Angelis & Regoli
[2022] FedCFamC1F 450
Federal Circuit and Family Court of Australia
(DIVISION 1)
Angelis & Regoli [2022] FedCFamC1F 450
File number(s): ADC 5352 of 2019 Judgment of: KARI J Date of judgment: 28 June 2022 Catchwords: FAMILY LAW – Parenting – interim hearing – application for disqualification of judicial officer – complaint of apprehended bias – consideration of legal principles – best interests of the child – no apprehended bias – mother’s application for disqualification of judicial officer dismissed - matter referred for an interim hearing before a Senior Judicial Registrar Legislation: Family Law Act 1975 (Cth) Div 12A, ss 60CA, 69ZN Cases cited: Adlin & Northern Territory Central Authority (No.5) [2021] FamCAFC 74, (2021) FLC 94-019
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48
Division: Division 1 First Instance Number of paragraphs: 89 Date of hearing: 2 June 2022 Counsel for the Applicant: Mr Anderson Solicitor for the Applicant: Belperio Clark Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: C M Tucker & Associates Counsel for the Independent Children's Lawyer: Mr Lewis Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia Solicitor for the Intervener: Mr Fursa ORDERS
ADC5352/2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ANGELIS
Applicant
AND: MS REGOLI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
KARI J
DATE OF ORDER:
28 June 2022
THE COURT ORDERS THAT:
1.That the oral application made by the Respondent Mother, seeking an order that Justice Kari be disqualified from hearing these proceedings be dismissed.
2.That interim parenting arrangements for the child X born in 2015 be referred to the National Assessment Team for allocation to a Senior Judicial Registrar for interim hearing.
3.That no less than 7 days prior to any interim hearing before a Senior Judicial Registrar, each of the parties and the Independent Children’s Lawyer do file and serve a short outline (of no more than 5 pages) setting out:
(a)The documents relied upon;
(b)The interim parenting orders sought;
(c)Any procedural orders sought; and
(d)A bullet point summary of argument.
4.That the proceedings otherwise be referred to the list of cases awaiting trial.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Angelis & Regoli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
The proceedings before the court relate to the parties’ 8 year old daughter X born in 2015.
The parties’ competing applications for final parenting orders in relation to X have yet to be listed for final hearing.
The current issue before the court is an application made on behalf of the mother that I be disqualified from hearing the matter on the basis of apprehended bias.
The application was made orally on 2 June 2022, when the matter was listed for interlocutory argument regarding X’s parenting arrangements against a backdrop of:
(a)Orders made on 12 May 2022 providing for X’s primary care to be shifted from the mother to the father during the period of a short adjournment only; and
(b)There being no orders in place for X to spend time with the mother.
In circumstances where an application was made for me to be disqualified from hearing the matter, the parties properly agreed that I was unable to determine any contested issues in the proceedings until such time that the disqualification application was determined.
As can be seen from the reasons that follow, I do not consider that there is any basis that I be disqualified from hearing the matter.
Interim parenting arrangements will be listed before a Senior Judicial Registrar as soon as possible in circumstances where I am unable to return the matter before me for an interim hearing as quickly as the matter warrants.
THE HISTORY OF THE LITIGATION
This is a parenting matter that has some significant complexity.
Given the limited ambit of the present application it is not necessary to set out a detailed factual background of the proceedings. Accordingly only a summary shall follow.
The proceedings commenced their life in the Federal Circuit Court and are the subject of lengthy and detailed reasons delivered by his Honour Judge Brown on 18 November 2020 together with a lengthy interlocutory decision delivered by a Senior Judicial Registrar on 27 October 2021. The court has had regard to those reasons generally in the proceedings.
A range of allegations have been made in the proceedings including but not limited to:
(a)Allegations the mother has made of sexual abuse and physical abuse said to have been perpetrated by the father towards X; and
(a)Significant concerns raised by the father in relation to the mother’s mental health.
Throughout the life of the proceedings, the court has benefitted from the receipt of information produced to the court by the Department for Child Protection (“DCP”) and South Australian Police (“SAPOL”), ostensibly as a consequence of orders made pursuant to section 69ZW of the Family Law Act 1975 (Cth) (“the Act”) and/or as a consequence of the information sharing provided by the Co-Located DCP/SAPOL workers.
It is relevant however for present purposes to identify that on 11 May 2020, Judge Brown made an order directing the mother undergo an independent psychiatric assessment. That assessment was ultimately obtained by the mother from Dr N and his report is before the court and is dated 12 October 2020.
In that report Dr N variously concludes:
DIAGNOSIS
There is no clear evidence in my opinion of any particular mental illness diagnosis in [Ms Regoli]. It seems most likely to me that the behaviour that has caused some people to question her mental health is related simply to her rather emotional and somewhat volatile personality style although I doubt that there would be sufficient criteria for the formal diagnosis of any particular personality disorder.
CONCLUSIONS
[Ms Regoli] presented very well during our lengthy interview, and of course would have been attempting to convey as positive an impression as possible. Nevertheless, I could find no evidence at all of major mental disorder which would normally be reasonably detectable during a lengthy interview even for individuals who are attempting to convey the best possible impression.
I believe it is most likely that the clash of personalities that has led to the breakdown of [Ms Regoli’s] relations with her ex-husband has nothing to do with diagnosable mental illness at least on [Ms Regoli’s] part. Clearly I can make no judgment about the veracity of her allegations about her ex-husband’s behaviour towards their daughter, but I think it is clear that she holds those concerns quite genuinely and resolutely.
The matter was transferred to the Family Court of Australia (as it then was) on 8 April 2021.
When the matter was transferred to the Family Court of Australia, the status of the proceedings was as follows:
(1)The parties had commenced the process of obtaining a Family Assessment Report from Psychologist Ms O, which had first been ordered by Judge Brown on 4 November 2020; albeit that there was an extant dispute about how the cost of that report would be met.
(2)X was living with the mother.
(3)The relevant time spending arrangements between X and the father were those contained in orders made by Judge Brown on 18 November 2020, which provided for X to spend time with the father each Sunday from 9.30am until 2:00pm, with handover to take place at a Children’s Contact Service.
Following the transfer of the matter to the Family Court of Australia, interim parenting arrangements proceeded to a hearing before a Senior Judicial Registrar on 11 October 2021.
That hearing took place in the absence of Ms O’s Family Assessment Report as there had been delays and difficulties with that process.
Ultimately, the Senior Judicial Registrar made orders that provided for X to spend time with the father each Friday from the conclusion of school until 4:00pm Saturday.
Following that hearing, it had been intended that the proceedings would return before the Senior Judicial Registrar on 20 January 2022 for further directions, presumably after the release of Ms O’s report.
That process however did not eventuate for a range of reasons, including but not limited to the mother failing to facilitate the child spending time with the father. This was in circumstances where the mother made further allegations of physical and/or sexual abuse allegedly perpetrated by the father towards the child, which were also the subject of a report to relevant authorities.
The proceedings ultimately came before me on 20 December 2021 as a consequence of an Application in a Proceeding filed by the mother on 24 November 2021 to suspend the orders that had been made by the Senior Judicial Registrar.
At that stage, Ms O had been unable to complete her Family Assessment Report, because of the more recent allegations that had been made by the mother.
On 2 March 2022, and again in the absence of Ms O’s report, I made a range of orders, including that X spend time with the father for two consecutive weekends out of three from the conclusion of school Friday until the commencement of school Monday.
In addition that same day, orders were made pursuant to section 91B of the Act inviting the Minister for the Department for Child Protection to intervene in the proceedings. When making that order, I understood that the making of that order would precipitate an investigation by the DCP to inform any decision made by the DCP to intervene in the proceedings.
BACKGROUND TO THE CURRENT APPLICATION
On or about 27 April 2022, the Independent Children's Lawyer (“the ICL”) wrote to my Chambers. That correspondence is set out in full as follows:
I continue to act as Independent Children's Lawyer in the abovementioned proceedings.
I attach to this email a copy of a family assessment report received by me today from [Ms O] of [P Psychologists].
I note the recommendations made by [Ms O] and indicate to the Court that I have concerns about filing the report in the usual manner and allowing the parties access to same prior to the hearing listed on the 2nd of June 2022.
I note the Orders made on 2 March 2022 and in particular paragraph 4 of the Orders inviting the Department for Child Protection to intervene in these proceedings.
I seek permission from the Court to release the report from [P Psychologists] to the Department for Child Protection.
I further seek an indication from Her Honour as to how Her Honour wishes to deal with the release of the family assessment report to the parties given the significant history of this matter and the recommendations made by [Ms O].
I thank you in anticipation of your assistance in this matter and look forward to Her Honour's direction in this regard.
It is important to understand for present purposes that in her report Ms O recommended a change of primary care such that X live with the father.
In addition, Ms O raised significant concerns about the mother, including but not limited to her mental health.
As a consequence of the ICL’s request for guidance from the court, and having regard to the contents of Ms O’s report, I listed the matter for a procedural hearing to manage the release of Ms O’s report.
That hearing took place on 12 May 2022.
While the power of the court to deal with the matter in this way was not challenged at the hearing on 12 May 2022, it is important to point out that the court has expansive powers pursuant to the provisions in Division 12A of the Act to manage the conduct of parenting proceedings; principally to ensure the safety of children and parties.
In particular section 69ZN of the Act sets out the principles the court “must” give effect to when conducting child related proceedings. Those principles are as follows:
Principle 1
69ZN(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
69ZN(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
69ZN(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
69ZN(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focussed parenting by the parties.
Principle 5
69ZN(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.[1]
[1] Family Law Act 1975 (Cth) s 69ZN(3)-(7).
For present purposes, Principles 1, 2 and 3 are those provisions which are particularly relevant.
The court acknowledges that at the time of the hearing on 12 May 2022, each of the parents were in a difficult position, as neither they nor their legal representatives were in receipt of Ms O’s report.
The parties, the ICL and the court were however in receipt of preliminary correspondence from the DCP in which they sought a further 4-6 weeks to complete their investigation and respond to the court’s request that they intervene in the proceedings.
At that hearing on 12 May 2022, the ICL and the father were represented by counsel and the mother was represented by her solicitor.
Both of the mother and the father were present in court when the hearing commenced. However I asked the parties to be excused from the court room to enable the sensitivities of the release of the report to be dealt with in their absence. This course was not the subject of any objection.
Once the parties were absent from the court, the ICL submitted that the release of Ms O’s report required management, and that in his considered view the report should be released at a time when the child was not in the mother’s primary care.
In addition, the ICL submitted:
To be quite blunt about it, the independent children’s lawyer has had to give very serious consideration to whether or not to invite your Honour to reverse the care arrangements in the immediate term because the independent children’s lawyer is so concerned of what the reaction of the mother might be. That’s not an approach that we take lightly. We accept that it’s likely to be hugely disruptive to the child, but we assume the child is at school at present and thus if your Honour were inclined to make an order to place the child in the care of the father for the period that the department conducts their investigation and then bring the matter back…[2]
[2] See transcript of hearing before Justice Kari on 12 May 2022 at page5, lines 30-38.
The father’ counsel submitted that it was appropriate for the report to be released in accordance with the Independent Children's Lawyer’s submissions.
The mother’s solicitor opposed the court dealing with the matter in the manner that had been proposed by the Independent Children's Lawyer.
Ultimately however the court made the following orders:
1.That forthwith and during the period of the adjournment the child [X] ([…] 2015) do live with the father.
2.That during the period of the adjournment paragraphs 2 and 3 of the orders made on 2 March 2022 be suspended.
3.That all previous orders providing for live with or time spending arrangements in relation to the child be suspended during the period of the adjournment.
4.That forthwith the mother be restrained and an injunction is granted restraining the mother during the period of the adjournment from attending the child’s school namely, [G School] and/or at any location at which the child attends for extra-circular activities.
5.That the matter be listed for Interim Hearing on 18 May 2022 at 4.00pm with respect to the child’s living and time spending arrangements pending the release of the report from the Department for Child Protection and any further hearing in the matter with such hearing to be conducted on a face-to-face basis.
6.That forthwith the Independent Children's Lawyer do file and serve a copy of the Family Assessment Report prepared by [Ms O] dated 26 April 2022.
7.That the Independent Children's Lawyer forthwith provide a copy of the Family Assessment Report prepared by [Ms O] to the Department for Child Protection.
When making those orders, the court indicated that the altered parenting arrangements would only be in place for a very short period of time and that the matter would return for substantive hearing as to what parenting arrangements were to be in place pending the release of the report from the DCP and once the parties and their legal representatives had the opportunity to consider Ms O’s report.
In addition, the parties were advised that a special accommodation was being made to hear the matter on 18 May 2022 at the conclusion of a trial sitting, given the urgency and the need for the court to properly hear from each of the parties and determine the parenting arrangements for X pending the release of the report from the DCP.
The matter next came before the court for hearing as intended on 18 May 2022.
At that hearing, each of the parents and the Independent Children's Lawyer were represented by Counsel. Of some significance, counsel for the father and the Independent Children's Lawyer were the same counsel that had appeared at the hearing on 12 May 2022.
The mother was represented by Mr McQuade of Counsel, and her instructing solicitor (who had attended the hearing on 12 May 2022) was also present.
Both of the parents were present at the hearing on 18 May 2022.
In addition the DCP attended the hearing and were represented by a solicitor.
When the hearing commenced, the court asked the legal representatives for each of the parents and the Independent Children's Lawyer to summarise the orders that were being sought by their respective clients that day.
During the course of taking those submissions, the court observed that the mother appeared to be trying to get the attention of her legal representatives to convey further instructions. In particular, the mother appeared to be agitated by submissions that had been made by the DCP that the mother had failed to engage in the attempts made by the DCP to engage her in their investigative process.
The hearing was ultimately adjourned for a period of time to enable the mother to liaise with her legal representatives.
When the hearing resumed, the following exchange was had with Mr McQuade of Counsel for the mother and Mr Fursa, the solicitor appearing for the DCP :
MR McQUADE: All right. Firstly, my learned friend, Mr Fursa, represented that the department hasn’t been able to contact the mother, having tried three times up until 16 May. I ascertained that from the department that the case worker is [Ms Q]. There is a message on my client’s mobile phone on 6 March which it is instructive – 6 May, rather – from [Ms Q], which probably gives the light to what has been said, and I think it’s important that the court – thank you – she has - - -
…
MR McQUADE: This is from [Ms Q], who had earlier rang at 1.41 on 6 May. At 4.30 pm she texts:
Hi [Ms Regoli]. Just letting you know that I’m off on leave next week but will provide a brief update to the court for the hearing on Thursday. As you know, we’re just waiting on some more info from Health. So we’re just asking for some more time to give a final assessment. I will touch base with you when I’m back on 16 May. Thank you. [Ms Q].
So [Ms Q] is indicating that she will be on leave from 6 to 16 May yet somehow - - -
HER HONOUR: Maybe she came back from leave - - -
MR McQUADE: Well - - -
HER HONOUR: - - - earlier. I - - -
MR McQUADE: - - - there’s no evidence of that on this - - -
HER HONOUR: I don’t know because Mr Fursa didn’t tell me who the worker was.
MR McQUADE: Well, it’s - - -
HER HONOUR: You put to me 16 May. You’re putting submissions as if I’ve
heard them before.
MR McQUADE: Well - - -
HER HONOUR: It’s not what Mr Fursa said. I took a note of what he said and it’s
this. The department has had problems in getting in touch with the mother by phone. There have been three phone calls since last Monday and - - -
MR McQUADE: I thought he said, “up to Monday”.
HER HONOUR: No. He said, “since last Monday”.
MR FURSA: So I think I said the most recent was on Monday.
MR LEWIS: Yes.
HER HONOUR: Right. So you did. Calls the last one on Monday. Sorry.
MR McQUADE: Yes.
HER HONOUR: That’s me misreading my note. But he didn’t identify who the
worker was - - -
MR McQUADE: No. That’s a - - -
HER HONOUR: - - - or anything of that nature.
MR McQUADE: That’s a conversation I had when your Honour was out of court, but I don’t think - - -
HER HONOUR: Ms - - -
MR McQUADE: Ms - - -
HER HONOUR: [Ms S] is shaking her head as well.
MR McQUADE: Mr Fursa - - -
HER HONOUR: Can I just ask Mr Fursa to take an instruction about these matters.
MR McQUADE: Mr Fursa can confirm - - -
HER HONOUR: Just sit down. Let Mr Fursa take an instruction.
MR FURSA: Thank you, your Honour. So it is correct that [Ms Q] is on leave, but the department has a number of other people that work there, and although [Ms Q] is the ordinary case worker, because she was on leave, another worker by the name of [Ms R]- - -
HER HONOUR: Who?
MR FURSA: [Ms R] - - -
HER HONOUR: Thank you.
MR FURSA: - - - called instead, and [Ms S] instructs me that she was sitting next to [Ms R] on Monday when she rang that call – rang in that most recent call on Monday. Now, the difficulty, of course, is that I haven’t – this will be in the report that we put on and so at the moment this is just what I’ve said - - -
HER HONOUR: Your instructions.
MR FURSA: That’s right.
HER HONOUR: You’re giving evidence from the bar table - - -
MR FURSA: That’s right. So - - -
HER HONOUR: - - - on the hop, in accordance with your instructions, but - - -
MR FURSA: I’m sorry about that.
HER HONOUR: I wasn’t under any misunderstanding that you had told me that [Ms Q] had made the phone calls because you didn’t even identify the worker. Mr McQuade, having now heard that, do you want to put anything further to me?
MR McQUADE: Yes, there is, because there’s another problem with what your Honour has just been told. If [Ms Q] is back on 16 May, and she has indicated in her text that she will touch base with the mother on that date, then why is this other person - - -
HER HONOUR: Mr McQuade, are you serious?
MR McQUADE: Yes. I’m serious.
HER HONOUR: The department engaged a number of workers to conduct their investigations. Whether it’s [Ms Q], whether it’s [Ms R], whether it’s [Ms S] or, frankly, whether it’s any other worker - - -
MR McQUADE: Okay.
HER HONOUR: You’re – you are drawing my attention to matters which, frankly, detract from what has been put to me, and that is three attempts have been made since the last hearing, the last one on Monday, and your client hasn’t engaged. Now, if you want to address me about that - - -
MR McQUADE: I thought I had.
HER HONOUR: - - - I will hear you.
MR McQUADE: I thought that’s what I had been doing, your Honour.
HER HONOUR: Well, you have and you haven’t - - -
MR McQUADE: It may be falling on deaf ears.
HER HONOUR: - - - because you’re playing games with who it was - - -
MR McQUADE: No.
HER HONOUR: - - - and that it wasn’t this person and this person was on leave. I
- -
MR McQUADE: What I’m saying is that - - -
HER HONOUR: Mr McQuade, I am told by Mr Fursa that it was someone other
than [Ms Q]. Your client didn’t engage or answer the call. Is that what occurred?
MR FURSA: As I understand - -
HER HONOUR: Did it ring through to MessageBank?
MR FURSA: I understand there was a voice message left.
HER HONOUR: At least in the one that [Ms S] was present for - - -
MR FURSA: That’s right.
HER HONOUR: - - - on Monday of this week.
MR FURSA: That’s right. Yes.
MR McQUADE: No such message is evident on my client’s phone, your Honour.
HER HONOUR: Well, maybe not from [Ms Q]. Is there a message from someone else?
MR McQUADE: From anyone. From anyone from the department.
HER HONOUR: Voicemail message?
MR McQUADE: Yes.
HER HONOUR: Do you want to take that instruction?
MR McQUADE: Yes. I’ve got instructions, your Honour[3].
[3] See transcript of hearing before Justice Kari on 18 May 2022 at pages 27-31.
As it transpired all of the events that took place at the hearing on 18 May 2022 culminating in that long exchange with the mother’s counsel had the effect that significant court time was consumed, making it impossible for the court to hear the substantive issue that was scheduled to be determined that day, namely the parenting arrangements for X.
As a result, the matter was adjourned to a pre-existing hearing date of 2 June 2022 (which had been set pursuant to the orders made in March 2022).
When the matter came before the court on 2 June 2022, all of the same legal representatives and counsel attended, together with each of the parents.
The day prior to the hearing, and dated 1 June 2022, the court received a completed report from the DCP in response to the section 91B order that had been made.
The report from the DCP raises very significant concern in relation to the mother and in particular in relation to her mental health.
In addition, and significantly for present purposes the report recorded:
The department is aware that at the previous court hearing it was raised that there had been some difficulty in making contact with [Ms Regoli] for the purposes of the investigation.
The allocated departmental worker advised [Ms Regoli] on 6 May 2022 that they would be on leave, however during this period of time, other departmental workers had attempted contact with [Ms Regoli].
On 12 May 2022, co-located child protection practitioner, [Ms S] spoke with [Ms Regoli] following the court hearing. On this occasion, [Ms S] requested the details of [Ms Regoli’s] treating psychologist. [Ms Regoli] initially stated that the psychologist was [Ms T], before advising it was [Mr U]. [Ms Regoli] later approached [Ms S] to advise that her treating psychologist was in fact, [Ms V].
On 13 May 2022, [Ms S] attempted to contact [Ms Regoli] on two occasions via phone. [Ms Regoli] did not answer either phone call. In the first attempt [Ms S] left a voice message requesting [Ms Regoli] return her call. [Ms S] did not leave a message on the second occasion.
On 16 May 2022, departmental worker, [Ms R] attempted to contact [Ms Regoli] via phone. [Ms Regoli] did not answer on this occasion and a voicemail was left.
On 19 May 2022, [Ms Regoli] contacted the allocated worker upon her return from leave. [Ms Regoli] advised that she had been busy completing her diploma and participating in [an educational program] so she did not realise that the department been attempting to contact her. [Ms Regoli] reported that she would usually check her voicemails every couple of days but did not have the opportunity to do so, and therefore it was relayed to the court that the department had not made contact with [Ms Regoli]. [Ms Regoli] reported that she checked her voicemails after the hearing but did not have the opportunity to tell the court that the department had in fact attempted contact. [Ms Regoli] requested that the allocated worker apologise to [Ms S] and [Ms R] for the misunderstanding.
The department can confirm that [Ms Regoli] has engaged with the department since this time.
When the hearing commenced on 2 June 2022, the court made an enquiry of the DCP as to the whether or not the DCP intended to intervene in the proceedings.
The court was advised that the DCP declined to intervene in the proceedings. However, in light of the allegations that had been made by the mother at the hearing on 18 May 2022 regarding DCP attempts to communicate with the mother, the DCP wished to remain present for the duration of the hearing.
Having heard those submissions, the court raised a concern with the mother’s counsel Mr McQuade as to the submissions that had been made on behalf of the mother at the previous hearing regarding a lack of communication from the DCP. That exchange was in the following terms:
HER HONOUR: I’m conscious that you might want to stay given the allegations made on the last occasion which appear to have been clarified in the report by the mother. But I’m actually frankly interested as to what Mr McQuade might tell me about all of that given the high dudgeon he was in at the last hearing when he made the submissions, which, frankly, were submissions which misled the court. Now, I’m not blaming you for that. You acted on your instructions, Mr McQuade, but they were misleading submissions and your client has acknowledged that to the department and asked for an apology to be given.
MR McQUADE: What does your Honour require me to do?
HER HONOUR: Well, it’s a matter for you, Mr McQuade. But I can’t overlook the fact that your client instructed you to mislead the court; that’s not insignificant.
MR McQUADE: Well, it’s not necessarily the case. There are other explanations which I - - -
HER HONOUR: There was almost - - -
MR McQUADE: - - - may go into.
HER HONOUR: - - - chest-beating, Mr McQuade, at the fact that there had been no communication from the department. I remember it well, Mr McQuade.
MR McQUADE: I remember it, too, your Honour. And the – your Honour will note that that hearing took place on 18 May and the - - -
HER HONOUR: And by the following day, your client acknowledged that she had – there were messages, she just had not checked.
MR McQUADE: Yes. Not many, and her case worker didn’t contact her until the day after the hearing.
HER HONOUR: Mr McQuade.
MR McQUADE: 19 May.
HER HONOUR: No, she contacted the case worker, that’s what the report from the department says.
MR McQUADE: Whatever.
HER HONOUR: Not – it’s - - -
MR McQUADE: There was no communication between her - - -
HER HONOUR: Mr McQuade, this is not a whatever - - -
MR McQUADE: - - - and the case - - -
HER HONOUR: Mr McQuade, this is not “whatever.” A very strong submission was put that the department were misleading the court, that was the effect of what was told.
MR McQUADE: I read out a text message that had been sent by the case worker. I informed the court of my client’s instructions.
HER HONOUR: That there had been no attempts to contact her.
MR McQUADE: That’s right.
HER HONOUR: And which she now acknowledged - - -
MR McQUADE: And they were my instructions at the time.
HER HONOUR: Well, that’s my point. She instructed you and she, through that instruction, misled the court. That’s the point.
MR McQUADE: Well, whether that was intentional or otherwise I’m not able to say.
HER HONOUR: Well, that’s the point.[4]
[4] See transcript of hearing before Justice Kari on 2 June 2022 at pg 45-46.
Later, and prior to the commencement of any submissions about the interim parenting arrangements for X, there was a further exchange with Mr McQuade as follows:
MR McQUADE: All right. Your Honour, can I say this, your Honour has formed the view that my client instructed me to mislead the court.
HER HONOUR: What other view can I form, Mr McQuade.
MR McQUADE: Well, there are number of other views that are open to your Honour. For instance, it may be that when I took instructions, my client genuinely forgot and what she told me she believed to be true, in which case there is no intention to mislead the court. And quite frankly, your Honour, it concerns me that your Honour can only focus on one explanation that I was instructed to mislead the court.
HER HONOUR: Is there an application that flows from that submission, Mr McQuade?
MR McQUADE: Well, your Honour, we are keen to have the matter heard on its merits.
HER HONOUR: Mr McQuade, is there an application that flows from that submission?
MR McQUADE: Well, there - - -
HER HONOUR: It’s not a submission that I imagine you’ve made lightly. Is there an application that flows from it because if there is, I must deal with that first before I do anything else. If you would like to take an instruction about that, then please do.
MR McQUADE: Thank you, your Honour. I will.
HER HONOUR: Take the instructions, Mr McQuade. Do you want me to rise while you do that?
MR McQUADE: Thank you, your Honour.
HER HONOUR: Thank you. I will adjourn the court.[5]
[5] Ibid pg 49-50.
It is these exchanges with counsel for the mother which ultimately led to the making of an application on behalf of the mother that I be disqualified from further hearing the matter.
In addition, for the first time the mother’s counsel took objection to the manner in which the court had dealt with the proceedings on 12 May 2022. That objection was put in the following terms by her counsel:
MR McQUADE: On 12 May, your Honour made orders that, at a time when your Honour had already read [Ms O’s] report, your Honour made orders suspending the live with order in favour of the mother, made orders whereby the child was delivered into the father’s care and restrained the mother from attending at the child’s school or on any extracurricular activity. Your Honour did all of that without hearing any argument, without even permitting counsel for the mother to read the report so as to be in a position to dissuade your Honour from making those orders.
HER HONOUR: That order is not the subject of an appeal, Mr McQuade.
MR McQUADE: It’s not the subject of appeal, but it’s the subject of this application, your Honour, that your Honour has displayed an approach that to the reasonable observer sitting – lay observer sitting at the back of the court may persuade that person to the view that your Honour is closed to any argument about the matter. Any argument about [Ms O] – arising from [Ms O’s] report, and your Honour knew what was in the report before the orders were made. The ICL knew what was in the report before the orders were made. The mother didn’t know what was in the report until after the orders were made.[6]
[6] Ibig pg 51, lines 11-28.
LEGAL PRINCIPLES
The relevant test is contained in a High Court decision of Ebner v Official Trustee in Bankruptcy[7], (“Ebner”) and there the High Court said this:
6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[8]
[7] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
[8] Ibid 344-345.
As succinctly summarised by Justice Aldridge in Adlin & Northern Territory Central Authority (No. 5)[9]:
4. It is well established that judges have an obligation to sit on matters that are assigned to them, except where there is some good reason, such as actual bias or the reasonable apprehension of bias, for them not to sit. It is not for litigants to pick and choose judges according to their perception as to the way that their choice might advantage them or disadvantage their opponents (Rajski v Wood (1989) 18 NSWLR 512 at [519]–[520]; Re: J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 per Mason J at 352).
5. In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ said:
19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.[10]
[9] Adlin & Northern Territory Central Authority (No.5) [2021] FamCAFC 74, (2021) FLC 94-019.
[10] Ibid at [4]-[5].
DISCUSSION
Beyond a reference to the lay observer, in making the application that I recuse myself from further hearing the matter, the mother’s counsel did not refer to the well settled legal principles, nor the two stage test in Ebner.
While that failure in and of itself is likely fatal to the application, some attempt will be made to apply the test set out in Ebner, so that the mother is able to understand the reasons that the court has refused the application made on her behalf.
It appears, that there are two complaints that have been made on behalf of the mother:
(a)Firstly the manner in which I dealt with the proceedings on 12 May 2022; and
(b)Secondly, the comments I made at the hearing on 2 June 2022 to the effect that it appeared that the mother had instructed counsel to mislead the court at the hearing on 18 May 2022.
Addressing the second limb in Ebner, and attempting to draw a nexus between the two matters identified and why it might be said that I might not decide the case on its merits, each complaint will be dealt with separately.
In relation to the events and the approach taken on 12 May 2022, when considered against the background of events that have already been referred to in these reasons, it appears that while a complaint of apprehended bias is made, the complaint tends to suggest that there was actual bias.
Whatever the case might be, I do not accept that I had pre-determined the matter, nor that I had failed to approach the matter with an open mind for the following reasons:
(a)The reason that the matter was listed for hearing on 12 May 2022 was as a consequence of the communication received from the ICL. That correspondence sought guidance from the court as to the release of Ms O’s report. It would not have been appropriate for the court to have responded to the communication from the ICL and give any direction as to how the report was to be released without a hearing at which submissions were made by each of the parties and the ICL.
(b)I did not express any preconceived views to the parties at the hearing on 12 May 2022 as to how the release of Ms O’s report was to be managed, rather, submissions were put by the ICL suggesting a path forward, which after hearing submissions from each of the parties, was acceded to.
(c)I understood that in the absence of the parties having the opportunity to consider Ms O’s report and take legal advice, it would be improper for there to be any lengthy passage of time between the release of the report and a hearing to determine appropriate parenting arrangements pending the release of the DCP report. Accordingly, I was cognisant that the orders made on 12 May 2022 were only to be in place for a period of seven days, after which there was to be a full hearing to determine the parenting arrangements for the child.
(d)No comments were made by me during that hearing, and none have been identified by counsel for the mother, identifying that any fixed views had been formed regarding the opinions and recommendations expressed by Ms O, beyond an identification that the report made for concerning reading, and that there needed to be careful management of the release of the report to ensure the safety of the child in the short term.
In addition, it is not insignificant that there was no complaint made by the mother at the hearing on 18 May 2022 about the conduct of the hearing on 12 May 2022, and nor were the orders made on 12 May 2022 the subject of any appeal.
Most importantly however, in child related proceedings, the court is obliged pursuant to the provisions set out in section 69ZN, and the best interest principles set out in section 60CA of the Act, to not only make parenting orders that are in a child’s best interests, but importantly to conduct child related proceedings in a fashion which protects the child’s safety at all times. These principles were at the forefront of the court’s mind when dealing with the matter on 12 May 2022.
In relation to the comments made during the hearing on 2 June 2022, the court is reminded of the oft quoted passage from the decision in Johnson v Johnson[11]:
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.[12]
[11] Johnson v Johnson [2000] HCA 48.
[12] Ibid [13].
The court does not consider that the comments made to the mother’s counsel at the hearing on 2 June 2022 appear to have any nexus to an apprehension that the parenting arrangements for X would not have been determined on their merits.
Rather, as submitted on behalf of the father and the ICL, the comments made were extraneous to any consideration of the parenting arrangements for X.
At best, it might be said that the comments that were made go towards informing any decision about the ultimate credit of the mother. However, in circumstances where the matter had been listed for interim hearing on the papers, it would have been unlikely that any issues as to credit could have been determined such that they would have impacted the decision of the court at that stage.
Having now had the opportunity to re-read the transcript from the hearing on 18 May 2022, it appears that the mother had given instructions to counsel that she had not received any communications from the DCP; something which the mother patently now acknowledges was not correct, hence her apology to the DCP.
In light of those matters and given the significant loss of court time at the hearing on 18 May 2022, and the inability of the court to hear and determine the interim parenting arrangements for X, it was entirely appropriate that the court take a robust approach to raising the issue with the mother’s counsel.
ADDITIONAL GROUND
After the court heard submissions at the hearing on 2 June 2022 in respect of the two grounds that have been identified, the mother’s counsel made submissions in reply to those made by the father’s counsel and the ICL (both of whom opposed the mother’s application that I recuse myself). During the course of those submissions the mother’s counsel added another ground “into the mix”. That ground appeared to relate to the manner in which the hearing on 18 May 2022 had been conducted.
However, unfortunately because of the manner in which that complaint was put to the court, it is impossible to discern what it was about that hearing which is said might lead me to deciding the case other than on its legal or factual merits. So much is clear from the exchange with the mother’s counsel when raising the issue:
MR McQUADE: There is a response to the law. The – and it relates to the allegations that are being made about the failing to raise the issue at the last hearing. Your Honour will recall that that was very much a truncated hearing. And it was clear that your Honour was going to adjourn. And your Honour invited - - -
HER HONOUR: I’m shaking my – I will let you finish, Mr McQuade. But I’m shaking my head because I had intended and always intended to deal with the matter. Yes a truncated hearing, but it was not clear I was always going to adjourn. We got to that point because 20 minutes were consumed over the phone issue, and I indicated that when I ultimately adjourned the matter.
MR McQUADE: But even if those 20 minutes had have not been lost as my friend would have put it, there are four of us that allows an extra five minutes of submissions from each one of us. It was clear that that hearing, given the time of day that it was listed was at 4 pm – listed at 4 pm, your Honour came onto the bench I think at about 4.20, so it was always clear that it was going to be a truncated hearing. And my behaviour - - -
HER HONOUR: What is the submission, truncated or clear I was going to adjourn it? Because they’re two different concepts. It was always going to be a truncated hearing, I acknowledge that, I made that clear.
MR McQUADE: Of course.
HER HONOUR: But what you’re now putting to me is that it was always clear that it would be adjourned. And I cavil with that, Mr McQuade.
MR McQUADE: It was clear that due to the truncated nature of the hearing that your Honour had insufficient time to properly consider the matter in the - - -
HER HONOUR: Can I just respond to that. There was no application for an adjournment of the hearing that you’re in because there was insufficient time to deal with the matter.
MR McQUADE: Well, I fell in with your Honour’s suggestion that it be adjourned to today. I think your Honour wanted to - - -
HER HONOUR: No, Mr McQuade. When the matter started – if there was a concern at your end that the hearing would be so truncated that there wasn’t sufficient time to properly make submissions then an application for an adjournment would have been made, it wasn’t. We got to that point because 20 minutes were consumed over the phone issue.
MR McQUADE: And does your Honour – is your Honour seriously suggesting that absent that 20 minutes your Honour would have had enough time that afternoon to hear submissions of all four counsel and make a decision?
HER HONOUR: Mr McQuade, is this an aspect that grounds the bias application?
MR McQUADE: Well, your Honour - - -
HER HONOUR: Is it another example, the events that when I first called it on are ones that you raise? Conduct today are ones that you raise. Is the last hearing another basis that grounds the bias application or the apprehension of bias application?
MR McQUADE: It could be, that’s for your Honour to find.
HER HONOUR: Well, no, it’s not. No, no, no, it’s not for me to find. As Mr Anderson properly identifies you need to identify the factors, you then need to draw the connection that would lead the lay observer to form a view that I may not decide the case.
MR McQUADE: Well, in that case, we will add it to the mix - - -
HER HONOUR: Okay.
MR McQUADE: - - - that your Honour takes the view today that the adjournment, the truncated hearing was the result of submissions I made for 20 minutes about a telephone call. It was painfully obvious that your Honour did not have sufficient time to hear the matter, and yet your Honour seems to shift blame for that to the mother’s counsel. The other counsel – and I think Mr Fursa certainly had an opportunity to address. Your Honour hasn’t remarked that his submissions were too lengthy, it’s only the mother’s counsel. Only the mother’s counsel. And sure, I accept that the telephone calls will have little bearing on the matter but the point of the application is this, that your Honour accused counsel for the mother of misleading the court. And your Honour did so quite clearly and made the suggestion that I did so because the mother instructed me to.
And, your Honour, we simply say that portrays a view that your Honour is simply not open to any submissions that the mother – that may be made on the mother’s behalf. And we say, coupled with the orders made on the 12th of May your Honour had it in your control on that day to release the report to the parties. Your Honour had it, and it is a fact which doesn’t really need stating that if your Honour had have done that then the child wouldn’t have been with the mother when the report was released. Your Honour chose not to do that. Your Honour chose to close off any option that the mother had to make submissions about the course of action that your Honour was about to take.[13]
[13] See transcript of hearing before Justice Kari on 2 June 2022 at pg 56-58.
CONCLUSION
For all of the reasons that I have discussed in these reasons, I do not consider that there is any basis that I recuse myself from hearing these proceedings.
However, as indicated to the parties at the hearing on 2 June 2022 I am not able to hear and determine the interim parenting arrangements in these proceedings for some considerable time due to a combination of extended personal leave and existing sitting commitments.
My inability to hear the interlocutory parenting arrangements in the short term is something which is of significant concern. I am conscious that at the present moment X is not spending any time with the mother, despite having lived in her primary care until 12 May 2022.
Without holding any views about the appropriate parenting arrangements for X pending trial, it is appropriate that each of the parents and the ICL have the opportunity to agitate those issues, and that the court hear and determine that dispute.
In all of the circumstances it is appropriate that the matter be referred to a Senior Judicial Registrar for determination of the X’s interim parenting arrangements.
For all of the foregoing reasons, I make those orders that appear at the commencement of these reasons.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 28 June 2022
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