Adlin & Northern Territory Central Authority (No. 4)
[2021] FamCAFC 73
•18 May 2021
FAMILY COURT OF AUSTRALIA
Adlin & Northern Territory Central Authority (No. 4) [2021] FamCAFC 73
Appeal from: Northern Territory Central Authority & Adlin (No.2) [2021] FamCA 200 Appeal number(s): NOA 20 of 2021 File number(s): DNC 27 of 2020 Judgment of: AINSLIE-WALLACE J Date of judgment: 18 May 2021 Catchwords: FAMILY LAW – APPEAL – RECUSAL APPLICATION – Oral application for recusal during appeal hearing – Apprehended bias – Application dismissed. Legislation: Family Law (Child Abduction Convention) Regulations 1986 (Cth) Cases cited: Adlin & Northern Territory Central Authority (2020) FLC 94-002; [2020] FamCAFC 313
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Northern Territory Central Authority & Adlin [2021] FamCA 216
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Division: Appeal Division Number of paragraphs: 20 Date of hearing: 12 May 2021 Place: Brisbane (via video link) Counsel for the Appellant: Mr Coleman SC Solicitor for the Appellant: Hague Convention Legal Practice Counsel for the Respondent: Mr Nicholls QC with Ms Olsson Solicitor for the Respondent: Margaret Romeo ORDERS
NOA 20 of 2021
DNC 27 of 2020APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR ADLIN
Appellant
AND: NORTHERN TERRITORY CENTRAL AUTHORITY
Respondent
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
18 MAY 2021
THE COURT ORDERS THAT:
1.The appellant’s oral application for recusal is dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adlin & Northern Territory Central Authority (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
.
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:
On 15 December 2021, an appeal brought by Mr Adlin (“the father”) against orders made by a judge of the Family Court on 22 July 2020, that ordered the children be returned to their place of habitual residence, the Kingdom of Thailand (“Thailand”), was successful, the orders of the primary judge set aside and the matter remitted for hearing by another judge of the Family Court (Adlin & Northern Territory Central Authority (2020) FLC 94-002) (“the appeal reasons”).
I was a member of that bench, together with Aldridge and Austin JJ.
The re-hearing took place and on 15 April 2021, orders were made that the children be returned to Thailand, their habitual place of residence from which they had been wrongfully retained by the father (Northern Territory Central Authority & Adlin [2021] FamCA 216).
The father again appealed and the hearing of the appeal took place on 12 May 2021. The second appeal was listed before the same bench of the Full Court as considered the first appeal.
The parties were notified both of the date of the appeal hearing and the constitution of the Full Court bench on 27 April 2021, yet a few hours before the appeal was to commence, the Court was notified that the father intended to ask each member of the bench to recuse her or himself. No detail as to the basis was provided, merely the fact that the application would be made. No explanation was given as to why this application was not foreshadowed after the father’s solicitor was notified of the constitution of the bench.
To found a recusal it must be established that a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” to be decided (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]). 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”.
To satisfy that test, the applicant must first identify the matter that it is said might lead the judge to not bring an impartial mind to the resolution of the issue and, secondly the applicant must demonstrate a logical connection between the identified matter and the possibility that the judge might depart from impartial decision making.
Senior counsel for the father argued that in the appeal reasons, the Full Court made comments which implied criticism of the father’s conduct of the litigation such that it created an apprehension that I and the other members of the Full Court bench might not bring open minds to the resolution of the issues to be determined on the appeal.
A number of paragraphs in the appeal reasons was identified as giving rise to the necessary apprehension, senior counsel arguing that while each taken on its own may not give rise to that apprehension, the cumulative effect of them would.
WHAT WERE THE OFFENDING COMMENTS?
The appeal reasons from [14] set out the legislative framework in which the appeal was to be considered, the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). As part of that general discussion, reference was made to the factual basis necessary to establish that a child’s retention in a country was wrongful and thus an order be made returning the child to the country from which they had been removed. The necessary factual determination is, what was the child’s place of habitual residence at the time they were said to have been wrongfully retained?
Having identified that and based on the pleadings of the parties before the primary judge, the only issue in dispute as between the father and the Central Authority was the children’s habitual residence at the time of their removal. We said:
19. If, at the relevant time, the children’s place of habitual residence was Australia (as the father alleged) then their retention in Australia was not wrongful and the Central Authority’s application had to be dismissed. On the other hand, if it was Thailand (as the Central Authority alleged) then the children’s retention in Australia was wrongful and the Central Authority’s application had to succeed.
20.The decision was binary, save for the unlikely prospect of an alternate finding that the children had lost their habitual residence in Thailand and not yet acquired replacement habitual residence in Australia (LK at 594–595), but the Regulations tend in favour of finding children have an habitual residence for otherwise they cannot be protected from abduction (Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 at 555–556; Commonwealth Central Authority & Cavanaugh (2015) FLC 93-682 at [29]).
It was said that the implied criticism of the father commenced at [20]. Whilst I accept that senior counsel for the father urged us to consider the identified paragraphs in the appeal reasons together, I am at something of a loss to understand why that paragraph even taken in combination with the others to which I will refer, could convey any implied criticism because it was undisputed that at that time, the father’s position was as set out in [19].
The next complained of paragraphs are [23] and [24] but it is necessary to give them some context.
Having again, uncontentiously, by reference to the father’s pleadings, noted that other than the disputed issue of habitual residence, the father had pleaded none of the exceptions for return provided for in the Regulations. We then said:
23.Despite the father’s failure to plead any such defence, he adduced evidence and foreshadowed submissions in his Case Outline document which engaged reg 16(3)(b) of the Regulations. He contended the children’s forced return to Thailand would entail the grave risk of their exposure to physical harm by reason of their infection with the COVID-19 virus, and further, they would be placed in an intolerable position if removed from his primary care upon return to Thailand. The defence was considered and rejected by the primary judge (at [207]–[218]).
24. Nor did the father plead any defence under reg 16(3)(a)(ii) of the Regulations, to the effect that the mother acquiesced to the children’s permanent residence in Australia after their retention, but he made submissions on that topic too. The defence was considered and rejected by the primary judge (at [62] and [142]–[206]) and no ground of appeal is directed to that finding.
It was argued that the words at the commencement of [23] “[d]espite the father’s failure to plead” were a criticism of how he presented his case and that this criticism continued in [24].
In the course of considering the appeal grounds, the next offending comments were said to have occurred in paragraphs [36]–[38]. However, again, we give context to these paragraphs by reference to what was said earlier at [33]–[35] in which our concerns as to the time taken to hear and determine this matter were expressed:
33.We reluctantly agree that is now the only option, but three aspects of the proceedings should be emphasised to ensure the rehearing is prompt and efficient: the delay to date; the lack of specificity in the pleadings; and the lack of attention to evidentiary detail.
34.For reasons which could not be adequately explained to us in the appeal, it took some months for the trial to start and, when it did start, took numerous days to complete. Neither party suggested that either the COVID-19 pandemic or the remote hearing contributed to the delayed start or extended hearing.
35.The Regulations oblige a court to give an application such priority as will ensure it is dealt with “as quickly as a proper consideration of each matter relating to the application allows” (reg 15(2)). Whilst the need for expedition “does not yield any general, let alone inflexible, rule prohibiting cross-examination” (LK at 590), the summary nature of the proceedings must still be kept firmly in mind by both the litigants who are obliged to confine their evidence to the central issues and by the trial judge who must be astute to control the proceedings so there is “prompt decision-making” but not “a peremptory decision” based upon a “patently imperfect record” (MW v Director-General of the Department of Community Services (2008) 244 ALR 205 at [49]).
36.As we have explained by reference to the pleadings, until the father belatedly raised the discretionary defences, there was only one contentious issue: the identification of the children’s place of habitual residence on 10 October 2019. Yet the parties, particularly the father, filed volumes of evidence which could not possibly bear upon that issue or even the discretionary defences raised by him, much of which was the subject of cross-examination, making the hearing disproportionately long. Quite what the air quality in K City, the competence of various nannies, or the nature of some correspondence to them (to identify just a few examples) had to do with the issues is beyond us. Much of the evidence should not have been adduced, admitted or permitted to be the subject of cross-examination or submissions, in which case the duration of the hearing is likely to have been much shorter and, most likely, could have been heard much sooner. The parties, not the primary judge, bear principal responsibility for that.
37.The parties’ distraction from the essential issues started with their inattention to the pleadings. The remaining ground of appeal which we have not so far addressed (Ground 4) concerned a finding made by the primary judge in connection with the rejection of the lately raised reg 16(3)(b) defence and was the subject of the father’s application to adduce further evidence in the appeal. Such evidence related to the difficulty he would experience returning to Thailand with the children, if forced to do so, and their likely separation from him for a protracted period if that occurs. The Central Authority opposed the admission of such further evidence in the appeal, which was understandable because, on the pleadings, it was not prepared to meet any defence mounted under reg 16(3)(b) at the trial. Now the father’s reliance upon such defences is patent, he must plead the actual terms of his defences so the parties will then know the nature of the evidence they will require at the rehearing.
38.More specifically, the parties need to address the expert opinion evidence upon which they seek to rely, because the position at trial was far from clear. The Central Authority indicated its reliance, in both its Amended Application and Case Outline document, upon the affidavit evidence of a Thai lawyer. The father expressly consented to the Central Authority’s reliance upon that lawyer’s evidence and did not require him for cross-examination. In the reasons for judgment, the primary judge did not acknowledge the Central Authority’s reliance upon such evidence (at [42]), but mentioned the evidence obliquely (at [213]–[214]). The father indicated his reliance, in his Answer and Cross Application, upon the affidavit evidence of another Thai lawyer, though his Case Outline document did not expressly do so. Albeit for different reasons, both parties believe the evidence of the father’s lawyer was excluded, though the father’s counsel still briefly referred to it in final submissions. The Central Authority asserted the father voluntarily relinquished any reliance upon his lawyer’s evidence at trial, but the transcript does not resolve the conflict. It seems that the parties gave no consideration to the engagement of a single expert witness, as Pt 15.5.2 of the Family Law Rules 2004 (Cth) requires.
The context to the paragraphs said to give expression to the reasonable apprehension was not mentioned, and it is plain that the context gives particular understanding to the paragraphs which follow.
Where none of the paragraphs was said to be factually incorrect, the implied criticism then was said to arise from the Court’s reflection on how the father pleaded and presented his case before the first primary judge.
Even if the comments within those identified paragraphs could properly be seen as critical of the way in which the case was pleaded and run, in my view none, either alone or together, can properly be said to give rise to the relevant apprehension.
I thus declined to recuse myself.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace. Associate:
Dated: 18 May 2021
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