RADER & RADER (No.3)

[2019] FCCA 2825

FEDERAL CIRCUIT COURT OF AUSTRALIA

RADER & RADER (No.3) [2019] FCCA 2825

Catchwords:
FAMILY LAW – Application for recusal – application dismissed.

Cases cited:

Johnson v Johnson (2000) 201 CLR 488

Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337.

Applicant: MS RADER

First Respondent: MR RADER

Second Respondents: MS HAINES & MR HAINES

File Number: SYC 1641 of 2019

Judgment of: Judge B Smith

Hearing date: 13 September 2019

Date of Last Submission: 13 September 2019

Delivered at: Sydney

Delivered on: 13 September 2019

REPRESENTATION

Counsel for the Applicant: Ms Mahony

Solicitors for the Applicant: Bowral Legal

The First Respondent appeared in person

The Second Respondents appeared in person

Solicitors for the Independent Children's Lawyer:

Morton Family Lawyers Ms Morton

ORDERS

1. The oral application made by the first respondent in Court that I recuse myself is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Rader & Rader (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1641 of 2019

MS RADER

Applicant

And

MR RADER

First Respondent

And

MS HAINES & MR HAINES

Second Respondents

REASONS FOR JUDGMENT

1. There is an oral application for me to disqualify myself on the basis of apprehended bias. 

2. The principle is that a judge affected by actual bias would obviously be unable to comply with their judicial oath. 

3. The next question, since that is not suggested, is whether there is a reasonable apprehension of bias here.  The test for determining whether a judge should disqualify himself or herself 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. 

   I note Johnson v Johnson (2000) 201 CLR 488, Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337.

4. I note that, as I understand the position, an application for disqualification can be made without the filing of a formal motion, although it is preferable that it is provided, but it does not matter.  The respondent is unrepresented.  He is entitled to raise the issue.  He raises issues in respect of the judgment on subpoenas.  The reasons have not been settled yet, because I am hearing three or four matters a day.  I know what those reasons were.  I made comment about the fact that I felt some of Ms Lane’s arguments were not appropriate.  I stand by those comments.

5. The fact that I found against an argument that s.126B of the Evidence Act 1995 (NSW) applies to Commonwealth proceedings, I do not think could in the mind of any reasonable person having the necessary knowledge, convey anything in terms of my ability to bring an unbiased mind to bear on the actual underlying facts in the case. A question of law is a question of law. I note that I did, in fact, ultimately accept a part of the submissions made about the subpoenas on other grounds, which is that if access was granted then in the first instance only the independent children’s lawyer should have access to the material.

6. I note that having seen the subpoenaed material, I think that the judgment I made was entirely appropriate, because it is clear that there was material in those notes which is highly relevant to what has occurred, and indeed, as I understand it, because of concerns by the respondent’s solicitors that he or they may have overstepped the mark in terms of communicating with people who are treating practitioners who were purporting to or were acting as experts, that the respondent’s solicitor feels he may be in some difficulty, and I think that entirely justifies my decision to grant access to the subpoenaed documents. 

7. It is important that justice must not only be done but be seen to be done, and a judge should not continue to hear a case if a reasonable independent person might think that they are biased.  By the same token, in this jurisdiction in particular, if judges too lightly recuse themselves merely because one of the parties as opposed to an independent person might think that they are biased, then that would result, I suspect, in judges being asked to disqualify themselves in about half of the cases. 

8. Doing the best I can, and contemplating the position and the material that I am aware of, I am not presently satisfied that the test is met, and that a fair-minded lay observer might - and I note it is “might” and not “would” so it is a low test – reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions I am required to decide. 

9. The fact that Mr Rader may think that I have been unfair, I do not think is particularly relevant, because he does not bring an independent mind to the issue. 

10. In those circumstances I decline the application to recuse myself.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge B Smith

Associate: 

Date: 3 October 2019