SPENCER & SPENCER - [2019] FamCAFC 180

FAMILY COURT OF AUSTRALIA

SPENCER & SPENCER

[2019] FamCAFC 180

FAMILY LAW – APPLICATION IN AN APPEAL – DISQUALIFICATION – Application for disqualification on the basis of apprehended bias – Application made orally – Exchanges between judge and appellant – Application dismissed.

Family Law Act 1975 (Cth) s 79
Family Law Rules 2004 (Cth)

Antoun v The Queen (2006) 80 ALJR 497; [2006] HCA 2
Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

APPELLANT:

Ms Spencer

RESPONDENT:

Mr Spencer

FILE NUMBER:

PTW

7180

2010

FIRST APPEAL NUMBER:

WEA

2018

SECOND APPEAL NUMBER:

WEA

2019

DATE DELIVERED:

15 October 2019

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Ryan J

HEARING DATE:	15 October 2019
LOWER COURT JURISDICTION:	Family Court of Australia

LOWER COURT JUDGMENT DATE:

25 May 2018

29 March 2019

LOWER COURT MNC:

[2018] FCWA 100
[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 Ryan recuse herself 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 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 Number: WEA 21 of 2018; WEA 15 of 2019
File Number: PTW 7180 of 2010

Ms Spencer

Appellant

And

Mr Spencer

Respondent

ex tempore REASONS FOR JUDGMENT

I am one of three judges presently engaged in hearing two appeals by Ms Spencer (“the appellant”). The first appeal is in relation to the refusal of the appellant’s application for costs in proceedings undertaken between her and Mr Spencer (“the respondent”). The other appeal concerns the dismissal of the appellant’s application pursuant to s 79A of the Family Law Act1975 (Cth) (“the Act”). It is important to understand that there is no appeal against the orders made pursuant to s 79, in relation to which the application pursuant to s 79A was made.
Both the costs appeal and the s 79A appeal include challenges against the constitution of the Court, in particular, that the primary judge in those matters should have recused herself and/or, that the trial reasons make it apparent that the outcome is tainted by apprehended bias. I mention this because in the Summaries of Argument and Lists of Authorities relied upon by the appellant in those appeals, she traverses the well-known authorities concerning challenges to the constitution of the court, in particular, when there is an application that a judge stands aside as a consequence of apprehended bias.
To found a recusal it must be established that a fair-minded lay observer might apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]) (“Ebner”). To satisfy that test, the applicant must first identify the matter that it is said might lead the judge to not bring an impartial mind to the resolution of the issue (Ebner at [8]) and secondly, the applicant must demonstrate a logical connection between the identified matter and the possibility that the judge might depart from impartial decision-making (Ebner at [8]).
As to the characteristics of the hypothetical observer, in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232] the New South Wales Court of Appeal said:
…[T]he hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.
Such a person should not therefore be taken to be completely unaware of the way in which cases are brought to trial and tried (Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [177]).
Furthermore, it is well settled that just as the judge should to a proper extent listen, so the judge should to a proper extent express any tentative views (Antoun v The Queen (2006) 80 ALJR 497 at [32]) (“Antoun”). Where these views are couched appropriately, at the proper time and in due sequence, no reasonable apprehension of bias will arise (Antoun at [27]). However, “[a] line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment” (Antoun at [29]).
The appellant was invited to identify what it is that I have said or done which would create the apprehension of bias.
Doing the best that I can with the points that were made, they seem to be these:
1.The major issue is observations by me that the appellant’s submissions in the appeals were made without an apparent evidentiary foundation and were too generalised and, in an instance, required the leave of the Court to go beyond the submission being made;
2.The appellant was cut off at some point;
3.The perception in the appellant that the financial consequences of the termination of the P3 partnership which occurred with the death of the respondent’s mother (she being a one-third partner in that partnership) have been sidelined;
4.That the respondent did not complete his disclosure obligations and the consequences of that were simplified by me as being simply the death of the respondent’s mother and observations by me that the consequences of the death of the respondent’s mother qua the partnership were minimised as being, in effect, that the respondent’s mother’s estate and the respondent’s father had become the owners of what remained of the respondent’s mother’s interest in the P3 partnership; and
5.That I agreed with the other judges that the respondent should be given an extension of time so that he could rely on a Summary of Argument and List of Authorities (in appeal 15 of 2018), notwithstanding that those documents, were not filed in accordance with the directions of a registrar.
The link or feared deviation is that the hypothetical observer would believe that the appeals, to the extent that I am part of them, would not be determined on their merit. Although the word was not used, the flavour of the submission is that the hypothetical observer might apprehend prejudgment in the sense that before the hearing of the appeals was finished, I had determined that the appeals would be unsuccessful. In other words, it is argued that the hypothetical observer would apprehend that the appellant had not been given a completely fair hearing. I hope I have done justice to the argument made today as to the conduct said to give rise to apprehended bias.
Of course, the hypothetical observer would understand that in an appeal, the judges may well engage with the arguments advanced as they are made. And invite clarity, whether it be for a point of law or an evidentiary point, where detail is lacking. A legal point that is unclear or apparently mistaken may well be the subject of further discussion or comment.
It would also be understood that a judge need not fully restate each and every point at length and that, in the interests of efficient use of court time, points can be distilled to their essence, not so as to create misunderstanding but on the basis that those involved would understand the gravamen of the exchanges.
I do not accept the suggestion that the hypothetical observer would apprehend bias as a consequence of the decision to allow the respondent to rely on a Summary of Argument and List of Authorities that was filed late. The Family Law Rules 2004 (Cth) clearly contemplate that an extension of time may be given and the bystander who, as I have indicated, is not completely unaware of the way cases are conducted, would understand that this was an orthodox application of the law. The bystander might not agree with the ultimate decision on the point, but the bystander would not be troubled by it in a way so as to create an apprehension of bias as to the constitution of the court.
Nor would the bystander accept the proposition that by speaking of the death of the respondent’s mother, that the consequences of her death qua the P3 partnership were overlooked. The exchange would be viewed fairly and in context. Considered in that light, the bystander would easily understand that this was a shorthand reference to the bigger issue raised by the appellant. That impression would have been reinforced by the engagement with the appellant by the bench on that point, over a fairly considerable period of time during the hearing of the appeals.
The assertion that the appellant was cut off is generalised and, albeit the argument is being advanced this afternoon without the benefit of the transcript, if the appellant was cut off in relation to a matter of some moment, the hypothetical bystander would have expected her to at least be able to indicate, in broad terms, the subject matter under discussion. At this stage I am not able to accept that this assertion is well made and, if perchance it is, it is not accepted that the appellant was denied the opportunity to complete whatever point it was that she sought to complete before the appellant closed her argument in support of the two appeals.
The hypothetical observer would not be troubled by a judge of appeal attempting to distil the particulars of the challenge/complaint when it appeared that the particularity was lacking or, indeed, to ask an appellant to identify the evidence upon which a submission was presented. The hypothetical observer would be more likely to interpret this as a sign of interest by the court and an attempt to ensure that there was proper engagement with the argument being advanced.
Whether considered individually or cumulatively, it is my view that the hypothetical observer would not apprehend that I would not bring an impartial mind to the resolution of either the costs appeal or the s 79A appeal, and the application that I recuse myself will be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 15 October 2019.

Associate:

Date: 22 October 2019