SWEEP and SWEEP

[2017] FCWA 161

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SWEEP and SWEEP [2017] FCWA 161

CORAM: DUNCANSON J

HEARD: 16 NOVEMBER 2017

DELIVERED : 16/11/2017

FILE NO/S: PTW 5569 of 2011

BETWEEN: MR SWEEP

Applicant

AND

MS SWEEP
Respondent

Catchwords:

PRACTICE AND PROCEDURE - Recusal of judicial officer

Legislation:

Family Law Rules 2004 (Cth) r 5.02(1)

Category: Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: No Appearance

Solicitors:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

Case(s) referred to in judgment(s):

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Johnson v Johnson (2000) 201 CLR 488

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The application for determination is an application in a case filed by the husband, [Mr Sweep] on 6 November 2017. In his application the husband seeks an order in the following terms:

Justice Duncanson to recuse herself.

2The wife, [Ms Sweep] has not filed a response.

3In support of his application the husband filed an affidavit on 6 November 2017. As to his evidence the husband deposes:

I affirm this affidavit is in support of the form 2 application in a case for the matter PTW 5569 of 2011 for the recusal of Susan Duncanson. Refer to any and all previous affidavits filed in the Family Court of Western Australia where Susan Duncanson is the presiding judicial officer for PTW 5569/2011.

4Although the husband's affidavit does not comply with r 5.02(1) of the Family Law Rules 2004 (Cth) in that it does not state the facts relied on in support of the orders sought, the affidavit was accepted for filing.

BRIEF BACKGROUND

5By way of brief background I delivered judgment in the parties' property proceedings on 9 August 2017. By Notice of Appeal filed 20 September 2017, the husband appealed orders dated 12 September 2017. By application filed 5 October 2017, he has applied for various orders including a stay of those orders. That application has been listed for hearing on 7 December 2017 before me in the Duty Judge List.

6Also on foot are the parenting proceedings between the parties and I refer to the applications filed in that respect below. The parties are to attend a child inclusive conference with Family Consultant Biffen on 27 November 2017 at 9.15 am. I had intended that once that conference had taken place the interim applications with respect to parenting issues and orders sought by the husband regarding the publication of court documents by the wife would be relisted. It had been my intention to deal with those matters at the same time as they are contained within the same application, namely that of the husband filed 15 May 2017 and the response of the wife filed 10 July 2017. I was also mindful of the difficulty in finding time to deal with the many matters arising out of these proceedings.

7Turning to the application before the court today I have, as requested by the husband, referred to his previous affidavits for the evidence in support of his application. He said he relies on previous applications in respect of which orders were made although he was not served. He refers to the audio of the various proceedings. Although I cannot be certain, it appears to me that his affidavit filed 5 October 2017 is most likely to be the affidavit containing the evidence in support of his application.

THE LEGAL PRINCIPLES

8The husband applies for an order that I recuse myself although it is unclear whether that is on the basis of either actual bias or apprehended bias. The test to be applied in determining each basis is different.

9In the case of assertion of actual bias the test is a subjective one based upon the state of mind of the decision maker. In Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Gleeson CJ and Gummow J said as follows (footnotes omitted):

71… Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

72… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. This preliminary argument should be rejected.

10In Johnson v Johnson (2000) 201 CLR 488 the High Court set out the test in relation to an assertion of apprehended bias (footnotes omitted):

… whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudicial mind to the resolution of the question the judge is required to decide.

11In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the High Court confirmed the determination in Johnson.

12In Ebner the High Court explained that the application of the principle involves two steps. The first step is to identify what it is that might lead a judge to decide a case other than on its legal and factual merits. The second step is the consideration of "the logical connection" between the matter identified and the feared deviation from the course of deciding the case on its merits. Only then can the reasonableness of this asserted apprehension of bias be assessed.

DISCUSSION

13At paragraph 3(o) of his said affidavit filed 5 October 2017 under the heading "Justice Duncanson", the husband states "Her honour shows bias, apprehended or otherwise". In the circumstances I have had to do the best I can with the evidence upon which I think he relies.

14Under the heading "Initiating application(s)" the husband deposes that on 19 September 2016 he filed a reply to response to the wife’s initiating application. He further deposes that his said reply to response has been "closed by Justice Duncanson". He goes on to say it is reasonable to say that "closing" an initiating application without hearing, notice and/or judgment is prejudice.

15I assume in this respect, the husband asserts actual bias.

16When the judgment was handed down in the parenting proceedings on 2 June 2016, an order was made that the proceedings insofar as they related to children's issues be otherwise dismissed. On 25 July 2016, the wife filed an initiating application seeking parenting orders. She then filed an amended response on 2 September 2016 in which she also sought parenting orders. The husband filed a reply to response on 19 September 2016. During the course of dealing with the application before me today I have ascertained that the wife’s said amended response and the husband’s said reply to response were finalised in Casetrack on 9 August 2017 when property orders were made. The finalisation of the amended response and the reply to response was an administrative action taken without my knowledge and not at my direction. This administrative error can be rectified. I did not "close" the husband's reply and at the hearing on 29 September 2017 was not aware it had been finalised in Casetrack. In these circumstances that cannot be said to constitute actual bias on my part.

17That matter will be rectified and Casetrack records amended to show the reply to response is not finalised leaving on foot applications by both parties for parenting orders.

18In his said affidavit filed 5 October 2017, the husband refers to the hearing on 29 September 2017. He attended by telephone, the wife attended in person.

19At that time I understood the husband's reply to response was still on foot. I ordered that the parties and the children attend a child inclusive conference with Family Consultant Biffen on 27 November 2017. I did this to enable me to ascertain the views of the children who are currently aged 13 and 12 years. I had ascertained the availability of the family consultant prior to the hearing. I considered it was an appropriate way to promptly obtain some information as to those views which would be of assistance to me in determining parenting issues on an interim basis.

20The husband filed a Notice of Appeal in respect of the orders dated 29 September 2017 on 5 October 2017.

21The husband asserts that in ordering the child inclusive conference I had predetermined the matter as I had no intention of engaging an independent expert, especially one who may affirm his views and those of the previous single expert witness, Mr Menage. I did not determine the husband's application for the appointment of a single expert witness because the proceedings had been listed for directions only and that issue and all other interim issues were to be dealt with when the proceedings were relisted for hearing after the conference had taken place.

22In relation to the proceedings on 29 September 2017, the husband describes my behaviour as alarming. He says he was denied the right to be heard. The husband deposes that he "struggled with opportunities to respond on outstanding applications/matters without interruption and being overridden in what may be considered as a rude tone and manner" by me.

23He says his telecommunications were "deliberately and maliciously disconnected" by me and that I performed this action to avoid further evidence being presented. He refers to my "intent" with respect to the proceedings and says I am unable to remain impartial. I assume from this that he asserts apprehended bias.

24At the commencement of the proceedings on 29 September 2017 I informed both parties that the matter was back for a short directions hearing and that what was before the court was the application of the husband and the response of the wife in relation to the parenting matters and the publication of court documents. I informed the parties that I had inquired of the family consultant as to the possibility of a child inclusive conference which would involve interviewing the children, which the family consultant had said could be listed on 27 November 2017 at 9.15 am. That course of action was acceptable to the wife but not to the husband. I told the parties that the option of the appointment of a single expert witness remained.

25The husband agreed that independent evidence regarding the children was required, but sought the appointment of an independent expert. He spoke in support of that request and quoted some cases.

26I interrupted the husband after a period of time and informed him that he would have an opportunity to make more detailed submissions at a later date and I reminded him that the hearing was for directions only. The husband responded that my decision was prejudiced as predetermination had occurred.

27I ordered that the parties and the children attend a child inclusive conference.

28I ordered that the proceedings stand adjourned generally to be relisted after the family consultant's report had been received and upon the relisting, the matters to be determined were those contained in the husband's application in a case filed 15 May 2017 and the wife’s response filed 10 July 2017, which include parenting issues and matters relating to the publication of court documents.

29I have therefore not determined the husband's application for the appointment of a single expert witness or the other orders sought. I do not consider I have predetermined that issue.

30I gave both parties an opportunity to respond to my orders. The husband sought to raise several other matters with me. I explained again that the hearing was for directions only and that I would allocate time to hear the outstanding matters. I repeated the matter was for directions only, but the husband said there were other matters he wished to discuss. He said he wished to be heard and had a right to be heard.

31I then brought the hearing to a conclusion. The husband kept speaking. He then referred to the initiating application in relation to the children and his response of 19 September 2016 and while he did so, I adjourned the court and left the court room. While the husband was still speaking my associate put down the phone.

32The husband therefore attempted to raise with me the issue of the reply to response filed 19 September 2016 which I now, but did not then know, had been finalised in Casetrack and which ought not to have been.

33In these circumstances where I did not allow the husband to raise this further matter, it is not impossible that a fair-minded lay observer in the court might reasonably apprehend that I might not bring an impartial and unprejudicial mind to the resolution of the question I am required to decide.

34I have concluded the appropriate course of action is for me to recuse myself from these proceedings.

THE ORDERS

1That Duncanson J recuses herself from the proceedings.

2The hearing date on 7 December 2017 be vacated.

3The file be referred to the List Judge for further directions.

4The Casetrack records be amended to record that the Reply to Response filed by the husband on 19 September 2016 is not finalised.

5The application in a case filed by the husband on 6 November 2017 be otherwise dismissed.

I certify that the preceding [34] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate