VICKERS & PHILLIPS

[2016] FCCA 313

FEDERAL CIRCUIT COURT OF AUSTRALIA

VICKERS & PHILLIPS [2016] FCCA 313

Catchwords:
FAMILY LAW – Practice and procedure – application for trial judge to recuse herself from continuing to hear the trial.

Ebner v Official Trustee in Bankruptcy [2000] HCA 63

Applicant: MR VICKERS

Respondent: MS PHILLIPS

File Number: MLC 7196 of 2014

Judgment of: Judge Harland

Hearing date: 5 February 2016

Date of Last Submission: 5 February 2016

Delivered at: Melbourne

Delivered on: 5 February 2016

REPRESENTATION

Counsel for the Applicant: Ms Williams

Solicitors for the Applicant: Kenna Teasdale Lawyers

Counsel for the Respondent: Mr Stavris

Solicitors for the Respondent: James Harris Lawyers

ORDERS

1. The oral application that Her Honour Judge Harland recuse herself from these proceedings is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7196 of 2014

MR VICKERS

Applicant

And

MS PHILLIPS

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The current application before me is an application that I recuse myself on the grounds of apprehended bias.  This oral application was made on the second day of the property hearing. 

3. The grounds that the wife makes in support of her application are the following. Firstly, she complains that yesterday, I pointed my finger at her counsel, and that that has given her cause to be concerned that I am not exercising an impartial, independent view of this case.  She says that she said to her counsel yesterday “we haven’t got a hope.  Can this possibly occur in Australia?”

4. The second complaint raised is that Ms Williams has been making facial gestures to me yesterday and today, and that I have not called attention to that and addressed it. 

5. The third complaint is that there is a perception that I am treating each counsel in this case differently and the example provided was when earlier today Mr Stavris was continuing his cross-examination of the husband and Ms Williams stood, without saying the words “I object”. She made submissions and had been making submissions for at least a sentence or two when I observed that Mr Stavris had remained standing. It is well-known that there are rules of courtesy of the Court, where one party stands at a time. 

6. Those are the issues that have been raised before me for me to determine this application.  Ms Williams resists the application for me to recuse myself.  The authorities with respect to applications for judges to recuse themselves on the grounds of apprehended bias are well-established.  A leading case on this issue is Ebner v Official Trustee in Bankruptcy [2000] HCA 63.

7. The principles set out in Ebner’s case have been adopted in other more recent decisions, and are…