Channing & Channing
[2024] FedCFamC2F 293
•7 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Channing & Channing [2024] FedCFamC2F 293
File number(s): PAC 5460 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 7 March 2024 Catchwords: FAMILY LAW – PARENTING – Recusal application by respondent father – where matter part-heard – where Court had asked questions of the father during the hearing – crossing the line – entering the fray – where father submits that the Court had prejudged that the father’s position was not in the best interest of the children – whether there is a logical connection between the Court’s questioning of the father and the feared deviation from the course of deciding the case on its merits – whether Court was merely attempting to fact-find
FAMILY LAW – Appointment of single expert – whether appropriate to appoint forensic psychiatrist where clinical psychologist already appointed – complexity of matter – mental health of the mother and the children
Legislation: Family Law Act1975 (Cth) Cases cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Edinger & Duy [2023] FedCFamC1A 194
Feldman v Nationwide News Pty Ltd [2020] 103 NSWLR 307
Galea v Galea (1990) 19 NSWLR 263
Johnson v Johnson [2000] HCA 48
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17
Nuan & Lei [2023] FedCFamC1A 211
Polsen v Harrison [2021] NSWCA 23
Re JRL; Ex parte CJL (1986) 161 CLR 342
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Saklani & Valder [2023] FedCFamC1A 163
Vakuata & Kelly [1989] 167 CLR 568
Division: Division 2 Family Law Number of paragraphs: 97 Date of hearing: 1 March 2024 Place: Parramatta Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: AJL Legal Solicitor for the Respondent: Ms Sultanzada of Hikma Legal Counsel for the Independent Children's Lawyer: Dr McConaghy Solicitor for the Independent Children's Lawyer: Legal Aid NSW
Table of Corrections 8 March 2024 At [66] the word “despite” is corrected to the word “to”. ORDERS
PAC 5460 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CHANNING
Applicant
AND: MS CHANNING
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
7 MARCH 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 20 February 2024 is dismissed.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are Reasons for Judgment with respect to an Application in a Proceeding filed by the father who is the respondent in the substantive proceedings.
The father moves the Court for orders that I recuse myself from further hearing the matter by reason of apprehended bias and for orders relating to the appointment of a single expert forensic psychiatrist in the proceedings. In support of the application the father relies on an affidavit of his solicitor filed on 20 February 2024.
The mother and the Independent Children’s Lawyer (“ICL”) resist the application and say that the relevant legal test, that a fair-minded lay observer might reasonably apprehend bias, is not made out. They also resist the father’s application for the appointment of a new single expert.
BACKGROUND
This matter came before me for final hearing on 23-25 October 2023. It is currently part-heard.
There are four children of the parties’ marriage:
(a)W, born in 2004;
(b)X, born in 2005;
(c)Y, born in 2009; and
(d)Z, born in 2012.
Final parenting orders were made by consent on 20 October 2021 in relation to W and X, pursuant to which they are to live with the mother.
As such, it is only Y and Z who are the subject of the proceedings.
Interim parenting orders were made on 15 February 2022, pursuant to which Z is to live with the mother and spend time with the father. Interim parenting orders were made on 18 February 2022, pursuant to which Y is to live with the mother and spend time with the father.
Presently, W, X and Z live with the mother and Y lives with the father. This is so despite extant orders of the Court that Y live with the mother.
The mother seeks orders on a final basis that Z and Y live with her and spend no time with the father. Should the Court determine that Z and Y should spend time with the father, the mother seeks that this time be supervised at a contact centre.
The father seeks orders on a final basis that Z and Y live with him and spend time with the mother.
The mother gave oral evidence on 23 October 2023, and the father gave oral evidence from 23 to 25 October 2023.
After the conclusion of the father’s cross-examination on the morning of the third day of the hearing, I asked the father some questions. These will be canvassed in further detail later in these Reasons.
Counsel for the father then ventilated concerns about the questions I was asking the father. This led to the father and the mother withdrawing from the court and a discussion with Counsel ensuing. It was indicated to me, at this stage, that the father may make an application that I recuse myself on the basis of the questions I had asked the father.
The matter was subsequently adjourned and the parties engaged in discussions which ultimately bore no fruit. The matter was re-mentioned on the afternoon of 25 October 2023, it was marked part-heard and set down for further hearing on 21-22 March 2024.
On 6 and 8 November 2023, the transcripts of the three days of hearing were released to the parties.
On 20 February 2024, the father filed the Application in a Proceeding the subject of these Reasons.
The Court made orders on 20 February 2024[1] listing the application for hearing on 1 March 2024 when the application was heard.
RECUSAL APPLICATION
[1] Those orders incorrectly refer to the application being filed on 19 February 2024, this is when it was lodged for filing, but it was sealed on 20 February 2024.
Relevant Law
The relevant legal test for whether a judicial officer is affected by apprehended bias is well settled. It 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.”[2]
[2] Johnson & Johnson (2000) 201 CLR 488 at [11] (“Johnson & Johnson”); Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6] (“Ebner”).
The application of this test is not to be assessed with the benefit of hindsight, but at the time of the event which are said to give rise to that possibility.[3] It is a question of possibility, real and not remote, not probability.[4]
[3] Feldman v Nationwide News Pty Ltd [2020] 103 NSWLR 307 at [41] citing Ebner.
[4] Ebner at [7].
The existence of the apprehension of bias admits the possibility of human frailty and therefore its application is as diverse as human frailty.[5]
[5] Ebner at [8].
The application of the principles to a particular case is a two-step process:[6]
(1)Identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and
(2)Identify the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
[6] Ebner at [8].
An argument that there is a real likelihood that a reasonable observer might conclude that a decision-maker has prejudged or will prejudge an issue has several distinct elements at its root:[7]
(1)The decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case;
(2)The decision-maker will apply that opinion to that matter in issue;
(3)The decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case; and
(4)The question which is said to have been prejudged is one which should be considered afresh in the particular case.
[7] Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17.
The Court’s Questions of the Father
After the conclusion of the cross examination of the father, I asked the father some questions which are referred to in further detail later in these Reasons for Judgment.
In addition to this, I played the father a video which was part of Exhibit 1 in the proceedings, and asked the father questions about what was shown on the video.
In his submissions, the father relies on the whole of the transcript but says that pages 237-258 of the transcript are particularly relevant to whether I should recuse myself.
In his submissions, the father also specifically noted the following sections of the transcript:
(a)Page 241.23 – 241.33:
Sure. But you’re a grown man, aren’t you?---Yes, 100 per cent. Yes.
Right. And [Y] has been living with you even though there are orders in place for him to live with Mum, and you haven’t done anything about ensuring that you comply with those court orders; correct?---That’s correct.
Okay. So how is that an action of a mature man? Is it?---No.
And how can I have any confidence that you will comply with any future court order?---I give my word to your Honour.
(b)Page 244.20:
But you want to separate the two boys from their sisters, don’t you?---Their sisters are at an age now where - - -
You want to separate them, have them live in separate households, don’t you?---The – yes, your Honour.
(c)Page 244.35 – 244.37:
Do you see my conundrum?---Yes, your Honour.
Right. And if [Y] runs away again like he did, do you think that it would help him stay with Mum or not run away if there was an order in place that you be arrested if he comes to your house?---Yes.
In oral submissions, the father also directed the Court to the following exchanges between myself and Counsel that occurred after I had ceased asking the father questions (with further context added where appropriate):
(a)Page 243.30 – 243.45:
MR GARDINER: Your Honour, what your Honour has done this morning is put to my client that – absence of any application or any proposal by the mother or the ICL – that in your Honour’s mind, it might be a useful thing to have a self-executing order placing him under arrest if something didn’t happen ultimately as a result of the orders that your Honour finds, which is wholly unfair, in my submission.
HER HONOUR: Mr Gardiner, can I tell you this.
MR GARDINER: And then - - -
HER HONOUR: 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…
(b)Page 254.8 – 254.17:
HER HONOUR: And what the father is proposing to do is in some respects going to be as difficult for the children because of what it will practically mean. So what I am exploring, and what I was trying to explore with [Mr Channing] – because he’s the one that’s very close to [Y] – he’s the one that has the relationship with [Y] that [Y] doesn’t want to leave for, it seems to me, a number of reasons, and not just Dad has been brainwashing him or Dad is putting pressure on him. It’s clearly much more complex than that. I want to see if I can come up with a solution that sees these children – because these parents aren’t going to live forever – that sees these children having a relationship with each other…
(c)Page 255.1 – 255.18:
HER HONOUR: I was left trying to work out what the video actually showed. You didn’t ask Mum any questions about what the video showed. You simply - - -
MR GARDINER: Didn’t have to.
HER HONOUR: No, you didn’t.
MR GARDINER: The police of New South Wales - - -
HER HONOUR: What the police - - -
MR GARDINER: - - - were satisfied that what was in this was entirely contrary to what the mother, [W] and [X] - - -
HER HONOUR: The police aren’t here to give evidence, they’re not being cross-examined, and I don’t have to have any regard to an opinion of a police officer who looks like he wasn’t very much older than [W] when he interviewed her.
The Father’s Submissions
The father’s submissions as to why I should recuse myself are twofold.
Firstly, and primarily in his written submissions, the father submits that that I had entered the fray and crossed the line by cross examining the father in an inappropriate manner.
The father submits that a lay observer would glean from the transcript that:
(a)I inferentially understood that I had “crossed the line” because I had stated that I would recuse myself if an application were made;
(b)I had formed a view adverse to the father’s position and set about to cross examine him regarding an allegation of family violence and potential orders of “the most draconian nature” so as to have some evidentiary foundation to reject the father’s case; and
(c)I “entered the fray” in the proceedings rather than merely make enquiries and I put unreasonable propositions to the father in the context of having already criticised him.
Secondly, the father submits that I had prejudged the matter prematurely and formed a view adverse to the father’s position, that is, that I had prejudged that the father’s proposed orders were not in the children’s best interest. He says that a lay observer might reasonably apprehend bias and come to this conclusion if they read the relevant pages of the transcript of the final hearing, being the Court’s questioning of the father and subsequent discussions with Counsel.
The father submits that there is a logical connection between the matters identified on the transcript, including my alleged prejudgment of the father’s proposed orders, and a deviation from deciding the case on its merits. A lay observer would, the father submits, conclude there is a possibility of prejudgment in that I had already decided against the father’s position. This is said to be so because:
(a)I had already “cross examined” the father with a “‘clear intent” to neutralise the father’s criticisms of the mother in respect to the allegation of family violence the subject of the video which the father and the NSW Police say was an allegation made without foundation;
(b)I had already formed the view that the conduct did occur prior to submissions and without cross examination of the single expert witness; and
(c)I canvassed potential ways in which the mother’s proposed orders could be affected including a three-month hiatus in which Y spends no time with the father and a self-executing order that the father be arrested if Y returns to live with him.
The Mother’s Submissions
The mother submits that the father’s recusal application ought not succeed because it should have been made at the first reasonable opportunity and the failure to do so is fatal to the application and, regardless, that the legal test for apprehended bias has not been made out of.
Delay
The mother says that the recusal application should have been made at the first reasonable opportunity. The transcripts in the matter were released to the parties by 8 November 2023 and the father did not file his application until 20 February 2024, approximately one month before the final hearing.
The father’s delay results in him waiving his right to seek my recusal in the matter, the mother submits.
The mother cites Vakuata & Kelly[8] for the proposition that an application seeking disqualification should be made as soon as reasonably practicable and that the failure to do so may see that right being waived.
[8] Vakuata & Kelly [1989] 167 CLR 568 (“Vakuata & Kelly”).
The Court notes that Vakuata & Kelly concerned a situation where, during the hearing of a matter, comments by the trial judge were said to give rise to, at least, an appearance of bias but that the complaining party did not ventilate their concerns in any meaningful way until after judgment had been delivered in the form of an appeal, rather than a motion at the time in the original proceedings.
No Apprehended Bias
The mother submits that although the father may be able to identify sections of the transcript that it may be said might lead myself to decide a case other than on its legal and factual merits, the second step of the application of the principle as enunciated in Ebner is not made out.[9] That is, there is no logical connection between the matters the father identified on the transcript and any fear that I may depart from deciding the case on its merits.
[9] Ebner at [8].
The mother submits that my questioning of the father was an attempt to establish the facts of the case so I could make a decision in the best interests of the children and that my questions of the father were appropriate considering my fact-finding role in the matter.
In this regard, the mother cited Polsen v Harrison where the New South Wales Court of Appeal stated that:[10]
[I]nterventionist comments or conduct by a judge will not unilaterally create an apprehension of bias in the mind of the reasonable lay observer, who is taken to understand that such interventions are often motivated by the judge’s desire to understand the evidence and to advance the trial process.
[10] [2021] NSWCA 23 at [46(xii)].
The ICL’s Submissions
The ICL resists the father’s recusal application because the relevant test is not met but does not otherwise submit why it should not succeed.
Determination
The context of the questions
Whether there has been excessive judicial intervention will depend on the context, number and circumstances of the intervention. The judge must ensure the appearance of an impartial and unprejudiced mind.[11]
[11] Edinger & Duy [2023] FedCFamC1A 194 at [21] citing Galea v Galea (1990) 19 NSWLR 263 at 281-282 (“Galea”).
The mother gave oral evidence on 23 October 2023. Her evidence commenced shortly after 10am and concluded at 3.20pm. At the conclusion of the mother’s cross-examination, I asked the mother questions relating to:
(a)Where the two boys might go to school depending on where they were to live;
(b)The daughters’ (lack of) attempts at seeing Y;
(c)The mother’s attempts at contacting Y since he ran away in early 2022;
(d)What the mother has done about ensuring the boys spend time together; and
(e)A social media post of the mother.
Such questions appear over 6 pages of transcript.[12] This was in addition to my questions of the mother, during the ICL’s cross-examination of her, about her power to influence the children’s thinking.[13] At the conclusion of my questions of the mother, I asked both Counsel for the father and Counsel for the ICL if there was anything arising out of my questions of the mother, and I asked Counsel for the mother if there was any re-examination.
[12] T:58-63.
[13] T:55.5-11.
The father commenced giving oral evidence in the afternoon of 23 October 2023, for approximately an hour, and was then back in the witness box for the duration of the day on 24 October 2023. His evidence started at 10.40am and concluded at approximately 4.30pm on the second day to be continued into the third day. On the morning of 25 October 2023, the father’s cross-examination by the ICL re-commenced from about 9.30am, and concluded sometime after.
At the conclusion of the ICL’s cross-examination I asked the father a number of questions relating to:
(a)The time that Y had spent with the extended families;
(b)The children’s bonds to each other and the father’s opinion about the importance of such bonds;
(c)Whether it was detrimental for Y and Z to not spend time with the mother or him respectively;
(d)The father’s communication with the mother;
(e)The circumstances surrounding the 18 February 2022 orders that Y live with the mother and the steps the father had taken to comply with those orders;
(f)Whether the father had considered that Y may feel sorry for the father and that this was the reason he wanted to remain living with the father;
(g)Whether it would assist Y to remain with the mother, if he is ordered on a final basis to live there, if there was an order that the father be arrested if Y returns to him; and
(h)Whether the father thought that Z might run away if he was to live with the father.
The questions appear over 10 pages of transcript.[14] This was in addition to some other questions I asked during the ICL’s cross-examination of the father, which is not the subject of any specific complaint in this application.
[14] T237-247.
Counsel for the father objected to my questions of the father at the following point:[15]
[15] T:244.35 – 245.27.
Right. And if [Y] runs away again like he did, do you think that it would help him stay with Mum or not run away if there was an order in place that you be arrested if he comes to your house?---Yes.
MR GARDINER: I’m sorry, your Honour. I’m having a little difficulty with - - -
HER HONOUR: That there is an automatic order in place that the police arrest the father if [Y] returns to the house.
MR GARDINER: Well, I’ve got a whole lot of difficulty with that, but that was never - - -
HER HONOUR: You may have a lot of difficulty. I’m just asking the father about that proposition. I can certainly make that order.
MR GARDINER: Well, I’m not suggesting that your Honour doesn’t have the power to make the order. It’s the first - - -
HER HONOUR: I just want to know how it is that I can ensure that whatever order I make, that these parties comply with it.
MR GARDINER: Well, I know you’re - - -
HER HONOUR: So I’m asking the father what he thinks the impact might be on [Y] – whether that might stop him from running away?
MR GARDINER: Well, you’re – with respect, you’re cross-examining my client about the fact of a self-executing order that places him in jail.
HER HONOUR: I am asking him whether he thinks that that might - - -
MR GARDINER: In pretty unfair circumstances, with respect. With great respect, really?
HER HONOUR: Sure. Mr Gardiner - - -
MR GARDINER: Anyway, I’ve said what I’ve said.
HER HONOUR: You have.
I then continued as follows:
So what do you say? Would that maybe stop [Y] from running away?---I don’t think it would stop him from running away, but it would stop him from coming to me, to protect me.
So in those circumstances where you are quite concerned that [Y] might run away, what do you think you could do to ensure that he didn’t if I was to make an order that he live with Mum?---To be honest, your Honour - - -
You just don’t know?---Yes.
Okay. If [Z] comes to live with you – we all watched the video, and you say that’s not how he normally behaved; that was out of the usual. He hasn’t wanted to see you or hasn’t come to see you for some time, has he?---That’s correct.
Okay. And I think you’ve acknowledged that there might be some difficulties if he did come to live with you; right?---Yes, your Honour.
What if he runs away?---I don’t believe [Z] would have the inclination to run away.
You don’t think that he would?---No.
…
On 23 October 2023, the mother was asked questions in cross-examination by Counsel for the father relating to an incident that took place in early 2020 post separation. The father had attended upon the mother’s residence for the purposes of collecting the children. The mother alleged that during this changeover the father pushed her in the chest causing her to fall to the ground. The mother, W and X made statements to the police about this incident.
Counsel for the father had four videos played to the mother during cross-examination which were produced by the Police under subpoena which were then tendered as Exhibit 1 in the proceedings:
(a)Exhibit 1 Video 1 – CCTV Footage (being a video taken by a police officer of a screen which was displaying CCTV facing the mother’s residence taken from another residence across the road) (“the Video”);
(b)Exhibit 1 Video 2 – CCTV Footage form a different angle (being a video taken by a police officer of a screen which was displaying CCTV facing the mother’s residence taken from another residence across the road);
(c)Exhibit 1 Video 3 – Police Interview with W; and
(d)Exhibit 1 Video 4 – Police Interview with X.
The 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 witnessed the alleged incident happen.
Prior to asking the father questions regarding the Video, I stated the following:
[Her Honour]: All right. Mr Gardiner, I’ve watched the video of the incident where the mother fell on the floor, and 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 that I can, I think I know who’s there, but I’m not sure. Or alternatively, you and Mr Batey and Dr McConaghy can have a discussion with reference to those times, and there could be an agreement about - - -
MR GARDINER: I’m content for your Honour to watch – to have the video played again and to ask my client some questions about that.
HER HONOUR: I – all right. Thank you. So I will just play the whole video, and then I will go back, and I will just ask you about certain things that I observed, and I just want to have your view about it?---Sure.
Conclusion about apprehended bias
In coming to my determination, I have had regard to the principles that:[16]
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.
And:[17]
…if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
[16] Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (per Mason J) (“Re JRL; Ex parte CJL”).
[17] Ebner at [20].
In 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.”[18] It would, however, be intolerable if a litigant could influence the outcome of an application by suggesting that the decision will be appealed.
[18] Ebner at [20].
In respect of the hypothetical observer, I note:[19]
… 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”
[19] Saklani & Valder [2023] FedCFamC1A 163 (“Saklani & Valder”) at [31] citing Johnson & Johnson at [12].
The reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.[20]
[20] Johnson &Johnson at [13].
Furthermore:[21]
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.
[21] Johnson &Johnson at [13].
The principles in respect of the conduct of child-related proceedings are set out in Division 12A of Part VII of the Family Law Act1975 (Cth). Sub-section 69ZX(1)(e) of the Act permits the Court to “ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.”
I further note that in respect of excessive intervention giving rise to an unfair trial:[22]
Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”.
[22] Nuan & Lei [2023] FedCFamC1A 211 at [15] citing Galea at 281.
The appearance of bias in the present case is said to take the form of prejudgment; prejudgment that the father’s application is not in the children’s best interest. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision."[23] The test is an objective one. The hypothetical observer is no more entitled to make snap judgments than the person under observation.[24]
[23] R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263, as cited in Johnson & Johnson at [12].
[24] Johnson & Johnson at [14].
While objectively, I accept that a preliminary impression of prejudgment may have been created by my questions of the father, such impression would also likely have been altered by my later statements, and in particular the discussions with Counsel for the father. Indeed, the questions of the father were not asked in a vacuum, they were asked after I had listed to the mother’s evidence and asked her some questions, and after I had listened to the father’s evidence.
The transcript references which were specifically identified by the father in his application for recusal, have to be considered in context, not only in respect of the evidence that had been given, but importantly in respect of the task which I was undertaking and the factors which I must consider in coming to a determination about the children’s best interest.
It is the father’s application to this Court that Z and Y live with him. The effect of such an order would be for the four children live in separate households, namely the boys with the father and the girls with the mother.
On 18 February 2022, the Court ordered that Y live with the mother and the evidence is that Y does not live with the mother. The evidence before the Court is that Y has run away and refused to live with the mother pursuant to those interim orders.
It was in that context that I asked the father how I could have confidence that he will comply with any future court order and a number of other questions, in particular, about Y. If anything, such questions highlighted the perils of the mother’s application.
As may be gleaned from the transcript, my questions of the father were an attempt to elicit information from the father, with whom Y lives and with whom, on the evidence, Y appears to have a very close relationship with, about how Y might react in certain circumstances and what might be done to help him. The questions were asked because of the risks which might be posed to Y if an order was to be made for him to live with the mother.
It is well accepted that in parenting proceedings, the Court is not bound by the parties’ proposals. In circumstances where the Court is considering orders that are outside the ambit of what the parties propose, it is a matter of procedural fairness for the Court to canvass with the parties matters that the Court is considering.
In 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.
I do not accept the submissions in the father’s case that I had cross-examined the father with a clear intent to neutralise his criticisms of the mother in respect of the allegation of family violence.
The opinion of the police officers who interviewed the mother and the parties’ daughters is not yet in evidence, but the mother was asked questions about the outcome of the police investigations. I said to Counsel for the father:[25]
…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 [Dr B’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.
[25] T:254.5-15.
As indicated to the parties during the hearing, I do not need to 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. The hypothetical observer would have heard me earlier in the hearing put to the mother that of course she has the capacity to influence her children’s thinking.
I invited counsel to confer about the Video, and to assist me in coming to an agreement about who could be seen in the Video at various points in time. Counsel for the father said that he was content for the Video to be played and for me to ask questions of the father. The Video was tendered in the father’s case.
I 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.
Lastly, I want to say something in respect of the submission 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.[26]
[26] T:258.46-47.
I accept that:[27]
Knowledge of his or her own integrity can sometimes lead a judge to fail to appreciate that particular comments made in the course of a trial may wrongly convey to one or other of the parties to the litigation or to a lay observer an impression of bias.
[27] Vakuata v Kelly at [4] (per Brennan, Deane and Gaudron JJ).
However, after much thought and careful deliberation I do find that the test of whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues to be determined has not been made out. To do anything else in the circumstances, while tempting, would be intellectually dishonest.
There is an inherent tension in child-related proceedings where the fact finder in an adversarial system can only make orders that are in the children's best interests. One might ask rhetorically, how is the fact-finder to do that without asking questions if the parties' cases leave missing things that are clearly relevant? The questions I asked of the parties were as a consequence of my fact-finding role, particularly as these are child-related proceedings. The hypothetical observer would have understood this and come to this view.
I find that the possibility that the hypothetical observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues to be determined is not real and is remote.[28] As recently held by the Full Court of the Federal Circuit and Family Court of Australia (Division 1): “A conclusion of apprehended bias ‘must be firmly established and should not be reached lightly.’”[29]
[28] Saklani & Valnder at [32] citing Ebner at [7].
[29] Saklani & Valnder at [32] citing Re JRL; Ex parte CJL at 352.
It is for all those reasons that I decline to recuse myself from further hearing this matter.
APPOINTMENT OF SINGLE EXPERT FORENSIC PSYCHIATRIST
The Father’s Application
The father’s application is framed in the alternative. He seeks that either:
(a)The parties jointly engage a forensic psychiatrist to provide a single expert report which would include an assessment of the mental health of the mother, including any diagnosis, her ability to care for the children and any recommendation as to treatment and an assessment of the mental health of Z and any related treatment; or
(b)An expert be appointed jointly to enquire and report upon matters relating to the welfare of Y and Z.
The father also seeks an order relating to the matters the expert be requested to consider when completing their report. This includes, inter alia, the:
(a)Nature of the relationship between the siblings;
(b)Likely effect of any change in circumstances;
(c)Capacity of the parents to meet the children’s needs;
(d)Whether the children are at risk of being, or have been, exposed to physical or psychological harm in either parents care;
(e)Family violence;
(f)Attitudes of the parents;
(g)Effect of the children spending substantial and significant time with each parent; and
(h)Views of the children.
The Father’s Submissions
The father submits that that the following facts support his application for the appointment of a forensic psychiatrist in the matter:
(a)The current expert, Dr B, is a clinical psychologist;
(b)Dr B’s report is approximately 20 months old; and
(c)This matter is particularly complex and the Court would be best assisted by having an experienced forensic psychiatrist to give evidence.
The father submits that the matter is particularly complex, and has become more complex over time, because:
(a)The matter went part-heard;
(b)Time is not healing any wounds in the matter;
(c)The parties have become more entrenched in their positions; and
(d)The single expert, Dr B, was not able to speak with one of the children.
It is relevant to note that this submission is made in the context of one child living with the father despite court orders, that child running away from the mother’s residence in the past and the other three children living with the mother and being somewhat estranged from the father.
The Mother’s Submissions
The mother submits that it is not appropriate for a new single expert psychiatrist to be appointed by the Court in circumstances where the current single expert is a qualified clinical psychologist and where such appointment will significantly delay the matter which is in desperate need of a just and swift resolution.
The ICL’s Submissions
The ICL submits that a further single expert report is not required and that it would cause a significant delay in the progress of the matter in circumstances where the best interest of the children are that the litigation come to an end quickly. The ICL notes that the matter has been on foot since 2021 and that the children are aged 12 and 14 years.
In support of this position, the ICL says the following are relevant:
(a)Neither parent of the children have a current mental health diagnosis and there is not sufficient evidence to support the need for a psychiatric assessment of the mother;
(b)It was not put to the mother under cross examination that she had a mental health condition;
(c)Dr B states that any therapy for the children will be up to each of them to decide when and if they are ready to undertake it;
(d)The mother’s evidence is that Z already attends upon a psychologist with such notes able to be subpoenaed;
(e)Further information regarding Z’s current mental health could be elicited by way of further subpoena to his General Practitioner; and
(f)The father has not provided names, costs or availabilities of experts to the parties at the time of filing his application.
Notwithstanding, the ICL says that if a delay in the hearing is otherwise inevitable, an updated report from Dr B would be of assistance to the Court especially apropos of whether the children’s views have changed in circumstances where Y has been living separately from his siblings for a lengthy period of time.
Determination
The matter is listed for continuation of the final hearing in 2 weeks’ time.
There is already a single expert report and the expert is due to give evidence after the conclusion of the father’s re-examination.
I am not satisfied that adjourning the final hearing for a period of some months will be in the children’s best interest. I otherwise accept the submissions of the ICL in respect of the matter.
In respect of a new single expert being appointed to provide a report, including in respect of the mother’s mental health, this is in circumstances where there is no evidence that she suffers from any mental health issues and in circumstances where the application is being made very late in the piece.
In respect of the application in the alternative, the father has had the opportunity to date and particularly prior to the hearing commencing, of making an application for Dr B to complete an updated report and/or to ensure that all children were interviewed. No such application has been made.
There is no satisfactory explanation as to why the application is being made now, when the matter is already part-heard and why it was not made prior to the commencement of the hearing.
I am not satisfied that in the exercise of my discretion that orders as sought by the father in respect of further expert evidence should be made.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 7 March 2024
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