Stephens and Stephens (No. 2)

[2011] FamCA 343

FAMILY COURT OF AUSTRALIA

STEPHENS & STEPHENS (NO. 2) [2011] FamCA 343

FAMILY LAW - COURTS AND JUDGES – Disqualification – Recusal application – Application dismissed.

British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429
Johnson & Johnson (No. 3) (2000) FLC 93-041
Landy & Landy (2005) FLC 93-245

APPLICANT: Ms Stephens

RESPONDENT: Mr Stephens

FILE NUMBER: MLF 2847 of 2002

DATE DELIVERED: 7 April 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms MacMillan SC

SOLICITOR FOR THE APPLICANT: Kennedy Partners

THE RESPONDENT: In Person

Orders

IT IS ORDERED THAT:

1. The oral application of the husband for me to recuse myself be and is hereby dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2847 of 2002

Ms Stephens

Applicant

And

Mr Stephens

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. The matter listed before me today is the wife’s application initiating proceedings filed 31 March 2011, in which she seeks injunctive relief against the husband in relation to various matters, including the future dissemination of material by him which may impugn her character and, it would appear, injunctive relief for her personal protection generally. 

2. When the file was delivered to my chambers some days ago, I read the wife’s affidavit in support sworn 28 March 2011, in which she deposes :

   In particular, the husband has written a letter dated “March 2011” which he has circulated to all staff members at [a school] (where I have worked for 12 years), the contents of which are untrue, scandalous and offensive and which is clearly intended to impugn my reputation and cause me embarrassment, humiliation and distress.  A true copy of that letter is annexed and marked “HMM-1”.

3. Disregarding the matters of opinion contained in the paragraph, it is apparent that she alleges the husband made statements to all staff members at the school.  I arranged for the matter to be mentioned and it duly was by telephone yesterday afternoon. 

4. At that mention, Ms Grobtuch appeared on behalf of the wife and the husband appeared in person.  I indicated to them that the mother of a member of my personal staff in the Court works at the school.  The husband promptly responded, “Yes, your Honour.  I don’t think that should affect the matter at all, but thank you for informing me.”  Ms Grobtuch on behalf of the wife also raised no issue.

5. I then made it clear that I would sit to hear this matter at 10 am this morning, on the basis that there would be no application for my disqualification based on that disclosure.  Both parties agreed that no such application would be made. 

6. Today, when the matter was called shortly after 10 am, the husband rose and said, in effect, “we object to your Honour hearing the case”.  By “we”, the husband was referring to himself.  He then made what I am prepared to accept was an oral application for my recusal, based on a reasonable apprehension that I would not bring an impartial mind to the case, by virtue of the mother of my staff member working at the same institution as the wife.  The husband said that he did not realise that I was referring to the particular staff member yesterday afternoon and said that, “it is serious”.  He did not say much more than that in support of his application.

7. I turned to counsel for the wife, Ms MacMillan, who indicated that her client still had no objection to me continuing to hear the case.  Ms MacMillan submitted that the husband had waived any rights to seek a disqualification based on the information imparted yesterday.  There is considerable merit in what she says.  What the husband said during the telephone mention yesterday may, in my view, amount to a waiver by concession.  However, I will allow him to make the application today.  The application will consume some court time, but it is in the interests of justice that he make the application.  Ms McMillan’s further submissions were, in effect, that the husband had not made out a case for my disqualification. 

8. The relevant authorities include the case of Johnson & Johnson (No. 3),[1] in which the High Court, comprising Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, said:

   It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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.

   That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done.  It is based upon the need for public confidence in the administration of justice.  “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.”  The 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”.

   Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.  The rules and conventions governing such practice are not frozen in time.  They develop to take account of the exigencies of modern litigation.[2] (footnotes omitted)

   [1] (2000) FLC 93-041.

   [2] Johnson & Johnson (No 3) (2000) FLC 93-041, at 87,631-87,632.

9. That decision was recently approved of in British American Tobacco Australia Services Ltd v Laurie.[3] 

   [3] (2011) 273 ALR 429.

10. The husband bears the persuasive onus in his application that I recuse myself.  Having regard to the tests which are stated above and which I accept are relevant to this case, I am not satisfied that a fair minded lay observer might reasonably apprehend that I would not bring an impartial and unprejudiced mind to the resolution of the case. 

11. I also have regard to the decision of Guest J in the matter of Landy & Landy,[4] which was another relevant case in which the recusal of the judicial officer was sought based on a relationship or association giving rise to an appearance of bias or lack of impartiality.  His Honour there stated:

    [4] (2005) FLC 93-245.

    A most helpful discussion on this issue may be gained from Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd and Anor (1996) 65 FCR 215 at 244 where Merkel J, when considering Kennedy v Cahill made the following observation:

    “It is likely that the conclusion was arrived at on the basis that the close and serious relationship would be perceived to involve an emotional or relational interdependence which might reasonably be perceived to have a capacity to influence how the judge might approach the resolution of the matter to be decided. In that regard that case may be analogous to cases where it might be perceived to be inappropriate for persons in marital or analogous relationships to appear before their partner as an adjudicator.”

    His Honour then referred to Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 where, at page 543-5, Bray CJ, when dealing with the issue of a relationship between judge and counsel observed:

    “Nevertheless it seems to me that there must be cases where a judge would be disqualified because of his connection with one of the counsel appearing before him. I should think, for example, that he or she would be disqualified if his or her wife or husband sought to conduct a case before him. I should think he would be disqualified if he were an employee of the counsel.”

    It was the view of Merkel J that those two cases demonstrated the requirement for:

    “A cogent and rational link between the association and its capacity to influence the decision to be made in the particular case. It is the capacity of the association to influence the decision, rather than the association as such that is disqualifying.” (p 226)[5]

    [5] Landy & Landy (2005) FLC 93-245, at 80,030.

12. The husband has not demonstrated that there is any connection between a remote association, being that disclosed by me yesterday, and the decision‑making process and my ability to bring to bear an impartial mind.  I add here that if I held concerns that the relevant tests had been breached independently of the husband’s submissions, I would not hesitate to recuse myself.  Put another way, if I was in genuine doubt, the husband would get the benefit of that doubt.  However, I have no doubt in this case. 

13. I raised the connection because I do not keep secrets from litigants and because it would not have been known to them otherwise.  I did not do so because I apprehended that it was a connection which I find uncomfortable or unacceptable in all of the circumstances of the case, including my task to deal with the matter impartially and fairly.  I regard it as an unexceptional ingredient of ordinary working life. 

14. Accordingly, I dismiss the husband’s oral application for me to recuse myself and will proceed to hear the application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 7 April 2011.

Associate: 

Date:  18 May 2011