WELCH & ABNEY

[2015] FamCA 151

FAMILY COURT OF AUSTRALIA

WELCH & ABNEY [2015] FamCA 151

FAMILY LAW – PROPERTY SETTLMENT – Interlocutory Application – Where the husband sought disqualification of the docket judge from any further determination of the parties’ property settlement dispute on the basis of apprehended bias – Where the wife sought dismissal of the husband’s application – Where the Court is unable to discern a proper basis for the disqualification – Husband’s application dismissed

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488

APPLICANT: Ms Welch

RESPONDENT: Mr Abney

FILE NUMBER: NCC 629 of 2013

DATE DELIVERED: 24 February 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 24 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tregilgas

SOLICITOR FOR THE APPLICANT: Burke & Mead Lawyers

COUNSEL FOR THE RESPONDENT: Ms Ryan

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The substantive proceedings are adjourned to 9.30 am on Friday, 27 March 2015 for further procedural directions.

1. The following interim applications are adjourned for consideration before the Registrar at 9.30am on Tuesday, 17 March 2015:

a.Application in a Case filed by the wife on 10 February 2015; and

b.The Response to an Application in a Case filed by the husband on 20 February 2015.

IT IS FURTHER ORDERED THAT

1. The Application in a Case filed by the husband on 21 January 2015 is dismissed.

1. Save as to costs, the Response to an Application in a Case filed by the wife on 6 February 2015 is dismissed.

2. The wife’s costs of and incidental to the interim hearing conducted today are reserved.

3. Otherwise, any and all outstanding applications for interim orders are dismissed.

NOTATIONS

A.The parties inform the Court that all single expert reports have now been received with the exception of the report by Mr Harben SC, which report is due to be published to the parties by 24 March 2015.

B.The parties inform the Court that a conference is to be held with the single expert, Mr B on 6 March 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Welch & Abney has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 629 of 2013

Ms Welch

Applicant

And

Mr Abney

Respondent

EX – TEMPORE

REASONS FOR JUDGMENT

1. The proceedings before the Court concern a husband and wife. The proceedings between them were commenced by the wife on 20 March 2013, shortly following an incident to which I shall shortly advert. The proceedings between the parties grew to encompass both orders relating to their children, pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), and orders for the adjustment of their property interests, pursuant to Part VIII of the Act.

2. The aspect of the case pertaining to their children was consensually resolved by the parties in July 2014, when final orders were made between them regulating the parenting regime for their children. 

3. After that date, the only issues in dispute related to their property. In that context, in October 2014, an interim dispute between the parties over their property was determined by me. The proceedings were then adjourned to this date for further procedural directions, in expectation that the substantive property settlement dispute would move in an orthodox fashion to final hearing. 

4. In the meantime, on 21 January 2015, the husband filed an Application in a Case seeking a variety of orders, including in particular my disqualification from any further determination in the proceedings and, moreover, the disqualification of the other judge sitting in the Newcastle registry of the Family Court. It is that application which is presently before the Court for consideration. 

5. The application was opposed by the wife. She filed a Response to the Application in a Case on 6 February 2015 seeking dismissal of the husband’s application with an order for costs against him.

The Evidence

1. In support of his Application in a Case, the husband relied upon his affidavit filed on 21 January 2015, though a number of objections were successfully taken to the admissibility of some of the evidence contained within that affidavit. 

2. In support of her Response, the wife relied upon her affidavit filed on

   
   

   6 February 2015, but similarly, some objections to the admissibility of some of the contents of that affidavit were successfully sustained.

Consideration

1. The nub of the husband’s application is my disqualification from further consideration of the parties’ property settlement dispute on the basis of apprehended bias. 

2. The principles pertaining to apprehended bias are quite settled (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345; Johnson v Johnson (2000) 201 CLR 488 at 492). In those cases, it was observed that:

   … 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.

3. Application of that principle actually entails two distinct steps, as was explained by the High Court in Ebner (at 345) in the following terms:

   First, it requires the identification of what it is said might lead a judge … 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 … 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.

4. There are recognised to be four distinct, but overlapping, categories of cases covered by the doctrine of apprehended bias.  The first is disqualification by interest; the second is disqualification by conduct; the third is disqualification by association; and the fourth is disqualification by extraneous information. 

5. At the commencement of her submissions, counsel for the husband articulated that there were two discrete aspects of the disqualification application.

6. The first was my having witnessed an incident in which the husband attempted to self-immolate in a public street in Newcastle on 15 March 2013, which fact must pertain to the fourth category of case mentioned above. There is no dispute that I saw the husband attempt to do that, because I announced the fact to the parties when they first appeared before me in 2013. My revelation of that observation did not stimulate any application for disqualification at that particular time, though counsel for the wife now takes no issue with the delay in the lodgement of the disqualification application.

7. The second aspect of the disqualification application relates to the alleged manner in which I adjudicated the interim dispute between the parties on

   
   

   16 October 2014, which fact must pertain to the second category of case mentioned above. 

8. Although both aspects of the application were relied upon in aggregation, it is appropriate that I deal with them individually. 

9. As I have indicated, the incident that I observed nearly two years ago on

   
   

   15 March 2013 was revealed by me in open court to the parties long ago. When that revelation was made by me in open court, it was in the context that the proceedings were unresolved both as to parenting and property. I can understand how my having witnessed the husband attempt to self-immolate in a public street might have had a bearing upon any inference drawn about his state of mind and, consequently, his parenting capacity, but no disqualification application was then made and the parenting dispute was later settled and consent orders made in July 2014. 

10. At the time the disqualification application was made by the husband in January 2015, the only dispute between the parties related to the adjustment of their property interests. I indicated to the husband’s counsel that I had difficulty in drawing any nexus between my uncontroversial observation of the husband’s attempt to self-immolate nearly two years ago and the existence of a reasonable apprehension of my bias in the determination of the still live property settlement proceedings. As I understood it, counsel for the husband accepted the logic of that argument and abandoned reliance upon my having witnessed that event as any proper basis for the disqualification application, notwithstanding counsel’s initial submission that my observation of that event was of “primary” importance to the success of the husband’s application.

11. Even if that abandonment had not been expressly made, I would rely upon that chain of logic to dismiss the disqualification application insofar as it relies on that foundation. I am not satisfied, referring to the principles falling from Ebner and Johnson, that my observation of the husband enables any logical connection between the husband’s fear and any reasonable apprehension that I would deviate from the proper course of deciding their property settlement dispute on its merits. It was nothing more than a bare assertion of his subjective, rather than reasonably objective, opinion. 

12. I turn therefore to the second aspect of the disqualification application, which refers to the manner in which I adjudicated their interim property dispute in October 2014. 

13. The husband deposed several times over in his affidavit that I used “strong and emotive language” in the ex-tempore reasons I delivered to determine their interim applications. I do not doubt that, for the purposes of determining this application, the husband felt distraught at the outcome of the interim hearing in October 2014, but I fail to see how his distress could logically be founded upon the manner in which I adjudicated the parties’ applications.

14. I have had recourse to the ex-tempore reasons that were delivered by me on 16 October 2014, and I accept the submission made by counsel for the wife that there is a marked lack of “strong and emotive language” contained in those reasons. 

15. Being as fair as I can to the husband, the only instances which could conceivably support the opinion about the distress revealed in his affidavit are as follows: 

    (a)at [20] of my reasons, where I referred to the husband’s “elliptical” reference to some debts; 

    (b)at [58], where I referred to the wife’s proposal in respect of one aspect of their dispute being significantly more sensible than the husband’s; 

    (c)at [64], where I referred to the psychological fragility of both parties; 

    (d)at [65], where I observed that there was nothing about the husband’s financial circumstances to suggest that he was impecunious or indigent; 

    (e)at [69], where I observed that the husband had ignored the wife’s earlier proposal for an injunction, which motivated her to bring her initial interim application; 

    (f)at [70], where I referred to the husband’s conduct of the interim proceedings in respect of two proposed injunctions being unreasonable; 

    (g)at [72], where I observed that it escaped me how the husband was able to maintain one of the submissions made on his behalf in those proceedings; and

    (h)at [76], where I referred to both parties appearing to have experienced emotional difficulties in the past.  

16. Doing the best I can, I am unable to identify any reason given by me on

    
    

    16 October 2014 that could logically account for the distress that I am prepared to accept the husband honestly felt on that day. But of course, as I have already outlined, the legal basis for my recusal is not how honestly or genuinely the husband perceives my bias to be. It is an objective rather than subjective test. Were it otherwise, few cases would be heard. A litigant could have a judge recused on the basis of a mere belief the judge was not prepared to decide the case in that party’s favour.

17. The law requires me to identify the basis upon which it is alleged the perception of bias would exist and to identify the logical connection between that and the feared deviation from judicial impartiality. I am unable to discern a proper basis for my disqualification from further determination of these proceedings on either basis contended, individually or in aggregation, and for that reason the husband’s application will be dismissed. 

18. Since his application for my disqualification is dismissed, it is unnecessary to consider the additional orders he proposed for the recusal of the other sitting Newcastle judge.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 24 February 2015.

Associate: 

Date:  10 March 2015