Bowcott & Welling
[2016] FamCAFC 144
•9 August 2016
FAMILY COURT OF AUSTRALIA
| BOWCOTT & WELLING | [2016] FamCAFC 144 |
| FAMILY LAW – APPEAL – DISQUALIFICATION – The mother appealed against the trial judge’s refusal to disqualify himself from continuing to hear the part-heard trial – Although some of the trial judge’s interventions were perhaps unwise, they were not such as to persuade a fair-minded lay observer to apprehend that the trial judge might not bring an impartial, unprejudiced mind to the resolution of the dispute – Appeal dismissed – No order as to costs. FAMILY LAW – APPEAL – LEAVE TO APPEAL – Whether leave is required to appeal from a decision of the Federal Circuit Court in relation to disqualification – Tentative view expressed that such orders are interlocutory and subject to the requirement for leave by operation of s 94AAA(2) of the Family Law Act 1975 (Cth). |
| Family Law Act 1975 (Cth) – Div 12A, s 69ZN, s 69ZR, s 69ZN, s 94AAA, s 94AA Family Law Regulations 1984 (Cth) – reg 15A Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) – r 73 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) – r 26 |
| Bienstein v Bienstein (2003) 195 ALR 225 CDW v LVE (2015) 54 Fam LR 297 F, AG and S, LL (Apprehension of bias) (2005) FLC 93-210 Hillier & Wootton (2013) FLC 93-526 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 PMT Partners Pty Ltd v Australian National Parks & Wildlife Service (1995) 184 CLR 301 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 |
| APPELLANT: | Ms Bowcott |
| RESPONDENT: | Mr Welling |
| FILE NUMBER: | NCC | 1714 | of | 2013 |
| APPEAL NUMBER: | EA | 84 | of | 2016 |
| DATE DELIVERED: | 9 August 2016 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Thackray & Aldridge JJ |
| HEARING DATE: | 18 July 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 June 2016 |
| LOWER COURT MNC: | [2016] FCCA 1470 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Rugendyke |
| SOLICITOR FOR THE APPELLANT: | Legal Aid NSW |
| COUNSEL FOR THE RESPONDENT: | Mr Graham with Mr Williams |
| SOLICITOR FOR THE RESPONDENT: | Turnbull Hill Lawyers |
Orders
The appeal be dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowcott & Welling has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 84 of 2016
File Number: NCC 1714 of 2013
| Ms Bowcott |
Appellant
And
| Mr Welling |
Respondent
REASONS FOR JUDGMENT
Ms Bowcott (“the mother”) has appealed against an order made by Judge Myers in the Federal Circuit Court on 10 June 2016 dismissing her application for him to disqualify himself from continuing to hear the trial of parenting proceedings on the basis of apprehended bias.
The dispute relates to C (“the child”), the seven-year-old son of the mother’s relationship with Mr Welling (“the father”). The father opposes the appeal.
Background
The father commenced proceedings in July 2013 seeking equal shared parental responsibility and for the child to live with him, but spend six nights a fortnight with the mother.
The mother responded by seeking sole parental responsibility and for the child to live with her, and spend supervised time with the father each alternate weekend.
On 30 April 2014, a Family Report prepared by a Family Consultant was released to the parties. The report contained recommendations dependent upon findings to be made about potential risks to the child posed by the parties.
The trial was listed to commence on 19 October 2015. On 14 September 2015, the father filed an amended application in which he proposed that the mother have the child for only four nights each fortnight. On the same day, the mother filed an amended response seeking an order for equal shared parental responsibility and for the father to have unsupervised time on four nights a fortnight.
On 25 September 2015, the mother filed her trial affidavit in which she made many allegations about the father’s past bad behaviour, including very serious claims of violence and threatened violence.
On 15 October 2015, the father filed a Case Outline in which he sought sole parental responsibility and that the mother spend only each Saturday with the child until she had completed “therapeutic counselling” concerning “aligning behaviours” and “perpetrators of family violence”. The father proposed that the mother have four nights a fortnight with the child after the counselling.
On 16 October 2015, the mother applied for the trial to be adjourned and for an Independent Children’s Lawyer to be appointed. Her application was dismissed and the trial then proceeded over the next five days, before being adjourned to 22 and 23 February 2016.
When the matter was adjourned, the father’s case had been completed, but the mother was still being cross-examined. The Family Consultant was also under cross-examination, as she had been interposed in the mother’s case.
The application for the judge to be disqualified
At the time the trial was adjourned, the mother was warned by the trial judge about discussing the proceedings. After the mother’s advocate drew attention to the fact that she may need to discuss issues with the mother pending the resumption, his Honour granted leave to restore the matter in the event that the mother’s advisers wished to discuss the proceedings with her.
On 3 February 2016, the mother’s representatives applied for leave to take instructions from the mother regarding four issues, including “in relation to a potential application for His Honour Judge Myers to recuse himself”. The application was listed on 8 February 2016. During the course of argument, the trial judge said to the mother’s advocate:
Your client is in cross-examination. Why does there need to be the application for recusal now? Why not let the cross-examination finish and then the recusal application be made then?
There was then interchange about the timing of the disqualification application, the upshot of which was that the trial judge was not prepared to allow the mother’s advisers to speak with her about the recusal application until her cross-examination had been concluded. As the matter was not the subject of submissions, we do not think it is proper to do more than express our sense of unease about the mother’s counsel having been prevented from seeking instructions on an important issue in circumstances where r 73 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) expressly permits a barrister to confer with a client who remains under cross-examination if the barrister “believes on reasonable grounds that special circumstances … require such a conference”. Rule 26 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) is to the same effect.
The trial resumed on 22 February 2016 and the mother’s cross-examination concluded on 23 February 2016, whereupon the trial judge advised the mother that she could have discussions with her legal advisers. As the evidence was not yet completed, the trial was adjourned until later in the year.
On 3 May 2016, the mother sought the listing of an application for the trial judge to recuse himself on the basis of apprehended bias. Written submissions were filed, and on 10 June 2016 his Honour dismissed the application.
A stay of proceedings was granted after the mother filed her appeal on 14 June 2016, which was then expedited.
His Honour’s reasons
The trial judge recorded that the “test” was “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial, unprejudiced mind to the resolution of the question the judge is required to decide” (at [3]). This was the right question; the only issue is whether it was correctly answered.
Although we will make some reference to the trial judge’s reasons, ultimately what we are asked to do by the mother is to review the transcript and conclude that his Honour erred in finding that the observer would not apprehend that he might not bring an impartial mind to the resolution of the issue. Considered from this perspective, little is to be gained from close analysis of the reasons if we ultimately arrive at the same conclusion as his Honour.
Nevertheless, in order to refute a complaint made by the mother’s counsel in oral argument before us, we set out below two paragraphs of the reasons which indicate that his Honour was alive to the need not only to look at the individual components of the complaints, but also to make an overall assessment:
53.The overarching submission in this application is not that the Court has expressed any direct view about the merits of the parties’ application. The solicitor for the mother in part seeks or attempts to draw together a series of questions asked by the Court of witnesses over what has been thus far a seven day hearing that remains part heard. Umbrage is taken by the solicitor for the mother with the Court having asked questions of witnesses.
…
61.The Court has read and considered the amended submissions of the mother, the submissions of the father and the submissions in the reply of the mother. The Court finds that a fair minded lay observer considering in whole and in part the questions or what might be termed interventions of and made by the court would not conclude that I, sitting as a judge in these proceedings, would not bring an impartial mind to the resolution of the question I am required to decide in these proceedings, namely, what parenting order should be made for [the child] having regard to part 7 of the Family Law Act.
The Family Report
In order to provide context to the discussion that follows, we will set out two extracts from the Family Report by the Family Consultant Ms T dated 27 April 2014.
The first is from paragraph 25 where, having already noted that the parties had agreed that they would have “equal responsibility for significant decisions” for the child, the Family Consultant enumerated what she understood to be the “issues in dispute”:
·whether [the child] should live with the father or the mother
·whether the mother is willing to support, encourage and facilitate [the child’s] relationship with the father and the paternal extended family
·whether the father perpetrated physical violence upon the mother
·whether the mother perpetrated physical violence upon the father
·whether both parties perpetrated mutual partner violence
·whether [the child] is at risk in regard to the father’s alleged alcohol abuse, illicit drug use
·whether [the child] is at risk in regard to the mother’s alleged alcohol abuse, illicit drug use, abuse of over the counter pain medication and alleged self harming behaviours
·whether [the child] is being emotionally abused in the father’s household by being exposed to denigration of the mother and her extended family
·whether [the child] is being emotionally abused in the mother’s household by being exposed to denigration of the father and his extended family
The second extract contains the recommendations of the Family Consultant, which were in these terms:
130.If the court finds [the child] is at risk of psychological harm in the mother’s care in that she will not facilitate, support and encourage [the child’s] relationship with the father and his family and that she is engaging in aligning behaviours, it is recommended that [the child] live with the father. It is further recommended that the mother immediately enter into therapeutic counselling, with a therapist registered with Medicare, to address these concerns. It is recommended that a copy of this report be made available to the mother’s treating therapist.
131.If the court finds [the child] is at risk of psychological harm in the mother’s care as the mother has perpetrated family violence, it is recommended that [the child] spend day only time each week with the mother until she has completed an individual therapy program for perpetrators of family violence. Once she has given the father evidence that she has completed such therapy, it is recommended that [the child] commence spending each alternate weekend from Friday to Monday (or Tuesday if a long weekend), each Wednesday from school, to school Thursday, half school holidays and time on special occasions with the mother.
132.If the court finds [the child] is not at risk in the mother’s care, it is recommended that [the child] live with the mother and spend five nights a fortnight with the father, being each alternate weekend from school Friday to school Monday (or Tuesday if a long weekend), each Wednesday from school, to school Thursday, half school holidays and time on special occasions. It is recommended the mother enter into therapy to address her long history of self harming behaviours.
133.It is recommended that both parties provide the court with evidence of their completion of a Drug and Alcohol Relapse Prevention counselling/program and that the father provide the court with evidence he has completed therapy for perpetrators of family violence.
134.If the court finds [the child] is at risk in the father’s care, in regard to denigration of the mother and her family, it is recommended that the father enter into therapy with a therapist registered with Medicare to address his denigration of the mother and her family.
The grounds of appeal
The amended Notice of Appeal filed on 30 June 2016 contained 16 grounds. Rather than addressing these grounds, counsel for the mother made his submissions around five “events” during the trial which he submitted ought to have persuaded the trial judge that he should disqualify himself. It is convenient to consider the appeal by reference to the first four of these events, it being noted that reliance on the fifth was abandoned during argument.
Comments about the mother’s affidavit at the outset of the trial
The mother relies on comments made at the outset of the trial when his Honour was dealing with her adjournment application. To put the comments into context, we note that a major element of the mother’s argument for the adjournment was the father’s late amendment of his application.
In addressing the submissions of Ms O’Rourke, the mother’s solicitor advocate, his Honour said (transcript, 19 October 2015, p 2):
It’s interesting in your client’s case, having read her amended response to an initiating application only filed in September, where, for the first time, she changes her position drastically. And I should say this: when reading her affidavit and then reading the orders that she sought, I was [staggered] to read the 90-odd pages of the [mother’s] affidavit and then the [mother’s] amended response, because I couldn’t – I won’t say marry them up, but I might use the word incongruent ‑ ‑ ‑
A further part of the mother’s complaint concerns the remarks his Honour then made to Mr Graham, counsel for the father (transcript, 19 October 2015, p 4 et seq):
HIS HONOUR: … Mr Graham, is your client agitating for the orders that he has – I know that’s what he sets out in the ‑ ‑ ‑
MR GRAHAM: Yes. Your Honour will see in the family report the orders that are sought by – sorry, the recommendations of the report writer are conditional upon ‑ ‑ ‑
HIS HONOUR: The court making certain findings.
MR GRAHAM: That’s right.
HIS HONOUR: I know. I’ve read the family report.
MR GRAHAM: Well ‑ ‑ ‑
HIS HONOUR: If this, then this.
MR GRAHAM: That’s exactly what his position is. And, given the state of the evidence ‑ ‑ ‑
HIS HONOUR: Is that based in part on the contents of the mother’s affidavit?
MR GRAHAM: Yes, and also on what’s not in the mother’s affidavit, particularly. So the orders he seeks are logical when one looks at the recommendations of the family report writer and then looks at that in concert with the mother’s evidence as it stands. So the position that the father holds is those are the orders that he would seek, but they must be conditional upon them being accepted by the ‑ ‑ ‑
HIS HONOUR: Or making certain findings.
MR GRAHAM: That’s right. So ‑ ‑ ‑
HIS HONOUR: I haven’t made those findings yet, so it’s really ‑ ‑ ‑
MR GRAHAM: And it’s [at] large – sorry, your Honour. You go on.
HIS HONOUR: No. Sorry, Mr Graham.
There was then further interchange with both counsel before this exchange, which is also the subject of complaint (transcript, 19 October 2015, p 7 et seq):
HIS HONOUR: Yes, I understand the argument. I think the matter arises in this way – and Mr Graham will jump to his feet and correct me if I’m wrong. When I said I had read your client’s 91 pages of affidavit and found it incongruent with the orders that your client sought, it is just exactly that. Your client – it contains a litany of complaints so grave, in some cases, the court can hardly imagine how your client seeks equal shared parental responsibility or, to be quite frank, in some regards, why your client is not seeking an order for supervised time. And Mr Graham, I think this – Mr Graham, correct me if I’m wrong. When you talk about the evidence, you’re talking about the mother’s evidence contained in her affidavit is so stingingly critical of the father ‑ ‑ ‑
MR GRAHAM: Yes.
HIS HONOUR: ‑ ‑ ‑ that he’s – I presume he has formed a view as a result of that. You can correct me if I’m wrong, but he has now changed – he has adopted the position he has adopted as a result of the affidavit the mother has put on in ‑ ‑ ‑
MR GRAHAM: In essence, she says he tried to murder her. That’s what she says. That’s her evidence that was sworn last month.
HIS HONOUR: Yes. That’s the holding the window – holding it out or pushing near the window in ‑ ‑ ‑
MR GRAHAM: Yes.
HIS HONOUR: ‑ ‑ ‑ not Laos, in Vietnam; is that the one you’re talking about?
MR GRAHAM: Yes. Yes, I think that’s where it was. Yes. So that’s the case. So if that’s her evidence that she brings as soon as 25 September this year, sworn, with the assistance of a lawyer, not surprising he would take the view that he does. But, your Honour, just in response to what my friend says about the issues concerning [the child], the changes and so on. Of course it’s – my learned friend is quite entitled to, and no doubt will, ask Ms [T] a few things about that and how that can be dealt with. And, of course, Ms [T] is an expert. She is a well-qualified, well-experienced expert in this court, and she undoubtedly can not only answer my friend’s questions but probably assist the court if that is going to be seriously contended as an issue in the case. Never, never ‑ ‑ ‑
HIS HONOUR: Mr Graham ‑ ‑ ‑
MR GRAHAM: Sorry.
HIS HONOUR: Mr Graham, it’s just an unusual case, given the state of the mother’s evidence ‑ ‑ ‑
MR GRAHAM: Yes.
HIS HONOUR: ‑ ‑ ‑ and the orders that she seeks. But, nevertheless, she seeks those orders, and that’s why it’s – I – right.
After discussion about obtaining an updated report, this exchange occurred (transcript, 19 October 2015, p 9 et seq):
MS O’ROURKE: Your Honour, may I respond to those submissions. Firstly, in relation to your Honour’s speculation that the father has sought the orders he has sought because of the mother’s affidavit.
HIS HONOUR: Well, no, it’s not speculation. I only say, Ms O’Rourke, because Mr Graham stood up at the very beginning and said because of the state of the mother’s evidence. Those words came out of counsel’s mouth. It wasn’t speculation by me. He was very clear about it, that’s why I’m turning to the state of the mother’s evidence. That’s why I said having read it myself, the 91 pages of it – that’s why I said at the beginning the mother’s evidence – that was before Mr Graham got to his feet and said he had adopted the position because of the state of the mother’s evidence. I was seeking to clarify something he said, rather than speculating. That was my understanding from what Mr Graham said. I’ve got no particular view about it.
MS O’ROURKE: Your Honour, my recollection was that it was raised by your Honour first ‑ ‑ ‑
HIS HONOUR: I don’t frankly care why it has happened. It has happened.
MS O’ROURKE: ‑ ‑ ‑ and that was then acceded to by my friend. But, firstly, in relation to that particular issue, none of the evidence contained in the mother’s affidavit is new. There are references in the family report. There are affidavits which were filed in 2013 which contain evidence in relation to that. But it’s not a single-sided approach, because the father alleges harm based on historical use of alcohol by the mother, historical use of self-harming by the mother, historical use of drug-taking by the mother. So it’s ‑ ‑ ‑
HIS HONOUR: But he was seeking a change of residence.
MS O’ROURKE: That’s correct, your Honour, but he was, up until 14 September, at least, this year, seeking orders that the child live five days per week with the mother and half school holidays with the mother.
HIS HONOUR: Yes, he was, each alternate weekend and Fridays.
In his reasons for dismissing the disqualification application, the trial judge recorded that his statements at the outset of the hearing were not made “in the process of providing some view about the proceedings or the mother’s evidence, but in the context of a heated application by the mother to in effect abort the commencement of the hearing” (at [15]). His Honour then referred to the failure of the mother to provide a Case Outline, and went on to say:
19.Submissions that the comments made at the commencement of the trial, suggests the Court either did not believe the mother’s allegations regarding the father, or that the Court was of the view that the fact she had made the allegations justified the father changing his position, has no traction in the light of the fact the comments were made in the context of the court engaging Ms O’Rourke and Mr Graham in respect of the mother’s application to vacate the hearing, appoint an Independent Children’s Lawyer and or adduce further evidence.
His Honour then cited a “salient” passage from the transcript in which the mother’s advocate conceded that the mother had failed to provide “a very important piece of evidence” concerning her efforts, after the publication of the Family Report, to encourage the child’s relationship with the father (at [20]). His Honour then stated that he did not accept that anything said in the exchange at the start of the trial would cause a fair-minded lay observer to apprehend that he had formed any view about the evidence of the parties (at [21]).
It was submitted on appeal that the fact that the trial judge’s remarks were made in the course of an adjournment application was not germane to the application for disqualification. We disagree. Given the adjournment was pressed primarily on the basis of the late change in the father’s position, we consider it was not inappropriate for the trial judge to attempt to gain some appreciation of what had brought about the change.
Given the chronology we have set out above, we also consider it was reasonable for his Honour to infer that the father had changed his position as a result of reading the mother’s affidavit. Even if his Honour was wrong about this (and counsel for the father said at the time that he was not) we cannot see how that might lead the observer to apprehend that the judge had formed any view about the outcome, or about the veracity of the mother’s evidence. As his Honour said, the allegations the mother made were grave, and were arguably difficult to reconcile with the orders being sought. However, this does not suggest his Honour necessarily thought the mother’s evidence was not to be believed. Equally, his remarks could have suggested that his Honour considered the mother’s proposals were more generous to the father than would be appropriate if the mother’s evidence were accepted.
Finally, we reject the remarkable proposition advanced by counsel for the mother that his Honour should have corrected counsel for the father when he said, “In essence, [the mother] says [the father] tried to murder her”, when what the mother actually said in her affidavit was that the father had once opened a hotel window, picked her up and held her so she could see out the window, and then threatened to throw her to her death. Even if counsel for the father’s paraphrase of the evidence was not strictly correct, there was no obligation on the trial judge to intervene in the manner suggested.
Accordingly, we find nothing in the opening part of the trial to support the mother’s complaint.
Intervention in cross-examination about a conversation with the child
The second complaint was that his Honour’s interruption of the cross-examination of the father was “excessive and/or inappropriate”.
This part of the complaint relates to the part of the cross-examination where the father was being asked about a conversation he had recorded with the child in 2014, in which the father repeatedly denied the child’s claim that the father had hurt the mother before they separated. After the mother’s advocate had taken the father through the recording, she asked (transcript, 20 October 2015, p 91):
And do you agree that you were entering – it was, basically, you were having an argument with your son about the truth of what he was putting to you?
At this point, the trial judge directed the father to leave the courtroom, whereupon the following interchange ensued with the mother’s advocate (transcript, 20 October 2015, p 92):
HIS HONOUR: … what’s the purpose of this cross-examination; that the father is lying to the child about hurting the mother when the child is a baby?
MS O’ROURKE: No, your Honour. No, your Honour. Your Honour would be fully aware of the social science and also the emotional intelligence around the need not to engage in conversations of this type with a child, particularly, in a high conflict ‑ ‑ ‑
HIS HONOUR: Well, I’m not aware of any social science that suggests that the father should say to his child, “Yes, I perpetrated violence upon your mother at a time you can’t remember because the child told me so.”
MS O’ROURKE: No, your Honour, not ‑ ‑ ‑
HIS HONOUR: I don’t about [sic] any social science that goes towards the father ‑ ‑ ‑
MS O’ROURKE: ‑ ‑ ‑ not at all, your Honour, and I’m surprised that your Honour would say that.
HIS HONOUR: Well, what social science can I take judicial notice of, if I look at section 144 of the Evidence Act, that I can rely upon to say, well, the father should confess to the child that he somehow committed family violence upon the mother? How can it be ‑ ‑ ‑
MS O’ROURKE: Well, your Honour, that’s – that is ‑ ‑ ‑
HIS HONOUR: What – but how do I ‑ ‑ ‑
MS O’ROURKE: Look, I’m gobsmacked.
HIS HONOUR: ‑ ‑ ‑ take judicial notice of that. I can’t. Look at section 144 of the Evidence Act.
MS O’ROURKE: But, your Honour, your Honour would be very aware that every expert who comes into the witness box would say that – even in a situation like this – that the best way to deal with it would be the shut the conversation down, not to engage in an argument with a child about the truth of something.
HIS HONOUR: The child has said to the father, “You’ve perpetrated violence upon mum.” This is at a time when the child would have been too young to remember, and says, “Mum told me.” In fact, the father says – doesn’t try to shut it down – “We’re still friends.” That’s what he says. He tries to allay the child’s fears. If I read – let’s just go through the conversation. …
His Honour, having then walked through the transcript of the conversation with the child, continued (transcript, 20 October 2015, p 94 et seq):
[HIS HONOUR:] So do you tell me that there’s social science I should take judicial notice of that says the father should confess to a child that he has perpetrated family violence on a mother?
MS O’ROURKE: Your Honour – your Honour ‑ ‑ ‑
HIS HONOUR: Because that’s what’s being suggested to the father.
MS O’ROURKE: Your Honour – I – if – you won’t hear what I’m saying. I’m not putting – I did not, at any point, suggest that the father should have said, “Oh, yes, I bashed up your mother.” What I would – what I was ‑ ‑ ‑
HIS HONOUR: Well, what’s the point of the cross-examination, then?
MS O’ROURKE: What I was leading to – and I know that your Honour knows this – that the conversation that he engaged in, in paragraph 21, devolved into an argument with the child.
HIS HONOUR: Yes, I – but this is paragraph 156. Are you saying ‑ ‑ ‑
MS O’ROURKE: Yes, well, page 21.
HIS HONOUR: ‑ ‑ ‑ page 21? Sorry.
MS O’ROURKE: Yes.
MR GRAHAM: Your Honour, I object to the line of questioning.
HIS HONOUR: I just don’t know – I can’t understand the relevance.
MR GRAHAM: Well ‑ ‑ ‑
HIS HONOUR: But more to the point is, is I just don’t ‑ ‑ ‑
MR GRAHAM: Well, isn’t it something for an expert to be asked?
HIS HONOUR: I don’t know how I can take anything out of it. I’m not – I can’t, as a matter of judicial notice, accept that the father should have just given up and said, “No, I did.” What does he do? If the child says, “You’ve done something,” and he says, “No.” In fact, he says, “We’re friends.”
MS O’ROURKE: You could – parents deflect questions ‑ ‑ ‑
HIS HONOUR: I wish more parents would.
MS O’ROURKE: ‑ ‑ ‑ deflect questions all the time, every day, your Honour. It’s done in every household in Australia.
HIS HONOUR: Well, he leaves the child – but he leaves the child the impression that he has perpetrated violence upon the mother.
MS O’ROURKE: Not if he says no the first time, but he doesn’t have to say it nine times, does he?
HIS HONOUR: The child keeps going and the father responds.
His Honour again quoted from the transcript of the conversation, before this exchange occurred (transcript, 20 October 2015, p 97 et seq):
[HIS HONOUR:] You can keep asking him questions; it doesn’t ‑ ‑ ‑
MS O’ROURKE: Well, your Honour, I’m happy to move on.
HIS HONOUR: I will say this: it doesn’t look great for the mother if it’s on a recording. I don’t mind keep going through it. If you want to keep going through it, keep going through the line of questioning on the issue. It’s should – this child should not have been exposed to things he has been exposed to, if the recording is the recording, and I make some finding that, in fact, the mother has been showing photographs to the child, presumably, of some sort of bruising or otherwise damage.
MS O’ROURKE: Your Honour, in my submission, your Honour needs to be careful to connect two dots ‑ ‑ ‑
HIS HONOUR: That’s what I’m saying ‑ ‑ ‑
MS O’ROURKE: ‑ ‑ ‑ because there’s ‑ ‑ ‑
HIS HONOUR: If I make findings ‑ ‑ ‑
MS O’ROURKE: ‑ ‑ ‑ because – because your Honour ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ because I don’t know that I can.
MS O’ROURKE: ‑ ‑ ‑ is going to be making findings on what a six year old – five, six year old child is saying to his father when there might be alternate explanations that are not explored, your Honour ‑ ‑ ‑
HIS HONOUR: That’s what I’m saying. If I make findings – I’m not saying I will make findings, but if I – I may, at the end of it, make no findings. But the point is, is if there’s an alternative explanation, isn’t the father entitled to say to the child, “No, no, no, no, no”? That’s the criticism.
MS O’ROURKE: Well, at the end of the day, your Honour, it’s a matter for you to determine.
HIS HONOUR: Yes, I know. Well, that’s what I’m just saying. I just don’t see the foundation for the criticism that I can see is coming in the cross-examination. If you want to spend – if the father – because you’re putting as a proposition that the father is lying; that was the starting proposition: “You lied to the child, I think, on five different occasions,” I presume, “that is, by saying that you didn’t perpetrate violence on the mother.”
MS O’ROURKE: No, your Honour. I didn’t say that. I didn’t put that to the father.
HIS HONOUR: You’re saying that you didn’t suggest to the father that, “On a number of occasions you told the child something that was not true.”
MS O’ROURKE: No.
HIS HONOUR: I will just go back to my notes. Well, that’s what I have in my notes. Anyway, we will ‑ ‑ ‑
MS O’ROURKE: My instructing solicitor has no recollection of that, your Honour. I certainly don’t. Certainly, not in my cross-examination notes.
HIS HONOUR: All right. I don’t think I just dreamed it up.
MR GRAHAM: I can’t assist your Honour.
HIS HONOUR: Yes. It’s all right. That’s okay. Look, we will move on. We will recall the witness.
The transcript reveals that his Honour was wrong in recalling what questions had been asked by the mother’s advocate, and he was mistaken in his apprehension about the purpose of the line of questioning. His Honour did not acknowledge his error when giving his reasons on the recusal application, instead dealing with the complaint in these terms:
25.The solicitor for the mother refers to the decision of Kirby J in the decision of Galea regarding excessive intervention by the Court and other authorities. The Court does not accept that the Court’s intervention was excessive or comments made were inappropriate. The Court intervened in circumstances where it could not understand the relevance of the cross-examination.
26. Ultimately, the Court adopted an approach to allow the cross-examination to continue. The relevance of such cross-examination must be considered in light of the orders the mother continued to seek in the trial for equal shared parental responsibility and that the child spend substantial and significant time with the father.
…
28. The Court was cognisant of the orders the mother sought and continues to seek on a final basis. Cross-examination must be relevant to the case being made by the party on whose behalf cross-examination is undertaken. It was not apparent on several occasions as to the purpose or what might be better termed relevance of the cross-examination of the father. Perhaps had the solicitor for the mother provided a brief summary of argument and list of issues for determination the Court would have been left in a better position to understand the issues to which the cross-examination was directed.
While the trial judge misunderstood the line of questioning, and while we doubt the wisdom of his Honour intervening in the way he did, we are not persuaded that his conduct would cause the observer to apprehend that he had formed a view about the way in which the matter ought to be decided. It is true that his Honour appeared to be proceeding on the basis that the father’s conduct in relation to this discrete issue was appropriate, but he indicated that he was prepared to allow counsel for the mother to continue the cross-examination, which she did, albeit she elected to take a different tack. Tellingly, shortly thereafter, the following exchange occurred between his Honour and the father (transcript, 20 October 2015, p 99):
HIS HONOUR: [Mr Welling], do you think that it’s normal to record the mother at handovers, and it’s normal to record the child when he’s speaking to you?‑‑‑No, probably, not. No.
Has this become a normal part of your interaction with the child?‑‑‑Sometimes, yes.
Yes. Do you sit and play back the recordings to yourself when [the child] is not there?‑‑‑I – no – I don’t listen to everything, no.
Do you think that, perhaps, it’s unhelpful to record everything that [[the child] says], that is, unhelpful to you as a parent, perhaps, parenting your son?‑‑‑It may be, yes.
That is, if you recorded something that a child said, and you had a chance to replay it, do you think it’s helpful raking over what a six year old child says to you? Do you understand the question? If you don’t, tell me. If you – [the child] is six years of age?‑‑‑Yes. That’s right.
Okay. So would you accept that his level of just general maturity and understanding of the world is less than, perhaps, an adult?‑‑‑Yes, your Honour.
So, sometimes, if you ask him a question, given his level of maturity and, perhaps, in some cases, limited understandings, he might give an answer that might not be well thought out?‑‑‑Yes, your Honour.
Okay. Do you think that replaying conversations where a child gives an answer that might not be well thought out is necessarily good for you as a parent if you’re raking over something that a six year old says?‑‑‑Possibly not, no.
Yes. All right. Thank you.
MS O’ROURKE: Thank you, your Honour.
It will be seen that while his Honour had earlier intervened in a way that might be seen to be supportive of the father’s case, almost immediately thereafter he intervened in a way that might be seen to be helpful to the mother’s case. The observer might wonder why his Honour thought it necessary to intervene at all when both parties were represented, but given the even-handed nature of the interventions, at least at this point, we do not consider the hypothetical observer would feel that his Honour had prejudged the ultimate issue. As Gleeson CJ and Gummow J said in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [71], “the question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion”.
It is also significant that, at this point, his Honour was yet to hear any views the Family Consultant might have on this topic. The Family Consultant was later asked about the discussion between the father and the child, as appears below (transcript, 23 October 2015, p 321 et seq).
[MS O’ROURKE:] Going on to page 21, you would agree that this part of the conversation relates to whether the father had hurt the mother ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ in the eyes of [the child]?‑‑‑Yes.
Would you agree that what the father did effectively was begin arguing with the child about that particular issue?‑‑‑Yes.
And you would agree, would you not, that in some circumstances reality testing of the child in response to a particular piece of information is appropriate by a parent?‑‑‑Yes.
But you would agree that probing a child for information is not in the child’s best interests?‑‑‑No.
And entering into an argument with the child is not in the child’s best interests?‑‑‑No. It’s better to distract if you can.
And so what would you say about the way the father conducted the interview on page 21, in particular the first half of that page?‑‑‑Well, it ‑ ‑ ‑
HIS HONOUR: I should stop you there. I’ve heard the recording. I don’t necessarily agree that there were interviews with this witness; it’s not an interview.
Ms [R],[1] do you agree it was simply a recording of a conversation in a motor vehicle between a father and son?‑‑‑Yes.
[1] His Honour mistakenly referred to Family Consultant T as Ms R on a number of occasions.
Do you agree, having heard the conversation, that this child never brought the issue up?‑‑‑Yes.[2]
[2] The transcript of the recording at [156] of the father’s affidavit would suggest otherwise, but if this statement by his Honour is an error, it would seem to be an error adverse to the father’s interests.
That it was instigated by the father?‑‑‑Yes.
All right.
MS O’ROURKE: So, Ms [T], I’m referring to down to – well, in fact the whole of that page, and then on to the following page, where the father says, “I’m sure mum probably said that, but it doesn’t mean that it’s true”?‑‑‑Yes, look, the first page - the “was, wasn’t, was, wasn’t,” or “was no, was no” - some of that I felt was the father then trying to be a little light‑hearted, making a game out of it, but then when he revisited it, “And your mum might have said it, but it’s not true,” you can actually hear [the child] feeling quite angry about that, and that should have been ceased immediately with some sort of distraction.
HIS HONOUR: Well, Ms [R], if the conversation ceased wouldn’t it be the case the child was left with a very, very clear impression that the father in these proceedings had harmed the mother?‑‑‑No ‑ ‑ ‑
That is if he didn’t – if he stopped and gave in – in effect he would have had to have given in, wouldn’t he, and so ‑ ‑ ‑?‑‑‑No, I don’t think so. I think you can clearly ‑ ‑ ‑
‑ ‑ ‑ and acceded to the view of the child?‑‑‑I think you can clearly say to a child, “That didn’t happen,” and if the child then continues on I think you can clearly say, “Mate, I’m not going to talk about this with you [anymore]. It’s not children stuff. I didn’t hurt your mum and we’re going to talk about something else.” I think that then leaves the child with a clear statement from a parent but then doesn’t need to go into, “Well, who was lying; who wasn’t lying,” which it seemed to do over the next little while.
Didn’t it end up with distraction and light-hearted when they start talk about wrestling ‑ ‑ ‑?‑‑‑It did ‑ ‑ ‑
‑ ‑ ‑ when the child grows up, rather – there was no tears, for instance; the child didn’t become more than annoyed, or perhaps more than forceful?‑‑‑No, but I think what happened, which was probably unnecessary, is you could hear [the child] getting quite angry about – obviously he can see that dad was saying, “Mum’s not telling the truth.” He got quite angry about that.
Is that because the force at which the child must have been told about the incident was of such a type that the child was left with a clear unequivocal impression that the father had been harming the mother? That is the force of his views about it could have only come from the impression the mother gave to the child about it?‑‑‑Well, yes, because ‑ ‑ ‑
Do you understand the question that I’m asking?‑‑‑Yes. Well, yes, because it’s very clear that [the child] firmly believes this. You know, “Yes, you did, and you did it – you hurt my mum, and, you know, there was a photo of it.” And then when dad tried to say, “Well, mum might have said it but that’s not true,” you could hear this little child getting quite, you know, angry and indignant about this. So that tends to suggest that he believed that that was true.
Is this significant aligning behaviour?‑‑‑Yes. If a child has been told that the other parent has physically hurt that parent, then it is aligning behaviour.
You having heard the recording, is that your view, that this child has been told these things?‑‑‑It would seem to be, yes.
The complaint about apprehended bias was made and considered prior to the delivery of judgment in the substantive proceedings, so we do not know what his Honour made of the Family Consultant’s opinion that the father did not deal appropriately with the conversation with the child. We are unable to conclude from the transcript that his Honour was so firmly attached to his initial impression of the father’s conduct that he will reject that opinion.
We conclude our discussion of this complaint by noting that the proceedings below are being conducted under Division 12A of the Family Law Act 1975 (Cth) (“the Act”). We are therefore not assisted by reference to what counsel for the mother called the “old authorities” which deal with the extent to which it is permissible for a judge in civil proceedings to intervene in the conduct of the trial. The principles relating to Division 12A proceedings are laid down in s 69ZN of the Act. Subparagraph 69ZX(1)(e) provides that, in giving effect to the principles in s 69ZN, the court may ask questions of parties, witnesses and experts on matters relevant to the proceedings. Even more significantly, s 69ZR provides that:
69ZR Power to make determinations, findings and orders at any stage of proceedings
(1) If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c) make an order in relation to an issue arising out of the proceedings.
Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2) Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3) To avoid doubt, a judge, Judicial Registrar, Registrar or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
If a judge is able to make a finding on a disputed issue during the trial without being obliged to disqualify himself, then it would seem to follow that the fact a judge appears intent on determining an issue against a party may not, in itself, provide a basis for disqualification (although the point in the trial process at which this becomes apparent may be relevant). And different considerations would apply if the intention to decide in a particular way related not to a discrete issue, but rather to the outcome of what s 69ZR(1) calls “the dispute between the parties”, which we take to mean the ultimate issue.
For these reasons, we do not consider this part of the complaint is made out.
Intervention in cross-examination about family violence
The next part of the mother’s complaint concerns this passage of the cross-examination of the father (transcript, 20 October 2015, p 137; emphasis added):
[MS O’ROURKE:] You said to her, “Do you want to die? Do you want [Mr S, the mother’s partner] to die?” Is that right? You said to her?‑‑‑I may have done. Yes.
Why did you say that to her?‑‑‑As I mentioned [the mother] was still seeing [Mr S] at the time. They would have seen each other for that brief period and had been telling me that it was over between them. I had found ‑ ‑ ‑
HIS HONOUR: Sorry, Mr [Welling], can you say that again?‑‑‑Sorry. [The mother] had still been seeing [Mr S] during that time, that brief period in January that we were seeing each other, and had told me that they were no longer together and I found out that they were together just recently and was upset about being lied to.
MS O’ROURKE: But you said that you had no interest in getting back together with [the mother]. Is that correct?‑‑‑That’s correct, yes, but wanted us to be friends.
So why were you – why were you so moved by what she said that you would say, “Do you want to die? Do you want [Mr S] to die”?‑‑‑At the time it was – it was upsetting. [The mother] was telling me a lot of things about how she felt towards me at the time and that she wasn’t with [Mr S] any more. That was while we were seeing each other again briefly and ‑ ‑ ‑
But how does that explain you saying something as confronting as that?‑‑‑[The mother] had laughed about it and just thought it was funny. She didn’t see the need to apologise for it at all.
So it’s [the mother’s] fault that you said that to her?‑‑‑No. I’m just saying that’s why.
She made you do it, did she?‑‑‑No, she didn’t make me do it.
HIS HONOUR: Mr [Welling], in hindsight, would you say that sort of thing again?‑‑‑No.
Do you think it was hurtful to the mother to say something like that?‑‑‑Yes.
Did you mean to hurt the mother emotionally when you said it?‑‑‑At the time I did. Yes.
And were you angry and hurt yourself? Is that the reason you said it?‑‑‑Yes. Yes, your Honour.
Do you think it was constructive to your parenting relationship with the mother?‑‑‑Not at all, your Honour.
Right.Thank you, Ms O’Rourke.
It was submitted that his Honour gave no reasons in his judgment to justify this particular intervention in the cross-examination. Although that is true, it should be observed that the mother’s submissions on the disqualification application ran to 157 paragraphs. A judge would not be expected to engage with every one of the submissions on such an application, since ultimately the matter falls for determination on the impression to be gained by the fictional observer of the entirety of the proceedings. It should also be observed that the mother’s written submissions referred only to the one question which we have highlighted in the passage above, and overlooked the other questions which could be seen as implying criticism of the father.
The mother further submitted that the trial judge “took on the role of Advocate by asking questions … which could have been asked in re-examination”. In advancing the complaint, counsel referred to old dicta to the effect that a judge should only ask questions to clear up any point that has been overlooked or left obscure. In our view, however true this may be in other litigation, it does not apply in proceedings under Division 12A, where a judge has a legislative mandate to ask questions.
We also think it is important to appreciate that when conducting litigation about children, the function of the modern judge extends beyond pronouncing a final judgment. We consider it is now well established that a judge is at liberty to ask questions designed to encourage parents to reflect on their past conduct and inspire them to act in a more child-focussed fashion in future. A carefully crafted question coming from the bench dealing with such issues is potentially far more powerful than one coming from counsel in re-examination.
In our respectful view, his Honour’s question about which the mother primarily complains (“were you angry and hurt yourself?”) was not carefully crafted, since it suggested a convenient excuse to the father for very poor conduct. The question could have been asked in an open and hence more even-handed way, by asking the father to use his own words to explain his threatening behaviour. Considered on its own, we think the way the question was framed would have given the observer pause for thought about his Honour’s motivations, but the question cannot be considered on its own, since it appears among a string of questions, the upshot of which was that his Honour secured a concession that the father’s threatening behaviour was “not at all” constructive to the “parenting relationship”.
This was potentially a significant concession in a case where “aligning behaviour” was emerging as a significant issue. The trial judge’s attitude toward the mother’s “aligning behaviour”, if such behaviour was proven, may well be different if he were satisfied that the father behaved in a way that the father himself accepted was not conducive to the “parenting relationship”. Thinly veiled threats such as the one conveyed by the father’s questions, “Do you want to die? Do you want [Mr S] to die?” would scarcely be glossed over merely because his Honour accepted that the father felt “angry and hurt”. Once again, we do not know what his Honour is going to make of these matters because he has yet to give his substantive judgment.
Accordingly, we are not persuaded this complaint is made out.
Intervention in cross-examination of the Family Consultant
The mother complains about three “critical interventions” of the trial judge in the cross-examination of the Family Consultant by the mother’s advocate. In advancing these complaints, counsel for the mother invited us to accept that his Honour had already made it clear that the issue of aligning behaviour had assumed such prominence in his mind that it transcended all other issues.
The first intervention
The first “critical intervention” relates to the questioning of the Family Consultant about the father’s conversation with the child. We have earlier set out the relevant passage, in which his Honour might be seen as advancing the view that the father was right to keep disagreeing with the child about the boy’s belief that his father had hurt his mother. Counsel for the mother submitted that when the Family Consultant seemed undeterred by his Honour’s efforts to make her accept that the father’s conduct was appropriate, he then “took a different tack” by suggesting that the child’s belief “must” have come from the mother. It was also submitted that his Honour had twice cut off the witness in mid-answer when she began to reject the proposition he put to her.
Given that the child was only aged two when the parties separated, and given the child’s assertion that there was a photo to prove that the father had “hurt” the mother, we do not consider it was impermissible for his Honour to have formed at least a preliminary view that the child’s belief was based on what he had been told, rather than what he himself recalled.
Counsel for the mother complained in her submissions below that his Honour had effectively destroyed her cross-examination by interfering too frequently, and that his interruptions were such that the Family Consultant may have been prevented from giving evidence helpful to the mother’s case. It was submitted that it was particularly important in the case of cross-examination of an expert for counsel to have a “run of questions and answers”, without having to meet interventions by the trial judge that might have an effect on later evidence. While we are inclined to accept that his Honour’s interventions were unwise, we do not consider they reached such proportions that the mother’s advocate was denied the opportunity to elicit evidence favourable to her client’s case. Indeed, as examination of the transcript demonstrates, the witness was not deterred and maintained her negative view of the father’s conduct.
In dealing with the mother’s submission that the trial judge prompted the Family Consultant to give evidence favourable to the father, and had abdicated his role as the fact finder to the Family Consultant, his Honour said:
34.The Court does not accept the proposition made by the solicitor for the mother that the Court influenced Ms [T] or left her in no doubt about the Court’s view. Each question asked of Ms [T] was capable of a response that could have gone in favour or against each of the parties’ cases. The Court does not accept the proposition that the Court had abdicated its role to the family consultant. What must be remembered and what is not lost is that ultimately the Court will need to make findings in the proceedings.
35.The test to be applied in the proceedings is not one where if the Court finds the mother has sought to align the child the child will therefore live with the father. The Court must, of course, make orders that are in the best interests of the child after a detailed consideration of part 7 of the Family Law Act, particularly those sections – section 60CC, section 61DA and section 65DAA. The issue of alignment is only one of a number of issues to be considered in the proceedings.
We consider there is force in these remarks. Even if we accept his Honour had formed a view by this stage (after the father’s case had closed and the mother had been cross-examined for more than two hours) that the mother had engaged in “significant aligning behaviour” prior to the father’s conversation with the child in 2014, this would not lead the observer to conclude that the trial judge had determined that the father would obtain the relief he was seeking. A finding that the mother had earlier engaged in “aligning behaviour” would be just one matter his Honour would have to consider. It might be thought, for example, that the mother’s more recent conduct would be of greater significance than her behaviour before 2014. Indeed, the mother’s counsel foreshadowed this at the outset of the trial when she said (transcript, 19 October 2015, p 6; emphasis added):
However, your Honour, since the preparation of the report there were consent orders made in August of last year which provided for the father to spend five nights per fortnight, as well as school holiday periods, special occasions, two times per week that he would have telephone communication. So it’s a very fulsome, significant and substantial time arrangement that has been in place for over 12 months. And now, on the eve of the hearing, despite the fact that there is reference to the observations made by Ms [T], it doesn’t take into account everything that has occurred since then but, more particularly, the fact the father is enjoying a very fulsome caring arrangement.
One significant impediment we face as an appellate court is that we are asked to consider the matter by reference only to the transcript, which does not convey the tone in which questions were asked and the “body language” employed. Thus, the question about which much complaint was made (“Is this significant aligning behaviour?”) could have been asked “deadpan” or in a way that was clearly “leading”. His Honour recognised this when he commented on the mother’s submissions on the recusal application in these terms:
31.At paragraph 56 of the mother’s submissions quotes are taken from the transcript that are significantly altered in that while they recorded the contents of the transcript the text is altered by the adding of bolding and italics to particular words, in the view of the Court for the purpose of importing meaning to a question outside of that, which would have ordinarily been gleaned from the transcript.
In any event, the term “significant aligning behaviour” was not a label his Honour entirely manufactured. Rather, it echoed the Family Consultant’s own report in which she said she would recommend that the child live with the father if the mother was “engaging in aligning behaviours”. That being so, it was important for his Honour to understand whether the behaviour that was the subject of the questioning was perceived by the Family Consultant to fall within that category. It is also important to recognise that the witness was an expert who would not be expected to be easily led in the way a lay witness might be when asked a question from the bench. Indeed, the witness had, just a few moments before, demonstrated she was quite capable of disagreeing with a proposition that seemed to find favour with his Honour.
Counsel for the mother argued before us that “the Trial Judge did not put a single question to Ms [T] as to any aspect of the father’s conduct, in particular his recording of the mother’s statements at changeover or his recording of statements and conversations made with the child”. Although this may be true, we are not convinced there was any need for his Honour to do so, as he had already questioned the father and obtained concessions about the impropriety of him recording conversations with the child.
The second intervention
The second “critical intervention” in the cross-examination of the Family Consultant was said to have been made in the following passage (transcript, 23 October 2015, p 323 et seq):
[MS O’ROURKE:] Now, it’s the case, isn’t it, that there’s evidence that [the child] at aged five, [the child] at aged six, is saying different things to different people about what he believes to have occurred?‑‑‑Yes, and this isn’t in-common – uncommon in children who are trying to live between conflicted parents, is that they often tell a parent or both parents really worrying things about the other person. And it really is quite hard sometimes to sift through and find out, you know, what’s the case and what isn’t the case.
Do you think one of the problems is in circumstances where the father has admitted that he has recorded the child hundreds of time – he gave that evidence. The paternal aunt’s evidence is, “[The child] knows he’s being recorded,” at least at this point. “[The child] knows ‑ ‑ ‑“
HIS HONOUR: Now, when you say “this point” are you talking about in this motor vehicle; in this conversation?
MS O’ROURKE: Well, the paternal aunt said that she observed the father to put the phone on the table and the father to record conversations with [the child], and I put it to her, “Is it your view that [the child] would know that he’s being recorded?” and she said, “Yes.”
HIS HONOUR: Is there any suggestion in the evidence that the child would have been aware that the father is recording him whilst in the motor vehicle?
MS O’ROURKE: Well, he gave evidence that he puts it on the console in the middle of the car, and if he’s aware of it being recorded at home your Honour might form the view that he might be aware that he’s being recorded on the way home.
HIS HONOUR: Yes. But be clear, the way in which you say the child would have been aware he’s being recorded at this point, or at this time – if you want to re-ask the question.
MS O’ROURKE: Yes, I will withdraw it, your Honour, if it’s misleading.
I will put it this way: if his Honour finds that [the child] is aware that his father is recording him, and that [the child] is aware of the conflict between the parties, do you think that there is a risk that [the child] will be saying things that he thinks that the father might want to hear about his mother?‑‑‑Look, I think we can separate it from being recorded. One would think if [the child] was astute enough to know he’s being recorded and what the purpose was for he probably wouldn’t be saying negative things about his mother, because he would probably be concerned he would get found out. If we can bring it back to the way children behave in these sorts of conflicted families is that it is very common when they’re with dad they will say very negative things about mum; when they’re mum they will say very negative things about dad. You know, some of them are true, some of them are exaggerated, and some of them are completely fabricated.
HIS HONOUR: Ms [R], you’ve just sat through and heard the recording of [the child] in the car talking about the father having hurt the mother?‑‑‑Yes.
You used the word the child was “indignant”?‑‑‑Yes.
He became – for want of another expression – probably somewhat annoyed by it?‑‑‑Yes.
In your view is this – do you think that somehow the child said these things, or made it up ‑ ‑ ‑?‑‑‑The trouble is, your Honour, with ‑ ‑ ‑
‑ ‑ ‑ because he was being recorded?‑‑‑ ‑ ‑ ‑ [The child] – that sounded very genuine, but when he answered my question on Monday he also sounded very genuine, when I asked him, you know, “Has, you know, dad ever hurt mum?” “No,” he said.
Do you think it’s because the father pulled the child up quite hard about the fact he hadn’t?‑‑‑I don’t – I don’t ‑ ‑ ‑
Because ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ know. It’s just – [the child] can answer the same question two completely different ways and seem quite genuine at times in answering them.
Is that because the child is being exposed, perhaps, to things such as either conflict or aligning behaviour?‑‑‑It could well be.
Is this the damage you talk about from aligning behaviour, or the possibility of damage of aligning behaviour?‑‑‑Yes. Because if they are telling exaggerations or falsehoods they know in a part of their brain that that’s naught or wrong; they feel guilty. Then when they go back to the parent they’ve told something awful about, that they feel they’ve betrayed that parent. And this is the psychological stress that builds up and builds up and builds up and builds up in children till they get to about pre-adolescent and they really just throw up their hands and say, “I can’t do this.”
What, and reject one of the parents?‑‑‑And that’s why they just completely reject one so that they don’t have to have this awful behaviour. And having now met [the child] twice, and seen him when I think he’s telling the truth and seeing him when he has admitted he’s not telling the truth, I think he’s a very perplexed and confused child. I think he’s really mired into this.
Is he displaying, in your view, the signs of aligned behaviour?‑‑‑He’s ‑ ‑ ‑
Or are these early signs of it?‑‑‑We talk about a continuum of alignment. You know, right at the bottom is a child who’s happy to go between the parents and says they have a lovely time and everything is fine. The very other end is never going to see that person again; hate everything about them; there was never anything nice about them historically. What we find with children – and I think [the child] is probably at this stage – is that he tells his mum that, you know, he doesn’t want to go; his dad’s awful; his dad’s hurt him, etcetera, etcetera. But once he gets to dad, away from the gaze of mum, he can have a really lovely time. But then he has to go back and say, “Oh, it was awful and I was hurt and it was just dreadful.” So that’s where he is on the continuum. If things continue with no change at all with the parental behaviour then it is highly likely that – and they say by 11 – after 11 you’ve really missed the boat; that by 11 they really just go, “No, too hard; can only have one parent.”
So not hypothetically, you’re telling me, this court, that you think that [the child] is somewhere on the continuum of alignment?‑‑‑Absolutely.
And you say to this court that [the child] is in the early stages of it?‑‑‑Yes.
Going back and telling the mother awful things because he’s in the situation where he’s being aligned; is that what you’re telling the court?‑‑‑I would place him on the continuum of alignment, yes.
And do you therefore tell the court that the only way to deal with this is to change the living arrangements of the child?‑‑‑You either change the attitudes and behaviours of the aligning parent, or you change the residency of the child.
The – okay.
MS O’ROURKE: So the behaviour of the father in recording the child and asking him to repeat information for the purpose of the court, would you consider that to be aligning behaviour?‑‑‑Yes.
Would you consider it to be aligning behaviour if – excuse me, if I could just find my note. Would you consider it to be aligning behaviour if the paternal aunt said to the child that her mother – his mother doesn’t love him as much as she does?‑‑‑Yes, that’s very damaging behaviour.
The mother’s advocate observed in her submissions to the trial judge that “having shown an initial openness to consider an alternative to the alignment theory Your Honour asked no clarifying or further questions regarding the issue of [the child’s] exposure to parental conflict” and instead focused “to the fullest extent” on the alternative explanation of “aligning behaviour”. The mother’s advocate complained that his Honour’s intervention resulted in a loss of “the flow of sequence and answer” and that, as a result, her capacity to challenge the answers of the Family Consultant was compromised.
We accept that his Honour did appear to be strongly focused on the issue of “aligning behaviour”, but it is noteworthy that he did not intervene when the mother’s advocate was successful in having the Family Consultant accept that the father and the child’s “paternal aunt” had also engaged in “damaging behaviour”. Furthermore, we are unable to discern anything from the transcript to indicate that there was any impediment to the mother’s advocate to explore the extent to which the Family Consultant may have considered that the “conflict” could have provided an explanation for the boy’s behaviour.
His Honour’s question, “do you therefore tell the court that the only way to deal with this is to change the living arrangements of the child?” must be understood in the context of the fact that the Family Consultant had already said in her report that “If the court finds [the child] is at risk of psychological harm in the mother’s care in that she … is engaging in aligning behaviours, it is recommended that [the child] live with the father”. If the trial judge was intent on eliciting only evidence favourable to a change of residence, it might be thought that he would not have asked that question at all, since asking the question provided an opportunity for the Family Consultant to give a less firm or different opinion to the one already clearly expressed in her report.
The concern that might have been felt about the trial judge’s perceived focus on the issue of alignment must now be seen to have dissipated to a considerable extent as a result of his Honour having made clear in his reasons that “the test to be applied in the proceedings is not one where if the Court finds the mother has sought to align the child the child will therefore live with the father”. Had the mother’s advocate expressed her concern about his Honour’s apparent focus on this issue during the course of the hearing, rather than in the context of a formal application for disqualification, his Honour would then have had the opportunity to correct that impression – for example, by saying precisely what he did in his reasons to the effect that the alignment issue would not be determinative, notwithstanding what the Family Consultant said in her report.
The third intervention
The third “critical intervention” relied upon by the mother relating to the cross-examination of the Family Consultant is contained in this passage (transcript, 23 October 2015, p 327 et seq):
MS O’ROURKE: Did you find your note?‑‑‑Yes.
And the note is that the mother told you that [the child] said, “Don’t you love me as much as – don’t you love me as much as Aunt [M]? She loves me more than you do”?‑‑‑Yes.
That’s an example of – a similar example of [the child] coming back to the mother and claiming something about what’s happening in the household of the father, isn’t it?‑‑‑Well, this is the same thing I’m talking about. He’s coming home to mum’s place from dad’s and telling her negative things, because [the child] would know, I think, even at this age, that if he said that to the mother it would probably hurt her feelings. So it wasn’t a positive thing he was reporting.
But he was putting – no, he was putting to her that, “Aunty [M] loves me more than you do”?‑‑‑Yes, yes.
And that might be – indicate that he feels a sense of a tug of war between the paternal aunt, who’s a significant person in the household of the mother for him – father, sorry, for him?‑‑‑Mmm.
You would agree she’s a significant person in [the child’s] life?‑‑‑Yes. But, look, he may just be checking it out. If it was said, or he heard it – kids will often just come back and check that against an adult, like, “This was what was said,” and then the adult says either yes or no.
[HIS HONOUR:][3] Well, Ms [R], you also suggested that it’s aligned behaviour. Is the suggestion that perhaps the child – because you say the child would know that it would hurt the mother. Do you say that the child could be doing it, saying it to the mother, knowing the mother will form a negative view about something in the father’s household?‑‑‑Yes.
[3] Although it is not apparent from the transcript, we accept the submission that this, and the questions following, were posed by his Honour (it being noted that he again refers to the witness as “Ms [R]”).
So you’re saying in fact it may not be true and just a symptom of the child’s aligned behaviour?‑‑‑It may be, that’s what I said. Either he has heard it and he’s just coming to check that out, “Is it true that you don’t love me as much as Aunt [M]?” ‑ ‑ ‑
Or ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ or it could be, you know, “This is going to upset mum; this is a negative.”
Yes?‑‑‑“This is what’s being said at dad’s house.”
“So I’ll say it to mum too to upset her and ‑ ‑ ‑“?‑‑-It’s another negative to report.
Because the child thinks that that’s what mum wants to hear?‑‑‑Yes. It’s not because the child wants to be unkind to the parent. It’s their way of – I think I said this in my first report. It’s their way of re-bonding back into – if you think of them as teams, opposing teams, if they’ve got to go and ‑ ‑ ‑
“I’m back in your camp and I’m bringing back some negative information ‑ ‑ ‑“?‑‑‑Absolutely.
‑ ‑ ‑ “about what’s happened there”?‑‑‑“Because what I have to assure you of now I’m back, even though I’ve been with that team, is I’m still on your team.”
“I’m a spy for your team”; is that what you’re saying?‑‑‑No, it’s just re-bonding. It’s saying, “Don’t worry, I’ve been over there, but I’m still on your team, and to prove it I’ll tell you all the awful things that were said and done over there.”
All right.
MS O’ROURKE: Just – sorry to take you back, but would you agree that in that paragraph 156 disclosure – it’s page 22 of 44 – on the top of the page, the father says, “I’m sure mum probably said that, but that doesn’t mean it’s true”?‑‑‑Yes.
That’s aligning behaviour, isn’t it?‑‑‑It’s showing the mother in a negative light.
Well, it’s telling [the child], “I believe mum’s telling you this”?‑‑‑No, well, what it’s saying is that his mother doesn’t always tell the truth, I think. “I’m sure mum probably said it, but it doesn’t mean it’s true.” That indicates that – I think it’s sort of saying, you know, to [the child], “I’m not saying you’re lying, mate. I’m sure your mum did say it,” but I’m telling you it’s not true. So [the child] is left with, “My mum’s lying.”
But ‑ ‑ ‑
HIS HONOUR: Ms [R], without seeking to muddy the waters, again I want to crystal clear with you: it is your view, based upon your reading, that the mother is engaging in aligning behaviour; is that correct?
MS O’ROURKE: Well, your Honour, I object. I object.
HIS HONOUR: I’m just – well, I’m just trying to understand ‑ ‑ ‑
MS O’ROURKE: If your Honour would allow me to continue ‑ ‑ ‑
HIS HONOUR: I want to ‑ ‑ ‑
MS O’ROURKE: ‑ ‑ ‑ with the cross-examination, your Honour.
His Honour then sent the Family Consultant from the courtroom and heard the objections of the mother’s advocate (transcript, 23 October 2015, p 329 et seq).
MS O’ROURKE: Your Honour, can I say I’ve stood ‑ ‑ ‑
HIS HONOUR: I’m not trying to – I’m not trying to ‑ ‑ ‑
MS O’ROURKE: ‑ ‑ ‑ silently while you’ve cross-examined the witness.
HIS HONOUR: ‑ ‑ ‑ run your case, but I really – I’m really trying to – I’m really trying to understand what this witness’s views are, and if it’s your case that – I haven’t heard suggested that the father previously in his cross-examination – that he’s seeking to align the mother against – sorry, align the child against the mother. I’ve not heard that put to him in cross‑examination. Is this now a change in your client’s case that it’s actually – what’s taking place is the father is aligning the child against the mother?
MS O’ROURKE: Well, your Honour, firstly, I don’t ‑ ‑ ‑
HIS HONOUR: Because I’m trying to understand where your cross-examination is going.
MS O’ROURKE: Well, your Honour, firstly, I don’t need to put that to the father in order to cross-examine the witness ‑ ‑ ‑
HIS HONOUR: No, I’m just saying you haven’t put it to the father. I’m trying to – that’s why I said at the beginning of your case the orders that your client seeks – and I’m saying it in the absence of the witness – are incongruent with your client’s affidavit. I need – I’m struggling to understand your client’s case, I actually really quite truthfully am, having regards to the cross-examination of the father and your client’s evidence. Because your client does seek an order for equal shared parental responsibility and does seek an order for substantial and significant time.
MS O’ROURKE: Well, your Honour ‑ ‑ ‑
HIS HONOUR: Is it your client’s case now that the father – whatever has happened to the child is a product of alignment and the father is the aligning person; is that where we’re heading?
MS O’ROURKE: Your Honour my submission ‑ ‑ ‑
HIS HONOUR: That’s why I’m trying to clarify from this witness, because she has given certain evidence and I’m trying to understand what is her position, because I don’t want to be left in a situation where whatever she says has been muddied to the extent where I’m not sure what it is that she said. I really need to try and understand what is this client – what is this witness, who’s an expert in the proceedings, trying to impart upon this court. I need to understand what she’s saying.
MS O’ROURKE: Well, I will answer ‑ ‑ ‑
HIS HONOUR: Because she’s talking about your client – about the father aligning. Is she saying the child is aligned? I don’t know. Is that what she’s saying? I don’t know.
MS O’ROURKE: Your Honour, firstly, the – it’s likely that the submission that I will make is this child is a victim of an intractable conflict between these parents. This is - your Honour doesn’t need to be told that he has been the subject of a protracted litigation that has involved the father using him as a source of evidence for these proceedings, and that it’s clear from the report where there is evidence on the one hand of [the child] telling people certain things – for example he tells the case worker that dad punched him in the stomach. But Ms [T’s] view is that’s unlikely to have occurred; that [the child] is a boy who will say things that are not necessarily based in truth.
Plus, your Honour, I’m yet to cross-examine Ms [T] in relation to his development phase and the particular features of that developmental phase. So I know that my friend would cast it that it’s all to the sins of the mother that the father is saying certain things to dad and certain things to mum, but – and saying things to the report writer which are inconsistent with what he has said to the father, but in my submission it’s all grist to the mill that this child – one has to be very cautious about the weight that you place on the statements that [the child] makes and the interpretation that’s put on the origin of those statements, and the motive behind any communications that he has received. And in relation to my cross-examination of the witness, your Honour, my submission is that your Honour should give me an opportunity ‑ ‑ ‑
HIS HONOUR: Yes, I’m happy to do it. I’m just trying to ‑ ‑ ‑
MS O’ROURKE: ‑ ‑ ‑ complete that cross-examination.
HIS HONOUR: Yes, I’m happy for you to complete the – I don’t mean to – I’m trying to ascertain from this witness – because she’s giving a variety of answers to a variety of questions. Is she changing her position, because I need to understand that, or is she just answering your questions and unrelenting in her position? And I need to understand is whatever she’s saying in answer to your questions she’s changing her view. Because that’s why I said I need to be clear, because ‑ ‑ ‑
MS O’ROURKE: Well, with ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ at the moment I’m actually getting to the point where I’m starting not to be clear. Is she making those concessions and saying, “Look, I’ll agree with what you say in your cross-examination, but fundamentally I still come back to the point and say no, mum’s aligning him”? Because she has already said previously, earlier on in this cross‑examination, “Yes, mum’s aligning the child and really the child needs to go and live with dad.” And I’m trying to ascertain ,after the evidence she – some of the evidence that she’s now giving, is she changing that particular view?
MS O’ROURKE: Your Honour, I understand your Honour’s confusion because there’s the – her evidence, as I understood it, was that it’s a matter for your Honour to determine whether there’s aligning behaviour or not. However ‑ ‑ ‑
HIS HONOUR: Well, she has given a view that she thinks that ‑ ‑ ‑
MS O’ROURKE: ‑ ‑ ‑ to be fair to the witness ‑ ‑ ‑
HIS HONOUR: She said the child is on the continuum, and she has given the continuum and said he is on the continuum of aligning behaviour. I asked the witness to be very, very clear, and she said, “He is being aligned, and he’s going back and telling negative things to the mother because of his alignment.” That’s what she said, and if need be I will get the transcript of it.
MS O’ROURKE: Well, your Honour, I recall her saying that as well, your Honour, but I intend to cross-examine her about that particular evidence based ‑ ‑ ‑
HIS HONOUR: Well, I hope you do, but I’m just saying to you ‑ ‑ ‑
MS O’ROURKE: ‑ ‑ ‑ on the characteristics of this case, and that’s why I’m asking your Honour to give me an opportunity ‑ ‑ -
HIS HONOUR: I’m just trying to – what I’m – yes, okay, I will give you that – please don’t take it that I don’t want to give you – yes, I certainly will, but I’m wondering whether she’s – has she reached a tipping point where all of a sudden – I’m wondering now is she changing her views right in front of me on the stand. That’s why I’ve asked the question, so that she can be clear about it, so I understand what it is that she’s even saying. Because she said one thing, is she – that’s what – I’m happy for her to continue on, because I’m interested in what she has got to say. But I’m sitting here, in some respects, becoming – starting to become baffled about some of the things that she’s saying.
MS O’ROURKE: I understand, your Honour. I just ask that perhaps you give me opportunity ‑ ‑ ‑
HIS HONOUR: Yes, yes, I will stop interjecting. I will let you continue your cross‑examination.
MS O’ROURKE: The second thing, your Honour – and I understand what your Honour is saying about the perceived inconstancy between the mother’s evidence and the orders that the mother is seeking, but her case has been - and right from the moment when there was the AVO issued and she made arrangements with the paternal aunt for the father to spend alternate weekends with the child ‑ ‑ ‑
MR GRAHAM: Well, that’s not clear. I object to that. That’s ‑ ‑ ‑
HIS HONOUR: Well, they’re only submissions, but, yes ‑ ‑ ‑
MS O’ROURKE: That would be my submission, your Honour, that the fact is the child ‑ ‑ ‑
HIS HONOUR: Well, she’s trying to encourage the relationship between the child and the father.
MS O’ROURKE: The fact is she – it’s her view that the child has a loving relationship with his father and has benefited from having a relationship with his father, and it’s on that basis that she proposes that the father spend significant and substantial time with him. It’s as simple as that, your Honour.
HIS HONOUR: All right. Well ‑ ‑ ‑
MS O’ROURKE: But the case - your Honour understands the case that the mother has been asked to meet on both in terms of the family report and the evidence of the father.
HIS HONOUR: Yes, I do. I agree – yes, I understand the case that the mother has got to meet, but I’m trying to understand the case the mother is running. I guess that’s why I’m asking you about it, again just to understand. I understand your point. All right. Well, recall the witness. I’m not – I’m only asking the questions because I’m beginning to fail to understand the evidence of the witness. I should say I’ve got no view about the proceedings whatsoever. I don’t know. It’s just all going as it goes.
Notwithstanding what was said toward the end of the above extract, we consider that his Honour’s interventions might easily be perceived as trying to bring the focus back onto the alleged aligning behaviour of the mother, without regard to the evidence that the boy’s behaviour might be related to the conflict between the parents, and without regard to the evidence of aligning behaviour on the father’s side of the family. In particular, we have difficulty with his Honour’s suggestion that the Family Consultant’s evidence could be seen as “muddy[ing] the water”. Given the subject matter, it was unrealistic to expect that the Family Consultant could be definitive in determining the precise reasons underlying the boy’s statements. For example, they could have been driven by a combination of aligning behaviour by the mother, high conflict between the parents and aligning behaviour by the father.
We are also concerned that his Honour’s recall of the evidence was not entirely accurate and that the defect in his recall would appear to favour the father. Thus, for example, his statement that the Family Consultant had said the child “is being aligned, and he’s going back and telling negative things to the mother because of his alignment” is not borne out by the transcript. However, his Honour now has the transcript and will be able to study the evidence carefully.
Furthermore, when the Family Consultant was re-called, counsel for the mother was able to confirm that her position on this topic was more nuanced than his Honour’s memory suggested. We set out below only the first two questions and answers, but those that follow also need to be considered to see the extent to which the mother’s advocate was able to make inroads which ought to have assisted his Honour’s understanding of the Family Consultant’s position (transcript, 10 October 2015, p 333):
MS O’ROURKE: My instructing solicitor has a note that what you said was that if the conversations that [the child] is alleging took place between him and his mother occurred then it was aligning behaviour?‑‑‑Yes.
So you’re not saying that the recording in itself is evidence that you would – that is evidence that causes you to form the view that aligning behaviour is occurring?‑‑‑Well, the problem is he answered in the opposite when I interviewed him, and that’s why I’m hard pressed to take a firm stand on – so I keep saying, “If – if this is what’s happening, it is definitely aligning behaviour.”
We should also record that after the Family Consultant was re-called, following the interchange with the mother’s advocate, the cross-examination continued uninterrupted (save for one objection by opposing counsel) for some six pages of transcript until the trial was adjourned part-heard. The observer would have been entitled to assume that his Honour had reflected on the complaint made on behalf of the mother and resolved to cease interjecting.
For these reasons, we consider that although some of his Honour’s interventions with the Family Consultant were perhaps unfortunate, they were not such as to persuade a fair-minded lay observer to apprehend that he might not bring an impartial, unprejudiced mind to the resolution of the dispute.
Conclusion and costs
Substantial grounds must be established before a judge disqualifies himself: Bienstein v Bienstein (2003) 195 ALR 225 at [36]. This must be especially so where the proceedings are well advanced, as this trial was when the application was made. For the reasons we have given, we do not consider those substantial grounds are made out. The appeal will therefore be dismissed.
The father sought costs if the appeal was dismissed. Although the mother has been entirely unsuccessful, we note she is legally aided. We were not told if the father was legally aided (although he was at trial). The mother’s appeal was far from frivolous and we consider each party should meet their own costs.
Two postscripts
There are two additional matters which we consider require comment. The first relates to the decision of the trial judge to stay the substantive proceedings pending the hearing of this appeal, and the second concerns the question of whether or not leave to appeal was required.
The stay of proceedings
We have earlier recorded that the trial judge stayed the proceedings after the mother lodged her appeal in relation to the disqualification issue. Had the appeal not been expedited, thereby giving it priority over many other pressing cases, the matter would have been left in abeyance for a very long time. We do not have the benefit of his Honour’s reasons, but it would be unfortunate if a practice developed of postponing trials after an appeal is lodged against a recusal decision made at a very advanced stage of the proceedings. Having refused the disqualification application, a trial judge should give careful thought before deciding to postpone the conclusion of the trial. We do not suggest that his Honour did not do so here, but important matters to be taken into account in arriving at the decision “would include the stage the proceedings had reached … and the consequences that would follow from leaving appellate determination of the issue of disqualification until after trial”: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [84].
Leave to appeal
The chronology we provided earlier demonstrates the absence of merit in the father’s submission to us concerning the mother’s delay in asking the trial judge to disqualify himself. However, the fact that the disqualification application was not made until after seven days of trial brings into focus the question of whether leave to appeal was required against the formal order made by his Honour dismissing the application. If leave had been required, it may not have been granted given the advanced state of the trial.
We accept that leave to appeal has not previously been deemed necessary to challenge the dismissal of a disqualification application: F, AG and S, LL (Apprehension of bias) (2005) FLC 93-210 (an appeal from the Family Court of Australia) and Hillier & Wootton (2013) FLC 93-526 (an appeal from the Federal Magistrates Court). However, for the brief reasons that follow, we are attracted to the view that leave to appeal may be required, at least in the case of a decree or decision of a judge of the Federal Circuit Court.
Section 94AAA of the Act governs appeals from “a decree or a decision” of a judge of the Federal Circuit Court rejecting an application for the disqualification of the presiding judge. The provision is framed differently to s 94, which governs appeals from judges of the Family Court of Australia. It is unnecessary for us to discuss the import of the differences here, since we are concerned only with s 94AAA, which relevantly provides as follows:
94AAA Appeals to Family Court from Federal Circuit Court…
(1) An appeal lies to the Family Court from:
(a)a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act; or
(b)a decree or decision of a Judge of the Federal Circuit Court of Australia exercising original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
…
(2) Subsections (1) and (1A) have effect subject to section 94AA.
It will be seen that s 94AAA(1)(b) is subject to s 94AA, which – when read with reg 15A of the Family Law Regulations 1984 (Cth) – provides that leave to appeal is required in the case of an appeal against an “interlocutory decree (other than a decree in relation to a child welfare matter)”.
A “child welfare matter” is defined to mean a matter relating to:
(a) the person or persons with whom a child is to live; or
(b) the person or persons with whom the child is to spend time or communicate; or
(c) any other aspect of parental responsibility, within the meaning of Part VII of the Act, for a child.
We raised with counsel the question of whether leave to appeal was necessary in the present matter, but they were not in a position to assist us on the topic. We advised we would therefore proceed on the basis of earlier authority indicating that leave to appeal is not required. Nevertheless, this issue may need to be revisited when the opportunity arises, since we are inclined to accept that a “decree or decision” refusing a disqualification application is an “interlocutory decree” within the meaning of reg 15A.
A “decree or decision” disposing of a disqualification application must be “interlocutory” since it does not finally determine rights (see the authorities discussed in CDW v LVE (2015) 54 Fam LR 297). The more difficult question is whether there is a difference between a “decree” refusing a disqualification application and a “decision” refusing such an application, since s 94AA and reg 15A are directed only to “decrees”. Without entering into a full discussion, we are inclined to think that the words “decree or decision” have been employed as a cognate expression to recognise that the refusal of a judge not to disqualify himself has not traditionally been recognised as a “decree”: R v Watson; Ex parte Armstrong (1976) 136 CLR 248. We further observe that had Parliament intended that a “decree or decision” of a Federal Circuit Judge refusing a disqualification application should not be the subject of the leave requirement in s 94AA, then s 94AAA(2) could easily have been drafted differently to reflect that intention.
The other important question that would need to be answered is whether the fact that the substantive proceedings are a “child welfare matter” means that a decree or decision refusing a disqualification application in the course of such proceedings is itself a decree or decision “in relation to” such a matter. If that question were to be answered in the affirmative, then leave would not be needed to appeal. However, we consider there is at least a respectable argument to the contrary, since there would appear to be an insufficient nexus between the “child welfare matter” and the “decree or decision”, once proper regard is had to the statutory context: PMT Partners Pty Ltd v Australian National Parks & Wildlife Service (1995) 184 CLR 301 at 330–331.
As we have not had the benefit of argument, all these views are tentative only.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Thackray & Aldridge JJ) delivered on 9 August 2016.
Associate:
Date: 9 August 2016
0
6
4