ADACOT & SOWLE - [2020] FamCAFC 215

FAMILY COURT OF AUSTRALIA

ADACOT & SOWLE

[2020] FamCAFC 215

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Excessive judicial intervention amounting to an unfair trial – Judicial bullying – Abuse of judicial position – Apprehended bias – Waiver – Appeal allowed – Orders set aside – Matter remitted – Costs certificates ordered.

Family Law Act 1975 (Cth) ss 69ZM, 69ZN, 97
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Ellis v The Queen [2015] NSWCCA 262
Finch & Finch (2020) FLC 93-949; [2020] FamCAFC 60
Galea v Galea (1990) 19 NSWLR 263
Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530; [2019] FCAFC 144
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Jones v National Coal Board [1957] 2 QB 55; [1957] EWCA Civ 3
Jorgensen v Fair Work Ombudsman (2019) 371 ALR 426; [2019] FCAFC 113
R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3
R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39
Royal Guardian MortgageManagement Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Toner v Attorney-General (NSW) [1991] NSWCA 267
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

APPELLANT:

Mr Adacot

RESPONDENT:

Ms Sowle

FILE NUMBER:

BRC

13196

2018

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

28 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane (via video link)

JUDGMENT OF:

Strickland, Ainslie-Wallace & Watts JJ

HEARING DATE:

4 June 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

26 September 2019

LOWER COURT MNC:

[2019] FCCA 3524

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page QC

SOLICITOR FOR THE APPELLANT:

Michael Dwyer Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Baston

SOLICITOR FOR THE RESPONDENT:

MCH Family Law

Orders

The appeal be allowed.
The orders made on 26 September 2019 be set aside.
The proceedings be remitted to the Federal Circuit Court for rehearing by a judge other than Judge Andrew.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the cost incurred by her in relation to this appeal.
The Court grants to the appellant and the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of the costs incurred by them in relation to the rehearing of these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adacot & Sowle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 97 of 2019
File Number: BRC 13196 of 2018

Mr Adacot

Appellant

And

Ms Sowle

Respondent

REASONS FOR JUDGMENT

On 26 September 2019 Judge Andrew of the Federal Circuit Court made parenting and property settlement orders in proceedings between Ms Sowle (“the mother”) and Mr Adacot (“the father”). The parenting orders concern the parties’ child, B, who was born in 2013, and the primary issue for determination was the mother’s wish to relocate the child’s residence away from New South Wales to Brisbane. The primary judge ordered the parties to have equal shared parental responsibility for the child and that she live with the mother in Brisbane. His Honour also made orders providing for the child and the father to spend time together.
The father appeals the primary judge’s orders and while the Notice of Appeal filed on 24 October 2019 contains a number of separate challenges to the orders, only one ground was pressed on appeal, namely that the primary judge’s conduct led to an apprehension of bias and denied the father of a fair trial. When fleshed out in the written and oral arguments, the father’s contention is that the primary judge’s conduct towards the father’s legal representatives in the trial, was such that it not only gave rise to an apprehension of bias but also robbed the proceedings of any semblance of fairness and, as a result the proceedings miscarried.
A challenge to a primary judge’s impartiality goes to the heart of the trial process and even if other challenges to the primary judge’s orders failed and even if the judge is found to be correct “… this does not assuage the impression that there was an apprehension of bias” (see Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577 per Kirby and Crennan JJ at [117]).
It was contended for the father that almost from the outset of the hearing, which took place over three days, the primary judge was critical, dismissive, sarcastic and rude to the father’s Queen’s Counsel and attempted to humiliate him. Further, the father contends that the primary judge treated the father’s solicitor in the same way when that solicitor took over following the withdrawal of the father’s Queen’s Counsel.
Counsel for the mother argued that while the primary judge’s comments may have been capable of perception as “forceful”, “dogmatic”, “ultra-formalist”, “interventionist”, “formal” and “abrupt”, they were directed at Queen’s Counsel for the father, and not at the father, and therefore his Honour’s comments do not demonstrate an apprehended bias against the father himself. It was further submitted that the primary judge’s comments, directed as they were to the father’s legal representatives, were separate from the facts and merits of the case.
As we have said, the hearing extended over three days. Evidence was given on the second of those three days. The conduct complained of here is not, as is perhaps more usually encountered, one of excessive intervention by a primary judge into the questioning of a witness. Here, the complaint refers to the primary judge’s treatment of the father’s legal representatives. Indeed, no complaint is made about his Honour’s conduct during the taking of evidence from the witnesses.

The right to a fair trial

We start with Jones v National Coal Board [1957] 2 QB 55 at 67, where it was said:
There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.
(see also Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).
In Galea v Galea (1990) 19 NSWLR 263 (“Galea”), Kirby A-CJ with whom Meagher JA agreed said at 281:
1.The test to be applied is whether the excessive judicial questioning or perjorative [sic] comments have created a real danger that the trial was unfair. If so, the judgment must be set aside.
…
3.Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”…
4.The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions…
(Citations omitted)
This was a hearing of property settlement and child-related proceedings. In respect of the latter there is a statutory mandate that the primary judge actively direct, control and manage them (s 69ZM(4) of the Family Law Act 1975 (Cth) (“the Act”)) and with as little formality and legal technicality and form as possible (s 69ZM(7) and s 97(3) of the Act). This active control, however, cannot be so intrusive that it jeopardises a fair trial. Whilst there is a wide latitude in how a primary judge conducts a case, particularly in child-related proceedings, there is no warrant to descend to what has been described as “palm tree justice” (R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 257).
In Royal Guardian MortgageManagement Pty Ltd v Nguyen (2016) 332 ALR 128 (“Royal Guardian”), a case in which the challenge to the decision rested in the primary judge’s interventions in the trial process, Basten JA said:
[16]… there are important institutional characteristics at stake, as helpfully identified by Lord Brown in Michel v R. In such a case, as Lord Brown explained by reference to the position of the appellant:
“He is denied too the basic right underlying the adversarial system of trial, whether by jury or Jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. ... The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.
(Footnotes omitted)
Basten JA continued:
[18]These statements are not merely aspirational; they describe the judicial function. Nor is the problem necessarily analysed as one involving an appearance of pre-judgment. The idea that the judge must maintain the appearance of impartiality, by maintaining an appropriate degree of detachment, are essential aspects of his or her function as the officer presiding in the court…
In R v T, WA (2014) 118 SASR 382, Kourakis CJ said:
40.… If an intervention gives an apprehension of bias it will also, of necessity, show that the capacity to objectively and dispassionately evaluate the evidence has been compromised. However, there will be some, probably fewer, interventions which, even though they do not suggest prejudgment, show that the judicial officer has lost the advantage of judicial detachment which he or she would otherwise have enjoyed as a judge adhering to the common law adversarial method of trial.
In Ellis v The Queen [2015] NSWCCA 262, the Court of Criminal Appeal said:
65.Although a number of these decisions seem to be based on the proposition that the conduct of the judge founded a reasonable apprehension of bias, that is not necessarily the case. A miscarriage of justice will occur in circumstances where the conduct of the judge prevents a party from properly presenting his or her case…
It is against this legal background that we turn to consider the nature, quality and extent of the primary judge’s interventions. The Summary of Argument filed by the father on 27 March 2020 raised not only what the primary judge said but also his Honour’s tone of voice. In order to have a complete understanding of the appeal, the audio recording of the trial was obtained and with the consent of counsel, we have listened to the transcript and noted his Honour’s tone of voice while addressing comments to the father’s lawyers.
For the reasons that follow, we are of the view that the nature, intensity, frequency and content of the primary judge’s interventions and remarks to the lawyers for the father gave rise to an apprehension of bias and had the effect of denying him a fair trial.

The nature of the primary judge’s interventions

Some procedural context is helpful to assist in understanding the gravamen of the father’s complaints.
The trial commenced with the primary judge enquiring whether the matter was ready to proceed. Counsel for the mother informed his Honour that there were no preliminary matters, although almost immediately afterwards told the primary judge that there was an outstanding issue, namely an objection on behalf of the father to inspection by the mother’s lawyers of documents produced by his employer under subpoena.
His Honour referred his earlier question about whether the matter was ready to start to Queen’s Counsel for the father and he said that he had been waiting for “his turn” to speak. It is fair to say that from this point the orderly conduct of the proceedings degenerated and the complained of behaviour by the primary judge commenced. We will return to his Honour’s comments and conduct shortly but we note that the first day of the hearing concluded with his Honour complaining that Queen’s Counsel had wasted the day. A perusal of the transcript for this day reveals that at almost no time did Queen’s Counsel for the father speak more than about three sentences before being interrupted by the primary judge. It does not appear to us that Queen’s Counsel was responsible for any significant waste of time.
On the second day of the hearing, the witnesses gave evidence and, as we have said, no complaint is made about his Honour’s conduct during the evidence taking process. The Court adjourned, the evidence having concluded and his Honour having made directions for the filing of written submissions.
Early on the second day, the primary judge had required the father’s lawyers to file a written application dealing with some procedural matters; the withdrawal of admissions made pursuant to a Notice to Admit Facts and for leave for a witness to give evidence by telephone.
The directed written application was filed but his Honour regarded it as unsatisfactory and he stood the matter over until the third day for him to receive applications which met his requirements, and for him to receive other documents requested by him: a summary of issues in dispute, a document which set out orders which could be made by consent and a document which contained a history of care of the child.
The proceedings on the third day did not get off to a smooth start. There was much about the presentation and appearance of the father’s Queen’s Counsel with which his Honour took issue. After an adjournment, Queen’s Counsel announced that his instructions had been withdrawn and he sought leave to withdraw. Leave was granted. The father’s instructing solicitor took over. The primary judge’s treatment of and conduct towards the father’s solicitor was such that it could bear no description other than taking inappropriate advantage of the undoubted power imbalance that exists between the judge and the lawyer and, indeed, counsel for the mother conceded during oral argument on the appeal that it amounted to bullying by the judge.
We propose to identify the primary judge’s behaviour in categories and given the sustained nature of the primary judge’s conduct, provide one or perhaps two examples to illustrate our findings. However, that we have included only some of his Honour’s comments should not be taken as indicating that those not included were any less worthy of denunciation.

Impugning the honesty of the father’s Queen’s Counsel

In the course of discussion about the objection to the inspection of documents produced under subpoena, the primary judge asked Queen’s Counsel for the father when the subpoenaed documents “became available”.[1] Queen’s Counsel said the documents were “lodged on 14 May”[2] with the registry. This mistake was corrected by counsel for the mother who said that in fact, the subpoenas were issued on 14 May 2020.
[1] Transcript 12 June 2019, p.14 line 46.
[2] Transcript 12 June 2019, p.13 line 16.
This mistake was characterised by the primary judge as an untruth.
His Honour said:[3]
You said to me 14 May was when the material was lodged, that is, it was available for inspection. That turns out to be untrue. That’s why I’m going to require evidentiary reference during the course of this trial. That’s one of the reasons. Keep going, please, accurately making your application.
(Emphasis added)
[3] Transcript 12 June 2019, p.14 lines 23–26.
The accusation that Queen’s Counsel for the father had told the court an untruth was the subject of a number of jibes addressed to him during the hearing. When dealing with the father’s application to withdraw an admission made consequent on being served with a Notice to Admit Facts, the primary judge asked where he could find the particular document and then said:[4]
… That’s why I’m asking you, because earlier today, the very first fact that was specified turned out to be either incorrect or untrue, depending on what position you want to take on. So that’s why I’ve challenged you on this topic. On that date in May, whatever it is, what is it that you’re saying?
(Emphasis added)
[4] Transcript 12 June 2019, p.43 lines 14–18.
Eventually the application to withdraw the admission was not pressed which prompted the primary judge to castigate Queen’s Counsel for the father for wasting time. Queen’s Counsel contended that he alone was not responsible for all the delays but admitted some were at his hands. The primary judge and Queen’s Counsel then had the following exchange:[5]
HIS HONOUR: What were they?
[QUEEN’S COUNSEL FOR THE FATHER]: I can’t remember what they are at the moment.
HIS HONOUR: Well, you’re making the submission.
[QUEEN’S COUNSEL FOR THE FATHER]: The main - - -
HIS HONOUR: You’re not just making it up. There must be a basis to it, I would have thought - - -
[QUEEN’S COUNSEL FOR THE FATHER]: I said there might - - -
HIS HONOUR: - - - like the submission that was made first thing this morning that turned out to be either incorrect or untruthful – I’m not sure which – which then required me to say I’m going to require you to give me an evidentiary basis for everything – single assertion that you rely upon. By the way, where’s that homework that I asked to be done?
(Emphasis added)
[5] Transcript 12 June 2019, p.58 lines 27–44.
A short time later while directing Queen’s Counsel how the examination of the witnesses was to be conducted his Honour said:[6]
HIS HONOUR: I expect evidentiary references on everything, Mr Page. The reason I say that is because of what happened earlier this morning. So make sure that you’re in a position to do that…
(Emphasis added)
[6] Transcript 12 June 2019, p.60 lines 28–30.
As we have said, the second day passed in a relatively ordinary way. At the commencement of the third day, counsel for the mother told the primary judge that the father was not present in court. In explanation for the father’s absence, Queen’s Counsel told his Honour that there were arrangements as between the parties that the father would spend time with the child that day but he had taken the opportunity, apparently, to start spending time with her on the evening before.
There appeared to be a minor dispute as to the time at which the child would be collected because counsel for the mother observed that the arrangement was that the father would collect the child at 3.00 pm on that day. To that, his Honour said:[7]
HIS HONOUR: Tremendous. So, when we check the accuracy of information that’s provided, yet again it falls short. Go ahead. There’s a real problem in terms of information being provided as to its accuracy and/or truthfulness.
[QUEEN’S COUNSEL FOR THE FATHER]: I haven’t at all given any untrue statement to the court…
HIS HONOUR: Listen to what I said, Mr Page. Don’t verbal me…
(Emphasis added)
[7] Transcript 14 June 2019, p.3 lines 14–20.

Queen’s Counsel then attempted to address his Honour on the father’s absence and told the primary judge that contrary to what counsel for the mother asserted, arrangements had been made that he see the child from 7.00 pm on the evening before. The primary judge was plainly anxious to know exactly where the father and the child were at that particular time. The following exchange occurred:[8]
[8] Transcript 14 June 2019, p.4 line 45 to p.5 line 15.
HIS HONOUR: Tell me where [the father] is right now.
[QUEEN’S COUNSEL FOR THE FATHER]: He’s on the Gold Coast with his - - -
HIS HONOUR: Doing what?
[QUEEN’S COUNSEL FOR THE FATHER]: With his daughter.
HIS HONOUR: I’m going to stand the matter down shortly.
[QUEEN’S COUNSEL FOR THE FATHER]: Your Honour, before we left court yesterday, we - - -
HIS HONOUR: Where is he right now and what is he doing?
[QUEEN’S COUNSEL FOR THE FATHER]: He is - - -
HIS HONOUR: Please take a note of this, exact, verbatim, please. Slowly, Mr Page, so that this can be taken down verbatim. I’m not taking it down. My associate will do that and hand that to me.
(Emphasis added)
The primary judge’s concern to know exactly where the father and the child were at any particular time remained unresolved and after Queen’s Counsel withdrew from the proceedings and Mr Dwyer, the father’s solicitor took over, his Honour said:[9]
HIS HONOUR: Where’s [the father]?
[SOLICITOR FOR THE FATHER]: Your Honour, it was my understanding - - -
HIS HONOUR: Where is he? It’s a simple question.
[SOLICITOR FOR THE FATHER]: Well, I understand he’s on the Gold Coast spending time with his child.
HIS HONOUR: We’ve ascertained that that is either an untruth or incorrect.
[SOLICITOR FOR THE FATHER]: No, it’s not. He’s picking up his child - - -
HIS HONOUR: Sit down.
(Emphasis added)
[9] Transcript 14 June 2019, p.41 lines 3–16.
It is important to note here that there was no apparent issue between the parties as to where the father and the child were, and certainly it was not suggested by counsel for the mother that the assertion that the father and the child were at the Gold Coast was either “an untruth or incorrect”. Nor do we see what possible relevance the father’s exact location had to the issues remaining to be determined by the primary judge in the matter.
The aspersions cast by the primary judge on the honesty of the father’s Queens Counsel were without justification and should not have been made.

Impugning the professionalism of the father’s Queen’s Counsel

His Honour’s criticism of Queen’s Counsel’s professionalism covered not only the preparation and presentation of the matter, but also Queen’s Counsel’s conduct in court, dress and demeanour.
As we have said, at the outset of the trial the primary judge was told that there were outstanding issues to be determined before the start of the evidence and while speaking to counsel for the mother, his Honour reminded counsel that he had asked whether the matter was ready. His Honour told Queen’s Counsel that he had in fact also been speaking to him when he asked counsel for the mother whether the matter was ready. Not unreasonably, some might think, Queen’s Counsel believed that his Honour was addressing counsel for the mother and thus he was waiting his turn to speak.
The primary judge said:[10]
HIS HONOUR: It was to the court at large, Mr Page. You’re a member of the court, aren’t you?
[QUEEN’S COUNSEL FOR THE FATHER]: I’m in court, and I heard what you said. And there is something else, and - - -
HIS HONOUR: And that’s why I asked twice - - -
[QUEEN’S COUNSEL FOR THE FATHER]: And I - - -
HIS HONOUR: - - - "Is there something else?" And I’m sure that it was loud enough even that person in the cheap seats in the gallery, Mr Page, would have heard it, but, anyway, we will go through this charade…
(Emphasis added)
[10] Transcript 12 June 2019, p.5 lines 28–40.
Having criticised Queen’s Counsel for not speaking, a short time later, when being taken to a particular page in the father’s Case Outline, the primary judge said:[11]
HIS HONOUR: Would you pay me the courtesy of seeing whether or not I’m ready. I have been now for about 20 seconds. You asked me to turn to it. I’ve immediately – wait.
[QUEEN’S COUNSEL FOR THE FATHER]: Yes…
HIS HONOUR: The record will indicate that you’re leaning forward about to speak while I am talking. All right. You asked me to refer to a document. I did. I opened it. Again, I am speaking. I opened it and waited. There must be something that you want to say to me about that document.
[11] Transcript 12 June 2019, p.6 lines 22–31.
His Honour took issue with the way in which Queen’s Counsel framed the applications that he made during the hearing. At a point on the first day of the hearing, Queen’s Counsel requested that the father be given leave to inspect the produced documents before general inspection was given. His Honour said:[12]
[HIS HONOUR]: … [P]lease flesh out the application. We call it laying the groundwork in the trade.
[QUEEN’S COUNSEL FOR THE FATHER]: That [the father], the object of that - - -
HIS HONOUR: I’m sorry. I thought I just asked you to do something.
[QUEEN’S COUNSEL FOR THE FATHER]: I was just doing – I was doing it.
HIS HONOUR: No, you weren’t. So far, we’ve had to correct the date – not the date but what happened on 14 May. What’s the next piece of groundwork that you would tell me about relevant to this application?
[QUEEN’S COUNSEL FOR THE FATHER]: That there was an objection lodged by my - - -
HIS HONOUR: No, wouldn’t it be when the material became available for inspection?
[12] Transcript 12 June 2019, p.14 lines 31–47.
The primary judge then said he would stand the matter down until Queen’s Counsel was “properly prepared” and said “[l]et me know when that might be”.[13] The matter resumed a few minutes later and his Honour commenced: “[k]eep assisting me, Mr Page”.[14] We observe that his Honour’s comment “keep assisting me” was said in a sarcastic tone and similarly repeated on a number of occasions throughout the trial.
[13] Transcript 12 June 2019, p.15 lines 7–8.
[14] Transcript 12 June 2019, p.15 line 17.
Queen’s Counsel again attempted to make the application but no sooner had he started speaking than he was interrupted by the primary judge who wanted first to be told the date on which the Notice of Objection to the inspection of the subpoenaed documents was served:[15]
[15] Transcript 12 June 2019, p.15 lines 35–46.
HIS HONOUR: So available for inspection from 6 June. Yes.
[QUEEN’S COUNSEL FOR THE FATHER]: And on 7 June, my client filed an objection to the inspection of those documents. In that notice, he said,
I give notice that I object to the - - -
HIS HONOUR: Take it, as I’ve said earlier, that I can read English. Thank you.
[QUEEN’S COUNSEL FOR THE FATHER]: Well, I’m just identifying where it is. It’s - - -
HIS HONOUR: Mr Page, like I said earlier, take it that I can read English.
(Emphasis in original)
Queen’s Counsel then turned to address a subpoena issued on the father’s behalf and, the subpoena having been identified, the primary judge said:[16]
HIS HONOUR: Please continue with your very helpful submissions. We’ve managed to waste five minutes identifying that it’s the very matter that we dealt with before lunch. Acknowledge that that has occurred, Mr Page.
[QUEEN’S COUNSEL FOR THE FATHER]: It hasn’t occurred. The fact is that - - -
HIS HONOUR: Oh, dear.
[QUEEN’S COUNSEL FOR THE FATHER]: - - - [The mother’s fiancé’s] solicitor was – was intending to inspect… the material in that subpoena to determine whether there would be a notice of objection provided. There has no notice of objection been provided [sic]. There is no reason, therefore - - -
HIS HONOUR: The point that I’m making, Mr Page, that you seem to either not gather or not want to gather – I’m not sure which it is – but that that is the very subpoena that we identified before lunch, so therefore it should have been a very simple matter to refer to it, rather than the Punch and Judy Show that we’ve been going through in relation to which subpoena it is. It’s really like a really bad Monty Python skit.
(Emphasis added)
[16] Transcript 12 June 2019, p.25 lines 16–34.
On the second day of the hearing, before the commencement of the evidence, his Honour directed the father’s Queen’s Counsel’s attention to the father’s affidavit filed on 27 March 2019 and asked “are there any irregularities in that document?”.[17] Queen’s Counsel asked his Honour whether that question was directed to him and his Honour said:[18]
[17] Transcript 13 June 2019, p.2 lines 41–42.
[18] Transcript 13 June 2019, p.3 line 1 to p.4 line 4.
HIS HONOUR: You’re on your feet. Please don’t be rude. It would be obvious that that’s the case. I was speaking to you, Mr Page. Do not be obtuse or rude. Try and improve from yesterday. Your performance was disgraceful. Answer my question.
[QUEEN’S COUNSEL FOR THE FATHER]: Could you repeat the question, please?
HIS HONOUR: Pay attention to me.
[QUEEN’S COUNSEL FOR THE FATHER]: Yes.
HIS HONOUR: Please do that. Respond.
[QUEEN’S COUNSEL FOR THE FATHER]: Could I – would you be good enough - - -
HIS HONOUR: Respond, Mr Page. I asked you to pay attention to me. Please respond.
[QUEEN’S COUNSEL FOR THE FATHER]: I can’t answer the question because I’m not - - -
HIS HONOUR: No. No. I asked you to pay attention to me.
[QUEEN’S COUNSEL FOR THE FATHER]: I will, your Honour. Yes.
HIS HONOUR: Thank you. That only took three times today. Is there anything irregular about your client’s affidavit filed on 27 March 2019? That’s the third time I’ve asked that question.
[QUEEN’S COUNSEL FOR THE FATHER]: No. Not that we know of, your Honour.
HIS HONOUR: Nothing that you’ve noticed when you’ve been preparing the matter?
[QUEEN’S COUNSEL FOR THE FATHER]: No.
HIS HONOUR: Have a look at it. I notice, for the record, that counsel is looking at some document to try and turn up the document, it seems.
[QUEEN’S COUNSEL FOR THE FATHER]: I have the document in front of me.
HIS HONOUR: It only took about 10 seconds. Is there anything irregular about that document that you would have noticed in your thorough preparation of the matter – both you and your solicitor – in your very thorough preparation?
[QUEEN’S COUNSEL FOR THE FATHER]: I have noticed no irregularity.
HIS HONOUR: Have a look at the entire document.
[QUEEN’S COUNSEL FOR THE FATHER]: Yes. I’m looking at the entire document.
HIS HONOUR: Which document are you looking at? Just so that we can… be sure that you’re actually looking at the one that I’ve referred to you.
(Emphasis added)
After further questioning in the same vein, it appears that Queen’s Counsel was not looking at the same document as his Honour. His Honour said:[19]
[QUEEN’S COUNSEL FOR THE FATHER]: The affidavit of [the father] filed on 29 March two thousand - - -
HIS HONOUR: I said the 27^th.
[QUEEN’S COUNSEL FOR THE FATHER]: I - - -
HIS HONOUR: The record will indicate that I said that. Attend to me, Mr Page. Acknowledge that you will do that.
[QUEEN’S COUNSEL FOR THE FATHER]: I will, your Honour. 27^th of - - -
HIS HONOUR: Because you’ve just made a mess of that request that I asked of you. This is pathetic.
(Emphasis added)
[19] Transcript 13 June 2019, p.4 lines 6–18.
Over a further two pages of the transcript, his Honour questioned Queen’s Counsel about his and his solicitor’s “very thorough and complete preparation”[20] of the matter and yet, despite that preparation, Queen’s Counsel had not noticed any “irregularity”[21] in the identified affidavit. Eventually his Honour revealed that pages 25 and 26 of the father’s affidavit were upside down in the document. This issue, the inclusion of a couple of upside down pages, was pursued by his Honour with the solicitor for the father when he took over the conduct of the proceedings following Queen’s Counsel’s withdrawal. We will set out his Honour’s questioning of the father’s solicitor on this matter later in these reasons.
[20] Transcript 13 June 2019, p.5 lines 15–16.
[21] Transcript 13 June 2019, p.3 line 45.
Before the matter concluded for the second day, Queen’s Counsel indicated that in compliance with his Honour’s direction, a written application for leave to withdraw an admission and for leave for evidence to be given by telephone had been filed and supported by an affidavit. Queen’s Counsel handed copies of the application and affidavit to his Honour who said:[22]
HIS HONOUR: I’m going to give them back to you, but I just want to have a look at it. I think you might know why I might want to. That’s garbage. Have you seen this, Mr Baston?
[COUNSEL FOR THE MOTHER]: I haven’t.
HIS HONOUR: Hand this to Mr Baston. That is absolute garbage.
(Emphasis added)
[22] Transcript 13 June 2019, p.123 lines 4–10.
His Honour, in relation to that part of the affidavit dealing with the withdrawal of admissions said: “what drivel!”.[23]
[23] Transcript 13 June 2019, p.124 line 34.
Seizing the opportunity, counsel for the mother sought an order that the father pay the mother’s costs of the application to withdraw the admission and the primary judge ordered there be written submissions on the question of costs of the withdrawn application. His Honour continued:[24]
[24] Transcript 13 June 2019, p.125 lines 7–35.
HIS HONOUR: Now, I expect fulsome [sic] submissions, including authorities and copies of whatever authorities that you rely on. This document can be returned from whence it has come. There should have been two applications; it’s what I directed this morning. It’s a further example of what I was talking about when we opened play this morning, Mr Page; you remember that?
[QUEEN’S COUNSEL FOR THE FATHER]: I will never forget that.
HIS HONOUR: I beg your pardon?
[QUEEN’S COUNSEL FOR THE FATHER]: I will not forget it, your Honour.
HIS HONOUR: What was it?
[QUEEN’S COUNSEL FOR THE FATHER]: I can’t recall at the moment - - -
HIS HONOUR: What was it? You’ve said that you will not forget it?
[QUEEN’S COUNSEL FOR THE FATHER]: You said that I was “a disgrace” - - -
HIS HONOUR: Wasn’t that.
[QUEEN’S COUNSEL FOR THE FATHER]: - - - and I will never forget that.
HIS HONOUR: Yes, right. Good. Now, address what it is that I’m talking to you about, rather than having your own shot. I notice that you stand a little bit upright as if jolted. We were just talking about the fact that I had asked for two applications, and I said that was a further example of what I had spoken about first thing this morning.
When Queen’s Counsel pointed out to his Honour that the two applications were contained in the one document his Honour said:[25]
HIS HONOUR: Oh, dear. It’s almost… just a waste of time, really. I had hoped that it might be… instructive and of assistance, but seemingly it can’t be. Probably a fortiori with respect to my comments this morning. When do I expect the submissions in relation to the costs application[?]
[25] Transcript 13 June 2019, p.126 lines 1–4.
His Honour then moved on to ask Queen’s Counsel about the other documents he had directed to be prepared but which had not been given to him and said:[26]
HIS HONOUR: I want an answer.
[QUEEN’S COUNSEL FOR THE FATHER]: I will take responsibility. I’ve just listened to the solicitors talking about – they did it themselves – I saw them working on it. But they just simply didn’t - - -
HIS HONOUR: I’m sorry; I don’t care what they’ve been doing. I want an answer why I haven’t had it in the timeframe that I required it.
[QUEEN’S COUNSEL FOR THE FATHER]: Because they didn’t have time to complete it.
HIS HONOUR: Oh, God.
[QUEEN’S COUNSEL FOR THE FATHER]: That’s what was told to me.
HIS HONOUR: Pathetic. Let’s go through what it is that’s outstanding. I don’t want to have to do the job. So I wait to be addressed. Get on, please.
(Emphasis added)
[26] Transcript 13 June 2019, p.126 line 35 to p.127 line 4.
On several occasions during the hearing the primary judge directed the father’s Queen’s Counsel as to how an application should be presented.
His Honour instructed Queen’s Counsel as to how and in what order the application to withdraw the admission should be prepared and said:[27]
HIS HONOUR: Well, let’s flesh it out, shall we? You flesh it out. It’s your application. Let’s really get down to brass tacks here. Let’s hear your complete application, from go to whoa, shall we, in its entirety, in globo?
[QUEEN’S COUNSEL FOR THE FATHER]: The application that I am making - - -
HIS HONOUR: Do I see this anywhere in writing?
[QUEEN’S COUNSEL FOR THE FATHER]: No.
HIS HONOUR: I require it.
[QUEEN’S COUNSEL FOR THE FATHER]: I will provide it in writing overnight.
HIS HONOUR: Why wasn’t this done? One would expect, in preparation for a trial, you would be aware, would you not, of notices to admit facts? Correct? And responses to that? Correct? I’m waiting for an oral response.
[27] Transcript 12 June 2019, p.39 lines 11–27.
Not having had the opportunity then to present the application whether “in globo” or at all, his Honour asked Queen’s Counsel when he became aware that he would be making the application and said:[28]
HIS HONOUR: When – when – when – for instance, when we go through it – let’s go back through what it is you might have so far laid what might be described as the foundation. All right. So the notice to admit facts was filed on 23 April 2019. Correct?
[QUEEN’S COUNSEL FOR THE FATHER]: Yes.
HIS HONOUR: You lay it out, Mr Page, rather than me doing it for you. I don’t need to do all of the work here. I will just judge and make the decisions.
[QUEEN’S COUNSEL FOR THE FATHER]: Yes. I’m not sure what you want - - -
His Honour: You’re running very close. Keep going, though.
(Emphasis added)
[28] Transcript 12 June 2019, p.39 line 43 to p.40 line 8.
Queen’s Counsel indicated some confusion as to what he had done wrong to which his Honour said:[29]
HIS HONOUR: You know exactly what you just did then, Mr Page.
[QUEEN’S COUNSEL FOR THE FATHER]: No, your Honour. I’m - - -
HIS HONOUR: Well, if you don’t have that insight, I don’t think that I can assist you. Go on, Mr Page.
(Emphasis added)
[29] Transcript 12 June 2019, p.40 lines 12–17.
As well as deploring the standard of preparation and presentation of the father’s case by his Queen’s Counsel and impugning his professionalism, the primary judge also considered his demeanour and dress was wanting.
At a point during the trial, his Honour broke off from discussing the father’s Queen’s Counsel’s general untruthfulness to point out some defect in Queen’s Counsel’s attire. His Honour said:[30]
HIS HONOUR: … Adjust yourself. Have a look. Your solicitor might be able to assist. Have a look at him.
[QUEEN’S COUNSEL FOR THE FATHER]: Yes.
HIS HONOUR: Attend to what I have just asked, Mr Dwyer. Have a look at your counsel. I’ve asked him to adjust. What would that be in relation to? I will ask you, Mr Page, look at Mr Baston for one moment. What would he need to attend to, Mr Baston?
[30] Transcript 14 June 2019, p.3 lines 20–28.
After the mother’s counsel said that the father’s Queen’s Counsel jabot was untied, the father’s Queen’s Counsel said he was not aware of that to which his Honour said:[31]
HIS HONOUR: I didn’t say that you were. That’s why I asked you to adjust. That’s why I asked your solicitor to assist you. It’s unbelievable. A fortiori, with respect to your comment yesterday about what you remembered, I was actually asking you at that stage about this documentation, but because of your level of self-focus as opposed to what your focus should be, you answered accordingly, Mr Page. A fortiori…
(Emphasis added)
[31] Transcript 14 June 2019, p.3 lines 39–44.
His Honour also criticised Queen’s Counsel for apparently not bowing when his Honour entered the court room and standing at the same time as counsel for the mother was making a submission.
Perhaps one of the oddest exchanges between the primary judge and Queen’s Counsel occurred on the morning of the third day of the hearing when, as usual, counsel for the mother indicated his name and for whom he appeared and the father’s Queen’s Counsel said:[32]
[32] Transcript 14 June 2019, p.2 lines 18–37.
[QUEEN’S COUNSEL FOR THE FATHER]: … Page, your Honour. I appear for the - - -
HIS HONOUR: Sorry – you’re who?
[QUEEN’S COUNSEL FOR THE FATHER]: Page.
HIS HONOUR: Is there anything else that I need to know about you?
[QUEEN’S COUNSEL FOR THE FATHER]: No, I - - -
…
[QUEEN’S COUNSEL FOR THE FATHER]: I appear for the [father].
HIS HONOUR: No, no. Is there anything else I need to know about you?
[QUEEN’S COUNSEL FOR THE FATHER]: Queens Counsel.
HIS HONOUR: Thank you very much. I thought we got through that on the first day. That’s a further amplification of your behaviour. Just continues…
(Emphasis added)

Shortly afterwards a document was handed to his Honour which set out some agreed facts and his Honour observed: “I see we’re able to identify ourselves properly on the document”,[33] a comment which while not apparently directed at anyone seems to be a reference to Queen’s Counsel for the father.
[33] Transcript 14 June 2019, p.3 lines 1–2.
We note that this requirement that Queen’s Counsel identify himself by title was not insisted on the day before which commenced with counsel identifying themselves in a perfectly usual way.
On a number of occasions, the primary judge was apparently affronted by the behaviour of the father’s Queen’s Counsel, although it is difficult to understand quite what the problem was and it is quite apparent from Queens’ Counsel’s responses that he too was unsure what transgression he had committed. The criticisms were couched in oblique terms “that’s a further amplification of your behaviour”, “you’re running very close” and “you know exactly what you just did”. On several occasions the primary judge told Queen’s Counsel not to be “presumptive [sic]” or “obtuse”.
Neither is clarity gleaned from this exchange on the third day:[34]
[34] Transcript 14 June 2019, p.7 line 40 to p.8 line 22.
HIS HONOUR: It’s just a continuation of the observation that I made yesterday when I was actually asking you to recall something about a document, but you took that opportunity to have a crack at me, Mr Page. That’s what you did, which is actually a fortiori with respect to your entire behaviour in this trial and my description of it. It’s confirmatory proof.
[QUEEN’S COUNSEL FOR THE FATHER]: Your Honour, I’ve heard that. I take it to heart. Very much so.
HIS HONOUR: Don’t do that again, because what I did yesterday was I asked you whether you recalled, and that was obviously in relation to the homework that I had mentioned, and you took that as something that you were holding onto, Mr Page, in relation to your behaviour, performance and preparation.
[QUEEN’S COUNSEL FOR THE FATHER]: I apologise. Whatever impression you have of me - - -
HIS HONOUR: That’s not an apology. I won’t hear that. My impression is not in debate.
[QUEEN’S COUNSEL FOR THE FATHER]: Well, I don’t know how I can say it otherwise.
HIS HONOUR: That’s a matter for you, Mr Page.
[QUEEN’S COUNSEL FOR THE FATHER]: Yes, your Honour.
HIS HONOUR: Your behaviour and demeanour has been demonstrable as a tautology in this trial.
[QUEEN’S COUNSEL FOR THE FATHER]: I will take - - -
HIS HONOUR: And the description that I’ve given to it is apt.
(Emphasis added)
Although Queen’s Counsel attempted to continue to explain the father’s absence from court, the primary judge raised a question he had asked of the father’s Queen’s Counsel the day before and commented that he had not answered it. The discussion continued:[35]
[35] Transcript 14 June 2019, p.8 line 35 to p.9 line 21.
HIS HONOUR: Which you then answered to something else, Mr Page.
[QUEEN’S COUNSEL FOR THE FATHER]: Yes, there was, your Honour.
HIS HONOUR: Because that’s what you wanted to do, wasn’t it?
[QUEEN’S COUNSEL FOR THE FATHER]: No, it wasn’t.
HIS HONOUR: It’s exactly what you did.
[QUEEN’S COUNSEL FOR THE FATHER]: It was an error.
HIS HONOUR: What, did your emotion just simply take control of thought process, did it?
[QUEEN’S COUNSEL FOR THE FATHER]: I don’t know, your Honour, but - - -
HIS HONOUR: What’s the explanation for that behaviour yesterday, then, Mr Page?
[QUEEN’S COUNSEL FOR THE FATHER]: I was – I was unsure as to what documents had been - - -
HIS HONOUR: Rubbish.
[QUEEN’S COUNSEL FOR THE FATHER]: Well, then, thank you. That’s the explanation. Can I turn to the question of the other document - - -
HIS HONOUR: Don’t do that again.
[QUEEN’S COUNSEL FOR THE FATHER]: I won’t, your Honour.
HIS HONOUR: What you just did: don’t do it again. It is not good advocacy. Don’t do it again.
(Emphasis added)
The oblique way in which his Honour’s criticisms of Queen’s Counsel for the father were couched makes it very difficult to understand, as Queen’s Counsel clearly found, how his conduct was wanting. Equally so is his Honour’s use of the term “a fortiori”, however we see no point in attempting to delve further into that.
There was no basis for the primary judge to impugn the professionalism of the father’s Queens Counsel in the manner he did or at all.

Rudeness to the father’s Queen’s Counsel

As ought to be apparent from the comments instanced above, much of his Honour’s discourse with Queen’s Counsel was couched using rude and intemperate language.
On three occasions when attempting to make submissions, Queen’s Counsel took his Honour to a particular place in a document and read the commencing words aloud – and his Honour remarked “I can read English”.[36] On another occasion his Honour referred to a paragraph in an affidavit, and in response Queen’s Counsel attempted to read out part of the paragraph to the primary judge and his Honour interrupted to instruct Queen’s Counsel not to read the passage to him.
[36] Transcript 12 June 2019, p.8 line 18; Transcript 12 June 2019, p.15 lines 42 and 46.
On a number of occasions his Honour asked Queen’s Counsel to “[a]ttend”. The first time it occurred his Honour explained that he meant “pay attention”.[37] His Honour felt the need to refresh Queen’s Counsel’s memory as to what he required when discussing the inspection of subpoenaed documents. At this time, his Honour having enquired of the mother’s counsel whether he had anything more to say on that particular issue, turned to Queen’s Counsel and said:[38]
HIS HONOUR: I give – so you want it for [the father]? Attention. Remember when we had that conversation earlier?
[QUEEN’S COUNSEL FOR THE FATHER]: For him - - -
HIS HONOUR: Remember when I said attend to - - -
[QUEEN’S COUNSEL FOR THE FATHER]: For him - - -
HIS HONOUR: Hang on. I want you to acknowledge this now. Remember we had the conversation about attend? You said, “I don’t know what that means”, I said “pay attention”.
(Emphasis added)
[37] Transcript 12 June 2019, p.10 line 42 to p.11 line 3.
[38] Transcript 12 June 2019, p.16 lines 33–44.
Sometimes his Honour’s request for Queen’s Counsel to listen to him was couched as a request: “[w]ould you please attend… ?”.[39] Other times it was merely a barked command.
[39] Transcript 12 June 2019, p.19 line 24.
While making a submission as to whether a document was filed, Queen’s Counsel said he needed instructions from his client to which his Honour said: “I don’t care when what – or whatever you’re being instructed. I care about what your submissions are. Do not do that. It’s the height of rudeness”.[40]
[40] Transcript 12 June 2019, p.43 lines 43–44.
The primary judge told Queen’s Counsel that he had been responsible for wasting time. In his defence, Queen’s Counsel said that he did not have control of the running of a particular matter, appearing as he did for the father, to which his Honour said: “[w]ell, you seem to have done a damn good job so far taking up in excess of half a day for effectively nothing”.[41]
[41] Transcript 12 June 2019, p.57 lines 8–9.
Having listened to the audio version of the transcript, we are struck by the stark difference in the primary judge’s tone and terms of address between when his Honour addressed counsel for the mother and Queen’s Counsel for the father which is consistent with the nature of his Honour’s remarks to the father’s lawyers and aligns with the complaint made by the father in his Summary of Argument.

Hectoring, bullying, insulting and demeaning

As we have said, after approximately two hours or so of the third day of the hearing, Queen’s Counsel for the father sought his Honour’s leave to withdraw from the proceedings. In submissions on the appeal, counsel, who had also appeared before the primary judge, submitted that he considered that, given his Honour’s personal attacks on him, for him to withdraw would improve the atmosphere in the proceedings. It did not. If possible, his Honour’s conduct worsened, and rather than attempt to describe it, we propose to set out what he said.
After Queen’s Counsel withdrew, and there was a brief adjournment, the father’s solicitor announced his appearance and the following exchange occurred between the primary judge and the solicitor for the father:[42]
[42] Transcript 14 June 2019, p.15 line 37 to p.18 line 14.
HIS HONOUR: … Is there something that I need to attend to right now?
[SOLICITOR FOR THE FATHER]: Yes, there is, your Honour.
HIS HONOUR: What is that?
[SOLICITOR FOR THE FATHER]: Your Honour, I just wanted - - -
…
HIS HONOUR: Just – just wait. You “just” – what does that mean?
[SOLICITOR FOR THE FATHER]: Can I just finish what I’m saying?
HIS HONOUR: No, no. What does “just” mean?
[SOLICITOR FOR THE FATHER]: Can I just finish what I’m saying, your Honour?
HIS HONOUR: I said, “What does ‘just’ mean?”
[SOLICITOR FOR THE FATHER]: It was start of – there was something I wanted to actually say to you.
HIS HONOUR: I don’t understand what “I just” means.
[SOLICITOR FOR THE FATHER]: Your Honour, can I - - -
HIS HONOUR: No, no. Tell me what it means, Mr Dwyer.
[SOLICITOR FOR THE FATHER]: I don’t know what you’re saying to me, your Honour. I just want to - - -
HIS HONOUR: No, no. You uttered the words “I just” - - -
[SOLICITOR FOR THE FATHER]: I just wanted to - - -
HIS HONOUR: - - - and I then said, “What does ‘just’ mean?” What does it mean? It’s a simple question.
[SOLICITOR FOR THE FATHER]: It was - - -
HIS HONOUR: You uttered the word. You must know what it means.
[SOLICITOR FOR THE FATHER]: It was part of a phrase I was going to say – I just wanted to say.
HIS HONOUR: There’s no such thing as “I just”. You either do or you don’t, correct?
[SOLICITOR FOR THE FATHER]: That’s not what I meant to say.
HIS HONOUR: Correct? That’s what came out of your mouth.
[SOLICITOR FOR THE FATHER]: Your Honour, it’s taken out of - - -
HIS HONOUR: That’s why I asked. I need clarity. I need particularity.
[SOLICITOR FOR THE FATHER]: Yes.
HIS HONOUR: What does “‘just” mean?
[SOLICITOR FOR THE FATHER]: It was part of a phrase to - - -
HIS HONOUR: What does it mean?
[SOLICITOR FOR THE FATHER]: I know what it means.
HIS HONOUR: I beg your pardon?
[SOLICITOR FOR THE FATHER]: Just - - -
HIS HONOUR: What did you just say to me?
[SOLICITOR FOR THE FATHER]: I know what it means, your Honour.
HIS HONOUR: Well, tell me what it means.
[SOLICITOR FOR THE FATHER]: It means just.
HIS HONOUR: Don’t be impertinent, Mr Dwyer. I’ve asked you what does it mean.
[SOLICITOR FOR THE FATHER]: What does – what does “just” mean?
HIS HONOUR: Don’t ask me the question that I’ve asked you.
[SOLICITOR FOR THE FATHER]: Your Honour, I don’t - - -
HIS HONOUR: Please, don’t insult my intelligence, Mr Dwyer.
[SOLICITOR FOR THE FATHER]: I’m not insulting you. Your Honour, I just wanted - - -
HIS HONOUR: There we go again. What does it mean?
[SOLICITOR FOR THE FATHER]: Can I – your Honour - - -
HIS HONOUR: No, no. What does it mean?
[SOLICITOR FOR THE FATHER]: Your Honour, may I start again, please?
HIS HONOUR: No, no. It doesn’t mean anything to me. Don’t look askance, Mr Dwyer. On the record I will note your demeanour, looking away, looking down.
[SOLICITOR FOR THE FATHER]: It’s one of - - -
HIS HONOUR: Keep going, Mr Dwyer.
[SOLICITOR FOR THE FATHER]: May I start again, please, your Honour?
HIS HONOUR: Keep going, Mr Dwyer.
[SOLICITOR FOR THE FATHER]: Your Honour, I just wanted to raise the issue that the document you asked - - -
HIS HONOUR: What does “just” mean?
[SOLICITOR FOR THE FATHER]: Just there. Just – just – just made it. It’s an adjective. It’s to go… it’s meant to go with another word. “Just in time” or "Just made it”, for example. Your Honour, what I’m trying to ask or have understood, perhaps, that what you asked us to hand up this morning by way of agreed orders, that they are part of your final order, whatever that may be, because otherwise the first clause says that all orders are discharged. It was meant to be… as a final order.
(Emphasis added)
His Honour then received a document from the father’s solicitor and asked him “[w]hat was my direction in relation to this document?”.[43] There followed a degree of miscommunication and his Honour asked the father’s solicitor whether he was “attending”.[44] The father’s solicitor said he was but he did not understand the question. His Honour then said:[45]
[43] Transcript 14 June 2019, p.18 line 24.
[44] Transcript 14 June 2019, p.18 line 32.
[45] Transcript 14 June 2019, p.19 lines 5–25.
HIS HONOUR: I beg your pardon. When I’m speaking, don’t. Acknowledge.
[SOLICITOR FOR THE FATHER]: I acknowledge that, your Honour.
HIS HONOUR: Second time in the space of about four minutes. Control yourself, Mr Dwyer. This is absolutely ludicrous that I’m required to do this. This indicates to me the level of attention that has been paid to this matter. I said I want those matters – are you listening?
[SOLICITOR FOR THE FATHER]: Yes, your Honour.
HIS HONOUR: I’m noting your demeanour, Mr Dwyer.
[SOLICITOR FOR THE FATHER]: I’m listening, your Honour.
HIS HONOUR: I will put it on the record, shortly.
[SOLICITOR FOR THE FATHER]: I’ve got a hearing problem.
[HIS HONOUR]: I would have no idea what your problems might be. I am not familiar with you so I wouldn’t know…
(Emphasis added)
We note that the transcript of the proceedings does not indicate what the primary judge observed of the solicitor’s demeanour and indeed what his Honour observed of the solicitor’s demeanour may have had something to do with the solicitor’s hearing problem.
The primary judge told the father’s solicitor what he considered ought to have been in the document which apparently set out orders which could be made by consent, and then his Honour announced to the court in general that “[t]here’s a cognition issue somewhere here, and it’s not on this side of the bench” (Emphasis added).[46] His Honour then said to the father’s solicitor:[47]
[46] Transcript 14 June 2019, p.20 lines 3–4.
[47] Transcript 14 June 2019, p.20 line 8 to p.21 line 46.
HIS HONOUR: How is it that documents appear upside-down in an affidavit? That’s a question.
[SOLICITOR FOR THE FATHER]: I apologise to – I - - -
HIS HONOUR: How is it that that happens[?]
[SOLICITOR FOR THE FATHER]: Your Honour, I apologise to the - - -
HIS HONOUR: How is it that that happens?
[SOLICITOR FOR THE FATHER]: Your Honour, I can’t answer that, your Honour.
HIS HONOUR: Yes, you can.
[SOLICITOR FOR THE FATHER]: I wasn’t the person who - - -
HIS HONOUR: You’re responsible for them.
[SOLICITOR FOR THE FATHER]: Yes, I am, and I’ve apologised for that, your Honour.
HIS HONOUR: You’re responsible. I didn’t ask you to apologise. I said, “How is it that that happens?”
[SOLICITOR FOR THE FATHER]: I can’t – it’s obviously a mistake. That’s all.
HIS HONOUR: It’s a lack of attention, isn’t it?
[SOLICITOR FOR THE FATHER]: If that’s the - - -
HIS HONOUR: Isn’t it.
[SOLICITOR FOR THE FATHER]: Yes, quite possibly, your Honour.
HIS HONOUR: No, no. Isn’t it.
[SOLICITOR FOR THE FATHER]: Yes, your Honour.
HIS HONOUR: How is it that, in – how is it, in a case outline document where there’s only – looking away, for the record.
[SOLICITOR FOR THE FATHER]: I’m not looking away, your Honour.
HIS HONOUR: Yes, you were.
[SOLICITOR FOR THE FATHER]: I haven’t looked away.
HIS HONOUR: I factually saw you doing that. That’s why I put it on the record. How is it, in a document that might only run to, I don’t know, maybe 10 orders, that one can’t even refer to the correct number of the order before? What’s that – what’s the explanation for that?
[SOLICITOR FOR THE FATHER]: The explanation is that, when I spoke - - -
HIS HONOUR: What’s the explanation for that?
[SOLICITOR FOR THE FATHER]: The explanation is - - -
HIS HONOUR: What is the – I don’t need you to tell me the preamble. What’s the explanation for that?
[SOLICITOR FOR THE FATHER]: It’s that, when I spoke to my learned friend outside, there wasn’t agreement that that was – that the – that the agreement was - - -
HIS HONOUR: It’s your document.
[SOLICITOR FOR THE FATHER]: It’s our document, your Honour.
HIS HONOUR: It’s your document. What’s the explanation? Can’t be somebody else’s product. What’s the explanation, Mr Dwyer? You’re the solicitor on the record.
[SOLICITOR FOR THE FATHER]: Yes, we’re talking about the agreement, your Honour?
HIS HONOUR: There is a cognition problem here.
[SOLICITOR FOR THE FATHER]: Your Honour - - -
HIS HONOUR: Remember your case outline document, that document that you put a lot of work into? Remember that?
[SOLICITOR FOR THE FATHER]: Yes, your Honour.
HIS HONOUR: Explain it.
[SOLICITOR FOR THE FATHER]: I’m sorry, your Honour. I don’t understand what you’re talking about. You mean - - -
(Emphasis added)
Apparently there had been an internal error in the numbering in one paragraph to a reference to another paragraph in some draft orders. We observe that this is not an uncommon error that arises when drafts are constructed during negotiations between parties. Usually the error is obvious and is picked up or, if not and if important, in rare cases, may be corrected under the slip rule. The error should not have been the foundation for the kind of comments made by the primary judge.
His Honour then turned to counsel for the mother and said: “[y]ou clearly know what I’m talking about”[48] and said:[49]
HIS HONOUR: It’s not as if there’s some sort of gap in my thought process that wouldn’t be abundantly clear to anyone - - -
[COUNSEL FOR THE MOTHER]: No.
HIS HONOUR: - - - who has been here and attending to proceedings.
[COUNSEL FOR THE MOTHER]: It’s either 2(b) or l(b) was - - -
HIS HONOUR: Correct. Gee, that- it’s not me, Mr Dwyer. Clearly, it’s not me that has got the cognition problem.
(Emphasis added)
[48] Transcript 14 June 2019, p.22 line 21.
[49] Transcript 14 June 2019, p.22 lines 25–35.
The primary judge then turned his attention to a document which was said to reflect points of agreement between the parties to be made into orders by consent. After asking his associate to pass him the document, his Honour said:[50]
[50] Transcript 14 June 2019, p.27 line 36 to p.28 line 11.
HIS HONOUR: I will need to see the document. I’m sure that my clerk – my associate will know - - -
[SOLICITOR FOR THE FATHER]: It’s - - -
HIS HONOUR: - - - what it is.
[SOLICITOR FOR THE FATHER]: Can I assist, your Honour?
HIS HONOUR: He’s following, you see. He has been following play. Let’s test that, shall we, just how much he follows play. What document do you reckon he should have given to me, Mr Dwyer?
[SOLICITOR FOR THE FATHER]: The order of 13 December and the order of the 11 - - -
HIS HONOUR: Of what year?
[SOLICITOR FOR THE FATHER]: 2018, and the order - - -
HIS HONOUR: Halleluiah [sic].
[SOLICITOR FOR THE FATHER]: Yes.
HIS HONOUR: I wonder how he did that.
(Emphasis added)
The father’s solicitor attempted to make some remarks about the contents of the document and noted that he and counsel for the mother were not in agreement about some matters. The primary judge said to the solicitor that he should make an application. It is clear that the solicitor did not understand how the primary judge wanted him to proceed however his Honour said:[51]
[51] Transcript 14 June 2019, p.28 lines 28–45.
HIS HONOUR: Well, you had better make – you had better either conclude that or make an application.
[SOLICITOR FOR THE FATHER]: Your Honour, there is - - -
HIS HONOUR: Did you hear me?
[SOLICITOR FOR THE FATHER]: I hear that, your Honour, but there’s no - - -
HIS HONOUR: Did you hear me?
[SOLICITOR FOR THE FATHER]: I hear that.
HIS HONOUR: Comply.
[SOLICITOR FOR THE FATHER]: I heard, your Honour.
HIS HONOUR: Comply. It’s a direction. Understand what that is?
The solicitor did not apparently understand his Honour’s direction and his Honour said:[52]
[52] Transcript 14 June 2019, p.29 line 26 to p.31 line 44.
HIS HONOUR: Rack your mind and your conscience about that. All right. I will give you 30 seconds on the clock before I want you to speak. That will indicate to me that you’ve – what was that?
[SOLICITOR FOR THE FATHER]: A cough, your Honour.
HIS HONOUR: Course it was. That will give you the opportunity to think.
[SOLICITOR FOR THE FATHER]: I don’t - - -
HIS HONOUR: Yes. Another time will probably convince me.
[SOLICITOR FOR THE FATHER]: Your Honour, it’s agreed - - -
HIS HONOUR: I said I would give you 30 seconds before you speak…
[SOLICITOR FOR THE FATHER]: I don’t need 30 seconds, your Honour.
HIS HONOUR: Yes, you do.
[SOLICITOR FOR THE FATHER]: My - - -
HIS HONOUR: You’re being given 30 seconds.
[SOLICITOR FOR THE FATHER]: My answer is - - -
HIS HONOUR: Stop.
[SOLICITOR FOR THE FATHER]: Your Honour.
HIS HONOUR: That’s five seconds. Don’t be impertinent, Mr Dwyer. This is your moment to contemplate.
[SOLICITOR FOR THE FATHER]: Your Honour, I don’t need 30 seconds.
HIS HONOUR: Why have I made that direction?
[SOLICITOR FOR THE FATHER]: I understand that’s the formal way…
HIS HONOUR: Why have I made that direction, Mr Dwyer?
[SOLICITOR FOR THE FATHER]: Because that’s the formal way to do it.
HIS HONOUR: Why have I made that direction?
[SOLICITOR FOR THE FATHER]: Because that’s the formal way to do it.
HIS HONOUR: No. Why have I made that direction, Mr Dwyer?
[SOLICITOR FOR THE FATHER]: My only answer is that’s the formal way of doing it.
HIS HONOUR: No. You’ve been here for the last three days, haven’t you? Remember that misconceived application without any paper application? Do you remember that one?
[SOLICITOR FOR THE FATHER]: Yes, your Honour.
HIS HONOUR: What was the name of that application?
[SOLICITOR FOR THE FATHER]: In relation to the 15.31 rule - - -
HIS HONOUR: What was the name of that application?
[SOLICITOR FOR THE FATHER]: Your Honour, it’s an application in a case, but - - -
HIS HONOUR: What was the name of it?
[SOLICITOR FOR THE FATHER]: An application in a case.
HIS HONOUR: That’s ridiculous. What was it about, Mr Dwyer?
…
HIS HONOUR: Keep going. What was the actual application, Mr Dwyer?
[SOLICITOR FOR THE FATHER]: An application to – I would have to go and get my file, your Honour, but it was an - - -
HIS HONOUR: What was the application - - -
[SOLICITOR FOR THE FATHER]: It was an - - -
HIS HONOUR: - - - Mr Dwyer?
[SOLICITOR FOR THE FATHER]: - - - application to withdraw admissions because - - -
HIS HONOUR: There you go.
[SOLICITOR FOR THE FATHER]: - - - they were filed after 14 days.
(Emphasis added)

The father’s solicitor attempted to address the primary judge on orders for time between the father and the child. He said:[53]
[53] Transcript 14 June 2019, p.33 lines 11–40.
[SOLICITOR FOR THE FATHER]: - - - on 11 April, and all I’m seeking – that, by the time - - -
HIS HONOUR: “All” is one of those words like “just”. You either are or you’re not. It’s a qualification word. That’s what I was wanting to get from you in terms of your comprehension and understanding of the English language earlier when I was asking about “just”.
[SOLICITOR FOR THE FATHER]: Your Honour - - -
HIS HONOUR: That’s what “all” also means in that context… You’re either doing it or you’re not. You’re not “just” or “all’s I’m doing”, whatever that means in the colloquial – I’m not sure. That’s why I don’t know what that means. That’s why I ask.
[SOLICITOR FOR THE FATHER]: Your Honour, I was - - -
HIS HONOUR: What does the word “just” mean?
[SOLICITOR FOR THE FATHER]: It’s an adverb that goes with another word.
HIS HONOUR: We’re not going back to that, Mr Dwyer I’ve clearly demonstrated what it means in context. It was an “adjective” about 10 minutes ago. Now it’s an “adverb”. Keep going.
[SOLICITOR FOR THE FATHER]: Your Honour, I was just trying to save the client’s cost and more court proceedings to simply ask for [an] extension of the time.
HIS HONOUR: No, if you had been doing that or your counsel, learned counsel, of – as we’ve had to find out on two occasions now – Queen’s Counsel, that would have been done during the trial, would it not?
(Emphasis added)
Clearly, the solicitor was using the word “just” to mean “simply” and his Honour’s harrying of the solicitor on his use of the word was inappropriate.
After a brief adjournment at the primary judge’s instigation, upon resuming the primary judge immediately accused the solicitor of not bowing. His Honour continued:[54]
[54] Transcript 14 June 2019, p.34 lines 28–46.
HIS HONOUR: I note you don’t bow, Mr Dwyer.
[SOLICITOR FOR THE FATHER]: Sorry, your Honour.
HIS HONOUR: Is it a concept that’s novel?
[SOLICITOR FOR THE FATHER]: I didn’t – I didn’t think I didn’t, your Honour. Sorry.
HIS HONOUR: I beg your pardon?
[SOLICITOR FOR THE FATHER]: I apologise, your Honour.
HIS HONOUR: Why didn’t you?
[SOLICITOR FOR THE FATHER]: I thought I had, your Honour. I’m sorry.
HIS HONOUR: Is that an indication of cognition?
[SOLICITOR FOR THE FATHER]: No, your Honour.
(Emphasis added)
Not apparently satisfied with the solicitor’s apology, his Honour continued to demand why it was that the solicitor did not bow, although we note that the solicitor did not concede that he had not:[55]
[55] Transcript 14 June 2019, p.35 line 13 to p.36 line 28.
HIS HONOUR: You understand that it has nothing to do with me, Mr Dwyer, don’t you?
[SOLICITOR FOR THE FATHER]: Your Honour, I wasn’t being rude to your Honour.
HIS HONOUR: You understand it has nothing to do with me, Mr Dwyer, don’t you? Everyone else can sit. You understand it has nothing to do with me, Mr Dwyer, don’t you?
[SOLICITOR FOR THE FATHER]: Yes, your Honour.
HIS HONOUR: What am I talking about?
[SOLICITOR FOR THE FATHER]: Your Honour, I thought I had bowed.
HIS HONOUR: What am I talking about? You immediately said, “Sorry,” so you knew what you hadn’t done. What am I talking about? Please don’t try to divert my attention. I’m not a goldfish.
[SOLICITOR FOR THE FATHER]: Your Honour, I’m getting - - -
HIS HONOUR: What am I talking about?
[SOLICITOR FOR THE FATHER]: Your Honour, I’m getting lost with what you’re saying.
HIS HONOUR: What am I talking about?
[SOLICITOR FOR THE FATHER]: Your Honour, I’m getting lost with what you’re saying.
…
HIS HONOUR: Your outline.
[SOLICITOR FOR THE FATHER]: Your Honour, since - - -
HIS HONOUR: Hand it up.
[SOLICITOR FOR THE FATHER]: I don’t have an outline, your Honour, since - - -
HIS HONOUR: Hand it up.
[SOLICITOR FOR THE FATHER]: Your Honour, we’ve had negotiations - - -
HIS HONOUR: Hand your outline up, Mr Dwyer.
[SOLICITOR FOR THE FATHER]: Your Honour, I’ve had – I don’t have an outline.
HIS HONOUR: Stop talking. Hand your outline up.
[SOLICITOR FOR THE FATHER]: Your Honour, I don’t have an outline…
(Emphasis added)
Despite the solicitor’s attempts to tell the primary judge that he and the mother’s lawyers had had some negotiations, his Honour persisted:[56]
[56] Transcript 14 June 2019, p.36 line 30 to p.37 line 13.
HIS HONOUR: Tell me, then, if you’re – why – show me your efforts at your outline, Mr Dwyer.
[SOLICITOR FOR THE FATHER]: I don’t have an outline, your Honour. I said that.
HIS HONOUR: Show me – that’s not what I asked you.
[SOLICITOR FOR THE FATHER]: My efforts are - - -
HIS HONOUR: Wait. And listen. Show me your efforts at an outline, Mr Dwyer, your product.
[SOLICITOR FOR THE FATHER]: Your Honour - - -
HIS HONOUR: Show me.
[SOLICITOR FOR THE FATHER]: I haven’t drafted one.
HIS HONOUR: Wait. Show me.
[SOLICITOR FOR THE FATHER]: I haven’t drafted one.
HIS HONOUR: Have you put pen to paper on your outline, Mr Dwyer?
[SOLICITOR FOR THE FATHER]: I didn’t need to, your Honour.
HIS HONOUR: Have you put pen to paper?
[SOLICITOR FOR THE FATHER]: I didn’t need to, your Honour, because we have an agreement.
HIS HONOUR: Stop. Give me your oral submissions…
(Emphasis added)
Nor was the father’s solicitor spared his Honour’s rudeness.
At a point in the primary judge’s hounding of the solicitor to hand up a Case Outline, the solicitor, having already informed his Honour that he did not have one, told his Honour that he was having difficulty understanding what his Honour wanted of him:[57]
[SOLICITOR FOR THE FATHER]: Your Honour, I’m having trouble trying to take your instruction – to take your comments. But what I’m trying to say - - -
HIS HONOUR: Stop. I don’t need to hear your stream of consciousness.
(Emphasis added)
[57] Transcript 14 June 2019, p.37 lines 38–41.
During his attempts to respond to the primary judge’s questions, the solicitor said:[58]
[58] Transcript 14 June 2019, p.41 line 27 to p.42 line 22.
[SOLICITOR FOR THE FATHER]: It’s my understanding that the – it was my understanding in negotiations with my learned friend’s instructor - - -
HIS HONOUR: I don’t need to hear about “my - - -”
[SOLICITOR FOR THE FATHER]: - - - that the context on - - -
HIS HONOUR: Wait. I don’t need to hear all those qualifications like “just”, “all” or “my understanding”. Where’s your client?
[SOLICITOR FOR THE FATHER]: Well, he’s on the Gold Coast, your Honour.
HIS HONOUR: Doing what?
…
[SOLICITOR FOR THE FATHER]: Can I answer? It was my understanding that’s what - - -
HIS Honour: I don’t care about your understanding.
[SOLICITOR FOR THE FATHER]: Well, I need to say it that way, your Honour.
HIS HONOUR: No, you don’t. You don’t need to say it that way. You would have clear instructions: “My instructions are - - -”
[SOLICITOR FOR THE FATHER]: Well, my instructions were that - - -
HIS HONOUR: We’re going to make it past tense, what, so you can slide off that to something else, are we?
[SOLICITOR FOR THE FATHER]: I can only - - -
HIS HONOUR: Are we? Is that the reason why you say “were”, Mr Dwyer?
(Emphasis added)
After a brief adjournment called by his Honour in order, as his Honour said, to allow the father’s solicitor to think about what he was going to say, the solicitor attempted to continue:[59]
[SOLICITOR FOR THE FATHER]: Your Honour, my client is on the Gold - - -
HIS HONOUR: Your instructions are – that’s how it starts – “My instructions are” – and away you go.
[SOLICITOR FOR THE FATHER]: Your Honour, my instructions are that my client, understanding this was for housekeeping here today, went with the opportunity to spend time with his child…
[59] Transcript 14 June 2019, p.43 lines 16–23.
Unfortunately, the solicitor’s attempts to explain the circumstances of the father’s non-attendance were thwarted by his Honour’s constant interruptions. His Honour then said:[60]
[60] Transcript 14 June 2019, p.45 line 29 to p.46 line 46.
HIS HONOUR: So, in other words, [the father] has just been swanning around down the Gold Coast for the day.
[SOLICITOR FOR THE FATHER]: No, but.
HIS HONOUR: In other words, he has just been swanning around – my words – down the Gold Coast today.
[SOLICITOR FOR THE FATHER]: But.
HIS HONOUR: He has just been swanning – I will do it until I get a proper answer.
[SOLICITOR FOR THE FATHER]: I don’t know what he’s doing now, your Honour. But could I just say - - -
HIS HONOUR: Well, hang on. Didn’t I just adjourn for five minutes? What did you do during that time, Mr Dwyer?
…
HIS HONOUR: Did you call your client, Mr Dwyer?
[SOLICITOR FOR THE FATHER]: When I last spoke to him - - -
HIS HONOUR: No, no. Keep up with play. When am I talking about?
[SOLICITOR FOR THE FATHER]: I didn’t call him, your Honour.
HIS HONOUR: When am I talking about?
[SOLICITOR FOR THE FATHER]: Just then.
HIS HONOUR: Did you call your client?
[SOLICITOR FOR THE FATHER]: No, I didn’t, your Honour. I didn’t think I had to because I… know the answer.
HIS HONOUR: How old are you?
[SOLICITOR FOR THE FATHER]: I’m over 60, your Honour.
HIS HONOUR: Right. How long have you been in this game, Mr Dwyer?
[SOLICITOR FOR THE FATHER]: 25 years.
HIS HONOUR: Sit down. You’ve not been of any assistance to me at all. All you’ve done is waste the court’s time because of, effectively, your lack of preparation and your character. You need to do something about that, Mr Dwyer. Been keen to talk so far. For the record, Mr Dwyer is standing dumb.
[SOLICITOR FOR THE FATHER]: Do you wish me to sit down, your Honour? I don’t know what you want me to do.
HIS HONOUR: You’re not following any of this, are you, Mr Dwyer?
[SOLICITOR FOR THE FATHER]: Your Honour, what do you want me to say? I don’t know what your Honour would want me to say. I’ve done my best here today.
(Emphasis added)
At this point, as the primary judge observed, the solicitor was “left speechless” and left floundering to the point of admitting that he did not know what the primary judge wanted him to say. The primary judge’s conduct had resulted in the solicitor feeling unable to make any meaningful submission in the matter.
Without a response to the father’s solicitor, his Honour turned to counsel for the mother and said:[61]
HIS HONOUR: Please help me, because I’ve received no help at all. All I’ve received is frustration, a ridiculous application, a second application which would – I note for the record that Mr Dwyer is now clearing his throat again, and yet he hasn’t done that since the last time that I directed comments at him. Since the last time we had a misconceived application that wasted the best part of a day. But please assist me, Mr Baston.
(Emphasis added)
[61] Transcript 14 June 2019, p.47 lines 5–10.
While others may not have sought to further engage with the primary judge, there then followed this exchange between his Honour and the father’s solicitor:[62]
[62] Transcript 14 June 2019, p.52 line 38 to p.53 line 39.
HIS HONOUR: Thank you. Mr Dwyer?
[SOLICITOR FOR THE FATHER]: Your Honour, I have one other query.
HIS HONOUR: I don’t understand what a “query” is.
[SOLICITOR FOR THE FATHER]: Question.
HIS HONOUR: I’m not a – take it that I understand English to a very high standard.
[SOLICITOR FOR THE FATHER]: Your Honour - - -
HIS HONOUR: Take it that I - - -
[SOLICITOR FOR THE FATHER]: I take that.
HIS HONOUR: - - - understand English to a very high standard, Mr Dwyer.
[SOLICITOR FOR THE FATHER]: I take that, your Honour. I’ve seen that.
HIS HONOUR: All right. You might have seen that demonstrated.
…
HIS HONOUR: So, what I actually mean – I do it in shorthand to try and save time, but obviously that’s futile in these circumstances. I don’t understand, in context, a solicitor standing in front of me and saying, “I have a query.” I’m not an information booth.
[SOLICITOR FOR THE FATHER]: Your Honour, all I’m asking - - -
HIS HONOUR: So, you make applications or submissions - - -
[SOLICITOR FOR THE FATHER]: All I’m - - -
HIS HONOUR: - - - or you ask questions of witnesses. Those are the things you do. You do not inquire of me or any other judicial officer, do you[?]
[SOLICITOR FOR THE FATHER]: No, I don’t, your Honour, but - - -
HIS HONOUR: So, don’t.
[SOLICITOR FOR THE FATHER]: Your Honour, I just need clarification on your order.
HIS HONOUR: Make your application. Make your submission.
(Emphasis added)
In response, the father’s solicitor told the primary judge that he sought clarification of a direction made by his Honour for the preparation of a particular document. Regrettably, this further irritated the primary judge who said:[63]
[63] Transcript 14 June 2019, p.54 line 15 to p.55 line 15.
HIS HONOUR: So, if you had attended you would have already known the answer to that question and have been working on it. It was – when I’m talking, you’re not. It was homework that you were given. I apprehend that a lot of effort and preparation has gone into that on your part.
[SOLICITOR FOR THE FATHER]: … and I wasn’t sure, your Honour. That’s why I asked.
HIS HONOUR: Because it couldn’t have. There could have been none that has gone into that as a basis of that question, as a sheer matter of logic, Mr Dwyer. You have exposed yourself, yet again.
[SOLICITOR FOR THE FATHER]: I just wanted to - - -
HIS HONOUR: Do you understand what I mean by that? Do you understand what I mean by that?
[SOLICITOR FOR THE FATHER]: I just wanted to be sure, your Honour.
HIS HONOUR: Do you understand what I mean by that?
[SOLICITOR FOR THE FATHER]: To the extent that I wanted to be sure, yes, your Honour.
HIS HONOUR: Do you understand what I mean by what I just said, Mr Dwyer? Answer my question.
[SOLICITOR FOR THE FATHER]: Your Honour, I understand what you’ve said.
HIS HONOUR: Good. Go on.
[SOLICITOR FOR THE FATHER]: I just wanted to be sure. That’s all, your Honour, so I was - - -
HIS HONOUR: I don’t care what - - -
…
HIS HONOUR: - - - you want to be. One day you might, but it’s not a consideration of mine. Again, I don’t need your stream of consciousness. I never did that from the other side of the bar table. That was rude and presumptuous. A court does not need to know why you might be thinking something, Mr Dwyer. Do you know that? Do you know that?
[SOLICITOR FOR THE FATHER]: To the extent that I’ve - - -
HIS HONOUR: Do you know that?
[SOLICITOR FOR THE FATHER]: I don’t understand. All I know - - -
HIS HONOUR: Course you don’t.
(Emphasis added)

Apprehended bias and an unfair trial

The father contends that the primary judge’s interventions, their content and frequency gave rise to an apprehension of bias that no matter what the father’s case was, it would not be accepted and his Honour’s interventions were such that they prevented the father’s case from being presented and denied him a fair trial.
Whether conduct gives rise to an apprehension of bias is answered by considering whether a fair-minded and informed lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues in the case, such that he or she was not open to persuasion, rather than whether he or she did so (see Johnson v Johnson (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]–[8]).
It was argued for the mother that the primary judge’s comments did not raise an apprehension of bias because his Honour reserved his criticism for the father’s lawyers and directed it to preparation and presentation of the father’s case rather than it being directed to the father.
We do not agree. While the lion’s share of two of the three days of the hearing were taken up by his Honour’s criticisms of the father’s legal team, his Honour made several references to the father “swanning around” the Gold Coast in a most dismissive way. Although counsel for the mother sought to characterise that comment as being merely part of his Honour’s use of the vernacular in discourse with the father’s solicitor, a consideration of those comments in the context of his Honour’s comments during the trial lead us to no other conclusion than he was dismissing the explanation for the father’s non-attendance in court, reducing his account of spending time with the parties’ child to “swanning around the Gold Coast”. However, that is not to the point. His Honour’s interventions and comments about the father’s legal representatives are sufficient to satisfy the test. It would introduce unacceptable artificiality if there was an attempt to minimise the effect of these interventions and comments because the primary judge did not behave in the same way when the evidence was being given.
As we have said, the nature, content and number of his Honour’s interruptions, criticisms and ad hominem attacks on Queen’s Counsel for the father, of themselves, drive the conclusion that the fair-minded observer might apprehend that the primary judge might not bring an impartial mind to the determination of the issues as they impacted the father’s case. Indeed, such a fair-minded observer might well think that his Honour bore significant animus towards Queen’s Counsel. Equally the primary judge’s treatment of the father’s solicitor, when he took over the conduct of the hearing, was hectoring, insulting, belittling, sarcastic and rude and that conduct too would, in our opinion, lead the impartial observer to the relevant apprehension.
The father contends that the primary judge’s conduct and interventions prevented him from receiving a fair trial. Returning to the legal construct to which we earlier referred, in Royal Guardian Ward JA said:
[169]In this Court, the issue of judicial intervention was considered in Ellis v R [2015] NSWCCA 262 (Ellis). There, the Court (Bathurst CJ; R A Hulme and Garling JJ) noted the dangers resulting from excessive intrusion by a trial judge in adversarial proceedings as including the inability of a judge who has “descended into the arena” properly to assess the demeanour of a witness and the possibility of creating the impression of pre-judgment. The Court emphasised that the ultimate question is always whether the intervention was unjustifiable and resulted in a miscarriage of justice.
In Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530, an appeal concerning excessive judicial intervention, Greenwood and Rangiah JJ said:
26.… It is a part of the judicial function of deciding cases to question and challenge the submissions being made. After all, a judge must be able to understand the competing arguments and their consequences in order to decide which is the correct or preferable argument. The questioning and testing of submissions may legitimately be vigorous and robust. However, it must be balanced by the requirements of procedural fairness. Procedural fairness requires that each party be allowed a reasonable opportunity to present their case…
(Citations omitted)
In Galea at 281, Kirby AC-J referred to the principles relevant to excessive judicial intervention and said:
… The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside…
(Citations omitted)
As recently as this year, the Full Court in Finch & Finch (2020) FLC 93-949 had cause to revisit these principles and at [16] said, inter alia:
…
(c)The evaluation of whether interventions are excessive involves an assessment and balancing of the appropriate role and limits of judicial engagement and management, with the need for the appearance of detachment, and the provision of fairness…
…
(e) Nonetheless the judge must not assume the role of advocate, or be unduly intimidatory, interventionist or directionist, nor unduly press so-called “preliminary views”…
(Citations omitted)
The primary judge’s interventions could not be regarded as justified even if some delay or inconvenience was caused by reason of the raising of the interlocutory applications late in the piece. The tone, nature and ferocity of his Honour’s comments could never be seen as justified, and in our view resulted in the father not receiving a fair trial and raised the identified apprehended bias, that no matter what the father’s case was as presented, it would be rejected.

Waiver

Counsel for the mother argued that it had been incumbent on Queen’s Counsel for the father to raise the concerning conduct with the primary judge during the hearing and as he did not, he could not now raise it on appeal.
Recourse was had to the well-known authority of Vakauta v Kelly (1989) 167 CLR 568 (“Vakauta”) in which it was said at 572:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing…
In Royal Guardian, Basten JA in discussing waiver and what was said in Vakauta, said:
[26] There are, therefore, two significant features of Vakauta which need to be borne in mind in the application of the principle regarding waiver. First, there was a precise point in time at which the appellant could have identified an element of pre-judgment, when there was a reasonable opportunity to object. Secondly, the judgment itself may revive the earlier appearance of bias, in which case, there being no further opportunity to take objection, the ground is available on appeal.
[27]In other cases, of which the present is an example, no inference as to bias or indeed unfairness can be reached at a specific point in time. As Kirby and Crennan JJ noted in Concrete:
“Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case.”
(Footnotes omitted)
In Jorgensen v Fair Work Ombudsman (2019) 371 ALR 426 (“Jorgensen”), the Full Court of the Federal Court said, apropos waiver:
[96] … It is, however, questionable whether the failure to object in the particular circumstances of this case would have constituted a form of waiver… That is because the interventions occurred throughout the trial and it may in those circumstances have been difficult to identify a particular point in time when objection should have been taken…
(Citations omitted)
In this case, as in Jorgensen, the complained of conduct occurred throughout the trial rather than there being a point at which the time for raising it with the primary judge arose and, as in Jorgensen, must too be considered in the context of the case.
The rationale for the requirement to raise the offending conduct with the primary judge is one of fairness, in that to do so would afford the judge the opportunity to correct the wrong impression of bias. In this case, Queen’s Counsel for the father raised the primary judge’s criticisms of him saying that the primary judge had, the day before, called him a “disgrace” to which the primary judge countered: “Yes, right. Good. Now, address what it is that I’m talking to you about, rather than having your own shot”. In light of that response and in light of the primary judge’s interventions as a whole, we doubt whether had Queen’s Counsel raised with the primary judge his offensive remarks, it would have afforded his Honour the opportunity to correct the impression those remarks had made.
During the appeal, Queen’s Counsel submitted that rather than raise the primary judge’s conduct and remarks with him during the trial, he came to the conclusion that since, at that stage, his Honour’s ire had been directed to him, for him to retire from the case was the best response to the situation that had developed. As it transpired, the complained of conduct continued with the father’s solicitor as its target. We are of the view that in light of these matters and the nature of the primary judge’s conduct, the father did not waive his right to complain on appeal about the primary judge’s conduct.

Disposition of the appeal

Thus as we have indicated, we find the ground made out and conclude that the primary judge, by his conduct, squarely raised an apprehension of bias and failed to afford the father a fair trial.
We feel bound to add here that the primary judge’s interventions, his cruel, insulting, humiliating and rude interactions with the father’s Queen’s Counsel and his solicitor, amounted to an abuse of the power of his position and, in our view must be redressed by allowing the appeal lest the integrity of the judicial system be undermined.
We conclude by referring to Toner v Attorney-General (NSW) [1991] NSWCA 267, in which the New South Wales Court of Appeal considered a contretemps between counsel and the presiding judge which resulted in the presiding judge finding that counsel was in contempt. In the course of dismissing the finding of contempt, the Court of Appeal (Kirby P, Clarke JA and Hope AJA) said at 15:
… It is the duty of counsel and judicial officers to conduct themselves in a temperate manner. It is the nature of court proceedings that they will often be charged with emotion. Only by observing restraint will the legal representatives of parties, and judicial officers be able to ensure the orderly, proper and expeditious disposition of the proceedings in which they take part…
(Citations omitted)
Further, at 21 their Honours said:
… Whilst there are duties of courtesy imposed upon legal representatives as a coronary [sic] of the privileges they enjoy as advocates, there is a correlative duty in judicial officers to listen patiently and carefully and to retain self control at all times…
(Citations omitted)
Clearly then the finding that the primary judge failed to afford the father a fair trial and the apprehension of bias dictates that the appeal be allowed.
It was accepted that in the event of the appeal being successful, the matter must be remitted to the Federal Circuit Court to be heard by a judge other than the primary judge.

Costs

Counsel for both the father and the mother sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth), both for the appeal and for any rehearing. It is appropriate that those orders be made.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Watts JJ) delivered on 28 August 2020.

Associate:

Date: 28 August 2020