Caldera & Gowan
[2024] FedCFamC2F 1311
•19 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Caldera & Gowan [2024] FedCFamC2F 1311
File number(s): SYC 5323 of 2022 Judgment of: JUDGE STREET Date of judgment: 19 September 2024 Catchwords: FAMILY LAW – Parenting – partial agreement on consent orders- remaining issue time with father – recusal application during father’s evidence -supported by ICL – orders for recusal made Legislation: Family Law Act 1975 (Cth) Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Division: Division 2 Family Law Number of paragraphs: 11 Date of hearing: 18 September 2024 and 19 September 2024 Place: Sydney Counsel for the Applicant: Mr B Levet Solicitor for the Applicant: H K Husseini & Co Counsel for the Respondent: Mr D Petrushnko Solicitor for the Respondent: Gad & Co Lawyers Counsel for the Independent Children's Lawyer: Ms K Shea Solicitor for the Independent Children's Lawyer: Steiner Legal Pty Ltd ORDERS
SYC 5323 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CALDERA
Applicant
AND: MR GOWAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
19 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Court recuses itself from the hearing of the remaining parenting issue in these proceedings.
2.Leave is granted to the applicant to contact the Duty Judge in Family Law to seek to have the remaining parenting issue heard as soon as convenient for the representatives of the parties and ICL before a different Judge
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
This is an application for the Court to recuse itself in circumstances where it is day two of a parenting hearing in relation to which the parties were able to reach substantial agreement in respect of a major issue in dispute being parental responsibility and consent orders were made yesterday in relation to a large part of the parenting dispute.
There remained one matter for the Court to determine being the time to be spent by the child, who is now 13 years old, with the respondent father (“father”). There were competing contentions being advanced, effectively on behalf of the applicant mother (“mother”) for no overnight time until there was acquired an independent psychiatric report, and on behalf of the father for overnight time to commence. It is apparent that the child has recently spent overnight time with the father on the last two school holidays.
In the course of the father’s cross-examination, Counsel for the applicant made an application for the Court to recuse itself and has identified three grounds. The first ground relates to objections raised by Counsel for the applicant upon which the Court declined to entertain the same and did not hear the nature of the objection and permitted the question being asked by the Court. The second ground concerned the alleged interruption of Counsel in the course of cross-examination attacking the father’s credit, and the third ground was advanced as entering the arena by putting leading questions to the witness. Mr Levet relied on those grounds as identifying what might cause the Court to decide the matter other than on the legal and factual merits and relied upon those grounds as articulation of the logical connection between the matter and the feared deviation from deciding the case on its merits.
The test to be applied in relation to disqualification is not in dispute, and it is a double might test in respect of apprehended bias given the established principles in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [344]-[345]. The Court has also taken into account the object in s 60B of the Family Law Act 1975 (Cth) (“the Act”) and the principles in s 69ZN of the Act and the paramount consideration in s 60CA of the Act being the best interests of the child.
The Court is required to actively direct control and manage the proceedings. Not every objection requires the Court to hear argument on the same. Further the Court is entitled to understand the evidence being adduced and is not restrained from “interrupting” counsel in cross-examination. Further talking over the Court is not acceptable conduct by counsel and can have disciplinary consequences and raising such a concern does not mean that the Court has other than an impartial and open mind to the determination of the matter on its merits. Control of the proceedings is by the Court not counsel. The asking of close ended questions by the Court to understand the evidence is not of itself a ground that meets the double might test. Nor does asking close ended questions on two occasions concerning whether the potentially delusional beliefs of the father continued, amount to taking over the cross-examination and entering the arena.
The Court did try to clarify the real issues in the course of the father’s evidence and did ask questions to advance the expeditious determination of the proceedings. In this regard the Court also repeatedly stopped rambling, prolix, non-responsive answers by the father in the course of his cross examination by Mr Levet. The father’s mental health is an issue in the proceedings particularly as to over-night time, security of the father’s residence and parenting capacity, having had a serious accident almost 15 years ago.
Mr Levet, counsel for the applicant, properly identified that he made the application in circumstances of restraint, where he was instructed to do so, and acknowledged if successful, would have obvious ramifications for the current hearing, the costs that have been incurred, and ultimately, impact on the parties and the child, the subject of the dispute.
Mr Levet's application is one supported by the ICL. Mr Petrushnko on behalf of the respondent did not seek to put submissions. The submissions advanced by the ICL focused on entering the arena and the closed-end nature of two questions in the father’s evidence asked by the Court on an issue in relation to an extraordinary allegation concerning the mother’s family, suggestive of serious delusion, that was advanced by the father to the writer of the family report dated 13 November 2023.
While the Court is troubled by the proposition that any of the conduct meets the double might test, the greater concern in resolving this application is that these are child-focused proceedings. It is an extremely important role played by the ICL. The Court has a duty to hear cases whether or not it wishes to do so. The Court has a duty not to recuse itself, except when satisfied that there is a proper basis to do so. It is of critical importance, as submitted by the ICL, that the parties have a fair process for the determination of the issues that arise and that includes the importance of appearance and reality of an impartial determination of the matter on its legal and factual merits.
Given the support by the ICL, the Court is of the view that the conduct identified by Mr Levet in his third ground of allegedly entering the arena in the course of the father’s evidence is conduct that may meet the double might test. In those circumstances, where supported by the ICL, the Court is of the view, given the child focused nature of the proceedings that it is in the best interests of the parties and most importantly in the best interest of the child for the Court to recuse itself.
It is for these reasons the Court makes the above orders.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 23 September 2024
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