |
Respondent
REASONS FOR JUDGMENT
On 18 February 2020, the Court delivered Reasons for an Order declaring pursuant to s90RD of the Family Law Act 1975 (“the Act”) that the Applicant Ms Shee and the Respondent Mr Hale were in a de facto relationship from March 2007 to March 2010 (see Shee & Hale [2020] FamCA 84).
The effect of the Order was to find the parties were not in a genuine domestic relationship between March 2010 and 12 August 2016 as claimed by the Applicant. At the time of the hearing of the threshold issue the Court decided to hear and determine the dispute as to the length of the relationship – fully aware that if a declaration was made that the de facto relationship ended in March 2010, then the Application filed in April 2017 would be outside the standard application period prescribed by the Act.
The applicant contended at the time of the hearing that any necessary application under s 44(6) of the Act should be dealt with, if necessary, after the determination of the core threshold issue.
On 2 April 2020 the Court made directions for the parties to file written submissions as to the costs of the hearing conducted on the threshold issue. At the Case Management Hearing the Applicant was not legally represented; did not object to the directions as to costs; nor did she oppose that her application for leave under s 44(6) of the Act be listed before me on a date to be fixed. I record this simply by way of history, and not to suggest that she was not entitled to pursue her Application filed on 19 May 2020, when she had secured legal representation.
Before the Applicant’s Application in a Case was heard on 10 June 2020, the Applicant’s Application for leave to appeal the substantive judgment (necessary as the Applicant was seeking an extension of time to appeal) was dismissed by the Full Court (Aldridge J) on 5 June 2020.
The Applicant’s Application in a Case seeks the following orders:
“1. That the orders and directions made by His Honour Justice Baumann on 2 April 2020 in relation to the Applicant filing costs submissions in response to the cost submissions of the Respondent filed on 23 April 2020 be discharged.
2. That the determination of the Application for costs by the Respondent in respect of the length of the relationship hearing be deferred until the finalisation of the financial proceedings.
3. That in the alternative to Order 2 but without concession, the determination of the costs Application (including the timing of the Applicant filing submissions in response to the Respondent’s costs submissions) be deferred until the determination by this Honourable Court of the Applicant’s s 44(6) application, with the costs issue to be listed for directions on a date after the court determines the s 44(6) application.
4. That His Honour Justice Baumann be recused from further hearing of this matter (with the exception of the costs issue referred to above) with the consequence that this matter be referred to the List Judge for the matter to be allocated to a judge in the Family Court other than Justice Baumann.”
On 10 June, the Court received both oral and written submissions from solicitor Mr Wahhab (for the Applicant) and Mr Kirk SC (for the Respondent). The Reasons which follow deal with all issues identified in the Application in a Case, but in a different order than pleaded.
Application for recusal
The Applicant seeks that I recuse myself from the further hearing of this matter (with the exception of the costs issue) and that the s 44(6) application be listed before a different judge. The Respondent opposes the Application.
The principles to be applied on such an application are well settled.
I agree with the submission of Counsel for the Respondent where the legal principles are identified at paragraph 5.2 of his Outline of Argument as follows:
“5.1 Legal Principles
The duty of a judge to disqualify himself for proper reason is matched by an equal duty not to disqualify himself save for proper reason (Re Renaud Ex parte CJL (1986) 60 ALJR 528 Mason J at 531-532), Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at #19-23) (Ebner).
The test for determining whether a Judge should disqualify himself by reason of apprehended bias is “whether 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 was required to decide.” (see Ebner and Isbester v Knox City Council (2015) 89 ALJR 609) (Isbester).
In the High Court case of Isbester the plurality (Kiefel, Bell, Keane, Gageler and Nettle JJ) observed:
“20.The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.
21.The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an "interest" in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.””
The Applicant further referred to the decision of French CJ in British American Tobaco Australia Services Limited v Laurie and Ors (2011) 242 CLR 283 and the four categories in which the impartiality of a Court may be or may appear to be compromised, and asserts at paragraph 3 of her outline of argument, that:
“3.The Applicant contends that having regard to the judgement and the findings made by His Honour in his Judgment of 18 February 2020 that a fair minded lay observer might hold an apprehension that Your Honour would be likely to determine the application presently before the court and any other application that may come before His Honour against the Applicant.”
(Emphasis added)
In my view, this submission goes further than a mere assertion that I might not “bring an impartial mind to the resolution of the question” I am required to decide, but that I would find against the Applicant. I reject such a contention, for the following reasons:
a)I do not agree that the findings referred to by the Applicant at paragraphs two to five of the submissions were no different than an adverse credit finding generally against the Applicant. Certainly in respect of the continuance of sexual relations I preferred the evidence of the Respondent (corroborated in part by the Applicant’s daughter X).
b)Despite the urging of Senior Counsel for the Respondent at the end of the trial to make an adverse credit finding against the Applicant, I declined to do so and was not persuaded the “Applicant’s evidence was wholly unreliable” and noted at [13] that:
“13.The Applicant was at times vague and admitted to a poor memory. English is not her first language and she was very careful in trying to understand the question put before answering. However, I did not regard Ms Shee as evasive or lacking in honesty – just at times confused and uncertain.”
c)At paragraphs 77(a) and (b), for the Reasons given, I preferred the evidence of the Applicant over that of the Respondent on two issues and also explained some scepticism about the burial plot arrangement (at [80]) but in the ultimate conclusion the confusing picture painted by the evidence was such that the evidentiary onus resting on the Applicant was not discharged.
I agree with Senior Counsel for the Respondent that a careful reading of the published Reasons does not satisfy the first step in Ebner namely:
“the identification of what it is said might lead a decision maker to decide a case other than on its legal and factual merits”.
Whilst I accept the Applicant was disappointed with the decision made, her disappointment is not a basis for recusal.
The Application for recusal is dismissed.
Costs issues
The Applicant primarily submits the “costs issue” should await determination “of the final resolution of the proceedings” because:
a)one of the matters the Court must consider is the parties respective financial position which at this stage is unknown; and
b)the conduct of the parties and any findings made by the Court in the context of the s 44(6) application (and if leave is given, in the substantive property proceedings) is a relevant consideration.
It was the Applicant who contended that the threshold issue of the length of the relationship should be separated from the s 44(6) issue. The Court had already decided to list the “threshold issue” separately from the substantive property proceedings.
The Respondent says there is no justification for delaying the determination of the costs issue, and would not oppose, in the circumstances arising from the Applicant’s travel restrictions, an extension to file costs submissions.
The Respondent filed submissions on 23 April 2020 and the Applicant’s Response was directed to be filed by 14 May 2020. If the Applicants’ Application to leave consideration of the costs issue until final determination of all proceedings is not accepted, then Mr Wahhab seeks an extension to file submissions by mid-August 2020.
I am prepared to grant the Applicant an extension until 17 August 2020 to file submissions as earlier directed. The Respondent will have until 31 August 2020 to file any reply.
In my view, when the Court hears an interlocutory or discrete issue and costs are sought it is consistent with the need to do justice to consider such applications in a timely manner. Of course, it will be open to the Court to hear submissions as to when any costs order, if made and justified, should be paid.
I will Order the costs submissions to be filed as set out in these Reasons, but I will leave the determination of that issue until the s 44(6) issue has been determined by me. Although, as Mr Kirk SC submits, the current costs submissions do not assert any behaviour of the Applicant as relevant save for the manner in which her case was conducted and further does not assert any previous offers to settle (if any) are relevant, I have come to the view that as “hardship” is a relevant matter under s 44(6), the evidence and findings on that issue are likely to be relevant to the determination of costs.
I make the Orders as set out at the commencement of these Reasons.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 19 June 2020.
Associate:
Date: 19 June 2020
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