Darley & Darley (No 5)
[2023] FedCFamC1F 193
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Darley & Darley (No 5) [2023] FedCFamC1F 193
File number(s): BRC 2317 of 2013 Judgment of: HOGAN J Date of judgment: 24 March 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where application is made seeking the recusal of the Judge on the basis of actual or apprehended bias – Where application is dismissed. Legislation: Family Law Act 1975 (Cth) Cases cited: British American Tobacco Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2
Darley & Darley (No. 4) [2021] FamCAFC 54
Doughty-Cowell v Kyriazis [2018] VSCA 216
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson & Johnson (2000) 201 CLR 488; [2000] HCA 48
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 22
SCAA v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 668
Division: First Instance Number of paragraphs: 29 Date of hearing: 14 September 2022 Place: Brisbane Applicant: Litigant in person Respondent: Litigant in person ORDERS
BRC 2317 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DARLEY
Applicant
AND: MR DARLEY
Respondent
order made by:
HOGAN J
DATE OF ORDER:
24 MARCH 2023
THE COURT ORDERS THAT:
1.Paragraphs 1 and 2 of the Application in a Proceeding filed 9 September 2022 are 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 Darley & Darley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
Ms Darley submitted that I should recuse myself from further hearing of the current applications before me on the basis of asserted actual bias against her and a reasonable apprehension of bias.
Given the tests to be applied in determining such application (about which more is said below) it is, I think, appropriate that I provide a brief summary of the orders I have previously made and the reasons I have previously delivered on some of the occasions on which Ms Darley and Mr Darley have previously been before me.
Such summary is as follows:
(a)on 29 September 2017, for the reasons given that day:
(i)I declined to accede to Ms Darley’s application that the person engaged by the Independent Children’s Lawyer to interview the parents and the children be removed from that role; and
(ii)I acceded to Ms Darley’s application that the person engaged to author the Family Report be required, by order, to provide a copy of all notes made during the upcoming assessment process to the parents prior to being cross-examined at the then upcoming hearing; and
(iii)I declined to accede to Ms Darley’s application that the Independent Children’s Lawyer be discharged.
(b)on 12 and 13 October 2017, for the reasons given on 13 October 2017:
(i)I dismissed various allegations of contravention alleged by Ms Darley against Mr Darley; and
(ii)I found that Mr Darley, without reasonable excuse, contravened the order made on 12 September 2013 by failing to return keys and a gate opener to Ms Darley as she had alleged.
(c)on 25 October 2017[1], for the reasons given that day, I made interim parenting orders for the children to spend time with Mr Darley in the lead up to, and during, the end of year school holidays in terms which, in summary, provided for the children to spend time with him on alternate weekends (from after school Friday until 3.00 pm Sunday), for four consecutive nights at the start of the school holidays in December 2017, for three consecutive nights ending at 3.00 pm on Christmas Day 2017, on two occasions during January 2018 (for seven consecutive nights and three consecutive nights respectively) and from after school Friday until Sunday on the weekend before the trial resumed (with all changeovers to occur at 3.00 pm) – such orders were made in circumstances where:
[1]In the context that the parties’ trial, which had taken place from 17 to 20 October 2017 inclusive, was adjourned part-heard until it recommenced on 13 February 2018.
(i)an order made by consent on 12 December 2014 had provided for the children to spend alternate weekends (from 3.00 pm Friday until 3.00 pm Sunday) during the school term and, over time, an increasing number of consecutive nights with Mr Darley during school holidays; and
(ii)Ms Darley’s evidence during the part-heard trial included that, in the period from 12 December 2014 until May 2016, (and despite the above), the children had only spent time with Mr Darley from 3.00 pm Friday until 3.00 pm Sunday on alternate weekends; and
(iii)as a consequence of decisions made by Ms Darley, the children did not spend any time with their father between 12 May 2016 and 29 August 2016; and
(iv)following orders made on 29 August 2016, the children were then spending time with Mr Darley from 9.30 am until 5.00 pm each Saturday; and
(v)Ms Darley’s evidence during the part-heard trial was, in essence, that if, in the period from 12 December 2014 until May 2016, Mr Darley had given her eight weeks’ notice of any holiday period, provided the appropriate letter from his employer confirming that he was on holidays when he wanted the children to spend time with him and had not sought to run any holiday time together with weekend time, she would have had no problem with them spending holiday time with him; and
(vi)despite orders having been made for Ms Darley and the children to attend on the person nominated to prepare an updated Family Report, they had not done so and, consequently, there was no current independent evidence about the children’s views or wishes; and
(vii)Ms Darley’s proposal for interim parenting orders was, relevantly, that the children should:
(A)spend time with Mr Darley each alternate weekend (from Friday after school until 5.00 pm Saturday); and
(B)spend time with her on her birthday; and
(C)spend Christmas Day with her (so that they could go to church with her on that day, as had previously occurred) and should spend time with Mr Darley on Boxing day; and
(D)spend four consecutive nights with Mr Darley, commencing on the last day of school for 2017 (that is, from after school Friday until the following Tuesday morning); and
(E)spend a second period of four consecutive nights with Mr Darley in January 2018.
(viii)the Independent Children’s Lawyer submitted, amongst other things, that the children should be afforded the opportunity to spend time with Mr Darley from 4.00 pm on 2 January 2018 until 4.00 pm on 18 January 2018; and
(ix)Mr Darley supported the proposal for interim parenting orders advanced by the Independent Children’s Lawyer; and
(x)Ms Darley also submitted, if orders contrary to those proposed by her were to be made, that changeovers should occur at 3.00 pm and a block of consecutive nights as proposed by the Independent Children’s Lawyer and Mr Darley was too long for the children given the history of their previous time with Mr Darley; and
(xi)I concluded that it was not in the children’s best interests at that time for them to spend block holiday time with Mr Darley in the manner sought by the Independent Children’s Lawyer and Mr Darley (because I considered it highly likely to be something which would cause the children to be exposed to additional conflict or heightened anxiety on the part of their mother) or in the manner sought by Ms Darley, albeit that I accepted her proposal that the children spend four consecutive nights with their father from the end of the school term in December 2017; I also accepted her submission that it was important to allow the children time to settle back into her care before the following school term started and made orders in terms which ensured that this was the case.
(d)on 3 April 2018, for the reasons given that day, I made further interim parenting orders which provided, in essence, for the children to spend time with Mr Darley from Friday afternoon until Sunday afternoon each alternate weekend and, if he was able to have leave, for a week during the school holidays at the end of Terms 1 and 2 of that year – I note that:
(i)such interim parenting orders were contrary to the submissions made by Ms Darley who advanced that the children should spend only daytime time with Mr Darley on one Saturday each month and that no orders should be made for them to spend any other time with him during school holidays; and
(ii)I declined to accede to Ms Darley’s request that I make an interim order according her sole parental responsibility for the major long-term issues relating to the children.
(e)on 12 December 2018, I made final parenting and property settlement orders and, relevantly:
(i)in the Reasons delivered in support of the same on 18 December 2018, I made comments that were generally critical of the evidence given by both Ms Darley and Mr Darley, including that:
(A)at times, each approached “the giving of evidence with their own benefit more in mind than an objective recitation of the facts” and that “each was, in my view, willing to obfuscate on occasions, albeit that they approached this task differently too”; [2] and
[2] Reasons for Judgment delivered 18 December 2018 at [17].
(B)insofar as Mr Darley was concerned (and by way of example only): I thought it more likely than not that his evidence that he had been a little “short” with Ms Darley on a particular occasion understated the extent of his dissatisfaction[3]; and
[3] Reasons for Judgment delivered 18 December 2018 at [96].
(C)insofar as Ms Darley was concerned (and by way of example only): I considered she had “deliberately engineered the circumstances which she thought would support her determination not to participate in the interviews for an updated family report”[4]; I was completely convinced that, in deciding to take the children to the Emergency Department of a public hospital later in late 2017 (after the children had returned to her care from spending time with Mr Darley and also after she had taken the children to spend time with friends) she acted without regard for the children’s best interests and, because she was focused on attempting to obtain some sort of corroboration for her assertion that Mr Darley had allowed the children to be sunburned whilst in his care, she was oblivious to the “likely significant deleterious emotional impact on them of her actions”[5];
[4] Reasons for Judgment delivered 18 December 2018 at [73].
[5] Reasons for Judgment delivered 18 December 2018 at [157] & [158].
(ii)despite the adverse findings made about Ms Darley’s conduct on occasion:
(A)I declined to accede to Mr Darley’s proposal that orders should be made for the children to live primarily with him and spend time with their mother on alternate weekends and for four weeks of the school holidays; and
(B)I declined to accede to the proposal advanced by the Independent Children’s Lawyer, which proposal was that orders should be made for: Mr Darley to be accorded sole parental responsibility for the major long-term issues relating to the children; the children to live with Mr Darley and, after a twenty-eight day moratorium over their time with Ms Darley, spend time with her each alternate weekend (from after school Friday until before school Monday) during school terms and for half of each school holiday period; and
(C)I acceded to that aspect of Ms Darley’s proposal for orders that the children live with her, albeit that I also declined to accede to her proposal that she be accorded sole parental responsibility for the major long-term issues relating to the children and that the children’s time with Mr Darley be supervised or, if unsupervised, occur only during the daytime either each alternate Saturday or on only one Saturday each month; and
(f)on 11 July 2022, I dismissed one of the counts of contravention Mr Darley had alleged against Ms Darley and, given that both parents sought to vary the existing parenting order, made orders to facilitate Ms Darley being afforded the opportunity to provide evidence about the names and professional qualifications of person/s she might have proposed to be engaged to prepare a Family Report; and
(g)on 5 August 2022, for the reasons given that day, I made a number of orders to facilitate the preparation of a family report and the further hearing of those aspects of the outstanding proceedings with which I had been engaged in July 2022.
Brief summary of applicable principles
Authority[6] makes clear that actual bias against a party exists where a decision-maker has prejudged the case against the party asserting actual bias or has acted with such partisanship or hostility as to demonstrate that their mind was made up contrary to the case advanced by an applicant (or against that person themselves) and was not open to persuasion in favour of the applicant: that is, that their mind was closed to the issues raised by the applicant in the proceedings and also closed to persuasion in relation to the applicant’s case. Neither falling into appealable error nor deciding a case in a manner contrary to the contentions of a party inherently demonstrate actual bias against the dissatisfied party.
[6]See, for example: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]–[73] and [185]–[187]; SCAA v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 668 at [36]–[38].
The test to be applied in dealing with an assertion that a decision-maker has approached their task in such a way as to give rise to a reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question to be decided.[7] The level of knowledge assumed for the hypothetical construct of the “fair-minded lay observer” (whom I shall refer to as the “hypothetical bystander”) is that of a person who is not a lawyer, informed as to the relevant facts of the case and sufficiently knowledgeable and informed as to be capable of undertaking a rational and reasonable assessment.[8]
[7] Johnson & Johnson (2000) 201 CLR 488.
[8]See, for example: British American Tobacco Services Limited v Laurie (2011) 242 CLR 283; Doughty-Cowell v Kyriazis [2018] VSCA 216.
Whilst the relevant “reasonable apprehension” is not that of any party to the proceedings and is not determined by the subjective perceptions of such persons (being instead the objectively determined reasonable apprehension of a hypothetical fair-minded observer), the impression that might reasonably be made on the parties by the facts is not to be ignored completely.[9]
[9] Johnson & Johnson (2000) 201 CLR 488 at [52] per Kirby J.
Authority also establishes that the determination of whether the test of apprehended bias is made out in a particular case requires satisfaction of a two-step process: first, the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits and, secondly, an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[10]
[10] Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337.
Consideration
As I appreciated the thrust of her submissions or at least an underlying aspect of the same, Ms Darley contended that the apprehended bias is the apprehension that, because I determined the proceedings between herself and Mr Darley which were finalised by the December 2018 order in a manner that did not totally accept her contentions, I will not bring an impartial mind to the current proceedings and I will, therefore, have prejudged the same. However, as the record makes clear, I did not determine the previous proceedings totally as either Mr Darley of the Independent Children’s Lawyer advanced that I should. Further, in relation to the current proceedings, I have already dismissed aspects of Mr Darley’s application and previously adjourned the proceedings at Ms Darley’s request to afford her the opportunity to explore whether she was able to enlist the services of a person she considered appropriate to provide the Family Report I ultimately ordered be prepared.
Ms Darley also submitted that, in determining the proceedings finalised by the December 2018 order:
(a)I failed to make a number of factual findings that she urged be made – namely, that:
(i)Mr Darley repeatedly, negligently and neglectfully sunburned the children; and
(ii)Mr Darley had, amongst the other things she listed, committed coercive controlling family violence, committed family violence, exposed the children to family violence and trauma, negligently allowed X to suffer from heatstroke and failed to follow medical recommendations; and
(iii)Mr Darley had made false and misleading statements to the author of the family report; and
(iv)Mr Darley had committed perjury by stating he had never been charged with breaching a protection order and then later accepting that he had; and
(v)Mr Darley had made false and misleading statements to the Court and had committed perjury.
(b)I erred by finding that:
(i)Mr Darley did not sunburn the children intentionally in late 2017 and numerous other occasions; and
(ii)the children had been exposed to emotional harm by her as a consequence of the sunburn clause she had asked for in previous parenting orders.
It is a matter of record that Ms Darley’s appeal against the parenting orders made in December 2018 was dismissed by the Full Court on 23 April 2021.[11]
[11] Darley & Darley (No. 4) [2021] FamCAFC 54.
Ms Darley also submitted that in either making the findings of fact with which she disagreed or in failing to make the findings of fact which she asserted ought to have been made (as she particularised) in the disposal of the proceedings concluded by the making of the December 2018 order, I demonstrated bias against her and her case and, by virtue of such actions:
(a)I have demonstrated bias against her case in the current tranche of proceedings; and
(b)the hypothetical bystander, possessed of the requisite knowledge, would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the outstanding applications.
Ms Darley also submitted that, in dealing with Mr Darley’s applicant for contravention in July 2022, I erred by making findings of fact that were not available on the evidence and, I infer, thereby acted adversely to her case. As noted above, the only order made to date to resolve Mr Darley’s contravention application is an order which dismissed one of the counts he had advanced.
I do not consider that the actions I have taken on those occasions when proceedings between Ms Darley and Mr Darley have been before me demonstrate that I have prejudged the current applications before me in a manner adverse to Ms Darley, or that I have made up my mind contrary to the case she advanced or that my mind is closed to the issues that she raised and is closed to persuasion in relation to her case. Further, I am not persuaded that the hypothetical bystander, possessed of the requisite knowledge, would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the outstanding applications.
I do not accept that in making the comments about the relevance of the contents of X’s school records to the issues which require determination (namely, whether Ms Darley contravened the parenting order that required Y to spend time with Mr Darley on each alternate weekend; whether Ms Darley had a reasonable excuse for not providing Y to spend time with Mr Darley on those weekends; and whether the existing parenting order should be varied and, if so, in what way) in the context in which the same were made demonstrated that I had prejudged the case against Ms Darley; or that I had made up my mind contrary to the case she advanced generally and, in particular, about the assessment of the risk she asserted Mr Darley to pose to the children; or that my mind was closed to the issues that she raised and was not open to persuasion in relation to her case. Further, I am not persuaded that the hypothetical bystander, possessed of the requisite knowledge and hearing such comments in the context in which they were made, would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the outstanding applications.
I do not accept that, in taking up with Ms Darley the conclusions that she sought be drawn from the contents of X’s school reports in the context in which those queries were made demonstrated that I had prejudged the case against Ms Darley or that I had made up my mind contrary to the case she advanced or that my mind was closed to the issues that she raised and was not open to persuasion in relation to her case. I am not persuaded that the hypothetical bystander, possessed of the requisite knowledge, hearing the comments in the context in which they were made and noting the hearing upon which I was embarking, would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the outstanding applications.
Given that I was still to embark on hearing the parents in relation to what amounted to their respective applications to vary the existing parenting orders, I am not persuaded that any comments made at that stage about any aspect of the evidence amounted to the expression of findings of fact; given this, I am not persuaded that any asserted failure to make findings of fact, as contended for by Ms Darley, demonstrated that I had prejudged the case against her or that I had made up my mind contrary to the case she advanced or that my mind was closed to the issues that she raised and was not open to persuasion in relation to her case. I am not persuaded that the hypothetical bystander, possessed of the requisite knowledge, would, in the circumstances, reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the outstanding proceedings.
Whilst Ms Darley submitted that I denied her attempt to prosecute an application asserting that Mr Darley had contravened orders so as to “deliberately prevent findings of fact against the Father which might adversely affect the Father’s current Application and the Orders that can be made”, it must be remembered that Ms Darley is the subject of an order made by Carew J on 23 August 2019, by which she is prevented from commencing proceedings without first obtaining the permission of the Court. Whilst she has sought that permission, her application had not then been dealt with; her application for contravention was not formally listed before me. Given this, I am not persuaded that any asserted failure to permit Ms Darley to prosecute her application alleging that Mr Darley had contravened the orders demonstrated that I had prejudged the case against her or that I had made up my mind contrary to the case she advanced or that my mind was closed to the issues that she raised and was not open to persuasion in relation to her case. I am not persuaded that the hypothetical bystander, possessed of the requisite knowledge, would, in the circumstances, reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of such an application if called upon to hear the same.
Further, it must also be appreciated that, in managing the process in the way that I did (including in making the comments made during the appearances prior to Ms Darley’s application that I recuse myself from dealing further with the outstanding applications), I had been attempting to have both parents focus upon the need to attempt to resolve, via a further hearing at which each would be permitted to adduce evidence and engage in cross-examination, a situation in which their children were separated and, for a not inconsiderable period of time, had not spent time with each other or with the parent with whom they were not living. Given that the hypothetical bystander would not, in my view, have failed to appreciate the importance of such focus, I am not persuaded that such person would reasonably have apprehended that I might not bring an impartial and unprejudiced mind to the determination of the competing applications to vary the parenting order.
I do not accept that, in taking up with Ms Darley the discrepancy between her recounting in the body of her affidavit of the contents of an entry from Mr Darley’s medical records and the contents of the same as exhibited to her affidavit in the context within which such queries were made, I acted so as to demonstrate that I had prejudged the case against her or that I had made up my mind contrary to the case she advanced or that my mind was closed to the issues that she raised and was not open to persuasion in relation to her case. I am not persuaded that the hypothetical bystander, possessed of the requisite knowledge, would, in the circumstances of the exchange between myself and Ms Darley, reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of the parents’ competing applications to vary the parenting order and the extant applications that were before me.
I do not accept that, in raising with Ms Darley the possibilities that X might have accessed adult websites via her interactions with a friend and that neither of her parents may have been at fault for any such interactions, I “twisted” the evidence and thereby demonstrated that I had prejudged the case against her (Ms Darley) or that I had made up my mind contrary to the case she advanced or that my mind was closed to the issues that she raised and was not open to persuasion in relation to her case. I am not persuaded that the hypothetical bystander, possessed of the requisite knowledge, would, in the circumstances of the exchange between myself and Ms Darley, reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of the parents’ competing applications to vary the parenting order and the extant applications before me.
I do not accept that, in the circumstances in which the comments were made, I repeatedly mistook Ms Darley’s case that she had a reasonable excuse for contravening the existing parenting orders by not providing Y to spend time with Mr Darley. As was clear from various exchanges, I was attempting to gain an appreciation of Ms Darley’s case in circumstances where – as was made clear to the parties – I had not then had the opportunity to read Ms Darley’s material, which included an affidavit of some hundreds of pages in length. Further, at the subsequent time at which Ms Darley made the application that I recuse myself, I was about to hear the parties about their respective applications to vary the existing parenting orders and, consequently, had not determined the balance of Mr Darley’s contravention application or delivered any reasons in respect of Ms Darley’s reasonable excuse defence to Mr Darley’s allegations of contravention. Given this, I am not persuaded that the comments made during the various occasions on which the parties were before me prior to Ms Darley’s application that I recuse myself demonstrated that I had prejudged the case against her or that I had made up my mind contrary to the case she advanced or that my mind was closed to the issues that she raised and was not open to persuasion in relation to her case. I am not persuaded that the hypothetical bystander, possessed of the requisite knowledge, would, in the circumstances of the exchange between myself and Ms Darley, reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of the parents’ competing applications to vary the parenting order and the extant applications before me.
As I appreciated it, Ms Darley submitted that, in finding in the Reasons for Judgment delivered on 18 December 2018 that she had psychologically and emotionally abused the children by taking them for medical treatment after what she described as Mr Darley’s repeated neglect and abuse, but failing to make a finding that Mr Darley had committed physical abuse by harming the children and psychological and emotional abuse by repeatedly photographing them before every handover (an action to which he made admissions when cross-examined during the previous trial), I demonstrated gender bias and actual bias against her. As I appreciated it, it was also submitted in essence that, given the adverse finding made against Ms Darley and the absence of adverse findings made against Mr Darley in 2018, the hypothetical bystander would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of the current outstanding proceedings.
As noted earlier, the Reasons for Judgment delivered on 18 December 2018 contain findings that are adverse to each of Ms Darley and Mr Darley; further, despite the finding relied on by Ms Darley as providing the basis for her assertion that I am biased against her and her case and/or that the hypothetical bystander would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of the current competing applications to vary the parenting order, it is clear that Mr Darley was unsuccessful in 2018 in his previous attempt to have orders made for the children to live with him. Given this fact, I am not persuaded that the failure to make a finding in the manner advanced by Ms Darley demonstrates that I have prejudged the case against her or that I have made up my mind contrary to the case she advances or that my mind is closed to the issues that she raises and is not open to persuasion in relation to her case. I am not persuaded that the hypothetical bystander, possessed of the requisite knowledge, would, in the circumstances, reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of the current competing applications which are before me.
I am not persuaded that the fact that the December 2018 orders specifically provide for the children to spend time with Mr Darley on their birthdays (if they are not otherwise spending time with him) but do not specifically provide for the children to spend time with Ms Darley on those days if they are not otherwise in her care demonstrates the existence of actual bias against Ms Darley or that, by virtue of this, the hypothetical bystander, possessed of the requisite knowledge, would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of the current applications before me.
Ms Darley submitted that I obstructed her attempts to subpoena Mr Darley’s medical records and thereby sought to suppress vital evidence against Mr Darley so as to achieve what she described as my desired outcome. Such submissions need to be seen in the context that I made an order granting her leave to issue a subpoena, directed to a specified medical practice, seeking the provision of information about Mr Darley and the children and their medical issues.
I am not persuaded that, in delivering what I described, in paragraph 15 of the Ex Tempore Reasons I delivered on 5 August 2022, as an “addendum” which would:
(a)outline the history of the current proceedings; and
(b)summarise the competing proposals; and
(c)identify the issues raised,
(so as to provide the Child Court Expert who had been ordered to prepare a report with a “high level” appreciation of the issues raised in the material filed with the Court), I demonstrated actual bias against Ms Darley or acted in a way that would cause the hypothetical bystander, possessed of the requisite knowledge, to reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of the current applications before me.
I also not that paragraphs 15 to 17 inclusive of the August 2022 Reasons are in the following terms:
15. As I also raised with the parties, it is my intention to attempt to provide – by way of what will be an Addendum to these Reasons, in a sense – short Reasons outlining the history of the current proceedings before me and the competing applications and by way of, I suspect, subparagraphs, an identification of the issues raised on the material filed. I emphasise that the purpose of doing that exercise is to assist the Child Court Expert to gain an appreciation, even if it is on a, in a sense, “high level” (by which I mean absent full particularisation of all of the particulars contained in the material) of the issues that are raised on the material. Of course a copy of that will be provided to the parties.
16. Therefore, I will also make an order that, once that is settled, the Addendum be provided to the Child Court Expert by way of order made in Chambers. The order made in Chambers will also include a Notation that the Child Court Expert should not regard themselves as bound by that summary. It is intended to be an aid, not a restriction, to the consideration of issues raised by either parent or the children; it is an endeavour to assist the process. The parents should not feel in any way constrained to raise an issue that is not mentioned there.
17. If in compiling that document I omit an issue that a parent has raised, I can only say in advance to the parents that any omission is not intended to mean that they are constrained from raising an issue; or that, at the hearing that I will set for two days on 14 and 15 September of this year, they are prevented from raising it. It may be that I have simply summarised too heavily and not provided enough detail – they are, of course, at liberty to provide whatever information they consider appropriate to the Child Court Expert during the interview process that will occur in order for the full report to be prepared.
That, on occasion, I have not done what Ms Darley has submitted should have been done or that I have not previously determined issues as she has advocated they should have been determined does not, it seems to me, provide a proper basis for a conclusion that, irrespective of the evidence before me, I will prejudge matters in a manner adverse to her or that there is a reasonable apprehension that whatever decisions are made to finalise the outstanding applications will inevitably be adverse to Ms Darley because I am biased against her and/or her case. Similarly, I am not persuaded that a hypothetical fair-minded observer, possessed with the requisite knowledge, would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues that are yet to be decided.
For the reasons expressed, I decline to accede to Ms Darley’s application that I recuse myself from further hearing those applications that are currently before me.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 24 March 2023
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