Walker and Page
[2020] FamCAFC 226
•8 September 2020
FAMILY COURT OF AUSTRALIA
| WALKER & PAGE | [2020] FamCAFC 226 |
| FAMILY LAW – APPEAL – PROPERTY – Where the husband appeals from the primary judge’s refusal to recuse herself – Where the husband attempts to appeal from procedural orders – Where no competent appeal lies from procedural orders – Where the husband’s basis for the primary judge’s recusal was that her Honour would be prejudiced by her gender – Where such an argument is clearly without merit – Appeal dismissed – Where the wife’s failure to file a costs schedule as per Court orders negates her application for costs – No order as to costs. |
| Family Law Act 1975 (Cth) ss 94AAA(3), 94AAA(7), 117 |
| Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 372 ALR 555 Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Paintal & Paintal [2020] FamCAFC 123 Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207 Walker & Page (No 2) [2018] FCCA 3032 Walker & Page (No 2) [2019] FamCAFC 134 |
| APPELLANT: | Mr Walker |
| RESPONDENT: | Ms Page |
| FILE NUMBER: | BRC | 1066 | of | 2017 |
| APPEAL NUMBER: | NOA | 114 | of | 2019 |
| DATE DELIVERED: | 8 September 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 8 September 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 November 2019 |
| LOWER COURT MNC: | [2019] FCCA 3829 |
REPRESENTATION
| THE APPELLANT: | Self-represented |
| THE RESPONDENT: | Self-represented via telephone |
Orders
The husband be granted leave to rely on his Summary of Argument filed on 17 August 2020.
The appeal be dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walker & Page has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURSIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 114 of 2019
File Number: BRC 1066 of 2017
| Mr Walker |
Appellant
And
| Ms Page |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Mr Walker (“the husband”) and Ms Page (“the wife”) are engaged in protracted property settlement proceedings in the Federal Circuit Court of Australia (“the FCC”) which continue now more than 10 years after their final separation.
On 17 July 2018, a Judge in the FCC delivered reasons and made final property settlement orders between the parties after a two day trial (Walker & Page (No 2) [2018] FCCA 3032).
Notably at that trial findings were made that the parties’ combined non- superannuation assets were worth a total of $152,293.37. Adding the combined values of their respective superannuation the total pool as found amounted to a modest $212,084.75. It would appear obvious that matters other than the amount of the subject property interests at issue in these proceedings must be driving this protracted litigation.
The husband appealed from the final orders made on 17 July 2018. It was concluded on appeal that an order for indemnity against the husband rendered the result unjust and inequitable and the orders were set aside and the proceedings were remitted for rehearing (Walker & Page (No. 2) [2019] FamCAFC 134).
Consequent upon the remittal of the proceedings, the parties came before the primary judge on 14 November 2019. The matter was adjourned over to 25 November 2019, it seems due to the husband’s insistence that there remained before the FCC, a significant number of outstanding Applications in a Case which the primary judge wished to ascertain the status of. When the matter returned, the primary judge explained to the parties how it is that, at that time, the only outstanding matter before the Court was the substantive issues which required a trial.
The subject orders made on 25 November 2019 provide for, in summary:
a)A dismissal of the husband’s oral application for the primary judge to recuse herself;
b)Orders requiring disclosure of documentation as between the parties; and
c)Trial directions to ready the proceedings for trial on 12 March 2020.
By Notice of Appeal filed on 13 December 2019, the husband appeals from those orders. The wife opposes the appeal. Leave was given to the husband to rely upon his Summary of Argument filed outside the time prescribed. No objection was raised.
The appeal is to be heard and determined by a single judge pursuant to a direction made pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
In my opinion, this appeal must be dismissed and as it does not raise any question of general principle, reasons for that conclusion may be given in short form (s 94AAA(7) of the Act). In my opinion, the lack of any substance in the appeal renders the conclusion that reasons in short form are all that is necessary.
The husband’s challenges
The husband seeks to dispute on appeal the primary judge’s conclusion that there were no outstanding Applications in a Case standing in the way of the matter being set down for trial. The essential contention of the husband is that the primary judge erred in setting down the proceedings for a trial when there remained, on his case, outstanding Applications in a Case. However, after a review of the Court file, in conjunction with consideration of the detailed reasons of the primary judge, it is clear to me that the primary judge’s account of the fate of each of the nine Applications in a Case filed by the husband, and two Applications in a Case filed by the wife over the life of these proceedings was accurate. There is no substance in this complaint.
Whilst the husband purports to appeal from the entirety of the orders made by the primary judge, as I explained to the husband today, procedural orders, such as those requiring parties to comply with their disclosure obligations or orders setting proceedings down for a trial, are not orders from which a competent appeal lies (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Tallant & Kelsey (2016) FLC 93-742; Paintal & Paintal [2020] FamCAFC 123). The husband’s appeal in that regard must be dismissed.
I interpolate here that I attempted to explain on several occasions in the course of the hearing this morning, that in the face of the primary judge, having made an order for formal disclosure, if it be that the husband contends that the wife’s disclosure is inadequate, he can bring an application to the FCC in an effort to prove that is the case and in an effort to obtain further specific orders for disclosure by way of enforcement. The alternative is to proceed to a trial and test the wife via cross-examination as to the adequacy of the disclosure that she has made.
There being no substance in those aspects of the challenges on appeal that leaves only the husband’s appeal from the primary judge’s refusal to recuse herself, as the matter to be determined by this Court on appeal.
The husband’s application for the primary judge’s recusal
On 25 November 2019, the husband made submissions which, on his case, warranted the recusal of the primary judge. They are the same arguments which the husband advances on appeal to establish error on the part of the primary judge. They can be summarised in this way:
a)The primary judge is a female who was, before her appointment to the FCC, a female family law practitioner;
b)The wife in these proceedings is a current practicing family law practitioner who runs her own family law practice and regularly appears in the FCC family law jurisdiction; and
c)The primary judge and the wife are both members of:
i)Women’s Lawyers Association of Queensland;
ii)Women’s Legal Service; and
iii)Family Law Practitioners Association.
The following extract of transcript from the hearing on 25 November 2019 contains, in the husband’s own words, his position in relation to his recusal application:
[MR WALKER]: Well, I’m asking you to recuse yourself – that a fair minded lay observer might form the opinion that you are a female judge, previously a female family court lawyer. The respondent is a female solicitor.
…
HER HONOUR: If that is the basis, I would not accept that as a basis for recusal.
[MR WALKER]: Fine
HER HONOUR: Is there another basis?
[MR WALKER]: Fine. That you have both attended the same meetings on the same date.
HER HONOUR: Well, I don’t know the answer to that.
[MR WALKER]: I do.
HER HONOUR: And I wouldn’t accept that as a basis for recusal either.
[MR WALKER]: And, further, you both, being female family court judges, are – you do support each other, and I would submit that the bias is unknown - - -
HER HONOUR: Yes, all right.
[MR WALKER]: - - - and apprehend, but a fair minded lay observer would affirm that
HER HONOUR: Good, thank you
[MR WALKER]: - - - you both are female family court lawyers. You both attend the same associations, and that there will be a degree of unknown bias, as has been established.
HER HONOUR: Thank you. I understand your application and I would dismiss it
(Transcript 25 November 2019, p.16 line 25 to p.17 line 15)
The test for reasonable apprehension of bias is well known. As the High Court said in Johnson v Johnson (2000) 201 CLR 488 at 492, it 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.
(Footnote omitted)
The husband acknowledged on the hearing of this appeal that his argument concerning apprehended bias was a weak argument. With respect, that understates the position.
It is, in my opinion, a ludicrous argument to suggest that the gender of a judge may be a legitimate foundation for an apprehension of bias. Moreover, even though the husband has no evidence to corroborate his case that the primary judge and the wife are members of the same legal practitioners groups, even if that were accepted to be so, that too, is, without more, a baseless argument for an apprehension of bias.
As it seems to me, the argument advanced by the husband at first instance was actually informed by the husband’s misconceived view that the primary judge would favour any female over any male in proceedings her Honour was determining. That view is supported by the following extract of the transcript, which occurred after the primary judge dismissed the husband’s recusal application:
[MR WALKER]: You know, and I’ve just been sitting in the back of your court, and every single man gets reamed.
(Transcript 25 November 2019, p.18 lines 17-18)
Putting aside the inappropriate and disrespectful attitude the husband displayed to the primary judge from the outset of the hearing, to make an allegation as serious as that levelled by the husband requires a high level of corroborated evidence which, on any view, the husband completely lacks.
This argument is completely without merit and I reject it.
Conclusion and costs
The husband’s appeal is completely lacking in merit and will be dismissed.
In the event of such dismissal, the wife seeks costs of the appeal on a party and party basis pursuant to s 117 of the Act. However, despite the orders of a Registrar dated 17 July 2020 which required any party who intended to seek costs to file a schedule of those costs, the wife instead filed written submissions on costs, but did not provide any itemisation or schedule of those costs in accordance with the scale.
Within the submissions filed by the wife, she fails to articulate the quantum of costs actually sought or what items, per the relevant scale, comprise such costs. Moreover, as the wife appeared self-represented before me and prepared obviously much of her material for this appeal, she would not be eligible to claim any costs referable to her own work (see Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555).
In all the circumstances, I do not propose to make any order for costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 8 September 2020, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 8 September 2020
1
6
1