Tedja and Sony (No 2)
[2014] FamCAFC 111
FAMILY COURT OF AUSTRALIA
| TEDJA & SONY (NO. 2) | [2014] FamCAFC 111 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks that the appeal judge disqualify himself – where the respondent opposes the application – where the test of apprehended bias is not satisfied – application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – TRANSCRIPT – where the applicant seeks that the court pay the cost of transcript of the hearing before the Federal Circuit Court judge – where such an order is made on very rare occasions – where the applicant is now employed – where it is apparent that the applicant can afford to pay for the transcript – where there is no basis for the application to succeed – application dismissed. |
| ||||
| APPLICANT: | Mr Tedja | |||
| RESPONDENT: | Ms Sony |
| FILE NUMBER: | MLC | 7099 | of | 2012 |
| APPEAL NUMBER: | SOA | 12 | of | 2014 |
| DATE DELIVERED: | 23 June 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 23 June 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 28 January 2014 |
| LOWER COURT MNC: | [2014] FCCA 275 |
REPRESENTATION
| THE APPLICANT: | In Person by telephone |
| COUNSEL FOR THE RESPONDENT: | Ms Matthews |
| SOLICITOR FOR THE RESPONDENT: | Women’s Legal Services Victoria |
Orders
The application in an appeal filed on 9 May 2014 be dismissed.
The application in an appeal filed on 19 May 2014 be dismissed.
The respondent serve her summary of argument filed on 12 June 2014 upon
Mr Tedja via his email address […].
IT IS NOTED THAT
The respondent does not seek an order for costs in relation to either application that has been dismissed today.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tedja & Sony has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 12 of 2014
File Number: MLC 7099 of 2012
| Mr Tedja |
Applicant
And
| Ms Sony |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
The first application before the court today is an application in an appeal filed by Mr Tedja (“the applicant”) on 9 May 2014 in which in effect he seeks an order that I be disqualified from hearing the substantive matter that is before the court, and also from any future hearing that may be before the court.
There is an affidavit filed in support of that application and I will return to it later in these reasons.
Ms Sony (“the respondent”) although having not filed any documents, has indicated through her counsel today that she opposes the order that is sought.
To put the application into context, the substantive matter that I referred to is an appeal filed by the applicant against an order made by Judge Burchardt of the Federal Circuit Court on 28 January 2014. That order was that “[a] divorce order be made, such divorce order to take effect and thereby terminate the marriage on 1 March 2014”.
As can be seen from that order what was before Judge Burchardt was an application for divorce filed by the respondent. The applicant opposed that application submitting that Australia was an inappropriate forum to hear and determine that divorce application, given that there were divorce proceedings that he had commenced overseas. As is obvious from the order that his Honour made, his Honour found against the applicant and granted the divorce. To repeat, the appeal is against that order.
The appeal came before me on 7 May 2014 on a directions hearing. I was able to conduct that directions hearing because the Chief Justice had provided a direction pursuant to ss 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single judge.
At the directions hearing I listed the appeal for hearing and made orders to prepare the appeal for hearing.
I stress that it was a directions hearing, and it was not the hearing of the appeal. However, as is my usual practice, on that day I explored briefly with the applicant, who appeared in person as he does today, the appeal and the basis for it, but of course, as I say, that was in no sense a hearing of the appeal. It was following that directions hearing that the applicant filed his application seeking my disqualification.
It is somewhat difficult to discern then what the applicant’s complaint is in relation to the directions hearing, but it seems that the applicant is drawing on an earlier application in an appeal that was heard by me in support of his application that I disqualify myself. That was an application in an appeal filed by the applicant on 14 October 2013 in which he sought an extension of time to appeal against parenting orders made by Judge Connnolly of the Federal Circuit Court on 6 May 2013. The applicant had failed to file a Notice of Appeal within the time allowed under the Family Law Rules 2004 (Cth) (“the Rules”) and thus he was seeking an extension of time to institute an appeal.
That application came on for hearing before me on 26 February 2014 and I dismissed the application.
The law concerning disqualification on account of apprehended bias, which is what this is about, is well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the High Court said this:
6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. It is convenient to refer to it as the apprehension of bias principle.
7The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. 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. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
…
19Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
…
21It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
24In Webb v The Queen (1994) 181 CLR 41 at 74, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference.
[Footnotes omitted]
It is also of relevance here to refer to the earlier High Court decision of Johnson v Johnson (2000) 201 CLR 488 where the High Court said this at 493:
12… 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”.
[My emphasis]
I also refer to the High Court decision in Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, where Mason J said, at 352:
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. … [D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”.
[My emphasis]
In this case the test laid out in Johnson and in Ebner have not been satisfied. In particular the two steps referred to in Ebner have not been undertaken by the applicant. Not only has he failed to identify what it is said might lead me, the judge, to decide the case other than on its legal and factual merits, but he has not articulated the logical connection between the matter and the feared deviation of deciding the case on its merits.
The evidence before me comprises the affidavit of the applicant filed on 9 May 2014. It is an affidavit the majority of which is irrelevant to the application for disqualification, as has been pointed out by Ms Matthews for the respondent. However, I need to refer to some parts of that affidavit to emphasise why, in my view, the applicant has not satisfied the relevant tests.
When I say that the majority of that affidavit is irrelevant, I am referring to the fact that a good deal of it relates to the dispute, as it was, before Judge Burchardt. It prompted me today to ask the applicant whether he was confusing me with Judge Burchardt, because it seems to me at least, that he is. He seems to be attributing things said by Judge Burchardt to me.
I also stress again that I have not heard this matter, all I have done is conduct a directions hearing.
In any event, in trying to discern any relevant claims that the applicant puts in support of his application, he says for example in paragraph 9 of his affidavit, “[i]n short, I say Judge [sic] Strickland lack of willingness to acknowledge the facts or favourably chose not to be neutral in the proceeding;”. Then, in paragraph 10 he says this, “[t]he very principle matter was also not taken into account when Judge [sic] Strickland also deliberately ignored dual jurisdictions issue in this matter;”. I pause here, that is the type of comment that prompted me to ask the applicant about whether he was confusing me with Judge Burchardt. In any event these are mere allegations without any evidentiary basis.
In paragraph 8 of his affidavit the applicant says this:
However, during the appeal for case number SOA 62/2013, Judge [sic] Strickland, in a prejudice fashion, labelled appellant as being ‘prejudice’ for revealing or disclosing the extra marital affair fact behind all these Family Court proceedings;
That makes it clear that the applicant, as I said before, is drawing on the earlier hearing in support of his application that I disqualify myself. However, what the applicant has overlooked is that what I said about, as he describes it, “the extra marital affair”, is that I found it was irrelevant to the application in an appeal that he was then bringing.
Again though there is no evidence of any prejudice against the applicant. What it is evidence of is that I have made a finding, but the applicant is not prepared to accept that finding. I refer again to the principles that apply in this area. It is not the case that a judge will disqualify himself or herself because a party does not like a decision a judge makes, yet it is quite apparent that that is what this is about. The applicant in his affidavit suggests that he does not like an earlier decision that I have made. That is not a basis for disqualification.
The applicant has repeated some of those things in oral submissions today. He says that I am not impartial, he says that I am prejudiced, he says that I am not neutral, and he says that I do not like him. Easy allegations to make but where is the evidence? That of course is a rhetorical question, because there is none
To repeat, the applicant has not satisfied the steps set out in Ebner. He has not established that “a fair-minded lay observer might reasonably apprehend that [I] might not bring an impartial mind to the resolution of the question [I am] required to decide.”
For those reasons I propose to dismiss the application in an appeal filed on
9 May 2014.
The second application that is before me today is an application in an appeal filed by the applicant on 19 May 2014 in which he seeks that, in summary, the court pay the cost of obtaining the transcript of the hearing on 28 January 2014 before Judge Burchardt.
As one of the directions made by this court on 7 May 2014 to prepare the matter for hearing, the applicant was ordered to obtain a copy of the transcript and provide copies to the court and to the respondent. That was to be done by Wednesday 4 June 2014.
The applicant, as I say, has now filed this application on 19 May 2014 seeking that instead the court pay for the transcript. He has filed a financial statement in support of that application which indicates that at the time of swearing that document namely, 19 May 2014, he was receiving a Newstart Allowance and a Family Tax Benefit. He also filed an affidavit in support of that application on 27 May 2014.
What is apparent is that at that time the applicant was suggesting that he was unable to afford all or part of the cost of the transcript. However the applicant has confirmed today that he is now employed as a contractor with a government department in New South Wales; he started work two or three weeks ago, and his net weekly income is $1,222 per week.
When I challenged the applicant as to whether in those circumstances he still pursued his application, he indicated that he did, and thus I have had to proceed with the hearing and determine the application.
As I explained earlier to the applicant, the court does not have a budget to provide transcript to parties, and thus to make the order that he seeks would impinge on other necessary expenditure for the proper operation of the court.
It is open to this court to make an order that the court meet the costs of any transcript, but it is a rare case indeed where that is done. It is usually only done where the subject of the dispute is parenting orders, and that of course is not the case here. In any event, the applicant is now employed, and it is quite apparent that he can afford to pay for the transcript. Thus there is no basis for the application to succeed, and I propose to dismiss it.
As to whether the applicant will now comply with the order that he obtain the transcript, I make the following comments. The appeal is against a divorce order. As I understand it the issue involved is a legal one namely, whether Australia is a clearly inappropriate forum. His Honour found it was not and made the order. Thus, I am not convinced that there is a need for the transcript. The applicant of course did not raise that at the directions hearing but it always remains a matter for him. If he suggests that there is something said by the Federal Circuit Court judge, or by him, or by the other side, during the course of the hearing that demonstrates that the Federal Circuit Court judge made an error, then there is a need for the transcript, or that part of it relating to what was said. However, if the applicant does not rely on anything said during the hearing as demonstrating an error by the Federal Circuit Court judge, then there is no need for the transcript.
We have of course the judgment by the Federal Circuit Court judge which set out the issues, and indeed sets out in some detail the applicant’s argument.
I leave that thought with the applicant, and to repeat, just so there is no confusion about it, the need for transcript only arises if the applicant says that there was something said during the hearing either by the judge, or by one of the parties or their legal representatives, which demonstrates that the judge made an error. It is up to the applicant now to take that on board and make his decision, but if his decision is that he still needs the transcript then he will have to pay for it.
I note that the respondent does not seek any order for costs in relation to either application that has been dismissed today.
I further note that the applicant has not yet received the respondent’s summary of argument filed on 12 June 2014. I propose to order that the respondent serve that document on the applicant via his email address.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on
23 June 2014.
Associate:
Date: 26 June 2014
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