Spencer and Spencer (No 2)
[2019] FamCAFC 181
•15 October 2019
FAMILY COURT OF AUSTRALIA
| SPENCER & SPENCER (NO. 2) | [2019] FamCAFC 181 |
| FAMILY LAW – APPEAL – RECUSAL – Where the appellant seeks that one of the members of the Full Court be disqualified on the basis of apprehended bias – Where the test is not satisfied – Where the appellant fails to appreciate that the test is objective, not subjective – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 |
| APPELLANT: | Ms Spencer |
| RESPONDENT: | Mr Spencer |
| FILE NUMBER: | PTW | 7180 | of | 2010 |
| APPEAL NUMBERS: | WEA | 21 | of | 2018 |
| WEA | 15 | of | 2019 |
| DATE DELIVERED: | 15 October 2019 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 15 October 2019 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 29 March 2019 |
| LOWER COURT MNC: | [2019] FCWA 71 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Turley |
| SOLICITOR FOR THE RESPONDENT: | Biddulph & Turley |
Orders
The appellant wife’s oral application made on 15 October 2019 that Justice Strickland recuse himself from further hearing these proceedings be dismissed.
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 Spencer & Spencer (No 2) 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Numbers: WEA 21 of 2018 and WEA 15 of 2019
File Number: PTW 3125 of 2018
| Ms Spencer |
Appellant
And
| Mr Spencer |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ms Spencer, the appellant in appeals numbered WEA 21 of 2018 and WEA 15 of 2019 makes an oral application that I disqualify myself from hearing those two appeals.
The appeals were listed for hearing today, and the bench, of which I was the presiding judge, heard submissions first, from the appellant in support of the two appeals, and then heard submissions in response by counsel for Mr Spencer (“the respondent”), he opposing both appeals. Then, the Full Court heard the reply from the appellant, and was about to address the issue of the costs of the appeal when the application to which I have just referred was made.
The application is made on the basis of a reasonable apprehension of bias on my part, and in making the application, the appellant identified 10 matters which she says demonstrate that. Those matters are as follows.
First, my demeanour. The appellant submits that when she was making submissions in relation to her allegations that the primary judge in these proceedings demonstrated bias, I “rolled my eyes” and looked to my right-hand side.
Secondly, the appellant says that I was rude when making rulings on behalf of the Full Court as to the documents filed by the respondent in appeal no. WEA 21 of 2018 and, in particular, the summary of argument filed by the respondent on 30 April 2019.
Thirdly, the appellant submits that I allow counsel to do whatever they want, including to break the rules with impunity, and allow them to demonstrate a lack of respect for registrar’s decisions, as well as for self-represented litigants in the preparation, filing and serving of documents late, without reasonable excuse.
Fourthly, the appellant submits there is a perception of bias on my part in relation to her asking other judges to recuse themselves.
Fifthly, it is submitted that when I was talking to the respondent’s counsel about the application for an injunction made against the respondent’s legal representatives by the appellant, I indicated that that application has to be heard after all of the appeals are heard, and it is only then that the court can look at the respondent counsel’s alleged conduct.
Sixthly, the appellant submits that in making her submissions and raising issues, I responded by indicating that there was no evidence identified in support of those submissions, and that they were nothing more than generalised assertions.
Seventhly, the appellant submits that there is a perception of bias because I indicated that she had not raised before the primary judge the Income Tax Assessment Act 1997 (Cth).
Eighthly, the appellant submits that there is an apprehension of bias because I told her during her submissions, that she did not raise with the primary judge that she was biased when, in fact, the appellant says that she did.
Ninthly, the appellant suggests there is an appearance of bias because my demeanour has changed since a telephone hearing that I conducted earlier in these proceedings.
Tenthly, and finally, the appellant submits that there is a perception of bias because she expected me to be more like Walters J, who is the judge who heard the property settlement proceedings between these parties, and that she expected me to be willing to be fair and to uphold the law.
The law concerning disqualification on account of apprehended bias is well-settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the High Court said this:
6Where, 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.
…
8The 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.
…
[Footnotes omitted]
It is also of relevance here to refer to an earlier decision of the High Court, namely Johnson v Johnson (2000) 201 CLR 488, where the High Court said this:
12The 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”.
[Emphasis added]
I also refer to the High Court decision in Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, where Mason J said at 352:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. … [D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”.
[Emphasis added]
In my view, the tests laid out in Johnson and in Ebner, and particularly in Ebner, have not been satisfied. Specifically, the two steps that are required have not, in fact, been undertaken. Although the appellant has identified some of what she says might lead me, the judge, to decide the case other than on its legal and factual merits, she has not demonstrated that that is the case in relation to any of the matters she has raised, and nor has she articulated the logical connection between the matters and the feared deviation of deciding the case on its merits.
First, demeanour. I deny the allegation that during a discussion on whether the primary judge was biased, I rolled my eyes. Further, whether I looked to the right or not, in my view, does not in any way demonstrate any apprehension of bias on my part.
In relation to the second matter, the respondent made an application for an extension of time to file the summary of argument and list of authorities. That application was supported by an affidavit. That application was opposed by the appellant and she filed an affidavit expressing that. After hearing the submissions of the respondent in support of the application, and the appellant in opposition to it, and having read the affidavit material, the Full Court, of which I was a member, ruled that the application should be granted, and the specific order of the Full Court was that the respondent have leave to rely on the summary of argument and list of authorities. The Full Court indicated that it would provide reasons for that ruling with the reasons in relation to the appeal itself. For my part, the affidavit in support of the application amply explained the failure to comply with the timeframe for filing of the summary of argument and list of authorities, and no prejudice was demonstrated by the appellant in the late preparation, filing and serving of that summary of argument and list of authorities. In particular, there was no suggestion that the appellant had insufficient time to consider and ultimately deal with that summary of argument at the hearing of appeal no. WEA 21 of 2018.
I deny any suggestion that in delivering the ruling of the Court, I was “rude”.
As to the third matter, I reject entirely that anything I said during the hearing of the appeal could be interpreted as meaning that “counsel can do whatever they want and break the rules with impunity”, or that they can show “a lack of respect for registrar’s decisions”, or that they could show “a lack of respect for self‑represented litigants”.
In relation to the preparation, filing and “serving of documents filed late without reasonable excuse”, I take that to again refer to the ruling of the Full Court in relation to the application for an extension of time. I repeat, that there was a reasonable excuse set out in the affidavit in support of the application, and no basis is provided for suggesting that the ruling demonstrates an apprehension of bias.
In relation to the fourth matter, I reject entirely, that anything I said during the course of the appeal hearing today, should be interpreted as meaning that I was biased against the appellant because she has asked other judges to recuse themselves. Indeed, the appellant failed to identify what it is that I am alleged to have said.
As to the fifth matter, the context of that is that during the hearing of the appeal, the circumstance of the appellant having made an application for the three members of another Full Court bench that heard another of her appeals to recuse themselves, was referred to, and there was discussion in relation to an application also made by the appellant for an injunction against the respondent’s legal representatives in that same appeal. What was pointed out by me, on behalf of this Court, was that the injunction application could not be heard in that appeal before the three judges against whom the application for disqualification had been made, had dealt with that application. Again, there is no satisfaction by the appellant here of the first step of the test set out in Ebner.
Next, there is the submission that there was a perception of bias when I commented that there was no evidence identified in support of many of the matters raised by the appellant, and they were mere generalisations. This submission fails to satisfy the requisite test. In my capacity as a judge sitting on the Full Court, hearing appeals, it is appropriate for me to challenge the appellant in relation to the grounds of appeal, and one example of that is when an appellant makes a general assertion, it is necessary and appropriate to require the appellant to identify the basis of that assertion.
In relation to the assertion that I indicated to the appellant that she did not raise the Income Tax Assessment Act 1997 (Cth) before the primary judge, there was certainly a discussion in relation to whether that issue was raised and whether that Act was referred to. Indeed, time was taken to look at the transcript and I found the reference, not to the Income Tax Assessment Act 1997 (Cth) because, in fact, that was not referred to in her Honour’s reasons, but to the issue of rollover relief. Again, this does not demonstrate an apprehension of bias on my part.
Next, as to the allegation that there is a perception of bias because I indicated to the appellant that she did not raise with the primary judge that the primary judge was biased, that is in fact, not what happened. What happened was, it was identified that the appellant raised the issue of bias with the primary judge but did not make an application that the primary judge disqualify herself. That is what was referred to.
There is then the allegation that bias is demonstrated because “my demeanour changed since an earlier phone hearing”. With respect, I do not need to say anything at all about that. It does not come close to satisfying the requisite test.
Finally, there is the allegation that there is a perception of bias because the appellant “expected me to be more like Walters J” and, “be willing to be fair and to uphold the law”. I reject any suggestion that anything that I have said or done could indicate that I am not willing to be fair and to uphold the law.
Thus, to return to the two tests in Ebner. Plainly the appellant has sought to identify what I said or what I did which might lead me to decide a case other than on its legal and factual merits. However, nothing of what the appellant has suggested in the 10 matters that she has raised, do that. None of those matters identify a basis on which I might decide the case other than on its legal and factual merits. More importantly though, as I have identified, the second step has not been undertaken in relation to any of those 10 matters; there is no articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
It seems to me that the difficulty the appellant has in making this application is that she has overlooked that the test is objective, not subjective. The test is not whether the appellant considers that I am biased, the test 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 is required to decide.”
I also note that the application is opposed by the respondent, and I note the submissions made by the respondent’s counsel in support of that opposition.
In my view, this is nothing more than the appellant does not like how this appeal has proceeded, she does not like how I have presided in this appeal, and she does not like the challenges that I have made to her grounds of appeal as she has made her submissions. That is no basis for me to disqualify myself, and I dismiss the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 15 October 2019.
Associate:
Date: 29 October 2019
0
3
4