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 705Appeal 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 CLR 342; [1986] HCA 39
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Tatlow & Tatlow [2010] FMCAfam 1227
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Wynn & Danilov [2023] FedCFamC1A 149
Number of paragraphs: 173 Date of hearing: 5 December 2023 Place: Heard in Sydney, delivered in Melbourne Solicitor for the Appellant: Mr Parisi Counsel for the Respondent: Mr Duane Solicitor for the Respondent: Kennedy & Cooke Lawyers Solicitor for the Independent Children’s Lawyer: Venus & Smart ORDERS
NAA 264 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Acheson & Begbie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT & STRUM JJ
INTRODUCTION
By Amended Notice of Appeal filed on 18 October 2023, the appellant father (“the father”) seeks leave to appeal, and if successful, to appeal the orders made by the primary judge on 22 August 2023. Those orders were firstly, consequent upon the father’s oral application for disqualification of the primary judge and her orders made and judgment delivered 22 August 2023 in respect of that application, and secondly, consequent upon the conclusion of the parenting proceeding between the parties, the primary judge’s final orders and judgment delivered in respect of those competing applications.
The respondent maternal grandmother (“the maternal grandmother”) and the Independent Children’s Lawyer (“the ICL”) resist the application for leave to appeal.
Leave to appeal is required in respect of the oral application made by the father for disqualification of the primary judge as is explained in these reasons hereafter. It was that matter on which the appeal centred. If the father is successful, a new trial must be ordered. No ground of appeal was raised against the parenting judgment and final orders.
On 29 November 2023, the father filed an Amended Application in an Appeal seeking leave to rely on further affidavit evidence; leave to issue a subpoena to his former counsel acting on his behalf in the parenting proceeding to give evidence; and for each member of the Full Court to be disqualified from hearing the appeal. He also sought leave to appeal out of time, if necessary, from the recusal decision made by the primary judge in circumstances where such leave was unnecessary.
On 5 December 2023, on the hearing of the appeal, each of the parties made oral submissions in addition to their filed Summary or, in the father’s case, Amended Summary of Argument and List of Authorities, leave having been granted to the father and the ICL to rely upon such material as filed out of time. The father indicated that he no longer pressed leave to issue a subpoena to his former counsel and no longer sought the disqualification of Hartnett or Riethmuller JJ from hearing the appeal. Accordingly, in respect of these concessions, an order was made by consent that orders 3, 5 and 6 as sought in the father’s Amended Application in an Appeal filed 29 November 2023 be dismissed.
The father continued to seek the disqualification of Strum J from hearing the appeal. In a recent decision of the High Court of Australia, QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369 (“QYFM”), the High Court considered the manner in which a disqualification application made to a judge sitting as part of an appellant bench should be heard and determined.
The majority, Gordon, Edelman & Steward JJ (at [66], [94], [100]–[104], [108]–[109], [132]–[143], [152], [190] and [193]), considered the judge against whom the application is made should have the opportunity initially to consider the application, even if in the presence of the Full Court. Only if the judge dismisses the disqualification application, and an objection is maintained, or there are matters that the other judges consider may give rise to a real potential for apprehended bias,[1] does the Full Court need to decide as a whole whether the bench as constituted can continue to hear the appeal, being “satisfied” that they will be able to discharge their judicial oath as a member of the Court as constituted, and the Court is satisfied that it has jurisdiction to hear the matter.[2] The disqualification application is then determined by majority.
[1] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369 at [66].
[2] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369 at [102].
The application for disqualification was heard by Strum J in the presence of the Full Court. Leave was granted to the father, in respect of that application only, to rely upon the relevant parts of his affidavit affirmed 16 November 2023 and filed 17 November 2023, and the documents exhibited thereto. The father’s affidavit affirmed that his application was pressed on a ground of apprehended bias and his oral submissions confirmed that to be the case. Justice Strum declined to recuse himself and delivered ex tempore reasons for judgment. Justice Strum’s proposed order and reasons were then considered by the other members of the Full Court who determined to agree with those reasons and proposed order. Accordingly, on 5 December 2023, an order was made by the Full Court that order 4 as sought in the father’s Amended Application in an Appeal filed 29 November 2023 be dismissed.
The Full Court then considered the father’s application for leave to rely generally upon the affidavit affirmed by him on 16 November 2023 and filed 17 November 2023, and the documents annexed thereto. Such leave was refused. The reasons in respect of that refusal appear at [11] – [27] below.
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.
The father deposed to discovering, on the evening of 18 July 2023, on information provided to him and his solicitor by his counsel, that the primary judge and counsel for the maternal grandmother had been barristers together at T Chambers. He further deposed to his observation during the trial, on 19 July 2023, of “further tense exchanges” between the primary judge and his counsel,[5] which included a reference by his counsel to counsel for the maternal grandmother “being in the same chambers as the primary judge for a period of time”.[6] On his own evidence, there is no doubt that during the trial the father was aware of the primary judge’s previous association with T Chambers, and that counsel for the maternal grandmother retained a room in the same chambers. Despite this evidence, the father claimed to know of the nature of the association, and its extent, only after the final orders were made in August 2023. In our view, it is clear he was aware of the association during the trial. No recusal application of the primary judge was ever made by him on this basis during the trial.
[5] Father’s affidavit filed 17 November 2023, paragraph 13.
[6] Father’s affidavit filed 17 November 2023, Annexure MA-1, p.32.
In furtherance of his argument, the father deposed that the primary judge, whilst she was a barrister, was led by counsel for the maternal grandmother in family law cases, aligned with him in such cases, and appeared against him in other cases. Such information the father claimed to have obtained from the website.
Additionally, the father claimed to have discovered on 15 October 2023, that counsel for the ICL had formerly been a judge hearing family law cases before whom the primary judge, when a barrister, had appeared, as had counsel for the maternal grandmother. This information the father claimed to have also obtained from the website.
The father did not demonstrate why these matters, derived from his website searches, which were discoverable during the trial, were not led during the trial.
On 1 November 2023, the father obtained the transcript of the swearing in ceremony of the primary judge. We accept that this piece of evidence may not have been available to the father at the time of trial. The primary judge, in a part of her address at that ceremony, referred to counsel for the maternal grandmother as “my good mate” and said that he had assisted her transition from solicitor to barrister by “generously letting me look at his fee book for the last year. Content that I could make ends meet, I made the leap”.[7] These words were said by the primary judge in the context of a very personal and momentous occasion for her. An occasion with some contextual humour. She was leaving her daily interactions with her barrister friends in chambers and moving to a judicial life. It is not uncommon for judges to thank their then friends, who may remain their friends. That fact, on its own, without an articulation by the father of how it might logically be said to lead to an apprehension that the primary judge might not resolve the issues before her on their legal and factual merits, and we note none is apparent, is not sufficient to satisfy the criterion for the determination of an apprehension of bias on the part of the primary judge.
[7] Father’s affidavit filed 17 November 2023, p.83.
The fact of the primary judge and counsel for the maternal grandmother being in the same chambers and friends prior to the primary judge being appointed almost two years before the trial, does not provide an association, without more, that would require the primary judge to disqualify herself nor disclose same. The fact of the primary judge, and of counsel for the maternal grandmother, appearing before counsel for the ICL when he was formerly a judge of an inferior court, approximately seven years before trial, does not provide an association, without more, that would require the primary judge to disqualify herself nor the primary judge or counsel for the ICL to have an obligation of disclosure. Again, in respect of these matters, there is an absence of articulation by the father in the terms referred to in the preceding paragraph. That articulation is necessary as is an assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer. Such assessment was not proffered by the father.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [24] – [37] specifically rejected the notion that there exists a category of case, involving some “interest” or “association” on the part of a judge, in respect of which an apprehension of bias will be presumed without needing to consider the criterion (as definitively stated in Ebner) and its application (as identified in Ebner) for the determination of an apprehension of bias on the part of a judge.
We comprehensively reject 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”,[8] based on the material in the father’s affidavit and documents annexed thereto as sought to be introduced into evidence by him.
Accordingly, leave is not granted to the father to rely upon the proposed further evidence.
The father is bound by the conduct of his matter in the Court below.[9]
[9] Metwally v University of Wollongong (1985) 60 ALR 68 at [71].
LEAVE TO APPEAL
The father outlined six grounds of appeal which broadly contended apprehended bias by the primary judge and challenged her refusal to recuse herself upon application by the father that she do so on the second day of the trial, being 18 July 2023. Orders made in respect of that refusal and reasons for judgment were delivered on 22 August 2023.
Section 28(3)(e)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides that leave is required to appeal from “a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 1) constituted by a single judge”.
Regulation 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) (“the Regulations”) provides that a prescribed judgment is an interlocutory decree (other than a decree in relation to a child welfare matter).
Regulation 4.02(2) of the Regulations provides a relevant definition of “child welfare matter”:
(2) For paragraph (1)(a), a child welfare matter is a matter relating to the following:
(a) the person or persons with whom a child is to live;
(b) the person or persons with whom a child is to spend time or communicate;
(c) any other aspect of parental responsibility (within the meaning of Pt VII of the Family Law Act) for a child.
Rule 1.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) defines “interlocutory order” as meaning:
(a) an interim order; or
(b) a procedural order; or
(c) an ancillary order; or
(d) any other incidental order relating to an application or order.
The Full Court, when considering the inter-relationship of the above provisions in Wynn & Danilov [2023] FedCFamC1A 149 at [24], stated, relevantly, the following:
Neither the FCFCA (sic) Act, the Rules nor the 2022 Regulations define a “decree” separately to mean something different to an “order” and, as already pointed out, “judgment” in the FCFCA (sic) Act includes a decree and an order. The Act itself though defines a decree to mean “decree, judgment or order” and includes “an order dismissing an application” or “a refusal to make a decree or order” (s 4(1)). Consequently, despite, or perhaps because of, an obvious degree of circularity between these definitions, there appears to be no reason, as a matter of consistency in construction, to distinguish an “interlocutory decree” in reg 4.02(1)(a) of the 2022 Regulations from a “judgment” as defined within the FCFCA (sic) Act and a “prescribed judgment” for the purposes of s 28(3)(e)(i) of the FCFCA (sic) Act. As a result, if … orders are properly characterised as interlocutory, the father requires leave to appeal unless the interlocutory order is “in relation to a child welfare matter”.
The recusal decision of the primary judge is a prescribed judgment. It is not in relation to a “child welfare matter”. The father requires leave to appeal the recusal decision.
The principles which apply to an application for leave to appeal are set out in Goldsmith & Stinson (No 2) (2023) FLC 94-134 at [45], where the Full Court said as follows:
If leave to appeal is required, the test adopted in this Court is a conjunctive one, namely, whether the decision of the primary judge is attended by sufficient doubt so as to warrant its reconsideration by the Full Court and, if so, whether a substantial injustice would occur if leave were not granted: Medlow & Medlow (2016) FLC 93-692 at [57]; Moy & Pao (2022) FLC 94-073 at [11]. The merits of the proposed appeal are relevant to the success of an application for leave to appeal: Ebner & Pappas (2014) FLC 93-619 at [39]; Harford & Spalding [2022] FedCFamC1A 78 at [16].
(Emphasis in original)
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.
In December 2021, the child was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”).
In 2022, the mother died.
In or around January 2023, the child spent five nights with the father.
On 6 April 2023, the child was diagnosed with Autism Spectrum Disorder (“ASD”).
Between 7 and 10 April 2023, the child spent time with the father over the Easter long weekend for four nights, supervised by the paternal grandparents.
At the commencement of the hearing before the primary judge in July 2023, the child continued to live with the maternal grandmother. He had not spent time with the father since 10 April 2023, but was having weekly video call communication with the father. The maternal grandmother sought that the child continue to live with her and that the parties have equal shared parental responsibility for the child. She sought that the child spend time with the father on week three of the school term from the end of school on Friday until the commencement of school on Monday; on week seven of the school term from 6.00pm on Friday until 5.00pm on Sunday; school holiday time and special occasion time. None of the time sought was to be supervised. The father sought an order for sole parental responsibility of the child; for the child to live with him; and for the child to spend time with the maternal grandmother during school holidays and by agreement during school terms; and otherwise for the child to communicate with the maternal grandmother at least once a week via video call. The ICL did not indicate a preliminary position, but on the last day of the trial tendered a Minute of Orders which, amongst other orders, sought that the child continue to live with the maternal grandmother and that the parties have equal shared parental responsibility for the child. The father then conceded his former position that the child live with him. Through his counsel, the father went on to indicate to the primary judge that he consented to the orders proposed by the ICL, and later that he was “consenting pretty much almost exclusively to the ICL’s orders”.[10]
[10] Transcript 21 July 2023, p.346 lines 22-23.
The trial involved five days of final hearing which commenced on 17 July 2023. On 18 July 2023, and following the conclusion of the father’s evidence at the end of the first day, an adjournment was sought by and granted to the father for his counsel to obtain instructions as to a foreshadowed application for disqualification. There was, subsequently granted by the primary judge, a further adjournment to accommodate the father’s preparation of the application for disqualification. The application was then made orally in reliance on an affidavit filed and sworn by the father on 18 July 2023. The application was founded on an alleged apprehension of bias arising from the judicial conduct of the primary judge during the final hearing. Submissions were made in support of the application.
The application was opposed by the maternal grandmother and the ICL.
The application was dismissed by the primary judge with her Honour saying, “I don’t propose to disqualify myself. I will give reasons at the end of the matter”.[11]
[11] Transcript 18 July 2023, p.115 lines 15-16.
Nothing which happened thereafter on 18 July 2023, or during the remainder of the trial has any relevance to that recusal application and its refusal. No further application for recusal, relying on any subsequent matters, was made by the father.
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.
The primary judge went on to observe that the submissions in support of the disqualification application and the affidavit evidence “focused fairly squarely on the feelings of the applicant”.[15] She noted that the test was not a subjective test but an objective test, and by reference to the principles applicable as set out in Galea v Galea (1990) 19 NSWLR 263 she considered the evidence of the father. The primary judge canvassed every relevant intervention by her in the father’s evidence. The primary judge determined that such interventions by her were questions of a type which a trial judge might ask to clarify the evidence she has heard in the case; and/or necessary, in circumstances where the witness was non-responsive and she sought to redirect the witness; and/or of assistance in circumstances where the witness had taken a position, as to the orders sought by him, in relation to which a trial judge wished to understand such position in light of the evidence in the case.
[15] Acheson & Begbie [2023] FedCFamC1F 704 at [23].
The primary judge dealt with the specific example of her intervention as referred to in the father’s affidavit at paragraph 8, where the primary judge asked the father whether he was “deliberately missing the point”. She said:[16]
[16] Acheson & Begbie [2023] FedCFamC1F 704 at [33]-[37].
33.…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”
34. It is necessary to place this in context.
35.The respondent gave evidence that she is [a public servant]. 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 (sic) in the right. Tell me how your next working with childrens (sic) check goes because whether it’s facs (sic) 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)
36.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 a [public servant]?
APPLICANT FATHER: Correct, yes.
COUNSEL FOR THE RESPONDENT: Yes. How did you think she would work without a [public service] Check?
APPLICANT FATHER: I had – I – whether it was myself or my mother that had previously made a complaint to the public service, 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 [public service] 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)
37.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.
The primary judge concluded as to her interventions: [17]
45. …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 a 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].
[17] Acheson & Begbie [2023] FedCFamC1F 704 at [45].
The primary judge next considered the father’s affidavit allegation as to her body language as set out below: [18]
46.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.
[18] Acheson & Begbie [2023] FedCFamC1F 704 at [46].
The primary judge said as to this matter: [19]
[19] Acheson & Begbie [2023] FedCFamC1F 704 at [47]-[50].
47.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
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)
48.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.
49.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 choose. The question of where the limit is must be one of fact and degree. The case law is helpful: see, eg, Miedis & Miedis (2020) 62 Fam LR 78 at [27].
50.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.
The primary judge, in next considering the issue of permissibility of questions in re-examination referred to s 39 of the Evidence Act 1995 (Cth) (“the Evidence Act”) and was guided by it. She determined that there were three major difficulties with the approach of counsel for the father to re-examination in this case being:[20]
(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.
[20] Acheson & Begbie [2023] FedCFamC1F 704 at [53].
The primary judge disallowed specific questions in re-examination by reference in particular to s 39(a) of the Evidence Act. She observed that such evidentiary rulings, if wrong, do not allow for a party to “leap immediately from flawed evidentiary ruling to apprehended bias”.[21] Rather such rulings were “natural elements of adversarial litigation and do not without more connote bias”.[22]
[21] Acheson & Begbie [2023] FedCFamC1F 704 at [58].
[22] Acheson & Begbie [2023] FedCFamC1F 704 at [59].
Finally, the primary judge considered the allegation by the father that his counsel was treated differently from the other counsel, she inferred more favourably, and said, relevantly as follows:[23]
[23] Acheson & Begbie [2023] FedCFamC1F 704 at [60]-[64].
60.….. 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.
…
62.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 he court room including permitting or disallowing questions as part of evidence in chief, cross-examination or re-examination.
63.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).
The primary judge was not satisfied that the father had established there were substantial grounds individually nor cumulatively and refused the application for recusal.
LEGAL PRINCIPLES
The test for determining whether a judge should disqualify himself or herself on the ground of apprehended bias is whether “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”.[24]
In Ebner at [8], Gleeson CJ, McHugh, Gummow and Hayne JJ explained the operation of the principle as follows:
The apprehension of bias principle admits of the possibility of human frailty. It’s application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) 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 (or juror) 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 of the possibility of departure from the impartial decision making, is articulated.
Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
The question is to be answered having regard to the legal, statutory and factual contexts in which the decision is made.[25] The hypothetical observer is taken to know the nature of the decision, the context in which it was made, and the circumstances leading to it.[26]
[25] Isbester v Knox City Council (2015) 255 CLR 135 at [20].
[26] Isbester v Knox City Council (2015) 255 CLR 135 at [23].
A finding of apprehended bias is not to be reached lightly. To the contrary it must be “firmly established”.[27] There must be “strong grounds for inferring the existence of a reasonable suspicion”.[28]
[27] Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352, 364 and 371.
[28] Re JRL; Ex parte CJL (1986) 161 CLR 342 at 359-360.
The relevant reasonable apprehension is not that of, and is not determined by, the subjective perceptions of any party to the proceedings, although the impression that might reasonably be made on the parties by the facts is not completely ignored.[29] It is an objective test. One of possibility, not probability.[30]
[29] Johnson v Johnson (2000) 201 CLR 488 at [52] per Kirby J; Nagel v Clay (2020) 60 Fam LR 550 at [137].
[30] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
The presumptive state of mind of the hypothetical observer has been the subject of much judicial commentary. For example, in Doughty-Cowell v Kyriazis [2018] VSCA 216 at [79] the Victorian Court of Appeal said:
…The level of knowledge and sophistication which a fair-minded observer hypothetically brings to the question is that of a layperson (not a lawyer), informed as to the relevant facts of the case and sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear.
(Footnote omitted)
In Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232], the New South Wales Court of Appeal said, “that the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally”.
In Johnsonv Johnson (2000) 201 CLR 488, the plurality of the High Court said at [13]:
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.” Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(Footnotes omitted)
GROUNDS OF THE PROPOSED APPEAL
Disqualification
In determining whether leave to appeal should be granted, and the merits of the appeal, we have considered only the evidence and arguments upon which the father relied on 18 July 2023, the subject recusal application being dealt with by the primary judge on 18 July 2023. The father’s Amended Summary of Argument addresses those matters, but otherwise strays considerably outside those parameters and to the extent that is does, in reliance on the further evidence sought to be adduced by him, those matters are not relevant.
Ground 1 & Ground 6
1.The learned trial judge erred, in not finding, that a fair-minded lay observer, might have reasonably apprehended, that her Honour might not have brought, an impartial mind, in to the resolving of the parenting application (the Apprehended Bias Determination), because her Honour did not identify the correct test, for the Apprehended Bias Determination (Apprehended Bias Test), as her Honour:
(a) did not identify the second, of its two distinct steps, being the assessment, of any logical connection, between a source, of apprehended bias, such as an association, or conduct, and the feared deviation, from deciding the application, on its merits;
(b) relied, in the reasons, of 22 August 2023, for the recusal decision (the Recusal Reasons), at paragraph 61, on a passage of Mason J (as his Honour then was), in Re JRL; Ex parte CJL (1986) 161 CLR 342, at page 352; [1986] HCA 39, using the word “will”, in his Honour's analysis, which was overtaken, in later cases, by “might”;
(c) incorporated, in the analysis, at paragraph 62 of the Recusal Reasons, a view of “[t]he overriding principle of achieving timely and efficient outcomes for litigants”, when the “overarching purpose”, as defined in s 67(1)(a) of the Act, also refers to the need “to facilitate the just resolution of disputes: (a) according to law”; and
(d) failed to include, as a characteristic of the fair-minded lay observer, an awareness of the nature of the interests at stake, for the appellant, being contact with his only child.
6.The learned primary judge erred, by
(a) specifying, in paragraph 62, of the Recusal Reasons, “[t]he overriding principle of achieving timely and efficient outcomes for litigants”, when the “overarching purpose”, as defined in s 67(1)(a) of the Act, also refers to the need “to facilitate the just resolution of disputes: (a) according to law”; and
(b) applying this standard, when considering procedural matters generally, and those specifically identified in grounds 2, 3 and 4.
There is no merit to these grounds. The primary judge set out the correct principles as to the applicable test as set out in Ebner. She understood the characteristics of the fair-minded lay observer and included them comprehensively in her reference to the recent analysis of the identity of the fair-minded lay observer as discussed in the High Court of Australia in QYFM at [46]–[49]. The judgment in its totality makes clear that the primary judge did recognise and adopt the “double might” test as the relevant test, and further that she considered the hypothetical observer to know the nature of the decision, the context in which it was made, and the circumstances leading to it. In particular, we observe that at the time the disqualification application was made by the father and subsequently dismissed, the substantial interest at stake for the father was with whom the child should live, and not as argued by him “contact with his only child”.[31]
[31] Father’s Amended Summary of Argument and List of Authorities filed 21 November 2023, paragraph 27.
The father’s assertion that the primary judge failed to articulate and apply the correct legal test is rejected by us. His reliance on [61] of the primary judge’s judgment is misguided. The primary judge’s reference, in [61] of her judgment, to the quote of Mason J in Re JRL; ex parte CJL (1986) 161 CLR 342 was not to identify and apply a second and incorrect test, as is clear from the reading of her judgment as a whole, but rather to emphasise that the ground for disqualification was not an apprehension that the primary judge would “decide the case adversely to one party…”.[32]
[32] Re JRL; ex parte CJL (1986) 161 CLR 342 at [352].
The primary judge, having identified the five matters which were said to form the basis of the application to disqualify, all pertaining to conduct, being a category of apprehended bias as set out by primary judge at [7] of the judgment, considered fully each matter, including by reference to the reasonableness of the assertion of apprehended bias.
The conclusions of the primary judge in respect of her interventions in the cross-examination of the father, that they were not excessive and not inappropriate, were correct. The primary judge was entitled to ask questions of any party in her advancing her understanding of the case being brought by that party, and to be able to “attach value and weight” to whatever evidence was given.[33]
[33] Transcript 17 July 2023, p.95 line 21.
The cross-examination of the father by counsel for the maternal grandmother, whilst direct, was not oppressive, and we conclude that the primary judge was correct in finding that it did not meet the threshold of offensive to the fair-minded lay observer.
The father’s subjective perception, that the primary judge “spoke differently” to his counsel in contrast to counsel for the maternal grandmother and counsel for the ICL, implying that the primary judge gave preferential treatment to the other parties’ counsel, was inaccurate. There is no evidentiary basis for that perception and the primary judge’s satisfaction as to this not having occurred as set out in [68] above is well-founded.
The primary judge concluded that none of the matters identified by her in [8] of the judgment were sufficient to satisfy the first step of the Ebner test. In those circumstances it was not necessary for her to consider the second step. We observe as a matter of completeness that the primary judge’s consideration did not include matters going to any alleged association category of apprehended bias as identified by her Honour, as no evidence was directed to, nor submission made, of disqualification by association of the primary judge with either counsel for the maternal grandmother or counsel for the ICL.
It was for the father to articulate the logical connection between what it is said might lead a judge to determine a case other than on its legal and factual merits and the feared deviation from deciding the case on its merits. He did not do so. Further, the father made the assertion of apprehended bias without establishing its reasonableness.
The father’s Amended Summary of Argument does not give any examples of how the primary judge would have decided the disqualification application differently if she had referred to s 67(1)(a) of the FCFCOA Act, as well as s 67(1)(b) of the FCFCOA Act. In any event, the primary judge was not required, in her judgment, nor the courtroom, to specifically refer to s 67 of the FCFCOA Act and the “overarching purpose” espoused therein. The primary judge was at liberty to control the courtroom and its processes to achieve procedural fairness to the litigants and a timely and efficient outcome. The primary judge was empowered to control the length of, and use of time within the trial. That included the primary judge highlighting to counsel for the father that “re-examination is not a further opportunity to provide information which belonged in the affidavit of evidence-in-chief”,[34] and that re-examination of the father by his counsel was not justified where there was the same evidence already before the Court in the father’s affidavit material. No prejudice was occasioned to the father, nor was there any form of procedural unfairness, in the primary judge explaining these, and other matters to his counsel. Any evidentiary ruling in respect of the parameters of re-examination, as made by the primary judge, did not result in an apprehension of bias, even if wrong.
[34] Transcript 17 July 2023, p.101 lines 37-38.
The primary judge determined the proceeding “according to law” as set out in s 67(1)(a) of the FCFCOA Act. The transcript and her Honour’s judgment provide evidence that she did so. The subjective complaint of the father, that the primary judge had a differing opinion to his counsel on the purpose of, and extent of, re-examination, is erroneous. It derives from his counsel’s apparent animus at times toward the primary judge. The fair-minded lay observer would consider the primary judge to have been polite and patient toward counsel for the father, intent on presiding over a trial conducted with diligence and care.
Ground 2(a)-(c)
Her Honour erred, in making the Apprehended Bias Determination, by not applying the correct Apprehended Bias Test, as her Honour did not recognise, as sources of apprehended bias:
(a) the association, between her Honour, and counsel, for the respondent ([Mr M]), when both, as members of [T] Chambers ([T]), practised together, as barristers (the [T] Connection), including:
(i) the length of the [T] Connection;
(ii) the promotion, and wider understanding, of [T], as a very small, leading chambers, for specialist family law counsel;
(iii) the continuation, of the [T] Connection, until … 2021, the date of swearing in, of her Honour, as a Justice;
(iv) the apparently exclusive specialisation, of both, during the [T] Connection, as family law counsel;
(v) the close nature of the ties, between members of [T], declared in comments, of the Honourable Justice Rees, when sworn in as a Justice, on 15 December 2011, as published in the Bar News, of autumn 2012 (at pages 71-72), including by:
(A) describing [T] as a “family”, with “a tremendous friendship and care”;
(B) indicating that those ties would continue, including by way of reliance, after the judicial appointment, by reference to Mr Robert Lethbridge SC (Mr Lethbridge SC), who had led the Honourable Justice Rees, in family law cases, as in Commissioner of Taxation and Worsnop (2009) 40 FamLR 552; [2009] FamCAFC 4;
(C) the appearance, shortly after those comments, of Mr Lethbridge SC, before the Honourable Justice Rees, in family law cases, as in Masoud & Masoud [2012] FamCA 792, continuing, for a decade, as in Jennett & Ayrton [2021] FedCFamC1F
(D) describing [T], as centrally managed, by a non-lawyer, to whom its members were, and should continue to be, subject; and
(vi) the appearance, of her Honour, when counsel, being led, by [Mr M], in family law cases, as in Pitrec & Pitrec [2010] FamCA 1231;
(vii) the appearance, of her Honour, when counsel, aligned with [Mr M], in family law cases, as in Pisani & Pisani (2008) 216 FLR 453; [2008] FamCAFC 25;
(viii) the existence of the [T] Connection, from 12 November 2019, when the appellant filed his application, to … 2021, when her Honour became a Justice;
(ix) the promotion, at the home page of the website of [T], of current, and former, “Family Court” judges, who were members, of [T], instead of its own barristers;
(x) the likelihood that the work carried out together, during the [T] Connection, greatly exceeds that discoverable in accessible contested, and decided, cases;
(xi) the community concern, about relationships between counsel, and judges, in family law matters, after the majority decision of the Full Court, of the Family Court of Australia, in Charisteas & Charisteas (2020) 354 FLR 167; [2020] FamCAFC 162, and the resulting Australian Law Reform Commission Inquiry, and Report, Without Fear or Favour: Judicial Impartiality and the Law on Bias (ALRC Report 138); and
(b) the association, between her Honour, and counsel for the Independent Children’s Lawyer (the ICL), [Mr O], formed when, as a Federal Magistrate, of the Federal Magistrates Court of Australia, and later, as a judge, of the Federal Circuit Court of Australia, his Honour decided family law cases, in which her Honour, appeared, as counsel, as in Bach & Bach [2016] FCCA 26, and Tatlow & Tatlow [2010] FMCAfam 1227 (the [Mr O] Connection);
(c) the association, between [Mr M], and [Mr O], formed when [Mr O] as a Federal Magistrate, and later, as a judge, decided family law cases, in which [Mr M] appeared, as in Kay & Kay & Anor (No.2) [2016] FCCA 1841, and A & S [2004] FMCAfam 563 (noting paragraphs 57 and 101) (the Secondary [Mr O] Connection).
These grounds have no merit. The above ‘association’ grounds of alleged apprehended bias were not relied upon nor argued in support of the father’s disqualification application on 18 July 2023. Not surprisingly therefore, no part of the primary judge’s judgment is directed toward the ‘association’ allegations. Whilst counsel for the father made some oblique reference to the ‘chambers’ connection of the primary judge and counsel for the maternal grandmother on the afternoon of 19 July 2023, nothing was said in respect of that to connect it with the earlier recusal application, nor was any further recusal application made. There were neither any new grounds articulated as to any disqualification application. The argument in relation to treating counsel for the maternal grandmother differently was a ‘conduct’ argument, which was substantially based on the primary judge’s direction to counsel for the father as to the scope of re-examination, and otherwise on the alleged failure of the primary judge to intervene in counsel for the maternal grandmother’s cross-examination of the father, which he subjectively perceived to be oppressive.
As no association argument was made during the disqualification application, the father is now unable to argue it.[35]
[35] Metwally v University of Wollongong (1985) HCA 28 at [65].
Additionally, we note that there is no evidence of any contact, association, or communications between any counsel and the primary judge during the trial, nor following it pending the delivery of judgment. The evidence as to the matters sought to be led as further evidence, including at the primary judge’s swearing in ceremony, do not alter that fact.
The primary judge was not under an obligation to disclose her professional history with counsel for the maternal grandmother or counsel for the ICL. The father asserting that obligation in these circumstances is not reasonable nor practicable.
Ground 2(d) & Ground 5
2(d). Conduct, during the hearing of the matter, before, and after, the application for the Apprehended Bias Determination, creating a perceived mutual animus, between her Honour, and counsel for the appellant ([Ms S]), including her Honour:
(i) requiring that [Ms S], in re-examining the appellant, on 17 July 2023, be “brief”;
(ii) rolling her Honour’s eyes, on occasions, when [Ms S] spoke;
(iii) failing to disclose, at any time, the [T] Connection, or any aspect of it;
(iv) expressly refusing to engage, with [Ms S], when, after the [T] Connection was discovered, by the appellant, and his lawyers, at night, on 18 July 2023, [Ms S] raised it, the next day, with her Honour, as a matter of concern;
(v) failing to disclose, at any time, the [Mr O] Connection, or the Secondary [Mr O] Connection, or any aspect of either, including when [Mr O] positively opposed the recusal application;
(vi) admonishing [Ms S], on repeated occasions, for shaking her head;
(vii) disagreeing with [Ms S], when she claimed, on 19 July 2023, that her Honour had asked that her re-examination, of the appellant, on 18 July 2023, be “brief”; and
(viii) not including, in the Recusal Reasons, anything about [Ms S] raising the [T] Connection, or the comment that the appellant’s re-examination be “brief”.
…
5. By reason of the matters specified in sub-ground 2(d), above, her Honour did not afford the appellant procedural fairness, in a material way, as it deprived him of the possibility of a different outcome.
The father was afforded procedural fairness in a material way by the primary judge. We reject the assertion to the contrary as made by the father and find these grounds have no merit.
Grounds 2(d) (i), (vii), and (viii)(as to the relevant part) are not an accurate representation of what the primary judge said on 17 July 2023. The primary judge did not tell counsel for the father to “be brief” in her re-examination of the father. Rather, the primary judge, in endeavouring to assist counsel for the father, provided a description of re-examination to her, which included that the process was “generally fairly brief and confined to making sure that the court is not left with an incorrect picture as the result of a specific piece of evidence about which a finding of fact needs to be made at the end of the cross-examination”.[36]
[36] Transcript 17 July 2023, p.102 lines 16-19.
Notwithstanding what was said by the primary judge, on the second day of the final hearing, the following exchange was had between the primary judge and counsel for the father:[37]
[37] Transcript 18 July 2023, p.139 line 20 – p.142 line 9.
HER HONOUR: [Ms S].
COUNSEL FOR THE APPLICANT: Am I permitted re-examination?
HER HONOUR: It’s not a question of you being permitted or not permitted. You will ask any questions which you think arise pursuant to section 39 - - -
COUNSEL FOR THE APPLICANT: 39.
HER HONOUR: - - - of the Evidence Act. There may be an objection by counsel. There may be intervention by me. But there’s no question about whether one is permitted or not permitted.
COUNSEL FOR THE APPLICANT: Your Honour, I say that because yesterday it was observed by my instructing solicitor and the client that I was severely restricted under section 39 which would form the basis of the application to disqualify. And while I’m fully aware - - -
HER HONOUR: I appreciate that you take that view. But as I see it, you probably appreciate that it’s not a view that I share. And certainly I would not want you to think that there is any blanket reason why one is not permitted to re-examine. You re-examined - - -
COUNSEL FOR THE APPLICANT: I did, your Honour. Because the reasons that were given yesterday were that my re-examination had to be brief, and that it was – you used the word brief, and then also that my re-examination was limited to matters in which you were confused on or misled by, as opposed to section 39 and the case law which says that it’s not limited by ambiguities. It’s only - - -
HER HONOUR: I’m not sure that it’s productive for you and I to have this debate at this time about your perception of yesterday’s rulings. I’ve indicated to you that there’s no blanket prohibition on re-examination. You will ask the questions you want to ask. And you will – if there’s an objection, there’s an objection. I certainly – there’s no point at which I said to you that re-examination has to be brief.
COUNSEL FOR THE APPLICANT: You did, your Honour. I apologise, but you did. And with respect.
HER HONOUR: As I said – as I indicated to you, I’m not so sure that it’s particularly productive - - -
COUNSEL FOR THE APPLICANT: Well, I wanted to clarify.
HER HONOUR: - - - given it goes to the subject matter of your earlier application, you will no doubt read that in due course. But if you have been under the misapprehension that you are required to be brief, that is no part of the way in which the section operates.
COUNSEL FOR THE APPLICANT: I agree. Thank you, your Honour.
Clearly, in the above exchange, counsel for the father was wrong in her assertion that the primary judge had earlier told her to “be brief” in her re-examination of the father, and the fair-minded lay observer would acknowledge that fact.
The father also argued that the primary judge erred in relying upon s 39 of the Evidence Act in the above exchange, when determining the limits to the re-examination. Section 69ZT of the Family Law Act 1975 (Cth) (“the Act”) provides that a range of provisions in the Evidence Act (including s 39) do not apply unless the Court decides otherwise, taking into account the conjunctive requirements of subsection (3). However, the primary judge was still required to control the proceedings to ensure procedural fairness. Even without s 39 of the Evidence Act, one would reach the same position relying upon general principles (for the reasons the primary judge explained at the time). The reference to s 39 of the Evidence Act may have been an error, however, it did not lead to an erroneous outcome and the outcome would have been the same in this case. There is, accordingly, no appellable error.
Grounds 2(d) (iii), (iv), and (v) have been dealt with elsewhere in these reasons and otherwise have no merit.
Ground 2(d) (ii) did not definitively happen, and if it did, it was on one occasion only during a five-day trial. For the purposes of the argument, the primary judge treated the observation of counsel for the father as accurate. The context was the disagreement between counsel for the father and the primary judge as to the parameters of re-examination. The relevant part of the transcript is as set out in [65] above. Having considered this context, and the body language of the primary judge on a single occasion, the fair-minded lay observer would not reasonably apprehend judicial bias.
Ground 2(d) (vi) is a ground which makes complaint about the conduct of the primary judge which was in fact measured and appropriate in her response to counsel for the father. The relevant part of the transcript is as follows:[38]
HER HONOUR: Thank you. I don’t propose to disqualify myself. I will give reasons at the end of the matter. Could you call your next witness, please. You can shake your head; it’s not usually the way in which we do things.
COUNSEL FOR THE APPLICANT: It’s my understanding, your Honour, that you would give reasons now.
HER HONOUR: I won’t be. Could you call your next witness, please.
COUNSEL FOR THE APPLICANT: That’s why I was shaking my head, because I expected to hear some reasons so we could understand, because we went through so much trouble to prepare our application.
HER HONOUR: Okay. Thank you. Could you call your next witness, please.
[38] Transcript 18 July 2023, p.115 lines 15-28.
It was not the primary judge who acted in any disrespectful way, nor in any way remotely suggestive of apprehended bias as determined by the fair-minded lay observer.
Ground 3
The learned primary judge erred, in making the Apprehended Bias Determination, by not applying the correct Apprehended Bias Test, as it was not found, as it ought to have been, that, a fair-minded lay observer, aware that the dispute was about competing proposals, between the appellant, and the respondent, for contact with the appellant's only child, could logically consider that the sources of apprehended bias, could lead to a departure, from deciding that question, on its merits, impartially, given, especially:
(a) her Honour’s undisclosed familiarity, with [Mr M], and [Mr O], and the higher confidence, with which her Honour would be expected to consider their arguments;
(b) [Counsel for the father’s] inexperience, as a barrister, generally, and specifically, in family law; and
(c) the apparent mutual animus, between her Honour, and [counsel for the father].
This ground has no merit for the reasons given above. The primary judge displayed no animus toward counsel for the father. Rather, her approach was constructive and polite. There is no evidentiary basis to suggest that the primary judge had higher confidence in her consideration of the arguments of counsel for the maternal grandmother and counsel for the ICL. Each of the members of counsel were treated with the same courtesy, respect and engagement.
Ground 4
The learned primary judge erred, in making the Apprehended Bias Determination, by not applying the correct Apprehended Bias Test, as it was not found, as it ought to have been, that the feared departure, from deciding the contact, between the appellant, and his son, on its merits, arising from the sources of bias, was reasonable, so that a fair-minded lay observer might reasonably apprehend, that her Honour might not decide it, impartially.
There is no merit to this ground for the reasons given above. The primary judge applied the correct test.
CONCLUSION
It is not possible to ascertain precisely what it is said might have led the primary judge to decide the applications for parenting orders other than on their legal and factual merits, much less any logical connection between any such matters and the feared deviation from the course of deciding the case on its merits (Ebner).
The bias grounds are each without merit.
For the reasons we have provided, the primary judge’s reasons are not attended by sufficient doubt to warrant reconsideration by the Full Court. The father has not pointed to any substantial injustice if leave to appeal was not granted. Leave to appeal would be futile and should be refused.
COSTS
At the conclusion of the appeal, we sought submissions from the parties on the question of costs.
The father has been wholly unsuccessful which is a ground for departure pursuant to s 117(2A) of the Act from the usual rule that each party pay their own costs pursuant to s 117(1) of the Act. His legal representation conceded that in those circumstances costs will follow the event and was content for a lump sum to be awarded by the Full Court.
The maternal grandmother sought costs in the event the appeal was unsuccessful in the sum of $14,382.64.
The ICL sought costs in the event the appeal was unsuccessful in the sum of $2,353.10.
We are satisfied that there are circumstances justifying an award of costs in the quantum claimed in favour of the maternal grandmother and the ICL.
RIETHMULLER J
I agree with Orders 1, 3 and 4 as proposed by Hartnett and Strum JJ; however, I differ in my reasons.
BACKGROUND
The Application before the Court sought parenting orders for a child born in mid-2017. Each of the mother and the appellant father had difficulties, as was demonstrated by the involvement of child welfare authorities in the child’s life from around four months of age. The parents separated in April 2018. From mid-2018, the child lived in the home of the respondent maternal grandmother. The mother suffered difficulties with mental health and was found deceased in late 2022. The child remains living with the respondent.
Whilst the appellant sought orders for the child to live with him, by the time of final addresses, he agreed with the proposal of the ICL that the child live with the respondent (at [7] of the primary judgment). The substantive dispute that ultimately had to be determined related to whether the respondent should be restrained from bringing the child into contact with her former partner (at [74] of the primary judgment). The primary judge was ultimately persuaded to make orders in terms similar to that proposed by the ICL, with her Honour ordering that the respondent be restrained from leaving the child in the sole care of her former partner (the appellant and the ICL having sought an order restraining the child coming into contact with him).
Three factual issues led to disputes that required rulings by the primary judge concerning the breadth of re-examination which are relevant to the appellant’s apprehended bias argument. In 2019, the appellant had falsely claimed to the respondent that he had a recovery order. Secondly, the appellant had claimed that the respondent had not involved him in the care of the child, yet the primary judge identified 11 examples where the respondent had involved the appellant, including not responding to a text advising him of the child’s kindergarten graduation (at [42] of the primary judgment). Thirdly, whether the appellant and his mother (the paternal grandmother) obtained a DNA test of the child’s heritage to challenge the respondent’s claims that the child has Aboriginal heritage, or whether the tests were incidental to family history research; and thereafter, what should be made of the result that indicated that the child had no Aboriginal DNA (despite it being well known that the DNA reference samples for Aboriginal people (like American Indians) are too small for reliable conclusions to be drawn).
The appeal is limited to claims that the primary judge ought to have disqualified herself as a result of apprehended bias and does not otherwise challenge the reasons given by her Honour for the final parenting orders.
LEAVE TO APPEAL
On 22 August 2023, the primary judge entered written orders and gave reasons for dismissing the appellant’s application that she be disqualified for apprehended bias, which her Honour had ruled upon on 18 July 2023, during the trial. Her Honour also gave judgment in the substantive proceedings making final parenting orders which were also entered on 22 August 2023.
The order identified in the Amended Notice of Appeal filed 18 October 2023 (at Part D and Part F) as the subject of the appeal is described in the form as “Date of order 22/08/2023” (the dismissal of the disqualification application and the final party orders). Although two orders were entered that day, the order dismissing the disqualification application was made on 18 July 2023, when it was pronounced in Court: see r. 10.19(1)(a) of the Rules. The Amended Notice of Appeal seeks leave to appeal “as a precautionary measure”. Most of the grounds address the primary judge’s reasoning when determining the disqualification application, save for Ground 2(d) and Ground 5. Ground 2(d) complains that the primary judge did not recognise as a basis for the apprehended bias argument events that occurred after the application, which the appellant says (in Ground 5) resulted in the appellant being denied procedural fairness. In his Amended Summary of Argument filed 21 November 2023, the appellant identifies that he “challenges all the orders, made 22 August 2023, including that refusing his [disqualification] application”.[39]
[39] Appellant’s Amended Summary of Argument and List of Authorities filed 21 November 2023, paragraph 1.
To the extent that the appeal is against the order dismissing his application that the primary judge disqualify herself, the appellant requires leave to appeal, as the FCFCOA Act specifically provides that appeals against dismissals of disqualification applications require leave: see s 28(1)(c) of the FCFCOA Act. However, the appellant does not require leave to appeal from the final parenting orders.
If apprehended bias is established by the appellant, the result is a failure to afford procedural fairness when determining the parenting issues. The requirement for leave to appeal from a disqualification decision made during a trial does not prevent the appellant from relying upon apprehended bias grounds in his appeal against final orders, in order to attempt to establish a lack of procedural fairness with respect to the final orders (as it could not be said that it was unreasonable not to appeal the ruling during the course of the trial in this case): as discussed in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [85] and see generally Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 458.
The real question for this Court is not whether the primary judge erred in her determination of the disqualification application during the trial, but whether the appellant has demonstrated procedural unfairness in the process leading to the final orders, on the grounds of apprehended bias. The allegations of apprehended bias can be, and are, relied upon as grounds of appeal against the final orders which the appellant is pursuing. As a result, there is no purpose to be served by reviewing the reasons for the disqualification decision. I would therefore refuse the appellant’s application for leave to appeal against the disqualification decision.
APPLICATION TO LEAD EVIDENCE ON THE APPEAL
The Court has a broad discretion to admit further evidence on appeal, as discussed in CDJ v VAJ(No 1) at [114]. Whilst the failure to lead evidence at trial is a relevant factor, it is a variable factor, the weight of which depends upon all of the other factors: CDJ v VAJ (No 1) at [116] The appeal in this case goes to whether there was a reasonable apprehension of bias on the part of the primary judge. An appeal of this type may more commonly give rise to the need to adduce further evidence: for example, in Charisteas & Charisteas (2020) 354 FLR 167 at [149] when evidence was required of events that occurred outside of the courtroom, after the conclusion of the hearing, which was not directly relevant to the dispute between the parties. However, even in cases concerning claims of apprehended bias it is expected that the facts and circumstances relied upon would ordinarily be placed before the primary judge in support of a disqualification application, which ordinarily ought to be made at the time that the grounds relied on to argue apprehended bias become apparent.
In this appeal, the appellant sought to rely upon an affidavit of 97 pages (including annexures). Those parts of the affidavit recounting the events of the trial should not be admitted as there is a transcript of the hearing. The parts of the affidavit setting out claims against members of this appeal bench with respect to apprehended bias (which were only pursued against Strum J and are dealt with in a separate judgment) are not relevant to the grounds of appeal against the final orders.[40] Other parts of the affidavit were irrelevant, such as the appellant’s subjective impressions of the fairness of the trial, the level of experience of his counsel, references to an unrelated barrister who died from a drug overdose, his statement that he was not content with the outcome of the trial, that he had consented to various orders even though he believed they were wrong, and his own summary of Charisteas v Charisteas (2021) 273 CLR 289 (“Charisteas”). An affidavit is not required in order to make reference to cases and Codes of Conduct available on or published North American jurisprudence.
[40] Acheson & Begbie [2023] FedCFamC1A 240.
The affidavit also sets out that the barristers’ chambers where the primary judge had rooms prior to her appointment is one that promotes itself as a group of leading family law barristers (including the fact that a number of the members of the bench were former members). The conduct of that chambers is not the conduct of her Honour and not, of itself, something upon which “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”.[41] Similarly, a speech given by another judge describing that judge’s connection with her former colleagues at the barristers’ chambers does not show any fact or circumstance that bears upon the primary judge in this case.
I am persuaded that the speech given by the primary judge at her Honour’s welcome ceremony (obtained after the trial) is of sufficient relevance to justify leave being granted to allow it to be admitted into evidence on the appeal, and thus agree with the orders proposed by Hartnett and Strum JJ on this issue.
GROUNDS OF APPEAL
Whilst the appellant sets out six grounds of appeal (see the above reasons of Hartnett and Strum JJ), the grounds address two issues: the facts and circumstances said to give rise to apprehended bias on the part of the primary judge, and whether the primary judge applied the correct test in determining the interlocutory application for her disqualification. For the reasons set out above, I am not persuaded that there is any purpose to be served in analysing her Honour’s reasons. I turn then to consider the arguments raised by the appellant that are said to give rise to apprehended bias.
It is well settled that the test is as set out in Ebner at [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.
The test requires two steps for its application: first, “the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits” and, secondly, “the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”: Ebner at [8]. If apprehended bias is established at any point, subsequent events are not able to overcome the apprehended bias, save for where the party affected expressly or impliedly waives their rights in that respect.
The test must be applied in the context of modern litigation, taking account of the need for active case management which demands that judges no longer remain as detached as a cricket umpire or “as inscrutable as the Sphinx”, until pronouncing judgment. Exchanges between judges and counsel “are not on that account alone to be taken as indicative of prejudgment”, indeed “counsel are usually assisted by hearing those opinions”: Johnsonv Johnson (2000) 201 CLR 488 at [13]. In the context of this Court, the government has placed considerable importance upon “achieving timely and efficient outcomes for litigants” by making this an “overriding principle” (s 67(1)(a) of the FCFCOA Act), and in parenting cases requiring the Court “to actively direct, control and manage the conduct of the proceedings”: see s 69ZN(4) of the Act. Of course, this does not derogate from the fundamental requirements that cases be determined according to law. The basic requirement that there be a just resolution according to law remains (s 67 of the FCFCOA Act), as would be constitutionally demanded of a superior court in any event.
Importantly, as the High Court identified in Ebner at [8], “The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty”. The test does not require a standard of perfection from a judge and nor could it, given the difficult task of managing sharply contested hearings and trials: sometimes even Homer nods.
The present appeal includes claims relating to the past personal connections between the primary judge and counsel who appeared at the trial. It is almost inevitable that judges and other senior members of the profession will know each other, and that many will have become friends through long careers in the law. This level of connection between judges and the profession is unavoidable in a common law system, which relies upon a bench of highly trained judges who have developed and demonstrated their skills through decades of practice. Thus, as the High Court acknowledged in Charisteas, “[i]t may be accepted that many judges and lawyers, barristers in particular, may have continuing professional and personal connections”.[42]
[42] Charisteas v Charisteas (2021) 273 CLR 289 at [22].
The practical method of avoiding apprehension of bias in circumstances where counsel or solicitors appear before a judge, of whom they are former colleagues and with whom they remain colleagues or friends, was set out by McInerney J in R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 (and cited with approval by the High Court in Re JRL; Ex parte CJL (1986) 161 CLR 342 at [346] and Charisteas at [13]):
… save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party.
The suspension of contact between the judge and a member of the profession does not last forever, but “may be resumed [when] a judge making orders and publishing reasons, thereby bringing the litigation to an end” Charisteas at [22]. These principles of practice, seen in the context of the well-established traditions of the professional role of a judge, their oath of office, their security of tenure, and security in retirement, guard against a reasonable apprehension of bias on the grounds of former or current association. However, the particular circumstances of each case must be considered.
The precise grounds are set out in the reasons of Hartnett and Strum JJ above. The appellant identified a large number of factors in the various grounds, which are more conveniently dealt with in four groups.
The nature of the interests at stake
The first factor (identified in Ground 1) is the need to take into account “the nature of the interests at stake … being [the appellant’s] contact with his only child”. The appellant’s argument commences from the position of the appellant’s interests. What was “at stake” in the proceedings was determining the care arrangements for the child, for which the paramount consideration is the child’s best interests: see s 60CA and s 65AA of the Act. Unlike most areas of civil litigation, the primary focus is not upon rights of the appellant, but upon the interests of the child. Significantly, in this case there was never an issue that the appellant would continue to see the child regularly, and during the course of the trial he conceded that the respondent was the appropriate person with whom the child should reside. The nature of the interests “at stake” highlights the reasons that likely lay behind the government enacting the requirements in s 69ZN of the Act and s 67 of the FCFCOA Act (referred to above).
Alleged associations between the primary judge and trial counsel
Grounds 2(a)–(c) and Ground 3(a) lists matters that arise from the primary judge’s professional connections when at the bar. Her Honour was formerly a member of a specialist family law barristers’ chambers of which counsel who appeared at the trial for the respondent and ICL are current members. The primary judge, at her Honour’s welcome upon appointment to the bench, gave a speech (as is customary) thanking family and friends for their support over her lengthy career. Her Honour described the counsel who appeared for the respondent at the trial, using the Australian vernacular, as a “good mate”.[43] The appellant points to an anecdote from her Honour (told at her welcome ceremony) about her hesitancy to embark upon a career at the bar where the counsel had “generously [let] me look at his fee book for the last year. Content that I could make ends meet, I made the leap”.[44] Allowing the primary judge to look at his fee book so many years ago was a small generosity, but hardly one that anyone could reasonably think could lead a person who is now a judge to abandon their judicial oath, nor that it was even a generosity of great significance between professional friends. There is no suggestion of any business, intimate or family relationship. As discussed above, it is well recognised that professional friendships are formed and there is an appropriate mechanism for dealing with such situations: ceasing contact from the commencement of trial until publication of judgment. There is no suggestion that the primary judge had any interaction with counsel between the commencement of the trial and delivery of judgment. None of these matters (singly or together) satisfy the test for apprehended bias.
[43] Appellant’s affidavit filed 17 November 2023, p.83.
[44] Appellant’s affidavit filed 17 November 2023, p.83.
Other matters relied upon by the appellant were particularly tenuous, such as: being led by counsel that appeared for the respondent at the trial in this matter, in a trial more than a dozen years ago;[45] appearing for a client whose interests aligned with the client then represented by counsel for the respondent in a case around 15 years’ ago;[46] appearing on behalf of clients before trial counsel for the ICL when he was a member of the bench of a lower court prior to his compulsory retirement upon attaining 70 years of age.[47] None of the appearances in these cases by the primary judge shows anything more than her Honour having had a long and successful career at that bar: these matters cannot satisfy the test for apprehended bias.
[45] Pitrec & Pitrec [2010] FamCA 1231.
[46] Pisani & Pisani (2008) FLC 93-362.
[47] Bach & Bach [2016] FCCA 26; Tatlow & Tatlow [2010] FMCAfam 1227.
The appellant also argued that because counsel for the respondent had appeared in matters before counsel for the ICL, when counsel for the ICL was on the bench,[48] this somehow impugned the primary judge. I see no logical basis for thinking that this could 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.
[48] Kay & Kay & Anor (No 2) [2016] FCCA 1841; A & S [2004] FMCAfam 563.
It was also put that the primary judge would have been expected to consider the arguments of the counsel for the respondent and the ICL with ‘higher confidence’. This speculation is not supported by any reference to conduct of the primary judge at the hearing.
None of the matters raised by the appellant concerning the primary judge’s professional connections with counsel (singly or taken together) could lead a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide in this case. None of these matters was such as to give rise to a need for the primary judge to make any specific disclosure to the parties.
Conduct during the course of the hearing (Ground 2(d) and Ground 3(c))
At the start of the hearing, counsel for the appellant (despite her alleged ‘inexperience’) was remarkably informal with the primary judge, calling the first witness by saying “If your Honour will allow me one Americanism, I would like to call the applicant to the stand instead of the box” to which the primary judge did not react, simply saying “Okay”. Counsel then said, “It occasionally slips out, and I just find it’s easier to apologise than to make the mistake” to which her Honour responded with grace, saying “Not a problem”.[49] At morning teatime the appellant’s counsel asked the primary judge if court could be adjourned early on the Thursday, saying “I’m running a CPD for new barristers and I have 253 people coming and I’ve been asked to show up by 4.30”. [50] The primary judge graciously agreed. At least early in the trial it is clear that there was no difficulty between the appellant’s counsel and the primary judge, her Honour generously accommodating requests from counsel.
[49] Transcript 17 July 2023, p.7 line 42 to p.8 line 4.
[50] Transcript 17 July 2023, p.25 lines 29-31.
The first interaction between the primary judge and counsel for the appellant that was unfavourable to the appellant appears during re-examination when his counsel attempted to re-examine him about his “Asperger’s Syndrome”.[51] The primary judge intervened as the appellant had said in his affidavit that he didn’t think he would qualify for a diagnosis anymore. He had also said that he did not believe his condition affected his ability to answer questions. The appellant’s evidence in this regard was not challenged. It is unsurprising that the primary judge did not permit counsel to explore this in re-examination.
[51] Transcript 17 July 2023, p.93 line 33.
The primary judge assisted the appellant’s counsel by reminding her that leading questions in re-examination would not lead to answers to which her Honour could attach weight.[52]
[52] Transcript 17 July 2023, p.94.
The respondent’s counsel objected to a rather loose question that appeared to be aimed at attempting to ameliorate potentially damaging evidence about why DNA testing as to the racial heritage of the child had been undertaken by the appellant or his mother.[53] Counsel for the appellant appears to answer the respondent’s counsel’s objection across the bar table. Rather than rebuking counsel, the primary judge regained control of the courtroom by asking the appellant’s counsel to repeat the question. The appellant’s counsel said “Sure. What my friend asked you about DNA testing – according to my notes and why you did DNA testing?”.[54] The primary judge asked again for the question to be repeated, this time her Honour helpfully suggesting what she thought the question was aimed at, no doubt mindful that the exchanges followed an objection by counsel for the respondent which her Honour was required to rule upon. The appellant’s counsel then, in the face of the earlier objection from the respondent’s counsel, confronted the primary judge with a question that invited hearsay and speculation, saying “Yes, what do you understand about the circumstances of why it was done?”.[55] It was at this point that counsel said that she saw her Honour roll her eyes, to which her Honour said, “I apologise if … you perceived I was rolling my eyes” and went on to say that she thought counsel was going to ask the appellant to give evidence about “what he knew about the DNA testing”.[56] Rather than adopting the straightforward question, counsel petulantly responded saying, “I wasn’t going to qualify him as an expert witness”.[57] Her Honour did not rebuke counsel, but continued to attempt to identify the precise question, ultimately suggesting a form of question which counsel adopted.[58] Her Honour then proceeded to hear the objection on the basis of the precise question. Objection was then taken to the question on the basis that it was a fact that did not appear to be in issue. Counsel attempted to avoid this point in the argument. Unsurprisingly, the primary judge was of the view that an undisputed issue was not a proper subject for re-examination. Eventually the appellant’s counsel formulated appropriate questions which she was permitted to ask.[59]
[53] Transcript 17 July 2023, p.96 et seq.
[54] Transcript 17 July 2023, p.97 lines 1-2.
[55] Transcript 17 July 2023, p.97 lines 6-7.
[56] Transcript 17 July 2023, p.97 lines 10-11.
[57] Transcript 17 July 2023, p.97 line 13.
[58] Transcript 17 July 2023, p.97 line 33.
[59] Transcript 17 July 2023, p.100 line 43.
Counsel for the appellant then turned to two more topics, attempting to lead evidence of times when it was alleged that the respondent had not involved the appellant in the child’s care, which were not in his affidavit of evidence in chief. The primary judge explained that:[60]
The purpose of an affidavit is to give evidence about what those occasions were, so that [the] Independent Children’s Lawyer and counsel who appear on behalf of the [respondent] can actually test that evidence ... Re-examination is not a further opportunity to provide information which belonged in the affidavit of evidence-in-chief. The difficulty with it then is that I have to then grant leave for further cross-examination. So that when a topic is raised and a party chooses to deal with it in a cursory fashion, they don’t get to fix it in re-examination. And the fact that somebody canvassed it with them in re-examination doesn’t help you get over that hurdle.
[60] Transcript 17 July 2023, p.101 lines 34-42.
Counsel then responded, without reference to authorities, saying “this has not been my experience in any other jurisdiction”,[61] and “I’m doing a CPD for the new barrister’s committee and I’ve got three silks and a judge, and they’ve all provided PowerPoints and what your Honour is saying is different than what we are teaching”.[62] Her Honour then attempted to explain re-examination to counsel, saying:[63]
I think that you will find that re-examination is generally fairly brief and confined to making sure that the Court is not left with an incorrect picture as the result of a specific piece of evidence about which a finding of fact needs to be made at the end of the cross-examination.
[61] Transcript 17 July 2023, p.101 lines 44-45.
[62] Transcript 17 July 2023, p.102 lines 9-12.
[63] Transcript 17 July 2023, p.102 lines 16-19.
After a couple more poorly framed questions, the subject of objections, counsel declared, “It’s no use in going through this exercise”.[64]
[64] Transcript 17 July 2023, p.102 line 32.
The transcript shows that the primary judge had been polite, and had occasionally attempted to assist the appellant’s counsel, despite counsel’s frustrating, and at times rude behaviour. Whether the primary judge may have rolled her eyes or merely looked up as she searched her thoughts during a difficult exchange is not clear. When this was raised her Honour immediately apologised to counsel, if it was counsel’s perception that she had been disrespectful. At most, it was an isolated incident at a point in the trial where counsel was engaging in challenging behaviours.
The disqualification application
The next morning, the appellant’s counsel sought time to obtain instructions to make an application for the primary judge to disqualify herself, which the primary judge granted. The appellant’s counsel made submission that her Honour disqualify herself saying:[65]
…I would just summarise the particulars of the application and the basis on which the application is made based on the applicant’s evidence summarising your Honour’s conduct towards the applicant as a witness; toward his counsel. The details were given about the eye-rolling; about asking if he was purposely or deliberately missing the point; the deferential treatment that was given to the respondent’s barrister who, obviously, is very seasoned – 20 years – as opposed to the applicant’s barrister and not being permitted to engage in correct re-examination; that there was very antagonistic and demeaning cross-examination put to the applicant about whether he had a comprehension problem.
Given that he has a diagnosis of Asperger’s, in my submission, it was wholly inappropriate. And what my client felt was that your Honour was interrupting his counsel regularly and not permitting things to be said or submitted or questions to be asked, but with regard to the more senior and regular family law barrister, that that was permitted. The evidence that the applicant has put forward is that he’s uncertain whether your Honour dislikes him or dislikes me or both.
[65] Transcript 18 July 2023, p.113 lines 5-21.
The only allegation that her Honour rolled her eyes is discussed above. The exchange where the primary judge asked the appellant whether he was deliberately missing the point occurred when the appellant was being cross-examined about whether a text message to the respondent (a public servant) was an implied threat to affect her employment. The appellant agreed it was an inappropriate text message, but denied it was an implied threat. He was then asked how the respondent could work without a Working with Children Check to which he gave an unresponsive answer. It was then that the primary judge directed the witness to the question, saying, “You’re deliberately missing the point … what counsel was asking you was in sending that message, “What about your next Working with Children Check”, you were threatening her employment?”.[66] It was an observation that was clearly open to her Honour, and appropriate that she put it to the appellant in order to give him an opportunity to respond.
[66] Transcript 17 July 2023, p.48 lines 5-7.
Whilst it was alleged that there was deferential treatment of the respondent’s counsel there are no examples of such treatment. At best, counsel for the respondent had been successful in his objections that confined re-examination of the appellant to topics arising from cross-examination. Counsel for the appellant had made no objections to question by counsel for the respondent. The requests by counsel for the appellant to adjust court hours to meet her personal commitments had been granted and her requests for adjournments to obtain instructions had all been granted.
The claim that cross-examination was “very antagonistic and demeaning … about whether [the appellant] had a comprehension problem” arises from an exchange in cross-examination where the appellant gave an unresponsive answer.[67] Counsel for the respondent then said, “Sir, do you have a comprehension issue?”.[68] This was not a case where the appellant had relevant special needs or impairments, having specifically said in his affidavit that he would not be entitled to a diagnosis of Asperger’s Syndrome any longer. The question shows the respondent counsel’s frustrations with the appellant avoiding difficult questions. It is apparent that the question was rhetorical, in order to highlight that the appellant was avoiding a damaging answer (as he had accused the respondent of not notifying him of matters concerning the child). Counsel for the appellant did not raise any objection.
[67] Transcript 18 July 2023, p.113 lines 12-14.
[68] Transcript 17 July 2023, p.61 line 13.
In submissions before this Court, the appellant argued that the primary judge erred in relying upon s 39 of the Evidence Act when determining the limits to the re-examination. I agree with the reasons of Hartnett and Strum JJ on this issue. Even if this were an appellable error by the primary judge (and I note was not a specific ground of appeal) it is not such as to establish apprehended bias.
None of the rulings about the limits of re-examination were the subject of any specific ground of appeal. The subjective views of the appellant are not relevant for the application of the test for apprehended bias. The claim that the primary judge “was interrupting his counsel regularly and not permitting things to be said or submitted or questions to be asked, but with regard to the more senior and regular family law barrister, that that was permitted” is simply not borne out in the transcript.[69] Indeed, counsel for the appellant benefited from greater indulgences than the respondent’s counsel.
[69] Transcript 18 July 2023, p.113 lines 17-20.
None of the matters identified by the appellant’s counsel in the disqualification application (or events during the trial up to that point) could 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 was required to decide.
After the disqualification application
The primary judge refused the disqualification application and stated that she would provide reasons at the end of the matter. Whilst this is an unremarkable course by a trial judge during a trial, counsel began shaking her head. The primary judge raised this with counsel, saying “You can shake your head; it’s not usually the way in which we do things”.[70] Counsel’s explanation was most unusual:[71]
I was shaking my head, because I expected to hear some reasons so we could understand, because we went through so much trouble to prepare our application.
[70] Transcript 18 July 2023, p.115 lines 16-17.
[71] Transcript 18 July 2023, p.115 lines 24-26.
The primary judge did not respond to this comment, other than to say “Okay” and ask that the next witness be called.
Even after the next witness’ cross-examination, counsel’s needling of her Honour continued. Counsel asked, “Am I permitted re-examination?” and wrongly accused her Honour of requiring counsel’s “re-examination … to be brief” (the comment concerning brevity is set out above at [147]).[72] Thereafter, counsel for the appellant abandoned a question in re-examination following an objection and without a ruling.[73] The primary judge gave a longer morning tea break at the request of the appellant’s counsel,[74] and made no comment when counsel returned late and made no apology.[75] The primary judge later ruled that counsel could continue with a question despite an objection, but instead of continuing counsel preferred to make further comment on the objection, leading to a further objection.[76] Counsel for the appellant alleged that her opponent “received a lot of leeway in his cross-examination about [Region B]”, yet there had been no objections by her to any of that cross-examination.[77]
[72] Transcript 18 July 2023, p.139 lines 11-42.
[73] Transcript 19 July 2023, p.188 line 4.
[74] Transcript 19 July 2023, p.189 line 14.
[75] Transcript 19 July 2023, p.190 line 7.
[76] Transcript 19 July 2023, p.210 line 15.
[77] Transcript 19 July 2023, p.211 line 37.
The nature of the conduct at the bar table at this time can be gleaned from this statement by counsel for the respondent:[78]
Your Honour, can I just raise a court room issue here just in case there are some misunderstandings. I’m doing my best to engage with your Honour when my friend talks to me and I suspect that she finds that discourteous. I just wanted to make it very clear that when I’m on my feet the only person I respond to is your Honour and I mean no discourtesy to anyone else, just in case there’s a misunderstanding about that. If – just in terms of your Honour’s ruling, I don’t wish to cavil with that. I’ve raised that point.
[78] Transcript 19 July 2023, p.210 lines 41-47.
Not long after, the appellant’s counsel then announced, “I’m going to employ a tactic that my friend used”[79] and proceeded to put a question that was the subject of objection and attempted to continue without allowing her Honour to rule on the objection, which inappropriate conduct had not been engaged in by either of the other counsel. When asked to pause for her Honour to read the relevant passage in an affidavit, counsel then withdrew the question.
[79] Transcript 19 July 2023, p.214 line 19.
Later, when counsel was reminded that she had not objected to certain cross-examination (by her opponent) on a topic,[80] she responded saying, inter alia, “it’s my practice, with a very senior barrister, that he will conduct himself in a way that will – only ask questions that are relevant to the proceedings and the issue and that if your Honour thought, similar to my questions, that they were inappropriate that your Honour would interject”.[81] It is not the role of a trial judge to raise objections on behalf of a party’s counsel and not appropriate for counsel to attempt to shift their responsibilities onto the judge.
[80] Transcript 19 July 2023, p.216 line 41.
[81] Transcript 19 July 2023, p.216 lines 44-47.
Soon after, the primary judge provided counsel with the wise advice that “as a general rule, answering objections by saying that counsel … on the other side did X is probably not focusing your attention on how to be successful is sustaining your question. Could I ask if we could it this way…”.[82] However, the advice was obviously not appreciated, leading to the primary judge saying, “don’t shake your head”.[83] Thereafter, counsel declared that she felt physically ill and was at “the end of her ability to cope”, leading to the following exchange:[84]
[COUNSEL FOR THE APPLICANT]: And I feel that my client’s application yesterday is just causing more backlash to me personally, that I am feeling bullied, I am feeling uncomfortable and I am feeling that I am not able to do my job right now.
HER HONOUR: It can be difficult to be where you are and I am not for a moment suggesting you are not feeling all of those things but it is important that you understand that the transcript in due course won’t show you having been interrupted in the manner in which you currently perceive you have been. If I felt that anybody at the bar table or I were bullying you then I would intervene. Court rooms are run in such a way where each party is entitled to be represented to take objections. That’s the way the adversarial system works and the judge’s job is to sit here and to adjudicate.
[82] Transcript 19 July 2023, p.218 line 46 to p.219 line 1.
[83] Transcript 19 July 2023, p.219 line 2.
[84] Transcript 19 July 2023, p.219 lines 16-27.
The matter was adjourned to the next day for the benefit of the appellant’s counsel. The transcript bears out what the primary judge said in this exchange.
The next day there was an objection to a question about the respondent engaging with mental health services. The primary judge sought to have counsel clarify whether the question was directed at services for the respondent or the child. This led to two pages of interactions where the appellant’s counsel was abstruse and oppositional, ending with the following: [85]
HER HONOUR: [Counsel for the respondent] objected to the question on the basis that you used this expression “your reluctance”. And, from that, it was not plain whether or not you were referring to her reluctance to engage in mental health treatment for herself or for others. I thought you understood the ambiguity of that question and I was asking you to clarify it, please. Not because the question is irrelevant, but because, when you used the expression “your reluctance”, it’s not plain whose mental health we’re talking about: for her, or people for whom she has responsibility; or both.
COUNSEL FOR THE APPLICANT: May I proceed, your Honour?
HER HONOUR: I’m asking you to - - -
COUNSEL FOR THE APPLICANT: May I proceed with re-asking the question - - -
HER HONOUR: Of course.
COUNSEL FOR THE APPLICANT: - - - in the manner in which I’ve been given instruction by the bench.
HER HONOUR: Ask whatever question you want to ask arising out of the objection process.
[85] Transcript 20 July 2023, p.251 line 45 to p.252 line 18.
After the respondent had been cross-examined, counsel for the appellant sought to amend the appellant’s application to include an injunction restraining the respondent from allowing the child to be brought into contact with the respondent’s former husband. The application was opposed by counsel for the respondent as the appellant had, by that time, closed his case and the relevant issues were apparent from the outset. The primary judge granted the application on the basis of permitting the respondent to re-open her case to cure any prejudice ([75] – [76] of the primary judgment).
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.
I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 8 March 2024
- AGLC
- Acheson & Begbie (No 2) [2024] FedCFamC1A 21
- Case
- [2024] FedCFamC1A 21
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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.