BW v Secretary, Department of Communities and Justice

[2024] NSWSC 1354

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

BW v Secretary, Department of Communities and Justice & Ors [2024] NSWSC 1354

Hearing dates:

11 September 2024

Date of orders:

28 October 2024

Decision date:

28 October 2024

Jurisdiction:

Common Law

Before:

Faulkner J

Decision:

(1) Pursuant to s 69 of the Supreme Court Act 1970 (NSW), quash the judgment of her Honour Magistrate Richardson of the Children’s Court on 21 May 2024 declining to recuse herself from any further hearing of proceedings 2020/00273771.

(2)    An order in the nature of prohibition prohibiting her Honour Magistrate Richardson Magistrate from further hearing proceedings 2020/00273771.

(3)    No order as to costs.

Catchwords:

ADMINISTRATIVE LAW – judicial review – Children’s Court Magistrate - bias – apprehended bias – application for disqualification of Magistrate – fair-minded lay observer – error of law on the face of the record – adequacy of reasons

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 3, 7, 9, 23, 24, 30, 34, 60, 61, 63, 68, 71, 72, 78, 80, 83, 87, 90, 91, 93, 94, 98, 99, 107

Court Suppression and Non-publication Orders Act 2010 (NSW) ss 6, 8

Evidence Act 1995 (NSW), ss 76, 128, 140, 165A

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Antoun v The Queen (2006) 80 ALJR 497; [2006] HCA 2

Briginshaw v Briginshaw 60 CLR 336; [1938] HCA 34

Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284

Chamoun v District Court of New South Wales [2018] NSWCA 187

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76

Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595

D v C; Re B (No. 2) [2018] NSWCA 310

Director General, New South Wales Department of Community Services v Children's Court of New South Wales (2002) 56 NSWLR 555; [2002] NSWSC 679

Ebner v Official Trustee (2000) 205 CLR 337

FAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102

Goldsworthy v Local Court of NSW [2013] NSWSC 459

Heywood v Local Court of New South Wales [2024] NSWSC 1047

IFTC Broking Services Limited v Commission of Taxation [2010] FCAFC 22

Isbester v Knox CityCouncil (2015) 255 CLR 135; [2015] HCA 20

Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310

Lee v Cha [2008] NSWCA 13

M v M (1988) 166 CLR 69; [1988] HCA 68

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Polsen v Harrison [2021] NSWCA 23

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15

Re Henry; LJ v Secretary, Department of Family and Community Services [2015] NSWCA 89

Re June (No 2) [2013] NSWSC 1111

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28

Resources Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Secretary, Department of Communities and Justice v KH [2022] NSWCA 221

SZBLY v Minister for Immigration and Citizenship [2007] FCA 765

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872

Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24

Webb v The Queen (1994) 181 CLR 41

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Category:

Principal judgment

Parties:

BW (Plaintiff)
Secretary, Department of Communities and Justice (First Defendant)
MK (Second Defendant)
BA (Third Defendant)
Children’s Court of NSW (Fourth Defendant)
Attorney General (Fifth Defendant)

Representation:

Counsel:
A Gallimore (Plaintiff)
A M Hochroth (Second Defendant)
L M Saw / T J Robertson (Third Defendant)
D T Kell SC / J G Wherrett (Fifth Defendant)

Solicitors:
Foat Roberts Lawyers (Plaintiff)
Harpers Legal (Second Defendant)
Aboriginal Legal Service (Third Defendant)
Crown Solicitors Office (Fifth Defendant)

File Number(s):

2024/00188150

Publication restriction:

Pursuant to orders made under ss 7 and 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW) on 11 September 2024 Plaintiff referred to as “BW”, Second Defendant referred to as “MK” and Third Defendant referred to as “BA” on grounds that it is necessary in the public interest and the boys subject to the Children’s Court Proceedings referred to as “MX” and “BN” until they attain the age of 25 years.

JUDGMENT

INTRODUCTION

1. HIS HONOUR: The Plaintiff brings these proceedings under s 69 of the Supreme Court Act 1970 (NSW) to prevent a magistrate from continuing to hear proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) which are part heard before the Children’s Court of New South Wales.

2. The hearing of the Children’s Court Proceedings commenced on 4 September 2023 and has thus far run for ten hearing days in three sittings. On the eleventh day, 23 February 2024, an application was made by two of the parties that the Magistrate disqualify herself from further hearing the case on the basis that her Honour’s conduct of the hearing gave rise to a reasonable apprehension of bias.

3. There is no allegation of actual bias.

4. The Magistrate did not dismiss the application immediately. Her Honour received submissions, first orally and then in writing. On 21 May 2024 the Magistrate dismissed the application. Since that date the Children’s Court Proceedings have stood adjourned.

5. One of the parties who applied to the Magistrate to disqualify herself is the Plaintiff in the current proceedings before the Supreme Court. After the Magistrate dismissed the application, the Plaintiff filed the Summons by which these proceedings were commenced. The Summons was subsequently amended, for the last time on 2 July 2024. As it further evolved during the hearing, the final relief sought by the Plaintiff is:

“(1) Pursuant to s 69 of the Supreme Court Act 1970 (NSW), quash the judgment of the Magistrate of the Children’s Court on 21 May 2024 declining to recuse herself from any further hearing of proceedings 2020/00273771.

(2)    An order in the nature of prohibition prohibiting the Magistrate from further hearing proceedings 2020/00273771.

(3)    No order as to costs.”

6. At the Supreme Court hearing, most but not all the parties to the Children’s Court Proceedings were represented. All those who appeared supported the Plaintiff's application. No one opposed it.

7. In addition to the parties, an appearance was made by the Attorney-General. The Attorney-General's objective was to assist the Court by ensuring that all relevant matters were put before the Court. The Attorney-General made submissions on both the law and the facts but did not advocate for any particular outcome of the case.

8. Having considered all the evidence and the submissions, I have found that a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the questions her Honour is required to decide. In those circumstances the Orders referred to in [5] above are to be made.

Background

9. It is necessary to set out in some detail the circumstances in which the Children’s Court Proceedings arose. Without the detail it is not possible to understand some of the events which occurred during the hearing before the Magistrate.

10. The factual background includes matters concerning the performance of officers of the Department of Communities and Justice in the context of the statutory care regime established by the Children and Young Persons (Care and Protection) Act 1998 (NSW). I will refer to the statute as the “Statute”. An overview of the provisions of the Statute will aid an understanding of the narration of events.

Children and Young Persons (Care and Protection) Act 1998

11. The Children and Young Persons (Care and Protection) Act has a long title which describes it as an Act to provide for the care and protection of, and the provision of services to, children and young persons. Within Chapter 2 of the Statute, s 7 provides:

7 What is the role of the objects and principles of this Act?

The provisions of this Chapter are intended to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right or entitlement enforceable at law.

12. Section 9(1) provides:

9 Principles for administration of Act

(1)    This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

13. The Statute has 16 Chapters which provide for many aspects of the care and protection of children and young persons. Chapter 3 is entitled “Requests for assistance and reports”. Within Chapter 3, s 23 provides that a child is “at risk of serious harm” if current concerns exist for the safety welfare or well-being of the child because of the presence, to a significant extent, or any one or more of specified circumstances. One specified circumstance is that the child is at risk of being physically or sexually abused or ill-treated.

14. Section 24 provides:

24    Report concerning child or young person at risk of significant harm

A person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of significant harm may make a report to the Secretary.

15. The Secretary referred to in this provision is the Secretary of the Department of Communities and Justice.

16. A report that a child is at risk of serious harm is called a “ROSH report”. The Secretary must keep a record of ROSH reports made to the Secretary: s 28. Section 30 provides:

30 Secretary’s investigations and assessment

On receipt of a report that a child or young person is suspected of being at risk of significant harm—

(a)    the Secretary is to make such investigations and assessment as the Secretary considers necessary to determine whether the child or young person is at risk of significant harm, or

(b)    the Secretary may decide to take no further action if, on the basis of the information provided, the Secretary considers that there is insufficient reason to believe that the child or young person is at risk of significant harm.

17. Chapter 4 of the Statute addresses care plans. Section 34(1) provides that if the Secretary forms the opinion, on reasonable grounds, that a child is in need of care and protection, the Secretary is to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child. One action the Secretary might take is set out in s 34(2)(b) in the following terms:

34 Taking of action by Secretary

…

(2)    Without limiting subsection (1), the action that the Secretary might take in response to a report includes the following—

…

(b)    development, in consultation with the parents (jointly or separately), of a care plan to meet the needs of the child or young person and his or her family that—

(i)    does not involve taking the matter before the Children’s Court, or

(ii)    may be registered with the Children’s Court, or

(iii)    is the basis for consent orders made by the Children’s Court…

18. The term "care plan" is defined in s 3 of the Statute as follows:

care plan means a plan to meet the needs of a child or young person—

(a)    that is developed through agreement with the parents of the child or young person, or

(b)    that represents a set of proposals for consideration by the Children’s Court.

19. Another action the Secretary may take is to seek appropriate orders from the Children's Court: s 34(2)(d).

20. Section 38 provides for the Children's Court to register a care plan. Alternatively, the Children’s Court may make orders giving effect to the care plan where the orders are sought by consent and in the circumstances specified in s 38(2B).

21. Chapter 5 of the Statute is headed "Children's Court proceedings". It is divided into three Parts, the second of which is relevant to the current case. Part 2 is headed "Care applications". A care application is an application for a care order, which is defined in s 60 as follows:

care order means an order under this Chapter for or with respect to the care and protection of a child or young person

22. Section 61 relevantly provides:

61 Applications for care orders

(1)    A care order may be made only on the application of the Secretary, except as provided by this Chapter.

(1A)    A care application must specify the particular care order sought and the grounds on which it is sought.

(2) A care application must be accompanied by a written report specifying such information as may be prescribed for the purposes of this section by the rules made under the Children’s Court Act 1987.

…

23. An exception to the Secretary making an application for a care order is s 90 which provides for other persons to make an application to vary or rescind a care order: D v C; Re B (No. 2) [2018] NSWCA 310 at [20] (Basten JA, with whom McColl JA and Emmett AJA agreed).

24. When making the care application, the Secretary must provide evidence about certain matters to the Children's Court, including the active efforts made by the Secretary to prevent the child from entering out-of-home care and the alternatives to the care orders which the Secretary has considered and the reasons why those alternatives are not considered appropriate: s 63. With leave, a party to a care application may file further documentary evidence, but before granting leave the Children's Court must be satisfied that the grant of leave will not result in undue delay in the matter being finalised: s 68.

25. The Children's Court may make a care order (as defined in s 60) if it is satisfied that the child is in need of care and protection for specified reasons. The specified reasons include: that the parents acknowledge that they have serious difficulties in caring for the child; or that the child has been, or is likely to be, physically or sexually abused or ill-treated: s 71.

26. Section 72 provides:

72 Determination as to care and protection

(1)    A care order in relation to a child or young person may be made only if the Children’s Court is satisfied that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection—

(a)    the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and

(b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 39A (Care responsibility on death of guardian or carer with full parental responsibility), section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders).

(2)    If the Children’s Court is not so satisfied, it may make an order dismissing the application.

27. Section 78(1) provides:

78  Care plans

(1)     If the Secretary applies to the Children’s Court for an order, not being an emergency protection order, for the removal of a child or young person from the care of his or her parents, the Secretary must present a care plan to the Children’s Court before final orders are made.

28. Section 78(2) specifies the matters to be addressed in a care plan presented to the Children's Court in respect of any child. Section 78(2A) specifies additional matters in the case of an Aboriginal or Torres Strait Islander child.

29. “As far as possible”, the care plan is to be made with the agreement of the parents: s 78(3). This reflects s 34(2)(b) which provides for the Secretary to develop the care plan in consultation with the parents.

30. Section 80 provides:

80 Requirement to consider care plan

The Children’s Court must not make a final order—

(a)    for the removal of a child from the care and protection of his or her parents, or

(b)    for the allocation of parental responsibility in respect of the child,

unless it has considered a care plan presented to it by the Secretary or, in the case of an application for a guardianship order, by the applicant for the order.

31. Section 83 addresses the specific situation where the Secretary applies for a care order for the removal of a child and an assessment is required as to whether there is a realistic possibility of the child being restored to his or her parents within a reasonable period. Provision is made for consideration by the Children's Court of the Secretary’s assessment of the possibility of future restoration. Section 83(3) provides:

83 Preparation of permanency plan

…

(3)    If the Secretary assesses that there is not a realistic possibility of restoration within a reasonable period, the Secretary is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children’s Court for its consideration.

32. Section 83(7) provides:

(7)    The Children’s Court must not make a final care order unless it expressly finds—

(a)    that permanency planning for the child or young person has been appropriately and adequately addressed, and

(b)    that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration within a reasonable period, having regard to—

(i)    the circumstances of the child or young person, and

(ii)    the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

33. A care plan is only enforceable to the extent to which its provisions are embodied in or approved by orders of the Children's Court. In determining a care application, the Children's Court is not limited to making the order sought in the Secretary's application, but may make different orders: s 67 and (in the case of a permanency plan) s 83. However, the Children's Court must not make a final order for the removal of a child from the care and protection of his or her parents unless it has considered a care plan presented to it by the Secretary: s 80.

34. The procedures of the Children’s Court are not the same as the procedures of other courts. The procedures are set out in Chapter 6 of the Statute. Section 93 provides:

93 General nature of proceedings

(1)    Proceedings before the Children’s Court are not to be conducted in an adversarial manner.

(2)    Proceedings before the Children’s Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit.

(3)    The Children’s Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, and subject to subsections (1) and (2), the Children’s Court determines that the rules of evidence, or such of those rules as are specified by the Children’s Court, are to apply to those proceedings or parts.

(3A)    Without limiting subsection (3), the Children’s Court may determine that the rules of evidence or certain rules of evidence are to apply in relation to proceedings or parts of proceedings if—

(a)    a party to the proceedings applies to the Court for the rules of evidence or certain rules of evidence to apply in relation to the proof of a fact, and

(b)    in the Court’s opinion, proof of that fact is or will be significant to the determination of the proceedings or parts of the proceedings.

(4)    In any proceedings before the Children’s Court, the standard of proof is proof on the balance of probabilities.

(5)    Without limiting subsection (4), any requirement under this Act that the Children’s Court be satisfied as to a particular matter is a requirement that the Children’s Court be satisfied on the balance of probabilities.

35. Section 94 provides:

94 Expedition and adjournments

(1)    All matters before the Children’s Court are to proceed as expeditiously as possible in order to minimise the effect of the proceedings on the child or young person and his or her family and to finalise decisions concerning the long-term placement of the child or young person.

(2)    For this purpose, the Children’s Court is to set a timetable for each matter taking into account the age and developmental needs of the child or young person.

(3)    The Children’s Court may give such directions as it considers appropriate to ensure that the timetable is kept.

(4)    The Children’s Court should avoid the granting of adjournments to the maximum extent possible and must not grant an adjournment unless it is of the opinion that—

(a)    it is in the best interests of the child or young person to do so, or

(b)    there is some other cogent or substantial reason to do so.

36. Sections 98 and 99 provide:

98 Right of appearance

(1)    In any proceedings with respect to a child or young person—

(a)    the child or young person and each person having parental responsibility for the child or young person, and

(b)    the Secretary, and

(c)    the Minister,

may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

(2)    However, if the Children’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.

(2A)    If the Children’s Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children’s Court may appoint a guardian ad litem for the person under section 100 or 101 (as the case may require).

(3)    In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children’s Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children’s Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

99 Appointment of legal representative by Children’s Court

(1)   The Children’s Court may appoint a legal representative to act for a child or young person if it appears to the Children’s Court that the child or young person needs to be represented in any proceedings before it.

(2)    A legal representative for a child or young person who has not been appointed by the Children’s Court may appear only with its leave.

(3)    The Children’s Court may withdraw its leave at any time and for any reason (including the child or young person informing the Children’s Court that he or she does not wish to be represented by the legal representative).

37. Section 107 provides:

107  Examination and cross-examination of witnesses

(1)    Extent of examination and cross-examination A Children’s Magistrate may examine and cross-examine a witness in any proceedings to such extent as the Children’s Magistrate thinks proper for the purpose of eliciting information relevant to the exercise of the Children’s Court’s powers.

(2)    Offensive or scandalous questions The Children’s Court must forbid the asking of, or excuse a witness from answering, a question that it regards as offensive, scandalous, insulting, abusive or humiliating, unless the Children’s Court is satisfied that it is essential in the interests of justice that the question be asked or answered.

(3)    Oppressive or repetitive examination The Children’s Court must forbid an examination of a witness that it regards as oppressive, repetitive or hectoring, or excuse a witness from answering questions asked during such an examination, unless the Children’s Court is satisfied that it is essential in the interests of justice for the examination to continue or for the question to be answered.

(3A)    Certain questions For the purposes of this section, questions to a witness who is a parent or a primary care-giver of a child or young person the subject of a care application concerning the witness’s previous history of dealings with any child or young person are taken not to be intrinsically offensive, scandalous or oppressive.

(4)    Definition In subsection (1), a reference to a Children’s Magistrate includes a reference to a Magistrate within the meaning of section 13(2) of the Children’s Court Act 1987.

38. By reference to the Second Reading Speech for the Children and Young Persons (Care and Protection) Bill 1998, the Attorney-General emphasises that the Statute contemplates that it is proper that the Children's Court should inform itself on any matter in whatever way it considers appropriate to ensure that it has before it all the relevant information on which to base its decision. The Magistrate's power in s 107 to question a witness extends to calling the witness to be questioned: D v C; Re B (No. 2) at [42] (Basten JA, with whom McColl JA and Emmett AJA agreed).

39. The Children’s Court, however, is still a court with powers to make orders which affect people’s rights. In Director General, New South Wales Department of Community Services v Children's Court of New South Wales (2002) 56 NSWLR 555 at 567; [2002] NSWSC 679 at [57], O'Keefe J said:

“Although less adversarial, technical and formal than the procedure in many other courts, the procedure before the Children’s Court is nonetheless recognisable to those who are conversant with the operations of courts in our system of justice. The fact that it is a court with a recognised procedure and which is empowered to make binding orders which affect the rights of individuals carries with it a requirement that it observe the appropriate rules of natural justice. One of these is that the right of a party to be heard is respected and that those who appear before the court should know why it is that the court has determined a particular matter in a particular way and why it is that the court has acted in a particular way. The basis for decisions which affect or may affect the rights of individuals should be made known. Reasons perform this function.”

40. The Children’s Court must have regard to the interests of the parties in determining how a hearing is to be conducted. In D v C; Re B (No. 2) at [83] Basten JA said:

“Although the present proceedings should not turn on this specific issue, it may be doubted that the powers of the court extended to the conduct of a hearing in a form which was not sought by any party. The consequence of that course was to impose burdens on independent State authorities, including the Legal Aid Commission and the Department of Family and Community Services. No doubt such consequences can flow from directions given to ensure the proper conduct of judicial proceedings. However, there can be few circumstances in which the Court can in effect undertake an inquiry of its own without regard to the common views of all the parties.”

41. There is nothing in the Statute which relieves the Children's Court of the obligation to afford the parties procedural fairness. However, the content of that obligation will be informed by the provisions of the Statute: D v C; Re B (No. 2) at [37] & [43] (Basten JA, with whom McColl JA and Emmett AJA agreed). In care proceedings, a denial of procedural fairness may arise from denying the parties the right to question a witness. It may also arise from disregarding the parties’ views and evidence about where the best interests of the child lie: D v C; Re B (No. 2) at [82] (Basten JA, with whom McColl JA and Emmett AJA agreed).

42. Like all other provisions of the Statute, the powers of the Children’s Court in s 107 are to be exercised having regard to s 9 and the paramount consideration of the safety, well-being and welfare of the child.

Two boys: MX and BN

43. Turning to the facts, the case centres on two boys, MX who was born on 14 October 2016 and BN who was born on 9 April 2018.

44. I will refer to the mother of the boys as MK. For some years MK was in a domestic relationship with BA. BA is the father of BN. Until part way through the following narrative it was unclear if BA is also the father of MX. It has now been determined that he is not. In any event, up until August 2020 MK, BA, MX and BN lived together as a family unit.

45. The Plaintiff is the mother of BA and, hence, the grandmother of BN. Given that BN and MX have always lived as brothers, the Plaintiff is sometimes referred to as MX’s psychological grandmother. The evidence shows that both boys called her “Nan”. [1]

    1. Tcpt, 20 February 2024, pp 3(24)–(28); 6(28)–(35).

46. As will be apparent from the provisions of the Statute set out above, the Secretary of the Department of Communities and Justice has responsibilities for providing care and protection for children in certain circumstances. As set out above, under ss 23 and 24 the Secretary’s responsibilities include receiving ROSH reports from the community about individual children.

47. From as early as 2016 the Secretary began receiving ROSH reports about MX and, later, BN. The particulars of the early ROSH reports are not relevant, other than to say that they related to concerns about psychological harm, domestic violence, neglect, lack of supervision, exposing the boys to unsafe people, substance abuse and homelessness.

48. In January 2020, MK, BA, MX and BN went to live with the Plaintiff in her home. Once there, there is evidence that people came to visit MK and BA at the Plaintiff’s house, often late at night. There is dispute about the number of people and the frequency of the visits. There is no dispute that there was domestic conflict between MK and BA. There was also conflict between the Plaintiff and each of MK and BA about the care of the boys. Between January 2020 and August 2020 the Secretary received further ROSH reports about MX and BN. The Plaintiff herself made some of the ROSH reports to the Department.

49. On 5 August 2020 MK and BA agreed with the Secretary to a temporary care arrangement being put in place under which the boys were placed with MK's sister for one month. The sister is referred to as "MS".

50. Before continuing with the narrative, it is necessary to appreciate that a factual matter which has assumed some importance in the Children’s Court Proceedings is the word used by the boys to refer to a penis. The Plaintiff’s evidence is that in the family it is referred to as a "pecka”. [2] It is not referred to as a "willy". [3] The Plaintiff’s son, BA, gave the same evidence. [4]

    2. Tcpt, 20 February 2024, pp 3(45)–(48); 6(26)–(28).

    3. Tcpt, 5 September 2023, pp 49(33)–(44); 50(20)–(27).

    4. Tcpt, 22 February 2024, pp 17(30)–(35); 24(31)–(33).

51. Whilst the boys were living with MS, on 21 August 2020 the Secretary received a ROSH report which stated that MX was trying to touch his cousin's penis. The person who made the report said that MX was asked the question "Has anyone touched your willy?" to which MX answered "Yes". MX was asked "Was it an adult?" to which MX answered "Yes". MX did not say who.

52. On 29 August 2020 the Secretary received another ROSH report which stated that MX had tried to touch someone's penis. As reported, when asked "Why?" MX said that the Plaintiff "had taught them to touch each other's willy to make each other laugh". It was also reported that MX said that the Plaintiff watched adults playing "the willy game" on TV. MX was also reported as saying that the Plaintiff "touches my willy" and that the boys touch each other's "willy" and get a Nutella sandwich as a present. "It happens a lot." There were other details, including aspects of secret-keeping.

53. On 1 September 2020 MX was visited by officers from the Joint Child Protection Response Programme (JCPRP). The JCPRP is an organisation which includes officers from the Department, the police and other government bodies. MX made no disclosures to the JCPRP officers who visited him. JCPRP did not “substantiate” any harm to MX.

54. The word “substantiate” is used in a number of documents in evidence, especially Department documents. I have not been able to find an explanation of what is intended by ”substantiate”.

55. On 18 September 2020 the temporary placement with MS came to an end. The Secretary assumed the boys into care because it was considered unsafe for them to be returned to the care of MK and BA. The Plaintiff liaised with Department officers about her becoming the boys' carer. The Secretary, however, placed the boys into the care of an authorised carer, Louise.

Commencement of the Children's Court Proceedings

56. Having assumed the boys into care, on 23 September 2020 the Secretary commenced the Children's Court Proceedings by filing a care application under s 61 of the Statute. On 16 October 2020 the Children's Court formally found that the boys are in need of care and protection for the purposes of ss 71 and 72 of the Statute. Without admissions, MK and BA consented. An independent legal representative for the boys was appointed under s 99. He also consented to that finding. The finding that the boys were in need of care and protection enlivened the Children’s Court power to make care orders.

57. On 18 October 2020 the Secretary received another ROSH report which stated that MX had woken in the night crying loudly and wetting the bed. The carer attended to MX and heard MX say repeatedly "Don't touch me there Nanny".

58. On 3 November 2020 two case workers from the Department visited MX at the home of the carer. The case workers were Brittany Watson and Ebony Larrigo. This visit and the report subsequently prepared by Ms Watson assumed prominence in the subsequent hearing before the Magistrate. At the time, Ms Watson was a case worker with about two years' experience. She had no particular training in interviewing children. MX had just had his fourth birthday.

59. On 18 November 2020 the Secretary filed care plans for the boys which proposed permanent placement with Louise.

60. On 26 November 2020 Ms Watson completed a report of the visit with MX. The report is referred to as the "Alternate Assessment". The Alternate Assessment is one of the most important documents in the case. Some of the text in the Alternate Assessment needs to be set out. At Item 2 the following text appeared:

“2    Provide analysis about history of abuse/harm or neglect for the child or young person (prior to reported incident).

[MX] and [BN] have been subjected to ongoing neglect concerns which has been reported on since [MX] was born in 2016. Ongoing concerns included; lack of supervision, drug use by both [MK] and [BA], basic needs not being met, mental health concerns for their mum, [MK], and ongoing domestic violence from [BA] towards [MK].
[MX] has also made 3 disclosures in regards to potential sexual harm occurring to him while the family resided in [the Plaintiff] (their paternal grandmother's home). [The Plaintiff] has been named as a POI in each one of these disclosures. For all of the above reasons, is why [MX] and [BN] were removed from their parents care in September 2020.”

61. At Item 3 the following text appeared:

“3    Provide information about the child or young person's response to the allegations.

Caseworkers, Brittany Watson and Ebony Larrigo spoke with [MX] on 3 November 2020. He spoke with caseworkers for 1 hour and 40 minutes. The three houses and the bear cards were used with [MX]. He told caseworkers that he is happy to be in his current carers home, and his mummy and daddy's home was happy too, however, his Nanny's home made him mad and sad. When asked more about this, [MX] said he did not wish to play the game anymore, and went very quiet. He did this each time caseworkers tried to speak with [MX] about his nan. [MX] also told caseworkers about a bad dream he has which involved zombies. Throughout the process [MX] told caseworkers that the Zombie would come into his bed of a night and would touch him badly on the "pecka" and it hurt. Caseworkers determined through more questioning that this occurred at Nanny's home, and then [MX] began describing Nanny's home as the "Zombie's home." [MX] also said that the Zombie was a girl, a member of his family, and is in his three houses picture at Nanny's house. In this picture was [MX], [BN] and Nan, [the Plaintiff].”

62. On the page of the Alternate Assessment after Item 11, the following text appeared:

“11.   Provide details of any protective factors that may contribute to the child or young person's level of safety.

Given the reported concerns, the biggest safety factor right now is the fact that [MX] no longer resides in Nanny's home, where he told caseworkers the abuse took place. He is safe with his carer Louise, and has contact with all the appropriate family he needs to stay connected with them. He also attends Preschool which he has been loving.”

63. At this time the Secretary’s computerised record system, ChildStory, recorded "Sexual harm - suspicious indicators consistent with sexual abuse" was substantiated for MX.

64. On 5 February 2021 the Secretary moved the boys into the care of another authorised carer, Trish. On 12 March 2021 the Department filed amended care plans for the boys which proposed permanent placement with Trish.

65. On 24 September 2021 a Children's Court Clinic assessment report was completed by the Authorised Clinician, Doulan Teoman. Ms Teoman assessed MK and BA not to have the capacity to care for the boys and to protect them from harm. She recommended the Plaintiff as the most suitable family member who is able and willing to care for the boys.

66. On 28 October 2021 the Department received a further report in which MX was said to have expressed fear of the Plaintiff.

67. In November 2021 Julianne Morrisey, an "assessor" from Arcadian Consulting, completed a kinship assessment of the Plaintiff and recommended that the Plaintiff be authorised as the long-term carer for the boys.

68. On 12 November 2021, the Plaintiff was formally joined as a party to the Children’s Court Proceedings.

69. On 13 December 2021 the Secretary filed a further amended care plan for each of the boys which proposed permanent placement with the Plaintiff, with the Minister to take parental responsibility until the age of 18. By proposing permanent placement with the Plaintiff, the Secretary made a significant change from his previous position that the boys should be placed permanently outside the family.

70. On 21 December 2021 the Department moved the boys into the temporary care of the Plaintiff. The boys have remained in the Plaintiff’s care ever since.

71. On 28 January 2022 the Department filed the most recent care plans for the boys which continued to propose permanent placement with the Plaintiff. These care plans have the consent of MK and BA. Initially they also had the consent of the independent legal representative for the boys.

72. On 28 January 2022 the Children's Court Proceedings were listed for a final hearing before Magistrate Sheedy. The Secretary sought final orders based on the care plans. As set out above, the final orders contemplated permanent placement with the Plaintiff. Magistrate Sheedy did not make the final orders. Her Honour adjourned the proceedings so that her Honour could review the file. Magistrate Sheedy expressed concern about the risk of sexual harm if the boys were placed with the Plaintiff.

73. On 18 February 2022 the proceedings came before the current Magistrate for the first time. The Magistrate expressed concerns about the permanency plan and the risk of sexual harm in the Plaintiff’s household. Her Honour listed the case for final hearing. The hearing dates listed by the Magistrate were vacated and re-listed on a number of occasions due to the unavailability of essential witnesses. Obtaining hearing dates was difficult because the case was being heard on a part-time circuit and there was pent up demand for dates in the shadow of COVID-19. The case was ultimately listed to commence on 4 September 2023.

63. On 16 May 2023 the Department decided to obtain a new assessment about whether the Plaintiff posed a risk of sexual harm to the boys. The assessment was to be undertaken by forensic psychologist Katie Martens who was independent of the Department.

64. On 29 June 2023 Ms Martens completed her report. This is another important document in the case. The report supported the placement with the Plaintiff. It was critical of the visit with MX which Ms Watson and Ms Larrigo made on 3 November 2020 and the way the questioning was conducted. Ms Martens was critical of the conclusion arrived at by the Department following the visit. In paragraph 10, Ms Martens' report includes the following text:

“In considering the above interview, I hold some concerns as to the reliability of the information provided by [MX], in response to the methodology implemented by the caseworkers who conducted the assessment.”

and

“The above interview appears to have introduced the topic of good and bad touching, has relied upon yes/no questions and has utilised imaginary activities to elicit responses. These methods are recognised for increasing inaccurate responses from children, and it is therefore exceptionally difficult to place weight on the responses of [MX].”

76. In paragraph 65, Ms Martens' report includes the following text:

“This is a case where, indeed, there is a lack of convincing evidence to suggest that [the Plaintiff] has ever engaged in sexually harmful behaviour, and it remains unclear as to whether [MX] has indeed been a victim of sexual abuse.”

77. In paragraph 68, Ms Martens' report includes the following text:

“In the case of [the Plaintiff], I maintain that there is a lack of clear and convincing evidence to suggest that she has perpetrated sexual abuse. Certainly, she does not present with factors that are typically associated with female displays of sexual harm. She has maintained employment, has no history of criminal convictions, seems to generally hold intact self-concept, and although she has expressed distress in relation to the current child protection matter seems to possess generally good self-regulation. It is my opinion that there is very little evidence to suggest that [the Plaintiff] poses a risk to her grandchildren, sexually. Conversely, she appears to have been often quite protective of the children, albeit ineffective at times at preventing their exposure to harm whilst in their parents' care. She presents as knowledgeable about sexual abuse, and proactive in teaching protective behaviours, [the Plaintiff] has facilitated the children's engagement with specialized services, and the information I have suggests that she has engaged well and that both she and the children have responded to this intervention. It is my opinion that [the Plaintiff] will likely be protective of the children in the future, and it appears that she has readily sought support in response to [BN] and [MX]’s trauma related behaviours, which provides some confidence that she will continue to do so into the future.”

Issues before the Magistrate

78. On 4 September 2023 the final hearing of the Children’s Court Proceedings commenced before the Magistrate.

79. Having regard to the care plans finally brought forward by the Secretary and the provisions of the Statute, one of the issues for determination by the Children's Court is whether permanency planning for the boys has been "appropriately and adequately addressed" by the Secretary for the purposes of ss 83(3) and 83(7).

80. At a factual level, the key issue is whether the Plaintiff poses a risk of sexual harm to MX.

81. To be perfectly clear, the Secretary is proposing that the boys be placed permanently into the care of the Plaintiff and the Plaintiff fully supports the placement. MK and BA also support permanent placement with the Plaintiff. As at 28 January 2022 (the date of the listing before Magistrate Sheedy), the independent legal representative for the boys also supported permanent placement with the Plaintiff. On the key factual issues, at the commencement of the final hearing before the Magistrate, no party contended that the Plaintiff poses a risk of sexual harm to MX.

Hearing before the Magistrate

82. As the applicant for the proposed care orders under s 61, the Secretary is in substance the moving party at the final hearing. The Secretary's legal representative is Ms Smith.

83. Each of the Plaintiff, MK and BA is separately represented. In the case of the Plaintiff, she was represented by counsel for the first week of the hearing and then by a solicitor, Ms Roberts. The boys have an independent legal representative who has thus far appeared for them throughout the hearing, Mr Squires. The names of Ms Smith, Ms Roberts and Mr Squires appear in many of the transcript extracts set out below so I have named them here so that their respective client’s interests can be kept in mind.

84. The case was originally listed for six days, but the evidence remained incomplete on the last day so further hearing days were added in the week commencing 19 February 2024. Further oral evidence was adduced on 19, 20, 21 and 22 February 2024. On the morning of 23 February 2024 the application was made for the Magistrate to disqualify herself, following which no further evidence has been adduced. The Children’s Court Proceedings are currently in abeyance.

85. It will be necessary to provide some details about the conduct of the hearing. The most efficient way to do that will be to set out the details when addressing each of the contentions made by the parties in the current proceedings. All that is necessary at this stage is to describe the sequence of oral evidence being adduced from the witnesses so that the detailed events can be put in chronological context. A table may help:

Hearing date	Witness	Outcome
4 Sep 2023	Katie Martens (independent psychologist retained by the Department)	Evidence incomplete
5 Sep 2023	Plaintiff (paternal grandmother)	Evidence incomplete
6 Sep 2023	Plaintiff	Evidence incomplete
7 Sep 2023	Plaintiff	Evidence incomplete
8 Sep 2023	Plaintiff	Evidence incomplete
16 Oct 2023	Dolman Teoman (authorised clinician)	Evidence incomplete
19 Feb 2024	Plaintiff	Evidence incomplete
20 Feb 2024	Plaintiff Natalie Pittman (MX’s psychologist, subpoenaed at the request of the Magistrate and Mr Squires) Diana Gordon (Department’s Manager Caseworker requested to give evidence by the Magistrate)	Evidence complete Evidence complete Evidence incomplete (in the sense, not yet excused by the Magistrate)
21 Feb 2024	Brittany Watson (Department Caseworker responsible for MX in November 2020 and author of the Alternate Assessment)	Evidence complete
22 Feb 2024	BA (psychological father of MX and father of BN) Rachel Perrin (Department’s Manager Casework)	Evidence complete Evidence incomplete
23 Feb 2024	None (disqualification application)

86. The oral evidence from these witnesses addressed many issues, but a lot of it focussed on the factual question of whether the Plaintiff has sexually abused MX.

87. In addition to the witnesses who have already been called, a number of witnesses remain to be called, some of whom the Magistrate has requested be called contrary to the Secretary’s plan for the proceedings. The witnesses still to be called are MS (the maternal aunt with whom MX was living in August 2020), three other Department casework officers and a carer assessor who has assessed the Plaintiff’s suitability as a carer for the boys. There may be others.

Submissions to the Magistrate on disqualification

88. In the first instance, the application that the Magistrate disqualify herself from further hearing the case was made orally on 23 February 2024. The application was made by the Plaintiff and supported by the Secretary. The oral submissions were relatively brief, although focussed and cogent.

89. Although the Magistrate initially intended otherwise, her Honour did not determine the application that day. Her Honour adjourned the hearing and subsequently directed the parties to provide written submissions. The Plaintiff and the Secretary did so on 17 May 2024. BA formally supported the application but did not file submissions.

90. On behalf of the mother of the boys, MK, a short written submission was provided on 16 May 2024. It reads as follows.

“1.    I am the Solicitor for the Mother, [MK].

2.    [MK] is aware that that [the Plaintiff] has made an application seeking that Magistrate Richardson disqualify herself from the current proceedings.

3.    The matter has so far proceeded to 11 days of hearing at Parramatta Children's Court.

4.    The current Application was made on 23 February 2024, on the basis of apprehended bias.

5.    The test for apprehended bias asks Judges to look at the matter from the perspective of a fictional member of the public - the fair minded lay observer.

6.    More specifically, "whether in all of the circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question. "

7.    The current hearing is in relation to the issue of permanency, more specifically, whether the proposal of the Department for long-term placement of the children with their Paternal Grandmother, [the Plaintiff] is in their best interests.

8.    [MK] instructs me that from the way the hearing has proceeded, she can see the Magistrate is being very thorough in "trying to get to the bottom of what has gone on."

9.    [MK] instructs me that she has appreciated this approach of the Magistrate.

10.    However, [MK] also instructs me that she can see that the Magistrate does not like [the Plaintiff] and seems to have formed a view that [the Plaintiff] has done something to [MX].

11.    This then creates a dilemma for her as she knows that this is not how this process is meant to work.

12.    On this basis, [MK] does not really know whether she seeks the Magistrate to disqualify herself or not.

13. She is worried that the matter has been going on for a really long time. [MK] has been working really hard to change her circumstances, and would like to file a Section 90 Application in the not so distant future.

14.    But she would like a decision to be made that is in the best interests of her children and for this decision to be made properly.”

91. Other than to provide references to authorities on apprehended bias, the independent legal representative for the boys did not make any submissions on the application, either orally or in writing. It may be that the reason Mr Squires took this approach is that on the morning of 23 February 2024 the Secretary also foreshadowed an application under s 99(3) of the Statute that leave be withdrawn for the boys’ independent legal representatives to appear because of the way the representative “has conducted himself”. [5] There are no particulars for this application and it has not yet been heard. It is no part of the matters before the Supreme Court to give consideration to the conduct of the independent legal representative and I have not done so. Nothing in this judgment ought to be viewed as a reflection of Mr Squires.

    5. Tcpt, 23 February 2024, p 6(5); Tcpt, 23 February 2024, p 4(23).

92. The overall effect of the parties taking their respective positions is that the Magistrate had to decide the disqualification application without the benefit of a contradictor.

93. The ultimate submission made by the Plaintiff and the Secretary was that a fair-minded lay observer might entertain a reasonable apprehension that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the questions whether MX has been sexually harmed and whether the Plaintiff was the perpetrator of that harm.

94. The Plaintiff and the Secretary submitted that there have been a number of incidents during the hearing, and aspects of the Magistrate’s conduct of the hearing, from which that conclusion is to be drawn. The following is a list of matters relied upon by the Plaintiff and the Secretary before the Magistrate:

1. the Magistrate’s “excessive intervention” in the conduct of the hearing;

2. the Magistrate requiring officers of the Department to be called as witnesses in the proceedings and contrary to their instructions to their legal representatives, and without notice of the questions to be asked;

3. the Magistrate’s questioning of one Department officer, Ms Gordon, including asking unfair questions;

4. the Magistrate’s interference in the cross-examination of Ms Watson;

5. the Magistrate’s questioning of another Department officer, Ms Perrin;

6. the Magistrate advocating the case that the Plaintiff was the perpetrator of sexual harm to MX;

7. the Magistrate’s apparent adherence to the information in the Alternative Assessment, contrary to the expert evidence of Ms Martens, and before the evidence is complete and submissions have been made;

8. the Magistrate making references during the hearing to the Plaintiff as the perpetrator of sexual harm to MX;

9. the Magistrate requiring people to be called as additional witnesses, such as MS;

10. the Magistrate conducting the hearing in a way which caused delay; and

11. the Magistrate bullying the legal representatives for the Plaintiff and the Secretary.

95. The written submissions provided by the Plaintiff and particularly the Secretary included extensive references to the transcripts of the ten days of hearing.

Decision of the Magistrate

96. On 21 May 2024 the Children’s Court Proceedings were again listed before the Magistrate at which time the Magistrate dismissed the disqualification application.

97. The Magistrate gave oral reasons which are recorded in 42 pages of the transcript.

98. The reasons commence with a narration of the facts about the placements of the boys and the progress of the Children's Court Proceedings. A particular matter addressed by the Magistrate was the history of delay in having the case listed for final hearing, largely due to the unavailability of witnesses, the number of parties to be accommodated, limited hearing dates and pent-up demand following COVID-19.

99. The Magistrate’s reasons set out various statements made in successive iterations of the care plan about the concern of sexual harm to MX and the concern that the Plaintiff was the perpetrator. [6] There follows references to other documents which were recited, quoted and commented upon by the Magistrate as evidence of those concerns.

    6. Tcpt, 21 May 2024, p 4(12)–6(17).

100. The Magistrate emphasised that two matters which her Honour raised with the parties at pre-hearing mentions were the Plaintiff’s position under s 128 of the Evidence Act 1995 (NSW) and her Honour's requirement that the opinions of Ms Martens be tested at the hearing, including the assumptions upon which Ms Martens' opinions were based. The Magistrate also set out some statements which her Honour had made at pre-hearing mentions about her Honour’s concern about the risk of sexual harm to the boys in the care of the Plaintiff. These included the following statement:

"Mr Squires, in view of that information, my fundamental concern about the risk of these children in the care of their paternal grandmother in consequence of these allegations. The test that I determine things by on the balance of probabilities in relation to that, of course, assessing the risk or unacceptable risk of harm to these children. Do you have anything further to say in relation to your position in supporting the further assessment?" [7]

7. Tcpt, 18 March 2022, p 4(37).

101. The Magistrate’s reasons nextly turned to the conduct of the final hearing. Her Honour stated:

"From the outset, the reason the matter proceeded to hearing concerned the testing of evidence as to whether there was a risk of sexual harm to the children in the care of their paternal grandmother and whether that risk was an unacceptable risk such that the Court might decline to find permanency planning appropriately and adequately addressed in accordance with s 87(7)(a) of the [Statute]." [8]

8. Tcpt, 21 May 2024, p 11(5)–(10).

102. The Magistrate’s reasons then set out at length a number of statements which her Honour made during the hearing in which her Honour voiced her concerns about the Plaintiff.

103. The Magistrate then addressed the nature of proceedings under the Statute and observed that since it is not a “consent jurisdiction”, the Children's Court is bound to exercise an independent judgment and that the safety, welfare and well-being of the child are paramount. The Magistrate also referred to the procedural matters set out in Chapter 6 of the Statute, including s 107(1). The Magistrate set out s 140 of the Evidence Act 1995 and made lengthy references to Briginshaw v Briginshaw 60 CLR 336; [1938] HCA 34 in the context of a positive finding of harm having been caused to a child. The Magistrate described care proceedings as inquisitorial and, in accordance with s 93 of the Statute, not adversarial. Her Honour included a passage from D v C; Re B (No. 2) which included the following quote from Basten JA, with whom McColl JA and Emmett AJA agreed, at [42]:

"Further, adversarial proceedings are commonly contrasted with inquisitorial proceedings. As commonly understood, the point of contrast is that an adversarial proceeding is controlled by the parties, with limited input from the court, whilst inquisitorial proceedings reserve the element of primary control."

104. The passage which the Magistrate quoted from D v C; Re B (No. 2) also states that the parties are entitled to procedural fairness and that the Secretary is entitled to be heard.

105. The Magistrate also quoted M v M (1988) 166 CLR 69; [1988] HCA 68 and other cases about the assessment of the “risk” of harm.

106. Having concluded Her Honour's description of the nature of care proceedings, the Magistrate turned to the principles which apply to disqualification for apprehended bias. Her Honour commenced by quoting the double might test from a number of cases and observed that the test was objective and did not require an assessment of the decision-maker's state of mind. The Magistrate then set out a number of passages from various authorities about the application of the double might test.

107. The Magistrate identified the basis for the disqualification application which the Plaintiff and the Secretary had made, namely a reasonable apprehension of bias. [9] The Magistrate listed the individual contentions made in support of the application. It was a long list which ran to more than seven pages of transcript. The Magistrate listed the contentions without material comment or response.

     9. Tcpt, 21 May 2024, p 32.

108. The Magistrate concluded by stating her Honour's reasons for dismissing the application. [10] This part of the reasons is short and ought to be read in full:

“DETERMINATION OF THE APPLICATION

No application was made for my recusal or disqualification until 23 February 2024, day 11 of the hearing. The written submissions of the psychological paternal grandmother and the Department of Communities and Justice go beyond the contentions articulated in the oral applications. The references as to what was said that may cause a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension of bias are now expansive, dating back to day one of the hearing.

No finding has been made regarding any witnesses or their credit. No finding has been expressed as to whether there is a risk of sexual harm or other in the placement of the children and whether that risk is unacceptable. There is no arena in the same sense as there might be in civil or criminal proceedings.

As set out in Chamoun v District Court of New South Wales, paras 35 to 38, in relation to whether apprehended bias might be found, the test is objective. It requires an identification of what was said that might lead a judge to decide a case other than on its legal and factual merits. It requires the identification of the logical connection between what was said and the feared deviation away from deciding the case on its merits. An objective assessment is required of the connection between facts and circumstances said to give rise to the apprehension.

In relation to the applications by the parties, I am not of the view that a reasonable lay observer would contend that a Court controlling proceedings or making the interventions that have been made, characterising evidence or acknowledging evidence in relation to probabilities of risk of sexual harm, that remarks pertaining to acknowledgement that there is evidence that the child, [MX], has said that his grandmother has touched him on his penis and played games with his genitalia, to adults demonstrates pre-judgment. I am not of the view that a reasonable observer, a lay observer, would determine that there might be a risk or that there might be apprehended bias from questioning witnesses about facts or assumptions or reasoning or experience in the circumstances of this case in the context of an informal and inquisitorial hearing. It does not demonstrate interference such that a reasonable layperson would apprehend I might not bring an impartial mind to the issues or that there has been some denial of procedural fairness.”

10. Tcpt, 21 May 2024, pp 41(9) – 42(6)

109. Having dismissed the application, the Magistrate adjourned the Children's Court Proceedings.

Supreme Court proceedings

110. The proceedings before the Supreme Court were commenced on 21 May 2024 by way of a Summons. As set out above, the Summons was subsequently amended and, ultimately, the Plaintiff seeks the relief set out in paragraph [5].

111. The material adduced into evidence at the hearing of these proceedings is:

1. the application by which the Children's Court Proceedings were commenced by the Secretary on 23 September 2020;

2. each iteration of the Secretary's Care Plan for MX (four iterations) and BN (three iterations), culminating with the final amended care plans dated 28 January 2022 (one for each boy);

3. an Affidavit of Brittany Watson dated 28 January 2021 who, at that time, was the Department's case worker working on the Children's Court Proceedings, which Affidavit updated the circumstances of the boys, MK and BA and the case work being undertaken at that time;

4. as Annexure D to that Affidavit, a copy of the Alternate Assessment completed by Ms Watson on 16 November 2020;

5. an Affidavit of Jamie Pendergast dated 13 July 2023 who, at that time, was the Department's case worker with casework responsibility for the boys which provided the Children's Court with additional information about events in September and October 2020, and updated material about the circumstances of the boys, MK and BA and the case work being undertaken at that time;

6. as Annexure L to that Affidavit, a copy of the Ms Martens' report dated 29 June 2023;

7. the transcript of the pre-hearing mentions before the Children's Court on 28 January 2022, 18 February 2022, 18 March 2022, 22 October 2022, 3 February 2023, 29 May 2023 and 21 July 2023, all of which were heard by the Magistrate (except the first);

8. the transcript of the ten hearing days to date, commencing on 4 September 2023 and concluding on 22 February 2024;

9. the complete audio recording of the first nine hearing days concluding on 21 February 2024, which runs to 32 hours, 27 minutes and 6 seconds; the audio recording was adduced into evidence in the form of an USB stick (Exhibit B);

10. the first 1 hour, 22 minutes and 51 seconds of the audio recording of the tenth hearing day on 22 February 2024 - unexplained, Exhibit B does not include audio recording of the rest of the tenth hearing day, including the questioning of Ms Perrin (see below);

11. the transcript of the disqualification application made on 23 February 2024 – there is no audio;

12. written submissions of the parties which were provided to the Magistrate on 16 and 17 May 2024;

13. the transcript of the reasons for dismissing the application given by the Magistrate orally on 21 May 2024; and

14. confirmation from the Children's Court that there are no written reasons.

112. In this Court written submissions were filed by the Plaintiff, MK and BA. MK and BA supported the relief sought by the Plaintiff, a circumstance which some of the parties emphasised.

113. Upon the Attorney-General appearing in the proceedings, the Secretary ceased to take an active role.

114. The matter was heard on 11 September 2024 when all parties, including the Attorney-General (but not the Secretary or the Children’s Court Registrar), were represented by Counsel. In a model of efficiency and in pursuit of the overriding purpose, perhaps achievable to a greater extent when everyone is pushing in the same direction, no party sought to repeat matters already written down or which someone else had already said. The hearing concluded in half a day, with the evidence commended to the Court.

115. In addition to the other evidence, I have read all the transcript and listened to all the audio recordings in Exhibit B.

Submissions of the parties and the Attorney-General

116. No party nor the Attorney-General contended that there was actual bias on the part of the Magistrate, yet every party and the Attorney-General made a number of submissions which were phrased in terms of what the Magistrate may have thought, intended or hoped to elicit by certain action on her Honour’s part. Such submissions were more consistent with actual bias than a reasonable apprehension of bias. Despite the wording of these submissions, I have taken each of them to be a submission that a fair-minded lay observer might reasonably apprehend from the relevant action that the Magistrate might think, intend or hope to elicit as submitted.

117. Viewing the submissions in that light, the following is a summary of the submissions made by each party and the Attorney-General.

Submissions of the Plaintiff

118. As distilled at the hearing on 11 September 2024, the Plaintiff relied upon two contentions as to why the Court ought grant the claimed relief:

1. jurisdictional error by the Magistrate; and

2. error of law on the fact of the record.

119. As for the first contention, the Plaintiff's essential proposition is that a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of issues which the Magistrate has to decide. This is said to constitute jurisdictional error.

120. The Plaintiff submits that a reasonable apprehension of bias is to be concluded not from a single incident which occurred during the hearing but from a succession of incidents across the ten hearing days. Drawing on the submissions previously made to the Magistrate, the Plaintiff puts forward five contentions:

1. there might be a reasonable apprehension that the Magistrate might have already formed a view that the Plaintiff has caused sexual harm to MX, even though the evidence has not concluded and the submissions have not yet been made - this is one place where the Plaintiff’s submissions were worded in a way more consistent with actual bias than a reasonable apprehension of bias, and the submissions are to be understood as described above;

2. the Magistrate denied the Plaintiff and the Secretary procedural fairness by excessive intervention and interruption in the course of the hearing;

3. the Magistrate entered into the arena and became an active participant in the conduct of the case;

4. the Magistrate impaired the conduct of the case by each of the Plaintiff and the Secretary by levelling dismissive and critical comments at the legal representatives for those parties and "bullying" the legal representative for the Secretary; and

5. the Magistrate made comments which may have had the effect of confusing or upsetting witnesses, put propositions to some witnesses not put to others and enquiring with respect to irrelevant considerations.

121. To make good these five contentions the Plaintiff drew attention to some particular incidents during the hearing and submitted that the Magistrate's conduct went beyond mere enquiry into factual matters yet to be decided and might have instead given rise to a reasonable apprehension that the Magistrate might not bring an open mind to the determination of those matters. The specific incidents relied upon by the Plaintiff are not set out here but addressed below in detail.

122. As for the second contention (error of law on the face of the record), the Plaintiff submitted that pursuant to s 69(4) of the Supreme Court Act 1970 the record includes the reasons given orally by the Magistrate on 21 May 2024. The other parties supported this submission, as ultimately did the Attorney-General.

123. The Plaintiff submitted that the Magistrate's reasons are inadequate. They do not address the individual matters relied upon by the Plaintiff and the Secretary for the contention that there is a reasonable apprehension of bias, let alone how those matters might operate on the mind of a fair-minded lay observer.

124. The Plaintiff further submitted that the Magistrate's reasons demonstrate that the Magistrate took into account an irrelevant consideration, namely the fact that the Magistrate is not actually biased. Despite the fact that the Magistrate set out a number of authorities about the reasonable apprehension of bias, the Magistrate appears to have concluded that her Honour ought not disqualify herself because she has not yet decided whether the Plaintiff has perpetrated sexual harm to MX. The reasons do not address reasonable apprehension.

125. The Plaintiff ultimately submitted that the Magistrate's reasons leave the parties with an insufficient understanding of how her Honour came to the conclusion that she did. The reasons fall short of the minimum requirement and are therefore inadequate.

Submissions of the other parties

126. Written submissions were filed on behalf of each of MK and BA.

127. For her part, MK submitted that her position before the Magistrate (see above at [90]) was "expressed as a neutral position" but in substance it was supportive of the Plaintiff and the Secretary. In any event, as the mother of the boys, MK now fully supports the Plaintiff's position. Broadly the same contentions were made on her behalf as to why the Magistrate ought to have disqualified herself. MK submitted that the Magistrate has crossed the line between acceptable and unacceptable judicial conduct, even if the proceedings are characterised as inquisitorial in nature.

128. On the adequacy of the Magistrate's reasons, MK's principal submission was that the Magistrate has not in fact given any reasons. The Magistrate has merely stated a series of conclusions but nowhere explains the reasons for those conclusions. [11] MK further points out that three times the Magistrate refers to what a reasonable lay person "would" apprehend when the correct test is what a reasonable lay person "might" apprehend. MK submits that the Magistrate has therefore not answered the correct question. Her Honour has adjudicated the application using the “wrong test”.

     11. Tcpt, 21 May 2024, pp 41(35)–42(4).

129. BA also supported the position taken by the Plaintiff. His submissions ran in much the same channel as the Plaintiff's submissions. He emphasised that there was no single incident which gave rise to a reasonable apprehension of bias but that such a finding arose from "the culmination of the Magistrate's conduct". BA submitted that "the Magistrate's conduct takes a proper judicial inquiry into what is the evidence about [the Plaintiff] and overreaches into the Magistrate only being interested in evidence that would prove [the Plaintiff's] guilt".

130. BA further submitted that the reasons given by the Magistrate list "bullying" as one of the grounds relied upon by the Secretary, yet the Magistrate did not address that ground when determining that her Honour would not disqualify herself. BA submits that the Magistrate failed to take into account a relevant consideration (bullying) and that that is an error of law which appears on the face of the record.

Submissions of the Attorney-General

131. For his part, the Attorney-General served extensive written submissions which addressed both the principles and the facts. The Attorney-General provided some analysis but did not advocate any particular finding.

132. The Attorney-General emphasised that pre-judgment is not the same as pre-disposition and that pre-judgment will not occur unless a pre-disposed decision maker ceases to be open to persuasion prior to hearing all the evidence and the submissions. Citing a number of authorities including the Full Court of the Federal Court in Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 317, the Attorney-General pointed out that it may be useful for the parties to have the decision maker give insight into his or her developing opinions. Citing Antoun v The Queen (2006) 80 ALJR 497; [2006] HCA 2 and Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44, the Attorney-General submitted that the line between a forthright and robust indication of the decision maker's tentative views and an impermissible indication of pre-judgment is "ill-defined" and may be hard to discern.

133. The Attorney-General addressed each of the five contentions relied upon by the Plaintiff (see [120] above). The Attorney-General’s observation about the Plaintiff’s contentions may be summarised as follows:

1. having regard to all the evidence, it would be open to the Court to find that there might be a reasonable apprehension that the Magistrate might have already formed a view that the Plaintiff has caused sexual harm to MX, and is no longer open to being persuaded that that view is wrong; alternatively, the Court may find that the incidents relied upon by the Plaintiff are not sufficient for such a conclusion;

2. whilst intervention by the Magistrate is to be viewed in the light of the nature of proceedings in the Children's Court and the power specifically conferred on the Magistrate by s 107 of the Statute, having regard to the number of interruptions, the number of questions put to witnesses by the Magistrate and the general nature of the Magistrate's questions, it is open to the Court to find that the Magistrate's interventions support a finding that a fair-minded lay observer might reasonably apprehend that the Magistrate might have been attempting to elicit evidence to support the view that the Plaintiff was the perpetrator of sexual harm to MX;

3. there is no doubt that:

1. the Magistrate "took a very active role" in the conduct of the hearing, "requiring" certain persons to be called as witnesses, "calling" for documents which were not in evidence and taking an active part in the questioning of witnesses; and

2. the Magistrate expressed dissatisfaction with the evidence adduced by the Secretary and other parties;

which may be viewed alternatively as the conscientious conduct of inquisitorial proceedings by the Magistrate or an attempt by the Magistrate to elicit evidence to prove a pre-disposed view that the boys could not safely be placed with the Plaintiff;

4. whilst rude behaviour towards legal practitioners does not of itself give rise to a reasonable apprehension of bias (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at 112; [2003] FCA 872 at [44] (Kenny J)), the Magistrate's behaviour towards Ms Smith may be viewed as her Honour seeking to discourage Ms Smith in circumstances where the Secretary continued to propose a permanent placement with the Plaintiff, in which case the Magistrate’s behaviour is supportive of a finding of apprehended bias; and

5. the fifth contention relied upon by the Plaintiff does not materially add to the other four.

134. As for the adequacy of the reasons, the Attorney-General observes that the Magistrate read her Honour's reasons and did not provide a written judgment. However, the Attorney-General also observes that the application was effectively made with notice (given the lengthy adjournment ordered by the Magistrate at the conclusion of the oral submissions on 23 February 2024), with the benefit of written submissions and with a period of about three months since the application was first made. In those circumstances, the standard for the Magistrate’s reasons is higher than that which would apply to an ex tempore judgment given by a magistrate in a busy Local Court list.

135. The Attorney-General submitted that the Magistrate's reasons, if read fairly, read "beneficially" and taken as a whole, may be capable of demonstrating that the Magistrate considered apprehended bias rather than actual bias and otherwise did not make any of the positive errors for which the Plaintiff contends. The Attorney-General submitted that it is necessarily implicit in the dismissal of the application that the Magistrate did not accept that a fair-minded lay person might reasonably apprehend that the Magistrate might have closed her Honour's mind about whether the Plaintiff has engaged in sexual abuse of MX. The Attorney-General submitted that it is open to the Court to find that the reasons are adequate.

136. The Attorney-General's ultimate submission is that it is open to the Court to find that the Magistrate erred by refusing to disqualify herself.

137. Were the Court so to find, the Attorney-General submits that the Court ought to exercise its discretion by quashing the Magistrate's decision not to disqualify herself, and by prohibiting the Magistrate from hearing the case further.

138. More specific details of the parties' and the Attorney-General's submissions are reflected in the analysis of the evidence below. In some instances, specific submissions are identified.

Legal principles

Disqualification for apprehended bias

139. The criterion by which asserted apprehension of bias is to be determined and the process by which that criterion is to be assessed were conveniently stated in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65 at 77; [2023] HCA 15 at [37]-[38] by Kiefel CJ and Gageler J as follows (footnotes omitted):

“37   The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The “double might” serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”.

38   Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.”

140. Disqualification for apprehended bias gives effect to the requirement that justice should both be done and be seen to be done: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6].

141. Whether a fair-minded lay observer might reasonably apprehend bias can be informed by the cumulative effect of several incidents during the hearing: Antoun v The Queen at [2] (Gleeson CJ) and [57] (Hayne J). In order to decide whether there is a reasonable apprehension of bias, it may be necessary to consider the whole of the transcript rather than an isolated incident identified by the applicant: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [75] (Robertson J, with whom Allsop CJ agreed).

142. Another matter which a fair-minded lay observer will take into account is the fact that an open judicial mind does not mean a blank mind. In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531-532; [2001] HCA 17 at [71]-[72] (footnotes omitted), Gleeson CJ and Gummow J said:

“[71]   …Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

HER HONOUR:    Right.

SMITH:    provided to the parents in terms of the full copy of the report.

HER HONOUR:    Ms Bremner, what do you make of this situation?” [70]

70. Tcpt, 4 September 2023, pp 24(29)–25(9).

325. Ms Smith was communicating to the Magistrate a sensible and pragmatic arrangement appropriately to address a sensitive issue of confidentiality for the Plaintiff. The arrangement had arisen from the parties consulting each other to ensure each party’s interests were protected. As revealed by the audio recording in Exhibit B, the Magistrate’s response “all the time” was delivered in a belittling tone. By use of that tone, by directing her Honour’s response to Ms Smith’s initial statement that reports get redacted “all the time”, by not referring and implicitly ignoring everything else which Ms Smith had said and by asking “do you have something other than a submission ‘all the time’, that you can assist the Court with” the Magistrate treated Ms Smith in a dismissive way.

326. On another occasion the Magistrate questioned Ms Smith about whether there existed a recording of some JCPRP investigative work. The approach taken by the Magistrate was to get Ms Smith first to confirm what Ms Smith had previously “placed on the record” about the non-existence of a recording, and then to ask Ms Smith a series of incremental questions about a document evidently designed to demonstrate the opposite. The Magistrate was cross-examining Ms Smith in order to demonstrate a point. There was no reason for the Magistrate to take that approach. It would have been more efficient, just, quick and cheap for her Honour simply to explain what her Honour had more recently observed from the documents, and query the correct position. A fair-minded lay observer might reasonably have apprehended that the Magistrate was trying to belittle Ms Smith. [71]

     71. Tcpt, 5 September 2023, pp 47(29)-48(37).

327. On 6 September 2023 the following exchange occurred during Ms Smith’s questioning of the Plaintiff. In the absence of the witness:

“HER HONOUR:    Could you help me understand your approach, Ms Smith, in relation to this witness?

SMITH:    Your Honour, I'm trying to put it is in fairness, it is three years ago, it's not a memory test.

HER HONOUR:    I know that all right. Yes. Could you help me understand your approach in relation to this witness please?

SMITH:       Generally or in relation to this area of questioning?

HER HONOUR:    Yes, thanks in relation to this.

SMITH:       This questioning?

HER HONOUR:    Am I not being precise enough for you, Ms Smith?

SMITH:    I'm sorry, your Honour, I don't understand if you're asking me about my approach in relation to this witness generally in cross-examination or in relation to this area of questioning?

HER HONOUR:    Why don't we just talk about you tell me your general approach please?” [72]

72. Tcpt, 6 September 2023, pp 16(39)–17(10).

328. It was apparent that Ms Smith did not understand what she was being asked by the Magistrate. Her lack of understanding was explicable by the novelty, vagueness and undiscernible object of the Magistrate’s question. Nonetheless, the Magistrate did not explain to Ms Smith what her Honour as asking, but essentially kept repeating the same question, interrupted by the condescending “Am I not being precise enough for you, Ms Smith?”. On the audio tape in Exhibit B, the Magistrate’s questions sound officious and belittling.

329. There were a number of occasions when the Magistrate specifically asked Ms Smith to make submissions and then cut Ms Smith off once she started to do so. An example occurred on 8 September 2023:

“HER HONOUR:    Well I just want to, in fairness to the [S]ecretary, as the model litigant in relation to this matter, the Court is confronted with deficiencies in evidence. Of course, it’s not the Department of Communities and Justice, they’re not an investigating authority in terms of - like the police, but it has put before the Court some material which indicate a substantiation of sexual harm, and of course I’m referring to the material from Brittany Watson in relation to at least [MX], and a position in the early stages of the filings that it occurred in the home of the paternal grandmother when the children were living with the paternal grandmother, the mother and the father.

The investigation that it did undertake, a casework related investigation, and a referral to JCPR, was prompted by independent disclosures or reporting, the Court understands, by, in first instance, the maternal aunt, [MS]. The secretary comes to the Court with a position now that the Court should be satisfied on balance that permanency planning is appropriately and adequately addressed on the basis of a care plan that supports long-term placement of the children with the paternal grandmother in the household in which it is - on its evidence, it’s substantiated, sexual harm took place, and with a person who was resident in the household when the sexual harm, it’s substantiated, took place. Beyond that, the secretary’s assistance to the Court is limited.

The Court is left with two approaches in relation to such a matter in determining the issues. The Court may approach the matter and determine on a balance of probabilities whether the sexual harm occurred and who perpetrated it, or the Court might approach the matter if unable to do such a thing, consistent with M and M, consistent with the authorities and guidance in Isles and Nelissen, approach it in a way as to evaluate risk of sexual harm.

The Court is not assisted by the secretary in relation to the absence of evidence that may be pertinent to one or other of those approaches. To hear a submission from the model litigant that it’s not in the secretary’s case does not assist the Court. It may be that such omissions or approaches will be subject to comment in a judgment that will ultimately be given in relation to this matter. I’ll put those matters to the parties, and, in particular, the Secretary for its consideration.

The Court has, over a number of readiness checks, indicated the Court would be assisted by evidence from persons such as Natalie Pittman, [MS], at least in the course of the hearing this week, Sue Greville, Erin Hynes, the carer, Trish. Instead, the Crown is dealing with evidence of, for want of a better phrase, not the best evidence that might otherwise be available to put before the Court, given the gravity of the matter. Yes. You wish to say anything at this time, Ms Smith, or would you like to consider the Court’s comments?

SMITH:    Your Honour, it’s the Secretary’s case that reports were made. Allegations were made. Those matters were investigated twice. There’s a procedure for that, including interviewing the child. There was a finding made in the first instance by JCP not to substantiate anything. And the finding by the department in terms of the risk of significant harm investigation--

HER HONOUR:    I just think at the moment, Ms Smith, you’re making submissions that come at the end of the case and you’re not attending your submissions at this point to the matters of evidence that I’ve raised.

SMITH:       Your Honour, I’m trying to--

HER HONOUR:    Is there anything you would like to say directly on those issues?

SMITH:    I’m trying to explain the Secretary’s response to the concern that your Honour has just raised about the evidence and the evidence that the Secretary relies on, but also we won’t be seeking to take affidavits from those parties.

HER HONOUR:    Thank you for that clarification. In view of the Court’s comments, is there any application brought to have witnesses brought before the Court who have not been subject to affidavit evidence?” [73]

73. Tcpt, 8 September 2023, pp 2(31)–3(48).

330. There were occasions when the Magistrate spoke to Ms Smith in a way which is fairly described as rude. On 21 February 2024 the following exchange occurred:

“HER HONOUR:    Yes, I'd like to hear from the manager client services about the assessment of risk in relation to this matter and the Department's position as to permanency and how those decisions were made.

SMITH:    Your Honour those are all matters that sit at delegation with Ms Gordon.

HER HONOUR:    Yes, I appreciate that thank you for that contribution Ms Smith. I still require the witness.” [74]

74. Tcpt, 21 February 2024, p 45(7)-(15).

331. The full meaning of the Magistrate’s words is only apparent from the audio evidence in Exhibit B. [75] The Magistrate’s words “thank you for that contribution Ms Smith” were spoken in a sarcastic tone of voice.

     75. Exhibit B, File 9.6 at 1:59–3:00.

332. The Magistrate’s treatment of Ms Smith was not uniform throughout the ten hearing days, but the dismissive behaviour was sufficiently frequent and regular across the entire hearing to make it remarkable.

333. My perception of the manner in which the Magistrate spoke to Ms Smith is confirmed by the submissions made orally by Ms Smith in support of the disqualification application on 23 February 2024. Ms Smith made the following submission:

“I also must say that as a legal practitioner I have felt bullied in trying to conduct the case on behalf of my client. I have felt that I have not been able to complete many submissions. I have not been able to finish sentences. I’ve not been able to put things on behalf of my client in response to comments your Honour has made. I don’t know what to expect generally for each day of this hearing. Again that would also, certainly from my client’s perspective, cause a fair-minded lay observer to reasonably apprehend that your Honour is not bringing impartial and unprejudiced mind because of the treatment of myself and Ms Roberts, the two parties in this matter, that are presenting a case to the Court which your Honour may not agree with.” [76]

76. Tcpt, 23 February 2024, p 4(7)-(16).

334. The Attorney-General submits that it may be inferred that Ms Smith was aware that this submission was a serious matter, and that Ms Smith would not have made it unless she held the honest belief which she expressed. Ms Smith evidently did not make this submission to the Magistrate lightly. I accept the Attorney-General’s submission.

335. Compared to Ms Smith, Ms Roberts’ participation in the hearing was limited. For the first week of the hearing the Plaintiff was represented by counsel who was instructed by Ms Roberts. Ms Roberts was not required to play the same role as the Secretary’s legal representative. Nonetheless, I have set out above the details of Ms Roberts’ cross-examination of Ms Watson. For current purposes, some of the Magistrate’s interaction with Ms Roberts may fairly be described as dismissive and intolerant. In particular, the two occasions when the Magistrate abruptly left the bench, once when Ms Roberts was in the middle of a sentence, were intolerant behaviour by the Magistrate.

336. Listening to the entire recording in Exhibit B, I am satisfied that the complaint about the Magistrate’s treatment of the legal representatives was not universal but was directed to Ms Smith in particular, and to Ms Roberts to a lesser extent.

337. In reaching this conclusion, I have had regard to the broader frustrations faced by the Magistrate in the conduct of the case. There were a number of matters which the Magistrate clearly found to be irritating. In particular, it is a document heavy case. On another occasion the Magistrate referred to having 16 volumes of documents. On one occasion it seems clear that the Magistrate was working from a bundle which was paginated differently to the bundle which everyone else had. There were other difficulties, such as the unavailability of witnesses, not always for self-evidently good reasons, third party claims for confidentiality and imperfect audio visual links to remote witnesses. BA was consistently late on each hearing date. There is no doubt that this has been a difficult case for the Children’s Court to hear.

338. It is not possible to drill down into all these details and attribute responsibility. It is certainly not possible to find that the Secretary was responsible for any particular irritant. In some cases it is clear that the Secretary was not responsible. However, as the legal representative for the Secretary, it was usually Ms Smith who was on her feet each time the Magistrate raised a problem.

339. For incidents specifically referrable to, for example, the collation of the documents, the Magistrate’s expressions of dissatisfaction are not relevant to apprehended bias. For each such incident, a fair-minded lay observer would have understood that the Magistrate’s conduct has no logical connection with the determination of the issues in the case. On the hand, the Magistrate’s dismissive conduct towards Ms Smith and Ms Roberts cannot be explained by the Magistrate’s frustration with the logistics of running the proceedings.

340. Whilst dismissive behaviour towards legal representative is not demonstrative of bias per se nor the apprehension of it, it may be relevant if it gives the impression that the judge might be oppositional to the position for which the legal representative is contending, or that the judge might wish to discourage the legal representative from advocating his or her clients position or that the judge might not be interested in what the legal representative has to say, either generally or on a particular issue. A fair-minded lay observer might reasonably have had such an apprehension from the Magistrate’s conduct in this case.

341. This is especially so in the case of Ms Smith. The fair-minded lay observer would be aware that Ms Smith has an express statutory entitlement to be heard as the legal representative for the Secretary.

342. In these circumstances and having regard to the entire transcript and audio recording, the Magistrate’s conduct might have caused a fair-minded lay observer to have a reasonable apprehension that her Honour might not bring an impartial mind to the resolution of the issues being advocated by the Secretary and the Plaintiff.

Plaintiff’s fifth contention: the Magistrate’s treatment of witnesses

343. For her final contention, the Plaintiff submitted that the Magistrate “made comments which may have had the effect of confusing or upsetting witnesses, put propositions to some witnesses that were not put to others, and enquiring with respect to irrelevant considerations”.

344. Most of the particulars relied upon for this submission have been addressed above. Some of the additional particulars are:

1. Twice during the questioning of the Plaintiff, the Magistrate interrupted to place on the transcript observations which her Honour had made about the Plaintiff’s demeanour (shrugging arms ^[77] and repeatedly placing hands heavily on witness box ^[78] ).

   77. Tcpt, 7 September 2023, p 17(41).

   78. Tcpt, 8 September 2023, p 11(32)-(36).

2. On 6 September 2023 the Magistrate questioned the Plaintiff for approximately 19 minutes about her membership of the Wellington Daley Wiradjuri Aboriginal Corporation which culminated in the Magistrate “calling” for a document “signed and stamped” by the land council to prove the Plaintiff’s membership ^[79] . There was no apparent reason for this line of questioning.

   79. Tcpt, 8 September 2023, pp 68(49)–72(36).

3. During BA’s oral evidence, the Magistrate questioned him extensively. At one point her Honour asked him whether the Plaintiff had taught him protective behaviours when he was a child. Ms Roberts objected to the question on the basis that the same question had not been put to the Plaintiff whose evidence was long since complete. The Magistrate overruled the objection on the basis that an application for leave could be made if any prejudice flowed from BA’s answer ^[80] .

   80. Tcpt, 22 February 2024, pp 39(34)–40(32).

345. There are some other minor particulars identified by the Plaintiff, like getting witnesses to cover up affidavits and turn off phones, which do not need to be addressed.

346. These incidents do not add to (nor detract from) the findings above.

Summary on reasonable apprehension of bias

347. The foregoing analysis has been structured to respond to the Plaintiff’s contentions and the Attorney-General’s submissions. It will be clear that there is overlap and accumulation between the incidents referred to and the submissions made in relation to them. When the Magistrate’s conduct of the Children’s Court Proceedings is viewed as a whole it is clear that a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the issues which the Magistrate is required to decide.

348. I have not reached this conclusion lightly. The evidence to support it is strong.

349. Without advocating a view, the Attorney-General has submitted that this is a finding which is open to the Court.

350. My finding is expressed in terms of a fair-minded lay observer who is a hypothetical figure. The personal perspective of the mother of the boys, MK, is not strictly relevant to the conclusion. However, MK’s perspective is consistent with my conclusion. As set out at [90] above, MK instructed her lawyer that “she can see that the Magistrate does not like [the Plaintiff] and seems to have formed a view that [the Plaintiff] has done something to [MX]”. It will be recalled that MK supports the Plaintiff in the proceedings in this Court.

Discretion and relief

351. Conducting proceedings when there is a reasonable apprehension of bias constitutes a jurisdictional error. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [26], Kiefel CJ and Gageler J said that an apprehension of bias is inherently jurisdictional in that it negates judicial power.

352. In the face of jurisdictional error, the submissions of the parties and the Attorney-General fell short of a contention that the Court does not have a residual discretion to decline relief. Even if the Court does have a discretion to decline relief, the relief sought by the Plaintiff should be granted in this case.

353. The Children’s Court Proceedings were commenced on 23 September 2020. They concern the permanent placement of two small boys, MX and BN. The first care plan was brought forward in November 2020. The Magistrate has already received ten days of evidence. The Magistrate’s outstanding requirements for the case will result in at least one further week of hearing days to be found amongst the Children’s Court busy lists and the legal representatives’ crowded diaries. Given that there is no allegation of actual bias, I have considered whether the interests of the boys in a speedy conclusion would be best served by permitting the Magistrate to continue.

354. The parties are unanimous in their submissions to the contrary. As for the interests of the boys, the parties expressed a high degree of confidence that the Children’s Court Proceedings can be concluded more quickly before another magistrate even if the hearing has to start again. That confidence is founded on the Secretary’s uniquely extensive experience with applications for care orders and the practices and procedures of the Children’s Court. The confidence further comes from the submission, which I accept, that the time thus far spent in hearing the Children’s Court Proceedings has to a significant extent resulted from the interventions of the Magistrate. It may also be the case that dismissal of these proceedings will not finally quell the controversy if, upon the Magistrate making final orders one way or the other, an appeal is brought against those orders on the ground that there was a reasonable apprehension of bias. Such a situation would be intolerable, not least for the reason of the further delay it would cause the boys.

355. Sight should not be lost of the fact that the parties who are united in seeking relief from the Court comprise the boys’ mother, NB’s father and MX’s psychological father and the Plaintiff. Guided by his statutory obligations to regard the safety, welfare and well-being of the boys as paramount, the Secretary agrees with the other parties.

351. In addition to the interests of the boys, the matter which weighs most heavily in favour of the Court granting relief is the administration of justice. The determination of the Children’s Court Proceedings must be fair and must be seen to be fair. It would be contrary to the administration of justice to permit the Magistrate to continue to hear the case. The principle is illustrated by the submission by MK’s solicitor that MK “knows that this is not how this process is meant to work”.

352. In those circumstances, I will grant the relief sought by the Plaintiff as set out in [5] above.

Ground 2: Adequacy of the Magistrate’s Reasons

358. In view of the conclusion I have reached on apprehended bias it is not necessary to consider whether the reasons given by the Magistrate are inadequate so as to constitute an error of law on the face of the record.

359. I will nonetheless decide that issue given that the matter has been fully argued.

Adequacy of the Magistrate’s Reasons

360. I have described above at [98]-[108] the structure of the reasons given by the Magistrate and set out the concluding passage in which the Magistrate gave her Honour's reasons for refusing to disqualify herself. I have also set out the legal principles by which the adequacy of the reasons is to be determined.

361. I accept the Attorney-General's submission that the standard required of the reasons in this case is higher than that which may be required for a judgment given ex tempore in a busy Local Court list. The Magistrate's reasons were set out in a reserved judgment given after an extended period and with the benefit of oral and written submissions: cf Heywood v Local Court of New South Wales [2024] NSWSC 1047 at [92] (Lonergan J).

362. The mother, MK, took the labouring oar for this part of the case. She made the essential submission that the Magistrate has in fact provided no reasons for her Honour's determination of the application. The question which her Honour had to decide was whether a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the issues which the Magistrate is required to decide in the Children's Court Proceedings. The Magistrate’s reasons do not address that question. I accept that submission.

363. There are four relevant parts to the reasons. First, the Magistrate has identified the nature and content of the Children's Court Proceedings. The Magistrate has also, rightly, observed that the proceedings are not adversarial and that the Magistrate may question witnesses under s 107 of the Statute. The Magistrate further identified the issue in the proceedings which was most relevant to the disqualification application, namely whether there is a risk of sexual harm to the boys in the care of the Plaintiff.

364. Secondly the Magistrate has quoted passages from five authorities about apprehended bias. However the Magistrate has not made any statement about the application of any of the principles to the facts of this case.

365. Thirdly, the Magistrate listed all the individual matters relied upon by the Plaintiff and the Secretary for the contention that a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the issues which the Magistrate is required to decide. The Magistrate has done so without comment or response, other than to observe repeatedly that Ms Martens' evidence has not been completed and that when her Honour questioned BA about what the Plaintiff had taught him as a boy, she did so on that basis that leave may be granted to recall the Plaintiff if necessary. Beyond that, the Magistrate has not addressed whether any of the listed matters might not support the Plaintiff's contentions and, if not, why not.

366. Finally, the Magistrate has given the reasons set out at [108] above. The first thing to note about the reasons is that they cut across any implication that the Magistrate has applied the principles from the five authorities quoted by her Honour. From Webb v The Queen (1994) 181 CLR 41 and other authorities, the Magistrate quoted passages which prescribe the double might test, but the Magistrate has then expressly applied a different test about what a fair-minded lay observer "would" apprehend. The Magistrate quoted a passage from Chamoun v District Court of New South Wales [2018] to the effect that the test is objective, but has then stated subjectively that her Honour has not made any finding. Apart from the passage from Vakauta v Kelly (1989) 167 CLR 568 about delay in bringing the application, there is no apparent correlation between the authorities quoted by the Magistrate and the reasons given by her Honour for not disqualifying herself.

367. Nor is there any apparent correlation between her Honour's reasons and the list of matters relied upon by the Plaintiff and the Secretary for the application. Apart from observing that the list is expansive and includes (unspecified) incidents dating back to the first day of the hearing, the Magistrate has not addressed any of the detail put forward by the Plaintiff and the Secretary. The Magistrate has simply stated the conclusion that there is nothing which would cause a fair-minded lay observer reasonably to apprehend that her Honour might not bring an impartial mind to the issues in the case. The reasons for that conclusion have not been revealed.

368. Other than by generic references, the Magistrate has not addressed any of the matters specifically referred to in the foregoing part of this judgment, including the Magistrate's reaction to the Plaintiff's evidence about showering the boys or the evidence about talking to the boys about touching each other’s penis, the s 128 certificate, her Honour calling and questioning Ms Gordon, the interruption of Ms Robert's cross examination of Ms Watson, her Honour's questioning of Mr Perrin or her Honour’s dismissive treatment of Ms Smith (and Ms Roberts) throughout the hearing. Apart from the Plaintiff's evidence about showering the boys, each of these matters was included in the list of complaints which her Honour set out in her Honour’s reasons. The Magistrate's reasons for not accepting the submission that these matters might cause a fair-minded lay observer reasonably to apprehend that the Magistrate might not bring an impartial mind to the issues in the case are unknown.

369. The Plaintiff submits that the Magistrate's reasons leave the parties with an insufficient understanding of how her Honour came to the conclusion which she did. I accept that submission.

370. The Attorney-General submits that it is open to the Court to find that the Magistrate's reasons were adequate. By including a list of the particulars relied upon by the Plaintiff and the Secretary, the Magistrate's reasons demonstrate that her Honour understood the parties' submissions. It was therefore "implicit" in her Honour's rejection of the application that her Honour did not accept that a reasonable bystander might apprehend that her Honour has closed her mind on the question whether the Plaintiff has engaged in sexual abuse of the boys. The difficulty with this submission is that it does not address the fact that the Magistrate consistently expressed her Honour's conclusion in terms of what a reasonable bystander "would" apprehend.

371. Further, the specific matters addressed in this judgment are complaints of substance. They each warranted an explanation as to why the Magistrate considers that it does not give rise to a reasonable apprehension of bias.

372. The second ground for relief relied upon by the parties is also made out.

Other aspects of the reasons

373. Generally in support of the contention that the reasons given by the Magistrate were not adequate, the parties made a number of other submissions which may in truth relate to different errors of law which appear on the face of the record.

374. MK submitted that the conclusion expressed in her Honour’s reasons show that the Magistrate did not apply the double might test. As set out above, that submission ought to be accepted. The submission is relevant to the adequacy of the reasons, but it may be that is more appropriately viewed as a separate error of law on the face of the record, namely the Magistrate's failure to ask the right question.

375. The Plaintiff submitted that the Magistrate's statement that her Honour had not made any finding about whether the Plaintiff has sexually abused MX demonstrates that the Magistrate took in account an irrelevant consideration when deciding not to disqualify herself. The Magistrate was required to determine whether there was a reasonable apprehension of bias, to which question the absence of actual bias or pre-judgment is irrelevant.

376. Further support for that submission comes from the fact that a large part of the Magistrate's reasons is taken up with the recitation of evidence which relates to the underlying factual issue, namely whether the Plaintiff has sexually abused MX. The Magistrate has not explained why this material has been included in the reasons. It may be that the Magistrate considers that a fair-minded lay observer would have been aware of this material and therefore would have viewed her Honour's conduct of the case as no more than a rigorous investigation of the facts. The difficulty with that explanation is that the Magistrate does not articulate it and it is not self-evidently correct. An alternative explanation is that the Magistrate has focussed on this material because the Magistrate has decided the disqualification application by reference to the underlying issue. The Magistrate has focussed on the issue which the administration of justice requires to be determined impartially and to appear to be so determined, rather than the reasonable apprehension of the process by which the issue is to be determined.

377. In view of the conclusion that Ground 2 is to be upheld, it is not necessary to consider these discrete matters further. To the extent that they inform the adequacy of the reasons, they have been addressed above.

NON-PUBLICATION ORDER

378. At the commencement of the hearing before the Court on 1 September 2024 an application was made for orders under the Court Suppression and Non-publication Orders Act 2010 (NSW). Upon being satisfied that evidence would be adduced in the proceedings which would provide a basis for the orders, I made the orders with the consent of all the parties. These are my reasons for making the orders.

379. A primary objective of the administration of justice is to safeguard the public interest in open justice as required by s 6 of the Suppression Act. The ground upon which the orders were made is that they were necessary to prevent prejudice to the proper administration of justice in circumstances where the proceedings in this Court concern the welfare of two small boys, namely MX and BN. The administration of justice requires that the parties have access to this Court to bring proceedings in which they wish to assert that there is a reasonable apprehension of bias on the part of the Magistrate. Given the nature of the factual matters being considered in the Children's Court Proceedings and thus necessarily arising in this Court, the suppression orders are necessary to give practical support to that access, as the concept of necessity is understood for the purposes of s 8 of the Suppression Act.

380. For those reasons I made the following orders on 11 September 2024:

1. For the purposes of these proceedings, the plaintiff shall be referred to as "BW", the second defendant shall be referred to as "MK", and the third defendant shall be referred to as "BA", and the two children the subject of the proceedings in the Children's Court of New South Wales, Case number 2020/273771 shall be referred to as "MX" and "BN" respectively.

2. On the ground that it is necessary in the public interest for the order to be made and that the public interest significantly outweighs the public interest in open justice (s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW)), the Court orders that there be no publication of the name and of any information or matter that would tend to reveal the identity of the Plaintiff, Second Defendant, Third Defendant, or the two children who are the subject of the proceedings in the Children's Court of New South Wales, case number 2020/273771.

3. Order 2 applies throughout the Commonwealth for a period until both children who are the subject of the proceedings in the Children's Court of New South Wales, case number 2020/273771 attain the age of 25 years.

ORDERS

381. On the substantive application, I make the following orders:

1. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), quash the judgment of her Honour Magistrate Richardson of the Children’s Court declining to recuse herself from any further hearing of proceedings 2020/00273771.

2. An order in the nature of prohibition prohibiting her Honour Magistrate Richardson from further hearing proceedings 2020/00273771.

3. No order as to costs.

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Endnotes

Tcpt, 22 February 2024, pp 67(12), 79(18)-(20).

Amendments

30 October 2024 - Initial of Junior counsel for the Fifth Defendant corrected.

Typographical corrections at [87], [151], [160] and [161].

19 November 2024 - Formatting correction at [136].

Typographical corrections at [66], [164], [181] and [195].

Decision last updated: 19 November 2024