Acheson & Begbie (No 2)

Case [2024] FedCFamC1A 21

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Acheson & Begbie (No 2) [2024] FedCFamC1A 21

Appeal from: Acheson & Begbie [2023] FedCFamC1F 704
Acheson & Begbie (No 2) [2023] FedCFamC1F 705
Appeal number: NAA 264 of 2023
File number: NCC 3670 of 2019
Judgment of: HARTNETT, RIETHMULLER & STRUM JJ
Date of judgment: 8 March 2024
Catchwords:

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Majority judgment – Appeal from orders dismissing the appellant father’s application for recusal of the primary judge and if successful the parenting orders made by the primary judge – Allegations of apprehended bias – Allegations of denial of procedural fairness – No error established and not any substantial injustice if leave to appeal was refused – Leave to appeal refused – Appeal dismissed – The appellant father to pay the respondent maternal grandmother and the Independent Children’s Lawyer’s costs in a fixed sum.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant father sought leave to adduce further evidence – Where the evidence was not admissible or relevant – Where the evidence would not have affected the outcome of the appeal – Application dismissed.

Legislation:

Evidence Act 1995 (Cth) s 39

Family Law Act 1975 (Cth) ss 60CA, 65AA, 69ZN, 69ZT, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28, 67

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 10.19

Cases cited:

A & S [2004] FMCAfam 563

Acheson & Begbie [2023] FedCFamC1A 240

Acheson & Begbie [2023] FedCFamC1F 704

Bach & Bach [2016] FCCA 26

CDJ v VAJ(No 1) (1998) 197 CLR 172; [1998] HCA 67

Charisteas & Charisteas (2020) 354 FLR 167; [2020] FamCAFC 162

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

Doughty-Cowell v Kyriazis [2018] VSCA 216

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Galea v Galea (1990) 19 NSWLR 263

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22

Goldsmith & Stinson(No 2) (2023) FLC 94-134; [2023] FedCFamC1A 25

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Kay & Kay & Anor (No 2) [2016] FCCA 1841

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Nagel v Clay (2020) 60 Fam LR 550; [2020] FamCA 326

Pisani & Pisani (2008) FLC 93-362; [2008] FamCAFC 25

Pitrec & Pitrec [2010] FamCA 1231; [2010] FamCA 1231

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369; [2023] HCA 15

R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122

Re JRL; Ex parte CJL (1986) 161…

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AGLC
Acheson & Begbie (No 2) [2024] FedCFamC1A 21
Case
[2024] FedCFamC1A 21
Decision Date

CaseChat Overview and Summary

The case of Acheson & Begbie (No 2) concerns an appeal against the orders made by the primary judge in a parenting dispute involving the father, Mr Acheson, the maternal grandmother, Ms Begbie, and the Independent Children's Lawyer (ICL). The father sought recusal of the primary judge, alleging apprehended bias and denial of procedural fairness. The primary judge dismissed the application for recusal, leading to the father's appeal. The court was required to determine whether the primary judge's refusal to recuse herself was justified and whether there was any substantial injustice in not allowing the appeal.

The court examined the allegations of apprehended bias, including the father's claims about the primary judge's conduct during the trial. The primary judge addressed these issues in detail, explaining her reasons for not finding any apprehension of bias. The court found that the father's complaints about the cross-examination and the primary judge's conduct were not sufficient to establish a reasonable apprehension of bias. The father's claims of inexperience of his counsel and the alleged "mutual animus" were also dismissed as irrelevant to the issue of bias. The court concluded that the primary judge's decision was not attended by sufficient doubt to warrant reconsideration.

The court further considered the father's application to adduce further evidence regarding the primary judge's associations with counsel. The father sought to rely on an affidavit and documents alleging associations between the primary judge, counsel for the maternal grandmother, and counsel for the ICL. However, the court found that the father failed to establish the relevance and admissibility of this evidence. The court held that the father had not demonstrated that the evidence would have produced a different result if it had been available at the trial.

In conclusion, the court refused leave to appeal the primary judge's orders and dismissed the appeal. The court ordered that the appellant father pay the costs of the appeal to the maternal grandmother and the ICL in fixed sums. This decision underscores the importance of meeting the threshold for establishing apprehended bias and the limited circumstances in which further evidence can be adduced on appeal.

Orders

Orders of the court

NAA 264 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ACHESON

Appellant

AND:

MS BEGBIE

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

HARTNETT, RIETHMULLER & STRUM JJ

DATE OF ORDER:

8 MARCH 2024

THE COURT ORDERS THAT:

1. Leave to appeal the order of the primary judge dated 22 August 2023, dismissing the appellant father’s application for the primary judge to recuse herself, be refused.

2. Leave to appeal be otherwise refused.

3. The Amended Notice of Appeal filed by the father on 18 October 2023 be dismissed.

4. The appellant father pay the costs of the appeal of:

(a) the respondent maternal grandmother fixed in the sum of $14,382.64 within 28 days; and

(b) the Independent Children’s Lawyer fixed in the sum of $2,353.10 within 28 days.

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.

Background

Background to the litigation

In our view, for the reasons set out below, the decision of the primary judge is not attended by sufficient doubt to warrant its reconsideration by the Full Court and nor would a substantial injustice occur if leave were not granted. The substantial parenting orders, and indeed most of the parenting orders as proposed by the ICL at the conclusion of the evidence, were consented to by the father on 21 July 2023, mostly consented to by the maternal grandmother, including the substantial parenting orders, and ultimately made by the Court.BACKGROUND The background to the appeal can be stated briefly. The application which proceeded before the primary judge was one for competing final parenting orders in respect of the father’s only child X born 2017, at trial aged six years. The father and mother of the child (“the mother”) cohabitated from 2015 to their separation in April 2018. At separation the child remained in the care of the mother. On 12 November 2019, when the father commenced the proceeding in the then Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia (Division 2)), the mother was a party to the proceeding. On 21 November 2019, the court made orders for the child to live with the mother, provided she lived with the maternal grandmother, and for the child to spend unsupervised time during the day with the father, being as a minimum each Saturday and Sunday on the last weekend of each calendar month, and for an overnight period on Christmas Eve in 2019. On 1 May 2020, the court made orders that the maternal grandmother be joined to the proceeding. She had been substantially or wholly involved in the care of the child following the parties’ separation. The child commenced living in her household in approximately June 2018. The home of the maternal grandmother is approximately a four and a half hours drive from the home of the paternal grandparents where the father resides. On 1 May 2020, the court made orders for the child to live with the maternal grandmother; to spend time with the mother as agreed between the maternal grandmother and the mother; and to spend one weekend each month with the father provided he was living with the paternal grandparents, with such time to be supervised by them. On 27 June 2020, the child spent his first period of overnight time with the father in accordance with the 1 May 2020 orders. On 10 November 2020, the matter was transferred from the then Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)), to the then Family Court of Australia (now the Federal Circuit and Family Court of Australia (Division 1)) (“the Court”). On 4 May 2021, orders were made by consent varying the father’s time to provide that the child spend time with him on the last Saturday of each calendar month from 10.00 am until 5.00 pm the following Monday. This time was unsupervised, save that the maternal grandmother and/or her agent was to meet with the father and/or his parents at the commencement and conclusion of time at the changeover location.

Evidence

Evidence Before The Court

The father’s Amended Application in an Appeal filed 29 November 2023 was, by order made on 5 December 2023, otherwise dismissed.THE PROPOSED FURTHER EVIDENCE The father sought to rely upon an affidavit affirmed by him on 16 November 2023 and filed 17 November 2023, and a bundle of documents marked “[MA]-1” annexed thereto. The affidavit and bundle of documents went to the primary judge’s associations, as alleged by the father, with counsel for the maternal grandmother and counsel for the ICL. Such material also alleged an association of counsel for the ICL with the primary judge, and with counsel for the maternal grandmother. The father deposed that he did not adduce such evidence at the hearing “as the associations were unknown and should have been disclosed by her Honour, [Mr O], or both”.[3] [3] Father’s affidavit filed 17 November 2023, paragraph 6. The father appeared to hold the belief that the further evidence he sought to adduce would demonstrably support his claims of apprehended bias against the primary judge, and lead to a retrial. The maternal grandmother and the ICL resisted the application for leave to adduce further evidence. The principles which apply to an application to lead further evidence upon questions of fact on appeal are well settled by the High Court of Australia in CDJ v VAJ(No 1) (1998) 197 CLR 172 (“CDJ v VAJ”). The majority of McHugh, Gummow and Callinan JJ stated at [116]:The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section. The Full Court, ordinarily, should be “satisfied that the further evidence would have produced a different result if it had been available at the trial”.[4][4] CDJ v VAJ (No 1) (1998) 197 CLR 172 at [111]. The onus is on the father to establish the relevance and admissibility of the matters raised in his affidavit and documents exhibited thereto. We are not persuaded the father discharged that onus. Further, the father has not established to our satisfaction, that the further evidence which he seeks leave to adduce was not known or discoverable during the trial, save perhaps the transcript of the primary judge’s swearing in ceremony. Finally, we do not conclude that any of such evidence would have produced a different result if it had been adduced at the trial. These matters are addressed below. The father failed to establish the relevance and admissibility of his affidavit and documentary evidence, the contents of which we find variously irrelevant, objectionable, offensive and/or already in evidence before us including in the transcript of the proceeding before the primary judge.

Decision

Reasons for decision

On 22 August 2023, an order was made that “the oral application of [the father] made 18 July 2023 is refused” and the primary judge published her written reasons for judgment. In a separate judgment the primary judge made final parenting orders.THE DECISION OF THE PRIMARY JUDGE The primary judge, on 22 August 2023, set out her reasons for refusing to disqualify herself. It is useful to set out some relevant parts of the primary judge’s reasons for judgment. In [6] and [7] of the primary judge’s reasons, the primary judge accurately set out the applicable principles which apply in the circumstances where an allegation of apprehended bias is made. She said as follows:[12][12] Acheson & Begbie [2023] FedCFamC1F 704 at [6]-[7].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.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 Acheson & Begbie [2023] FedCFamC1F 704 2 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 primary judge proceeded to identify those issues that might impact on her decision as raised by the father in his affidavit evidence filed 18 July 2023. Those issues were succinctly set out by the primary judge to be:[13] [13] Acheson & Begbie [2023] FedCFamC1F 704 at [8].…(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. The primary judge observed that the father took issue with the way he was cross-examined by counsel for the maternal grandmother. The primary judge addressed those complaints relevantly, as follows: [14][14] Acheson & Begbie [2023] FedCFamC1F 704 at [11]-[13], [15]-[22].11.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].”12.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)13.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.…15.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.16.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)17. 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)18.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 (Asperger’s). 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.19.The situation is unusual. The father’s evidence at trial was that he had, many years prior, been diagnosed with Asperger’s 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.20. 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.21.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): s 41 Evidence Act 1995 (Cth). This is not such a case.22.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.

Ratio Decidendi

Legal Principle Established

There were various other interactions during the trial which were unremarkable. Nothing in what followed the disqualification application could satisfy the test for apprehended bias.Consideration of the trial as whole It is hard to avoid the proposition that the appellant’s counsel’s attempts to lead new evidence in re-examination were a tactical ploy that failed. Counsel made no application for leave to lead any evidence in chief on the basis that something had been overlooked in the affidavit, either before or even after the cross-examination, presumably because that would have led to the appellant being exposed to cross-examination on the new evidence. When the transcript is read as a whole it is apparent that counsel for the appellant was upset that she had been unable to go beyond the usual bounds of re-examination. Thereafter, counsel presented many challenging behaviours to the primary judge whose responses, as recorded in the transcript, were reasonable throughout. There is no basis for the claim that there was “mutual animus” between the primary judge and the appellant’s counsel as alleged in Ground 3(c). Considering the conduct of the trial as a whole the appellant has not made out a claim of apprehended bias.Counsel’s Inexperience Ground 3(b) points to the appellant’s trial counsel’s “inexperience, as a barrister, generally, and specifically, in family law”. The appellant chose his trial counsel, not the primary judge. The trial counsel was sufficiently experienced that she was presenting at the barrister’s practice course and prior to her admission to practice in Australia, appears to have practiced in Country Z. The level of experience of the counsel chosen by the appellant could not logically lead to a conclusion that 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. These claims do not provide any foundation for the claim of apprehended bias.Circumstances taken as a whole Having dealt with the various factors that the appellant has identified it is nonetheless appropriate that all of the matters be considered as a whole in the context of this case. This is necessary as it seems that the appellant is also arguing that an accumulation of individual issues (even if none of which is sufficient on its own) may be sufficient to establish a claim of apprehended bias when taken together. Considering all of the matters raised by the appellant in this appeal (including the matters raised before the primary judge), even if they are taken together, they do not satisfy the test for apprehended bias in this case. CONCLUSION For these reasons, I would dismiss the application for leave to appeal and dismiss the appeal. I agree with the reasons set out by Hartnett and Strum JJ with respect to costs and the orders that they propose in this regard.