Cassell & Kolar (No 6) - [2023] FedCFamC1F 764

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cassell & Kolar (No 6) [2023] FedCFamC1F 764

File number(s): MLC 4879 of 2019

Judgment of: STRUM J

Date of judgment: 5 September 2023

Catchwords: FAMILY LAW – COURTS AND JUDGES – Where the final hearing has been adjourned part-heard for one year – Where the applicant seeks a recusal of the trial judge on the basis of apprehended bias – Where the applicant’s allegations with regard to apprehended bias are not properly particularised – Test for apprehended bias applied – No apprehended bias found – Where the applicant seeks that the part-heard trial be aborted – In circumstances where no apprehended bias found and no recusal, request to abort trial refused – Where the applicant seeks a “review” of all prior judgments published in the matter – Where the applicant has not appealed or sought leave to appeal, nor leave to extend time to appeal any prior orders – Where the trial judge does not have power to order a “review” of own judgments – Where the represented party, by her litigation guardian, seeks that order for appointment of a litigation guardian be discharged – Where there is no satisfactory further evidence to support discharge – Application dismissed.

Legislation:
Australian Human Rights Commission Act 1986 (Cth)

Disability Discrimination Act 1992 (Cth) ss 5, 6, 30, 42

Evidence Act 1995 (Cth) s 75

Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 4(1), 68LA, s 69ZN, 69ZQ, 79, 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 69

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.33, 3.12, 3.13, 3.14, 5.08, 10.26, 10.27

Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021, updated 28 November 2022 Core Principles 1, 2, 3, 4, paras 5.24, 5.52–5.61

International Covenant on Civil and Political Rights art 14(1)

Cases cited:
Acheson & Begbie [2023] FedCFamC1F 704

AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236; [2011] VSCA 425

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Cassell & Kolar (No 2) [2022] FedCFamC1F 984

Cassell & Kolar (No 4) [2023] FedCFamC1F 299

Cassell & Kolar (No 5) [2023] FedCFamC1F 478

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Darley (No 2) [2023] FedCFamC1A 112

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fierro & Fierro (No 4) (2022) FLC 94-120; [2022] FedCFamC1A 208

Johnson vJohnson (1997) FLC 92-764; [1997] FamCA 32

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Keighley & Keighley [2023] FedCFamC1A 146

Lim & Zong (2021) FLC 94-048; [2021] FamCAFC 165

Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11

Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Rilak & Tsocas [2017] FamCA 757

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Scott & Munayallan [2022] FedCFamC1A 44

Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020

Strahan & Strahan (Disqualification) (2009) FLC 93-414; [2009] FamCAFC 204

Tsocas & Rilak (No 4) [2022] FedCFamC1F 296

Division: Division 1 First Instance

Number of paragraphs: 124

Date of last submission/s: 18 August 2023

Date of hearing: 28 July 2023

Place: Melbourne

The Applicant: Appeared via litigation guardian in person

Counsel for the Respondent: Ms Dellidis

Solicitor for the Respondent: Hargreaves Family Lawyers

Counsel for the Independent Children’s Lawyer: Mr James

Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid

The Intervenor: Excused from appearing
ORDERS

MLC 4879 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CASSELL

Applicant

AND:
MR KOLAR

Respondent

Q LEGAL

Intervenor

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

STRUM J

DATE OF ORDER:

5 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.Paragraphs 2–7 (inclusive) and 9 of the applicant’s further amended Application in a Proceeding filed on 17 July 2023 be dismissed.

AND THE COURT NOTES THAT:
A.The matter remains listed for final hearing, to recommence at 10.00 am on 18 September 2023.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Cassell & Kolar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:

These reasons for judgment should be read in conjunction with the following reasons for judgment delivered by me in these proceedings: Cassell & Kolar (No 2) [2022] FedCFamC1F 984; Cassell & Kolar (No 4) [2023] FedCFamC1F 299; and Cassell & Kolar (No 5) [2023] FedCFamC1F 478.
These proceedings, insofar as they seek final relief, concern both the future parenting arrangements for the child X born 2018, who is currently 5 years of age, pursuant to Pt VII of the Family Law Act 1975 (Cth) (“Act”), as well as the division of the parties’ property pursuant to s 79 of Act. The applicant mother initiated the proceedings on 7 May 2019. As has previously been observed, the proceedings have so far occupied some four-fifths of the child’s life.
The trial of this matter was set down to commence on 29 August 2022 for up to two weeks. The applicant mother was represented by counsel who was instructed by solicitors appointed under the Commonwealth Family Violence and Cross-examination of Parties Scheme (“Scheme”) of Victoria Legal Aid (“VLA”) by reason of an order made pursuant to s 102NA of the Act on 18 January 2022.
After three days, the matter was adjourned part-heard. The reasons for the adjournment of the trial can be gleaned from my earlier judgment in this matter: Cassell & Kolar (No 2). In summary, on the third day of the trial, during the course of cross-examination of the mother, the mother’s counsel sought and was granted leave to withdraw. The mother’s solicitor then similarly sought and was granted leave to withdraw and the matter was adjourned part-heard.
VLA has since advised that it will not appoint further representation for the mother under the Scheme, as she has apparently subsequently refused representation by at least two other firms offered by it to her under the Scheme. This is disputed by the mother, who claims she has made a complaint regarding VLA’s handling of the matter. The complaint is not in evidence but is not germane to the interlocutory issues presently before me. Since the trial was adjourned part‑heard on 31 August 2022, the matter has come before me on a number of occasions and the mother (herself and subsequently by her litigation guardian) has not been legally represented.
On 9 March 2023, the matter came before me in relation to an objection by the mother to a subpoena. She sought an adjournment, in support of which she relied upon a medical certificate from a general medical practitioner, which referred to and relied upon a letter (headed ‘Psychological Medical Certificate’) from her treating psychologist, Mr D. Over objection by the mother, I required her to produce that letter. On the basis of that evidence, which emanated from her own camp, I found that the circumstances contemplated by r 3.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) were made out and I ordered that a litigation guardian be appointed for her. My reasons for so ordering can be gleaned from my reasons for judgment delivered that day: Cassell & Kolar (No 4). There has been no appeal from that order.
The matter next came before a Senior Judicial Registrar on 11 April 2023 and, on that occasion, she made the following notation:
C.During the adjourned period the Applicant will give consideration to the following options:
(a)Filing an affidavit from a proposed litigations guardian in compliance with Rules 3.14 and 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules; or
(b)Making an application to discharge the order seeking the appointment of the litigation guardian and retaining new legal representation.
The mother did not make an application to discharge the order for the appointment of the litigation guardian, nor did she appeal or seek leave to appeal that order.
On 17 May 2023, upon application made by the mother’s friend, Ms S, she was appointed as litigation guardian by consent. She had filed an affidavit of consent on 9 May 2023, confirming that she was a fit and proper person to assume that role.
Further, on that day, the issue of the mother’s litigation guardian having been resolved, I ordered that the part-heard trial finally resume on 18 September 2023 (with an estimated duration of 5 days). After the matter had been adjourned part-heard on 31 August 2022, it had been refixed to resume on 17 April 2023. However, due to the order made on 9 March 2023 that a litigation guardian be appointed for the mother, it was subsequently necessary to vacate the resumption date.
APPLICATION
The mother’s litigation guardian filed an Application in a Proceeding on 8 June 2023, which she amended on 23 June 2023 and further amended on 17 July 2023 (“Application”). She seeks that:
(a)I “self disqualify” myself on the ground of bias;
(b)Order 4 of the orders made on 9 March 2023 (for the appointment of a litigation guardian) be discharged;
(c)The part-heard trial be “aborted” [sic] and allocated to another judicial docket;
(d)Orders 1 and 2 of the orders made on 17 May 2023 (for the part-heard trial to resume on 18 September 2023 and Ms S to be appointed as the mother’s litigation guardian) be discharged;
(e)The final hearing listed in September this year be vacated and “standard pre-trial procedures, subject to 5.52–5.61 of the Court’s Central Practice Direction – Family Law Case Management, be observed” (those paragraphs providing for a compliance and readiness hearing and a trial management hearing);
(f)Leave be granted to “request review [sic] of each prior judgment” I have delivered in this matter;
(g)Transcripts of the hearings in this matter on 29–31 August 2022, 9 March 2023, 11 April 2023 and 17 May 2023 be “reviewed and corrected” by the transcription service provider;
(h)Transcripts of the hearings in this matter on 9 March, 11 April and 17 May 2023 be “admitted into evidence” at the hearing of this Application.
By their oral and written submissions, the respondent father and the Independent Children’s Lawyer (“ICL”) oppose the mother’s Application. However, they have not filed a Response to the mother’s Application nor any affidavits in response to those by and on behalf of the mother filed on 8 June 2023 (x 2) and 17 July 2023. No objection in this regard was taken on behalf of the mother by her litigation guardian.
Insofar as the litigation guardian seeks to rely upon these three affidavits (two by her and one by the mother), r 5.08(1) relevantly provides that only one affidavit by each party and by each witness may be relied upon as evidence in chief at the hearing of an application for interlocutory orders. See also para 5.24 of the Family Law Case Management Central Practice Direction of the Court, to the same effect. Nevertheless, without opposition by either the father or the ICL, I granted the mother’s litigation guardian leave to rely upon all three affidavits.
The mother’s Application was listed for hearing and proceeded, in part, on 28 July 2023. On that day, the mother’s litigation guardian appeared in person, together with the mother. The requirements of judges in relation to self-represented litigants, set out in Re F: Litigants in Person Guidelines (2001) FLC 93-072, were observed.
Given the recusal application, I dealt first with the application for the review (and “correction”) of the transcripts. Nowhere was it suggested, with any particularity, that the transcripts were not accurate. At its highest, the mother’s assertion was that “[e]rrors have been identified within the transcripts referenced in this affidavit” (see the mother’s affidavit filed 8 June 2023, at paragraph 4) and the litigation guardian’s assertion was that “[e]rrors have been identified within the transcripts of March 9 2023, April 11 2023 and May 17 2023” (see the litigation guardian’s affidavit filed 8 June 2023 at paragraph 6). What those identified errors were said to be was not particularised or even suggested. However, ultimately, and notwithstanding the references to the transcript of those hearings in purported support of the recusal application, the litigation guardian only pressed for the review of the transcript of the part-heard trial on 29, 30 and 31 August 2022. In those more confined circumstances, I ordered that such transcript:
… be reviewed by the transcription service, provided that such review is at no cost to the Court, the Respondent Father or the Independent Children’s Lawyer.
That order therefore dealt with paragraph 8 of the mother’s Application, subject to the concession I have noted.
Insofar as paragraph 9 of the mother’s Application sought that the transcripts of the hearings on 9 March 2023 and 17 May 2023 “be admitted into evidence, to be relied upon at the hearing of this Application”, such an order was otiose, and the mother and her litigation guardian and counsel for the father and for the ICL referred, and I have had regard, to those transcripts for the purposes of the recusal application. However, insofar as the transcript of the hearing on 11 April 2023, before the Senior Judicial Registrar, is concerned, it has no relevance, or even apparent relevance, to the mother’s Application and I have not had regard to it.
The litigation guardian then proceeded to address the recusal application on 28 July 2023. She made oral submissions over the course of approximately two hours that morning. She told me that she has difficulties in the nature of auditory processing and eventually reached the point where she said that she was unable to continue. The matter was stood down for the mother and her to speak to the duty lawyer but that was unable occur. When the matter resumed that afternoon, counsel for the father sensibly suggested that the litigation guardian address the balance of the mother’s application by written submissions, to which the father and the ICL would respond, similarly by written submissions, and that I then determine the balance of the Application in chambers. The litigation guardian and the ICL agreed and, accordingly, I made orders to this effect.
These are my reasons.
RECUSAL
This is not the first time the mother has sought that I recuse myself. On 18 November 2022, being the first return of the proceedings before me after the trial was adjourned part-heard, the mother, who was self-represented, first made such an application, which I dismissed. See Cassell & Kolar (No 2).
Insofar as the mother or her litigation guardian purport, in their affidavits and in the written submissions, to quote directly from or refer specifically to the transcript, I shall have regard thereto. However, insofar as many of the assertions are of a general nature, without specific reference, it is not for the Court to trawl through the transcripts of the hearings on those three occasions to search for support for the otherwise bald, general assertions.
Although the Application and the affidavits of the mother and her litigation guardian (neither of whom are legally trained), as drawn, suggest an allegation of actual (as well as apprehended) bias, the written submissions (at paragraph 3) submit that my “conduct satisfies the test for apprehended bias”. This is also confirmed at paragraphs 14, 18 and 29. That is a sensible position or concession on their part in circumstances where, in Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [135], Wigney J very recently said that “an allegation that a judge had predetermined a matter is a particularly serious allegation” and that:
An allegation of pre-judgment, which amounts to an allegation of actual bias, is “about as serious an allegation as any that could be made against a judicial officer” because it “involves a finding of judicial impropriety and probably of judicial misconduct”: Spirits International BV v Federal Treasury (FKP) Sojuzplodoimport [2013] FCAFC 106 at [13].
In Fierro & Fierro (No 4) (2022) FLC 94-120 at [26], the Full Court cited with approval the test for actual bias as enunciated by the Full Court in Newett & Newett (No 2) (2021) FLC 94-051 at [57]–[59]:
57.The test for actual bias requires the appellant to establish that the judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] and [176]).
58.The relevant principles were helpfully summarised in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[70]:
68.A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun v Minister) at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.
…
70.As Gleeson CJ and Gummow J observed in that case at [71]:
“The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.”
59.It is difficult to distil what facts and circumstances on which the mother relies on to establish actual bias. Her own perception of the primary judge’s conduct is not sufficient and neither is the fact that the proceedings have not gone the way the mother believes they should have.
Even taken at their highest, the complaints by and on behalf of the mother do not suggest that my mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”. Further, if the mother and her litigation wished to assert alleged actual bias, they were required to make that allegation distinctly and to prove it. They have done neither. As in Newett & Newett (No 2), the mother’s own perception (and that of her litigation guardian), of my conduct is not sufficient, nor is the fact that the proceeding may not have gone the way they believe it should.
I am fortified in my approach by paragraph 3 of the written submissions filed on behalf of the father, in which it is submitted that the mother’s submissions “conflate the concepts of bias and apprehended bias, she makes no mention of any legal principles other than in relation to apprehended bias and it is assumed this is because it is the basis upon which the Application for recusal is made”.
Accordingly, I shall consider and determine the application as one for recusal on the ground of apprehended bias, rather than actual bias. The tests, of course, are different.

Insofar as it is submitted, both in the affidavits and the written submissions filed on behalf of the mother, that I have made errors of law, any such errors do not go to the issue of recusal but to an appeal (and, in the circumstances, an application for leave to do so). However, this avenue has not been pursued.
The written submissions variously assert, without particularity, that (inter alia) the mother’s “basic human rights” have been destroyed; that I have “persecuted” the mother; that I have allowed the “exploitation” of the mother by the other parties (namely, the father and the ICL); and that I have “demonstrated no respect for [Ms Cassell’s] inherent dignity, or her right to equal treatment of the person before the Court”, contrary to art 14(1) of the International Covenant on Civil and Political Rights. Unsupported by evidence, including transcript, these are mere assertions which are argumentative and/or conclusionary in nature and to which I shall have no regard. However, that is not to say (or to be interpreted as saying) that I consider they have any accuracy or merit. They do not.
The written submissions on behalf of the mother, by her litigation guardian, are largely a regurgitation of the complaints contained in their affidavits. Those submission are of little assistance, both to the mother and to the Court, in the consideration and determination of her recusal application.
Counsel for the Independent Children’s Lawyer, in his written submissions at paragraph 3, submits:
Whilst acknowledging that neither the applicant nor the litigation guardian are legal practitioners, responding to the litigation guardian’s written submissions has proved challenging as her submissions are somewhat shambolic, disorganised and absent of any categorisation by way of topics, grounds or chronology.
I agree. As the Full Court recently said in Keighley & Keighley [2023] FedCFamC1A 146 at [69], in relation to submissions drawn by an unrepresented party: “[e]ndeavouring to disentangle it is akin to endeavouring to wade in treacle”.
Similarly, counsel for the father, in her written submissions at paragraph 8 submits that in circumstances where three affidavits have been filed by or on behalf of the mother (in relation to her recusal application), in addition to her written submissions, which in total comprise approximately one hundred pages (albeit including exhibits), the court “cannot be expected to engage with every one of the contentions, given the matter falls for determination on the apprehension of the fictional reasonable observer of the proceedings” (emphasis added), which test I address below.
Nevertheless, I have carefully read and considered those submissions, together with the three affidavits relied upon the mother’s litigation guardian. Even allowing for the fact they were not drawn by legally trained persons, taken at their highest, they do not support the recusal application, for the reasons which follow. They make largely vague, general complaints.
In her affidavit filed on 8 June 2023, the litigation guardian asserts at paragraph 4:
The discrimination and conduct of His Honour Justice Strum throughout these proceedings has caused harm to the Applicant Mother, and exacerbation of the symptoms of her disability. Circumstances relating to family violence, and compromises to the safety of the Applicant Mother and her child have resulted from determinations made by His Honour. It is imperative that if those determinations were not made by an independent decision-maker, that they be remedied at the highest priority.
It is not asserted that the mother’s litigation guardian attended at any hearing prior to 28 July 2023. Therefore, I infer that the assertions in this paragraph are hearsay, being those of the mother herself, which have been conveyed to the litigation guardian. It is entirely unclear what is the discrimination and conduct that is complained of; what harm is said to have been caused to the mother, and how; what is said to have been the exacerbation of the symptoms of her disability, and how; and, lastly what “circumstances relating to family violence” and what compromises to the safety of the mother are said to have resulted from determinations made by me. I refer further below to the question of hearsay evidence at this interlocutory stage.
At paragraph 10 of her affidavit filed 8 June 2023, it is asserted by the litigation guardian that I have demonstrated bias through my “demeanour, determinations, failures to follow due process, and remarks” which, it is said, “has gravely affected procedural fairness in these proceedings”. Again, no particulars whatsoever are provided there.
Insofar as it is complained that I have said that my priority in this matter is to have it concluded as swiftly as possible, that is consistent with my obligations under s 67(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the Rules, the Central Practice Direction, as well as the dicta of the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. Importantly, it is also consistent with my obligation under Pt VII of the Act to regard the best interests of the child as the paramount consideration, as well as with the principles for conducting child-related proceedings in Div 12A thereof. This is especially so in circumstances where, as I have observed above, these proceedings have spanned approximately four-fifths of the child’s life, the proceedings were instituted in 2019 and the trial thereof commenced and was then adjourned part-heard more than a year ago.
Other complaints in the litigation guardian’s affidavit filed 8 June 2023, in relation to me not entertaining the mother’s complaints regarding VLA and the legal representation provided or offered by it to her pursuant to the s 102NA order I earlier made, have no relevance to these proceedings. They are matters between VLA and her and do not (and cannot) involve the Court. Section 102NA required me to make the order I did on 18 January 2022. That section makes no reference to, and imposes no requirement for, the provision of legal representation by the various Legal Aid authorities in the Commonwealth. See also the recent decision of the Full Court in Darley (No 2) [2023] FedCFamC1A 112.
Insofar as the mother (by herself and her litigation guardian) makes repeated complaint, albeit in support of her recusal application, regarding the order for the appointment of a litigation guardian for her, no appeal (or application for leave to appeal) has been filed, nor has any application for leave to appeal out of time.
The litigation guardian asserts at paragraph 14 of her affidavit filed on 8 June 2023 that I “further exacerbated and exploited [Ms Cassell’s] disability by unlawfully (subject to Section 30 of the Disability Discrimination Act 1992) requesting privileged documentation be produced to the Court and other parties in the matter for examination”; that provision of same “made her fearful and exposed her to further family violence”; and that this somehow demonstrates my “failure to adequately prioritise [Ms Cassell’s] safety, a further example of [my] bias against her”. As I explain below (if explanation even be required), it is far from sufficient merely to assert an apprehension of bias. Further, there are no particulars of how Ms Cassell’s disability (asserted to arise from her diagnosed post-traumatic stress disorder) is said to have been exacerbated and exploited; why the direction that she produce documentation (which was clearly not privileged) was unlawful; why provision thereof made her fearful or exposed her to family violence; and why it is asserted I had a duty to prioritise her safety over, for example, the best interests of the child. My reasons for why I required Ms Cassell to produce the documents about which she complains are to be found in Cassell & Kolar (No 4).
The mother complains (through her litigation guardian, at paragraph 27 of her affidavit filed 8 June 2023) that my (unparticularised) actions “were not in compliance with the Australian Human Rights Commission Act 1986 (Cth)” and constituted “victimisation of [Ms Cassell], an offence, as defined by Section 42(2) of the Disability Discrimination Act 1992 (Cth)”, thereby demonstrating bias by me against her. Again, it is not at all clear how or why this is said to be so. It is trite, but in this case necessary, to observe that merely asserting something to be so does not make it so. Rather, as is clear from my reasons in Cassell & Kolar (No 4), it was not open to the mother on 9 March 2023 to rely upon a medical certificate from a general medical practitioner, which referred to supporting correspondence from her treating psychologist, but to refuse to produce that underlying correspondence. In any event, given the mother’s sensitivity towards the production of that underlying letter from her psychologist, I ordered on that occasion that:
1.The psychological medical certificate dated 1 March 2023 by [Dr D], Director and Principal Psychologist of [T Psychology], produced to the Court this day and marked Exhibit “A”, be released to the Solicitors and Counsel for the father and to the Independent Children’s Lawyer and Counsel instructed by the Independent Children’s Lawyer, but that it not be provided by them to any other person including, subject to any further order of the court, the father.
2.Exhibit “A” be placed in a sealed envelope on the court file and is to remain sealed subject to further order of the Court.
However, in circumstances where the mother’s psychological health was directly relevant to the medical certificate of the general medical practitioner, upon which she sought to rely, and alerted the Court to the possibility of whether she met the requirements of r 3.12 of the Rules, as well as having apparent relevance to the parents’ competing parenting applications, she could not resist the production thereof and I so ordered.
Insofar as it is asserted, albeit opaquely, that I have somehow breached the Australian Human Rights Commission Act 1986 (Cth) and/or the Disability Discrimination Act 1992 (Cth), it is not for me to sit as judge and jury in respect of complaints against myself. If the mother has a complaint to make, she may endeavour to make it elsewhere, noting however the immunity of judges of superior courts of record, as very recently confirmed by Wigney J in Stradford (a pseudonym) v Judge Vasta. However, suffice it to say (again) that merely alleging such breaches does not, in and of itself, result in any requirement that I disqualify myself.
Similar, but no better, complaints are also contained in the affidavit of the mother, also filed on 8 June 2023. Insofar as they have already been addressed by reference to the affidavit of the litigation guardian, no detailed repetition thereof or comment thereon will be of any utility.
The mother asserts at paragraph 5 that, throughout the hearing before me on 9 March 2023, I “demonstrated significant bias against [her] both through [my] demeanour and discharge of [my] judicial powers, and discriminated against [her] on the basis of [her] disability”. Again, what demeanour and discrimination is said to demonstrate (apprehended) bias against her is entirely unparticularised or supported including, where applicable, by reference to transcript. Rather, properly distilled, the complaints of the mother, both directly and through her litigation guardian, are those of a dissatisfied litigant who has failed to appeal (and to seek leave to do so) in respect of several orders made by me.
Insofar as the mother asserts, at paragraph 10, that, at that hearing, I did not ask her “what accommodations [sic] could be made, to support [her] medical needs associated with [her] disability or to mitigate any further injury on the day or in the future”, it is entirely unclear what are said to be those medical needs and to what injury she refers, beyond the fact of her diagnosis of post-traumatic stress disorder by Dr G, the jointly appointed single expert. In particular, at none of the hearings complained of was I referred to any expert evidence regarding any particular medical needs associated therewith or any risk of further (and, if so, what) injury to her. In any event, this is not a proper matter, in and of itself, for a recusal application. Again, I note that no appeal or application for leave to appeal has been brought in respect of my orders made on 9 March 2023.
The mother asserts at paragraph 13 that I shouted at her: “[Ms Cassell], when I speak, you stop. It’s a basic courtesy to the court. Do you understand that?”, leaving her feeling “intimidated, threatened and very uneasy”, I have no recollection of shouting at her and would doubt that I did so, although subjective perceptions may differ from one person to another. Even if I only raised my voice somewhat, in order to convey to the mother to stop interrupting me when I spoke, which she may have subjectively perceived as more than that, at no stage did she tell me that she felt, or did she otherwise appear to be, intimidated or threatened. As to what she means by feeling “very uneasy”, such conclusion is unsupported by any deposed facts. Further, insofar as the mother asserts there that I “was aware of the fact that raised voices can elicit or exacerbate [her] PTSD symptoms” (emphasis added), at no stage has she made me aware thereof, let alone referred me to any evidence in support of this assertion.
She further asserts that paragraph 15 that, on that day, I “shout[ed], interrupt[ed], and use[d] very abrupt and aggressive tones while interacting with” her. That is not my recollection and she gives no particulars whatsoever thereof. She also asserts that I was somehow aware, from the first three days of trial in August 2022, that when she is “yelled at it leaves her uneasy and scared”. It is not clear how or why she asserts I was so aware. She refers to page 142 of the transcript of the hearing on 30 August 2022, at which there was the following exchange between counsel for the father and her in the course of cross-examination:
[COUNSEL FOR THE FATHER]: Yes?---
[THE MOTHER]: So for me, because [Mr Kolar] had requested me to get him to have this discussion about moving forward, I wasn’t satisfied that [Mr U] telling me to fuck off was directly coming from [Mr Kolar], or [Mr Kolar’s] wants or needs.
[COUNSEL FOR THE FATHER]: You weren’t satisfied and you weren’t trembling in your boots either, were you?---
[THE MOTHER]: I was trembling in my boots.
[COUNSEL FOR THE FATHER]: You were?---
[THE MOTHER]: Yes. It was scary.
[COUNSEL FOR THE FATHER]: So when did you start trembling? The first time he told you to fuck off, the second time he told you to fuck off or what?---
[THE MOTHER]: Ms Dellidis, any time anyone tells you to aggressively fuck off - - -
[COUNSEL FOR THE FATHER]: Yes?---
[THE MOTHER]: - - - it’s very confronting - - -
[COUNSEL FOR THE FATHER]: Yes?---
[THE MOTHER]: - - - especially if you do have PTSD and you are a little bit more sensitive. I - even the tone of voice that you use with me with this is quite nerve-racking for me as well.
[COUNSEL FOR THE FATHER]: So you are trembling then.
HIS HONOUR: Sorry.
[COUNSEL FOR THE FATHER]: Is that a yes?
HIS HONOUR: Sorry. I just want, again - because the transcript doesn’t record these things. I understood you to say that you feel the tone that Ms Dellidis is using with you to be somewhat intimidating?---
[THE MOTHER]: Correct, your Honour
(Transcript 30 August 2022, p.142 lines 19–46)
Viewed in context, that exchange does not support the submission that I was (or should have been) aware that when she is yelled at (as she asserts I did), it leaves her uneasy and scared. In any event, even if I raised my voice at her, to stop her talking over me, she at no stage complained thereof nor reminded me of her evidence some seven months earlier.
In respect of the hearing on 17 May 2023, the mother baldly and boldly asserts, at paragraphs 26 and 27 of her affidavit filed 8 June 2023, that my behaviour and demeanour towards her was aggressive; that I was visually angry and demonstrated this by stiffening my body and rolling my eyes; that my voice was elevated and had an angry tone; that (from the Bench) I leaned my body toward her; and that I repeatedly interrupted her and prevented her from speaking. Further, she asserts at paragraph 27 that my conduct throughout the proceedings (noting that this matter has come before me on numerous occasions since January 2022) has included–
…blatant aggression which was only directed at [her]; gaslighting the court and transcripts; intimidating and bullying conduct towards [her]; rudeness towards [her] when [she] spoke (turned chair away, rolled eyes, huffed and puffed, crossed arms) which all demonstrate His Honour did not conduct himself in a manner expected and required of judicial officers.
I do not at all understand what is meant by her assertion regarding me “gaslighting the court and transcripts”.
Otherwise, insofar as these other general assertions are concerned, that is certainly not my recollection, save that, at times during the various hearings before me, I may well have moved in my chair or crossed my arms. Therefore, I give no weight to these unparticularised complaints.
At paragraphs 28–37, under the heading “Demonstrations of Bias as Recorded in Transcripts May 17 2023”, the mother purports to quote from the transcript of that day, albeit that she asserts it contains unspecified inaccuracies. Nevertheless, none of those matters advance her recusal application. These matters relevantly include me apparently saying:
(a)“[P]ast experience has shown me that when I set time aside for this case things seem to happen and time is wasted”.
That is manifestly correct, in circumstances where the trial has been adjourned part‑heard since 31 August 2022 and has had 8 hearings since then in an endeavour to arrange for the resumption thereof.
(b)“You tell me now. Will you be in Melbourne on 18 September?”.
This was in response to the mother’s indication that the resumption of the trial on that date, later this year, would not be suitable for her.
(c)“[W]hen I speak you stop”.
Little need be said in this regard, other than that when a judge speaks, lawyers and laypersons (including parties) must not do so.
(d)“Well, maybe I should just strike out the proceedings”.
This was said in response to the mother’s suggestion that the trial should not resume on the date I proposed (and subsequently ordered). It will be recalled that r 1.04(1)–(2) provides that the “overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible” and that parties to family law proceedings “must conduct the proceeding … in a way that is consistent with the overarching purpose”. Rule 1.33(2) specifies what the court may do if a party to proceedings does not comply with (inter alia) the Rules or a procedural order and r 10.27(1) specifies what the Court may do if an applicant is in default, including by failing to prosecute the proceeding with due diligence (r 10.26(1)(e)). Further, s 69(4)(b) of the Federal Circuit and Family Court Act 2021 (Cth) provides for the power to “strike out … any part of a party’s claim” in certain circumstances.
(e)“NO NO NO”.
This was said in response to the mother saying that she felt that my reference to striking out the proceedings was a threat. She asserts that it appeared as though I “only wanted the matter to conclude”. However, I have made that abundantly clear to all the parties in this case. It is unacceptable that these proceedings which, as I have indicated, have been afoot for almost the entirety of the child’s life, have been part-heard since late August 2022, through no fault of the father, the ICL or the Court. As French CJ said in Aon Risk Services Australia Limited v Australian National University at [5]:
… there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource … are to be taken into account. So too is the need to maintain public confidence in the judicial system.
Further, at [24], the Chief Justice said that the common law adversarial system:
… is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation.
See also at [26]–[27] per French CJ; and at [98] per Gummow, Hayne, Crennan, Kieffel and Bell JJ.
(f)“I control the court, not you” and “You are not helping me”.
Neither of these statement, in my view, are objectively objectionable and, all the more so, in the context in which and to whom they were made.

I pause here to observe that, at paragraphs 35 and 38 of the mother’s affidavit, unlike elsewhere therein, I am disrespectfully referred to by her merely as “Strum”. However, I shall say no more in this regard.
There are 30 pages of exhibits to the mother’s affidavit, none of which were shown to be or are relevant to her recusal application.
The litigation guardian filed another affidavit on 17 July 2023. It is no further illuminating or supportive of the mother’s recusal application. It is largely repetitive of matters alleged in the prior affidavit of the litigation guardian and that of the mother filed on 8 June 2023 and/or consists, yet again, largely of bald assertions. She repeatedly asserts that “the transcripts and Reasons for Judgments establish” a number of matters going to bias which, again although seemingly expressed to be actual, is nevertheless said to be apprehended. See, for example, paragraphs 4–13. The reference is to “transcripts”, in the plural; nevertheless, this appears to be a reference to the transcript of the hearing and to my reasons for judgment delivered on 17 May 2023. However, other than merely assert that the transcript and the reasons for judgment establish certain matters, on the basis of which my recusal is sought, nowhere does she particularise how or why this is said to be so. As I have observed above, it is not for the Court to trawl through transcript in order to search for material with which to make out the mother’s case for her. Nothing said by the Full Court in Re F: Litigants in Person Guidelines suggests otherwise. Further, many of the matters complained of do not go to the issue of bias but, rather, are complaints in relation to the orders made at the conclusion of the hearing on 17 May 2023, in respect of which there has been no appeal or application for leave to do so and the mother is out of time.
I have referred above to the limited utility of the written submissions filed on the half of the mother. However, there are certain matters that require specific comment:
(a)At paragraph 16, reference is made to the Disability Discrimination Act 1992 (Cth) and, in particular, s 5 and s 6 thereof, and it is submitted that “failing to make reasonable accommodations and adjustments for a person’s disability, which … results in that person being treated less favourably, constitutes disability discrimination”. However, other than an application for an adjournment on 9 March 2023 which, although not refused, nevertheless occurred by default (as is conceded on behalf of the mother at paragraph 16), I was not asked to make any “accommodations” or “adjustments” for the mother’s disability said to arise by reason of post-traumatic stress disorder. In any event, I was not referred to any evidence of any disability said to arise therefrom, the extent of and limitations resultant from such disability and any accommodations or adjustments required thereby.
(b)At paragraph 36, it is submitted that “[w]hen there is a presence of judicial bias … the credibility and ability of parties to seek assistance from external agencies (particularly when unrepresented) is damaged, often irreparably; impacting their reputation, the safety of themselves and their child, and the further ability to bring relevant information before the Court for consideration”. There is no explanation of how this is said to be so, either as a general proposition or in this case. It is mere unsupported assertion.
(c)At paragraph 37, it is submitted that my alleged bias “has fostered a culture of prejudicial treatment of [Ms Cassell] that has caused great harm to her, both in and outside of the court room, resulting in the failure of all safeguards to protect her rights, and those of [the child]”. Again, particularly in relation to the assertion of harm to the mother “outside of the court room”, there is simply no explanation of what this is said to be and how this is said to have arisen.
In relation to apprehended bias, in Acheson & Begbie [2023] FedCFamC1F 704 at [7], Christie J recently said:
The doctrine of apprehended bias deals with the circumstances in which a judge may be perceived to decide a case other than on its merits … There are four potentially overlapping categories of apprehended bias:
(1)      Disqualification by interest;
(2)      Disqualification by conduct;
(3)      Disqualification by association; and
(4)      Disqualification by extraneous information.
In the present case, it is inferentially clear that the mother relies upon disqualification by conduct.
In Cassell & Kolar (No 2), I referred to Rilak & Tsocas [2017] FamCA 757 (per Rees J) and also to a later iteration thereof, namely, Tsocas & Rilak (No 4) [2022] FedCFamC1F 296 (per Altobelli J). In the second in that line of cases, Altobelli J referred to the decision of Rees J in the earlier case, where her Honour referred to several well-known decisions of the High Court of Australia and one of the Full Court of the Family Court.
In Re JRL; Ex parte CJL (1986) 161 CLR 342 (at [5]), Mason J said:
… It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. …
In the present case, the assertions by and on behalf of the mother seem to be not so much that it is reasonably apprehended that I will not decide the case impartially or without prejudice but, rather, that I have decided (particularly on 9 March 2023 and 17 May 2023) interlocutory aspects of the case adversely against her and that I will therefore do so again, in particular, when the part-heard trial resumes
Mason J continued (at [5]):
… There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established” (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
In Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) at [11]), the plurality of the High Court (Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ) set out the principles to be applied in such an application as follows:
… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
(Footnotes omitted)
Who is the “fair minded lay observer”? The plurality of the High Court in Johnson said at [13]:
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.” Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(Footnotes omitted)
It has been held that the observer “is taken to understand the dynamics of modern judicial practice” (AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236 at [23]), such as the nature and consequences of the docket system employed by many courts (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [174] – [176]) or the increased willingness of judges to make comments and sometimes actively deal with the parties and issues and not maintain a sphinx-like silence until judgment is delivered, as the High Court referred to in Johnson.
Further, in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232], the New South Wales Court of Appeal said “that the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally”.
As in my earlier recusal decision in Cassell & Kolar (No 2), for the reasons that follow, it has again not been demonstrated by the mother how it could be said that a reasonably informed, fair-minded lay observer might apprehend, based on what they had heard and observed over the hearings before me to date, that I might not bring an impartial and unprejudiced mind to the resolution of the questions that I am required to decide. The mere fact that I have previously ruled against the mother and that she is dissatisfied with those rulings could not, in my view, give rise to such an apprehension in the mind of such an observer, as jurisprudentially understood.
The plurality in Johnson continued (at [12]):
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.” The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
(Footnotes omitted)
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (at [7]–[8]), the High Court explained the concept of apprehension of bias in the following terms:
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. …
(Emphasis added)
Despite the complaints by and on behalf of the mother, there has been no clear identification in this case of what it is said might lead me to decide the case other than on its legal and factual merits.
The High Court in Ebner continued (at [8]):
… The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Emphasis added)
As with the first step, there has been no satisfactory articulation of the logical connection between the matters complained of by and on behalf of the mother and any feared deviation from the course of deciding the case on its merits. Even if the mother had been able to establish the first step, she has been unable to identify what she submits might lead me to decide the case other than on its legal and factual merits. Thus, the second step, namely, that of articulating the logical connection between that matter and any deviation she fears, has similarly not been discharged.
The High Court in Ebner continued (at [19]):
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
The Full Court in Strahan & Strahan (Disqualification) (2009) FLC 93-414 similarly said at [6] (as Mason J said Re JRL; Ex parte CJL at [5], above):
In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. …
In this regard, in Scott & Munayallan [2022] FedCFamC1A 44 at [25], the Full Court recently summarised the principles which mitigate against disqualification as follows:
The High Court of Australia has made plain it would be both an abdication of judicial function and an encouragement of procedural abuse for a judge to impulsively or too readily disqualify him or herself whenever requested by one party to do so (Livesey v NSW Bar Association (1983) 151 CLR 288 at 294; Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300 at 302). A judge should not disqualify him or herself for reasonable apprehension of bias unless substantial grounds exist (Bienstein v Bienstein (2003) 195 ALR 225 at 233; Vakauta v Kelly (1989) 167 CLR 568 at 584-585; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352).
Apposite to the present case, in Acheson & Begbie at [45], Christie said:
… I have canvassed every intervention in the father’s evidence (save innocuous requests to repeat matters I may not have been able to hear and the like). They could not on any scale be regarded as excessive. The question then is: were they inappropriate? Placing myself as far as is possible in the position of fair-minded lay observer, remembering that it is the court’s view of the public’s view which is relevant, I am still satisfied that there was nothing in the interventions by which a fair-minded lay observer would have concluded that I would not bring an impartial mind to the task: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 88 [21], quoting Webb v The Queen (1994) 181 CLR 41 at 52.
In relation to judicial body language, her Honour said at [48]–[50]:
[48]I cannot know whether my facial expression was as described, so, for the purpose of these reasons I have treated counsel’s observation as accurate; that is, when counsel says she saw my face register displeasure at her question then her observation was accurate.
[49]It is inevitable that judges will from time to time experience frustration. It is equally true that such frustrations are almost always better masked than revealed but judges are human and will not always function as they would ideally chose [sic]. The question of where the limit is must be one of fact and degree. The case law is helpful: see, eg, Miedis & Miedis (2020) 62 Fam LR 78 at [27].
[50]The interchange arose in a context where counsel for the applicant and I were at odds about the acceptable parameters for re-examination. This leads to the next issue raised by the applicant in support of an application for disqualification. With this context in mind, a fair-minded lay observer would not apprehend bias to be coming from the bench on the basis of the body language asserted.
Those observations are similarly apposite to this case.
I have been greatly assisted by the written submissions drawn by counsel on behalf of each of the father and the ICL. However, given the role of independent children’s lawyers, as specified in s 68LA of the Act, especially subsection (5)(a) thereof, which provides that they “must … act impartially in dealings with the parties to the proceedings”, I turned first, and to give greater weight to, the written submissions on behalf of the ICL. See also Lim & Zong (2021) FLC 94-048 at [21], where Tree J (on appeal) said, inter alia:
•It is not inconsistent with the independent and professional discharge of an Independent Children’s Lawyer’s obligations for her or him to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by the court;
•Whilst in a unique position, the Independent Children’s Lawyer owes the same professional obligations to the Court as does any licenced legal practitioner;
•On occasion, the Independent Children’s Lawyer will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings;
•Inevitably the role of the Independent Children’s Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult; …
(Footnotes omitted)

Counsel for the ICL, at [29] of his written submissions, correctly submits:
The written submissions of the litigation guardian make various generalised complaints of the applicant’s perception of the judge’s “various acts and behaviors, …bullying” alleged to have led to “errors of law and failure of due process, significantly and disproportionately disadvantaging only [Ms Cassell].” The written submissions also include references to the applicant’s perceptions of the judge alleged being “aggressive tone and shouting” and his interactions with the applicant on 9 March 2023 and 17 May 2023 as allegedly displaying “sustained, intemperate behaviour towards [Ms Cassell]. This included disproportionate, abrupt and aggressive rises in vocal intensity, disrespectful and dismissive body language, and open hostility”. These assertions are clearly subjective interpretations and personal perceptions of the applicant as the litigation guardian was not present during these court events relating to those allegations.
Counsel for the ICL further submits (at [30]):
It should be noted that the Counsel for Independent Children’s Lawyer at no point in the proceedings has shared the applicant’s perception of the judge’s alleged behaviour as outlined above and it is submitted that at all stages the judge has afforded the applicant appropriate courtesy and procedural fairness by His Honour. What has been observed by this writer is that the applicant, when addressing the Court whilst giving evidence and making oral submissions, has had to be frequently reminded by the judge of basic Court etiquette of not interrupting or talking over the bench. It has been further observed that the mother’s evidence and oral submissions to Court have often been overly generalised, argumentative, tangential to the subject matter, verbose, repetitive, and demonstrating an ignorance of Court procedure and legal process. It appears to the Independent Children’s Lawyer that many of the exchanges between the judge and the applicant in these proceedings have taken place in context of His Honour directing the applicant to relevant issues in the proceedings, testing and challenging misconceived or irrelevant evidence or submissions by the applicant and explaining court procedure. …
As counsel for the ICL (at [30] of his written submissions) observes, the litigation guardian correctly points out in her written submissions (albeit at paragraph 5, rather than paragraph 6), that one of the obligations the Court has, in relation to unrepresented litigants, as stated by the Full Court in Johnson vJohnson (1997) FLC 92-764 at [121.8], especially in parenting cases, is–
To attempt to clarify the substance of the submissions of the unrepresented parties, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150)
That is what I have repeatedly endeavoured to do in the course of the hearings before me to date, albeit often unsuccessfully so in the case of the mother.
Counsel for the ICL further submits (at [31]–[33]) that the mother, by her litigation guardian, “appears to be arguing that by reason of her subjective perceptions of [my] actions and comments … [I] may decide the case adversely against her and that amounts to bias. … If that were the test, then most cases in this court would never be concluded. The written submissions of litigation guardian do not point to any matters which she says [I] should have disregarded as being irrelevant, immaterial or prejudicial”, nor has she “demonstrated the necessary nexus or logical causal connection of how it could be said that affair-minded lay observer might reasonably apprehend, based on what they had observed of the proceedings to date, that [I] might not bring an impartial and unprejudiced mind to the resolution of the questions the Court must decide”. As will be apparent from the preceding paragraphs, I agree with that submission.
Turning to the written submissions filed on the half of the father, “in an attempt to distil the convoluted complaints contained in the material filed by the Applicant” (at paragraph 9), his counsel submits that -
… there appear to be two categories of conduct identified as reasons for His Honour to recuse himself:
a.The first category appears to be said to arise from decisions made by His Honour in the course of the hearings on 9 March 2023 (“March Hearing”) and 17 May 2023 (“May Hearing”);
b.The second category appears to be said to arise from His Honour’s “bullying” of, and “discrimination” against, the mother, in the course of the March and May hearings.
As counsel for the father succinctly (and, in my view, correctly) identifies, the first category of apprehended bias appears to be said to arise from the following decisions made by me in the course of the March and May Hearings:
a.Failing at the March Hearing, to “make findings” regarding the mother’s correspondence with Victoria Legal Aid’s Cross Examination Scheme Team (“VLA”);
b.Making an order at the March Hearing, for the letter from the mother’s treating psychologist [Dr D], dated 1 March 2023 to be released to the legal representatives of the father, the Independent Children’s Lawyer (“ICL”), and counsel for the ICL;
c.Making an order at the March Hearing, for the appointment of a litigation guardian for the mother; and
d.Making an order at the May Hearing, for the part-heard trial to resume on 18 September 2023.
Counsel for the father submits at paragraph 12 that no apprehended bias has been demonstrated in the making of these decisions and that nothing in my reasons for judgment from the March Hearing or the May Hearing permits a finding or inference that I decided as I did, other than after considering the objective admissible evidence and hearing the submissions. She also points to the fact, to which I have adverted above, that none of these decisions have been the subject of appeal or application for leave to do so.
In relation to my alleged failure (at the March Hearing) to make findings regarding the mother’s correspondence with VLA:
(a)It is submitted on behalf of the mother (at paragraph 5 of her submissions) that I “consistently dismissed or refused to consider [her] evidence without even assessing its relevance”, being the mother’s email to the Court on 7 February 2023 regarding her communications with VLA in relation to her representation pursuant to s 102NA of the Act (annexure “C” to the mother’s affidavit filed 8 June 2023). I have addressed this issue above.
(b)The mother’s litigation guardian contends at paragraph 12 of her affidavit filed 8 June 2023 that I “refused to examine or make findings on [Ms Cassell’s] relevant and probative evidence, that irrefutably demonstrated that VLA’s Cross Examination team had intentionally and blatantly lied to the court [which] resulted in [Ms Cassell] being denied her entitlement to legal representation”; that this “resulted in [Ms Cassell] being denied her entitlement to legal representation”, pursuant to s 102NA of the Act”; that, as a judicial officer, it was “a breach of procedural fairness” which “demonstrates His Honour’s bias against [Ms Cassell]”. However, no particulars are given. Further, the law does not recognise any right of a litigant to legal representation; rather, it is a privilege (albeit one that a significant number of litigants in this Court do not enjoy).
(c)Insofar as the litigation guardian, in her affidavit filed 17 July 2023 at paragraph 37, blithely contends that the transcript of the March Hearing “establishes” a number of matters, including that my “choice to accept VLA’s decision was based not on the evidence before [me] but [my] prejudiced opinion regarding [Ms Cassell’s] credibility, and [my] commitment to the resumption of trial on 17 April 2023” (as was then the date), as counsel for the father points out, the transcript establishes no such thing. Rather, what is obvious from the transcript of the March Hearing is that I considered the mother’s assertion that VLA had “lied” about, or “misrepresented”, the circumstances in which she did not have a lawyer and that I endeavoured to explain to her, notwithstanding her interruptions and wanting to argue the matter, that this was a matter between the mother and VLA, about which I could do nothing, and that I was not going to debate with her about matters which she might or might not have been told by third parties who were not before the Court. See Transcript 9 March 2023, p.12 line 38 to p.13 line 44 and p.26 lines 29–33. See also my reasons for judgment delivered on 9 March 2023 (Cassell & Kolar (No 4)) at [2]–[3] and Notation C to the orders made that day, which noted that:
Notwithstanding an order previously made pursuant to Section 102NA on 18 January 2022, Victoria Legal Aid advised the court on 7 February 2023 that it will not appoint any further representation on behalf of the Applicant Mother and will be closing its file. The Applicant Mother disputes the reasons given by Victoria Legal Aid and no finding has been made by the Court in this regard.
In relation to the order I made at the March Hearing, that the letter from the mother’s treating psychologist be released to the legal representatives for the father and to the ICL and counsel for the ICL:
(a)The mother’s litigation guardian contends (in her affidavit filed 17 July 2023) that the letter was “unlawfully requested” by me (at paragraph [23]) and she refers to its “misuse” (at paragraph [21]). I have addressed this issue above.
(b)Counsel for the father describes these contentions (correctly, in my view) as “remarkable assertions” by reference to the transcript at Transcript 9 March 2023 p.10 lines 20–32, p.11 lines 16–24 and p.11 line 38 to p.12 line 6. These passages, in fact, record my efforts to explain to the mother the apparent relevance of that document. See also my reasons for judgment delivered on 9 March 2023 (Cassell & Kolar (No 4)) at [7], [14]–[15].
(c)The complaint by and on behalf of the mother relates to the order I made in this regard, in relation to which, as I have noted above, there has been no appeal or application for leave to do so. The fact that the mother is dissatisfied with the order does not give rise to apprehended bias, properly understood.
In relation to the order I made at the March Hearing that a litigation guardian be appointed for the mother:
(a)The litigation guardian for the mother (who was subsequently appointed, on her own application) submits (at paragraph 33 of her written submissions) that the order was made in error “as there exists no evidence that [Ms Cassell] is, or has ever been, a person that requires one”.
(b)She deposes (at paragraph 22 of her affidavit filed 17 July 2023) that my decision to so order “was not based upon the evidence before [me], but on [my] own biased and prejudicial interpretation of it”.
(c)Further, she submits (at paragraph 23 of her written submissions) that “the existence of such prejudice gives rise to the apprehension of bias”.
Counsel for the father, in her written submissions at paragraph 24, describes these assertions as “astonishing”. That is not an unfair description. She points out, as I have above, that my reasons for judgment in Cassell & Kolar (No 4), which were delivered ex tempore that day, including at paragraphs [6], [9]–[10], [12]–[13] and [17]–[18], articulate the objective evidence before the Court. Further, Notation B to the orders I made that day states that the order for the appointment of a litigation guardian for the mother “has been made on the evidence of and adduced by the Applicant Mother, including Exhibits A, B, C, D and E, received into evidence this day”.
Although this complaint is made on behalf of the mother by her litigation guardian, Ms S, it must also be recalled that, albeit following on from the orders I made on 9 March 2023 (as well as those made by the Senior Judicial Registrar on 11 April 2023), on 9 May 2023, Ms S filed an Application in a Proceeding seeking a single order, namely, that she “be appointed as Litigation Guardian for the Applicant Mother in these proceedings ([Ms Cassell])”. In her affidavit in support of that application, she relevantly deposed that she met the requirements of r 3.14 of the Rules to be appointed as the mother’s litigation guardian and that, if the Court remained of the opinion that mother required a litigation guardian (notwithstanding that she did not believe one to be necessary), she consented to being so appointed.
In relation to the order I made at the May Hearing, for the part-heard trial to resume on 18 September 2023, the mother’s litigation guardian contends (at paragraph 5 of her written submissions) that this order was made “at the expense of procedural fairness or due process” and (at paragraph 21 of her affidavit filed 8 June 2023) that this “further supports the existence of His Honour’s bias, as he remains focused on dispensing with this matter”. However, it will be recalled that on 31 August 2022, as I recapitulated in my reasons for judgment in Cassell & Kolar (No 2) at [1]–[3] and [5], I adjourned the further hearing of the part-heard trial to enable the mother to secure alternative legal representation after the withdrawal that day of her barrister and then her solicitor. On 18 November 2022, I ordered that the part-heard trial be relisted to resume, commencing on 17 April 2023. On 11 April 2023, the Senior Judicial Registrar ordered that the resumption of the part-heard trial on the adjourned date be vacated and that the proceedings be listed for mention before me on 17 May 2023. On that latter date, I ordered that the part-heard trial again be relisted to resume, commencing on 18 September 2023.
Counsel for the father submits (at paragraph 26 of her written submissions) that, insofar as the trial was adjourned part-heard on 31 August 2022, so that the mother might secure other legal representation, and that the resumption date thereof (on 17 April 2023) was vacated on 11 April 2023, notwithstanding the passage of 12 months from the first adjournment, she “remains legally unrepresented and her litigation guardian maintained the position that the part-her trial be aborted. There is no probative evidence before the Court of any likelihood that the mother or her litigation guardian will ever secure legal representation”. That appears to be correct.
The principles which apply in parenting matters, in particular, are set out in Div 12A of Pt VII of the Act. Section 69ZN specifies the principles for conducting child-related proceedings, including that the Court is to actively direct, control and manage the conduct of proceedings (subsection (4)) and that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible (subsection (7)). Section 69ZQ specifies the general duties of the Court in giving effect to those principles. See also Core Principles 1, 2, 3 and 4 of the Court’s Central Practice Direction. In my reasons for judgment delivered on 17 May 2023 in Cassell & Kolar (No 5) at [3], I referred to the trial having been part-heard since the end of August 2022 and the obligations of the Court and the parties in relation to the resumption thereof. Further, at [13] I said:
These proceedings have been pending for far too long. It is the welfare of a child which must be, and is, the paramount consideration, not that of one or either of her parents. In my view, it is inimical to the child’s welfare to be embroiled in litigation for the length of time that these proceedings have been pending. Indeed, this child knows little of life other than under the spectre of litigation between her parents, albeit that she is only 5 years of age. In circumstances where I adjourned the trial in August 2023, on the mother’s application, in order to enable her to secure new legal representation, in my view she has had more than ample opportunity to do that.
Again, there has been no appeal (or any application for leave to appeal) from the order I made on 17 May 2023 for the part-heard trial to resume, at long last, on 18 September 2023.
These complaints by and on behalf of the mother do not properly ground, let alone make out, an application for recusal, neither on the basis of the transcript or the reasons for judgment that day, nor when viewed in the broader factual matrix of these proceedings.
The second category of conduct succinctly identified by counsel for the father in her written submissions as a reason postulated by and on behalf of the mother for me to recuse myself is conduct said (at paragraph 3 of the written submissions on behalf of the mother) to arise from my alleged “various acts and behaviours” during the March and May hearings including “bullying” and “discrimination”. Examples identified by counsel for the father at paragraph 30 of her written submissions (presumably in an attempt to bring some order to the mother’s unruly written submissions) are:
a.“took the opportunity to victimise me” [footnote reference to affidavit of [Ms Cassell] filed 8 June 2023 at paragraph 43 and affidavit of [Ms S] filed 8 June 2023 at paragraph 27]
b.“persecuted” the mother [footnote reference to submissions of [Ms S] at paragraph 4]
c.“allowed the exploitation” of the mother by the father and the ICL [footnote reference to submissions of [Ms S] at paragraph 5]
d.“made me feel intimidated, threatened and very uneasy” [footnote reference to affidavit of [Ms Cassell] filed 8 June 2023 at paragraph 13]
e.“unsettled me… was intentionally dominating me to silence me” [footnote reference to affidavit of [Ms Cassell] filed 8 June 2023 at paragraph 26]
f.“was gaslighting the transcripts” [footnote reference to affidavit of [Ms Cassell] filed 8 June 2023 at paragraph 38]
g.“court time was explosive and quite frightening for me” [footnote reference to affidavit of [Ms Cassell] filed 8 June 2023 at paragraph 39]
h.“appeared to mock me” [footnote reference to affidavit of [Ms Cassell] filed 8 June 2023 at paragraph 40]
i.“was coercive and dehumanising and disrespectful” [footnote reference to affidavit of [Ms Cassell] filed 8 June 2023 at paragraph 32]
j.“began to gaslight the court and myself” [footnote reference to affidavit of [Ms Cassell] filed 8 June 2023 at paragraph 33]
k.“has fostered a culture of prejudicial treatment” of the mother. [footnote reference to submissions of [Ms S] at paragraph 37]
Counsel for the father correctly submits (at paragraph 31 of her written submissions) that, as a general principle, the “subjective, histrionic perspective of a litigant forms no part of the jurisprudence in relation to the test for apprehended bias”. That is manifestly so. For the mother to sustain her complaint, she must demonstrate that a fair-minded observer, who is to be taken to be a rational person, not unduly sensitive or suspicious, and who is aware of the oath or affirmation taken by judges and their judicial obligations more generally, might reasonably apprehend from the identified conduct that I might not bring an impartial mind to the resolution of the dispute. At paragraph 32 of her written submissions, counsel poses the rhetorical question: “What then is the identified conduct?”, which she then proceeds to accurately answer in the following paragraph:
The sum total of the conduct as identified in the Applicant’s submissions, the affidavit of the mother and in the affidavits of [Ms S] amount to the following:
a.At the March Hearing His Honour said:
i.“[Ms Cassell], when I speak you stop. It’s basic courtesy to the court. Do you understand that?” [footnote reference to affidavit of [Ms Cassell] filed 18 June 2023 at paragraph 13]
ii.“I have leant over backwards to ensure that you are given every possible opportunity to run your case properly and fairly” [footnote reference to affidavit of [Ms Cassell] filed 18 June 2023 at paragraph 17]
b. At the May Hearing His Honour said:
i.“…can I, before we proceed any further, tell all of you this matter has been languishing in my list for far too long; it has to be brought to a head one way or the other. If it’s brought - if it runs in a less than perfect manner, well, so be it, but I want to list this matter part-heard to resume on Monday, 18 September.” [footnote reference to affidavit of [Ms S] filed 18 June 2023 at paragraph 28]
ii.“Why no. You tell me now. Will you be in Melbourne on 18 September?” [footnote reference to affidavit of [Ms Cassell] filed 18 June 2023 at paragraph 29]
iii.“…past experience has shown me that when I set time aside for this case things seem to happen and time is wasted” [footnote reference to affidavit of [Ms Cassell] filed 18 June 2023 at paragraph 28]
iv.“Well, maybe I should just strikeout the proceedings.” [footnote reference to affidavit of [Ms Cassell] filed 18 June 2023 at paragraph 32]
v.“[Ms Cassell], on that day I had a report by your own treating psychologist” [footnote reference to affidavit of [Ms Cassell] filed 18 June 2023 at paragraph 37]
vi.“…you are not helping me” [footnote reference to affidavit of [Ms Cassell] filed 18 June 2023 at paragraph 35]
vii.“[Ms Cassell], I control the court, not you. I will not be told by you to stop interrupting you. If there are matters that you raise that I feel require clarification or response as you make them, I will do so..” [footnote reference to affidavit of [Ms Cassell] filed 18 June 2023 at paragraph 33]
viii.“[Ms Cassell], I understand you’re a litigant-in-person. That doesn’t in any way detract from your obligation to show courtesy to the court. And if you can’t show courtesy to the court, I will stand the matter down very briefly whilst you compose yourself” [footnote reference to submissions of [Ms S] at paragraph 11]
ix.“[Ms Cassell], do you – adjourn the court until [Ms Cassell] can compose herself, please”. [footnote reference to submissions of [Ms S] at paragraph 11]

Whilst counsel for the father refers to an affidavit refers to an affidavit of the mother filed 18 June 2023, this is clearly a typographical error; the only affidavit filed by her in June 2023 was filed on 8 June 2023.
Counsel for the father submits (at paragraph 34 of her written submissions) that, considered objectively by the reasonable observer (as jurisprudentially understood), none of my comments are remarkable and that they reflect nothing more than me adhering to the Core Principles of the Court’s Central Practice Direction and in the manner described by the High Court in Johnson (at [13], referred to above). I agree.
It must also be noted that the affidavits and written submissions by and on behalf of the mother overlook or disregard the context of the exchanges complained of, which provide a broader and more objective perspective thereof. But one apposite example is the exchange between the mother and me at the May Hearing, which appears at Transcript 17 May 2023 p.6 line 27 to p.9 line 43. The only issues properly before the Court that day were the Application in a Proceeding by Ms S, the mother’s friend, to be appointed as her litigation guardian, which was not opposed by either the father or the ICL and in relation to which, somewhat unusually, the mother rather than Ms S appeared, and the re-listing of the part-heard trial for resumption. Nevertheless, the mother sought to address me in relation to a number of entirely irrelevant matters, including her complaint regarding the order I had made at the March Hearing that a litigation guardian be appointed for her; she failed to answer my direct questions; and she repeatedly interrupted me, whilst I sought to focus, contain and expedite the proceedings.
Counsel for the father submits (at paragraph 36 of her written submissions) that an assessment of the totality of the evidence will find no logical connection between the words complained of and the feared departure from the course of deciding the dispute on its merits. Indeed, I would add that whilst the mother herself and by her litigation guardian raises a litany of complaints, nowhere in their affidavits or submissions do they actually enunciate a fear of departure by me from the course of deciding the case on its merits hereafter.
Insofar as the mother herself and by her litigation guardian “attempt to infect [my] words with their own commentary about body language or voice pitch”, as counsel for the father submits at paragraph 37 of her written submissions, counsel further submits that “this must be rejected in the context of their melodramatic hyperbolic perspective”. Indeed, the litigation guardian was not even in attendance at Court on the occasions complained of nor on any occasion until the hearing on 28 July 2023. Although hearsay evidence from the litigation guardian is admissible in an interlocutory proceeding, such as that the subject of these reasons for judgment, pursuant to s 75 of the Evidence Act 1995 (Cth), I give it little weight in circumstances where I have the direct evidence of the mother in her affidavit filed on 8 June 2023. In any event, as I have indicated above, I do not share the mother’s recollection or perspective and am fortified by the submission by counsel for the father (with which counsel for the ICL does not disagree) that neither of them “have ever noted anything remarkable about [my] conduct”.
I have carefully considered the evidence of the mother and her litigation guardian, as well as their written submissions and those filed on behalf of the father and the ICL. I acknowledge that laypersons, such as the mother and her litigation guardian are, without the benefit of legal representation, may subjectively perceive or be unduly sensitive to matters which would not cause a hypothetical fair-minded lay observer, who is a rational person, not unduly sensitive or suspicious, and who is aware of the oath or affirmation taken by judges and their judicial obligations more generally, to reasonably apprehend that a judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide. Indeed, as Mason J said in Re JRL; Ex parte CJL, there may be situations in which previous decisions of a judicial officer may generate an expectation that he or she is likely to decide issues in a particular case adversely to one of the parties. Those observations are, in my view, apposite whether or not the same or another case is involved. However, as his Honour continued, this does not mean that the judge will approach the issues in that case otherwise than with an impartial and unprejudiced mind (in the sense in which that expression is used in the authorities) or that his or her previous decisions (I would interpolate - whether in that same proceeding or others) provide an acceptable basis for inferring that there is a reasonable apprehension that he or she will approach the issues in this way. Rather, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment (as that concept is understood in law) and this must be firmly established.
I also acknowledge that it is difficult for a judge to sit as judge and jury, in judgment of him or herself, as judges are required to do in the case of applications for them to recuse themselves on the grounds of apprehended bias.
Nevertheless, I am not satisfied that any of the complaints ventilated by or on behalf of the mother satisfy the test in Ebner. The mother (herself and by her litigation guardian) has not identified to my satisfaction, with any precision, what it is said might lead me to decide the case other than on its legal and factual merits and why this might be so. Whilst she has identified her complaints, she has not identified how she submits those complaints might lead me to decide the case other than on its legal and factual merits. Her recusal application must therefore fail at the first step. However, even if I had found, on a strained or generous basis for the mother, that any of the requisite matters had been identified properly, she has utterly failed to articulate any logical connection between the matters complained of and any supposedly feared deviation from the course of deciding the case on its merits.
I shall, therefore, dismiss the recusal application in paragraph 2 of the mother’s Application.
RELATED MATTERS
In circumstances where the recusal application will be dismissed, the mother’s application that:
(a)order 1 of the orders made on 17 May 2023, for the part-heard trial to resume on 18 September 2023, be discharged, as sought (in part) in paragraph 4 of her Application;
(b)the part-heard trial be aborted and the proceedings be re-allocated to another judicial docket, as sought as paragraph 5 of her Application; and
(c)the date for the resumption of the part-heard trial on 18 September 2023 be vacated, as sought as paragraph 6 of her Application–
will similarly be dismissed.
In any event, those aspects of the mother’s Application were not addressed by her litigation guardian, either in her oral submissions on 28 July 2023 or in her subsequent written submissions.
Further, at the hearing before me on 18 November 2022, the mother similarly sought that the trial which proceeded on 29, 30 and 31 August 2022 be aborted. I declined to do so and my reasons for do declining are to be found in the ex tempore reasons for judgment I delivered that day. See Cassell & Kolar (No 2) at [2], [4], [8]–[12] and [26].
In the circumstances, paragraphs 4, 5 and 6 of the mother’s Application will be dismissed.
“REVIEW” OF MY PRIOR JUDGMENTS
At paragraph 7 of the mother’s Application, she seeks an order that leave be granted to her “to request review of each prior judgment” of mine.
Insofar as my prior judgments are concerned, whilst the term “judgment” is not defined in s 4(1) of the Act, a “decree” is defined there as meaning a “decree, judgment or order”, including:
an order dismissing an application; or
a refusal to make a decree or order.
As I endeavoured to explain to the mother’s litigation guardian at the hearing before me on 28 July 2023, I do not have the power to make such an order and, indeed, such an order cannot be made.
This aspect of the mother’s Application was not further addressed by her litigation guardian in her written submissions.
As I have observed above, the mother or, subsequently, her litigation guardian could have filed a Notice of Appeal (and an application for leave to appeal) in respect of any of my prior judgments. That did not occur. She is now out of time to do so; however, she could still apply to the Full Court for an extension of time. It is not for me to comment upon the merits of any application for an extension of time and for leave to appeal, as well as of any consequent appeal.
Paragraph 7 of the mother’s Application will be dismissed.
DISCHARGE OF LITIGATION GUARDIAN
At paragraph 3 of the mother’s Application, she seeks that paragraph 4 of the orders made on 9 March 2023, namely, that a litigation guardian be appointed for her, be discharged.
At paragraph 4 of the mother’s Application, she seeks that paragraph 2 of the orders made on 17 May 2023, namely, that Ms S be appointed as her litigation guardian, be discharged.
These aspects of the mother’s Application were not addressed by her litigation guardian in her oral submissions on 28 July 2023 or, explicitly, in her written submissions. However, at paragraph 33 thereof, it is submitted that order I made on 9 March 2023 for the appointment of a litigation guardian “was made in error, as there exists no evidence that [Ms Cassell] is, or has ever been, a person that requires one”. It is also submitted at paragraph 27 that I did not “release” my reasons for judgment until 21 April 2023, thereby preventing her from appealing within time. As I have noted above, that is not correct. My reasons for judgment were delivered ex tempore on 9 March 2023 and were therefore heard by and known to the mother, who appeared that day via Teams video-conference. Whilst my settled reasons (Cassell & Kolar (No 3)) were not provided until 21 April 2023 (albeit that they were not even requested by the mother but, rather, by the father’s lawyers), that did not preclude the mother filing a Notice of Appeal (and an application for leave to appeal) and amending same in due course. Further, she could have applied to the Full Court for an extension of time within which to do so. However, she did not pursue any of these avenues that were open to her.
At the subsequent hearing, on 17 May 2023, on the return of Ms S’s Application in a Proceeding to be appointed as the mother’s litigation guardian, Ms S did not appear; rather, unusually in the circumstances, the mother did, as I have noted above. Neither counsel for the father, nor for the ICL, took the point that r 3.13(1) of the Rules provides that a person who needs a litigation guardian “may start, continue, respond to or seek to be included as a party to a proceeding only by the person’s litigation guardian” (emphasis added). Whilst that was the only application before the Court that day, and was not opposed by either the father or the ICL, the mother, on whose behalf it was brought, in her oral submissions that day, sought to reargue the order that a litigation guardian be appointed for her and/or effectively to argue that such order should be discharged. She referred to a subsequent letter from her treating psychologist, Dr D, dated 5 May 2023, exhibited to Ms S’s affidavit filed on 9 May 2023 and marked “A”.
In my ex tempore reasons for judgment delivered that day, namely, Cassell & Kolar (No 5), I referred (at [10]) to Ms S’s deposition in her affidavit that “if the Court remains of the opinion that the mother requires a litigation guardian, she consents to being appointed to that role”. At [11], I said:
[Ms S] opines (albeit without qualification) that the mother consistently presents, and always had presented, to her as being sound of mind and capable of adequately conducting or giving adequate instructions for the conduct of her own proceedings. Her usual occupation, as disclosed in her affidavit, is that of a homemaker. Insofar as that may be her opinion, and even if genuinely so, I give it little weight, especially given the speculative nature thereof. She further deposes to having spoken with [Dr D], the mother’s long-term treating psychologist, to ensure her perception of the mother’s capacity is correct from his clinical perspective, and she attaches a document styled ‘Psychologist Update’ by [Dr D], dated 5 May 2023. When I compare that with the report that he previously prepared, dated 1 March 2023, upon the basis of which I made the order for the appointment of a litigation guardian, they stand in stark contrast one to the other. It is concerning that his opinion on 1 March 2023 does not correlate with his opinion on 5 May 2023. There is no indication in his latter report that there has been any notable change in the mother’s condition between 1 March and 5 May 2023, nor does he point out any error that he says he made in that earlier report. In summary, he described in his report of 1 March 2023 that, in his professional opinion, the mother’s mental state then was such that she was in a very vulnerable position. He referred to it being evident that her overall mental health had gradually declined in the preceding months due to significant ongoing pressures she had been enduring. He said that whilst she is normally able to manage her fundamental self-care requirements, she was struggling to do so at that time. Further, it was clear, in his professional assessment, that she was having a type of nervous breakdown which included significant anxiety with connected panic attacks and that, whilst she had historically been a very resilient individual, he was concerned about her current wellbeing. In my view, the only way those two starkly opposing opinions, separated in time by only two months, can be clarified will be when [Dr D] is cross-examined at trial, he being a witness in the mother’s case.
No further evidence has been adduced by or on behalf of the mother of any change in her circumstances since then which might support the discharge of paragraph 4 of the orders made on 9 March 2023 and/or paragraph 2 of the orders made on 17 May 2023.
In the circumstances, paragraphs 3 and 4 (in relation to the appointment of Ms S as the mother’s litigation guardian) of the mother’s Application will be dismissed.
ORDERS
In the circumstances, paragraphs 2–7 and 9 of the mother’s Application will be dismissed.

I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.
Associate:
Dated: 5 September 2023

File number(s):	MLC 4879 of 2019
Judgment of:	STRUM J
Date of judgment:	5 September 2023
Catchwords:	FAMILY LAW – COURTS AND JUDGES – Where the final hearing has been adjourned part-heard for one year – Where the applicant seeks a recusal of the trial judge on the basis of apprehended bias – Where the applicant’s allegations with regard to apprehended bias are not properly particularised – Test for apprehended bias applied – No apprehended bias found – Where the applicant seeks that the part-heard trial be aborted – In circumstances where no apprehended bias found and no recusal, request to abort trial refused – Where the applicant seeks a “review” of all prior judgments published in the matter – Where the applicant has not appealed or sought leave to appeal, nor leave to extend time to appeal any prior orders – Where the trial judge does not have power to order a “review” of own judgments – Where the represented party, by her litigation guardian, seeks that order for appointment of a litigation guardian be discharged – Where there is no satisfactory further evidence to support discharge – Application dismissed.
Legislation:	Australian Human Rights Commission Act 1986 (Cth) Disability Discrimination Act 1992 (Cth) ss 5, 6, 30, 42 Evidence Act 1995 (Cth) s 75 Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 4(1), 68LA, s 69ZN, 69ZQ, 79, 102NA Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 69 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.33, 3.12, 3.13, 3.14, 5.08, 10.26, 10.27 Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021, updated 28 November 2022 Core Principles 1, 2, 3, 4, paras 5.24, 5.52–5.61 International Covenant on Civil and Political Rights art 14(1)
Cases cited:	Acheson & Begbie [2023] FedCFamC1F 704 AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236; [2011] VSCA 425 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Cassell & Kolar (No 2) [2022] FedCFamC1F 984 Cassell & Kolar (No 4) [2023] FedCFamC1F 299 Cassell & Kolar (No 5) [2023] FedCFamC1F 478 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Darley (No 2) [2023] FedCFamC1A 112 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Fierro & Fierro (No 4) (2022) FLC 94-120; [2022] FedCFamC1A 208 Johnson vJohnson (1997) FLC 92-764; [1997] FamCA 32 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Keighley & Keighley [2023] FedCFamC1A 146 Lim & Zong (2021) FLC 94-048; [2021] FamCAFC 165 Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11 Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Rilak & Tsocas [2017] FamCA 757 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Scott & Munayallan [2022] FedCFamC1A 44 Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 Strahan & Strahan (Disqualification) (2009) FLC 93-414; [2009] FamCAFC 204 Tsocas & Rilak (No 4) [2022] FedCFamC1F 296
Division:	Division 1 First Instance
Number of paragraphs:	124
Date of last submission/s:	18 August 2023
Date of hearing:	28 July 2023
Place:	Melbourne
The Applicant:	Appeared via litigation guardian in person
Counsel for the Respondent:	Ms Dellidis
Solicitor for the Respondent:	Hargreaves Family Lawyers
Counsel for the Independent Children’s Lawyer:	Mr James
Solicitor for the Independent Children’s Lawyer:	Victoria Legal Aid
The Intervenor:	Excused from appearing

MLC 4879 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CASSELL Applicant
AND:	MR KOLAR Respondent
Q LEGAL Intervenor INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	STRUM J
DATE OF ORDER:	5 SEPTEMBER 2023