CIMORELLI & WENLACK
[2020] FamCA 615
•27 July 2020
FAMILY COURT OF AUSTRALIA
| CIMORELLI & WENLACK | [2020] FamCA 615 |
| FAMILY LAW – COURTS AND JUDGES – Apprehension of bias – Waiver – Where the mother contends that the cumulative effect of comments made at several court events and the general management of the proceedings would cause a reasonable person to fear deviation from the course of determining the parties’ parenting dispute on its merits – Where the mother also contends prejudgment of substantive matters in the parenting dispute – Application of the two-step test in disqualification applications on the ground of apprehended bias – Consideration of any actual bias – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Bulow & Bulow [2020] FamCAFC 120 Cimorelli & Wenlack [2020] FamCAFC 58 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Johnson & Johnson [2000] HCA 48; 201 CLR 488 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 Tong & Niem [2020] FamCAFC 27 Watson & Watson (2002) FLC 93-094; 28 Fam LR 481 Wenlack & Cimorelli [2019] FamCA 755 Wenlack & Cimorelli (No. 2) [2019] FamCA 790 Wenlack & Cimorelli (No. 4) [2019] FamCA 854 |
| APPLICANT: | Ms Cimorelli |
| RESPONDENT: | Mr Wenlack |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Sydney |
| FILE NUMBER: | SYC | 2881 | of | 2013 |
| DATE DELIVERED: | 27 July 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 17 April 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Friedlander |
| SOLICITOR FOR THE APPLICANT: |
| SOLICITOR FOR THE RESPONDENT: | Self represented litigant |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Sydney |
Orders
The mother’s application that I recuse myself from further hearing the matter is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cimorelli & Wenlack has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: SYC 2881 of 2013
| Ms Cimorelli |
Applicant
And
| Mr Wenlack |
Respondent
REASONS FOR JUDGMENT
Introduction
Since April 2019 the parties have been engaged in a second set of proceedings concerning the parenting of their three children.
On 20 November 2019 I delivered judgment[1] (“the November 2019 judgment”) after conducting a hearing on 1 November 2019 concerning the children’s interim arrangements pending final hearing.
[1]Wenlack & Cimorelli (No, 4) [2019] FamCA 854.
On the same date the November 2019 judgment was delivered the mother filed an application that I recuse myself from further hearing the matter. It is the mother’s case that I am required to disqualify myself on the basis that a fair minded lay observer might apprehend that I may not bring an impartial mind to the resolution of the dispute. This hypothetical observer it is contended may apprehend that I have prejudged the parties’ dispute as revealed in the manner that I have approached the proceedings since a case management event court event on 17 September 2019.
The maternal grandparents who are parties to these proceedings did not take a position in relation to the recusal application.
The father and Independent Children’s Lawyer (“ICL”) seek that the mother’s application be dismissed.
Background
In order to understand the contentions upon which the mother relies in support of her application, I set out the following background to the proceedings and events.
Following the breakdown of the parties’ marriage in April 2013 the father commenced proceedings as to the future parenting of the parties’ three children. In those proceedings the mother took the position for some time that the father posed risks of various types to the children including a risk of harm arising from sexual abuse.
The earlier proceedings were finalised in August 2015 with orders made with the consent of the parties (“the August 2015 orders”) providing for a gradual increase in the father’s time leading to an equal shared care arrangement. An order was also made that the parties have equal shared parental responsibility for the three children. It was noted at the time the 2015 orders were made that the mother accepted that the father posed no unacceptable risk to the children on the available evidence.
The children then lived with the parents in the care arrangement provided for under the August 2015 orders until around March 2019.
From about March 2019 the children spent no time with the father for about four weeks and thereafter spent very limited time with him. It appears that the children’s anxiety had been intensifying during the first few months of 2019. It was the mother’s view that the children were dissatisfied with their care arrangements and wanted to spend more time with her, while the father was becoming concerned that the children were rejecting him or becoming aligned with the mother for no reason.
A series of events (as set out in the November 2019 judgment) caused the father concern about the risk of harm posed to children in the mother’s care and resulted in him commencing further proceedings on 16 April 2019. In particular it appeared to the father the mother’s anxiety about risks posed by him to the children had been reawakened and that the children were coming to form false beliefs about him which the mother was permitting to flourish in her household.
There were some early court events in connection with the father’s application to revisit the parenting arrangements including an event before a Senior Registrar in which an expert based in Melbourne (“the expert”) was appointed with the parties’ consent to provide a report in the proceedings. The assessment appointments with the expert were to take place in October 2019.
The history of the proceedings that followed and events which the mother contends give rise to the recusal application is extracted from the November 2019 judgment as follows:
47. On 17 September 2019 there was a court event before me in which I dealt with various application and in particular an application by the father to change the appointment date with the expert, for orders relating to instructions for the expert and orders to facilitate the appointments. The appointments with the expert were confirmed for 2 October 2019 and various orders were made to facilitate the assessment interviews proceeding. On that date the proceedings were expedited and were to be relisted upon release of the expert’s report.
48. On 2 October 2019 the father attended upon the expert for the purposes of the assessment interviews and although he had complied with all orders in relation to facilitating the children’s attendance at the interviews the mother did not attend upon the expert or make the children available.
49. As the ICL had been given liberty to relist the proceedings before me in the event that there were any difficulties in relation to the attendance of the children at appointments with the expert, the ICL sought an urgent relisting of the proceedings. Orders in relation to a court event on 4 October 2019 also included a direction that the mother present the children to Child Dispute Services at 9.30am on 4 October 2019.
50. The mother did not bring the children to Child Dispute Services on 4 October 2019 and after an initial appearance left the court room and ultimately the court precincts on that day. For reasons which were given in an ex tempore judgment on 4 October 2019[2] I made various orders including a Recovery Order for the children to be returned to the care of the father and orders that the children live with him, he have sole parental responsibility, that the mother’s time with the children be suspended and that the parents be restrained from removing the children from Australia and associated watch list order.
51. I was conscious that although the orders were made during the school holiday period further consideration would need to be urgently given to the children’s circumstances including time with their mother and appropriate arrangements for their schooling. The first available date for a court event to consider such matters was ten days later, on 14 October 2019 the day after the school term commenced.
52. Although there are some differences in the respective accounts of the parties about the execution of the Recovery Order there is no dispute that later on 4 October 2019 the father attended upon the mother’s home with his sister at the request of police who were given authority to recover the children where there were a large number of other people in attendance. The children were apparently highly resistant to going with police and after a few hours the police left the mother’s premises without them.
53. It also does not appear to be in dispute that the following day a number of police officers again attended the mother’s home and recovered the children. Initially the parties’ two daughters successfully passed into the father’s care at a park near the mother’s home but the middle child ran back into the mother’s home and was successfully recovered by police later that day.
54. On 14 October 2019 rather than proceed with any application in relation to the interim parenting arrangements for the children the mother made a further application through counsel who had been retained by that stage to discharge the appointment of the court expert which was dismissed for reasons given at the time[3]. When dealing with the issue of the expert I also dealt with a new date for his appointments which took some time. It was confirmed that he would be coming to Sydney and those appointments were to take place on 13 November. There was also insufficient information on that date in relation to the one particularly urgent issue that required determination, being the interim arrangements for the children’s schooling. This matter was adjourned for determination two days later on 16 October 2019.
55. The court event on 16 October 2019 was concerned only with the issue of the children’s schooling for the short period prior to the 1 November interim hearing.
56. On 1 November 2019 I heard the competing applications in relation to interim parenting arrangements.
[2]Wenlack & Cimorelli [2019] FamCA 755.
[3]Wenlack & Cimorelli (No. 2) [2019] FamCA 790.
On 20 November 2019 judgment was delivered and orders were made in relation to the interim parenting arrangements for the children. These included an order suspending the August 2015 orders and providing for the children to live with the father and that he have sole parental responsibility for them. Orders were made that the mother spend supervised time with the children at a contact centre as nominated by the ICL for a period of two hours per fortnight and such other additional time as may be accommodated by the contact service.
On the same day judgment was delivered and these orders were made the mother filed an application that I recuse myself from further hearing in the proceedings.
The mother also filed an appeal in December 2019 against the November 2019 orders which was dismissed by the Full Court on 23 March 2020[4] around three weeks prior to hearing this application.
[4]Cimorelli & Wenlack [2020] FamCAFC 58.
The mother’s application for recusal was first listed before a Registrar on February 2020. It was then listed before me a few days later on 18 February and on that date fixed for hearing on 17 April 2020.
The Application
With one exception where actual bias is alleged, the mother’s application is based upon the contention that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the matters that are to be determined in the proceedings.
In her Case Outline the mother, under the name of her counsel, sets out in great detail a number of grounds which she contends might lead a fair minded observer to apprehend bias. At the hearing the mother’s counsel withdrew some of the contentions when asked to clarify or make submissions in relation to the evidence said to support them.
I understand the mother’s case to be that the cumulative effect of comments made by me at several court events as well as my general management of the proceedings and the November 2019 judgment would cause a reasonable person to fear that I may deviate from determining the parties’ parenting dispute on its merits.
The issues will be explored in the manner they are addressed in the mother’s Case Outline. This involves a consideration of general contentions the mother makes about my management of the proceedings and conduct at the following court events:
·17 September 2019 – a case management event in relation to the father’s application concerning the expert.
·4 October 2019 – a court event in which a Recovery Order and short term interim orders were made.
·14 October 2019 – a court event at which the mother sought discharge of the expert.
·16 October 2019 – a court event relating to the question of where the children were to attend school prior to the 1 November interim hearing.
·1 November 2019 – the hearing of the parties competing applications regarding the interim arrangements for the children.
·20 November 2019 – delivery of the interim judgment.
In accordance with the approach taken in the mother’s Case Outline I will also separately examine the court events of 4 October 2019 and 1 November 2019 in which the mother identifies particular matters additional to her general contentions about my management of the proceedings. So far as the 1 November 2019 hearing is concerned, the mother alleges actual bias.
Waiver?
The issue of waiver raised by the ICL must first be considered given the delay between the events said to ground the application and the filing of the mother’s application for recusal.
The first court event at which the mother identifies matters that she contends give rise to the apprehension of bias is 17 September 2019. There were four further court events following this date and more than two months passed before the mother filed the application for recusal on 20 November 2019.
The issue of waiver was explored in the recent Full Court decision of Tong & Niem[5] which applied the High Court decision of Michael Wilson & Partners Ltd v Nicholls[6] where Gummow ACJ, Crennan and Bell JJ said at [76]:
It is well established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias. (It may well be that the principle extends to criminal proceedings but that issue need not be considered.) If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection.
(Footnotes omitted)
[5][2020] FamCAFC 27.
[6] (2011) 244 CLR 427.
In the Tong & Niem the Full Court said that the question of waiver involves a “fact based inquiry” with the question to be answered being whether the application for disqualification was made as soon as reasonably practicable.
It is submitted on behalf of the mother that she cannot be considered to have acquiesced in the proceedings by not taking objection as she was not legally represented at several court events which she identifies as grounding the application. Further, it is argued that her delay in bringing the application was not significant especially as she was at times unrepresented and at various points lodging appeals.
The record indicates that the mother was represented by a solicitor or counsel at all but one of the events following 17 September 2019 (4 October 2019). I do not understand the purpose of the submission that she was also lodging appeals throughout this period in relation to the question of waiver.
Counsel on behalf of the mother also contends that while the cumulative effect of the court events from 17 September 2019 gives rise to an apprehension of bias, it was only the court event on 1 November 2019 that tipped it over into an allegation on actual bias. In relation to the delay thereafter the requirement to prepare a detailed affidavit in support of the application based on transcript evidence is argued to provide an adequate explanation. The application for disqualification was for this reason said to have been made as soon as reasonably practicable.
The ICL submits that as the mother contends the events of 1 November 2019 were the tipping point that gave rise to her application, she was required to have raised the matter with the Court or the parties as soon as it became apparent. So long as that was done she would not have been required to present detailed argument in support of the application[7] at that time.
[7]Tong & Niem at [60].
In these proceedings the mother did not put the court or other parties on notice or foreshadow that a recusal application would be forthcoming until more than two months after the event which she says first gave rise to the recusal application and almost three weeks after the final event that is said to have crystallised her contention about a reasonable apprehension or actual bias. In these circumstances I am of the view that the ICL has an arguable case that the mother has acquiesced at least so far as the court event on 17 September 2019 is concerned and probably in relation to some of the subsequent events.
However, as the mother’s application mainly relates to the 4 October 2019 and 1 November 2019 court events when she contends that the pattern of conduct which is said to ground the application was apparent, her contentions as to apprehended and actual bias will nonetheless be considered.
The Law & Discussion
In Ebner v Official Trustee in Bankruptcy[8] (“Ebner”), the plurality of the High Court (Gleeson CJ, Gummow and Hayne JJ) set out the test for disqualification as follows:
6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. (emphasis added)
[8] [2000] HCA 63; 205 CLR 337.
What is said might lead to deciding the case other than on its legal and factual merits?
The first of the steps to be taken in the application under consideration is the identification of what is said might lead me to decide the case other than on its legal and factual merits. In this regard the mother makes a number of submissions about what she argues is my general approach to the dispute as well as raising matters arising from particular court events. It is her case that all of these matters considered cumulatively might cause a fair minded lay observer to apprehend that the matter may be decided other than on its merits or that I was actually biased against her.
I will approach the application in the order in which it was argued by first making some observations about the matters within my general approach to the dispute which are said to ground the application for the purposes of understanding the applicant’s argument with respect to those matters.
“Conduct of the litigation”
The mother first contends that the following matters which she describes as relating to my “conduct of the litigation” give rise to a feared deviation from the course of deciding the case on its merits:
·Inequitable treatment of the litigants’ applications
·Oppressive number of hearings often at short notice
·Matters listed for case management proceeding as interim hearings
Inequity and Oppression
The mother submits in relation to the foregoing matters that applications filed by the father and ICL have been treated with priority and decisions given ex tempore whereas her applications have been delayed and allocated first return dates before a Registrar as opposed to a judge. She asserts that court events were not “equitably implemented” as four of the hearings before me listed on short notice related to the father’s applications compared to “significant delays” in the handling of her applications. She refers to the following as specific examples of this alleged inequitable treatment of applications:
·The treatment of the mother’s application filed on 30 September 2019 in which she sought orders relating to alleged irregularities in the ICL’s conduct in engaging the court appointed expert. The mother argues that there was an opportunity to deal with this application at one of the many case management events in October 2019 but that it was instead listed before a Registrar on 14 November 2019. She also contends that it was determined on 1 November 2019 “without notice” and as I understand it submits that she was not given a fair opportunity to present her case in relation to the application. This last contention will be considered later in these Reasons in conjunction with the events of 1 November 2019.
·The mother contends that this recusal application was not handled urgently as she considers it should have been but rather was first listed before a Registrar on 13 February 2020 six weeks after filing. She argues that when the application first came before me five days later on 18 February 2020 (along with another application filed by the ICL later in time) it could then have been determined “on the papers” rather than be adjourned for hearing on another day, causing “further delay”. The mother also identifies as a matter grounding the application that I dealt with the ICL’s application prior to her application on 18 February 2020.
It is also the mother’s case in respect of the management of the litigation generally that it has been “oppressive” and caused her prejudice. This oppression she argues can be seen in the “intense conduct of this litigation” which has involved many hearings, often at short notice at which she could not afford to be represented by counsel, unlike the father. She also complains that it was oppressive for the two “hearings” on 2 and 4 October 2019 to have been conducted in her absence and that she was denied procedural fairness as substantive matters were dealt with on occasions when the proceedings had been listed only for case management.
In my view some of the foregoing matters identified by the mother as those which are said may lead me to decide other than on its merits are not borne out by the evidence or are misconceived. For this reason I need not proceed to the second step, that is consider the logical connection between them and the feared deviation from the course of deciding the case on its merits.
In particular, case management decisions in relation to applications filed by the parties are made by a Registrar rather than a Judge. None of the decisions made by a Registrar are capable of being matters which may be said might lead me to decide a case other than on its legal and factual merits. For this reason, the matters said to demonstrate the alleged inequitable treatment of the mother’s applications which relate to case management decisions made by a Registrar will not be further considered as they are not capable of grounding an application that I recuse myself from further hearing.
The mother’s contentions about the case management of this recusal application and the court event of 18 February 2020 said to demonstrate inequitable treatment of the parties’ applications are also not borne out by the evidence. The court record contained in the Registrar’s bench sheet of 13 February 2020 notes that the mother sought an adjournment of her recusal application listed for 18 February as her legal representative was overseas and her appeal was due to be heard by the Full Court on 6 March 2020. This application was therefore listed for case management on 18 February 2020 as the ICL’s application for the appointment of an expert had been already listed on that date.
The mother’s contentions about actions that indicate my management of the matter has been “oppressive” to her are also misguided or not borne out by the evidence. In particular the mother has erroneously treated the direction I made in chambers on 2 October 2019 concerning the attendance of the children at Child Dispute Services as an ex parte hearing made in her absence. She also makes contradictory contentions about whether the multiplicity of applications (many of which have been filed by herself) ought to have been dealt with less or more quickly, and which of these complaints is said to establish “oppression”.
The mother has correctly identified that on some occasions when the court event was described as a case management hearing I also dealt with some substantive matters. Where this has occurred the matter will be considered when dealing with the other contentions about the same particular court event.
“Conduct within the litigation”
So far as I understand this contention, it is the mother’s case that I have prejudged substantive matters in the parenting dispute at the various court events and in particular in the November 2019 judgment and this prejudgment may lead me to decide the parenting dispute other than on its legal and factual merits.
Prejudgment of significant matters
The matters which the mother contends I have prejudged are:
·The role of the Department of Communities and Justice (“the Department”) in the parenting dispute and the weight to be given to the various assessments made by officers of the Department. The portions of transcript identified in relation to this matter relate to 17 September 2019 and 14 October 2019 and are matters to which I will return when considering those specific court events.
·“Parental alienation theory” which the mother claims has been “propounded” by the father and “adopted” by me. The mother’s counsel was unable to identify any parts of the transcript of any of the court event in which I was said to have adopted “parental alienation theory” or that such theory is “propounded by the father” in these proceedings. In other words, the mother merely asserts that this is a matter which might lead me to decide the case other than on its legal and factual merits but this assertion is not borne out by the evidence. For this reason I need not proceed to the second step in relation to this contention.
·The services provided by an organisation engaged by the mother to provide services to the children. The extract identified in relation to this issue relates to the 1 November 2019 court event. This matter will be considered later in this judgment in conjunction with other contentions concerning the court proceedings on that day.
“Judicial interference”
Another matter identified by the mother in her Case Outline within the rubric of “conduct within the litigation” is that I am said to have engaged in “impermissible ex parte activity and unwarranted judicial interference”. The meaning of this contention and the evidence said to support it was not clarified in the course of the hearing. As this matter has not been identified it is unable to be further considered in the context of the second step.
Awareness of the mother’s appeal
Other matters identified by the mother in her Case Outline as grounding a feared deviation from determining the case on its merits were also not developed further in oral submission. These are that I was aware the mother had appealed against the November 2019 orders and that she made a complaint to “the Attorney General”. I am not aware of a complaint made by the mother to the Attorney General and there is no evidence to suggest that this has been brought to my attention. For this reason this matter will not be considered further.
In relation to the appeal the mother argues that “human nature” may cause me to “retaliate” and act in a manner prejudicial to her on the basis that I am aware of “complaints to a higher body about judicial outcomes or performance”.
In my view a fair minded lay observer would not conclude that I might “retaliate” against the mother consistent with her assertions based on “human nature”. As the plurality of the High Court said in Johnson & Johnson[9]:
At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
[9] [2000] HCA 48; 201 CLR 488 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [12] and [53]
The mother’s submissions concerning other “conduct within the litigation” repeats matters previously identified in the category of “conduct of the litigation” such as that I had treated the parties inequitably. She also claims that I used “threats, open sarcasm and hostility” towards her. In this regard the mother identifies a portion of the transcript of the interim hearing on 1 November 2019 in which she contends I used sarcasm. The logical connection between this matter and the feared deviation will be considered when I return specifically to the events of 1 November 2019.
Delay in delivering judgments
The last matter upon which the mother relies in her Case Outline as “conduct within the litigation” is that a delay in delivery of judgment and the making of a series of orders “blocked her avenues of appeal”. When the mother’s counsel was asked to identify the matters relied upon and expand this ground it became apparent that it was not pressed.
Influence over the ICL
The next matter identified by the mother as one that may cause the feared deviation from deciding the case on its merits is her contention that I “overtly and radically influenced the ICL to align her position with the father’s”. In this regard the mother relies upon extracts from the transcript of the interim hearing on 1 November 2019 to which I will return when considering her other contentions in relation to that court event.
For the reasons given I have rejected some of the matters which the mother identifies that may lead to deciding the case other than on its legal and factual merits as the contentions were misguided or not borne out by the evidence. I indicated that the other matters identified by the mother would be considered in conjunction with other specific matters she then identifies in her Case Outline as relating to specific court events.
What is the logical connection between the matters identified and the feared deviation?
17 September 2019
The court event on 17 September 2019 related to the father’s application for orders to facilitate the attendance of the parties and children upon the expert who had been appointed with the consent of the parties some months earlier. At the same court event the mother indicated that she had filed an application that same day for various orders including that the expert to be discharged.
The role of the Department
The first of the comments identified by the mother to ground this application occurred in an interchange between myself and the ICL concerning the current circumstances of the children. In particular the interchange concerned the undisputed fact that although the parenting orders at that time provided for equal shared care the children had for many months been living solely with the mother and spending no time with the father and the mother claimed to be acting on the advice of the Department (referred to as FACS- the Department of Family and Community Services is it had previously been known).
After the ICL informed the court that the children had “remained in a state of limbo” I said the following (which included the words identified by the mother in bold):
Yes. Again I would have concern with the unilateral actions of a parent apparently on the advice of FACS – and I don’t know – even if they’ve given that advice, I don’t know what FACS think they’re doing in terms of giving advice to people in family law proceedings where they’re not parties, but I think the issue of if the party who is not making a children available has not sought suspension, that’s a matter of concern. Mind you, the father hasn’t filed contraventions either. Is that correct?
The next portion of the transcript identified by the mother on this day arose in the context of her Response to the father’s application under consideration. That Response had only been filed on the day of the court event and sought a number of orders that were not related to the father’s Application.
The mother had also filed an Application in the Case on the same day seeking a range of other orders and appeared to have some expectation that this Application would also be dealt with on the same day. One of the orders sought by the mother in her Application in a Case was “that the parties attend family therapy as proposed by the Department of Family and Community Services forthwith, comply with the directions given to them by representatives of the Department of Family and Community Services and that the proceedings be stayed until further notification by the Department of Family and Community Services”.
Despite the mother’s application it was unknown whether officers of the Department were willing to provide family therapy though the mother’s lawyer maintained it had been suggested that they would. In the context of a further interchange I pointed out that departmental officers do not hold expertise in “the highly specialised therapy that is available from a few limited specialists who specialise in family law disputes”. The mother’s lawyer reiterated that her client “is pressing for some therapy for the family” and in this context I said the following which include the words identified by the mother in bold:
Well, I’m saying to you it is misconceived, with all due respect. The Department does not provide therapy, nor would the Department be relevant for these proceedings. So if you want to make – but in any event, if that’s what she wants to press for, it will be heard. But that – it’s not listed before me today. The registrar will deal with it at an appropriate time.
In the course of considering the other orders sought by the mother in her Application in a Case filed on the day of the hearing but not listed for determination I said the following including the matters identified in bold:
All right. 3, 4 and 6 in the Application in the Case of 17 September 2019 that is to be listed in the usual way, which I will deal with. But I have to say to you, [the mother’s lawyer], the Department of Family and Community Services are not party to these proceedings. It is not a matter where I will be inviting them in the proceedings. So the extent to which they have something to say is not something that this court is concerned with, nor is it necessarily something that parties ought to be concerned with. We don’t have care proceedings before the Children’s Court, and they’re not being invited to intervene in these proceedings. It’s a matter for the mother whether she wishes to have the Department to be having some role. Certainly, I can’t see how that has got anything to do with these family law proceedings. But that’s a matter for her if that’s what she seeks.
It is the mother’s case that all of these extracts indicate that I have prejudged the role of the Department in the parenting dispute and the weight to be given to various assessments made by officers of the Department. She argues that this amounts to a prejudgment of the question of the respective risks posed by each of the parties by failing to have regard to the findings, interviews or recommendations made by the Department and disregarding the “statutory role” of the Department in the proceedings. The mother contends these words amount to prejudgment of a central issue in dispute between the parties which if correct must logically must be connected with the fear that I may deviate from the course of deciding the case on its merits.
The fair minded observer would be aware from the transcript that this court event related specifically to the father’s application for orders to facilitate the parties’ attendance upon an expert which was soon to occur and that the mother had filed an Application that day seeking other orders which she seemed to expect may be also dealt with on the same day. In my view a fair minded lay observer would understand that I was simply prioritising the matter with which I was concerned and expressing a view in that context about the relevance of the Department and views of departmental officers in the proceedings at that stage.
The fictional lay observer would understand that I was concerned about the mother’s apparent reliance upon advice she says she was given by departmental officers in not making the children available to live with the father as required under the orders rather than seek to have those orders suspended. The observer would also understand that although I expressed my view as to the inappropriateness of departmental officers providing “family therapy” to the parties in these proceedings (and the question of whether such an offer had been made) I indicated that if the mother sought such an order she was still able to pursue it at the appropriate time.
There is no basis on which the fair minded lay observer could apprehend from these extracts of the transcript identified that I have prejudged a substantive matter. The interchange involved makes no findings about risk as contended by the mother. Further, there was no basis at that stage for the Department to be invited to intervene in the proceedings nor was there any determination about whether such an invitation in appropriate circumstances in the future was precluded. The issue of respective risk posed by the parties was not a matter under consideration at this court event and no views were expressed or findings made about this matter. There is no basis on which it could be said that I prejudged this issue nor is there any other logical connection between the words spoken and a feared deviation in the mind of the fictional observer that I may determine the dispute other than on its merits.
As touched upon earlier, another extract from the transcript of the proceedings on 17 September 2019 is also identified by the mother as reflecting an alleged “hostility” towards her and this “hostility” is said to be another matter that might lead me to decide the case other than on its merits. The extract in question is as follows:
HER HONOUR: Is there anything you want to say, [name of mother’s solicitor], about expedition?
[MOTHER’S SOLICITOR]: Your Honour, I agree that the matter needs to be attended to by – urgently by the court, if possible. I’ve just ‑ ‑ ‑
HER HONOUR: Right. Well, then, we have agreement on that. All right. I – as I say, I will – I will make a notation that these proceedings are to be expedited, given the contentions of each of the parties as to risks posed by each parent, the age of the children and that the current parenting arrangement which has not been suspended is not being complied with. So the next issue we need to deal with is ‑ ‑ ‑
[MOTHER’S SOLICITOR]: Your Honour, if I may just say – because I didn’t get a chance to say that ‑ ‑ ‑
HER HONOUR: No, I’ve made a decision about expedition because you didn’t – but you said you agreed it had to be expedited. I don’t have to hear every single thing everyone has to say.
[MOTHER’S SOLICITOR]: I understand that ‑ ‑ ‑
HER HONOUR: I’ve made that order, so I will invite you to speak about the next topic when I come to that. Now, in relation to the discharge of [name of expert], what do you wish to say, [name of mother’s solicitor]?
In the particular extract complained of it is fair to say that I did interrupt the mother’s lawyer after she had responded to the particular question asked at that stage in the proceedings and I did not give her a further opportunity to speak about the issue of urgency and expedition.
The fictional observer would note that the words complained of highlighted in bold are contained within a more extensive extract which is set out in full (as is the case with each of the extracts relied upon in this application). The observer would consider that the words identified must be read in the context of a more extensive interchange if a proper understanding of the second step in Ebner is to be achieved. Although I do not consider that a fair minded lay observer would regard this interchange as “hostile” towards the mother the nexus between the words spoken and the feared deviation will still be considered.
The fair minded lay observer would be aware that the purpose of this court event was to deal with the father’s application for orders to facilitate the appointments with the court appointed expert which were soon to occur. In this context the observer would see from the transcript that I considered that application as having some urgency. The fictional observer would also note that the mother had an expectation that I would deal with her application for discharge of the expert (notwithstanding that his appointment had been made with her consent at a court event in which she was legally represented).
The fictional observer would also note that the interchange between myself and the mother’s counsel was tending to stray from the intended purpose of the court event. The fictional observer would appreciate that the father had also sought an order for expedition in his Application before court that day. In the foregoing context the observer would understand I was attempting to deal shortly with matters that did not seem to be in dispute such as that the case warranted expedition and was attempting to focus the attention of the legal representatives on the matters that required determination. The fictional observer would also bear in mind the observations of the High Court in Johnson at [53] as follows:
The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
Although I may have more appropriately given each of the parties more opportunity to respond to the particular question concerning expedition the lay observer would understand that this matter was the least controversial of those matters I was required to deal with that day and both of the other legal representatives gave a succinct answer to the effect that they wished for the proceedings to be expedited. The mother also wished for the proceedings to be expedited and the mother’s lawyer stated that for the record but then appeared to move to another topic. In this context the observer would consider my interruption of the mother’s lawyer as an attempt to reign in what had been a very discursive court event. In my view this interchange could not correctly be described as containing a threat, sarcasm or hostility towards the mother as contended. For the reasons given the fair minded lay observer would not find any logical connection between the words spoken in this extract (even when considered in combination with the other extracts identified from this day) and a fear that I may decide the case other than on its merits.
4 October 2019
It is the mother’s contention that the following matters in relation to the 4 October 2019 court event give rise to the feared deviation in the mind of the fictional observer:
·The making of a direction that the children be delivered to Child Dispute Services on that day
·Refusing her application to adjourn the proceedings
·Denying her the assistance of a McKenzie friend
·Proceeding in her absence when she was ill and required to leave the court room
·Directing that persons not party to the proceedings abstain from taking notes in the court room
·Directing that witnesses leave the court room
The direction for the children to attend Child Dispute Services
The first matter identified by the mother in relation to the court event is my direction that she deliver the children to Child Dispute Services on the morning of 4 October 2019 prior to the court event. In her written outline it is contended that this direction was a “virtual and impermissible Recovery Order” and that the making of this direction demonstrates a predetermination to change the children’s care arrangements. Although the mother’s counsel withdrew the argument that the direction to deliver the children to Child Dispute Services was impermissible, he maintained on the mother’s behalf it was akin to a Recovery Order as in counsel’s submission such orders are only made when a court has the intention of removing children from the care of a parent. Counsel was unable to identify any basis for this last mentioned contention other than his understanding from “practice over many years in the Family Court”.
The lay observer is not likely to consider it accurate to characterise the direction given as a “virtual” Recovery Order or “akin to” a Recovery Order on the basis of understanding of the mother’s counsel arising from his experience of practice in the Court. The observer is also likely to consider that there is no basis upon which an inference could be drawn about the purpose for the direction from orders that were later made at the Court on that day (which did include a Recovery Order) in circumstances where the mother did not comply with the direction as such an inference can only be based on speculation.
The mother’s contentions in relation to the direction that she deliver the children to Child Dispute Services are for the foregoing reasons rejected and no other logical connection between the making of that direction and the feared deviation from the course of deciding the case on its merits has been articulated.
The second matter identified by the mother at this court event is that I dismissed her application to adjourn the proceedings which according to her Outline of Case amplified the practical injustice towards her as she was required to proceed self-represented.
The transcript of the proceedings records that although I refused the mother’s application for an adjournment she soon after left the court room. I then requested that arrangements be made for a duty lawyer to attend and give the mother legal advice. I was subsequently informed by the duty lawyer appearing amicus that the mother had left the court building and the duty lawyer had been unable to obtain any instructions.
The third of the matters identified is that I am said to have denied the mother the assistance of a McKenzie friend. A correct reading of the transcript does not reveal this to be the case. The transcript records that when the mother first requested that she have a McKenzie friend assist her I informed her that I would give consideration to that application shortly but I first wanted to understand whether the children had been presented to Child Dispute Services as ordered. Shortly thereafter the mother left the courtroom and the issue of the McKenzie friend was not revisited. An unidentified person (who had been indicated was the proposed McKenzie friend) remained in the Court after the mother left but I did not allow this unidentified person to speak from the body of the court effectively on the mother’s behalf in her absence.
The remainder of the matters identified by the mother relate to events that occurred after she left the court room.
The transcript indicates that the mother left the court room without explanation in the middle of an interchange with the bench about whether she would be able to comply with a further contemplated order that she bring the children to Child Dispute Services within a short period of time. In the mother’s absence the father’s solicitor made an application for a location and Recovery Order and sought that orders be made on an interim basis as to the children’s residence. Following a short adjournment, when Court resumed I was informed that the mother had locked herself in a disabled cubicle in the women’s toilets.
Before I began consideration of the father’s applications I requested that somebody (and the anonymous person who had sought to be the mother’s McKenzie friend earlier volunteered) inform the mother of the father’s application. I also requested that arrangements be made for a duty lawyer to attend Court to provide the mother legal advice and adjourned court again to enable this to happen. When Court resumed a short time later the ICL informed me that the mother was still locked in the toilets, had refused an offer from security to call an ambulance if she were in need of medical attention and that arrangements were being made for the mother to speak to the duty lawyer. Court adjourned again to enable this to happen. On resumption of the proceedings I was informed by the duty lawyer appearing amicus that she had been unable to obtain any instructions and that the mother had left the court building. In these circumstances, the father’s applications were then dealt with in the mother’s absence.
The mother’s claim that I stopped note taking and told “witnesses” to leave is also not accurate. The transcript records that after observing an unidentified person to be taking notes, I told this person that as I was not sure whether she understood her obligations in terms of publishing or providing information about these proceedings, I did not permit that to occur. The record also indicates that I informed this person that I could not exclude her from the proceedings and at no stage did I ask any other persons in the court room to leave.
In summary, the record reveals that the application to have a McKenzie friend assist the mother was not determined as before I came to consider that matter the mother had already left the court room. In any event, a McKenzie friend is a person who may be permitted to assist an unrepresented person at the bar table to conduct their case but there is no role for a McKenzie friend when a litigant has chosen to leave court as the mother did at this court event[10].
[10] See discussion of the role of a McKenzie friend in Watson & Watson (2002) FLC 93-094; 28 Fam LR 481.
Although the mother claims at some points in her Outline of Case that her absence from the court room was due to illness, there is no evidence other than mere assertion that this was the case. The record indicates that the mother refused the offer of a security officer at the court to call an ambulance for her as is standard practice when a litigant claims to be incapacitated through illness.
In determining whether the second step for recusal is satisfied the fictional observer would take into account all the events of the day as recorded in the transcript. The observer would note that arrangements were made for a duty lawyer to provide the mother with legal advice, the proceedings were adjourned on numerous occasions and I took steps to ensure the mother was made aware of events occurring in the court room in her absence. The observer would be aware that the mother chose to leave the court building without explanation and in these circumstances the applications were dealt with in her absence. There was no direction made for any person to leave the court room and the direction in relation to taking notes was made in circumstances where I was concerned about the accuracy and purpose for which the notes were being taken by an unidentified person. The appropriate way for the mother to gain an understanding of events that occurred in her absence was ultimately taken by her when she obtained the transcript for that day. There is no logical connection between these events when properly understood and the feared deviation from deciding the case on its merits.
Other matters raised in the Case Outline for the mother and referred to in oral argument on her behalf relating to this court event amount to an appeal against the Recovery Order. For example, the mother challenges the reasonableness of the decision, and an alleged absence of reasons for the order and for its urgency. As I understand it, the mother did originally appeal against the Recovery Order but that appeal was deemed abandoned and this matter was not ultimately pursued in the mother’s subsequent appeal. In these circumstances the mother must be taken to have waived her application in relation to this matter.
14 October 2019
The court event on 14 October 2019 was to have related to the interim parenting arrangements for the children (as those circumstances had changed by the making of a Recovery Order and suspending the mother’s time 10 days earlier) but the mother’s counsel chose instead to press her application for discharge of the appointment of the court expert. Prior to dealing with this last mentioned application there was an interchange between myself and the legal representatives about the events following the Recovery Order. Other matters were then raised including the alleged irregularities in the instructions sent by the ICL to the expert, the children’s attendance at school and practical matters concerning the appointments with the expert that had still not occurred.
The mother once again attaches great importance to an invitation she contended at that time should be made to the Department to intervene in the proceedings.
The role of the Department
In the course of the interchange concerning this issue the mother’s counsel conceded that he had advised his client that it was not appropriate for the Department to be invited to intervene in the proceedings.
The mother’s counsel then sought an order for the discharge of the court appointed expert and the balance of the proceedings on that day were consumed by this application. After dealing with that issue the mother’s counsel then made an oral application that the parenting orders made on 4 October 2019 be discharged so that the final orders for equal shared care be reinstituted. As the father opposed this course and sought that the short term interim orders continue pending further order I then fixed the respective applications for interim orders for hearing in two weeks’ time on 1 November 2019.
After making some directions in relation to the upcoming interim hearing I next considered the issue of the children’s schooling which required urgent determination as the children were then living with the father, some distance from the school in which they had been enrolled.
Each of the legal representatives for the parties made submissions about this issue and in the course of submissions made on behalf of the father I was informed that there had been a further complaint made to the Department concerning alleged risks associated with his care of the children after the Recovery Order had been executed. In this context I made a comment about any then current investigation being undertaken by the Department (referred to as FACS) which included the words identified by the mother for the purposes of this application in bold as follows:
Also, I would be – well, it’s something that I definitely will need for the hearing on 1 November, and if they’re able to assist prior to then, that information from FACS about any assessments that they have made about the father’s care. I don’t know if they have put anything in writing, only so that – it’s a difficult one because I’m trying to write FACS out of the matter because really they don’t have a role. I won’t be assisted by that in circumstances where I’m not seeking – the only trouble is that sometimes, because of FACS statutory role, everything does settle down and goes in accordance with family law orders and then someone makes a complaint to FACS and the whole thing starts again.
It is the mother’s case that these words are disparaging and dismissive and indicate that I have predetermined to disregard the role of the Department in these proceedings.
In my view the fair minded lay observer would appreciate that although the Department may have a relevant role to play in Family Law proceedings and be invited to intervene in appropriate circumstances I did not consider that these proceedings fell within that category, a matter with which the mother’s counsel agreed. It would be clear to the observer that although I did not consider it appropriate to invite the Department to intervene in the proceedings at that stage, when I was made aware that there may be a further investigation being undertaken by the Department I wished to have evidence of any such assessment to be included in the evidence before me in the upcoming interim hearing.
There is no logical connection in these circumstances between the comments made and a feared deviation from determining the dispute between the parties on their merit.
The Hearing of 1 November 2019 and the November 2019 Judgment
Actual bias
The mother’s counsel said in oral submission that the gravamen of the mother’s case for recusal is that I demonstrated bias at the hearing in relation to the interim parenting judgment on 1 November 2019 and the associated November 2019 judgment which he contends gives rise to an apprehension of bias in the future.
I consider this position problematic for a number of reasons. Firstly, there appears to be a confusion about whether the mother contends actual bias or apprehended bias which was not satisfactorily resolved in oral submissions. Generally the tenor of the mother’s application in relation to the hearing on 1 November 2019 and the November 2019 judgment is that I demonstrated actual bias against her. If this were the case then it would seem that her application for disqualification is easily made out and the issue of apprehended bias does not arise. Further, I have great difficulty understanding how it is legally and logically possible for the contentions made by the mother in her appeal to have been dismissed and for similar matters to ground an argument of actual bias.
Moreover, counsel for the mother did not properly explain the basis upon which the mother contends that I was biased at the interim hearing and in the associated November judgment. While the mother described in her Case Outline her assertions in relation to matters arising from the interim determination as giving rise to an apprehension of bias, the constant references to prejudgment and allegations that my interim decision was biased more closely aligns with actual bias.
In Bulow & Bulow[11], a decision of the Full Court delivered after judgment in these proceedings was reserved, the following was said at [36] – [39]:
Importantly, aside from the heavy onus of proof, like a claim of apprehended bias, an accusation of actual bias must be distinctly made and firmly established.
An allegation of actual bias sometimes takes the form of an allegation of pre-judgment. In other words, where the decision-maker is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (MIMA v Jia Legeng, per Gleeson CJ and Gummow J at [72], per Kirby J at [127]).
Relevantly, this test of actual bias in the form of pre-judgment, requires an assessment of the state of mind of the judge in question (Michael Wilson and Partners Limited v Nicholls (2011) 244 CLR 427 at [33]). Again though, even this form of actual bias need not be confined to an intentional state of mind, but it must be real, and may be established by inference from the circumstances, including from the decision itself (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 668 at [37]).
However, as was said by Von Doussa J in SCAA v MIMIA at [38]:
In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion…
(emphasis added)
[11] [2020] FamCAFC 120.
The mother’s counsel was also challenged about the contention that I demonstrated actual bias at this court event and in the subsequent judgment in light of the dismissal by the Full Court of the mother’s appeal against the November 2019 orders and the fact that actual bias was not a ground in that appeal.
The Full Court held that I made no errors of fact or law in the November 2019 judgment. In relation to the assessment of risk posed by the mother, the Full Court said that my finding was “appropriately circumspect and does not foreclose the issue being revisited at a final trial, when the evidence will be properly tested”[12]. The Full Court also specifically rejected the contention that I made definitive findings against the mother.
[12]Cimorelli & Wenlack [2020] FamCAFC 58.
Counsel on behalf of the mother continued to press the argument that while I had acted within the realm of my discretion in the November 2019 orders I still demonstrated bias in relation to those matters. The mother’s counsel did not accept the proposition that by necessary implication the Full Court must have rejected the notion of bias in dismissing the appeal. It was argued on the mother’s behalf that because the Full Court were not “seized of the allegations of bias” it was not considering the same issues as are propounded by the mother in this recusal application. For this reason it is the mother’s case that despite determining that my findings were open on the evidence the Full Court did not consider the possibility that bias played a role in my interim determination.
I do not accept the argument that the Full Court could find that my determination was open on the available evidence if it were the case that I had prejudged the matter demonstrating actual bias. Further, even if it were possible for there to be some scope for the operation of an argument that I was actually biased at hearing and in relation to the judgment and orders that was dismissed on appeal, having regard to the threshold in Bulow there is no basis upon which I can be satisfied as to actual bias. In my view this contention amounts to nothing more than a mere assertion.
Although it was not argued in this application I also consider that the mother may be estopped from arguing that I demonstrated actual or apprehended bias at the 1 November 2019 hearing and in the November 2019 judgment as the validity of the orders made were considered and determined in the appeal proceedings.
By virtue of the principles relating to Anshun Estoppel[13] (sometimes referred to as the “extended principle” in Henderson v Henderson[14]) the mother’s claim that I was actually biased against her in respect to the 1 November 2019 court event should have been properly brought in the context of her appeal against those orders as it was a matter “which properly belonged to the subject of litigation [the appeal], and which the parties [the mother], exercising reasonable diligence, might have brought forward at the time”[15]. Review of the mother’s original Notice of Appeal filed 16 December 2019 against the November 2019 orders (prior to the mother filing an Amended Notice of Appeal 21 February 2020 as was considered by the Full Court) shows that the mother had originally put forward as a ground of appeal that I had erred in “repeatedly act[ing] in a manner that would cause a reasonable and informed lay observer to apprehend bias”. I am satisfied that by filing an Amended Notice of Appeal which did not include the ground of apprehended or bias, the mother is now estopped from arguing this ground for the purpose of the recusal application.
[13] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 as further explained by the High Court in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28.
[14](1843) 3 Hare 100 [67 ER 313].
[15]Henderson v Henderson (1843) 3 Hare 100 [67 ER 313] at p 598.
Sarcasm
As noted earlier in these Reasons, the mother also contends that I engaged in sarcasm at this court event which she says is an example of my inequitable treatment of the parties. Although the mother identifies an alleged use of sarcasm generally as a matter that may ground the feared deviation she nominates a single remark in the transcript which she claims was said in a “sarcastic manner”.
Once again, the context in which the words identified by the mother (as well as the tone which she contends was sarcastic) must be considered through the lens of the fictitious observer.
The observer would note that the particular words were spoken at the commencement of the interim parenting hearing listed for that day. At that point in the proceedings I was identifying the documents relied upon by the parties and ensuring that all of the annexures and material referred to had been tendered. The father had made reference to a single sentence that had been contained in the mother’s trial affidavit in the previous proceedings. That sentence was central to the matters that were required to be assessed for the purposes of the application as to the children’s interim arrangements as it related to the mother’s attitude towards the question of risk posed by the father. The father had not annexed this affidavit filed by the mother to his affidavit and in that context the following interchange with the mother’s counsel took place:
HER HONOUR: Now, paragraph 106 of the father’s affidavit, he refers to a single sentence in an affidavit filed by the mother. Now, that affidavit can be retrieved from the court. The old court file is around. Or, [the mother’s counsel] does the mother concede that she made that statement in that affidavit? There’s one of two ways of doing it. It can be obtained if – and that particular sentence relied on if that’s what you want to do. If – or the mother can concede it. I would find it - - -
[MOTHER’S COUNSEL]: She can’t remember, your Honour.
HER HONOUR: Really? Is that right? She doesn’t remember that. All right. Well, we will get the affidavit of 11 August 2015.
It is the mother’s contention that I used a sarcastic tone when saying the words highlighted in bold.
Having heard the audio recording of this interchange I do not consider that the fair-minded lay observer would regard my tone as sarcastic. The observer may consider that I expressed some surprise at the answer given the mother’s position that she could not recall the paragraph in question despite its importance in the application then under consideration.
The observer would be aware that it has been central to the father’s case at all times since making application to revisit the parenting proceedings that the children have come to form false beliefs about the dangerousness posed by him and that even though the mother knows those beliefs to be false, she has allowed them to flourish. In the first proceedings the mother had also held the belief for a considerable time that the risk posed by the father was an issue to be resolved in those proceedings. However, her trial affidavit in the previous proceedings contained the highly significant single sentence “I do not believe that there is any risk of harm or danger to the children while they are in [the father’s] care”[16]. The subsequent care arrangement was put in place by the August 2015 orders for shared care in which the mother’s concession along these lines was noted. In these circumstances the observer may consider that it seemed somewhat surprising that the mother did not concede that she did make the statement to that effect in the affidavit.
[16] Mother’s affidavit dated 11 August 2015 at paragraph 23.
For the foregoing reasons while the fictional observer may consider that I expressed surprise that the mother did not recall the statement in question the observer is not likely to agree that I used sarcasm.
The only basis upon which it is contended that there is a logical connection between these words and a fear in the mind of a fictional observer that I will determine the matter other than on its merits is the alleged sarcastic tone which is said to be demonstrative of oppression which for the reasons given is not made out.
The agency providing therapy to the children
Under the same category of “conduct within the litigation” the mother also identifies another extract from the transcript of the proceedings on 1 November 2019 as a matter which she contends may cause me to deviate from determining the dispute on its factual and legal merits.
The remarks identified must once again be considered in their context in order to understand the mother’s contention. In her affidavit filed for the purposes of the interim parenting hearing the mother deposed to the children being involved in a “blanket making project” with a particular agency but there was no evidence about the services provided by that agency or whether it was appropriate for the children to be involved in the project in question.
For this reason, I raised my understanding of the agency and I asked the parties whether they accepted that my understanding was correct. I also said that if the parties did not agree as to my understanding I would require some evidence concerning the agency and the blanket making project. In this respect I said the following (including the words identified by the mother in bold):
HER HONOUR: [The Agency] is specifically an organisation for children who have experienced trauma from abuse and violence and, in particular, sexual abuse. I – they may do a whole lot of programs within that paradigm, but that is what that organisation is about exclusively. Is that correct? If there’s any dispute, I will have to stand it down and someone will need to get for me, for example, a brochure or something off their website or whatever. If there’s any dispute - - -
The mother’s counsel was not prepared to concede on her behalf that my statements concerning this agency were accurate and contended that the mother’s understanding was that services were also provided to children experiencing trauma from accidents. To ensure clarity I requested that the ICL obtain some evidence in relation to the agency from that agency itself.
The ICL then obtained the relevant information and as a result I described the agency in my judgment as an organisation “which specialised in the provision of counselling to people who have experienced trauma or abuse”.
The mother’s argument is that in making the comments complained of (albeit prior to requesting that the ICL obtain information to clarify the matter) I did not consider her evidence that the agency’s blanket making course was a resilience building program. As I understand it, in this manner she contends I prejudged that issue.
The fictional observer would be aware that my findings in relation to this agency and the services it offers was the subject of one of the grounds of the mother’s appeal. In the judgment of the Full Court dismissing the appeal, reference is made to my description of the agency as an organisation “which specialised in the provision of counselling to people who have experienced trauma or abuse”. The Full Court was satisfied that all of my findings in relation to the agency about which complaint was made by the mother were available on the evidence.
In the foregoing circumstances, I consider it likely that the lay observer would conclude that I accurately described the services provided by this agency and that it was not a matter that involved “judgment” or “prejudgment” There is no logical connection between my comments concerning the agency and any apprehended bias in determination of this dispute.
Influence over the ICL
The next matter upon which the mother relies in relation to the interim hearing on 1 November 2019 concerns my alleged influence over and interference with the position of the ICL. For this purpose, some background to the ICL’s position at the hearing in question must be given.
In her Case Outline, the ICL had contended that it was in the children’s best interests for the shared care arrangement under the August 2015 orders to be reinstated after they had seen the expert. As I understood her case, she placed particular weight on the children remaining in the father’s full time care until they had been assessed by the expert and proposed that the short term interim orders that had been made a month previously on 4 October 2019 (recovering the children to the father and suspending their time with the mother) be discharged once the children that had occurred. The ICL also proposed that the children return to the school where they had previously been enrolled near to the mother’s home.
The fictional observer would remember that notwithstanding that the August 2015 orders provided for an equal shared care arrangement, this had not been in place for many of the early months in 2019 and even though the mother herself at that stage promoted a return to that arrangement, she had been unable to have it implemented. It was the father’s case at the interim hearing that the mother posed an unacceptable risk of harm to the children as she had permitted false beliefs about the risks posed by him to flourish in her household even though she knew them to be false. Although the father did not promote the case that the children did not receive a benefit from having a meaningful relationship with their mother, he did not propose any orders to foster that relationship.
In the foregoing context I said the following including the words identified by the mother in bold as giving rise to the feared deviation:
HER HONOUR: But the issue of getting [the expert] to see the children is not, in the scheme of things, a big issue.
[ICL]: Yes, your Honour.
HER HONOUR: I mean, obviously it needs to happen but it’s, of itself, not a – it’s not a big player in this – in these interim proceedings so - - -
[ICL]: No, your Honour, but they do need to go.
HER HONOUR: Yes. But that – they do. They do. They do need to go but that’s not – I wouldn’t even put it as a – it would be, at its highest, any other matter the court needs to consider. But your application seems to be as if it’s the game-changer, big event. The big issues are the 60CC factors and I’m surprised that no one has come up with the suggestion that to mitigate the children’s circumstances so that they can have a relationship with their mother if it were to be found – I don’t make findings but if there’s an assessment of risk is as great as the father says, for the mother to have some supervised time with the children, for example.
[ICL]: Yes, your Honour.
HER HONOUR: Now, that’s often something that ICLs come up with. It’s not for me to tell you what to propose but even - - -
[ICL]: No, no, your Honour, and it is something I did consider.
It is the mother’s contention that the words spoken by me amount to “unwarranted and wholly inappropriate judicial interference” and that but for this judicial intervention the ICL was to promote the restoration of the shared care arrangement. In this regard she also identifies the following extract from the transcript:
HER HONOUR: All right. Now, before we go on to finalising the – going back to the additional evidence to be tendered, what is your position in relation to the application?
[ICL]: Your Honour, my position is now that the – in light of what your Honour has said this morning, that the children should live with the father and spend supervised twice weekly time with the mother, facilitated by a supervision service, rather than a centre – and the reason for that being because of the delay – and that the children return to [their former school]. And I note that the father has undertaken that he will ensure that [the oldest child] attend, too. Notwithstanding what order your Honour makes, because I appreciate that the father seeks an alternative school, that [the oldest child] will participate in her end of year function.
It is clear by reference to the mother’s Case Outline and the words of the ICL set out in the last extract that the ICL did change her position and promoted a proposal that the children live with the father and spend supervised time with the mother.
The ICL refutes that her change in position was brought about by pressure and submits that she was free to put forward proposals as she saw fit to do in the best interests of the children. The ICL relies on the following passage in Johnson:
13. …Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them
The fair minded lay observer would be aware when considering the second step in Ebner in relation to this matter that at the interim hearing on 1 November 2019 the father had raised significant risks of harm that he contended were posed by the mother towards the children with which the ICL generally agreed. The observer would also understand that there may have been an inconsistency with the ICL’s position which appeared to suggest that the risks of harm posed by the mother were only present prior to the children being seen by the expert (as during this period the ICL proposed no contact between the children and the mother). The ICL was unable to explain why these risks would dissipate after the appointment with the expert had occurred as her proposal was that the children thereafter return to the shared care arrangement without any arrangements to mitigate the risk.
The observer would also be aware that the father did not provide for any orders to promote the children’s relationship with their mother although he appeared to concede they would benefit from such orders. In these circumstances and where I am required to raise any alternate arrangement that appeared to me to be in the best interests of the children in order to afford the parties procedural fairness, a fair minded lay observer would not consider that the interchange with the ICL amounted to inappropriate judicial interference.
Having been satisfied that I did not inappropriately interfere with the ICL there is no other logical connection articulated by the mother which would cause the fictional observer to fear that I may deviate from the course of deciding the case on its merits.
Oppression
The last of the matters identified by the mother in the proceedings on 1 November 2019 is that she was ambushed and not afforded procedural fairness when I brought forward and determined one of her applications which had been given a first return date before a Registrar on 14 November 2019. Although in other contexts the mother argued that she had been treated oppressively by having her applications delayed in this instance she argues that determining this application in advance of the first return date was oppressive.
The fictional observer would understand that the application in question which was listed before the Registrar on 14 November related to orders sought by the mother in relation to documents to be provided to the expert. As the parties were at that stage due to see the expert on 10 and 13 November 2019, this application required determination prior to those assessment interviews. The mother was legally represented on 1 November 2019 and it was not suggested on her behalf that resolving this matter on this date was in any way unfair or oppressive towards her. In these circumstances the fictional lay observer would find no logical connection with my actions in dealing with this application prior to the date on which it was originally listed before a registrar and any apprehension that I may determine the case other than on its merits.
Conclusion
As has been explained many of the matters “identified” by the mother as those which she contends might lead me to decide the case other than on its legal merits are misconceived or not borne out by the evidence.
The remaining matters have each been considered separately in a manner consistent with the way the case was argued in the mother’s written outline and oral submissions made on her behalf which involved considering general contentions and matters said to arise from particular portions of transcript.
In some cases I determined for the reasons given that the mother had waived her right to object on the basis identified and in other cases it does not appear possible that she can maintain an objection when the court event and orders in question were the subject of an appeal which was dismissed and the contentions raised in the appeal are essentially the same as those raised in this application.
For the reasons given I found no logical connection between the matters identified either cumulatively or individually and the feared deviation that I may determine the case other than on its merits.
While it is arguable that my previous decisions and management of this dispute may cause the mother to apprehend that I may decide an issue adversely to her this is not the relevant test. As Mason J said in Re JRL: Ex parte CJL[17]:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he [or she] will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. 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.
[17] [1986] HCA 39; (1986) 161 CLR 342 at [352].
For the foregoing reasons I dismiss the application that I recuse myself from further hearing.
I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 27 July 2020.
Associate:
Date: 27 July 2020
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