B and B - [2006] FMCAfam 564

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & B

[2006] FMCAfam 564

FAMILY LAW – Disqualification for bias – apprehension of bias – prejudgement – comments made in context of adjournment application – matters to be considered.

Family Law Act 1975 – ss.69ZN

Johnson v Johnson (2000) 26 Fam LR 627
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Stevenson v Hughes (1993) FLC 92-363
Palejs v Palejs [2002] FMCAfam 315
Vakauta v Kelly (1989) 167 CLR 568
Landy & Landy (2005) FLC 93-245

Applicant:

V A B

Respondent:

C S B

File number:

DNM84 of 2003

Judgment of:

Brown FM

Hearing date:

27 September 2006

Delivered at:

Darwin

Delivered on:

27 October 2006

REPRESENTATION

Counsel for the Applicant:

Ms Orwin

Solicitors for the Applicant:

Margaret Orwin Solicitor

Counsel for the Respondent:

Ms Capar

Solicitors for the Respondent:

Withnalls

ORDERS

The application filed on 19 September 2006 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNM84 of 2003

V A B

Applicant

And

C S B

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant in these proceedings is V A B. Ms B is the respondent to a contravention application brought by C S B on 16 June 2006. The contravention proceedings relate to a number of orders of the Family Court, made by Warnick J, on 12 December 2003, which relate to the parties’ child S B born 12 October 1994.
By way of her application filed 19 September 2006, Ms B seeks the following orders:
“1.That Federal Magistrate Brown disqualify himself from the hearing of the contravention application in this matter.
2.That the contravention hearing being heard before another Federal Magistrate or Family Court Judge.”
Mr B has not filed a formal response to this application. However, it is clear that he has no objection to me dealing with his contravention application, which has been listed for hearing on 4 December 2006, along with other proceedings which pertain to future parenting arrangements for S. Accordingly, he seeks the dismissal of Ms B’s application filed 19 September 2006.
Ms B takes exception to a number of comments made by me on 8 August, 2006, which she did not personally hear but which have presumably been relayed to her by her solicitor, Ms Orwin, who was present. The reason that Ms B wishes me to disqualify myself is that she contends a reasonable and fair-minded lay person, having heard my comments on 8 August 2006, would apprehend that I had prejudged the issues raised in the contravention application, contrary to her interests. Accordingly, on the basis that justice must not only be done but seen to be done, Ms B contends that considerations to do with public confidence in the administration of justice should dictate that I withdraw from any further involvement with the various matters concerning the parties.
The case involves questions to do with the inter-relation between what the High Court has described as “the exigencies of modern litigation”[1] to the situation of this case and the comments made by me, particularly in the light of the recent amendments to the Family Law Act (Commonwealth) 1975, (the Act) brought about by the insertion of division 12A into the Act.
[1] See Johnson v Johnson (2000) 26 Fam LR 627 at 630
These proceedings were commenced prior to 1 July 2006, and so the provisions of division 12A do not specifically apply to them. However, the principles enshrined in the division, particularly at section 69ZN, reflect a trend in the management of litigation in the family law area for greater judicial intervention, particularly so far as the desirability of protecting children from the potentially deleterious consequences of adversarial and sometimes vitriolic litigation between their parents.

Background

The parties, Ms B (referred to hereafter, for the sake of convenience as “the applicant”) and Mr B (for similar reasons of convenience, referred to hereafter as “the respondent”) began to live together in the late 1980’s and married in August 1984. They separated in April of 2001. S is the only child of their marriage.
In December of 2003, Warnick J dealt with the parties’ competing applications regarding final residence arrangements for S. After a three day trial, his Honour made orders that S should live with the applicant and the respondent should have contact with him on alternate weekends and on one other night during school terms; for half of each Northern Territory school holiday; and on special occasions and by telephone. These orders have not subsequently been modified.
In his judgment, Warnick J made the following comments:
“The level of conflict and competition between the parties is high. The evidence is fairly clear that they had a dysfunctional and toxic relationship for a long time.
The degree of subjectivity in the evidence of each is high. For example, there is strong evidence of involvement of S in conflict by each parent. Yet each claims innocence in this regard and accuses the other.”[2]
[2] See B & B Judgment of Warnick J delivered 12 December 2003 at paragraphs 16-17
In his judgment, Justice Warnick accepted that S had a close relationship with each of his parents. However, it seems that S indicated to a psychologist, who prepared a family report for the court’s assistance in the matter, that it was his preference to live with his mother, provided that he was able to spend regular periods of time with his father. His Honour also commented on his assessment that both parties had failed to protect S from exposure to their mutual animosity and conflict. I read His Honour’s reasons for judgment prior to 8 August 2006, and alluded to them in the comments to which the applicant takes exception.
The respondent filed the contravention proceedings, which are at the centre of this matter, on 16 June 2006. He alleged that the applicant had failed to comply with the contact provisions of the orders of 12 December 2003, from 26 January 2006 onwards. In particular, he alleged that he had not had any contact whatsoever to S on any of the alternate weekends or otherwise on any evenings during school terms; or in school holidays; or by telephone; since late January of 2006. It was his position that the contact arrangements between him and S had completely broken down.
In support of his contravention application, the father filed an affidavit, as he was required to do. In this affidavit the respondent deposed that he had taken S on holidays with him to P in December of 2005. It was the respondent’s apprehension that S was resentful regarding his [the respondent’s] relationship with a female friend, who accompanied them on the holiday. Further, the respondent deposed to an incident where he asserted he had disciplined S as a result of S being rude to a person whilst at a hotel in P.
The last time the respondent saw S, prior to the filing of his contravention application, was on 26 January 2006, when S attended a party at this home. S left this party without reference to his father and it was the respondent’s belief that he had telephoned his mother to collect him.
Thereafter, it was the respondent’s position that he was contacted by the Family Intervention Team of the Department of Family and Children’s Services “FACS”, which is the statutory body charged with child protection issues in the Northern Territory, and was informed that a complaint had been made by the applicant in regards to his parenting of S. It is common ground between the parties that this complaint of alleged mistreatment was found to be unsubstantiated by FACS.
In his affidavit, the respondent was critical of the applicant for discussing parental issues, including the payment of child support, with S. The tenor of his affidavit is that he believes the applicant had attempted to influence S against him.
In conjunction with his contravention application, the respondent filed an application in which he sought that, on a final basis, he and the applicant should have what is commonly referred to as “shared care arrangement” for S, pursuant to which he lived with each of his parents on a week about basis, during school terms and for equal portions of the school holidays. On an interim basis, he sought the immediate reinstatement of the contact arrangements made by Justice Warnick on 12 December 2003, and that Ms B be restrained from discussing the court proceedings with S.
At the respondent’s request, his various applications were given an early return date, which was 4 July 2006. Ms B was served with the relevant documentation on 26 June 2006. She did not file any answering documentation prior to the first return date of Mr B’s application.
On 4 July 2006, the following orders were made:
“1.That the mother will deliver the child to Relationships Australia, Cavanagh Street, Darwin at 10.00am on Friday 7 July 2006 for the purposes of counselling to take place between the father and child and if deemed necessary by the counsellor , to also include the mother.
2.That the mother will collect the child from Relationships Australia at the conclusion of the counselling session/sessions.”
At this stage, it was apparent that there was a high level of tension between the parties. The parties also recognised that it might be helpful if there was some sort of mediated meeting between S and his father, with a view to seeing if the relationship between the two could be resumed. At this stage, it was acknowledged by both parties that there had been no face-to-face contact, between S and his father, for almost six months. At this stage, it was also deemed appropriate to fix the contravention application for hearing as expeditiously as possible. The earliest date available was 8 August 2006.
The applicant filed a response to Mr B’s final and interim application regarding parenting orders for S on 24 July 2006. She sought that all of Mr B’s applications, including the contravention application, be dismissed and that he should pay her costs. In a formal sense, she had no proposals whatsoever as to how S would spend time with his father in future. In addition, she did not formally apply to have the orders, which were made in December 2003, either suspended or discharged.
In support of her position, Ms B filed an affidavit on 24 July 2006. In her affidavit, she deposed her view that S had been increasingly upset at the prospect of spending time with his father since December of 2004 onwards. She recounted what S had allegedly told her about the incident between him and his father in P and at Mr B’s home on 26 January 2006. She had a radically different view of these incidents.
It was the applicant’s position that S had complained to her that his father was essentially disinterested in him. S apparently also complained that he had done nothing wrong whilst in P with his father. Rather, his father had kicked him, which had sent him sprawling, during an incident in which a woman had stepped aside to allow him to pass through a doorway. S denied any rudeness, on his part, to the woman concerned.
The applicant also alleged that S had complained about his father’s level of drinking; abusive comments, which Mr B had allegedly made about her to S; and other aspects of the father’s emotional neglect of him. The applicant confirmed that she had collected S on 26 January 2006, but only because S had summonsed her in a hysterical frame of mind, apparently in part because Mr B had been paralyticly drunk and was vomiting. These various matters were the background of the applicant making a complaint to FACS regarding the respondent’s treatment of S, which she believed was abusive.
The applicant deposes that, on advice from FACS, she determined to withhold S from spending time with the father, from the end of January 2006 onwards. She denied being instrumental in preventing S from having contact with his father. It is her position that S has been vehemently opposed to having any contact with his father.
In March of 2006, it is common ground that FACS wrote to each of the parties and advised that it had found allegations that S had been subject to neglect, physical and emotional maltreatment, whilst in Mr B’s care, to be unsubstantiated. This finding was conveyed to each of the parties without further elaboration and, in particular, without any provision of the evidentiary reasons why the Department had formed the view it had.
It seems that the applicant was dissatisfied with this bland dismissal of her concerns. It seems to be that she took the matter further. Ultimately, the father received a further letter in mid May of 2006, informing him that following further investigation, the finding of “unsubstantiated” was the appropriate finding in respect of the matters raised by Ms B. Ms B herself received a different letter in early June of 2006, following an interview with the FACS manager concerned. Ms B was concerned that FACS did not believe the matters, which S had raised regarding his past interactions with his father. The letter, which Ms B received and which was annexed to her affidavit of 24 July 2006 read in part as follows:
“During the child protection investigation your son stated to FACS staff that he does not want to be with his father while he consumes alcohol and appeared to become anxious about past and future access visits. It was apparent from your son’s decision not to have contact with his father that access visits deteriorated. Your son’s concerns were acknowledged and seriously considered.
FACS was unable to confirm from various reports that maltreatment as defined in the Community Welfare Act 1983 had occurred although the reports do suggest a degree of physical and emotional risk to your son if access visits continue and his father consumes alcohol.”
It is also common ground between the parties that the mediation, involving S, which was scheduled for early July, was unsuccessful in the sense that no rapprochement was able to be negotiated between S and Mr B. Mr B apparently withdrew from the process. It is also the mother’s position that she proposed, via her solicitor, that the parties jointly fund a family assessment to ascertain what could be done to remedy the breakdown in the relationship between S and his father. It is the applicant’s position that the respondent declined to contribute any monies to such a report. It is also apparent that, up until 8 August 2006, she had no firm proposals pursuant to which S might spend some time with his father and nor had she formally applied to either suspend or discharge the orders of 12 December 2003. This was the background to what occurred on 8 August 2006.

The proceedings of 8 August 2006

Neither the applicant nor the respondent personally attended at court on 8 August 2006. They appeared through their respective legal advisors – in the applicant’s case by Ms Orwin; in the respondent’s case by Ms Capar. It had been agreed between the parties’ legal advisors themselves, without prior reference to the court, that the contravention application would be adjourned and neither party should attend at court. The reasons proffered for the adjournment was that Mr B was “quite unwell”. No details of his medical condition was provided nor was any medical certificate tendered.
By this stage, S had not spent any significant periods of time with his father for approaching seven months. The FACS investigation had concluded. On the face of the formal record, the applicant had no proposals as to how S was to spend time with his father in future. The orders of 12 December 2003 remained in force. Accordingly there was a long standing arrangement in place regarding contact arrangements. However the mother had not sought to vary or suspend these arrangements. The court time allocated to attempt to resolve some of these issues was wasted. All these matters concerned me, particularly against the background of significant dispute between the parties, as evidenced by their respective affidavit material and the earlier comments of Warnick J.
It was against this background that the interchange between me and Ms Orwin, of which the applicant complains, occurred. It occurred after I had enquired of Ms Orwin what was happening in respect of the order for contact between S and the respondent and after I had pointed out to Ms Orwin, my view that the applicant had certain obligations in regards to the orders.
FEDERAL MAGISTRATE:
“I have read the material. S went on holidays to P. Something happened around about this incident with the door, then there was the party in Darwin. Now the child says he doesn’t want to go. FACS were involved. As far as they are concerned, according to their legislation, the child is not in need of care. Warnick J, a very experienced and insightful judge, said the relationship between the parties was, and I think this is a quote from him, “dysfunctional and toxic” which is perhaps an unusual expression for a judge to use, “toxic”. So we come along and the child is enmeshed in this dispute it would seem. Rightly or wrongly, the child is enmeshed in the dispute.
The longer it goes on the more difficult it becomes. I suspect there are rights on both sides – rights and wrongs on both sides, and the parties are unwilling to discuss anything with each other. The matter is fixed for today and we get no further forward. Three hours has been put aside for this case and it’s wasted. I will get another three hours. I am just told Mr B is unwell. What else can I do. There is being at death’s door and there is having a cold. I don’t know what it is but everything becomes more enmeshed, more difficult, more problematic, and the parties don’t seem willing to explore any means of resolving it. I mean, that is the impression I get, and I suspect – the mother, Ms Orwin, whether she has an excuse or not it has to be objectively reasonable.”
MS ORWIN:
“I understand that, your Honour, but she has attempted with this counselling – she is trying. That is all I can say, I suppose, I don’t know.”
FEDERAL MAGISTRATE:
“I suppose at the end of the day I am a little bit sceptical about how hard she is trying, to be honest, because there are many ways of approaching these difficult matters, and the more experienced I get, the more sceptical I become about 11 year-olds who say “I am not going”, particularly in the light of these parties’ relationship with one another…”
…
FEDERAL MAGISTRATE:
“I want her to know that there is a presumption that the orders that were made were made in the best interests of this particular child and you disobey them at your peril. All these contraventions started off in January after the party, and after the Christmas holiday. When we went from 2003 to these orders here. There is a relationship between the child and his father.”
MS ORWIN:
“I don’t dispute that, your Honour.”
FEDERAL MAGISTRATE:
“I know. But your client has certain obligations and to just say, “I want you to go, son” and then brushing away a metaphorical tear. That is not good enough.”
MS ORWIN:
“Your Honour, I am not present when…”
FEDERAL MAGISTRATE:
“I know.”
MS ORWIN:
“But she has certainly been given advice.”
FEDERAL MAGISTRATE:
“Ultimately nothing at all is happening. I am just very, very disturbed about that. Nothing at all. Because the problems will get more entrenched, the difficulties become more difficult to get over and the child becomes more enmeshed. That is what I am concerned about.”
The further following exchange took place between me and Ms Orwin, again portions of which exception to.
FEDERAL MAGISTRATE:
“I can’t tell you how concerned I am that it is now six months since this child saw his father after a fairly regular relationship from 2003 onwards. No doubt something happened when this child was on holiday and no doubt there are some tensions between the child and the new partner of Mr B. Perhaps there are issues about Mr B’s alcohol consumption. All these matters are raised but there are still obligations and responsibilities on a parent to be supportive of orders. Ultimately it will be objectively judged, whether what your client has done is reasonable.”
“There is some authority that if there is a FACS or welfare investigation it’s reasonable to heed what they say, but I have read the material, FACS say the claim is unsubstantiated. Your client didn’t accept that because she wrote back, and I have seen the correspondence, which tends to suggest, and I might be mistaken, that she may have some sort of axe to grind. I may be entirely mistaken about that and I am disturbed by – if he makes a proposal we will consider it, but he hasn’t made a proposal, those sort of circular arguments because, as I say, the problems get more and more enmeshed, more and more difficult, and if the root of this problem is what Warnick J said, whenever it was in December 2003, is the “dysfunctional and toxic relationship of the parties” which I can do nothing about.
But ultimately at the end of the day one of these parties is going to be successful and one may be unsuccessful and there will be a bill for several thousand dollars worth of costs which will do even more damage to these people, their relationship, and will reverberate with S. S is obviously a child who is not faring particularly well at the moment but, having said that, it’s not likely to be in his best interests that he has no relationship whatever with his paternal side. I would be saying these things to your client but she has been sent away which concerns me because – no doubt she could be brought back but she has gone now.”

The precise portions of these statements to which the applicant takes exception, have been underlined, in the passages above. In particular, the applicant asserts she feels “prejudged” by my statement that “rightly or wrongly, the child is enmeshed in the dispute”.[3] It is her apprehension, which by necessary implication her counsel would also ascribe to a “fair-minded lay observer” that I have “decided that the child is not going on contact because of the relationship the father and [the applicant] once had”.
[3] See the applicant’s affidavit filed 19 September 2006 at paragraph 5
In my view, I do not believe that it was unreasonable for me to allude to the nature of the conflict between the parties. Although I had not heard any direct evidence, it does not seem to me to be objectively unreasonable for a court to conclude that there is and was a significant level of ongoing conflict between the parties. It is trite, but true nonetheless, to point out that contravention applications invariably come about because of a significant level of parental discord between the parties concerned. In my comments, I do not suggest that one or other of the party’s is more responsible for this state of affairs than the other. I merely point out my perception, at that stage, that there was a significant level of conflict between the parties.
The mother specifically is concerned at the use of the word “enmeshed” by me. My use of this word is tempered by the expression “rightly or wrongly”. No specific blame is attached to one or other or the parties as to why this enmeshment has come about. In my view, “enmesh” cannot be regarded as a pejorative expression. Its ordinary definition is “entangle in or as in a net”.[4] I find it difficult to accept that it could not otherwise be objectively stated that S was not to some degree involved in the dispute between the parties. The dispute concerns him and the parties’ different perceptions of what his views are about his relationship with his father. Whether S has or has not valid reasons for wishing not to spend time with his father, the dispute between the parties has implications for him. The legal proceedings between the parties clearly have implications for S.
[4] See the Australian Oxford Dictionary
It was my concern for S, arising from the significant level of dispute between the parties, which motivated me to raise with the parties my concerns about the potential harmful effects for S, if the dispute became unnecessarily prolonged. At this juncture, I also raised my concerns that the parties (and I note again that one of them was not singled out more than the other), were not apparently willing to discuss options to break the impasse between them, particularly so far as the possibility of S at least spending some time with his father in future.
It was in this context that I raised with Ms Orwin the possibility that some discussions could be had between the parties regarding some form of alternative to the contact arrangements set out in the orders of December 2003. I floated with her the possibility that orders could be made to address some of her client’s concerns about the father’s alcohol consumption and raised a possible scenario of the father and child meeting for a meal at McDonalds or the two doing something together which S was likely to enjoy.
I think it is clear from the transcript that I was concerned that S had not seen his father for a considerable period of time. In all the circumstances, I believe that it was reasonable for me to express these concerns and suggest possible options, for the parties to consider, regarding the advancement of the matter, particularly against the background of the wasted hearing on 8 August 2006. I do not think that a reasonable person would believe that these suggestions amounted to prejudgment, particularly if that lay person was aware, in general terms of the principles set out in section 69ZN of the Family Law Act 1975.
The applicant deposes as to being extremely offended by my comments regarding her having “certain obligations” in regards to the facilitation of the contact orders of December of 2003. I believe that I was entitled to make these comments, particularly in light of the fact that, at that stage the comment was made, the applicant had made no application to alter or suspend these orders and had no formal proposals as to how S was to spend time with his father in future. In my view, given the time which had elapsed since S had last seen his father, it was appropriate for me to raise these issues with the mother’s counsel. It was in this context that I made reference to the mother “brushing away a metaphorical tear”, which the applicant apparently finds particularly offensive.
The expression used by me was perhaps a clumsy reference to the comments of Nygh J in the case of Stevenson v Hughes where His Honour said as follows:
“…there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong and that the wife in this circumstance, clearly, was in breach of her obligations under the order.”
In the case of Palejs v Palejs, Federal Magistrate Ryan (as she then was) detailed the obligations incumbent upon a person bound by a parenting order made under the Family Law Act 1975 as follows:
“A parent who has a residence order, as well as an order that the child have contact with the other parent, has a significant responsibility. This responsibility arises by operation of the Act itself and is discussed in some detail in the case law. I am satisfied in circumstances where a parent has a child who has some reluctance to participate in contact, that they must discuss the child’s reluctance, reason with the child in relation to the factors that are concerning the child, persuade the child to another point of view that will facilitate compliance of the orders, and ultimately direct the child to attend contact. It is a considerable burden.”
It is the applicant’s position that she has always encouraged contact between the father and S[7], and accordingly she finds my comments regarding her obligations to facilitate contact between S and his father to amount to a prejudgment. I do not believe that a reasonable person would conclude that this was the case, particularly as I point out in my comments that whether the applicant’s actions are justifiable would be ultimately objectively judged. I do not believe that this can be said to amount to prejudgment. In addition I do not believe that it was unreasonable for me to point out, in general terms, the legal principles to be applied to the contravention application.
[7] See mother’s affidavit filed 19 September 2006 at paragraph 8
It is an important matter that a court had previously determined what arrangements were in S’s best interests. This occurred after a hearing occupying three days in September of 2003. These orders had not been subject to any formal challenge. Accordingly they still applied to both parties on 8 August 2006 and the mother’s latitude to disregard them was significantly curtailed by reason of the provisions of Division 13 A of the Act.
The applicant also asserts that she is concerned about my comment that she “may have some sort of axe to grind” about FACS. In this regard, I note that the subjunctive mood is used. The statement is also immediately qualified by the phrase: “I may be entirely mistaken about that”. In such circumstances, I do not believe that a reasonably-minded lay person would think that this statement amounted to some form of prejudgment. The question of whether FACS had or had not completed its investigation of notifications made to it was ultimately likely to be germane to the question of whether or not the period of time S had been withheld from contact with the father was objectively reasonable.
The comments made by me go on to express my concern, regarding the mother’s apparent position that it is up to the father, rather than her, to propose some means of advancing the matter. It is in this context that reference should be made to some earlier comments I made on the day involved to Ms Orwin, regarding my concerns about what I described as a “circular argument” regarding the mother’s apparent position that, if the father made some proposal, it would be considered by her but she herself had then no proposals to advance. I made the following comment:
FEDERAL MAGISTRATE:
“It just sounds like it’s a circular argument. It will go on and on an on forever and your client, perhaps, ought to be a bit more proactive and so ought Mr B. Anyway, your client hasn’t any proposals today at all?”
As is apparent, I suggested that both parties needed to be proactive, so far as the issue of S spending time with his father was concerned. However, for obvious reasons, in my view, the mother was far better placed to suggest means of brokering some intermediate resolution of the matter than the father was as S was living with her. The ball was in her court so far as this was concerned and it remains my view that a person who is charged with providing a residence for a child has obligations to make reasonable attempts to ensure that contact with the other parent concerned. The longer a child does not take part in contact, the more difficult it is likely to be to justify such conduct as reasonable.
In addition, I do not think that it can be said that I did not concede that there was the possibility that the mother may have an acceptable excuse for withholding S from having contact with the respondent. In my final comments, I acknowledged the possibility of tension between the child and Mr B’s new partner and the possibility of issues concerning his [Mr B’s] alcohol consumption. I also alluded to the fact that something had happened between S and his father, whilst the two had been in P. However, in the circumstances, I do not think it was either unreasonable or imprudent of me to remind Ms Orwin that whether or not her client had a reasonable excuse would be ultimately objectively judged and urge her to raise with her client some mechanism by which the child might at least spend some time with his father.
In addition, I do not believe that it was unreasonable for me to point out to the parties’ legal representatives that there were likely to be significant issues of costs, so far as both of them were concerned, in respect of the contravention. I alluded to the fact that one party would be successful in the contravention and one “may be unsuccessful”. I did not suggest who of the parties would be successful and who would not be. The statement was general and unspecific. However, I did indicate that the issue was likely to have emotional consequences so far as S was concerned. In making this statement I was endeavouring to focus the attention of the parties on the potentially deleterious consequences for S of the litigation, particularly so far as the ongoing relationship between his parents was concerned.

Events after 8 August 2006

In the absence of the parties, the respondent’s contravention application was adjourned for hearing on 18 September 2006, the earliest date available. The hearing did not take place on that date. On 14 September 2006, the applicant’s solicitor, Ms Orwin, filed an affidavit, which she had sworn, to which was attached a report of a psychologist, L McK, who had examined S on 30 August 2006 and 1 September 2006, particularly so far as his views concerning his ongoing relationship with his father. It is not possible for me to ascertain whether these appointments were arranged as a consequence of the hearing before the court on 8 August 2006.
From her interview with him, Ms McK reported her apprehension that S had strong views that he did not wish to spend time with his father, primarily because of his perception that his father was disinterested in him and had a significant drinking problem. Ms McK did not believe that these concerns had originated with anyone other than S and particularly were not the result of any influence from the applicant. Ms McK recommended that father/son counselling between S and Mr B was likely to be beneficial in restoring the relationship between the two. She also made some recommendations as to how the two could spend time together in future.
As a result of Ms McK’s report, the parties agreed that the contravention proceedings should not be dealt with on 18 September 2006 but rather adjourned. As a result the application was adjourned for hearing on 4 December 2006 and during the period of the adjournment it was ordered that S and the father should take part in the counselling process, as recommended by Ms McK. I was content to make the order concerned, as I was satisfied that the parties were making attempts to advance the matter. Although Ms McK’s report and opinion had not been tested through cross-examination, I did not reject its conclusions. Clearly the report was a significant piece of evidence.
Both the applicant and the respondent were present in court on 18 September 2006. At this stage the applicant’s counsel did not raise any concerns with me regarding her client’s perception about my impartiality to deal with the application. It was now obviously well over a month since the comments to which the applicant takes exception in her current application had been made. No request was made of me by her counsel to take any steps to dispel any apprehension that her client may have taken from my earlier comments.[8] In fact on 18 September 2006 no objection was made.
[8] see Vakauta v Kelly (1989) 167 CLR 568 at 587 per Toohey J
In addition, in my view, by adopting the course recommended by Ms McK, even if it is accepted that my earlier comments, made on 8 August 2006, amounted to some form of prejudgement of Ms B particularly in regard to her attitude towards S having contact with his father, it was demonstrated that I was capable of altering any conclusion which I had reached in this regard, in the light of further evidence put before me. Accordingly I do not think that it could be said that a reasonable by-stander would conclude that my mind was irredeemably prejudiced against the applicant.

The legal principles to be applied

The test to be applied in determining whether a judicial officer is to be disqualified, by reason of appearance of bias, from proceeding to hear a matter, was most recently stated by the majority of the High Court in Johnson v Johnson[9] as follows:
“…the test to be applied in Australia in determining whether a judge is disqualified by reasons of the appearance of bias (which in the present case, was said to take the form or prejudgment) is whether a fair-minded lay observer might reasonable apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”
[9] Johnson v Johnson (supra) at 630
The test is based on the fundamental principle that justice must both be done and seen to be done. If fair-minded people either perceive or suspect that a court has a preconceived notion of the appropriate outcome for a case, it will inevitably lead to the erosion of public confidence in the judicial process.
However, the High Court went on to state that the “reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.” In particular, the High Court said as follows:
“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 “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 view 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.” (footnotes omitted)
In an earlier case involving issues of bias, which came before the High Court, Laws v Australian Broadcasting Tribunal[10] Gaudron and McHugh JJ described the hypothetical lay observer as follows:
“A reasonable bystander does not entertain a reasonable decision-maker will bring an unfair or prejudiced mind to an enquiry merely because he has formed a conclusion about an issue involved in the enquiry:
…when suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.”
[10] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100
Recently the Commonwealth legislature has prescribed, in the Family Law Act 1975, a number of principles, to which courts such as this one must give effect in the conduct of child-related proceedings. As already indicated, these principles do not strictly apply to this matter, as the respondent commenced his application in mid June of 2006. However, in my view, these principles are useful in providing guidelines as to what are the prevailing standards of practice which must be applied to the “exigencies of modern litigation” by trial judges in attempting to properly manage cases, particularly in the area of family law. Pursuant to section 69ZN, the principles are as follows:
a)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 proceedings;
b)The court is to actively direct, control and manage the conduct of proceedings;
c)Proceedings are to be conducted in a manner which will safeguard the child and parties concerned from family violence, abuse and neglect;
d)Proceedings are to be conducted in a way the will promote cooperative and child-focused parenting;
e)Proceedings are to be conducted without undue delay, formality and legalism.
In the explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Act 2005, which was the legislation which implemented these amendments to the Act, it was said that rationale of the amendments was “to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings.” In particular, the explanatory memorandum said as follows:
“This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best interests of the child by encouraging parents to focus on their parenting responsibilities.
…
The court must consider the child’s needs and the impact that the conduct of the proceedings may have on him/her. In particular the court must consider the likely stress on the child of the conflict between the parents that is created by the proceedings and seek to minimise this.”

In enunciating these principles, the legislature recognises that unduly protracted litigation, regarding children, is usually not helpful to the children who are the subject of such litigation and certainly does not encourage those who are involved in their care to have a cooperative or collaborative approach towards their parenting. Indeed, such a traditional adversarial approach to litigation may entrench rather than reduce conflict between parents.

Conclusions

Throughout my discussions with Ms Orwin and Ms Capar, on 8 August 2006, I was endeavouring to point out my concerns at the duration of the period during which S, described by Ms McK as a “bright and articulate child”, but nonetheless still a child of eleven years of age, had not spent time with his father. I think I was entitled to have such concerns and express them publicly, prior to embarking on the hearing of the respondent’s contravention application, which had been delayed, due to no fault of the court.
As I observed then and I still maintain now, it is not likely to be in S’s best interests to have no relationship at all with his father in future. As the parties recognised in September of 2006, a process aimed at ameliorating S’s paternal relationship, is likely to be in both S and the parties’ best interests. In this context, I think it congruent with the modern practices of case management in the family law area and the ethos of the relevant legislation, as most recently enshrined in section 69ZN of the Act, that it be open to me, to point out to the parties’ concerned lawyers the possible detriments to S of the contravention proceedings and urge them to consider options with their respective clients as an alternative to such proceedings.
All in all, I do not think that a fair minded lay observer would reasonably believe that ultimately, if the case proceeded further, I would be incapable of bringing an impartial and unprejudiced mind to the issue of whether the mother had a reasonable excuse for withholding S from having contact with his father, notwithstanding I had expressed a significant level of concern at the apparent breakdown in relationship between S and his father and had urged both parties in the meantime to consider means by which the relationship between the two might be ameliorated as an alternative to the contravention proceedings. These after all seem to be the themes of the first and fourth principles, as enshrined in section 69ZN (3) and (6) of the Act.
The only occasion on which I believe I alluded to the level of credibility of the applicant was when I suggested I was “a little bit sceptical about how hard she [the applicant was] trying” in respect of the issue of ensuring that S had some form of relationship with his father. In my view, such a comment could be said to amount to a tentative view. However by my action in allowing the adjournment of the proceedings on 18 September 2006, in the light of Ms McK’s report, I believe I demonstrated that any fears the applicant had about my level of scepticism about her, demonstrated by my comments of 8 August 2006, were capable of being subsequently allayed. As the authorities demonstrate, a reasonable by-stander’s concerns about any comments made by a judicial officer may be mollified by subsequent actions. Comments and impressions may be corrected.
It is a significant thing to ask a judicial officer to disqualify him or herself from the hearing of a matter by reason of perceived prejudgment. Its effect is to suggest that I would either consciously or unconsciously conduct myself in a way other than in accordance with my Oath of Office.[11] As Toohey J said in Vakauta v Kelly[12] ,approving earlier comments of McHugh JA, “in the case of a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial, a conclusion that there is a reasonable apprehension that he is biased should not be drawn lightly.” This caution should be further tempered by contemporary case management practices and the emphasis in cases involving children on avoiding adversarial litigation as much as possible by encouraging parents to be child focussed and to reach mediated outcomes.
[11] see Landy & Landy (2005) FLC 93-245 at 80,033
[12] Vakuata v Kelly (supra) at 584-5
In addition the comments to which the applicant has taken exception must be placed in context. They were made before any oral evidence had been given, in the absence of the parties themselves, during an application for an adjournment. In addition my withdrawal from the case has important logistical considerations for the parties. I am the only resident Federal Magistrate in Darwin. The Family Court visits Darwin for circuits on four occasions each year. It is often difficult to conduct proceedings involving alleged contraventions of orders by electronic means. As a result of these matters there is a significant possibility that the father’s contravention application will be greatly delayed if I am disqualified from dealing with it. As I have previously indicated, these proceedings have already been subject to significant delay.
For all the foregoing reasons, I have come to the conclusion that the application herein is not properly based. Accordingly the order of the court will be that the application filed on 19 September 2006 is dismissed.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: C W

Date: 27 October 2006

[5] Stevenson v Hughes (1993) FLC 92-363 at 79,814

[6] Palejs v Palejs [2002] FMCAfam 315