Charters and Webb and Anor
[2018] FCCA 978
•16 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHARTERS & WEBB & ANOR | [2018] FCCA 978 |
| Catchwords: FAMILY LAW – Recusal application by Maternal Grandmother based on alleged findings in an earlier case between the parents in which she was not called to give evidence – Maternal Grandmother brings fresh application for the child to live with her – mother in proceedings supports the Maternal Grandmother’s application but brings no application of her own – Father opposes recusal – application dismissed. |
| Cases cited: British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 Graziers Association of New South Wales v Australian Legion of Ex Serviceman and Women [1949] NSWStRp 16; (1949) 49 SR (NSW) 300 Johnson v Johnson (2000) 201 CLR 488 Livesey & New South Wales Bar Association [1983] HCA 17 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Rice & Asplund (1979) FLC 90 |
| Applicant: | MS CHARTERS |
| First Respondent: | MR WEBB |
| Second Respondent: | MS GUTHRIE |
| File Number: | SYC 7278 of 2017 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 21 February 2018 |
| Date of Last Submission: | 21 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr Lawrence |
| Solicitor for the First Respondent: | Acorn Lawyers |
| The Second Respondent appeared in person |
ORDERS
The Maternal Grandmother’s Application in a Case filed 12 January 2018 is dismissed.
Any application for costs proceed by way of written submissions and be determined in Chambers.
The Applicant for costs file and serve written submissions not exceeding 500 words within 21 days.
The Respondent to such an application file and serve written submissions not exceeding 500 words within a further 21 days.
Any submissions in reply not exceeding 200 words be filed and served within a further 14 days.
IT IS NOTED that publication of this judgment under the pseudonym Charters & Webb & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7278 of 2017
| MS CHARTERS |
Applicant
And
| MR WEBB |
First Respondent
| MS GUTHRIE |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case is essentially about [X], born 2012, now five years old. On 16 December 2016 I made orders, and published reasons for judgment which were reported as [2016] FCCA 2285. In that judgment I made orders which reversed what was the then existing care arrangement, so that [X] was to live with her Father, instead of her Mother. The case about [X] was heard over five days and my reasons for judgment went to 675 paragraphs. As I said in my opening comments, at paragraph 1 of that judgment:
This is a difficult, complex case.
Since then, a number of things have happened. [X] went into her Father’s care, in accordance with my orders. The Mother filed an appeal, but this was subsequently withdrawn. In September 2017 the Mother commenced contravention proceedings, but this was subsequently withdrawn and dismissed. Significantly, in the present context, on 7 September 2017 the Maternal Grandmother commenced proceedings seeking orders that [X] live with her. On 27 October 2017 the Mother filed an Application in a Case in which she sought orders that [X] live with her. On 27 November 2017 the Mother also filed a Response to the Maternal Grandmother’s Application. On 21 December 2017 the Father filed a Response to the Mother’s Application in a Case and then on 11 January 2018, a Response to the Maternal Grandmother’s Application.
The present reasons for judgment, however, relate to an Application in a Case filed by the Maternal Grandmother on 12 January 2018.
The Recusal Application
The Maternal Grandmother’s Application in a Case filed 12 January 2018 seeks two orders:
i)That Judge Altobelli recuse himself from presiding over this matter.
ii)That Judge Altobelli be disqualified from presiding over current and future matters that involve the child, [X], born 2012.
The Court notes that, in effect, the two orders seek the same thing, and that is that I would be recused from continuing to deal with the proceedings relating to [X]. It was not seriously contended that I should not hear the recusal application and, indeed, not hearing the recusal application would be unusual.
By way of the Father’s Response to an Application in a Case filed 30 January 2018, he seeks an order that the Maternal Grandmother’s application in a case filed 12 January 2018 be dismissed, and that she pay his costs on an indemnity basis.
The Mother did not file a response to the Maternal Grandmother’s Application in a Case. Indeed, the Court did not require that of her. The Mother was asked to articulate her position in relation to the Maternal Grandmother’s Application. On 16 January 2018 the Mother indicated to the Court that whilst she does not join in with the Maternal Grandmother’s Application for recusal, she supports it. This was duly noted in the Orders made 16 January 2018. It is important to observe, however, that the Court is dealing, therefore, with the Maternal Grandmother’s Application for recusal, and not any such application by the Mother.
The Maternal Grandmother’s Application in a Case was supported by her affidavits filed 12 January 2018 and 20 February 2018. The Maternal Grandmother had already filed quite extensive written submissions in support of her application on 12 January 2018.
The Father’s response to the Maternal Grandmother’s Application was supported by his affidavit filed 30 January 2018. He also relied on written submissions prepared by his Counsel, which were filed 30 January 2018.
The Mother relied on no specific evidence, in the context of the recusal application.
The matter came before me on 21 February 2018 so that I might hear oral submissions. The Maternal Grandmother, and the Mother, represented themselves in the Applications before the Court. The Father is represented by his solicitor, and Counsel, Mr Lawrence.
The Maternal Grandmother’s submission as to my recusal had three components. She argued that I should recuse myself because, firstly, my role in the matter was functus officio. She submitted, secondly, that there was a reasonable apprehension of bias should I continue to hear the matter relating to [X]. Thirdly, she submitted that a ground for my recusal was the procedural unfairness that she experienced at the substantive trial. It is convenient, in these reasons for judgment, to deal with the functus officio submission first, the procedural unfairness submission second, and the reasonable apprehension of bias submission third.
Am I Functus Officio?
Without providing authority in support of her submission, the Maternal Grandmother contended that as I made final orders in relation to [X] on 16 December 2016, that meant that I was functus officio, and could no longer preside over any subsequent matters in relation to her.
I note that Order 16 made on 16 December 2016 specifically contemplated that any application in relation to [X] might come before me. That orders states:
Any application to enforce, implement, suspend, set aside or vary these Orders should be listed in the first instance before Judge Altobelli, if he is reasonably available and subject to any application that a parent may wish to make.
As the order itself contemplates, however, either parent would be free to make an application for me to recuse myself in a subsequent application. The Maternal Grandmother was not, of course, a party to the original proceeding. That in itself, one would have thought, would make it difficult for the Maternal Grandmother to assert that I was functus officio.
In any event paragraphs 15 to 19 of the written submissions provided by Mr Lawrence, Counsel for the Father, correctly addresses the submission that the Maternal Grandmother makes:
15. The Court has jurisdiction to deal with parenting matters arising under Part VII of the Family Law Act 1975 (Cth). These proceedings arise under Part VII. Indeed the maternal grandmother filed an Initiating Application seeking orders under Part VII in respect of the child. Further, the mother also seeks orders under Part VII. Thus, there are applications under Part VII before the Court, the Court has jurisdiction to deal with the applications, and Judge Altobelli may exercise the Court’s powers as a judge of the Court.
16. The Court – and specifically, Judge Altobelli – heard and determined earlier applications under Part VII in respect of the child, in 2016. Following the Orders made on 16 December 2016 there were no applications pending before the Court and, accordingly, the Court became functus officio.
17. The principle of functus officio was recently explained by Thackray J (with whom Kent and Loughnan JJ) in Pawley and Pawley (No 2) [2017] FamCAFC 136 at [29]:
I accept that insofar as the interim applications were concerned, the primary judge was functus officio, at least pending further application by either party for variation of those orders. As Jordan CJ explained in Graziers Association of New South Wales v Australian Legion of Ex-Serviceman and Women [1949] NSWStRp 16; (1949) 49 SR (NSW) 300 at 303:
The general rule, as established by the authorities ... is that “when an arbitrator or judicial officer has given his award or adjudication ... he is functus officio, and cannot add to, amend, or detract from what he has done”; although in some jurisdictions an adjudication is not regarded as having been finally made until it has been passed and entered ... This rule applies to judges exercising judicial authority conferred by statute, unless otherwise provided by statute...
18. Although in that case his Honour was commenting upon an interim application, the principle applies equally to applications for final orders. That is, the Court may be functus officio when it has dealt with pending applications and there are no applications before it to adjudicate, unless and until any further application is made.
19. In this case, further applications are indeed before the Court. The Court is not functus officio. His Honour Judge Altobelli as a judge of the Court may exercise the Court’s powers.
The Court accepts these submissions, and the statement of law referred to. The Court further observes that it has a duty to hear the Application in relation to [X], until an order is made to the contrary.
By way of the Maternal Grandmother’s substantive application filed 7 September 2017, she seeks different orders in relation to [X]. She has properly invoked the jurisdiction of this Court in relation to [X]. I am vested with jurisdiction to hear the Maternal Grandmother’s application. Given my familiarity with this long-running case in relation to [X], one would have thought that it was both in the public interest, and in [X]’s interests, that I would be vested with the responsibility to determine this matter, subject to any recusal application. I am certainly not functus officio in relation to the Maternal Grandmother’s application. With respect to the Maternal Grandmother, she may have misunderstood the concept of functus officio.
The Procedural Unfairness Argument
At paragraph 43 of the Maternal Grandmother’s written submissions on this issue she correctly states that procedural fairness and natural justice requires that a Court give any litigant a reasonable opportunity to present evidence and to make submissions in support of his or her case. That statement is unquestionably correct. The Maternal Grandmother has, hitherto, not been a litigant or participant in any proceedings relating to [X]. Indeed, she was not even called to give evidence in the proceedings that led to the orders made 16 December 2016. At various parts in my lengthy reasons for judgment I lament the fact that I did not have the benefit of the Maternal Grandmother’s evidence. [X]’s relationship with her Maternal Grandmother was an important issue in the case. The Court can only infer that the decision was made by the Mother, who was represented by an experienced solicitor, that the Maternal Grandmother should not give evidence in the Mother’s case. That was unfortunate, from the Court’s perspective. With respect, however, that can hardly be a denial of procedural fairness to the Maternal Grandmother who was present throughout most, if not all of the proceedings and could have, at any time, made an application to intervene.
During submissions from the Maternal Grandmother a theme seemed to emerge which suggested that it was the Court’s obligation, somehow, to call her as a witness, or to require her to participate in the proceeding as a party. Even if it could be said that the Court had such a power, and the Maternal Grandmother certainly did not identify such a power, one wonders why the Court would be compelled to exercise such hypothetical power in circumstances where the Mother was legally represented, and the Maternal Grandmother was herself present throughout the proceedings?
Counsel for the Father deals with this submission at paragraphs 30 to 35 of his written submission. These are reproduced below:
30. The maternal grandmother complains she was not afforded procedural fairness, in particular by Judge Altobelli, during the 2016 hearing and in relation to the Orders made on 16 December 2016. Exactly how this is relevant to the maternal grandmother application that his Honour recuse himself from the present matter is unclear.
31. However, a number of observations are immediately pertinent to that contention:
(a) On her own evidence, the maternal grandmother was entirely aware of the 2016 proceedings. She attended Court throughout the trial and consulted with lawyers.
(b) On her own evidence, the maternal grandmother had been involved in earlier proceedings concerning the child, and indeed had made an affidavit in those earlier proceedings.
(c) There were not, and have never been, orders for the child to live with or spend time with the maternal grandmother, or reposing any parental responsibly for the child with the maternal grandmother.
(d) The maternal grandmother relationship with the child was as a grandparent. To the extent she was involved in the care of the child it was via the parents, specifically the mother.
(e) It may have been open to the maternal grandmother, to seek to intervene in the proceedings in 2016 if she herself was seeking orders in relation to the child.
(f) In 2016 the Court had before it applications by the father and mother about the living and care arrangements for the child. The maternal grandmother as an observer was acutely aware that the father sought orders for the child to live with him. The child had until that time lived with the mother, in the same household as the maternal grandmother or nearby. The maternal grandmother thus must have been acutely aware during the 2016 proceedings that the Court might make orders in accordance with the father’s application such that the child would live primarily with the father.
(g) The mother’s evidence at trial was that the maternal grandmother supported her (the mother’s) application.
32. In her submissions the maternal grandmother complains the 2016 orders affected her “rights” without her having an opportunity to be heard. With respect, she had no “rights” in relation to the child.
33. The submission misconceives the Orders. The Orders do not remove the child’s relationship with the maternal grandmother.
34. In any event, the maternal grandmother was not entitled to procedural fairness. She was not a litigant, or a party to the 2016 proceedings and the orders did not affect her “rights”, in the sense that she was entitled to procedural fairness. Order 5(a)(ii) operates against the mother.
35. In the alternative, the maternal grandmother was aware of the Orders and judgment of 16 December 2016 but has taken no steps and made no complaints in relation to any lack of procedural fairness until now.
The Court accepts these submissions, and formally agrees to them.
There is no basis at law, or on the facts, for the Maternal Grandmother’s submission and, in any event, it is not a ground for recusal.
The Apprehended Bias Submission
Most of the Maternal Grandmother’s submissions were in support of this point. In substance, the Maternal Grandmother contends that in my reasons for judgment delivered on 16 December 2016, I formed an adverse view about her in the context of that litigation such that, presumably, I could not decide her current application in relation to [X] on its legal and factual merits. In her oral submissions the Maternal Grandmother contended that the Court, constituted by myself, had expressed 58 opinions and findings about her based on evidence which the Maternal Grandmother described as “hearsay”. Thus, according to her, the fair-minded lay observer would conclude there exists a reasonable apprehension of bias, or prejudgment, on my part.
The Maternal Grandmother’s affidavit filed 12 January 2018 sets out, in considerable detail, the problems that she perceives with my judgment, and in particular how they unfairly, and improperly, draw negative or adverse conclusions in relation to the Maternal Grandmother. Much of what the Maternal Grandmother refers to, however, does not assist her case. The Court expresses its understanding, however, that the Maternal Grandmother would have found it difficult to read my reasons for judgment without having an emotional response in relation to how that judgment reflected on the evidence about her involvement in [X]’s life.
The Maternal Grandmother complains, for example in her affidavit, that I formed an opinion, impression, and made findings in relation to a myriad range of factors, some of which informed the Court’s final decision about [X]. With great respect to the Maternal Grandmother, she misunderstands what she needs to establish as a matter of fact, and law, before I must recuse myself.
A recusal application is not, for example, an opportunity for any person who is unhappy with a decision I have made to try to convince me of the errors made, both factually and at law, so that I might recuse myself. A recusal application is not hearing an appeal from one of my own decisions. The Mother had the right to appeal my decision. It appears that she did so, but ultimately did not pursue the same.
In the Mother’s affidavit she does try to identify what I said, that she believes would lead me to decide her substantive application other than on its legal and factual merits. The focus in the present context must be, therefore, on what I said about her, not what I said about the Mother, or the Father. Even so, the Maternal Grandmother’s complaints are legion. It is neither necessary, not appropriate, for me to deal with every single one of the Maternal Grandmother concerns. I observe, however, that some of her complaints seem to lack objective basis. For example, at paragraph 58 of her affidavit filed 12 January 2018 she makes two comments that are palpably incorrect. Firstly, she asserts that her “rights were removed”. Putting aside whether the grandmother indeed did have rights, the Court was making a decision in a dispute between [X]’s parents. Even if the Maternal Grandmother did have “rights” the orders the Court made did not remove them. There was no restriction whatsoever, for example, on the Maternal Grandmother spending time with [X] when the Mother spends that time. Even though order 5(a)(ii) of Orders made on 16 December 2016 states that no member of the Mother’s family may be present when she spends time with [X], that order is only applied up to 2018 when [X] commenced school.
Moreover, at paragraph 58, and referring to identified paragraphs of my reasons for judgment, she contends that I “was serious critical” of her. The Maternal Grandmother refers to paragraph 16 where I set out certain background facts drawn from the evidence before the Court. In the last sentence I observed:
...the impression created from the evidence overall is that their relationship fluctuated in earlier stages of the Mother’s life.
With respect, apart from this being a reasonable, background observation to make based on all the evidence before the Court, it is hardly criticism.
The Maternal Grandmother construes paragraph 181 as “seriously critical”, when it merely refers to the evidence, and specifically diary entries of 3 March 2015 (where the evidence before the Court was quite clear that the diary was a joint enterprise between the Mother and Maternal Grandmother), and suggested that this evidence tended to indicate that there was a measure of anxiety in the home, such that the Maternal Grandmother would ring both a psychologist and the Department of Family and Community Services on the same day. There is no criticism of the Maternal Grandmother in that paragraph. It simply states facts, and makes an observation that this Court believes was entirely reasonable to make on the material before it.
The same may be said of paragraphs 204, and 247. The latter makes no criticism of the Maternal Grandmother whatsoever.
Clearly, the Maternal Grandmother has interpreted almost any reference to her in the reasons for judgment as being “seriously critical” of her when on any objective basis that is not the case.
The Court acknowledges the reality, however, that the Court was critical of the Maternal Grandmother. There are many examples of this in the reasons for judgment. They do not need to be identified or articulated. All that can be said is that based on the evidence that was before the Court, the Court was entitled to make the findings that it did, in the absence of the Maternal Grandmother’s evidence to the contrary. That does not mean, of course, that the same result would arise if the Court did have the benefit of the Maternal Grandmother’s evidence.
In some respects, the Court can understand why the Maternal Grandmother would be upset about the things said of her in the reasons for judgment. Her upset would be greatly amplified, no doubt, if the observations made were spurious, and without any evidence. Perhaps, if the Maternal Grandmother has a complaint, it should be addressed to the Mother, and those representing her, who seem to have made a conscious choice not to lead evidence from the Maternal Grandmother. It is not necessarily grounds for recusal on a subsequent application by the Maternal Grandmother herself. Thus, the Maternal Grandmother may well have identified what it is that I said in my reasons for judgment on 16 December 2016 that might present her in a poor light, but that does not mean that those things were said without a legal and factual basis. Precisely the opposite is correct.
Moreover, and the more substantial flaw in the Maternal Grandmother’s application is that she has failed to establish how anything that might have been said of her in the proceedings between the parents in which she did not participate by way of giving direct evidence, and which resulted in my orders and judgment of 16 December 2016, would somehow prevent me from deciding her current Application in [X] in circumstances where she does propose to give evidence in person. If the Maternal Grandmother gives evidence in support of her substantive application filed 7 September 2017, and the Court can only assume that she will do so, then how does it follow that a fair-minded lay observer would conclude that I would not be unbiased? The Maternal Grandmother did not give evidence in the proceedings that concluded on 16 December 2016. She was not a party to the proceedings. She was not a witness in the Mother’s case. In the present proceedings, she is not just the Applicant, but presumably will be a witness in her own Application. The Court will have the benefit of that which it lamented that it did not have in the previous application relating to [X], i.e., the Maternal Grandmother’s personal evidence. It is this Court’s view that the fair-minded lay observer would be sufficiently understanding of the legal process to know that a case might be very different in terms of its outcome if a witness is called, as opposed to not being called to give evidence. All of those matters that were impressions, opinions and findings based on other evidence could be satisfactorily addressed by the evidence in person of the Maternal Grandmother.
The fair-minded lay observer must be deemed to be someone with ordinary intelligence, knowledge and common sense. The fair-minded lay observer will understand the difference between a case where a witness gives evidence, and a case where a witness does not. The fair-minded lay observer, reading my reasons for judgment delivered on 16 December 2016, would see the difference.
The present Application is not one where, for example, the Maternal Grandmother gave evidence, and I formed an adverse view about her credit. I did not have the benefit of the Maternal Grandmother’s evidence, something which I lamented several times during the course of the trial.
The submissions of Mr Lawrence, Counsel for the Father, on this issue are found at paragraphs 20 to 27 and bear reproduction:
20. The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias 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”: Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
21. The fact that the judge has made findings in related proceedings which are critical of the recollection, credit and behaviour of those who are also parties to a case in which the same issues of fact and credit would arise for determination, will normally be a ground for disqualification: Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288. Express acknowledgment by a judge who is asked to try an issue that he or she has previously determined that different evidence may be led at the later trial may be insufficient to remove the impression that the judge’s previous views might influence the determination of the same issue in the later trial: see British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 where a judge was disqualified after making relevantly unqualified findings of serious fraud against a party.
22. Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 involved an apprehended bias objection by the defendants. The judge had heard and determined interlocutory applications against the defendants ex parte. Thus there is some analogy to the present matter, where the maternal grandmother relies upon how his Honour Judge Altobelli dealt with the proceedings in 2016, when she was not a party or participant. The High Court held that the issues at trial were unrelated to the issues in the interlocutory applications. Hence there was no reason to conclude that there was a reasonable apprehension of bias on the part of the judge.
23. The plurality stated (footnotes omitted):
[63] In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that "[t]he 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". So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
24. The plurality set out the course of evaluating the issue (footnotes omitted):
[68] …The central and determinative question for this aspect of the matter was: might what was done in connection with MWP's ex parte applications reasonably cause a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the resolution of a question for decision at the trial?...
[69] …In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
[72] In none of the applications was Einstein J required to make, and in none of the applications did he make, any determination of any issue that was to be decided at trial. … But in none of the applications was it necessary for Einstein J to make any finding about the reliability of any party or witness, and in none did he make such a finding. Nor was Einstein J required to make any choice between competing versions of events. All that was required, and all that was found, was that there was apparently credible evidence of a sufficient risk of dissipation of assets to warrant making the confidentiality orders that were made.
25. The issues heard and determined by the Court in 2016 are not the same issues the Court will be called upon to determine at the trial, or interim hearing, of the current proceedings. Namely, whether to make the parenting orders now sought by the maternal grandmother. Those orders were not in contemplation in 2016, there was no evidence touching upon such arrangements, the maternal grandmother was not a witness. The current application will be determined on evidence of facts at the time of trial, and what is in the child’s best interests at that time, not 2016.
26. None of the submissions of the maternal grandmother identify specifically a connexion between how his Honour dealt with the matter in 2016 and the possibility of prejudgment of matters now for trial. Rather, at their highest the submissions agitate a number of arguments contrary to how the Court acted in 2016; but such disagreements do not automatically equate to bias. Of course, the 2016 Reasons for Judgment of his Honour will be admissible in any subsequent proceedings, regardless of the particular judge who presides. Thus whatever judge hears the matter will have regard to that judgment. To the extent the Court made findings in that judgment which are relevant to the current matter they will be taken into account but determined in the usual way. There is no specification of why, a fair-minded lay observer might reasonably apprehend that in particular his Honour Judge Altobelli, might not bring an impartial and unprejudiced mind to the resolution of the questions the Court is required to decide.
27. The maternal grandmother’s submissions misconceive the 2016 Reasons for Judgment and findings (e.g. that her rights had been removed on assumption: par 16), are factually inaccurate (e.g. that all the favourable evidence was ignored: par 17), irrelevant (e.g. the courts’ qualifications to assess risk: par 27; costs of time and distance incurred by the maternal family: par 32), and speculative (e.g. “even if the courts had known about our aboriginality it is hard to see that Judge Altobelli would have given it any weight”: par 34).
The Court accepts these submissions.
The Court understands that the Maternal Grandmother was probably unhappy with the outcome of her daughter’s application, and with the judgement that was critical of her. That does not mean that I could not hear any application brought by the Maternal Grandmother, in which she does give evidence, otherwise than on the merit of the case. My duty is to hear the case.
Even if this case could be construed as one where I have made an adverse ruling against the Maternal Grandmother (and I am not convinced that this is the case), the Maternal Grandmother has to establish more than that she personally does not believe I can hear her case without some form of bias. If the legal principle were as the Maternal Grandmother articulates, it would encourage delay and waste judicial resources, and encourage tactical applications. The fair minded lay observer would not share the Maternal Grandmother’s strong emotions about this issue. The fair minded lay observer would have sufficient detachment to known and understand the important distinctions that have been made in these reasons for judgement.
It must follow that the Maternal Grandmother’s application fails and must be dismissed.
The Mother’s Support of the Maternal Grandmother’s Recusal Application
As foreshadowed, whilst the Mother supports the Maternal Grandmother’s recusal application, she does not make an application on her own part. This is unsurprising and suggests, with respect, that the Mother might have a greater appreciation of the nature and complexity of such an application beyond that of the Maternal Grandmother. As Mr Lawrence submitted at paragraph 29 of his written submission, the reasons for judgment published 16 December 2016 do not create an estoppel which prevents the Mother from re-litigating this issue, subject to any Rice & Asplund (1979) FLC 90 issue. What is interesting, of course, is that even though the Mother supports the Maternal Grandmother’s application regarding [X] on an interim basis, she seeks final orders that clearly are in contest with those of her own Mother. The Mother, in her Application in a Case filed 27 October 2017, does not even propose an order for [X] to spend time with the Maternal Grandmother, which is unusual in circumstances where there appears to be a live with issue between the Mother and Grandmother about where [X] should live. In the Maternal Grandmother’s substantive application filed 7 September 2017, she proposed that the Mother have reasonable supervised contact with [X] for three months, on the second and fourth weekend of the month, thereafter to become unsupervised.
The Mother does not seek my recusal, but a third party, the Maternal Grandmother does. In some respects, that is a curious situation. It is hard to see how a third party such as the Maternal Grandmother, who did not give evidence at the substantive hearing, should be in a more advantageous position to the Mother, in seeking the recusal of the trial judge.
Of course, there are powerful policy considerations which are no doubt at play. From [X]’s perspective, it is arguably not in her best interests for a completely different judge to acquaint herself or himself with the long history of this matter, in any subsequent application relating to [X]. Arguably, it is not in the public interest either. That does not mean, of course, that a trial judge cannot be asked to recuse herself or himself, or should not do so. It merely suggests that in children’s cases this is a relevant factor to be taken into account.
As the High Court said in Livesey & New South Wales Bar Association [1983] HCA 17 at [18]:
Necessity and the extraordinary case (see, e.g., Ex parte Lewin; Re Ward (1964) NSWR 446 at 447) make it impossible to lay down an inflexible rule; each case much be determined by reference to its particular circumstances.
The focus, for present purposes, is not on the High Court’s reference to any concept of necessity, or the extraordinary case, as it is not suggested that the present one falls into either category. Rather, the focus is on the subsequent comments which suggest that the principles governing recusal application are not fixed, and each case must be determined by reference to its particular circumstances.
The High Court in Livesey referred to the decision of McClemens J in the NSW Supreme Court Ex parte Lewin; Re Ward [1964] NSWR 446. At 455 in His Honour made the following observations about judicial officers hearing the same type of case:
On the other hand, sometimes consideration of common sense requires that judges and magistrates do have before them litigation of the same type. This can make for efficiency and can make for greater justice because the judge or magistrate can become familiar with the particular field in which he has to work; for instance; it would be almost impossible for a judge on the common law side quickly and efficiently to take over from one of the land and valuation judges. Similarly circumstances may arise in which it would be intensely desirable that all of a particular bracket of cases should be heard by one judicial officer, but in relation to these matters no rules can be laid down except ordinary rules of justice and fairness directed to the efficient discharge of judicial business.
Indeed at 454 McClemens J stated:
Had the magistrate used terms of less becoming moderation, different considerations might well have arisen, but he makes it plain that his attitude in this matter would be that he would have no hesitation in coming to the decision he thought was right on the facts as he found them. It may be that in this case different witnesses might be called; it may be that the witness who is supposed to have given evasive evidence might create in this case an unfavourable impression in cross-examination of a sort that he did not create in the first. It may be that other evidence might be adduced which might affect the inferences that the magistrate might draw. Certainly nothing has appeared to indicate that Ward, S.M, would approach this matter with anything in the nature of a closed mind, and though it would only be logical if the evidence were exactly the same to assume that he would come to the same conclusion, that is only logical because if evidence is true on one occasion it is not irrational to expect that the same evidence will be equally true on another occasion.
There is no legal basis for my recusal in this case.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 16 May 2018
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