Xavier and Munoz

[2014] FamCA 899

FAMILY COURT OF AUSTRALIA

XAVIER & MUNOZ [2014] FamCA 899

FAMILY LAW – PRACTICE AND PROCEDURE – Disqualification – Where it was appropriate for Johnston J to recuse himself from the proceedings.

Family Law Act 1975 (Cth)

Johnson v Johnson (No.3) (2000) FLC 93-041

APPLICANT: Ms B Xavier

RESPONDENT: Mr Munoz

FILE NUMBER: SYC 5198 of 2010

DATE DELIVERED: 15 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 15 July 2014

REPRESENTATION

FOR THE APPLICANT: Ms Xavier in person

FOR THE RESPONDENT: Mr Munoz in person

Orders

1. That leave is given to the wife to file an Application in a Case in Court today.

1. That the Court notes that Johnston J recuses himself from these proceedings.

1. That these proceedings are adjourned to the docket registrar at 9:00 am on 4 August 2014 for a telephone directions hearing and for this purpose:

·Dial … from any telephone

·When requested, enter the Meeting number, *…* (please don’t forget to press the *(star) key before and after the number);

·You will hear music until the Registrar joins the conference.  Conferences are generally limited to about 15 minutes.  Please make sure you are available to participate in the conference at the commencement time.  Be aware that there may be more than one matter being heard by way of InterCall link-up.  Each matter will be announced by the Registrar when they are ready to proceed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xavier & Munoz 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 SYDNEY

FILE NUMBER: SYC 5198 of 2010

Ms B Xavier

Applicant

And

Mr Munoz

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms B Xavier (“the wife”) for me to recuse myself in substantive property proceedings between herself and Mr Munoz (“the husband”). 

2. On 19 May 2014 I was hearing a considerable number of applications in a very busy duty list.  My recollection is that there was an application in a case by Mr Munoz on that occasion which had been referred to me by the registrar. 

3. After I had some preliminary discussion with each of the parties, I recall looking at the file and endeavouring to ascertain from the yellow and pink sheets which represent the court record in the proceedings some brief understanding of the procedural history of the substantive proceedings between the parties.  What I discovered caused me great concern.  That was because the substantive proceedings had commenced something like four years previously and I do not think had progressed even to the stage where there had been a satisfactorily completed financial conciliation conference. 

4. From what I could see of the court record, a great deal of court time had been invested by various registrars and then by Rees J over a long period, endeavouring to assist each of the parties to bring the matter to a state of readiness so that there could be a proper conciliation conference.  There are two other parties to the proceedings.  The wife’s mother, Ms M Xavier, and I think the married parties’ daughter.  Rees J had been involved in the matter over quite some period and apparently her Honour had had difficulty in making various orders trying to deal with a considerable number of issues between the parties about various aspects of these very complex proceedings.  Her Honour after such a long contribution in these proceedings had ultimately had to recuse herself from the proceedings in circumstances where there had somehow been disclosed an offer that one of the parties had made to the other.  I think that is what had happened. 

5. In those unfortunate circumstances, and particularly bearing in mind the long period of time that it had taken for the substantive proceedings to not get very far down the procedural pathway, I formed the view that the best thing I could do in terms of trying to assist all of the parties to prosecute these proceedings and bring these proceedings to finality would be to bring the matter into my own docket of cases and endeavour to case manage the matter with a view to trying to get it on for an early hearing.

6. In that process, I raised some criticisms of each of the parties.  At one point I had indicated that neither of the parties had complied with directions that the court had made. The wife took great exception at the time and she has given me the impression again that she took great exception in her address to me today about the matter.  As it turns out, I was of the mistaken view that Rees J had ordered the parties to file affidavits and they had not complied with that direction, but, in fact, it turns out that, from what I have been able to see of the yellow sheets today, her Honour did not order such affidavits and I was mistaken in my impression about that.  But there have been other occasions where orders reaching right back into the history of the matter have been made and neither of the parties has a perfect record in terms of complying with those directions.

7. The wife now says that such was my conduct of the matter on the last occasion that she has an apprehension that I would not be able to bring an impartial mind and impartial approach to hearing the substantive proceedings out of a perception that she has arising out of my very limited case management of this matter.  For example, the wife says at paragraph 11 of her affidavit in support of the application on 19 May:

   Johnston J left me feeling intimidated, denied me procedural fairness and his conduct made me look like a charlatan who has wasted taxpayers’ money in this Family Court proceedings.

   And there were references made in the affidavit about how the wife felt about things on that occasion.  My recollection of matters on that occasion was that I took a very robust approach, time being very limited.  It is true that I spoke over each of the parties and that was in circumstances where, certainly on occasions, I had asked the parties direct questions and I was not getting a responsive answer to those direct questions.  Those matters which I was raising with each of the parties were with a view to endeavouring, in as quick a time as possible, to improve my understanding of the issues and the history of the matter.  I was asking questions which were directed to trying to identify what the real issues were in the case between the parties so that I could endeavour to make some directions which would have enabled the issues to be spelt out in terms of the relevant evidence.  That was the reason for the manner in which I dealt with the matter on that occasion.

8. I recall at one point interrupting the parties when – I think it was Mr Munoz started to speak to me with a very loud voice and I have noticed again today he does have a very loud voice.  Perhaps my perception was not entirely correct.  I thought it was at the time.  My perception was, such was the volume of his address towards me, that I regarded him as shouting at me and also shouting at Ms B Xavier.  When Ms B Xavier joined in and started what I thought was shouting over Mr Munoz, I felt the court had a duty to try and bring back some dignity to the place.  I pointed out to the parties that I thought they were behaving in a manner which was offensive, and certainly offensive to this Court.  I regarded that behaviour as certainly being grossly discourteous not only to each other, but also to this Court that just reinforced, in my mind, the need for the Court to take a fairly robust approach to the matter, especially bearing in mind its very long history, and the fact that a system has simply failed to produce a result in these proceedings.  That was the explanation for the robustness of my approach on that occasion.

9. The test which is applied in disqualification applications has been set out in many high authorities in this country and others over the years.  It has been referred to in a judgment of the High Court of Australia in Johnson v Johnson (No.3) (2000) FLC 93-041. The High Court said at page 87,631 as follows under the general heading of The governing principles:

   It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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 that the judge is required to decide. 

10. So ultimately, the question that is to be asked is would a fair-minded lay observer in the court 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.  I must say, given the volume of the parties on the last occasion, and given the robustness of my approach, I cannot say that it would be impossible that a person sitting in the back of the courtroom might not have thought that.  I think it probably also illustrates some of the difficulty for judges case managing applications with considerable robustness and then going on to determine the substantive proceedings.

11. I note that the husband opposes the wife’s application. 

12. In all the circumstances, in my view, the appropriate thing is to recuse myself from these proceedings.  My view about this might have been slightly different if matters had progressed before me a considerable distance from where they have, but there is really very little loss to these parties in starting before somebody else. 

I certify that the preceding twelve (12) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 15 July 2014.

Associate:     

Date:  15 July 2014