Strahan and Strahan - [2009] FamCA 186

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN

[2009] FamCA 186

FAMILY LAW – COURTS AND JUDGES – Disqualification – application by wife seeking disqualification of judge on ground of apprehended bias – whether comments made by the judge during hearings following the application for disqualification would lead to a reasonable apprehension of bias or show prejudgment – where the wife was previously employed by the judge and another legal practitioner – where a written reference was provided to the wife – whether a fair-minded lay observer would reasonably apprehend the judge may not bring an impartial and unprejudiced mind to the resolution of the matter due to the wife’s previous employment and the circumstances surrounding the termination of that employment – application for disqualification dismissed

Family Law Act 1975 (Cth)

Johnson v Johnson (2000) 201 CLR 488
Re JRL; Ex parte CJL (1986) 161 CLR 342
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
S & M Motor Repairs Pty Ltd & Ors v Caltex Oil (Australia) Pty Ltd & Anor (1988) 12 NSWLR 358

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

INDEPENDENT CHILDREN’S LAWYER:

Ann Bills

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

13 March 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

26 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pyke QC with
Mr Holland

SOLICITOR FOR THE APPLICANT:

Pederick Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Ackman QC with
Ms Macmillan

SOLICITOR FOR THE RESPONDENT:

Robinson & Mason

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ann Bills & Associates

ORDERS

That the Application in a Case filed by the wife on 20 January 2009 and the Response filed by the husband on 25 February 2009 be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

MS STRAHAN

Applicant

And

MR STRAHAN

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me an Application in a Case filed by the wife on 20 January 2009 in which she seeks that I be disqualified from further hearing this matter on the ground of apprehended bias. The husband, in his Response to an Application in a Case filed on 25 February 2009, seeks that the wife’s application be dismissed and that the wife pay the husband’s costs on an indemnity basis. The Independent Children’s Lawyer also opposes the application.

Brief Background

These are long running proceedings in which the parties seek orders with respect to both parenting issues and property settlement.
The husband and the wife are both aged 46 years. They married in 1994 and separated in January 2005. There is one child of the marriage, namely a son S, born in June 1996 and who is now aged 12 years.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Strahan and Strahan

Details

AGLC: Strahan and Strahan [2009] FamCA 186
Case: [2009] FamCA 186
Decision Date: 13 March 2009

CaseChat Overview and Summary

In the matter of *Strahan and Strahan*, the wife sought the disqualification of the presiding judge from hearing her application for disqualification, alleging apprehended bias. The husband opposed this application.

The court was required to determine three issues: first, whether apprehended bias arose from comments made by the judge during earlier hearings concerning the wife's application for disqualification; second, whether the wife's application for disqualification was valid, given her past employment in 1981 and the circumstances surrounding its termination; and third, whether the wife had waived her right to bring the disqualification application.

The judge considered the wife's submission that a fair-minded lay observer might reasonably apprehend bias due to comments made during hearings on 19 January, 20 January, 23 January, and 3 February 2009. The wife relied on a comment made on 19 January 2009, where the judge stated, "Clearly there's nothing in this per se." The judge noted that this comment, when viewed in context with the preceding discussion about the wife's proposed application and the need for further evidence, did not demonstrate a prejudgment of the issues. The judge also referred to Mason J's statement in *Re JRL; Ex parte CJL* that an apprehension of bias must be "firmly established" and that disqualification requires showing a reasonable apprehension of bias by reason of prejudgment, not merely that the judge might decide adversely to a party.

The application by the wife for the judge's disqualification, and the husband's response, were dismissed and removed from the active pending cases list.

Orders

Orders of the court

That the Application in a Case filed by the wife on 20 January 2009 and the Response filed by the husband on 25 February 2009 be dismissed and removed from the active pending cases list.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I also note that Mason J in an earlier decision of Re JRL; Ex parte CJL (1986) 161 CLR 342 outlined, at 352, that an apprehension of bias must be “firmly established”. His Honour said this:“It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. 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. 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. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, 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": Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [29] ; Watson [30] ; Re Lusink; Ex parte Shaw “ (Emphasis added, footnotes omitted) Ms Pyke QC, senior counsel for the wife, identified at the hearing that there were three separate issues for determination. The first issue, in addition to the basis for disqualification outlined in the wife’s affidavit filed 20 January 2009, is that I should not hear the application for disqualification because of apprehended bias arising from comments made by me at the hearings on 19 January, 20 January, 23 January and 3 February 2009. The second issue for determination is the application for disqualification arising from the wife’s employment in 1981 and the events surrounding the termination of that employment. The third issue is whether the wife has waived her right to bring that application. I will deal with each of these in turn. The wife submits that as a result of comments made by me at the hearings on 19 January, 20 January, 23 January and 3 February 2009 a fair-minded lay observer might reasonably apprehend that I may not bring an impartial and unprejudiced mind to the resolution of the application for disqualification. Ms Pyke took me to various extracts from the transcripts of those proceedings in support of this submission. The first comment referred to by Ms Pyke is a comment I made at the hearing on 19 January 2009 with respect to the wife’s proposed application that “[c]learly there's nothing in this per se.” The extract below from the transcript (p 9, line 43) puts this comment in context:HIS HONOUR: I mean, that's the issue, Mr Holland. I mean, is there further evidence to come on which you base your application? MR HOLLAND: Yes, there will be. HIS HONOUR: It's not just the fact that I - well, take it at face value - employed her and provided a reference to her ‑ ‑ ‑MR HOLLAND: No. HIS HONOUR: - - - which is what - this is as far as that takes it, of course.MR HOLLAND: Yes. It's more than that.HIS HONOUR: Clearly there's nothing in this per se. MR HOLLAND: Yes, well, there will be some evidence about the circumstances surrounding it, but that's the basis of the relationship, if you like, for the purpose of the application. There will be some other things in the affidavit aside from that.HIS HONOUR: Thank you. All right, which would go to, you say, apprehended bias. All right. Mr Ackman, I mean, I still need to see - I mean, just as Mr Holland has indicated, there's more to come. MR ACKMAN: I knew that. HIS HONOUR: My immediate reaction to this is not necessarily as blunt as "So what?" This takes it to a certain degree, but it doesn't ‑ ‑ - (Emphasis added)

Ratio Decidendi

Legal Principle Established

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