Corson & Corson
[2022] FedCFamC1F 728
Federal Circuit and Family Court of Australia
(DIVISION 1)
Corson & Corson [2022] FedCFamC1F 728
File number(s): WOC 886 of 2018 Judgment of: HARPER J Date of judgment: 2 September 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for recusal – Where application made on the morning of the second day of final hearing – Mother’s counsel alleges apprehended bias on the basis of judicial intervention in her cross-examination of the father – No grounds established –Application dismissed. Cases cited: Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Doughty-Cowell & Kyriazis [2018] VSCA 216
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 2 September 2022 Place: Sydney Counsel for the Applicant: Ms Kennedy Solicitor for the Applicant: Caldwell Martin & Cox Counsel for the Respondent: Ms Gillies SC Solicitor for the Respondent: Rossi Simicic Lawyers Counsel for the Independent Children's Lawyer: Mr Havenstein Solicitor for the Independent Children's Lawyer: Helen Volk Lawyers ORDERS
WOC 886 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CORSON
Applicant
AND: MS CORSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARPER J
DATE OF ORDER:
2 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The Respondent Mother’s application for recusal be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Corson & Corson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These are parenting proceedings between the Applicant Father (“the father”) and the Respondent Mother (“the mother”) which have been in the Court for a number of years. There have been previous judgments including a judgment about interim parenting orders given by Judge Altobelli (as he then was) on 17 July 2020: Corson & Corson (No 2) [2020] FCCA 1910.
The trial of the parenting issues commenced on 1 September 2022. The parties were granted the dispensation by the Court to engage in negotiations such that the hearing did not commence until after lunch on 1 September 2022. The father was cross-examined by senior counsel for the mother during the course of the afternoon over a period of some one and a half hours until the Court rose at the end of the day.
When the hearing resumed at 10.45 am on 2 September 2022 after the Court had dealt with a number of directions hearings in other matters, senior counsel for the wife made an application for me to disqualify myself on the basis of apprehended bias. As senior counsel pointed out, the test for apprehended bias is well known. It is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [6].
In Ebner, the High Court held that the test of apprehended bias required satisfaction of two steps. First is the identification of what is said to lead a decision-maker to decide a case other than on its legal and factual merits, and, secondly, 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 merit: at [8].
I observe here that the relevant reasonable apprehension is not that of, and is not determined by the subjective perceptions of any party to the proceedings. It is an objectively determined reasonable apprehension of a hypothetical fair-minded observer, although Kirby J pointed out that the impression which might be made on one party means that that impression need not be completely ignored: Johnson at [49], [52]. It was said in Doughty-Cowell & Kyriazis [2018] VSCA 216 at [79] that the level of knowledge and sophistication which a fair-minded observer hypothetically brings to the question is “that of a lay person (not a lawyer), informed as the relevant facts of the case and sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear.”
The basis for what is said to be the reasonable apprehension of bias in these proceedings arises from judicial intervention that took place during the course of cross-examination.
The cross-examination needs to be understood against the background of the mother’s contentions which, broadly stated, are that there is a multi-faceted case of risk in relation to the father which not only involves allegations of sexual abuse perpetrated on at least one, if not both, of the children the subject of these proceedings. It also includes allegations going back many years concerning the father’s behaviour towards work colleagues in the workplace, ultimately to support a contention that he is unable to confine himself within appropriate behavioural boundaries. This inability is also alleged to extend to an unhealthy pattern of behaviour in which the father has regularly viewed and downloaded pornographic material.
During the course of the cross-examination, which, I observe, is not yet complete, numerous objections were taken by counsel for the father about the relevance of some historical matters, which, I note, included events that took place up to 17 years ago. I note that at several points in the cross-examination I permitted the questioning to continue over the objection of the father on the basis that, as has been pointed out by the Full Court and the High Court, even slightly relevant evidence is admissible: IMM v The Queen (2016) 257 CLR 300 at [38]–[41]; Britt & Britt (2017) FLC 93-764 at [29]–[31]. Senior counsel for the mother contended that her cross-examination was unduly hampered because of expressions of views by me during the cross-examination that some of the questions asked were not of assistance on the basis they did not appear to explore matters which were relevant. At the close of proceedings on 1 September 2022, I indicated to senior counsel for the mother that I would like the cross-examination of the father to complete by 11.00 am on the second day of the trial, assuming, of course, there would be a recommencement of the proceedings at 10.00 am. I made that comment in circumstances where most of the day on 1 September 2022 had been lost to the actual conduct of the hearing because the parties were in negotiation.
It is, of course, well established that the role of counsel is to advocate fiercely for their client’s case. Included in doing so is the ability and right in an appropriate circumstance to press questions which counsel contends are relevant to the matters which are to be the subject of determination. This can include, of course, returning to topics of cross-examination which have been the subject of earlier judicial comment, and counsel can advocate for fresh questions in relation to those comments being relevant and appropriate to be put to a witness.
I have given consideration closely to the submissions made by senior counsel for the mother. I am not satisfied that anything to which she has adverted could lead a reasonable and rational hypothetical fair-minded observer to form a view that, at this stage of the trial, I have predetermined any issue or would decide the case other than on its legal and factual merits.
Senior counsel for the mother pointed out that judicial intervention can be of such a degree that it effectively prevents a party from putting the case which they wish to run. However, it is also not only appropriate but necessary for the Court in the course of a trial to ask questions and make comments to the representatives for a party in order to clarify ambiguities or seek to better understand exactly what case the party is proposing to put. In my view, the intervention, if that is the appropriate word, by me during the course of cross-examination was an attempt no more than both to tease out with more clarity the mother’s case, and to endeavour to make sure that the trial completed in the time allocated, in light of the fact that most of 1 September 2022 was not taken up with hearing time but with negotiation.
I note here that one of the reasons for which I sought greater clarity from senior counsel for the mother in understanding the mother’s case lay in the fact that, despite the past two years of the father having unsupervised day time with the children, the mother still pressed for, as a primary position, the father to have no further time with the children. In the course of cross-examination, coupled with the questions and comments that I made during the cross-examination, it was possible to better understand how the mother proposed to articulate her case of multifaceted risk reaching back, as I have said, in some respects many years. Nothing that took place on 1 September 2022, in my view, could reasonably or rationally be thought to hamper the mother in presenting that case, particularly in light of the fact that the cross-examination of the father is not yet even complete, and he is the first witness to give any oral evidence.
Accordingly, for those reasons, I refuse the application to recuse myself.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 2 September 2022. Associate:
Dated: 23 September 2022
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