Corkhill & Corkhill (No 3)
[2022] FedCFamC2F 1587
Federal Circuit and Family Court of Australia
(DIVISION 2)
Corkhill & Corkhill (No 3) [2022] FedCFamC2F 1587
File number(s): ADC 4279 of 2015 Judgment of: JUDGE McGINN Date of judgment: 18 November 2022 Catchwords: FAMILY LAW – recusal – prior judgment in contravention application about lack of reasonable excuse when contraventions admitted – demeanour – credit findings – lack of logical connection with matters to be raised at trial not demonstrated- subsequent interim parenting argument – no objection then taken – waiver – application disallowed Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Adlin & Northern Territory Central Authority (No 5) [2021] FamCAFC 74; FLC 94-019
Charisteas v Charisteas (2021) 393 ALR 389; [2021] HCA 29
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 305 CLR 337; 176 ALR 644; 75 ALJR 277
Khalif & Khalif and Anor (No 2) [2020] FamCA 73
Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679
Rajski v Wood (1989) 18 NSWLR 512
Re: J.R.L.; Ex parte C.J.L [1986] HCA 39; (1986) 161 CLR 342
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd In Liq [1999] HCA; (1999) 160 ALR 588; (1999) 73 ALJR 306
Sullivan & Tyler and Anor [2016] FamCAFC 86; FLC 93-708
Division: Division 2 Family Law Number of paragraphs: 57 Date of last submission/s: 12 October 2022 Date of hearing: 12 October 2022 Place: Adelaide Counsel for the Applicant: Mr Robinson Solicitor for the Applicant: Dixon Gallasch Pty Ltd Solicitor for the Respondent: Ms Dansie, Stevens Law Counsel for the Independent Children's Lawyer: Mr Lewis Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 4279 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CORKHILL
Applicant
AND: MR CORKHILL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE McGINN
DATE OF ORDER:
18 November 2022
IT IS ORDERED:
1.That the applicant’s Application in a Proceeding sealed 30 August 2022 be dismissed.
2.That this matter be listed for trial directions on 30 January 2023 at 10.00am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Corkhill & Corkhill (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN
On 12 October 2022 there came before the Court the mother’s Application in a Proceeding filed 30 August 2022 supported by an affidavit of her instructing solicitor of 24 August 2022.
The Application sought that I recuse myself from further hearings in this matter and in particular from the final hearing of the mother’s Further Amended Initiating Application for parenting orders filed 14 April 2022.
No responsive documents were filed on behalf of the father or the Independent Children's Lawyer in respect of the Application in a Proceeding but each made submissions in respect of the Application.
A point was sought to be made by the Applicant mother that the father and the Independent Children's Lawyer in not filing answering documents in compliance with orders of 10 August 2022 were precluded by operation of Rule 5.05 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (“the Rules”) from being heard in opposition to the present Application.
That point is not made out.
Rule 5.05, as with all the Rules, only operates to the extent it is not inconsistent with a direction or order made by the Court as stated by Rule 1.31 (2).
Here, orders 2 and 3 of 10 August 2022 displaces by clear implication the operation of Rule 5.05.
There was no contention about the affidavit material filed in support of the application save and except that there was a point sought to be made on behalf of the Independent Children's Lawyer that such affidavit should not have come in through the Applicant mother's solicitor as there was a risk that that would make the solicitor a witness in the proceedings. The Court is of the view that that issue is of no moment in the context of considering the present application as the present application is based solely upon remarks made by me in the course of giving judgment in my reasons on 10 February 2022 in respect of the father's then pending Application – Contravention.
Insofar as the supporting affidavit contained submissions or conclusions about law they cannot and are not given any weight by me in determining the present application.
The reasons given by me on 10 February 2022 in respect of the then pending Application - Contravention filed on behalf of the father (referred to as “the judgment" in these reasons) were provided to resolve a dispute between the parties as to whether a "reasonable excuse" had been made out on behalf of the mother in respect of admitted contraventions of parenting orders which were the subject of that Application – Contravention.
Those reasons were given after the Court received both written affidavit evidence and oral testimony under oath from each party.
The present application for me to recuse myself is based upon certain remarks that I made in the judgment. The remarks in the judgment which are identified by the applicant mother in the course of oral and written submissions are comprised by the following with references to the paragraph numbers used in the judgment:
(a)"The Applicant father gave his evidence in a manner that was straightforward and, in the Court's view, candid." [23];
(b)"…the Court does not consider the father was avoidant in his answers to these specific questions and in his inability to identify a place of purchase of such items does not undermine his credibility generally.” [24];
(c)"The father admitted matter of factly that he smacked the children but not in anger. The Court accepts his evidence in this regard."[25];
(d)"The Court finds the mother’s attitude towards the father had hardened by September 2020." [32];
(e)"The mother’s evidence left little doubt in the Court’s mind that she was and remains angry with the father and held limited regard for him or his place in the children's lives" [33]; and
(f)"The mother was at times defensive in her answers to questions put to her in cross-examination" [35].
The affidavit in support of the application for recusal also makes reference to findings said to be adverse to the mother, being (again with references to paragraph number used in the judgment):
(a)"The Court rejects submissions made on behalf of the mother" [26];
(b)"The Court does not accept that the claimed corroboration was either demonstrated or established" [44];
(c)"…the Court does not consider that a reasonable excuse has otherwise been established on behalf of the mother" [62]; and
(d)"The mother’s long held animus towards the father has lead to her to react in a disproportionate and unreasonable way in withholding the children from the father's care in September 2020". [88]
On 24 February 2022 following the delivery of judgment the Court took submissions from the parties and made orders with respect to sanctions associated with the admitted contraventions subject of the judgment.
Following the hearing on 24 February 2022 the following hearings took place and the following orders, now described in a summary way, were made:
(a)16 March 2022 (which the mother did not appear either personally or by legal representative) - order that the applicant father file a Notice of Withdrawal;
(b)19 April 2022 - interim parenting orders made by me after hearing argument from the parties;
(c)15 June 2022 - orders made in chambers by me as to the release of a Child Impact Report pursuant to Rule 8.11(5)(a) and for the appointment of an Independent Children’s Lawyer pursuant to s 68L of the Family Law Act 1975 (Cth);
(d)16 June 2022 - order in chambers adjourning a hearing of that date upon joint request of the parties to 27 June 2022;
(e)27 June 2022 - orders adjourning the matter to 10 August 2022 for mention and/or the making of trial directions;
(f)10 August 2022 - order by me, inter alia, as to the filing of the present application; and
(g)25 August 2022 - orders by me as for the preparation of a section 62G report.
It is to be noted that on 19 April 2022 without objection from the mother I heard argument from each of the parties to determine competing interim parenting applications, gave brief reasons and then made orders that day.
It is also to be noted that on 16 August 2022 the question of my recusal was first raised and noted and directions were made that day as to the filing of the present application for recusal which saw the matter come before the Court for argument on 12 October 2022.
The mother’s counsel claimed in the course of submissions that at an earlier hearing I enquired as to whether the mother had any objection to me hearing the matter and that I was then advised that no objection was then taken and so I proceeded to hear matters and continued with the conduct of this matter to date.
The application for recusal is agitated on the basis of what is termed "apprehended bias".
It was submitted by the applicant mother that the passages identified in my judgment of 10 February 2022 in respect of the father's contravention application listed above constituted findings about the "demeanour" of each of the parties arising from cross-examination and secondly that it should be considered that I would continue to be influenced, albeit not consciously, by those findings at any trial hearing of competing parenting issues. In particular, that that influence would extend to any subsequent “evaluation of the parties" at any later trial.
It was put on behalf of the applicant mother that the passages in the judgment referred to above at [10] and [12] disclosed findings of credit because they were about the demeanour of the parties such that the demeanour of the wife should be regarded as having been found to be unfavourable and that of the father to have been favourable which, as the submission was understood, was tantamount to findings of credit, preferring the father.
From this, it was said that:
(a)findings about credit had been made in the course of the contravention proceedings and these could be reasonably anticipated to affect determinations to be made by me in any subsequent hearing in which evidence might be taken and constituted as a source of influence which the fair-minded lay observer might reasonably apprehend would influence me in any "further evaluation" of the parties at any subsequent trial; and
(b)now is the appropriate time for the question of an apprehension of bias to be considered and determined and, impliedly, it was not an application that should have been brought before 16 August 2022.
In Charisteas v Charisteas (2021) 393 ALR 389; [2021] HCA 29 the High Court at [11] said:
"Where, as here, a question arises as to the independence or impartiality of the judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "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.” The principal gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge… to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed." [footnotes omitted]
The written submissions on behalf the applicant mother referred to the passages from the judgment listed above as being findings about "demeanour" of the parties. The counsel for the Independent Children's Lawyer in written submissions argued that the passages relied upon by the applicant mother did not constitute findings of credit (as distinct from demeanour) and, in particular, did not constitute adverse findings of credit against the applicant mother but were merely observations about the demeanour of the parties observed in the course of the giving of evidence in respect of the particular application.
The demeanour of a witness is but one aspect of determining the credibility of the evidence that a witness gives to a Court. The conduct, behaviour or bearing of a witness whilst giving evidence is one matter amongst many to be brought to account in the determination of their evidence, be it oral evidence or written evidence about a particular matter and whether that evidence should be accepted or rejected. (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd In Liq [1999] HCA; (1999) 160 ALR 588; (1999) 73 ALJR 306; Sullivan & Tyler and Anor [2016] FamCAFC 86; FLC 93-708).
None of the passages to which I was taken in the course of argument by the applicant mother demonstrated there were clear findings about the credit of one or other of the parties, other than perhaps expression used at paragraph 24 of the judgment.
As to what that paragraph 24, in her written submission the applicant mother said:
“Paragraph 24: the Court does not consider the Father was avoidant in his answers… and his inability… does not undermine his credibility generally."
To understand what is said in paragraph 24 of the judgment there is a need for paragraphs 23 to 26 of the judgment to be set out in full. Those paragraphs, following a listing of matters put to the father in cross-examination, said:
“[23] The Applicant father gave his evidence in a manner that was straightforward and, in the Court’s view, candid. There was no improper hesitancy in the oral evidence given by the Applicant other than in relation to the topic as to the purchase of antihistamines and the “puffer.”
[24] In relation to these topics, the father was questioned about very specific matters relating to the purchase of the antihistamines and the puffer (of a year ago) such as place of purchase. Despite some hesitancy in answering, the Court does not consider the father was avoidant in his answers to these specific questions and in his inability to identify a place of purchase of such items does not undermine his credibility generally.
[25] The father admitted matter of factly that he smacked the children but not in anger. The Court accepts his evidence in that regard.
[26] The Court rejects submissions made on behalf of the mother that adverse findings should be made about the father’s credit as a witness or his oral evidence either generally or in specific reference to particular aspects of his care of the children.”
As the passages now set out in full make clear, the Court in expressing the views that it did at paragraph 24 was doing no more than rejecting the mother’s submissions about the credit of the father's evidence on particular issues which was said to have gone on to impugn the fathers credit generally.
The Court accepts the Independent Children's Lawyers written submission at [16] that paragraphs 23 to 26 of the judgment did not constitute adverse credit findings against the mother.
The findings insofar as they are about the father's credit in relation to specific matters are not generally about the father's credibility as a witness beyond topics raised at the hearing of the contravention application which had been put to him under cross-examination.
There is no complaint that the Court expressed a preference for the evidence of one party over another. This is not a case as was the situation in Khalif & Khalif and Anor (No 2) ([2020] FamCA 73 ([23]-[25]) cited by the mother’s counsel where there were clear findings of credit about one party including findings that the giving of some evidence in that case by one party was "clearly false" and that the evidence of one party was to be preferred over that of the other party unless there was objective evidence to permit otherwise.
The Court rejects any implication the applicant mother’s submissions that there have been general findings about credit or findings about credit in the course of the judgment which imply a general preference for the father's evidence over that of the mother.
Be that as it may it must be borne in mind that whatever factors may have in fact influenced the outcome of the contravention proceedings, the test of the recusal for “apprehended bias” is concerned with that the fair-minded lay observer might reasonably apprehend that the judge might not determine an issue to come before the Judge with an impartial mind.
This indicates there is a reliance or caution present.
The need for the bringing of an impartial mind means that there exists such a likelihood of a pre-judgment such that it discloses that the decision-maker is "not open to persuasion" (Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679 at [71 – 72] and [105] per Gleeson CJ and Gummow J).
The lack of openness to persuasion was advanced on the mother’s behalf on the basis that the findings about "demeanour" might be reasonably viewed as unconsciously influencing the Court in respect of any "further evaluation" at any subsequent parenting trial.
This argument was advanced whilst at the same time it was conceded that none of the attitudes on the part of the parties will necessarily be in existence at or in evidence at trial.
This submission discloses in my view a failure to articulate the requisite "logical connection" between the source of bias – in this case a prejudice as to demeanour – and how that prejudice might divert the Court from deciding the pending future parenting cases on their merits.
The Court cannot overlook that the mother must be understood to have presumably brought forward all of the evidence that she considered necessary to establish her position of “reasonable excuse" in the conduct of the Application - Contravention and that the scope for the reconsideration of any such evidence and the findings made about that evidence is not open for reconsideration at trial.
The trial of the parenting application is not to be a hearing at which the evidence led during the course of the Application - Contravention is to be recast or the findings in the judgment in effect remade.
The mother’s written submissions speaks of a "further evaluation of the parties at any subsequent trial."
It is this “further evaluation" that is understood to constitute the “logical connection" with the passages identified at [10] and [12] which gives rise to the reasonable apprehension of bias.
The fair-minded lay observer would bring to account the following matters in determining whether I might not bring an impartial mind to the resolution of the “further evaluation" of the parties’ at trial:
(a)the contravention proceedings were proceedings where:
(i)the wife by her own admission contravened orders;
(ii)the proceedings in which judgment was given were ones where the issue was whether there was a reasonable excuse made out by the mother;
(iii)no preference was expressed for the father's evidence over that of the mother;
(iv)there was no finding of credit about the mother as a witness;
(v)the determination of the question whether there existed a “reasonable excuse" turned upon the construction and classification circumstances alleged by the mother as a matter of law rather than as a contest of factual findings; and
(b)at the parenting trial there will be further or other evidence;
(c)the “logical connection" has not been demonstrated that any “further evaluation" at trial will not consider or deal with further and other evidence going beyond that which falls to be considered for the purposes of a contravention application.
(d)such further evidence would not have a bearing upon the determination with respect to the prior determination of a “reasonable excuse” or vice versa as such evidence would have already been brought forward and considered in the context of the Application – Contravention; and;
(e)any Judge hearing the trial of parenting matters and (subject to a prior determination under s 69ZT(3)) would be entitled to be presented with evidence of the order made and the judgment in the Application – Contravention to be any considered in the context of all other evidence to be presented at the parenting trial; and
(f)that the nature of a contravention application does not automatically preclude a judge from determining parenting proceedings
Despite the presence of the requisite reticence or caution, I am not persuaded that a fair-minded lay observer might reasonably anticipated that I might not be open to being persuaded to make a different “further evaluation" about parties or of their evidence of the parties at the trial of the parenting matters.
In my view it has not been demonstrated through the oral and written submissions of the mother how the “influence" referred to in the mother’s submissions might be reasonably likely to preclude an impartial consideration of the parties’ positions both in terms of their respective cases at a subsequent parenting trial or of the parties as sources of evidence in the light of all the evidence that might then be presented at a subsequent parenting trial.
For these reasons I am of the view that the mother’s application for recusal has not been made out.
There was hearing of argument in relation to interim parenting matters on 19 April 2022. Those interim matters were determined on affidavit material and argument. Following the delivery of the judgment and making orders upon that application in April 2019 the question of my recusal was not raised at the earliest opportunity by the mother. This delay implies a possible waiver with respect to the question of recusal.
The matters which must be considered for the purposes of interim parenting proceedings although somewhat curtailed in respect of evidence are not substantially different from that legislative criteria which otherwise must be deliberated upon a parenting order at trial.
By 19 April 2022 the mother could have identified any element of prejudgment.
If that I am wrong the effect of the mother’s submission is that the necessary “logical connection” is present, it would have been present at the hearing of 19 April 2022.
The Court therefore considers that the mother in presenting argument to the Court on 19 April 2022 to constitute a waiver of any claim of apprehended bias and for that reason also the present application on behalf of the mother should be disallowed.
In in all the circumstances I consider that I am obliged to continue to conduct the hearing of this matter and to proceed to list the matter for the making of trial directions at the earliest opportunity.
In doing so I am conscious of what was said by His Honour Justice Aldridge in Adlin & Northern Territory Central Authority (No 5) [2021] FamCAFC 74; FLC 94-019 at [4] and [5]:
"[4] it is well-established that judges have an obligation to sit on matters that are assigned to them, except where there is some good reason, such as at actual bias or the reasonable apprehension of bias, for them not to sit. It is not for litigants to pick and choose judges according to their perception as to the way that their choice might advantage them or disadvantage their opponents (Rajski v Wood (1989) 18 NSWLR 512 at [519]-[520]; Re: J.R.L.; Ex parte C.J.L [1986] HCA 39; (1986) 161 CLR 342 per Mason J at 352).
[5] In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ said:
19. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case."
In all the circumstances I do not consider that a substantial ground for me to be disqualified from further hearing and deciding the parenting trial has been established.
Resources that have been applied in conducting and managing this matter to date should not have to be redone either in whole or in part in now progressing this matter to trial.
Accordingly the mother’s Application in a Proceeding filed 30th of August 2022 shall be dismissed and this matter will be listed for the making of trial directions.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 18 November 2022
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