Allred & Allred (No 4)
[2023] FedCFamC1F 520
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allred & Allred (No 4) [2023] FedCFamC1F 520
File number(s): PAC 2506 of 2020 Judgment of: BERMAN J Date of judgment: 28 June 2023 Catchwords: FAMILY LAW – COURTS AND JUDGES – Bias – Reasonable apprehension of bias – Where the father filed his Application for recusal prior to the judgment being delivered – Where at trial, the father did not seek any orders other than to leave the determination to the Court’s discretion – Where the conduct relied upon to establish apprehended bias significantly relates to complaints regarding purported mistreatment by multiple Judicial Officers – Consideration of apprehended bias – Consideration of Johnson v Johnson (2000) 201 CLR 488 – Where the father also asserts the primary judge intervened during the trial – Where the interventions were not excessive and did not create procedural unfairness – Application dismissed. Cases cited: Johnson v Johnson (2000) 201 CLR 488
Michael Wilson & Partners Ltdv Nicholls (2011) 244 CLR 427
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 25 May 2023 Place: Adelaide via MS Teams Counsel for the Applicant: Litigant in person Counsel for the Respondent: Ms Henke Solicitor for the Respondent: Rafton Family Lawyers Counsel for the Independent Children's Lawyer: Ms Laurence Solicitor for the Independent Children's Lawyer: Legal Aid NSW Bankstown Family Law ORDERS
PAC 2506 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ALLRED
Applicant
AND: MS ALLRED
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
28 June 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 10 April 2023 be 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Allred (“the father”) and Ms Allred (“the mother”) are unable to reach agreement in respect of the future parenting arrangements for the two subject children of the proceedings, X born 2005 and Y born 2010 (collectively “the children”).
The proceedings were commenced by the father filing an Initiating Application on 28 May 2020.
The father sought orders for sole parental responsibility, that the children live with him and spend time with the mother as may be agreed between the parties or as ordered by the Court.
The mother opposed the orders sought by the father and in her Amended Response to Initiating Application filed 24 January 2023, she seeks orders that she have sole parental responsibility, that the children live with her and spend no time with the father.
X will turn 18 years of age in 2023. The mother concedes that X is able to communicate and/or spend time with the father if he chooses to do so. The proceedings therefore focus on parenting orders in respect of Y.
It appears that the children have not communicated or spent time with the father since February 2020.
The father was a self-represented litigant. The parties and the Independent Children’s Lawyer (“ICL”) appeared before Hannam J on 23 February 2022. The Order made by her Honour, contains a notation that the father had not complied with trial direction orders made on 18 October 2021 and 17 December 2021 in that he did not file and serve any Amended Initiating Application setting out the orders that he sought.
Her Honour noted that the father may intend to cross-examine the mother and given that there were allegations of family violence between the parties, together with an Apprehended Domestic Violence Order (“ADVO”), her Honour informed the father about the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which he may apply to that scheme for the provision of a lawyer through Legal Aid NSW. She noted that the father declined to make such an application given that he had an intention to engage a solicitor privately.
On 23 February 2023, the Court ordered that:
2.The requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in these proceedings.
On 22 July 2022, Hannam J ordered that the proceedings be fixed for a final hearing before a different trial judge.
On 29 August 2022, I made Orders listing all applications for final hearing on 13 February 2023 as a four to five day matter. Further trial direction Orders were made that required the father to file his trial material by 4.00 pm on 28 October 2022 and for the mother to file her trial material by 13 January 2023.
On 29 November 2022, I made the following Orders:-
UPON NOTING THAT:
(a)All applications for final orders remain listed for hearing on 13 February 2023 at 10.00am as a 4-5 day matter […];
(b)The respondent remains obliged to comply with the filing of trial affidavit material by 4.00pm on 13 January 2023; and
(c)There has been no compliance by the applicant father in the filing of his trial affidavit material.
THE COURT ORDERS THAT:
1. The matter proceed to trial on an undefended basis.
2. The listing before Justice Berman on 30 January 2023 at 9.00am is vacated.
The matter came on before me on 13 February 2023. The father was represented by solicitors, Alexander Rashidi Lawyers Pty Ltd and by Mr Clutterbuck of counsel who appeared for the father.
The Court dealt with the father’s Application in a Proceeding sealed 10 February 2023, seeking that the application listed for final hearing on 13 February 2023 be vacated and that the matter be listed for final hearing on a date to be fixed.
The Application in a Proceeding was supported by the father’s affidavit sealed 10 February 2023 (“the father’s affidavit”) which set out the basis for an adjournment of the hearing for the following reasons:-
7. On 23 February 2022, a s 102NA(2) order was made by Justice Hannam.
8.I have been allocated a number of lawyers through this scheme, all of whom told me that they would assist me at the trial, then subsequently withdrew at the last minute.
9.As a consequence, I lost trust in the lawyers who were appointed under the s 102NA(2) scheme and decided to retain a private lawyer.
10.Since this time, I have been trying to save funds to privately fund a lawyer to represent me at trial.
11.On Wednesday, 31 January 2023, I formally retained Alexander Rashidi Lawyers as my legal representative.
12. They formally came onto the record on 2 February 2023.
13.There is a lot of material for my lawyers to go through including court documents and subpoena material. Given the volume of material, my lawyers are unable to go through all the documents and subpoena material before the trial.
14.I am seeking that the hearing listed on 13 February 2023 be vacated and relisted on a date to be fixed to allow my lawyers time to appropriately prepare my matter.
Following submissions, reasons were delivered and an order was made dismissing the father’s Application in a Proceeding.
I did determine however, that the father should be permitted to cross-examine the mother and make final submissions. Given the assertion by counsel that time be required to consider the cross-examination of the mother and the content of final submissions, I adjourned the undefended final hearing to 16 March 2023.
The father was represented by counsel on the adjourned hearing date. The mother was the subject of cross-examination. A concession was made by counsel on behalf of the parties and the ICL that the affidavit, and attached report of Dr C, would be read into evidence without the need for Dr C to be called for cross-examination. Following final submissions, judgment was reserved on 16 March 2023.
On 10 April 2023, the father filed an Application in a Proceeding seeking orders summarised as follows:-
1.That I recuse myself and not deliver judgement.
2.That the evidence submitted in the Application in a Proceeding filed 10 April 2023 be accepted as well as all of the annexures attached inclusive of annexed complaint to the Family Court amended and dated 8 April 2023.
3.That the Court be made aware that the mother has filed falsified information and documents to police, Suburb J Local Court, and the Family Federal Court in relation to a false ADVO applied for in late 2022, and granted in early 2023 with no contact neither any breaches by the father to the mother for the past three years consecutively.
4.That I be recused for having allowed the mother to have breached / committed contempt by having allowed, promoted and protected the mother, in the fact that the mother breached s 121 of the Family Law Act1975 (Cth), by supplying to Suburb J Police with documents, strictly having pertained to the proceedings, without having sought any leave, or permission from the Court to have provided such documents to the police, as admitted in Court on 16 March 2023 whilst under cross-examination by counsel.
5.That the children be granted by the Court immediate reconciliation and time together.
6.That the proceedings be ordered by the Court as a “Mis Trial” and “Re-Trialled” due to the blatant unfair, disrespectful, prejudicial, and bias behaviour that was clearly, and very blatantly, displayed by the trial judge at the final hearing on 16 March 2023.
7.That the Application a Proceeding filed 10 April 2023 is to be considered as urgent.
The Application in a Proceeding is supported by the father’s Affidavit sealed 10 April 2023.
JUDICIAL PREJUDICE
Apprehended Bias
The High Court in Johnson v Johnson (2000) 201 CLR 488 (“Johnson v Johnson”) (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), settled the debate as to the appropriate test to be applied in the case of asserted apprehended bias. Their Honours stated at 87,631-2 as follows:-
11.It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
(Citations omitted)
The position in Johnson v Johnson (supra) was reiterated in Michael Wilson & Partners Ltdv Nicholls (2011) 244 CLR 427 in which their Honours Gummow ACJ, Hayne, Crennan and Bell JJ said:-
63.In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that "[t]he bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated". So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
(Citations omitted)
The Application in a Proceeding was supported by the father’s affidavit which at first consideration, provided little assistance in understanding the basis of the father’s application.
The father annexes a purported transcript of what occurred on 16 March 2023 with a focus on the false and unlawful ADVO.
It is to be noted that the father does not annex actual transcript but rather his version of the transcript. It appears that the father may have recorded the hearing via Microsoft Teams rather than ordering the transcript.
It is a continuing theme of the father that the mother, and possibly with the support of NSW Police, obtained an ADVO without there being good and proper reason or basis.
The focus of the cross-examination of the mother, by the father’s counsel, was to explore the mother’s contention that as a result of her belief that she was being followed by the father who was on a motorbike, she made a report to the police which was the basis for the variation of the ADVO order and its extension to late 2024 by an order made early 2023.
The further variation to the ADVO order made late 2020 was to remove Mr K, Ms F and Mr L as protected persons.
The father also annexed correspondence with Service NSW to establish that as at early 2022, the father had disposed of a motorcycle in order to establish that if the basis for the mother’s complaint to the police was that she believed she was being followed by the father on a motorcycle, then it was not the father.
The father was also concerned that I had allowed evidence to be admitted on 16 March 2023, that in 2007, the father had raped and physically assaulted the wife and children. The father’s contention is that the allegations were “unlawful” and “unfounded”.[1]
[1] Annexure “B” to the father’s affidavit filed 10 April 2023.
Annexure “C” to the father’s affidavit is a complaint to the “FCFCOA Complaints Department” dated 8 April 2023. The complaint document is lengthy but broadly alleges that in earlier proceedings, and specifically before Hannam J in late September 2020, the mother breached Court Orders in respect of the preparation of a hair follicle test for drugs which if required to be completed in a timely fashion would have of demonstrated that the mother was affected by the use of codeine based medication.
The father also contends that various court officers ignored crucial information and evidence which would have established that information presented to the police, and their use of that information, would have established that the police had falsely documented information on their system.
The father also complains of orders made by Hannam J on 17 September 2020, which provided for a report to be prepared by Dr C. The father contends that Dr C had an inappropriate conflict of interest. The father states that Dr C would likely become a witness for the mother and given that he is the “consortium chairperson at [M Mental Health Service] and that [X] was enrolled in [M Mental Health Service] since [early] 2021 suggests an apparent conflict”.
The father also considers that the ICL was likely to be biased against the father given that she pressed for the inclusion of the report by Dr C in the proceedings even though it was prepared in 2021.
The gravamen of the father’s complaint, is summarised at page 66 of the father’s affidavit:-
57)When a system is designed to win, no matter the cost of my life and those of my children, simply to benefit the mother, because she is the mother, definitely does not serve in the best interests of any child, let alone my children, and my family, who should never have been dragged into this game. This purposeful and blatant miscarriage of justice, as is the case in my matter, needs to be addressed in relation to the mother’s modus operandi from the very beginning in relation to using my children as financial gain, and still managing to hold me ransom in my own life and my own personal journey path.
It appears that the father’s concern relates to the incorrect method of use of submissions and evidence on 16 March 2023. At page 67 of the father’s affidavit, the father sets out his reasons as to why his application for recusal should be successful:-
31)The Criminal Jurisdiction should not be used in the Family Court Document’s in their application for the extension of the ADVO, because the Family Court documents do not become evidence until they are “Read” in the Family Court. [Dr C’s] Report was not evidence. [Dr C’s] Report only become’s [sic] evidence once “Read”, meaning, until [Dr C] gets into the witness box, his affidavit is not real, if that terminology can be used.
32)Until he gets into the witness box and he is asked, [Dr C], what is your name, rank and serial number, do you swear that your Affidavit is true ?, and if he stated yes, then it is real, and because it was open Court, then it may, after it gets tested, then it may become evidence.
(As per original)
The father contends that the report of Dr C was relied upon as part of a plan to exclude the father from the proceedings. The goal, according to the father, was to segregate the children from the father, to rely on evidence that was “unlawful” and to exclude evidence that would have promoted the father as a competent and appropriate parent.
As has been considered, there was a concession by the father’s counsel on 12 February 2023 that Dr C was not required for cross-examination and as such, his affidavit and report could be read into evidence.
The father repeated his concerns that evidence had been fabricated in order to support the ADVO and in particular, its extension until late 2024.
The father does not confine his concern to me but rather in the father’s affidavit at page 69, he extends his assertion of an apprehension of bias as follows:-
39)Given the history of the matter:
i.The father currently harbours a much more, and reasonable apprehension of bias, with respect to Justice Berman, and the senior Court Officials, namely, Justice Riethmuller, and Chief Justice Alstergren, as well as the past Justice Hannam, who recused herself from my matter on 22 July 2022, and currently Justice Berman, given the close association that the mother had with Justice Hannam, and that of certain other Court Officials over time past, and still currently, that my matter will become subject to a separate application and enquiry regarding the nature of how my matter was dealt with, and continuously manipulated, with the support of the Court, to damage my person, my character, and the lives of my children and myself permanently, which does not serve in the best interests of my children.
A further allegation of the father is that I continuously interjected in the cross-examination of the mother by the father’s counsel and thereby caused counsel to not make an application against the NSW Police for prosecution. Again, it appears that the father’s focus is upon the assertion that the ADVO was without foundation and based upon false evidence.
CONCLUSION
The father was on notice as and from 29 August 2022, that all applications for final orders will be listed for final hearing on 13 February 2022.
On 29 November 2022, the first order was made that the trial proceed on an undefended basis. That occurred in circumstances where the father had not filed his trial material.
On 13 February 2023, the father’s Application in a Proceeding sealed 10 February 2023 was dismissed and a further order was made that the matter proceed to trial on an undefended basis on 16 March 2023 noting, that the father would have the opportunity to cross-examine the mother’s witnesses and to make submissions.
The father was represented on the adjourned date and the matter proceeded by way of the mother giving evidence and being the subject of cross-examination by the father’s counsel. As conceded by the father, the affidavit and report of Dr C was read into evidence.
Moreover, the father’s counsel conceded that the father did not seek any orders but rather would abide by the decision of the Court. The order that the trial proceed on an undefended basis was not the subject of appeal.
For reasons best known to the father, he sought to file his application for recusal prior to judgment being delivered.
In those circumstances, it is not open to the father to argue that I acted inappropriately in the admission of evidence that should have been the subject of further consideration.
It is not a matter for the Court to look to the circumstances by which the mother gained the protection of the ADVO in terms of the original order and the subsequent variations.
The assertion by the father that the evidence relied upon for the ADVO was “false” is not definitive but rather merely an allegation.
It could not be said that the father suffered prejudice or apprehended bias in circumstances where an uncontested order that the matter proceed on an undefended basis nonetheless permitted the father, via his counsel, to cross-examine the witnesses called by the mother and the ICL and then to make final submissions.
Given the father sought no orders other than to leave the determination to the Court’s discretion, it is difficult to perceive where apprehended bias might arise.
Much of the father’s complaint relates to his purported mistreatment by other Court and Judicial Officers who have been involved in the matter since 2020.
The father also contends that during the cross-examination by his counsel, I intervened to the point where counsel did not explore the conduct of the police in successfully applying for an ADVO based upon false or falsified evidence. The existence of the ADVO was but one of a myriad of considerations and in and of itself was not determinative.
A primary judge may not intervene excessively in the conduct of the trial, particularly by way of becoming an advocate for one party or another. This may give rise to apprehension of bias.
The enquiry of whether a judge’s intervention is excessive or pejorative and that comments made create a real danger that the trial was unfair.
I do not accept that any intervention by me reached a level of interruption that would of necessity indicate I had closed my mind to a particular point.
On closer consideration of the purported transcript, it could not be said that there was interruption but rather, that I attempted to assist the mother in understanding the question counsel was putting rather than in any way putting my own position. Moreover, I do not consider that matters raised with the mother and with the father’s counsel amounted to excessive intervention and thereby creating procedural unfairness. I reject the father’s contention that in some way his counsel would have done more to explore and/or prosecute the father’s position that false evidence had been provided by the mother which underpinned the ADVO.
For these reasons, I dismiss the father’s Application in a Proceeding filed 10 April 2023.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 28 June 2023
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