STEDMAN & STEDMAN

[2015] FamCA 330

FAMILY COURT OF AUSTRALIA

STEDMAN & STEDMAN [2015] FamCA 330

FAMILY LAW – COURTS AND JUDGES – Disqualification – Apprehended bias – where the matter to be heard is an application under section 44(3) of the Family Law Act 1975 (Cth) – where the wife makes the application – where cross-examination has been restricted to the question of leave – application dismissed.

Family Law Act 1975 (Cth)s 44(3).

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70

APPLICANT: Mr Stedman

RESPONDENT: Ms Stedman

FILE NUMBER: SYC 1497 of 2013

DATE DELIVERED: 26 March 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Hannam J

HEARING DATE: 26 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bell

SOLICITOR FOR THE APPLICANT: Champion Legal

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: H A Miedzinski Lawyers

Orders

1. That the application that I disqualify myself on the ground of apprehended bias be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stedman & Stedman 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 1497  of 2013

Mr Stedman

Applicant

And

Ms Stedman

Respondent

REASONS FOR JUDGMENT

1. This is an application made by the Respondent to an application for leave under section 44(3) of the Family Law Act 1975 (Cth) (“the Act”) that I disqualify or recuse myself on the basis of apprehended of bias.

2. The bias is said, as I understand it, to arise from my curtailment of cross-examination and in the words of the Applicant for disqualification, “failing to permit a line of inquiry which will ultimately support a submission that this is a perverse claim that is being made by the applicant for leave”.

3. The test for disqualification on the grounds of apprehended bias, set out by the High Court in Ebner v Official Trustee in Bankruptcy[1], is as follows at [6]:

   … 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. …

   [1] (2000) 205 CLR 337

4. In that case, the High Court went on to say that the application of the principle requires two steps.  First, it requires the identification of what is said might lead a judge to decide a case other than on its legal and factual merits.  Secondly, 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.

5. The first question, therefore, to determine in this case is whether in curtailing the cross-examination of a line of questioning of an applicant for leave in an interlocutory proceeding being an application under section 44(3) of the Act, I have demonstrated a prejudgment of the matter. If it is the case that this curtailment and the way in which I have required counsel, in effect, to conduct the case demonstrates prejudgment then there must also be a logical connection between this position and the possibility of a departure from impartial decision‑making.

6. There are a number of cases that assist.  Generally those deal with situations that are not the situation now before the Court as a number of them are directed to some form of issue of association between the judicial officer and the parties or subject matter or that sort of matter which would suggest that a judge would not be impartial.  That is not the nature of the application here.  There are others where some remarks made by the judicial officer are said to indicate prejudgment.  I note that in the course of the application relating to the curtailment of questions it also seemed to be suggested that there had been prejudgment because of some other remarks that I had made at various times throughout the proceedings.

7. In respect of that latter type of application another High Court case which, in my view is relevant here, is Laws v Australian Broadcasting Tribunal[2] Gaudron and McHugh JJ said (at page 100):

   … A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry [citations omitted].

   And went on to say that:

   This Court rejected [page omitted] the notion that a fair and unprejudiced mind was "necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it". …

   [2] (1990) 170 CLR 70

8. In this matter from the outset I did make it clear that, in my view, an application of this kind in accordance with the authorities is not to be a testing of the trial which on the Applicant’s case ought to proceed but on the Respondent’s case ought not to proceed.  This issue has pervaded a number of applications throughout the proceedings including objections in relation to evidence and objections in relation to lines of questioning.

9. In my view, a fair-minded lay observer would observe that throughout the proceedings there have been objections by both sides.  Both series of objections have been listened to and I have given rulings which in some cases have favoured the Applicant and in other cases have favoured the Respondent.  I have reiterated and have exercised control over the proceedings.  I have said, in my view, on a number of occasions that the efforts by the Respondent are in essence directed to the ultimate matter to be heard which is not a proper exercise of the time that has been dedicated to this inquiry.

10. Taking those matters into account and that a fair-minded lay observer is taken to be a reasonable person and also that the person being observed is a professional Judge, in all of the circumstances I am not of the view that the curtailment of cross examination does demonstrate a prejudgment of the issue to be determined in this matter and on that basis I do not disqualify myself.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 26 March 2015.

Associate:

Date:  7 May 2015