Acheson & Begbie
[2023] FedCFamC1F 704
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Acheson & Begbie [2023] FedCFamC1F 704
File number(s): NCC 3670 of 2019 Judgment of: CHRISTIE J Date of judgment: 22 August 2023 Catchwords: FAMILY LAW – APPLICATION FOR DISQUALIFICATION – Where an oral application for disqualification is made during contested final parenting proceedings – Whether the bench failed to intervene in cross-examination – Where the applicant made concessions to the questions asserted to be improper – Where questions asserted to be improper were not objected to by the applicant’s counsel – Where the questions put to the applicant were not themselves improper – Whether questions from the bench to the applicant were an impermissible foray into the contested proceedings – Where the questions asked from the bench relate to clarifying evidence and/or redirecting the witness – Where questions from the bench were neither excessive nor unfair – Body language of judge – Whether body language indicated a view of the applicant or their counsel – Where perceived eye-roll in context would not result in a fair-minded lay observer to apprehend bias from the bench – Re-examination – Whether ruling in respect of permissibility of questions in re-examination was improper – Where rulings on legal points adverse to the applicant are natural elements of adversarial litigation and do not without more connote bias – Whether counsel for the applicant was treated differently from other counsel at the bar table – Absent evidentiary basis for submission – Where the applicant does not establish substantial grounds for disqualification – Application dismissed. Legislation: Evidence Act 1995 (Cth) ss 39, 41 Cases cited: Australian Securities & Investments Commission v Rich [2005] NSWSC 1015
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Galea v Galea (1990) 19 NSWLR 263
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Meadis & Meadis (2020) 62 Fam LR 78; [2020] FamCAFC 301
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Scott & Munayallan [2022] FedCFamC1A 44
Strahan & Strahan (Disqualification) (2009) FLC 93-414; [2009] FamCAFC 204
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Division: Division 1 First Instance Number of paragraphs: 64 Date of hearing: 18 July 2023 Place: Sydney Counsel for the Applicant: Ms Edwards Solicitor for the Applicant: Genuine Legal Counsel for the Respondent: Mr Harper Solicitor for the Respondent: Kennedy & Cooke Lawyers Counsel for the Independent Children's Lawyer: Mr Scarlett Solicitor for the Independent Children's Lawyer: Venus & Smart ORDERS
NCC 3670 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ACHESON
Applicant
AND: MS BEGBIE
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
22 AUGUST 2023
THE COURT ORDERS THAT:
1.The oral application of the applicant made 18 July 2023 is refused.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These proceedings relate to an oral application for disqualification made during contested final parenting proceedings.
On the second day of the trial, following the conclusion of the applicant’s evidence the applicant’s counsel sought and was granted an adjournment to obtain instructions about a foreshadowed application for disqualification. Following that adjournment the applicant sought and was granted a further adjournment to prepare an application for disqualification.
I understood the application to be that I should be disqualified because the applicant had formed the view that I had developed a position adverse to his interests in the litigation.
The submissions in support of the application largely did not stray outside of the content of the father’s supporting affidavit prepared over the adjournment period. Counsel for the maternal grandmother and the Independent Children’s Lawyer (“ICL”) opposed granting the application.
It is necessary to first appreciate whether the application which is being made is made in reliance upon an assertion of apprehended bias, actual bias or prejudgment. While the father’s affidavit and some of the submissions of the father’s counsel appeared to relate to an assertion of actual bias, ultimately the case advanced on behalf of the father appeared to be one of apprehended bias.
The principles which apply to disqualification for apprehended bias are set out in the following oft cited passage in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at 344-345 (see also Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) at 492):
6.…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.
(Footnotes omitted)
The doctrine of apprehended bias deals with the circumstances in which a judge may be perceived to decide a case other than on its merits (see Webb v The Queen (1994) 181 CLR 41 at 74; Ebner at 348-349). There are four potentially overlapping categories of apprehended bias:
(1)Disqualification by interest;
(2)Disqualification by conduct;
(3)Disqualification by association; and
(4)Disqualification by extraneous information.
The first step is to identify the matter or issue that might impact on the judge’s decision. That must be found in the evidence. In an affidavit filed in court on 18 July 2023 the applicant raised the following issues:
(a)Whether I should have intervened in the cross-examination conducted on behalf of the respondent;
(b)Whether my questions to the applicant were an impermissible foray onto the playing field;
(c)Whether my body language indicated a view of the applicant or his counsel;
(d)Whether a ruling in respect of the permissibility of questions in re-examination was improper; and
(e)Whether counsel for the applicant was treated differently from the other counsel at the bar table.
I will deal with each of those issues in turn.
Intervention in cross-examination: not preventing a question to be put
In the affidavit relied upon by the applicant in support of his application for recusal he made various complaints about the manner in which he was cross examined by counsel for the respondent.
The first issue was explained by the applicant at paragraph [4]: “[the respondent’s] barrister made a number of statements that caused me to become upset, including that I was a “manipulative bully” to both [the mother] and [the maternal grandmother].”
A small amount of background is necessary. The father did not put in issue the fact that he had told the mother and grandmother he had a recovery order from the court when he knew he did not in fact have a recovery order. The cross-examination appears in the transcript as :
COUNSEL FOR THE RESPONDENT: So let me just have a look at the next annexure:
Hello, [Ms Begbie]. I would just like to share with you that earlier this week the Family Court passed a recovery order. [X] is now under my custody one hundred per cent. Whether you get your daughter or not, she will choose her son over you.
So this is at page 46 of my client’s affidavit. That’s a message that you sent?
APPLICANT FATHER: Yes.
COUNSEL FOR THE RESPONDENT: Yes. That wasn’t true about a recovery order, was it?
APPLICANT FATHER: No, it wasn’t. No.
COUNSEL FOR THE RESPONDENT: No. And you knew it wasn’t true at the time you sent it?
APPLICANT FATHER: That directly, I knew wasn’t. Yes.
COUNSEL FOR THE RESPONDENT: Correct. Right. So you were being dishonest when you sent that. You were being manipulative?
APPLICANT FATHER: Yes.
COUNSEL FOR THE RESPONDENT: Yes. You were being mean?
APPLICANT FATHER: Yes.
(Transcript 17 July 2023, p.39 lines 30-47)
Given the father’s concessions that his conduct was dishonest, manipulative and mean, one might understand why he felt bad but the questions were not improper and I note invited no objection from the applicant’s counsel.
The father rejected counsel’s suggestion that he was being a bully but the question, in this context, was not improper.
The father also stated that the fact that counsel cross-examined him about whether he had discussed the evidence with his parents during adjournments was relevant to the application for recusal. I do not understand how it could be. Again, the father rejected counsel’s propositions but the questions themselves were not improper. And it is difficult to see how they touch on the application for disqualification.
The final complaints of the applicant about counsel for the respondent’s conduct said to be relevant to the disqualification application concerned the following interchange:
COUNSEL FOR THE RESPONDENT: Right. Sir, do you agree in general with your communication you can be quite literal?
APPLICANT FATHER: Sometimes, yes. I – obviously with any communication there can be things misunderstood, especially by a text message.
(Transcript 17 July 2023, p.30 lines 26-28)
Another example was provided as follows:
COUNSEL FOR THE RESPONDENT: Okay. My client says that on about 9 November she sent an invitation to you to attend [X’s] preschool graduation in December 2022?
APPLICANT FATHER: Yes.
COUNSEL FOR THE RESPONDENT: You received that?-
APPLICANT FATHER: Yes. That’s correct. Yes.
COUNSEL FOR THE RESPONDENT: Yes. And you didn’t respond?
APPLICANT FATHER: Unfortunately, at the time I had work – work things that I was unable to attend that, yes.
COUNSEL FOR THE RESPONDENT: Yes. Sir, do you have a comprehension issue?
APPLICANT FATHER: Sorry.
COUNSEL FOR THE RESPONDENT: Can you not understand my questions?
APPLICANT FATHER: I – I understand your question. Yes.
COUNSEL FOR THE RESPONDENT: Right. So my question was you did not respond?
APPLICANT FATHER: I did not respond, no, no.
(Transcript 17 July 2023, p.61 lines 5-17)
The father’s answer to counsel’s question was non-responsive. Communication and miscommunication between the applicant and respondent were plainly relevant to the consideration of the practicability of the parenting arrangements to be implemented by court order. The father’s affidavit appears to assert the question was improper because counsel knew the father had been diagnosed with autism spectrum disorder. Presumably, the complaint is that I did not prevent the question from being put. I note there was no objection by the applicant’s counsel.
The situation is unusual. The father’s evidence at trial was that he had, many years prior, been diagnosed with autism spectrum disorder but held the view that if he were assessed now he would not meet the criteria. Making a finding about whether the father is on the autism spectrum is not necessary in order to determine the case.
The father said in his affidavit:
7.… I felt that the way in which [counsel for the respondent] asked me questions regarding my ability, or lack thereof of comprehension skills was offensive and genuinely upset me not only in Court, but I continued to be upset last night.
I did not perceive that the cross-examination was offensive at the time nor does my subsequent reading of the transcript permit that view. I accept that if counsel had put questions which were irrelevant or relevant but phrased in an offensive manner I would have been obliged to intervene (even absent objection): Evidence Act1995 (Cth) s 41. This is not such a case.
While it is open to a trial judge to intervene, the role of taking objections to questions put in cross-examination is both ordinarily and ideally undertaken by counsel for the party who is being cross-examined. Counsel for the father did not object to the questions about which her client complains.
Intervention in cross-examination: judge’s questions to witness
The submissions in support of the disqualification application and the affidavit evidence focused fairly squarely on the feelings of the applicant. As counsel for the respondent submitted, the test is not a subjective test but an objective test. I accept that the applicant may have experienced cross-examination as difficult but more is required before judicial intervention will be required (or before lack of judicial intervention will signal apprehension of bias).
The principles which are applicable are drawn from the decision in Galea v Galea (1990) 19 NSWLR 263 per Kirby A-CJ (with whom Meagher JA) agreed at 281:
1.The test to be applied is whether the excessive judicial questioning or perjorative [sic] comments have created a real danger that the trial was unfair. If so, the judgment must be set aside.
…
3.Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”.
4.The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in light of the number, length and circumstances of the interventions …
(Citations omitted)
In that context I turn to the evidence. The father said:
9. It was awkward when the judge questioned me as I did not know that this would happen and I felt that she and [Ms Begbie’s] barrister were ganging up on me. I felt like when [Ms Begbie’s] barrister wasn’t getting the answer he wanted that the judge stepped in to ask me the question. My barrister tried to correct this but was not allowed to by the judge.
First it should be observed that a judge may ask questions of a witness in the ordinary course without that being indicative of bias or giving rise to an apprehension of bias. The fact that the witness was unprepared for that eventuality may have given rise to his feeling of awkwardness but this is not material.
It is necessary to examine whether questioning was, in the context, excessive and if so whether it was unfair.
The cross-examination of the applicant commenced on the first day of the trial. The applicant gave an affirmation and was cross-examined for a period ahead of the morning tea break. A review of the transcript did not indicate any questions posed by me to the witness during that period. The cross examination recommenced at 11.51 am.
Counsel for the respondent asked questions of the applicant father during the next part of the sitting day as follows:
COUNSEL FOR THE RESPONDENT: At that point, [S]ir, it wasn’t your fear for your safety that stopped you organising things through [the maternal grandmother], was it. It was your belief that it wasn’t the legal way to do things?
APPLICANT FATHER: I believe as well that anything organised through [the maternal grandmother] was to be inclusive of control of the maternal grandmother on my time that I spent with my child, [X] [sic].
COUNSEL FOR THE RESPONDENT: Yes, yes. So was it your view that even if you got less time than you would like with [X] [sic], if my client was the one controlling it you wouldn’t take it?
APPLICANT FATHER: I don’t believe so at all. I think the issue was that I would rather sort it out through the mother, who at the time was the parent of that child and had the decision-making capability there.
(Transcript 17 July 2023, p.31-32, lines 41-4)
Following that interchange I asked a question of the witness arising out of the interplay between the most recent answer and his earlier evidence about the challenges his former partner was experiencing.
HER HONOUR: Can I just stop you for a moment - - -?
APPLICANT FATHER: Yes.
HER HONOUR: - - - because Mr Harper took you through how difficult life was for the mother at that time, illegal drugs, prescription drugs - - -?
APPLICANT FATHER: Absolutely, yes.
HER HONOUR:- - - non-prescription drugs?
APPLICANT FATHER: Correct.
HER HONOUR: You described her as being in a bad way as regards her mental health and her physical health?
APPLICANT FATHER: Yes.
HER HONOUR: So I’m wondering why it was that you were so wedded to organising your time with your son through her?
APPLICANT FATHER: I believe that at the time the – I wasn’t fully aware of everything that had occurred with [the mother]. Obviously at the time we now know that she was in and out of mental healthcare and things like that.
HER HONOUR: No. I’m just basing it on what you told me earlier?
APPLICANT FATHER: Yes, of course, yes. I – at the time, I – not only the direction that I was given advice on, but that was the basis that I was told to go by from individuals and also other people, and that’s why I took that decision. It was also a concern, obviously, with the past behaviour of the maternal grandmother [in Region B] and outside of, that any time sorted out through her would be restricted beyond belief. Yes.
(Transcript 17 July 2023, p.32 lines 6-26)
The questions fall squarely into those type of questions which a trial judge might ask to clarify the evidence she has heard in the case.
On another occasion I accept that when the father answered counsel’s question with “I see where you’re going with that” I redirected him to answer the question: Transcript 17 July 2023 p.41-42 lines 44-2.
The specific example of intervention referred to in the father’s affidavit at [8] was my having asked the father whether he was “deliberately missing the point”. The father said he felt the query was “rude and did not take into account the way in which I communicate. The judge even commented about my diagnosis so she is aware of this”.
It is necessary to place this in context.
The respondent gave evidence that she is an educator. Separately but relevantly, an incident occurred between the parties when the mother had left the home of the father and paternal grandparents in City C and sought to retrieve personal items from a storage unit in the name of the paternal grandmother. The mother was restricted by the paternal grandmother from accessing those items. In a text-message exchange regarding that incident, the father texted the maternal grandmother:
[Ms Begbie], you consistently contact me, yet always seem to think youre in the right. Tell me how your next working with childrens check goes because whether it’s facs involvement with [X] and your own daughter that I’ve made or the report your own daughter made against you for domestic abuse it seems you don’t have any expertise in your own field of study let alone the law. :)
(As per the original)
Counsel for the grandmother cross-examined the father about this evidence as follows:
COUNSEL FOR THE RESPONDENT: You were threatening my client’s employment?
APPLICANT FATHER: No, I wasn’t threatening anything.
COUNSEL FOR THE RESPONDENT: You knew that my client was [an educator]?
APPLICANT FATHER: Correct, yes.
COUNSEL FOR THE RESPONDENT: Yes. How did you think she would work without a Working with Children Check?
APPLICANT FATHER: I had – I – whether it was myself or my mother that had previously made a complaint to the Department of Education, that was what that was based on.
HER HONOUR: You’re deliberately missing the point. I suppose what counsel was asking you was in sending that message, “What about your next Working with Children Check”, you were threatening her employment?
APPLICANT FATHER: Yes, I wouldn’t say it was a threat. It was – it was – it was a statement on it. Don’t believe it was a threat, sorry.
(Transcript 17 July 2023, p.47-48 lines 44-9)
Witnesses will not always provide direct answers to counsel during cross-examination. It is not proper for counsel to argue with or direct a witness but it is proper for a judge to intervene where a witness is non-responsive. This intervention is appropriate case management and not indicative of bias nor a basis upon which an objective observer should apprehend bias.
There was no further intervention between that point and the lunchtime adjournment.
In the afternoon when counsel was questioning the father about what he would say to his child about the child’s Aboriginal identity the father answered “[a]t this case it hasn’t been disclosed to the child. I’m happy for him to learn about it when – when he feels as - - -“: Transcript 17 July 2023, p.66 lines 7-9.
I intervened and said to the witness”[n]o, no. You’re being asked what it is that you would do?”: Transcript 17 July 2023, p.66 line 11.
Again, this is a redirection of the witness in circumstances where he had not directly addressed the question or not understood it.
The next intervention by me during cross examination related to the father’s evidence that he was concerned that the maternal grandmother would move overseas with X if X lived with her, on the basis that she had lived overseas with X’s mother for a year. Counsel for the maternal grandmother asked:
COUNSEL FOR THE RESPONDENT: Yes. And did you read her material about that?
APPLICANT FATHER: Yes, I did, yes.
COUNSEL FOR THE RESPONDENT: You saw the court orders about that?
APPLICANT FATHER: Yes, yes, I did. Yes.
COUNSEL FOR THE RESPONDENT: Right. So you know that was with consent?
APPLICANT FATHER: There was other things in relation to it but - - -
COUNSEL FOR THE RESPONDENT: Do you know it was with consent?
APPLICANT FATHER: Yes, the consent wasn’t completely divulged unfortunately to the court. There was - - -
HER HONOUR: So what does that mean?
APPLICANT FATHER: Knowing that – obviously I speak to the maternal grandfather. He was led to believe that the process of him signing that was going to release him from child support at the time, which immediately was negated when Child Support Australia contacted him after they had left.
HER HONOUR: So, sorry. [the mother’s] father said to [the mother’s] mother, “You can work overseas, provided I don’t have to pay child support”?-Correct, yes.
HER HONOUR: And then, as you understand it from discussing it with him, when he got back or at some point he still had to pay child support?
APPLICANT FATHER: When they left, they applied for – to Child Support Australia and demanded that he pay child support at that time. Yes.
(Transcript 17 July 2023, p.76 lines 5-25)
There was no further intervention by me during cross examination of the applicant by counsel for the respondent.
The next intervention occurred while counsel for the ICL was cross-examining the father and related to the father’s concerns about X coming into contact with the maternal grandmother’s former partner. I regard that question as an appropriate question from the bench in a parenting case, trying to understand the basis for the position taken by the father as regards both his absence in the child’s early life and the injunction application seeking to restrain the child coming into contact with the maternal grandmother’s former partner.
In the preceding paragraphs I have canvassed every intervention in the father’s evidence (save innocuous requests to repeat matters I may not have been able to hear and the like). They could not on any scale be regarded as excessive. The question then is: were they inappropriate? Placing myself as far as is possible in the position of fair-minded lay observer, remembering that it is the court’s view of the public’s view which is relevant, I am still satisfied that there was nothing in the interventions by which a fair-minded lay observer would have concluded that I would not bring an impartial mind to the task: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 88 [21], quoting Webb v The Queen (1994) 181 CLR 41 at 52. I have had firmly in mind the recent helpful analysis of the identity of the fair-minded lay observer discussed by the High Court of Australia in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 at [46]–[49].
Judge’s body language
The father’s affidavit says:
11. I was also concerned that my barrister made a comment that the judge rolled her eyes at her and while I did not see it directly but saw the exchange between the judge and my barrister both before and after. I don’t think that my barrister would have said it if it didn’t occur and I heard the judge apologise to my barrister.
The issue arose during the re-examination of the applicant by his counsel. The relevant part of the transcript reads:
COUNSEL FOR THE APPLICANT: I want to talk a little bit more about that DNA testing that came up?
APPLICANT FATHER: Yes.
COUNSEL FOR THE APPLICANT: What do you know about that because it’s not attached to your affidavit, I don’t think?
APPLICANT FATHER: Yes, of course. So a DNA test was - - -
COUNSEL FOR THE RESPONDENT: I object.
COUNSEL FOR THE APPLICANT: No, I’m just asking. I don’t see it attached to his affidavit. So I’m trying to understand what he knows about it.
COUNSEL FOR THE RESPONDENT: I’m just trying to check how it arises.
COUNSEL FOR THE APPLICANT: Because you talked to him about the DNA test quite regular – quite a deep dive into the DNA test. And so, I’m trying to understand what he knows about it.
HER HONOUR: Could you ask the question again, just so I understand what your question to this witness is?
COUNSEL FOR THE APPLICANT: Sure. What my friend asked you about DNA testing – according to my notes and why you did DNA testing?
APPLICANT FATHER: Yes, yes, yes.
HER HONOUR: But your question, I think, was what do you understand about it.
COUNSEL FOR THE APPLICANT: Yes, what do you understand about the circumstances of why it was done? Sorry, your Honour. I just saw you roll your eyes. I’m trying to get - - -
HER HONOUR: The – I’m sorry. Because when you were asking the question – and I apologise if I – you perceived I was rolling my eyes. It was just that it sounded like you are going to ask him about what he knew about the DNA testing.
COUNSEL FOR THE APPLICANT: I wasn’t going to qualify him as an expert witness.
HER HONOUR: Yes.
(Transcript 17 July 2023, p.96-97 lines 29-15)
I cannot know whether my facial expression was as described, so, for the purpose of these reasons I have treated counsel’s observation as accurate; that is, when counsel says she saw my face register displeasure at her question then her observation was accurate.
It is inevitable that judges will from time to time experience frustration. It is equally true that such frustrations are almost always better masked than revealed but judges are human and will not always function as they would ideally chose. The question of where the limit is must be one of fact and degree. The case law is helpful: see, eg, Meadis & Meadis (2020) 62 Fam LR 78 at [27].
The interchange arose in a context where counsel for the applicant and I were at odds about the acceptable parameters for re-examination. This leads to the next issue raised by the applicant in support of an application for disqualification. With this context in mind, a fair-minded lay observer would not apprehend bias to be coming from the bench on the basis of the body language asserted.
Re-examination: permissibility of questions
Section 39 of the Evidence Act 1995 (Cth) deals with the subject:
On re-examination:
(a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and
(b) other questions may not be put to the witness unless the court gives leave.
During the course of the exchange identified at [46] above I expressed a view along the lines that an advocate is not at large when re-examining their witness. The expression is: matters “arising out of the evidence”. If the matter has arisen from the evidence then it follows that it would not be a matter which was already the subject of evidence in chief.
There were three major difficulties with counsel’s approach to re-examination in this case:
(1)Counsel led the evidence of her client;
(2)The witness had given evidence on the issue in his case in chief; and
(3)The evidence could not be said to be relevant to the determination.
The topics about which counsel sought to re-examine were:
(1)The father’s caution for marijuana possession in 2019;
(2)The online ancestry testing of the subject child;
(3)The father’s autism diagnosis; and
(4)Mr D, the maternal grandmother’s former partner.
It could not be said that cross-examination was nor permitted wholesale. Various objections were sustained and some questions were withdrawn. In disallowing specific questions in re‑examination I had in mind those principles discussed in Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 17th ed, 2022) [EA.39.120] in reliance upon the observations of Austin J in Australian Securities & Investments Commission v Rich [2005] NSWSC 1015 at 19:
A matter is not one “arising out of evidence given by the witness in cross-examination” where, “in cross-examination, the witness merely confirms or repeats a matter addressed in his evidence in chief or the evidence of another witness for the same party, without materially adding to it.” In that situation, “the question is about a matter arising, originally, out of the witness’s evidence in chief or previous evidence, given in cross-examination.”
The father dealt with the cannabis issue in his affidavit:
20. Around this same time, in […] 2018 I was issued with a caution from the [Region B] Police for possession of a single plant of cannabis which both [Ms E] and I were using. I am aware [Ms Begbie] claims that I was not only in possession of cannabis, but also that I was cultivating and dealing drugs. I deny this and note if I was cultivating and dealing drugs, I would have received more than a caution from the Police.
The father’s case in chief dealt with the issue of DNA testing undertaken for X in the affidavit of the paternal grandmother as follows:
33. …
d.… When asked by the Family Report Writer about [X’s] Indigenous heritage, to the best of my recollection I said words to the effect that "I don't know where their [Ms E and Ms Begbie’s] aboriginality came from but am aware that they identified'. At no point did I say that it was irrelevant or insignificant and I understand its importance for [X] growing up. However, in or around September 2020 [Ms E] and [Mr Acheson] gave me permission to have [X’s] DNA tested for genealogy purposes with [an online testing service]. The results showed that [X] has no Aboriginal or Torres Strait Islander DNA but did have [another ethnic background].When I told [Ms E], she was not surprised by [X’s] results. We agreed to keep the results of this to ourselves and not disclose them to [Ms Begbie], as from my understanding and conversations with [Ms E] it was [Ms Begbie] who strongly identified as Indigenous, not [Ms E].
(As per the original)
The issue did not arise. If I am wrong in that assessment then a party does not leap immediately from flawed evidentiary ruling to apprehended bias.
It can be difficult for a litigant to hear legal points determined contrary to their interests or rulings by the trial judge which do not seem to favour their case but these are natural elements of adversarial litigation and do not without more connote bias.
Difference in treatment of counsel
Finally, counsel for the applicant suggested that counsel for the respondent had been treated differently; I infer more favourably. Without visiting each ruling I am comfortably satisfied that all interactions with each of the barristers were undertaken professionally and courteously. In the absence of any evidentiary basis for that submission it is difficult to engage with it further.
This particular complaint brings to mind the observations of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 cited by the Full Court in Strahan & Strahan (Disqualification) (2009) FLC 93-414:
… It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he [or she] will decide the case adversely to one party…
There is an interplay between the role of the judge as adjudicator and the role of the judge as case manager in a modern system of case management. The overriding principle of achieving timely and efficient outcomes for litigants means that a judge will, as occurred here, control the court room including permitting or disallowing questions as part of evidence in chief, cross‑examination or re-examination.
The Full Court in Scott & Munayallan [2022] FedCFamC1A 44 neatly summarised the principles which mitigate against disqualification in this passage at [25]:
The High Court of Australia has made plain it would be both an abdication of judicial function and an encouragement of procedural abuse for a judge to impulsively or too readily disqualify him or herself whenever requested by one party to do so (Livesey v NSW Bar Association (1983) 151 CLR 288 at 294; Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300 at 302). A judge should not disqualify him or herself for reasonable apprehension of bias unless substantial grounds exist (Bienstein v Bienstein (2003) 195 ALR 225 at 233; Vakauta v Kelly (1989) 167 CLR 568 at 584–585; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352).
I was not satisfied that the applicant established that there were substantial grounds, neither individually nor cumulatively, here and I refused the application accordingly.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 22 August 2023
5
13
0