Channing & Channing
[2024] FedCFamC1A 99
•24 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Channing & Channing [2024] FedCFamC1A 99
Appeal from: Channing & Channing [2024] FedCFamC2F 293
Channing & Channing (No 2 ) [2024] FedCFamC2F 413
Appeal number(s): NAA 57 of 2024
NAA 74 of 2024File number: PAC 5460 of 2021 Judgment of: CAMPTON J Date of judgment: 24 June 2024 Catchwords: FAMILY LAW – APPEAL – Where the father seeks leave to appeal, and if successful, to appeal from an order dismissing his recusal application made during the course of adjourned part-heard child related proceedings – Where the father asserts that the primary judge’s questions of him demonstrated a “preconceived view” and amounted to a “cross-examination” – Where the primary judge indicated at the hearing prior to the adjournment that they would accede to a recusal application if made – Leave to appeal refused and appeal dismissed – Father ordered to pay the mother’s costs in a fixed sum. Legislation: Family Law Act1975 (Cth) Pt VII, Div 12A, ss 69ZN, 69ZR, and 69ZX
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Cases cited: Acheson & Begbie [2023] FedCFamC1A 240
Charisteas v Charisteas (2021) 273 CLR 289; [201]] HCA 29
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Duarte and Anor & Morse (2019) FLC 93-902; [2019] FamCAFC 93
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edinger & Duy [2023] FedCFamC1A 194
Huda & Huda & Laham (2018) FLC 93-837; [2018] FamCAFC 85
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
M & M (1988) 166 CLR 69; [1988] HCA 68
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 56 Date of hearing: 17 June 2024 Place: Sydney Counsel for the Appellant: Mr Dura SC with Mr Gardiner Solicitor for the Appellant: AJL Legal Counsel for the Respondent: Mr Fowler Solicitor for the Respondent: Hikma Legal The Independent Children's Lawyer: Submitting Notice filed ORDERS
NAA 57 of 2024
NAA 74 of 2024
PAC 5460 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CHANNING
Appellant
AND: MS CHANNING
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
24 JUNE 2024
THE COURT ORDERS THAT:
1.By consent, the Notice of Appeal NAA 74 of 2024 filed 3 April 2024 be withdrawn and dismissed.
2.The Notice of Appeal NAA 57 of 2024 filed 12 March 2024 be dismissed.
3.The appellant pay the respondent’s costs fixed in the sum of $15,000 within 28 days of the date of this order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Channing & Channing has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
Mr Channing (“the father”) seeks leave to appeal and if successful, appeals from two judgments of the primary judge. The first was delivered on 7 March 2024, dismissing his Application in a Proceeding filed 20 February 2024 seeking that the primary judge be disqualified from further hearing then part-heard Pt VII of the Family Law Act1975 (Cth) (“the Act”) child-related proceedings. The second was delivered on 21 March 2024, refusing a stay of the hearing of the proceedings pending determination of the first appeal.
The first Notice of Appeal, being NAA 57 of 2024, was filed on 12 March 2024 (“the disqualification appeal”). The second Notice of Appeal, being NAA 74 of 2024, was filed on
3 April 2024 (“the stay appeal”). Ms Channing (“the mother”) resists the appeals. The Independent Children’s Lawyer (“the ICL”) filed Submitting Notices on 27 March 2024 and 10 April 2024 and did not participate in the appeals.
At the hearing of the appeals it was agreed that the stay appeal would be consensually withdrawn and dismissed. For the reasons that follow, the disqualification appeal will be dismissed.
RELEVANT BACKGROUND
The parents were married in early 2002, separated in or around 2017 and were divorced in late 2019. There are four children of the marriage:
(a)W, born in 2004 aged 19 years;
(b)X, born in 2005 aged 18 years;
(c)Y, born in 2009 aged 14 years; and
(d)Z, born in 2012 aged 12 years.
Consent final parenting orders were made on 20 October 2021 for the two older children to live with the mother. The parenting of the two younger children remains in contest. Consent interim orders were made on 15 February 2022 for Z to live with the mother and spend time with the father. On 18 February 2022 defended interim orders were made for Y to live with the mother and spend time with the father.
At the time of the commencement of the final trial on 23 October 2023, W, X and Z lived with the mother. Contrary to the interim orders, Y lived with the father and was not spending time with the mother, Z, or W and X, and Z was spending no time with the father or Y.
The mother seeks orders for Z and Y to live with her and spend no time with the father, or in the alternative, spend time with the father at a supervised contact centre. The father seeks orders that Z and Y live with him and spend time with the mother.
THE TRIAL
The trial was listed for three days over 23 – 25 October 2023. The mother was cross-examined on 23 October 2023. The father was cross-examined for an hour in the afternoon on 23 October 2023, on 24 October 2023 for five hours, and on 25 October 2023 until 10.56 am. The remaining witness to be cross-examined was the single parenting expert.
At the conclusion of the cross-examination of the mother by the father and by the ICL, the primary judge asked the mother some questions. At the conclusion of the cross-examination of the father by the mother and by the ICL, the primary judge asked the father some questions. At that time counsel for the father raised concerns with the questions that the primary judge had asked the father. This led to counsel indicating that the father may make an application that the primary judge recuse themself. The matter was then adjourned mid-morning at the request of the parties to attempt to compromise the substantive dispute. It did not settle. The proceeding was re-mentioned in the afternoon of 25 October 2023 and adjourned part heard to 21 and 22 March 2024 for the cross-examination of the single parenting expert and submissions.
On 20 February 2024, the father filed an Application in a Proceeding seeking for the primary judge to recuse themself from further hearing the matter. It was heard on 1 March 2024 and dismissed on 7 March 2024. The father’s application to stay the child-related proceeding pending determination of his Notice of Appeal was heard and refused on 21 March 2024. The hearing of the parenting dispute was concluded on 8 and 24 April 2024. Judgment is reserved.
THE APPEAL
The single ground of appeal is:
1.THAT… the primary judge erred in failing to correctly apply the established principals in respect to apprehended bias to the facts and as a result refused the father’s application that her Honour recuse herself from further hearing and determining the matter.
(As per the original)
LEAVE TO APPEAL
Pursuant to s 28(1)(c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the father requires leave to appeal the primary order under challenge. In his Notice of Appeal, he relied on the following in support of his application for leave to appeal:
1.The father’s contention in that…the primary Judge failed to recuse [themselves] and that a fair-minded lay observer might reasonably apprehend the primary Judge might not bring an impartial and unprejudiced mind to the resolution of the question [the primary judge] is required to decide. If leave is not granted in these circumstances the father would suffer substantial injustice.
Whilst the discretion to grant leave is unfettered, generally the court will look to see whether the decision is attended with sufficient doubt so as to justify leave and whether a miscarriage of justice would occur if leave was not granted, supposing it to be wrong (Medlow & Medlow (2016) FLC 93-692 at [57]).
THE LAW
The test for apprehended bias is whether “a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 (“Ebner”); see also Charisteas v Charisteas (2021) 273 CLR 289).
As is well established, application of the doctrine of apprehended judicial bias involves two steps (Ebner at 345), often referred to as the “double might” test (see Acheson & Begbie [2023] FedCFamC1A 240 at [7]). First, an appellant must identify what it is said might lead a judge to decide a case other than on its legal and factual merits. Secondly, they must articulate a logical connection between the identified conduct and the feared deviation from impartiality.
The lay observer should not be taken to be completely unaware of the way in which cases are brought to trial and tried (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [177]). The characteristics of the fair-minded lay observer were recently discussed by the High Court of Australia in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15:
46Here, as the parties properly recognised in argument, much depends on the characteristics to be attributed to the hypothetical fair-minded lay observer in applying that standard. The observer is to be placed in a contemporary setting. Uncritical attitudes of the past cannot be assumed to be those of the present.
47Being “fair-minded”, the observer “is neither complacent nor unduly sensitive or suspicious”. Yet the observer is cognisant of “human frailty” and is all too aware of the reality that the judge is human. The observer understands that “information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making”.
48Being “lay”, the observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge”. Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard “the irrelevant, the immaterial and the prejudicial” and to discharge the judicial function uninfluenced by past professional relationships, “the public perception of the judiciary is not advanced by attributing to the … observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case”. This indicates that the observer will see the person who is currently a judge as the person who was formerly an advocate and may be less inclined to dissociate the advocate from the cause advocated than would someone steeped in the adversary process with a cultivated sense of the ethics of the legal profession and the profundity of the judicial oath.
49Nor is the observer so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias…
(Footnotes omitted)
The role of the primary judge in child-related proceedings is guided by Div 12A of Pt VII of the Act. The mandatory principles for the conduct of child-related proceedings include that the court is to actively direct, control and manage the conduct of the proceeding, to ensure it is conducted in a way that will promote child-focused parenting by the parties with as little formality, legal technicality, and form as possible (s 69ZN). In giving effect to those principles, the court may at any time before the making of final orders, if it considers it to be of assistance in the determination of the dispute between the parties, determine a matter arising out of the proceeding (s 69ZR(1)(b)). By exercising that power, the primary judge was not required to disqualify themself from further hearing the proceeding (s 69ZR(3)).
CONSIDERATION
The Summary of Argument of the father records that the apprehended bias is said to have arisen from particularised aspects of the primary judge’s conduct, being:
10.The [father’s] Notice of Appeal ultimately seeks to deal with two interlacing issues. Firstly, [the primary judge] formed a preconceived view that the [father’s] orders sought were not in the children’s best interests.
11.Secondly, in doing so, [the primary judge] entered into the fray by cross examining the [father] in an inappropriate manner, putting perverse propositions to him, which were not addressed in either of the parties’ applications.
12.[The primary judge] then admitted to crossing the line, with her inference that she would recuse herself if any application were to be made.
13.It is the [father’s] position that, [the primary judge’s] preconceived view of the [father], being that which was adverse to the father’s position, led [the primary judge] to set about conducting a cross-examination of him which stepped out of the realm of her role of impartiality.
The questioning of the father by the primary judge as to a video
As to the fathers’ first pillar identifying a matter or issue said to raise an apprehension of bias, his Summary of Argument records:
20.... [the primary judge] clearly prejudged that the [father’s] application for final parenting orders was not in the children’s best interest. [The primary judge’s] questioning of the [father] substantiates her view to this effect.
21.During the course of the father’s cross examination, the Court played four videos regarding an incident allegedly occurring in […] 2020, where by the [mother] claims the [father] pushed her, causing her to fall to the ground.
22.[The primary judge] then questioned the father about this incident during his cross-examination. Despite the police findings that they could not be satisfied the [father] had pushed the [mother], and that [X] was forced into making that statement by the mother, the primary judge made enquiries as to this, which can be read at page 252 to 253 of the transcript. Notably it is stated:-
[THE PRIMARY JUDGE]: So it – doing the best that you can, you think that that is Mum and [W]?---Yes.
[THE PRIMARY JUDGE]: Okay. And you can still see the shadow up the top here?---Yes.
[THE PRIMARY JUDGE]: Right. And at 5:30, that person that has been standing up the top Is moving around, you can see, and then looks to have gone back inside, because the shadow is gone; is that what you can see on the video?---Yes.
[THE PRIMARY JUDGE]: Okay. And then you leave at around 6:35, so we will just fast-forward it, and this is where you leave, around here, and you’ve got both [Y and Z] in the car?---Yes.
[THE PRIMARY JUDGE]: Okay. All right. Thank you. I just wanted to make sure that I understood what the video was showing?---Yes.
…
25.A lay observer, upon reading the references above, would glean from the transcript that, in pursuing the course of questioning, [the primary judge] crossed the line, forming a view adverse to the [father’s] position, and set about to conduct a cross-examination of the him concerning allegations of family violence; attempting to create an evidentiary foundation to reject the [father’s] case that the [mother] alienates and poorly influences the children.
26.[The primary judge] had a clear intent in her line of questioning to neutralise the [father’s] criticisms of the [mother] in respect of the video put to the mother in cross-examination. This again, despite the NSW Police forming the view that the allegation was made without foundation.
(Emphasis added) (Footnotes omitted)
The complaint by the father as to this particular is that the primary judge “pre-judged” that the orders as sought by him were not in the children’s best interests, and that the questioning of him on the contents of the video “substantiates her view to this effect”. The father submitted at paragraph 24 of his Summary of Argument that the primary judge “admits at this point to her intervention and questioning being in excess, and to her moving into ‘counsel’s shoes’.” Nowhere in the transcript, or the reasons for judgment, does the primary judge reference stepping into “counsel’s shoes” or say that any of the questioning on the contents of the video was “in excess”. This aspect of the particular, in the terms as advanced by the father, is rejected.
A judge may ask questions of a witness in the ordinary course without that being indicative of bias or giving rise to an apprehension of bias. It is within the role of the primary judge in child-related proceedings to ask questions of a witness in promoting the objectives of Div 12A of Pt VII of the Act (s 69ZX(1)(e)). That said, the Full Court has said that child-related proceedings are not to be equated with inquisitorial proceedings (Huda & Huda & Laham (2018) FLC 93-837 at [9]), and has made it clear that this Division of Pt VII does not constitute license for a primary judge to act in an inquisitorial fashion (see Duarte and Anor & Morse (2019) FLC 93-902 at [100] – [110]). The overriding principle remains as the court’s obligation to treat the best interests of the children as the paramount consideration (M & M (1988) 166 CLR 69).
The focus of this particular turns to the content and context of the questions of the primary judge, and whether such questioning grounds an apprehension of bias. As was outlined by the Full Court in Edinger & Duy [2023] FedCFamC1A 194, adopting what Ward JA said in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128, the role of the judge is to ask questions when there is a need for clarification of evidence.
The evidence of the content of the video, as opposed to the event on that day between the parents itself, requires background. The video tendered was a recording made by a police officer of a CCTV recording originating from a neighbouring property. The video of that CCTV recording was introduced into evidence by the father during the cross-examination of the mother. It was sourced from documents produced by the Police on subpoena. The father gave no evidence as to the contents of the video in his affidavit. There was no cross-examination of the mother, or of the father, as to the contents of the video, by the other, or by the ICL.
After the conclusion of the cross-examination by both the mother and the ICL of the father, on the morning of the last then allocated day of the trial, the primary judge said:
[THE PRIMARY JUDGE]: All right. [Counsel the father], I’ve watched the video of the incident where the mother fell onto the floor, I will use those terms, when [Z] was refusing to leave. I’ve watched it twice, once this morning and once yesterday afternoon. I’ve taken note of some times, and I wondered whether I play the video now and ask the father to concede certain things at particular times or whether he agrees or not about certain things being visible on the video, because nobody actually asked the mother any questions about it. So I’ve watched it. Doing the best I can, I think I know who’s there, but I’m not sure. Or alternatively, you and [counsel for the mother] and [the ICL] can have a discussion with reference to those times, and there could be an agreement about - - -
[COUNSEL FOR THE FATHER]: I’m content for your Honour to watch – to have the video played again and to ask my client some questions about that.
[THE PRIMARY JUDGE]: I – all right. Thank you. So I will just play the whole video, and then I will go back to you, and I will just ask you about certain things that I observed, and I just want to have your view about it?---Sure.
(Bold and italics emphasis added) (Transcript 25 October 2023, p.247 lines 9–25)
Although not expressly raised on appeal, the phrase “ask the father to concede” was less than optimal. This descriptor is then qualified by the primary judge in two ways: firstly by way of the primary judge’s language identifying tentative views as to what they observed on the video, and secondly, by giving the parties the opportunity to provide an agreed statement of facts as to the content of the video. In Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) at [14] the High Court said that “the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it.” That is the circumstance on this subject matter, being confirmed by counsel for the father’s interjection and agreement with the primary judge’s alternate proposition, to ask questions of the father while viewing the video of the recording.
The father submitted at the hearing of the appeal that the questions directed to the father as to the recording of a recording were “unfair” because there was “no evidentiary basis” for the primary judge’s proposition as to “the shadow” and “that person”, because the mother had not given evidence to that effect. While this was not surprising, in circumstances where the mother was not cross examined as to the content of the video, this was not a submission made by the father on the hearing of the disqualification application (see Metwally v University of Wollongong (1985) 60 ALR 68). In any event, the import of the submission was that the questions amounted to the primary judge attempting to elicit a concession from the father that “the shadow” or “the fourth person” was one of the children. The father then submitted that, as a matter of logic, the content of the questions would be taken by the lay observer to demonstrate that the primary judge had concluded that the shadow was a person. The submission is not accepted. The questions were directed, as identified by the primary judge, to be “whether there is, according to him [the father], a fourth person” (Transcript 25 October 2023, p.257 lines 16–17). The father had the opportunity to agree or disagree with the primary judge’s tentative interpretations of what they observed from their viewing of the content of the video.
The questions asked by the primary judge on this subject matter, as identified in the father’s Summary of Argument, were limited. They were asked appropriately and at the proper time in the trial. Viewed in context, the questions asked by the primary judge of the father on the subject matter of the video are directed at clarifying the evidence to assist in making findings of fact. Such intent was made clear by the primary judge both prior and subsequent to the questions being asked, including:
[THE PRIMARY JUDGE]: I was left trying to work out what the video actually showed. You [counsel for the father] didn’t ask [the mother] any questions about what the video showed…
…
[THE PRIMARY JUDGE]: …what I am attempting to do is to work out what the facts of this case are. And just because a document has been tendered, that being the video, doesn’t mean that I have to accept the opinion of a police officer who’s not on oath, and I don’t know what he considered, what he viewed, whether he had any discussions with anybody. Certainly, the father has just indicated that he has only seen the video now for the third time. And he seems to have accepted – according to [the single expert’s] report, she’s critical of him for accepting that. In one sense, I want to give him the opportunity of saying, “Well, hold on. Maybe I was a little bit harsh,” or “No, I’m absolutely right. [W] was coerced.” I want to know what he is thinking and why he’s thinking the way that he is so that I can then work out what I consider to be in these children’s best interests based on fact. This report – [the single expert’s] report – she has taken into consideration all sorts of material that’s not before me, the basis of which hasn’t been tested. She has got a whole lot of opinion about a whole lot of matters that - - -
(Emphasis added) (Transcript 25 October 2023, p.255 lines 1–2 to p. 256 lines 4–17)
The father submitted at the hearing of the appeal that the fact that the primary judge directed questions to the father as to the content of the video and not the mother, contributed to the apprehension of bias. This submission is hollow. It was uncontroversial at the appeal that the primary judge did not have the opportunity to review the video outside of the court room until after the completion of the first day of the hearing. That was after both the mother’s cross-examination had been completed and the father’s cross-examination had commenced.
As neither parent had been asked a question about the content of the video in cross-examination, the primary judge appropriately asked questions as to that content of the video after the cross-examination of each of the parents had been completed. The objective of the primary judge was to seek clarification to understand the content of the video evidence at that stage in the trial, as explained in the reasons for judgment:
53The evidence is that after investigating the matter, including viewing CCTV footage and interviewing [W] and [X], the Police were not satisfied the mother had been pushed or assaulted by the father and were satisfied that [X] had been coerced by the mother to make the statement that she did to the police and that she could not have witnesses the alleged incident happen.
…
70In respect of the Video, it is apparent from the transcript that what I was attempting to do was to understand what was being shown in the Video.
…
73As indicated to the parties during the hearing, I do not accept the opinion of the police officers which the mother was asked about in cross-examination, but I have not yet decided anything about the allegation of violence…
…
75I asked the father questions in order to understand the Video, because without a narrative to explain who was who at particular points, the Video itself was unclear. I said as much to the father’s Counsel.
(Emphasis added)
The terms of the questions subject of complaint on appeal do not demonstrate that the primary judge had pre-judged what was in the best interests of the children, or that the primary judge took a path of cross-examination of the father to create an evidentiary foundation to reject his case. The later, very serious contention as made in the father’s Summary of Argument that a judicial officer has abused their position, was baseless and ought to never have been made on appeal. It does the father little credit and approaches being scandalous. The questions of the father on the contents of the video do not establish that the primary judge might not decide the case other than on its legal and factual merits. There is no logical connection was identified between the line of questioning of the father on the content of the video and any of those conclusions as submitted by the father. As to this particular, no limb of the test in Ebner is met.
The questioning of the father by the primary judge as to a self-executing order
The second pillar as to a matter or issue said to raise an apprehension of bias is from this exchange after the cross-examination of the father by the mother and the ICL had concluded:
[THE PRIMARY JUDGE]: Right. And if [Y] runs away again like he did, do you think that it would help him stay with [the mother] or not run away if there was an order in place that you be arrested if he comes to your house?---Yes.
[COUNSEL FOR THE FATHER]: I’m sorry, your Honour. I’m having a little difficulty with - - -
[THE PRIMARY JUDGE]: That there is an automatic order in place that the police arrest the father if [Y] returns to the house.
[COUNSEL FOR THE FATHER]: Well, I’ve got a whole lot of difficulty with that, but that was never - - -
[THE PRIMARY JUDGE]: You may have a lot of difficulty. I’m just asking the father about that proposition. I can certainly make that order.
[COUNSEL FOR THE FATHER]: Well, I’m not suggesting that your Honour doesn’t have the power to make the order. It’s the first - - -
[THE PRIMARY JUDGE]: I just want to know how it is that I can ensure that whatever order I make, that these parties comply with it.
(Transcript 25 October 2023, p.244 line 35 to p.245 line 8)
The witness was then withdrawn, and the primary judge made the following comment in the absence of the witness:
[THE PRIMARY JUDGE]: Can I tell you this. The reason why I have done what I have done is because I am looking for ways to ensure that these children have a relationship with both of their parents, and I hadn’t quite finished asking [the father] what I wanted to ask him, and perhaps I should have spoken to counsel in the absence of the witnesses before I asked [the father] any questions. But one of the things that I am considering is that there is a shut-out period for, say, three months or so where [Y] does not spend any time with his father but [Z] does, and that after that, there are orders in place for both [Y and Z] to spend time with each of their parents. That is one of the things that I am considering. Now, it’s not an application that any of the parties are making, but it is still something that I am thinking about, notwithstanding the fact that there is no such application. Because what [the mother] is proposing to do is to completely shut the door on these children having a relationship with their father.
…
[THE PRIMARY JUDGE]: …So the reason that I was asking those questions of the father is to see whether there was some other alternative, and to be fair, I was putting the ideas to him so that he can tell me what he thinks about it.
[COUNSEL FOR THE FATHER]: And it’s in the context of a very difficult case that in some respects – with respect, your Honour is damned if you do and damned if you don’t – that I understand how difficult it is…
(Emphasis added) (Transcript 25 October 2023, p.253 line 40 to p.254 line 30)
As to this exchange, the father submitted in his Summary of Argument:
30.[The primary judge] impermissibly ‘entered the fray’ [sic], by putting unreasonable propositions to the father in the context of having already criticised him. This was after he had had already a lengthy stay in the witness box. [The primary judge] attempted to campaign ways in which the respondent mother’s proposed orders could take shape and a self-executing order that the father be arrested if [Y] returns to live with him.
31.This proposition put to the [father] was one not raised by any of the parties, be it the ICL, the respondent mother or the appellant father in the course of the substantive proceedings. There is no remoteness to [the primary judge’s] impartiality; it is clear she has endeavoured to set out on a course that is outside her role as the trial judge.
(Emphasis added)
As identified, the fact of the primary judge asking questions of the father does not, alone, demonstrate an apprehension of bias. The subject matter of the question posed by the primary judge were not orders sought by either parent or the ICL.
It was agreed during the hearing of the appeal that there had been no cross-examination of the father by the mother, or by the ICL, as to his historical or prospective compliance with orders.
The father at the appeal accepted that the subject matter of the question was permissible, however it was his submission that the construction of the question based the apprehension of bias. He submitted that the question was akin to a cross-examination in a contravention application and went beyond the fact-finding role of the primary judge.
It is well accepted, as the recorded in the reasons (at [69]), that in parenting proceedings, a primary judge is not bound by the parties’ proposals. Further, where a primary judge is considering orders which none of the parties have proposed, the Court should, as a matter of procedural fairness, place the parties on notice as to the matters which it is considering (U v U (2002) 211 CLR 238).
In considering what the hypothetical observer would have understood, it is important to consider the context of the question subject to complaint and the sequence of it in the trial. Again, at the time of the question the hearing was at the stage where both parents had given their affidavit and oral evidence, the Family Report had been read, and the only oral evidence left to be heard was that of the single expert. The primary judge had a firm understanding of the evidence and of each of the parent’s positions. The question was not asked in a vacuum. On one view, in circumstances where the evidence was that Y had run away and refused to live with the mother pursuant interim orders, the question highlighted the perils of the mother’s application such that if she achieved orders for him to live with her, such determination may expose Y to risk.
It is appropriate and proper for a primary judge to undertake a tentative exploration as to potential orders that could be made to promote the children’s best interests. The question subject to complaint falls squarely into the type of questions which a trial judge might ask in a very difficult and complex case. The construction of the question, contrary to the submission of the father, is unremarkable. The question serves the purpose of placing the parties on notice as to what is potentially weighing in the mind of the primary judge, ensuring the occasioning of fairness. Both the father and the mother thereafter had options after the question was asked, including to lead further evidence-in-chief, re-call the other for cross-examination, or propose alternative orders.
The High Court in Johnson confirmed that 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 is issue, and counsel and parties are usually assisted by hearing those opinions and being given an opportunity to deal with them. The question of the father by the primary judge as to the self-executing order in this case is a good example of a judge at trial level not sitting like an inscrutable Sphinx. The primary judge was acting consistently with that as prescribed by Div 12A of Pt VII of the Act.
The question as to the making of a self-executing order does not establish that the primary judge might not decide the case other than on its legal and factual merits. The particular fails.
The primary judge’s indication of acceding to a recusal application if made
The father submitted that the primary judge agreed to accede to a recusal application on three occasions. On 25 October 2023 the primary judge said “[i]f you want me to recuse myself, [counsel for the father], I will. If you think I’ve crossed the line, I will recuse myself” (Transcript 25 October 2023, p.255 lines 22–23) and later said, “if there’s an application for me to recuse myself, I will do so” (Transcript 25 October 2023, p.258 lines 4–5). There was no third occasion.
Counsel for the father submitted at the appeal that “once it [the indication] is said, it is out there”. He strongly submitted that that it is indicative of an atmosphere of the courtroom that the hypothetical observer would be aware of by way of context and tone, not being ascertainable from the transcript. It was further submitted that this atmosphere was implicitly acknowledged by counsel for the mother, who sought an adjournment, saying “I think I can see this heading to an even worse disaster than is currently before the Court” (Transcript 25 October 2023, p.257 lines 28–29).
At the hearing of the appeal, counsel for the mother submitted that the primary judge’s indication that they would accede to a recusal application if made was merely repeating what counsel for the father had stated. That submission is contrary to the plain language used by the primary judge and is not accepted.
The primary judge explicitly provided counsel for the father the opportunity to make an oral recusal application on the afternoon of the third day of trial 25 October 2023 (Transcript 25 October 2023, p.258 line 47). Counsel for the father indicated a preference to “examine the transcript” and “possibly” make the application within seven days (Transcript 25 October 2023, p.259 lines 1–13).
Any merit to the submission on appeal that the expression of the primary judge as to recusal implies “overstepping the mark” is superficial. The father fails to engage on appeal with firstly, his own conduct in not making his application on the third day of the trial (it was made four months after the contended apprehension of bias was said to have arisen, being weeks prior to the part heard hearing recommencing) and with, secondly, the primary judge making it clear on that day of that there would be no recusal from hearing the proceeding on the Court’s own motion.
The primary judge at the hearing of the disqualification application on 1 March 2024, engaged with this particular, saying:
[THE PRIMARY JUDGE]: Now, what do you say about the – so where I say on the transcript:
If you want me to recuse myself, [counsel for the father], I will –
as being a statement at the point in time, that is, if you made the application there and then, I would have recused myself, and I’m not bound by that in any event.
[COUNSEL FOR THE FATHER]: I’m not suggesting that your Honour is bound by that, but what I am – what I drew attention to in the outline was that it’s a concession that your Honour understood at that time your Honour crossed the line.
(Transcript 1 March 2024, p. 13 lines 11–20)
In the reasons, the primary judge said:
56In circumstances where at the conclusion of the recusal application it was suggested that this decision would be appealed (even though it had not yet been handed down) and that an application for a stay would be made, the temptation to recuse myself immediately was almost too overwhelming. Such suggestion should not, to my mind have been made, as it had the effect of placing undue pressure on me. This is so even though in a case of real doubt as to whether a judge should disqualify himself or herself “it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification.” It would, however, be intolerable if a litigant could influence the outcome of an application by suggesting that the decision will be appealed.
…
76Lastly, I want to say something in respect of the submissions that I had inferentially understood that I had crossed the line, and that this is why I had said to Counsel for the father that if he made the recusal application there and then I would recuse myself. If anything, it was this utterance by me that might have been a snap pre-judgment, which was later corrected when I said that I was not going to recuse myself of my own motion, but that I would hear any application that I do so.
(Emphasis added) (Footnotes omitted)
The comment of the father that he would file an appeal in the event the recusal application was refused, before the decision was made, was inessential and ought not to have been made.
While there is an understandable attraction for a primary judge to simply to accede to the application and leave the matter to be dealt with by another judicial officer, that would not be consistent with judicial duty (see Re JRL; Ex parte CJL (1986) 161 CLR 342 at page 351). This is also consistent that as prescribed by Div 12A of Pt VII of the Act (see Johnson at 13). The High Court has made it clear that 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”. The primary judge applied these principles when the recusal application was made and came to the careful and considered conclusion that the application ought to be refused.
The submissions of the father as to this particular of the ground were directed to the second limb of Ebner, being the contended logical connection between the first two particulars of the identified conduct and the feared deviation from impartiality.
None of the pillars of the father’s apprehension as to bias established the first limb in Ebner. The indication of acceding to a disqualification application establishing a logical connection has no utility in circumstances where the father not established what might lead the primary judge to decide the case other than on its legal and factual merits.
CONCLUSION
Nothing raised in the appeal gives rise to a reasonable apprehension of bias on the part of the primary judge. The ground fails.
The father has not demonstrated that the order dismissing his Application in a Proceeding filed 20 February 2024 is attended by sufficient doubt to justify a grant of leave. The application for leave will be refused and the disqualification appeal dismissed.
COSTS
In the event the appeal was unsuccessful, the mother sought for an order for the father to pay her costs of the appeal. The father did not resist such an order being made in that circumstance. It was agreed that this was justified and just that the costs sought by the mother, should the appeal be dismissed, ought to be fixed in the sum of $15,000. Such order will be made accordingly.
For all of the above reasons, I make the orders as set out at the forefront of these reasons.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 24 June 2024
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