Stapleton and Bryant

[2009] FamCA 144

FAMILY COURT OF AUSTRALIA

STAPLETON & BRYANT [2009] FamCA 144

FAMILY LAW – COURTS AND JUDGES - Disqualification
FAMILY LAW – COURTS AND JUDGES - Bias

Family Law Act 1975 (Cth)

Johnson v Johnson (2000) 201 CLR 488
Re JRL ex parte CJL (1986) 161 CLR 342

APPLICANT: Ms Stapleton

RESPONDENT: Mr Bryant

FILE NUMBER: MLC 553 of 2007

DATE DELIVERED: 25 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 25 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.J. McLeod

SOLICITOR FOR THE APPLICANT: Jeremy Harper & Associates

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED
By Consent

1. That each of the parents shall forthwith do all things necessary to ensure the child commences school forthwith at B Grammar School for grades Prep to 12.

2. That the mother shall be responsible for all tuition fees and school expenses with respect to the school.

By the Court

1. That otherwise the mother’s application filed 18 February 2009 shall be adjourned to a telephone mention before Registrar Field on Monday 2 March 2009 at 3.00pm.

2. That the father’s application for me to disqualify myself is dismissed and there shall be a transcript of my reasons for judgment given today, retained on the Court file.

3. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Bryant & Stapleton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 553 of 2007

MS STAPLETON

Applicant

And

MR BRYANT

Respondent

REASONS FOR JUDGMENT

1. I heard this parenting case in June 2008. The father has since filed a Notice of Appeal against my orders of 19 June 2008. 

2. The mother has now filed an application for an order as to where the child should go to school.  The child, almost 6, is the victim of her parents' dispute, and their lack of successful communication.  I can observe that, without visiting the fault in any particular direction at this stage, the child has missed the start of her prep year.  That means that her cohort is one month into the term and it is urgent that a decision be made for her.

3. The mother's application and affidavit were filed on 18 February.  The father says he was only served last Friday.  He has brought a response and affidavit to court.  I will give him leave to file them.  They have only been served on Mr McLeod for the mother this morning.

4. As a preliminary matter, the father seeks an order that I disqualify myself from determining this matter, on the basis of bias.  He points to the fact that his appeal against my decision is pending.  In his Notice of Appeal he complains of a multitude of errors on my part that I can summarise as mostly relating to failing to place appropriate weight on aspects of the evidence, erring in various conclusions on the evidence, and failing to give cogent reasons in some respects.

5. In the 42 paragraphs and eight closely typed pages of his Notice of Appeal filed on 17 July 2008, it seems that the fatherhas relied on only one ground where he has referred to a lack of procedural fairness.  That related to whether or not an expert witness was given certain material to read.

6. In his affidavit for today's proceedings, I note he says that he has filed an Amended Notice of Appeal.  A quick look at the court file suggests to me that he maybe proposing to do that, but as yet it has not been filed.  In any event, he has attached the proposed Amended Notice of Appeal to his affidavit.  Apart from alleging that lack of procedural fairness in relation to documents provided to the Family Report writer, the still very lengthy grounds of appeal otherwise refer to various errors of law, and of weight, and in the exercise of my discretion.  Although it is not a Notice of Appeal based on grounds of bias or a lack of procedural fairness, in fairness to him, he might ultimately try to persuade the Full Court that in combination, those grounds show some sort of bias or lack of procedural fairness.

7. The relevant principles as to disqualification can be found in the High Court decision in Johnson v Johnson (2000) 201 CLR 488. The majority, Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ held (at page 492) that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias 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.

8. The High Court emphasised that the hypothetical reasonable observer of the judge's conduct is postulated, in order to emphasise that the test is objective.  Their Honours referred to Mason J (as he then was) in Re JRL ex parte CJL (1986) 161 CLR 342, where his Honour observed (at page 351) that:

   There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties.  This does not mean either he will approach the issues in that case otherwise than with an impartial and unprejudiced mind.

   His Honour later continued on the same page:

   Disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established".

   His Honour went on to say:

   Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking a disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

9. That passage of Mason J in Re JRL ex parte CJL was considered specifically by Kirby J in Johnson's case (at page 504). He noted, in reflecting on what Mason J had said, that judges:

   …were told not to accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek such a disqualification without justification.  Applications of that kind might sometimes be made in the hope of securing an adjudicator more sympathetic to a party's cause.

10. It is clear that it is not a sufficient basis for there to be apprehended bias just because a judge has previously made a decision against what a party had sought.  It is the apprehension of bias in the mind of a fair-minded objective observer, not a disappointed litigant, that must be considered.

11. Similarly, it is not a sufficient basis for a judge to disqualify himself or herself that the case is pending appeal.  If it were, then a judge could never, for example, hear a stay application.  To the contrary, it is the rule that the trial judge should, if available, be the one to hear such an application.

12. That the father seeks to appeal my decision is absolutely his right.  My reasons for judgment, transparently given, can be reviewed by an appeal court of three judges. That is the robustness, and part of the appropriate checks and balances, of our system of justice.  It cannot mean though that just because a disappointed party says there was bias that there was in fact bias or an apprehended bias in the mind of the fair-minded observer.

13. I am satisfied that a reasonable apprehension of bias has not been firmly established in this case.  The father himself in his material today points to and emphasises a number of findings I made against the child’s mother in my reasons for judgment.  Although he disputes the result, as he is entitled, I am satisfied that on the test as to 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 before the court today, he or she could not reasonably hold that apprehension.  So the application in that respect is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  25 February 2009