Atcheson and Agar
[2017] FCCA 2800
•16 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATCHESON & AGAR | [2017] FCCA 2800 |
| Catchwords: FAMILY LAW – Children – disqualification – actual bias or apprehended bias. |
| Legislation: Family Law Act 1975, Div.12A, ss.69ZN, 69ZQ, 69ZX Evidence Act 1995 |
| Cases cited: Johnson & Johnson [2000] HCA 48 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Multicultural Affairs’ ex parte Jia (2001) 205 CLR 507 |
| Applicant: | MR ATCHESON |
| Respondent: | MS AGAR |
| File Number: | ADC 1775 of 2007 |
| Judgment of: | Judge Kelly |
| Hearing date: | 6 October 2017 |
| Date of Last Submission: | 6 October 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 16 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms V Lindsay |
| Solicitors for the Applicant: | Gallagher & Co |
| The Respondent: | In Person |
| Counsel for the Independent Children's Lawyer: | Ms A Horvat |
| Solicitors for the Independent Children's Lawyer: | Legal Services Commission of SA |
ORDERS
The oral application of the father seeking an order that Judge Kelly disqualify herself from further hearing the matter is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Atcheson & Agar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1775 of 2007
| MR ATCHESON |
Applicant
And
| MS AGAR |
Respondent
REASONS FOR JUDGMENT
Introduction
The father, Mr Atcheson, filed an Initiating Application on 9 February 2015, seeking interim and final parenting orders regarding the parties’ child X, born (omitted) 2002. The mother is contesting the father’s application for primary care. Following extensive interim hearings, the trial commenced before me on 27 March 2017.
The trial has been adjourned part heard on four separate occasions during 2017, for various reasons. Some delays arose as a result of the trial process, but other delays were beyond the Court’s control.
The application now before the Court is the father’s oral application that I disqualify myself, on the basis of apprehended bias, or actual bias. That application was made by the father when the trial resumed on 6 October 2017. The recusal application was ultimately supported by the Independent Children’s Lawyer.
For the reasons that follow, I decline to disqualify myself. I conclude that the transcript of the trial, properly considered, would not cause “a fair-minded lay observer [to] 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 …” [1]
[1] Johnson & Johnson [2000] HCA 48 at para.11
Background
It is useful to provide a brief overview of the current proceedings before the Court and the family dynamics which exist between the parents. The parties’ relationship began in approximately 1995, but was “on again/off again” for some time. The mother’s older child, Mr T, was born on (omitted) 1997, but was removed from her care soon thereafter. This was a very traumatic time for the mother.
The parties married in (omitted) 1997. X was born on (omitted) 2002. They relocated to South Australia when X was a young child. Unfortunately the parties continued to experience conflict within their relationship and finally separated in 2006. To their credit, the parties were able to reach agreement about X’s parenting arrangements after their separation. X lived in his mother’s primary care and spent regular time with his father, who would frequently visit X at the mother’s home. X remained living with Ms Agar until June 2013, when the Department for Families & Communities (F&CS) intervened and placed him in Mr Atcheson’s care.
Both parties have significant mental health issues. The father has been diagnosed with Dissociative Identity Disorder, but has managed his condition without medication or formal treatment for many years now. He also has a number of physical ailments and is presently in receipt of a Disability Support Pension.
The mother has been diagnosed with depression and episodic psychosis. In 2013 Ms Agar was assessed by a psychiatrist, Dr S, who diagnosed her with depression and ‘Axis 11 pathology in B cluster”…” and concluded that “… The intervention … is more in the domain of counselling than psychiatric care.”[2] A different diagnosis was proffered by Dr J, Deputy Director, Medical Services, at the (omitted) Hospital, to the effect that the mother “presented with a paranoid psychotic illness that is pervasive and impairing her judgment.”[3]
[2] Mother’s Affidavit filed 15 June 2015, Annexure “A2”, Psychiatric Report of Dr S, dated 4/9/ 2013, page 2
[3] Father’s trial Affidavit filed 7 March 2017, Annexure “A”, sub-Annexure P, letter from (omitted) Local Health, Dr J dated 27/6/2013
The medical evidence suggests that the mother’s mental health was deteriorating over late 2012 and early 2013. X was in his mother’s primary care during this time and would have been exposed to her erratic behaviour and disorganised thinking. The mother’s mental health continued to deteriorate, culminating in the incident at the (omitted) on 6 June 2013, as discussed below.
A subsequent report from Ms Agar's GP at (omitted) Clinic dated 19 June 2013 noted, inter alia, that:
“… Since October of last year, however, Ms Agar has become more bizarre in her behaviour. She has made allegations regarding medical management with the staff at this Clinic. She was starting to make allegations that were hard to corroborate. The stories became much more difficult to understand and follow. Her thought pattern became disordered … a formal psychiatric diagnosis has not been made at this time. …”[4]
[4] Supra, Annexure “A”, sub-Annexure Q, letter from Dr E, (omitted) Clinic dated 19/6/ 2013
X also suffers with a number of disabilities. He has been diagnosed on the Autism Spectrum Disorder and has severe developmental delays. X has limited communication skills and now attends high school at the (omitted) Special School.
THE INCIDENT ON 6 JUNE 2013
The mother and X had travelled to Adelaide for a medical appointment. They missed the last bus back to (omitted) and were staying overnight at the (omitted), where they had stayed before. A fire broke out at the hotel but the mother did not respond to the fire alarm. Police were in attendance but the mother refused to open the door, requiring the police to break into the room and forcibly remove X and the mother from the premises. The mother’s action placed X – and herself – at serious risk of harm.
In the course of trying to escort X and the mother to safety, the mother apparently assaulted police, which led to her being detained under the Mental Health Act. X was placed in Mr Atcheson’s care by F&CS, who commenced proceedings in the Youth Court on 7 June 2013.
The Youth Court records indicate that the mother discharged herself from (omitted) Clinic on 19 June 2013. She continued to struggle with her mental health and was non-compliant with her medication.[5] X was placed under a twelve month Guardianship of the Minister order and remained living in the father’s care.
[5] Supra, Annexure A, sub-Annexure E, CPS Report re X dated 5/8/2013 at p.18 of 21
Upon the Youth Court order ceasing in 2014, Mr Atcheson continued to facilitate supervised time between X and the mother. He and X would occasionally stay overnight at Ms Agar’s home, so that X could spend extended time with his mother.[6]
[6] Supra, para 67
These proceedings
The father’s Initiating Application first came before this Court on 28 April 2015, when interim orders were made by consent that X would live with the father and spend time with Ms Agar on at least one occasion each weekend, at times and conditions as may be agreed between the parties. The mother was restrained from attending at X’s school. Over the following months, the mother continued to spend limited supervised time with X, generally supervised by the father.
The orders were continued until further order on 28 October 2015. The Court ordered that X spend supervised time with his mother at a Children’s Contact Service (CCS) and ordered the mother to endeavour to file an update medical report or mental health report, to address her capacity to instruct solicitors. The proceedings were then adjourned until 11 April 2016, to allow for the CCS visits to conclude.
The mother obtained a psychiatric report from Dr M dated 11 February 2016[7]. Dr M diagnosed the mother as suffering from “a delusional disorder (persecutory type)” and noted she had a number of “unhelpful personality traits”.[8] He noted that Ms Agar continued to exhibit paranoid thoughts and concluded that “…these would compromise her ability to adequately parent her sons (sic) and I would recommend that her access be supervised. ...”[9]
[7] Mother’s Affidavit filed 30.3.16, Annexure “A” Report of Dr M dated 11/2/2016
[8] Ibid, at page 16
[9] Ibid, at page 19
On 11 April 2016, the Court ordered that a family report be prepared. At that point it appeared communication between the parties was reasonably polite and the mother was visiting X regularly at the father’s home.
Unfortunately, the mother’s mental health again deteriorated. In April 2016 she began behaving in an erratic and dysregulated manner, abusing the father, threatening him, and threatening to take X from him. On 7 May 2016 the mother visited X at the father’s home but she became aggressive and Mr Atcheson insisted that she leave. On 14 May 2016 the mother assaulted the father as she tried to remove X from his care. X was acutely distressed by this incident. The mother was charged with assault and again detained under the Mental Health Act. Understandably, the father was no longer willing to act as supervisor and filed an interim Application to suspend X’s time with his mother.
On 6 September 2016 the Court suspended X’s time with Ms Agar, in light of her recent violent behaviour and hospitalisation. It was clear that the parenting dispute was unlikely to resolve and accordingly the matter was listed for a three day trial, commencing 27 March 2017. The Court then made a range of orders including the following trial directions:
5.Upon the mental health records for each party becoming available, the Independent Children’s Lawyer do all things necessary to arrange a psychiatric evaluation of each of the parties by a psychiatrist to be nominated by the Independent Children’s Lawyer.
6.The psychiatric evaluation to be completed by 16 December 2016.”
The mother filed an Application in a Case on 12 December 2016 seeking that X either live with her, or live half time with both parents. In the alternative she sought supervised time with X, and offered an independent supervisor from the Salvation Army, Ms C. At that point the mother had not spent any time with X since May 2016.
The father conceded that independent supervision would ensure X’s physical and emotional safety was protected. Accordingly on 30 January 2017, orders were made by consent that the mother resume spending time with X each Wednesday for approximately two hours, to be supervised by Ms C, or such other Salvation Army worker as may be available to assist, and at such other times as may be agreed between the parties.
The Independent Children’s Lawyer instructed Dr M to undertake a psychiatric examination of both parties, but the mother declined to meet with Dr M. She argued that Dr M had misrepresented her interview during his earlier assessment and she had since put in a complaint about him to the relevant professional body. Ms Agar set out her concerns in a letter forwarded to Mr G of the Legal Services Commission on 21 February 2017, but also advised that she was prepared to meet with a different psychiatrist.[10] That option was not taken up by the Independent Children’s Lawyer and as a result there was no updated psychiatric evaluation of the mother when the trial commenced.[11]
[10] Affidavit of (omitted) sworn 16 March 2017, Annexure D
[11] The Court is not intending this comment as a criticism the Independent Children’s Lawyer.
THE TRIAL
The trial commenced on 27 March 2017. It soon became clear the hearing would not conclude in three days and a further sitting day was allocated on Friday 31 March 2017. Cross examination of the mother commenced on Wednesday 29 March and following an exchange between the Bench and the Bar table late in the day, she became distressed and left the Court. In the confusion, Mr Atcheson did not realise the trial was still to resume on 31 March and did not attend Court on that day. I will discuss the hearing on 29 March 2017 in more detail elsewhere in these Reasons.
While the trial could not proceed on 31 March 2017, the Court made further trial directions as follows:
1.This matter is designated as a complex hearing.
2.The mother obtain a report from her treating General Practitioner Dr J in relation to:
a)the mother’s mental health diagnoses;
b)any proposed medication for the mother including past prescribed medication from January 2016 to the present time; and
c)the Doctor’s assessment of the mother’s compliance with her treatment regime and medication regime.
3.The mother file such report within 28 days.
4.The Independent Children’s Lawyer issue subpoena to the (omitted) Surgery at (omitted).
5.Liberty to the Independent Children’s Lawyer to issue further subpoena.
6.The Independent Children’s Lawyer arrange a further psychiatric evaluation of the mother to be undertaken by Dr B or such other psychiatrist as may be nominated (excluding Dr M), with such assessment report to become available within 28 days if possible.
7.The Independent Children’s Lawyer provide copies of all relevant Court documentation to Dr B (or such other psychiatrist as may be nominated) including any relevant subpoena material.
8.The mother continue to spend time with X in accordance with the orders of 30 January 2017.”
The trial was then adjourned to 24 May 2017, but was again unable to proceed on that date. Dr B had not completed his psychiatric assessment of the mother and the hearing was adjourned.
The trial finally resumed on 30 August and the mother continued in cross-examination. Dr B’s report was available, but he had not been called to give evidence. The mother sought to cross-examine Dr B and the Court ultimately concluded that his report warranted further investigation through cross-examination. Accordingly the trial was again adjourned to 29 September 2017, when it was anticipated that the evidence would conclude and closing submissions would be presented.
Dr B attended for cross examination on 29 September 2017. Various other concerns and delays arose across that day, which will be discussed elsewhere in these Reasons. Once again the trial could not be concluded and was adjourned to 6 October 2017. Upon the trial resuming on 6 October, Ms Lindsay made an oral application for me to disqualify myself on the grounds of apprehended bias and/or actual bias.
In order to properly determine this application it is necessary to examine events that have occurred during the hearing, particularly during the hearing days on 29 March, 30 August and 29 September. Where appropriate, I will quote from, or refer to transcript from the relevant date. The transcript of each day’s hearing has been made available to the parties and relevant portions are attached to these Reasons.
The father’s application that I disqualify myself
Having made an oral application that I disqualify myself, Ms Lindsay sought an adjournment, to fully consider the relevant transcript and properly prepare her argument. I declined to grant the adjournment. It was clear on 29 September that Ms Lindsay was unhappy with my conduct as the trial judge. It was equally clear from her submissions during that day that Ms Lindsay had kept detailed notes across the trial, as would be expected. While the relevant transcript only became available across the intervening week, I was satisfied that counsel had sufficient opportunity over the intervening week to prepare her submissions, based on her notes, even if transcript was not yet available.
Ms Lindsay argues that I have fallen into error in my conduct during the hearing. She contends that I have demonstrated either actual or apprehended bias, in my demeanour and in my comments and directions from the Bench. She argues that my conduct towards her, particularly on 30 August and 29 September 2017, amounts to actual bias towards her client, because I have unfairly interfered with her presentation of the father’s case and he has suffered prejudice as a result.
From Ms Lindsay’s perspective, I was interrupting her, cutting her off during cross examination and not allowing her to make proper submissions. Her concerns about the trial process were compounded by comments made by me on 30 August and 29 September, indicating that I did not recall, or was disregarding earlier evidence, such as the mother’s evidence about the hotel fire in 2013 and evidence about the father’s parenting capacity.
Ms Lindsay says, and Ms Horvat agrees, that at the conclusion of the hearing on 29 March 2017, the Court gave a clear intimation that X’s primary living arrangements had already been decided and that he would remain living with his father. On that basis, Ms Lindsay then limited her cross examination of the mother and constructed the remainder of her client’s case on the understanding that the only issue now before the Court was whether X’s very limited supervised time (two hours per week) should progress to unsupervised time, or be increased slightly.
RELEVANT LEGAL PRINCIPLES
The judicial oath or affirmation taken by every judicial officer in this country requires that they “…will do right to all manner of people, according to law without fear or favour, affection or ill will.” The qualities of independence and impartiality are essential to the rule of law in our society. Any suggestion that a judge has departed from her oath of office must be considered seriously and objectively. It is not an application that counsel raise lightly.
In Kioa v West (1985) 159 CLR 550, Brennan J said:
The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository if a statutory power according to the circumstances in which the repository is to exercise the power.[12]
Fundamental to the judicial obligation to “… do right to all manner of people, according to law…” is the requirement that a judge must consider the evidence and submissions presented by each party, before coming to a decision.
[12] Kioa v West (1985) 159 CLR 550 at p 612
The test regarding actual bias is succinctly summarised by Gleeson CJ and Gummow J in Re Minister for Immigration and Multicultural Affairs’ ex parte Jia (2001) 205 CLR 507 at para 72 as follows:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. This preliminary argument should be rejected. [13]
[13] Re Minister for Immigration and Multicultural Affairs’ ex parte Jia (2001) 205 CLR 507 at para 72
In the earlier High Court decision of Allesch v Maunz [2000] HCA 40, Kirby J said :
It is a principle of natural justice that a decision-maker, at least one exercising public power, must ordinarily afford a person affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”.[14]
[14] Allesch v Maunz [2000] HCA 40 at para 35
In cases such as Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 and Johnson & Johnson [2000] HCA 48 the High Court address the principles that apply in considering a claim of apprehended bias. The majority in Johnson v Johnson (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said (citations excluded): [15]
…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 Vakuata 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.
[15] Johnson & Johnson [2000] HCA 48 @ para 13
Justice Kirby was in the minority in Johnson v Johnson, but his analysis of the law on apprehended bias is widely accepted. His Honour describes the three interrelated reasons that explain the approach to apprehended bias established by the High Court. He said that:
“Fundamental rule of justice. The first involves the ultimate foundation for the rule that an adjudicator must be free of actual or apprehended bias.”
Justice Kirby goes on:
“Appearance of Justice: … the importance attached by the law not only to the actuality of justice (that is, whether the adjudicator had, in fact, prejudged issues in the case) but also the appearance of impartiality both to the parties and to the community … ” (my emphasis)
… …
“Applying realistic criteria: The third consideration grows out of the first two. However, it also derives from the changes that have occurred in society since the earlier rules were expressed in terms requiring proof of “a high probability"” of bias before an adjudicator was disqualified on the basis of prejudgment.”
Having identified the fundamental requirement that a judicial offer must be free from actual or apprehended bias, Kirby J then affirms the need for caution, as identified by earlier High Court decisions such as Re JRL; ex parte CJL (1986) 161 CLR 342.
The High Court’s decision in Re JRL; ex parte CJL was also relied upon by the Full Court in Strahan & Strahan (Disqualification) (2009) FLC 93-414, quoting from Mason J (as he then was):
…Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.[16]
[16] Re JRL; ex parte CJL (1986) 161 CLR 342, p 352
In Ebner v Official Trustee in Bankruptcy, the High Court said:
“3. Fundamental to the common law system of the adversarial trial is that it is conducted by an independent and impartial tribunal. ---
6. …Where in the absence of any suggestion of actual bias, a question arises as to the independence or the impartiality of the judge … the governing principle is that, subject to certain qualifications, 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 that 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. ---
8. The 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. ”[17]
[17] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, paras 3-8
These statements of the law have been applied by the Full Court of the Family Court, in decisions such as Batey-Elton & Elton (2010) 43 Fam LR 62 and Green & Knowles [2010] FamCAFC 248.
Ms Lindsay also acknowledged that the principles for conducting child-related proceedings set out in Division 12A of the Family Law Act 1975 are broad-reaching and include an obligation that “the Court is to actively direct, control and manage the conduct of the proceedings.”[18]
[18] Family Law Act 1975, s.69ZN(4)
By way of example, s.69ZQ(1)(a) directs the Court to:
(a)decide which of the issues in the proceedings require full and investigation or hearing and which may be disposed of summarily;
(b) Decide the order in which the issues are to be decided; and
(c) give directions or make orders about the timing of steps that are to be taken in the proceedings.
Section 69ZX(2) says the Court may give directions or make orders, about the giving of evidence including, inter alia:
(g)that evidence in relation to a particular matter not be presented by a party; or
(h) that evidence of a particular kind not be presented by a party; or
(i) limiting, or not allowing, cross examination of a particular witness.”
Division 12A acknowledges the particular nuances that surround parenting disputes and expresses a clear legislative intent to ensure the Court receives all potentially relevant evidence, even if that evidence may otherwise be inadmissible pursuant to the Evidence Act 1995. The principles espoused in Division 12A are a legislative mandate akin to the view expressed by the High Court in Johnson v Johnson, that “…modern judges, responding to a need for more active case management, [may] intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain … as inscrutable as the Sphinx.”[19]
[19] Johnson v Johnson, supra at
DISCUSSION
Ms Lindsay argued that the comments made by me on 29 March indicated that the Court had pre-judged the issue of X’s long term parenting arrangements before the trial was concluded, or appeared to have pre-judged the issue. In so doing she contends that I have demonstrated bias or apprehended bias, and should disqualify myself. Both Ms Lindsay and Ms Horvat correctly pointed out that it was the mother who was potentially prejudiced by my comments on 29 March, given I expressed a preliminary view that was contrary to her position. They also submitted, again quite correctly, that Ms Agar’s failure to raise any objection at that time is no bar to her raising the issue now, given that she is self-represented.
I agree with their submissions, to that limited extent, but I reject the argument that my comments on 29 March 2017 indicate I had pre-judged, or pre-determined any issues on a final basis.
The relevant transcript from 29 March is annexed to this judgment,[20] but the exchange between the Bench, the mother and Ms Lindsay on 29 March 2017 can be summarised as follows:
·The hearing was to be adjourned to Friday morning. The Court indicated to Ms Lindsay that extensive cross examination of the mother would not be necessary and that she should focus on more recent events, on the basis that “…the reality is that X has been in the father’s care for a number of years now, and it will take a lot to convince me to change that”.[21]
·Ms Lindsay clarified that the father was prepared to consider X commencing unsupervised time with the mother, provided that he could be reassured that she was “doing well and taking medication as she should”.[22]
·Ms Lindsay acknowledged that the mother resents the father ‘controlling’ the mother’s time with X and suggested that a neutral method to address the mother’s compliance with her medication regime may resolve that difficulty. The Court then raised with Ms Agar the possibility that she authorise her doctor to notify the father, in the event the mother stopped taking her medication.
·The mother found this exchange very distressing and responded by saying that she won’t bother coming back on Friday, saying “…there is not much point in me going on, if you have already made up your mind.” The Court responded to the mother as follows:
“Well, I’ve certainly heard a lot of the evidence and the evidence that I’ve heard gets me to the point of thinking that X will be best placed staying in his father’s care. But there is an issue about his time with you and how that happens, and his capacity to maintain a relationship with you, because it’s also clear to me that X’s relationship with you is very important. So I would urge you to come back on Friday, so that I can try to make some decisions about how X’s relationship with you will continue going forward.”[23]
The mother became extremely distraught, accused the father of cutting her out of X’s life and left the courtroom. As the transcript indicates, everyone present was concerned for Ms Agar’s emotional welfare. Ms Lindsay offered what assistance she could; the Court tried to arrange for a family consultant to attend with the mother and Ms Horvat endeavoured to contact the mother’s support worker, Ms H.
[20] Annexure “A” excerpt of transcript from 29 March 2017
[21] Ibid, page 14
[22] Ibid
[23] Annexure “A” Ibid, page 16
In hindsight, the Court could have been more sensitive to the mother’s state of mind. The exchange occurred at the end of a long and emotionally arduous day in the courtroom. The mother had cross-examined the father directly on highly personal and distressing topics before entering the witness box to commence her own cross-examination, on equally sensitive topics. I concede that I did not expect the mother would react with such distress, bearing in mind X had been living with his father since 2013.
Leaving the mother’s distress to one side, the comments made by me on 29 March are no more than the Bench giving an intimation to the parties of my view that, based on the evidence up to that point in the hearing, there was no basis to change X’s primary care arrangements. I consider such commentary from the Bench is safely within the bounds of proper trial management by the Judge, as anticipated by Division 12A of the Family Law Act.
The comments were made during a part heard trial, after three days of evidence. The Court had heard evidence from the mother’s supporting witnesses – Ms C, Ms H and Mr S. The report writer, Ms R, and Dr M had been cross-examined and the mother had challenged their evidence to some effect during that process. The father had been cross-examined at length, whereas cross-examination of the mother had only just commenced.
The Court was well placed to make some preliminary comments, in an effort to focus the parties’ minds upon resolving their dispute about X’s parenting arrangements. That is one of the trial Judge’s obligations pursuant to Division 12A; to actively manage the trial and to minimise the impact that an ongoing adversarial trial would have upon X’s future parenting arrangements.
The transcript clearly shows that the Court expressed a view, based on the evidence up to that point. To paraphrase the High Court in Johnston & Johnston, I expressed my tentative thoughts, but that does not indicate that I had pre-judged the matter. Rather I concluded that the parties may be assisted by hearing my preliminary views and have the opportunity to respond to them, as anticipated by the High Court.[24]
[24] Johnson & Johnson supra; Vakuata (1988) 13 NSWLR 502; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12
To the extent that Ms Lindsay and Ms Horvat now submit the comments made by me indicated that X’s primary care arrangements had already been decided on 29 March, they are wrong. To reiterate, I simply indicated to the parties that my preliminary view was that “… the evidence I had heard gets me to the point of thinking X will be best placed staying in his father’s care. ...” Implicitly, such preliminary views, however expressed, may be affected by the Court hearing further evidence, as subsequently occurred in this trial.
The trial then resumed on 30 August and Ms Lindsay was finally able to conclude her cross-examination of the mother. The Court expressed surprise that Dr B had not been booked to give evidence on 30 August 2017 but was informed that he was unavailable on that date in any event. As the trial progressed, Ms Lindsay began to express concern at the Court’s focus on Dr B’s report. Neither she or Ms Horvat anticipated that the Court may place significant weight upon Dr B’s report when, from their perspective, he did no more than confirm Dr M’s earlier assessment of the mother’s psychiatric diagnosis.
Ms Lindsay was particularly concerned, arguing that the Court had apparently not even read the report, to be placing such weight upon it. This is incorrect. The transcript from 30 August 2017 shows the following exchange occurred early in the day (edited for ease of reading):
Her Honour: So we have not had any evidence from Dr B?
Ms Horvat: Well, no, your Honour. ---Her Honour: He’s the new person who has come in and done a new report? --- all right --- Which is an interesting report, I thought. I thought it was an interesting report.
---That’s all I will say at the moment. Don’t worry Ms Lindsay.
Ms Horvat:Thankyou your Honour. It confirms the previous psychiatric assessments your Honour, that the mother suffers from --- a mental illness. ---
Her Honour: Well, I think, and I’ve only scanned Dr B’s report very briefly, but what I found – what I thought I was taking from the report – but again, I haven’t read it in great detail --- what I read in it was that the mother has continued to engage in appropriate support, according to her report to Dr B, in any event. ---
Insofar as Ms Lindsay argued on 29 September and again on 6 October that the Court “had not read Dr B’s report prior to the hearing on 30 August”, that is clearly inaccurate. I had briefly scanned his report, sufficient to raise some preliminary thoughts with the Bar table, before the evidence re-commenced.
It is clear that the Bench was reading Dr B’s psychiatric assessment of Ms Agar with a different emphasis from that of Ms Lindsay and Ms Horvat. With respect, it is only proper that the Bench indicate this to the parties, to enable the parties to properly present their case and to have an opportunity to challenge Dr B’s report, or the Court’s preliminary interpretation of his report.
DR B’s EVIDENCE ON 29 SEPTEMBER
Dr B attended to give evidence on 29 September and was called as the Court’s witness. He confirmed that his report properly described the mother’s diagnosis, based on his clinical assessment. He further confirmed that he had provided a brief addendum report and had written a letter to the mother, in response to a query raised by her.
In the course of cross-examination by Ms Horvat, Dr B agreed that the mother was psychologically vulnerable and that she was likely to decompensate (in the diagnostic meaning of that word) when confronted with challenging events or circumstances in her life. He commented that the mother presented with a limited range of reactive responses to any challenges in her life and that she was likely to be quick to anger or quick to distress if she was feeling threatened by any particular situation.
Dr B referred to previous psychiatrists who diagnose the mother as having “cluster B personality pathology”, or “Paranoid Personality Disorder”. Dr M diagnoses of the mother as exhibiting “mixed personality disorder”, meaning she exhibits traits of different personality disorders at different times, such as dependent, paranoid, etc. [25]
[25] Affidavit of (omitted) filed 15 June 2017, Annexure “C”, Psychiatric Report by Dr B, 12/6/17, p4, referring to earlier psychiatric reports by Dr S, dated 4.9.2013 and Dr M dated 11.2.16
Dr B agreed that the mother’s capacity to cope was highly dependent upon her compliance with any medication or treatment regime. He further agreed that Ms Agar was heavily reliant upon the various support services she has contact with, but commented that if the mother was maintaining contact with her support services and was compliant with her medication, then she is likely to cope with her day to day life relatively well. Dr B agreed that in those circumstances the mother would be safe to provide unsupervised and overnight care for X.[26]
[26] Annexure “B” Transcript 29 September 2017, p 12
Dr B noted that the mother has been able to access wide ranging support services, which was a positive sign. However, he cautioned that Ms Agar demonstrates very ‘black and white’ thinking, especially when she is challenged or confronted by a difficult situation. For example, if she felt that an agency or worker was not supportive, then she may dis-engage from that agency, even though they were providing her with appropriate, helpful support.[27]
[27] Annexure “B” Transcript 29 September 2017, p11
Dr B agreed that if the mother’s mental health deteriorated, whether due to a life crisis or through stopping medication, then her ability to care for X would be severely compromised. Dr B concluded by saying (edited for ease of reading):
“… there’s an aspect of looking after a child that includes not only the … basic provisions of safety and food and shelter, but also the emotionally stable environment, ability to reflect the child’s emotions, to … have a sort of empathy and an understanding of the child, and I think that’s an assessment that needs to be undertaken through observation of mother and child, and is probably more properly the domain of a parenting assessment.”[28]
[28] Annexure “B” Transcript 29 September 2017, p.12 (edited for ease of reading)
Surprisingly, Counsel for the father put only three questions to Dr B, confirming that the mother’s support worker Ms W remained present with the mother during her interview with Dr B.
Ms Agar then commenced her cross-examination. She asked Dr B to comment on her recent prescription of Respiridone (1 mg as required) and in particular the side effects when compared to a prescribed dose of 6 mgs, which had been prescribed for her in 2016. Dr B answered her questions carefully and noted that the higher dose may cause blood pressure changes in some people.
The Court then asked Dr B if he could comment upon his earlier psychiatric examination of the father, which was conducted within the Youth Court proceedings in 2013.[29] The Court queried whether there was any medication that might usually be prescribed for someone with Mr Atcheson’s diagnosis.
[29] Father’s trial affidavit filed 6/3/17, Annexure “A”, Affidavit of Ms J filed in the Youth Court, sub-annexure “H” Psychiatric Report of the father dated 27/6/13
Ms Lindsay objected, pointing out that the father suffers from other physical ailments, in addition to his psychiatric diagnosis. I did not precisely understand the basis of her objection, but in any event I informed Counsel that they could both seek to re-open their cross examination of Dr B, if they sought to do so. In any event, the Court then noted the final paragraph in Dr B’s 2013 report regarding Mr Atcheson which says “In general terms I don’t believe that any specific intervention of a psychiatric or psychological nature is required for Mr Atcheson”.[30] Dr B confirmed that was still likely to be the case.
[30] Ibid at page 2 of Dr B’s report
CONFLICT BETWEEN THE BAR TABLE & THE BENCH
The transcript for the hearing on 29 September 2017 and an extract of transcript from 29 March 2017 has been made available to the parties. Relevant pages from those hearing dates, and the hearing on 30 August 2017 are annexed to this judgment. I acknowledge that the transcript indicates an unfortunate level of conflict between the Bench and the Bar table at times, particularly with Counsel for the father.
Ms Lindsay argued that the Court continually interrupted her in the presentation of her client’s case. The transcript confirms that during her cross-examination of the mother on 30 August 2017, I was routinely clarifying issues with Ms Lindsay, for example, to ensure I was referring to the correct document, asking her to pause while I located the relevant affidavit, or ensuring that I had understood the mother’s response.[31]
[31] Annexure “C” Transcript of 30 August 2017, for example see pages 9, 11, 13, 15, 17-19
This trial has had a vast amount of documentary evidence by way of reports, hospital records, GP notes, F&CS records. Some documents were tendered as exhibits, many were annexed to Affidavits. Counsel obviously know what documents they are about to refer to and have the material to hand, whereas on occasions the Bench may need to first locate the relevant report, or Affidavit and then the relevant page or entry.
On occasions I clarified or queried Ms Lindsay’s questions, as the Court is entitled to do, when appropriate.[32] On occasions I interrupted her cross-examination with my own questions to the witness. The Bench was equally ‘engaged’ during Ms Horvat’s cross-examination of the mother.
[32] Ibid, for examples see pages 8,20
I appreciate it is frustrating for Counsel when the Bench intervenes in this way; even more so when the Bench directs that cross-examination be confined in some way. The Court’s interruptions can disrupt the flow of their cross-examination. Counsel may lose focus, or feel the Court is unfairly interventionist. But these are the challenges that a barrister faces in modern trials, particularly in a family law parenting dispute. The Court is entitled to direct Counsel to move onto their next topic if the cross-examination is not providing evidence that is assisting the decision-making process.
When the mother’s cross-examination concluded on 30 August, a discussion followed. Counsel correctly identified that the Court was placing more significance upon Dr B’s evidence than they had anticipated. The Court agreed, saying:
…I think Dr B’s report does change the situation. Whether it changes it to the mother’s proposal, which is “X back to me” – I have to say that’s not an option that I’m considering as viable. X in some sort of shared care – it’s a potential. I say “only a potential”, Ms Lindsay, Ms Horvat. Again, I’m not pre-judging any of these matters, but ---[33]
[33] Annexure “C” Transcript 30.8.17 at page 79
Ms Lindsay then argued that the Court’s comments in March were “…very influential – in terms of guiding – for example – the choice of documents that were provided to Dr B.”[34] Ms Horvat suggested that there was a Court order about what documents Dr B should receive, but with respect, the Court order from 31 March 2017 simply directed that the Independent Children’s Lawyer provide Dr B with all relevant Court documents, including any relevant subpoena material. The Independent Children’s Lawyer appears to have taken a very narrow interpretation of what might be relevant for Dr B’s purposes, but that is not the Court’s responsibility.
[34] Ibid
In the course of this exchange both Counsel, particularly Ms Lindsay, were talking over the Bench, to the extent that I asked not to be interrupted at one point.[35] Ms Lindsay was clearly alarmed by the direction the discussion was taking, particularly when I commented that the father’s mental health may affect his parenting capacity, referring to his evidence about aspects of X’s daily care. The Court then added a clear caveat by acknowledging that I had not read through my notes of this earlier evidence.[36] As the discussion continued I expressed my disapproval at Ms Lindsay’s demeanour, saying “…Ms Lindsay please don’t make eyes at me…” [37] (by which the Court meant “please don’t roll your eyes at me”).
[35] Annexure “C” Ibid, at page 80
[36] Ibid, at page 83
[37] Ibid, at page 81
The transcript from 30 August 2017 records a robust exchange between the Bench and Bar table, as I endeavoured to provide direction regarding the future conduct of the trial and the evidence that was likely to assist me in the decision making process. But nowhere does the transcript from 30 August support the contention that the Bench behaved inappropriately during the hearing, nor that I demonstrated bias towards one party or the other.
The transcript from the resumption of the trial on 29 September 2017 is more concerning. It is only by listening to the audio recordings that the level of frustration felt by both Ms Lindsay and myself can be appreciated. Ms Lindsay raised numerous objections during the mother’s cross-examination of Dr B across the morning, as set out in the attached transcript.[38] It was the Court’s view that the mother, as a self-represented litigant, was entitled to put her questions to Dr B regarding the father’s alleged behaviour.
[38] Annexure “B”, Transcript 29 September 2017, pages 25 - 32
Whether Dr B could provide any answers that would assist the Court is questionable, but the Court made it clear to Ms Lindsay that she could seek leave to re-open her cross-examination if she chose, or to address the relevance and weight of his evidence in her closing submissions. Ms Lindsay did not avail herself of the opportunity to further cross-examine Dr B and he was then released from the witness box.
It was at this point on 29 September 2017 that the courtroom dynamic deteriorated, as the annexed transcript indicates.[39] What followed was a disrespectful and unseemly exchange between Bar table and the Bench, with fault on both sides. Ms Lindsay felt the Bench was unfairly interrupting her and constraining her client’s case. She expressed her frustration by interrupting me and talking over me, going so far as to remind the Court that ‘It’s a trial, your honour”.[40] I became increasingly irritated by her conduct and eventually spoke intemperately to Ms Lindsay.[41]
[39] Annexure “B”, Transcript, supra, pages 32 - 40
[40] Annexure “B”, Transcript, supra, page 34
[41] Annexure “B”, Transcript, supra, pages 32 - 38
In the course of this exchange, the Court acknowledged that Ms Lindsay was entitled to make an application to re-open her client’s case, and invited her to do so after the lunch adjournment. However, my concerns about her conduct were such that I took the unusual step of directing Ms Lindsay and Ms Horvat to remain in the courtroom, in the absence of both parties, notwithstanding the mother was self-represented.
It had been the Court’s intention to apologise to Ms Lindsay but also to express my displeasure regarding her behaviour of repeated interruptions and talking over the Bench. I was increasingly annoyed by what I experienced as a frustrating pattern of non-responsive replies to queries I raised. It was my intention to raise these concerns “in camera”, rather than embarrass Ms Lindsay in the presence of her client.
My view at that point was that Ms Lindsay had forgotten the basics of courtroom etiquette. Once the parties had left the courtroom, the following exchange occurred (verbatim):
Her Honour : Please – Ms Lindsay I was about to apologise for my demeanour.
Ms Lindsay: Your Honour, I - - -
Her Honour: Please don’t talk over me when I am talking. It’s really rude. It’s really inappropriate. You know that. You know that even if I am behaving badly and I accept that I just have, you don’t get to talk over me. You wait until I’ve finished. You know that that’s the way a courtroom operates. So I accept that you are very frustrated with my demeanour and my behaviour in this trial, and that you are concerned that this trial is about to become a mistrial and that my intervention is not only denying your client a fair trial, but eventually effectively leading to a total perversion of a just and equitable process for both parties. I understand that your concern is at that level. I hear that. And I am asking you to return at 2.15pm and make your submissions on that topic at that time.
I asked you and Ms Horvat to remain because I acknowledge that my behaviour has been inappropriate and unprofessional and I wanted to apologise in person to you, in the absence of the parties for that. But frankly, I almost don’t want to apologise now because then you started talking over the top of me again, Ms Lindsay, and that’s not appropriate. So. Can we leave it there? We will resume at 2.15pm. Leaving aside whether you have convinced me that actually the only way to proceed is for your client to be able to open his case, are there any other witnesses? That’s really the only question that I am trying to get answered.
Ms Horvat: I think the answer, your Honour, with respect to what Ms Lindsay has been trying to tell your Honour, is that it depends upon the ---
Her Honour: Yes. But if I don’t allow her ---
Her Honour: That’s right.
Ms Horvat: --- That we need to either recall witnesses ---
Her Honour: And I am not at all convinced of that, but Ms Lindsay hasn’t had a chance to argue that point.
Ms Horvat: That’s right.
Her Honour: And she needs that opportunity. The Independent Children’s Lawyer may well have concerns about that.
Ms Horvat: Yes. Yes.
Her Honour: So Ms Lindsay again, I just want anyone to tell me whether, subject to anything else that I am convinced to do today, had we actually finished all the planned witnesses up to this point? That was the only question I was trying to get answered.
Ms Lindsay: Could I Your Honour ---
Her Honour: No, you can’t now because I have got to deal with the other matter Ms Lindsay. And we will resume at 2.15 when I am feeling a little calmer, when I have had some lunch, and I will allow you then to make your objections.
Ms Lindsay: Your Honour, thank you.[42]
[42] Annexure “B” Transcript 29 September 2017, p.38-40
The trial resumed at 2.36pm. The Court commenced the hearing as follows:
Her Honour: “I feel it’s incumbent upon me to apologise to Counsel at the Bar table for my conduct towards the end of the hearing before lunch. Barristers shouldn’t have to put up with Judges bellowing at them or bickering with them. So I apologise to you, Ms Lindsay, your client and also to Ms Horvat and Ms Agar, because they didn’t have to see Judges behaving like this, either. Ms Lindsay you have an application you wanted to make and I am happy to hear that application now.”[43]
[43] Transcript (supra), p.41
Having invited Ms Lindsay to commence her submissions, I again interrupted her to enquire whether Counsel were prepared to accept Ms Agar’s statements from the Bar table about her recent medication change, or whether it would be necessary for the mother to be re-sworn.
Ms Lindsay responded as follows: (edited for ease of reading)
“Your Honour, … that depends. It’s not – I am not trying to be anything but helpful, Your Honour, but to say it’s very difficult in this matter, understanding Your Honour’s entitlement in a Division 12A case, to take evidence as Your Honour sees fit, without looking at the history of this matter somewhat to know what is even in evidence before Your Honour for consideration and what is not, and what has been the subject of cross examination and what has not. Your Honour, in terms of making a formal application Your Honour identified on transcript before lunch the nature of the position I would put in respect of procedural fairness and natural justice requirements in favour of the father’s case, and I would invite Your Honour in your judgment in this matter to appropriately direct yourself in respect of those applications, if (sic) they had been formally made.
Your Honour in respect of Ms Agar, I would invite Your Honour to make of that evidence what Your Honour sees fit because, with respect, Your Honour, I can’t comprehend at this point what the case is presented by Ms Agar in terms of what has become evidence and that which is part of the interchange between the Bar and a self-represented person and the Bench, and, with respect, Your Honour, I go back to, for example, submissions about there’s an Order dated 31 March…”
…
Your Honour will note that what happened was after the conduct (sic) of the trial on Wednesday 29 March 2017, in circumstances where Your Honour said there was work which could be done during any adjourned period, you advised the mother at present at that time there was no plausible basis before the court which would suggest that there be a disruption to the principal care arrangements for X. “What was on the table” your Honour said was “whether or not the mother could spend time with the child on an unsupervised basis”. … if the mother was able to confirm that she was compliant with all appropriate medication requirements … it may be that your Honour would take the view that the mother could spend time with the child on an unsupervised basis.”[44]
[44] Annexure “B” Transcript (supra), p.42
With respect, it was a simple question, requiring a simple “yes or no” answer. It would have been more helpful for Ms Lindsay to have answered the question and then seek an opportunity to make further explanatory submissions, if needed. Ms Lindsay may have been uncertain about the mother’s case and “what has become evidence or is interchange between the Bar and a self-represented person”, but the Bench did not share her confusion.
No-one had access to the transcript of 29 March 2017 at this point. That transcript is now available and has been discussed elsewhere in these Reasons. I certainly conveyed my preliminary view that X may “…be best placed staying in his father’s care…”. The Court then discussed with Ms Agar possible mechanisms for the father to be notified, in the event she stopped taking her medication. This discussion arose in the context of Ms Lindsay’s submission about removing the requirement for supervision,[45] which may have lead Counsel to assume (wrongly) that the Court’s future considerations were now limited to determining whether the mother’s limited time with X should become unsupervised .
[45] Annexure “A” Transcript 29 March 2017, at page 14
However, to argue that the Court expressed, or even implied, a preliminary view that this was the only issue “still on the table” is misguided. It is not supported by a plain reading of the transcript.
Ms Lindsay referred to the aborted hearing on 31 March 2017, when the father did not attend. The Court raised the option of a telephone link, in an effort to avoid losing a day’s allocated hearing time. Both Ms Lindsay and Ms Horvat were opposed to that course and, having heard their submissions, I agreed that it may put the father at a disadvantage and granted an adjournment.[46]
[46] Annexure “B” Transcript 29 September 2017, p.42,43
I cannot see how this can be interpreted as the Court demonstrating bias against the father, whether real or apprehended. Counsel made submissions on the topic. The Court accepted their submissions and granted the adjournment. This was an unremarkable exchange between the Bench and the Bar table.
Ms Lindsay noted that the published order from 31 March 2017 included a notation “UPON NOTING the Court may consider unsupervised time upon further medical evidence from the GP and Dr B if available”. She argued this clearly identified that the only issue outstanding was whether unsupervised time between X and his mother might commence. We do not have the benefit of transcript for this hearing, but obviously the trial Judge would be considering whether ongoing supervision was in X’s best interests, or not. That does mean this was the ONLY issue still to be determined. The notation may have indicated that the issue of supervision would be considered on an interim basis, for example, perhaps pending judgment.
The Court also ordered that the trial be “designated as a complex matter”. This order was made at the request of Counsel, to assist the father in obtaining an extended grant of legal aid. It is disingenuous for Ms Lindsay to now rely upon an order made at her request in support of this application for disqualification.
Her submissions on 29 September then addressed the aborted hearing date on 24 May and the resumption of the trial on 30 August 2017. Ms Lindsay argued that the trial process may be undermined because Dr B had assessed only Ms Agar and not Mr Atcheson, but this submission is ill-founded. There is no requirement for the same psychiatrist to assess both parents in such situations. It often occurs as a matter of convenience and it may be helpful, but it is by no means essential.
Ms Lindsay was even more concerned that the Court “…had taken the view that a change to the principal care arrangement was afoot. …”[47] At this point her submissions seemed more akin to a closing address and I asked Ms Lindsay to clarify what application she was making on behalf of her client. She responded by saying that the Court should “… direct yourself as you see fit with respect to the principles articulated in cases such as Kioa & West…”.[48] This was not particularly helpful in identifying the application she was making on behalf of her client.
[47] Annexure “B” Supra, p.45,
[48] Annexure “B” Supra, p.47, line 10
On 29 September Ms Lindsay contended that the parameters of the trial were now unclear. She argued that the mother had filed a plethora of material since March 2017, none of which had been the subject of cross-examination, because the father believed that the Court had already determined that X would remain in his primary care.
It is correct that the mother had filed a number of further Affidavits annexing reports or letters from her GP, Dr J, her mental health social worker, Ms K and other support workers. With respect, the contents of these documents were largely factual descriptions of the mother’s treatment regime or her contact with the particular worker or agency. I would have been unlikely to permit counsel to call Dr J or the other correspondents for cross examination if such a request was made, relying upon Division 12A principles.
Ms Lindsay has a duty to challenge the mother’s case. Ms Lindsay is entitled to challenge the Court’s interpretation of Dr B’s evidence. But challenging the other party’s case does not require every piece of evidence to be scrutinised under cross-examination. Counsel are required to exercise judgment about these matters; to weigh up the potential benefit to their client, the time involved and the significance of the evidence in question, before requiring a witness for cross examination.
I appreciate that the mother’s tendency to file two or three Affidavits on the one date caused confusion within the trial process. It made it difficult for Counsel and the Bench to identify which document was annexed to which affidavit, but the Court is permitted to extend some latitude to an unrepresented litigant, and I did so.
Following further discussion about whether the mother had been discharged from the witness box on 29 March, the hearing on 29 September continued as follows (edited for ease of reading):[49]
[49] Annexure “B” Supra, p.58-60
Her Honour: Alright. So Ms Lindsay, one of your significant concerns on behalf of your client is to the effect that at the end of the hearing in March I made it clear … ---
that as the evidence stood before me I could not see a way that X was going to go back into his mother’s care or words to that effect. That is what I said or words to that effect. Would you agree?
Ms Lindsay:Further that the notation of the orders says: “The Court may consider unsupervised time … dependent upon further medical evidence”.
Her Honour: Yes yes. So your concern is that come August when I had that further medical evidence before me, I am suddenly raising the issue of shared care.
Ms Lindsay:Yes Your Honour.
Her Honour: Alright. … … I certainly agree those comments were made. I also think that they were made, as you indicated, subject to any further evidence I may hear, and I had heard a lot of evidence by that time, and at that stage that was the Court’s view. And obviously come August when I had the further medical reports – a report from Dr B as well as some other evidence from the mother’s GP or the two reports that she provided – that did cast the situation in a different light from my perspective.
Now – and you then made the point – as you repeated today, “well that’s all very well, Your Honour, but if Dr B was only asked to prepare a report in the context of this much more limited dispute now, that may have affected (a) his opinion – probably not his opinion so much as (b) what information he was given in order to prepare his report”. Is that a summary of – I mean there may be other issues, but that was your issue about Dr B and the fact that I seem to be placing such significant weight upon Dr B’s report when he wasn’t necessarily given all of the information.
Ms Lindsay:That’s a very large part of the concern and, Your Honour, with respect, on the date of the last hearing the 24 August (sic) hearing – yes.
--- It was very clear that Your Honour had not had the opportunity to read Dr B’s report. Your Honour said that in Court --- early in the day.
[As discussed, the transcript from the hearing on 30 August indicates the Court had read Dr B’s report, albeit briefly]
Her Honour: Why would I have not read Dr B’s report? When was it filed? It was filed on 15 June. Alright. I can’t imagine why… --- ---
Her Honour: So you say on 30 August I made it clear at the beginning of the day that I hadn’t read Dr B’s report.
Ms Lindsay:That you would consider it over the luncheon period I think was ---
Her Honour: Alright. Thank you. That sounds plausible. And what is the difficulty with that?
Ms Lindsay:In those circumstances it’s most unlikely that not having considered Dr B’s report to that point Your Honour could possibly be contemplating the re-opening of principal care without a great deal more.
Her Honour: Alright.
Ms Lindsay:We’ve heard – with respect, Your Honour, the … the 28 September report [from Dr B]… makes it clear that it is very unusual for people to develop such a psychosis – and that is the mother’s psychosis – unless there is a very vulnerable personality. That’s referring to the 2009 – ’13 first psychosis which resolves fairly promptly within a week, and that’s a psychosis due to external stress, and he writes: “it is very unusual for people to develop such a psychosis unless there is a very vulnerable personality. That was the impression of my assessment. … As she had such a short-lived psychosis, and it occurs in a woman with a significant personality disorder, I hold to my view that the underlying disorder that gave rise to her psychosis and general life difficulties is best characterised as… Mixed Personality Disorder”.
And he makes the distinction that it’s not the diagnosis of Delusional Disorder because that’s in individuals who are paranoid and a feature of the delusion is how enduring it is, and it’s not amendable to anti-psychotic medication, and its very circumscribed in nature, that usually those persons have a reasonably intact personality. So by contrast he is underlying (sic)that the mother is a person whose psychosis will respond promptly – quickly – on each occasion but it’s because of external stress being applied to a very vulnerable personality. And he tells Your Honour that it’s a dependent and sometimes paranoid personality, and he tells you that in his first report, in particular at the bottom of page 5 and beginning of page 6.
So there is nothing in there that would every – with respect – and that might be a matter of submission – I would have thought that on a proper reading of Dr B’s report have opened up the concept of shared care again, and it was certainly the joint view of Counsel when put that we weren’t required to call Dr B because it didn’t raise ever any issue which would say to Your Honour you should reopen the parameters of this trial out further than the question of whether or not the mother’s two hours become unsupervised.
Ms Lindsay repeated her concerns regarding Dr B’s report further in her submissions on 6 October, but again Ms Lindsay’s submissions were more akin to final submissions. Self-evidently, she can challenge Dr B’s report, based on the limited Court documents provided to him. She can challenge his report on the basis that the mother’s support worker was present during the interview. These matters go to weight, but they are not indicators of judicial bias. Nor can they be relied upon to base a finding of apprehended bias, in my view.
The Court eventually asked Ms Lindsay how she would see any potential injustice to her client could be remedied and the possibility of re‑opening the father’s case was discussed. Ms Lindsay responded by suggesting another family report may assist. Ms Horvat noted that it was for the father to run his case as he deems fit, but if there was a perception that he had not been given procedural fairness then the Independent Children’s Lawyer would not speak against a remedy either by way of further family report, further psychiatric assessment or, indeed, by the mother being cross examined about the recent material she has filed.[50]
[50] Annexure “B” Supra, p.70
These suggestions were all potentially appropriate, if the Court concluded that the father has been unfairly disadvantaged in the trial process, but no-one addressed the delay that would entail, especially if an update family report was ordered.
The Court endeavoured to summarise the difficulties that had occurred over the hearings on 29 March and 30 August 2017.[51] Ms Lindsay sought leave to make “three very brief points”, as she felt the Court had mis-summarised her earlier submissions.
[51] Annexure “B” Supra, pp.70-71
The transcript then reads (verbatim):
Her Honour: Well, no. Just leave it there, because we – we’re running out of time. So you’re saying that you don’t ‑ ‑ ‑
Ms Lindsay:I have one sentence to read, your Honour. I think it’s important and ‑ ‑ ‑
Her Honour: All right.
Ms Lindsay:‑ ‑ ‑ you made it clear that you had advised the mother that, at present, there was no plausible basis before the court which would suggest that a disruption to the principle care arrangements for X should occur.
Her Honour: Is that what I said back in 31 March?
Ms Lindsay:Yes.
Her Honour: That’s your note of it?
Ms Lindsay:Yes.
Her Honour: All right. So you haven’t got the transcript.
Ms Lindsay:No, your Honour.
Her Honour: No. The only reason I’m asking that is, if you’ve got the transcript, we could all look at it and that would be so much easier than having to organise this link now. [Referring to arrangements for the audio recording from 29 March 2017 to be played in Court.]
Ms Lindsay:And ‑ ‑ ‑
Her Honour: But ‑ ‑ ‑
Ms Lindsay:‑ ‑ ‑ the ‑ ‑ ‑
Her Honour: But I accept I may well have used those words exactly.
Ms Lindsay:Your Honour, the ‑ ‑ ‑
Her Honour: Can you just read it out to me again.
Ms Lindsay:No plausible basis before ‑ ‑ ‑
Her Honour: No. The whole – you started off somewhere else. That I made it clear to the mother?
Ms Lindsay:You advised the mother, at present [29 March], there was no plausible basis before the court which would suggest a disruption to the principal care arrangements for X should occur.
Her Honour: All right. And aren’t there two issues there that then ‑ ‑ ‑
Ms Lindsay:Your Honour ‑ ‑ ‑
Her Honour: Well, hang on. Ms Lindsay, again, please don’t interrupt me.
Ms Lindsay:Your Honour, I – I said that there were ‑ ‑ ‑
Her Honour: No. Ms Lindsay, please. I was just about to say something to you ‑ ‑ ‑
Ms Lindsay:‑ ‑ ‑ three points.
Her Honour: ‑ ‑ ‑ and ask you to respond to it.
Ms Lindsay:And ‑ ‑ ‑
Her Honour: I’m dealing with this issue the first point, Ms Lindsay. Please just wait and let me finish. I’ve never seen you behave this way, Ms Lindsay, and I take it as because you think I’m behaving really offensively as well. I get that.
Ms Lindsay:No.
Her Honour: Now – and now, out of all of that, I’ve lost the point, so you may as well go on with your second point. Will you please make your second point.
Ms Lindsay:My point, your Honour, is twofold. It is abundantly clear that the father took no exception and did not seek to cross-examine Dr B notwithstanding Dr B was able (sic) to even see the mother alone to conduct his assessment of her ‑ ‑ ‑
Her Honour: Well, that’s a submission. What’s your third point.
Ms Lindsay:‑ ‑ ‑ because of ‑ ‑ ‑
Her Honour: What’s your third point, Ms Lindsay?
Ms Lindsay:Because it was constrained – with respect, your Honour, I would like to raise the fact that rarely across today have I been able to complete any submission before your Honour has interjected.
Her Honour: Well, I did try and give you half an hour at the start. My concern is that I feel you’re making a whole lot of other points that aren’t directly relevant to the issue at hand, and it’s – I’m finding it very frustrating, and I don’t normally have this experience with you. It’s unusual for me to find your performance at the bar table anything other than utterly appropriate, which indicates to me the level of outrage, probably, that you’re feeling at the way that I’ve been conducting this hearing, so I understand that.
Ms Agar:It’s not your fault, your Honour.
Her Honour: No. With respect, Ms Agar, it is my fault, because I’m the judge in control of the courtroom. I have to monitor my behaviour. Now, I’ve lost where we were even going now.
Ms Horvat:Your Honour was at the point, I think, of perhaps playing the transcript.
There followed an adjournment while the court endeavoured to play the audio recording from 29 March 2017. Those attempts were unsuccessful and the trial was adjourned to enable transcript from 29 March to be obtained. The hearing on 29 September then continued:
Her Honour: … because the way I see this matter proceeding next week is we all have a chance to have received the transcript [from 29 March 2017]. That should clarify in my mind my view about it as to whether there has been some miscarriage of justice, and you can – and if that’s my ruling in terms of how the trial has proceeded and the extent to which you, and possibly even Ms Horvat and her instructor feel that your presentation of your cases respectively has been constrained by whatever intimation I gave, then the issues are – presumably you would make an application to reopen, whether it’s in terms of an update assessment, whether it’s in terms of a further affidavit. I see your client has filed a recent affidavit, Ms Lindsay. I take no issue with that, because it seemed to confirm numerous matters that in fact were all familiar to me, so I assume they’ve been cross-examined on or something. And if I’m against you [on an application to re-open] then I would expect all parties be in a position to make final submissions.
The Court again apologised for the earlier “…unhappy exchanges between Bench and Bar table…” and the proceedings were adjourned to the following Friday, 6 October. After further discussion the hearing was listed to commence at 11.00am, to accommodate counsel’s availability. The mother then asked to make a further comment as follows:
Ms Agar:Try not to let today affect you, you know? You can’t help it. Other people have got anger problems.
Her Honour: Well, Ms Agar, thank you for your comments to me. I, as I said, have nothing but respect for the barristers at the bar table and their professional performances, and, in this case and in every other case, while things may have got a bit out of hand today, that was as much my fault as anyone else’s. I’m quite sure of that.
Ms Agar:And they got out of hand last time too, your Honour.
Her Honour: Thank you, Ms Agar. Thank you, Ms Lindsay. Thank you, Ms Horvat. Enjoy the long weekend.
The Court arranged for transcript from 29 March and 29 September to be made available to the parties during the intervening week, so that everyone could properly prepare their case.
The hearing on 6 October 2017
Unfortunately the Auscript transcript from 29 September did not include the in camera discussion between the Bench and counsel, even though the Court had specifically requested a full transcript from that day’s hearing. Given that Ms Lindsay was now making an application that I disqualify myself, it was essential that the entirety of the day’s hearing be available. Fortunately the Court was able to arrange for the audio recording to be played and all parties were able to listen to the exchange that took place.
Ms Lindsay commenced her submissions on 6 October by referring to the audio recording. She noted that her ‘interruptions’ were an attempt to remind the Court that Ms Agar had previously lodged a professional complaint against her. In those circumstances, Ms Lindsay was even more concerned about any part of the hearing taking place in the absence of either party, but particularly the mother.
I cannot recall whether or not Ms Lindsay had previously informed the Court of the mother’s complaint. In any event, I was acutely aware how unusual it was for the Court to speak to Counsel for two parties in a trial, in the absence of another party, particularly if that party is self-represented. Nonetheless, I concluded that it was more appropriate to express my dissatisfaction about Ms Lindsay’s behaviour in the absence of the parties. My intention was to caution her privately, as a professional courtesy to Ms Lindsay, so that her client would not lose confidence in her performance as Counsel.
Ms Lindsay proceeded to express her reluctance to make submissions critical of my conduct during the trial, concerned that it would be disrespectful to do so. She then returned to the events that occurred at the end of the hearing on 29 March and made detailed submissions. Those matters have already been considered at paragraphs 51 – 57 of these Reasons.
While the Court certainly expressed preliminary views regarding X’s primary care, based on the evidence as it stood on 29 March, it was an error for Ms Lindsay or anyone else in the courtroom to interpret my comments as having fully determined that issue, when the trial had not yet concluded.
The submissions on behalf of the Independent Children’s Lawyer
Ms Horvat made comprehensive submissions in support of Ms Lindsay’s application that I disqualify myself, on the grounds of apprehended bias.
Referring to the comments made by me late in the hearing on 29 March, she said “…There was never any consideration at that stage of there being extended time, shared care or substantial time. …”[52]. It may not have been in Ms Horvat’s consideration, or in Ms Lindsay’s consideration, but it was certainly a live issue from the mother’s perspective. In saying this, Ms Horvat was forgetting that the mother’s application has at all times asked the Court to consider at the very least extended time or shared care, if not X returning to live with her. The Court may express a preliminary view, as I did, but that does not remove my judicial responsibility to consider and determine each party’s application, however unlikely the application may appear.
[52] Annexure “D” Transcript 6 October 2017, p.207
Ms Horvat referred to my comments on 30 August, in relation to Dr B’s report changing the parameters of the hearing[53] She contended that comments from the Bench twice indicated the Court’s “… strong thinking about how your Honour would direct yourself … leading to a suggestion that your Honour would make orders in a certain way”.[54]
[53] Annexure “D” Supra, p.208
[54] Annexure “D” Supra, p.209-210
I disagree with Ms Horvat’s assessment. I accept that my comments on 29 March were expressed in fairly blunt terms, but they were also expressed in the context of the evidence that I had heard up until that point. I consider my comments on 30 August were entirely appropriate, as I was alerting the parties to the fact that I considered this new piece of evidence – Dr B’s psychiatric examination of the mother – was potentially significant.
Ms Horvat then endorsed her colleague’s concerns regarding my interaction with Ms Lindsay, saying that “… the fairly continual exchanges between bar and bench since the – conclusion of the hearing on 30 August and then carrying on through to most of what occurred on 29 September, would cause a fair-minded lay observer to consider that – and certainly the father might consider that your Honour had difficulty with the father’s counsel.”[55]
[55] Annexure “D” Supra, p.211
Clearly the Court was ‘having difficulty’ with Ms Lindsay’s conduct as counsel during the hearing. That can happen from time to time in trials, although I took pains to point out to all present that I had not had this experience previously with Ms Lindsay. There may be arguments or disagreements between the Bench and counsel, but that does not – cannot – mean that the judge should thereafter automatically disqualify herself. That is precisely the outcome that the High Court warned against in Re JRL; ex parte CJL when they reminded trial judges “… not to accede too readily to suggestions of an appearance of bias…”[56]
[56] Re JRL; ex parte CJL (1986) 161 CLR 342 para 5
Ms Horvat then addressed exchanges that occurred between herself and the Bench. In the course of cross-examining Dr B on 29 September, I queried Ms Horvat’s description that the mother was ‘heavily reliant on her support services”.[57] Ms Horvat echoed Ms Lindsay’s concerns that I had forgotten, or misunderstood some of the earlier evidence, including the mother’s evidence on this point.
[57] Annexure “D” Transcript, 6 October 2017, p.213
The Court suggested a third option to Ms Horvat – that I interpreted the evidence differently.[58] Clearly the mother has extensive support from a wide range of services, but Ms Horvat’s use of the term “heavily reliant” implied a criticism of the mother, whereas from the Court’s perspective, Ms Agar’s ability to access support from community organisations is a positive aspect of her life skills.
[58] Annexure “D” Supra, p.214
Ms Horvat also endorsed Ms Lindsay’s submissions that the Court had forgotten, minimised, or misinterpreted the (omitted) incident in 2013. With due respect to both counsel, these discussions on 30 August and 29 September took place part-way through a lengthy trial process, over a six month period. The Court was well aware that the events in June 2013 were extremely serious, requiring police intervention. However the weight to be placed on those events now, in 2017, must be evaluated in the context of more recent evidence that is available.
CONCLUSION
I have considered the submissions from counsel for the father and for the Independent Children’s Lawyer. I have also considered at length the transcript from the relevant hearing dates. I conclude that the father’s application for me to disqualify myself on the grounds of actual bias is not made out. The evidence does not support a finding that I had committed myself to a conclusion ‘already formed as to be incapable of alteration…”.
The father’s application that I disqualify myself on the grounds of apprehended bias must also fail. A trial Judge has a positive obligation to maintain control of the trial process, to keep the parties focussed on evidence that is relevant to the dispute and to avoid unnecessary delay and expense. In parenting cases the Judge has an additional obligation – to minimise the negative impact of the proceedings upon the child and to promote child focussed parenting.
While my interaction with Ms Lindsay may have been intemperate at times, I promptly apologised to her and her client, as well as to the mother and Ms Horvat. When the whole of the transcript is taken into account, I do not consider that a “fair-minded lay observer’ would be concerned that the Court had pre-judged the matter or that I would bring an impartial mind to the application before me.
I now make orders as published at the commencement of these Reasons.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Date: 16 November 2017
Key Legal Topics
Areas of Law
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Civil Procedure
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Family Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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