Dawar and Dawar
[2019] FamCA 569
•4 September 2019
FAMILY COURT OF AUSTRALIA
| DAWAR & DAWAR | [2019] FamCA 569 |
| FAMILY LAW – PRACTICE AND PROCEDURE – DISQUALIFICATION –Application for disqualification on the basis of actual bias and apprehended bias – Discussion of applicable principles – Where evidence does not support the wife’s application on either ground – Where application dismissed. |
| Family Law Act 1975 (Cth) Family Law Amendments (Family Violence and Cross-Examination of Parties) Act 2018 (Cth) |
| Anae v R [2018] NSWCCA 73 Isbester v Knox City Council (2015) 255 CLR Johnson v Johnson (2000) CLR 488 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR Royal Guardian Mortgage Management Pty Ltd v Ngyuen [2016] NSWCA 88 |
| APPLICANT: | Ms Dawar |
| RESPONDENT: | Mr Dawar |
| INDEPENDENT CHILDREN’S LAWYER: | Barker & Barker Solicitors |
| FILE NUMBER: | CAC | 1974 | of | 2017 |
| DATE DELIVERED: | 4 September 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 7 August 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-Represented Litigant |
| COUNSEL FOR THE RESPONDENT: | Mr Haddock |
| SOLICITOR FOR THE RESPONDENT: | Dobinson Davey Clifford Simpson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barker & Barker Solicitors |
Orders
The applicant wife’s Application in a Case dated 29 April 2019 be 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 Dawar & Dawar 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 SYDNEY |
FILE NUMBER: CAC1974/2017
| Ms Dawar |
Applicant
And
| Mr Dawar |
Respondent
REASONS FOR JUDGMENT
This was an application by the wife that I disqualify myself for actual bias and apprehended bias against her in final property and parenting proceedings.
The wife was self-represented as she has been throughout this matter. Mr Haddock of Counsel acted for the husband and Mr Ridge, Independent Children’s Lawyer, acted for the children.
Both Mr Haddock and Mr Ridge submitted that I had not shown either actual bias or apprehended bias towards the wife throughout the proceedings.
I asked the wife during the proceedings if her application was that I had shown actual bias or an apprehension of bias. Whilst her response was unclear, it appears to me it is both actual bias and an apprehension of bias.
For the wife I read the following:
a)Affidavit of 21 May 2019 and 30 April 2019; and
b)Applications in a Case of 21 May 2019 and 29 April 2019.
The wife attached a bundle of exhibits to her affidavit of 21 May 2019 which consisted of portions of the transcript which she alleged indicated I had shown bias or displayed at apprehension of bias towards her.
In addition, the Family Report of Dr B, which is Court Exhibit 1 in the part heard final proceedings, was also referred to by the wife.
The husband filed written submissions in response to the wife’s application which were adopted by the Independent Children’s Lawyer.
This is the second interim application in these proceedings. The matter is part heard for three days to resume in September 2019, and is part heard from five days of hearing in April 2019.
The issues before the Court for final determination concern parenting and property. The wife has made very serious allegations against the husband of coercive, threatening, violent, controlling and manipulative behaviour directed towards her during the relationship and post-separation, and alleges that the husband continues to harm the children psychologically and emotionally and has physically slapped them post-separation.
In light of the wife’s most concerning allegations of domestic violence at the conclusion of the part heard hearing, and reiterated at the first interim hearing, I raised with the wife the possibility of her obtaining legal representation pursuant to the Family Law Amendments (Family Violence and Cross-Examination of Parties) Act 2018 (Cth), which is now mandatory as of 10 September 2019. The wife is yet to cross-examine the husband and her case has not yet opened. The matter had originally been part heard to August prior to this law becoming mandatory.
However in April 2019, I was concerned, as was the Independent Children’s Lawyer and the husband’s solicitor, that the wife’s allegations were of such magnitude that she ought receive the benefit of that law and have legal representation at the final hearing. Additionally, her distress during the trial when being questioned on her serious allegations of domestic violence necessitating various adjournments, raised concern for me as to her capacity to confront the husband with these allegations. The wife refused this assistance at the conclusion of the part heard matter and again at the interim hearing in May 2019, stating only she could cross-examine her husband and that she, not a solicitor, must do this.
Returning to the current application, the law in relation to a disqualification is well settled.
An allegation of actual bias is a grave and exceptional allegation, as held in the matter of NADR v Minister for Immigration and Multicultural Affairs.[1] In that matter, Justice Emmett observed at paragraph 16:
A finding of actual bias is a grave an exceptional matter. The accusation of such bias must be firmly established. It cannot be sufficient to establish actual bias to invite a court to find that would have come to a different decision from the decision-maker. Even factual error or faulty reasoning, notwithstanding that the factual error might be serious or the reasoning might be totally illogical, is not of itself sufficient to lead to a finding of actual bias.
[1]NADR v Minister for Immigration and Multicultural Affairs (2002) FCA 361 (“NADR”).
Similarly, the decision of Reid v Commercial Club (Albury) Ltd,[2] (“Reid”) the NSW Court of Appeal, of whom Justice Emmett was a member, conveniently summarised from paragraphs 68 to 69, the relevant principles as follows:
A finding of actual bright bias is a grave matter. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required.
Where the issue is actual bias in the form of pre-judgement, the appellant had to establish that the primary judge was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
[2]Reid v Commercial Club (Albury) Ltd (2014) NSWCA 98.
Their Honours in Reid also referred to Justice’s Gleeson CJ and Gummow J’s observations in Minister for Immigration and Multicultural Affairs v Jia Legeng (“Jia”), noting that “the question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion”.[3]
[3] Reid, [70]; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR. 507(“Jia”).
As His Honour Justice Hayne opined in Jia from paragraphs 185 to 186, there are several elements to a claim of actual bias, namely:
a)the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case;
b)the decision-maker will apply that opinion to the matter in issue; and
c)the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.
Their Honours in Reid stated Justice Hayne’s opinion in Jia that allegations of actual bias through prejudgement often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, “it does not follow that the evidence will be disregarded”.[4]
[4] Jia, [186].
With respect to the principles relating to apprehended bias, Justice Moore’s decision in Hartnett v Sampson[5] sets out the principle. It is as follows: “whether the fair-minded observer would conclude the judge had formed opinions which might affect his or her determination of outstanding matters”.
[5]Hartnett & Sampson [2008] FamCA 75, [13].
As the Full Court opined in Isbester v Knox City Council[6] in applying the test for apprehended bias, it is important to emphasise that the fair-minded lay observer “is taken to be aware of the nature of the decision in the context in which it was made, as well as to have knowledge of the circumstances leading to the decision”. This statement is a further refinement of his Honour Justice Kirby’s decision in Johnson v Johnson[7] (2000) CLR 488 at paragraph 53:
The attributes of the fictitious bystander to whom the courts defer have been variously stated. Such a person is not a lawyer. It neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily need to be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the very strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Finally a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
[6] Isbester v Knox City Council (2015) 255 CLR.
[7] Johnson v Johnson (2000) CLR 488, [53].
In the 1976 High Court decision of R v Watson[8] their Honours opined:
The view that a judge should not hear a case if in all the circumstances the parties or the public might reasonably suspect he was not unprejudiced and impartial, and that if a judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct principle. It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend all suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.
[8]R v Watson [1976] HCA 39, [15].
This last position was further explored in Ebner v Official Trustee in Bankruptcy:[9]
In case of real doubt it will often be prudent for a judge to decide whether or not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view of the matter of disqualification.
[9]Ebner v Official Trustee in Bankruptcy [2000] HCA 6, [20].
Other relevant decisions are the decisions of the New South Wales Court of Appeal in Royal Guardian Mortgage Management Pty Ltd v Ngyuen[10] (“Royal Guardian”), a decision of the New South Wales Court of Criminal Appeal , Anae v R[11], (“Anae”) and that of the Family Court Appeal division in Huda & Huda & Laham[12] (“Huda”).
[10]Royal Guardian Mortgage Management Pty Ltd v Ngyuen [2016] NSWCA 88.
[11]Anae v R [2018] NSWCCA 73.
[12]Huda & Huda & Laham [2018] FamCAFC 85.
In Royal Guardian, apprehended bias was found and the Court referred to Justice Callinan’s decision in Concrete Pty Ltd v Parramatta Design and Development Pty Ltd[13] when describing judicial behaviour. I quote from paragraph 17 of Justice Callinan’s decision and the words of Lord Brown as follows:
Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses. Especially not during evidence in chief. He must not appeared hostile to witnesses least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.
[13]Concrete Pty Ltd v Parramatta Design and Development Pty Ltd [2006] HCA 55.
In Anae, the test as expressed begins at paragraphs 50 and reads as follows:
The test for apprehended bias is uncontroversial and the relevant principles were summarised by this court in Tarrant where actual bias is not alleged. The legal test as expressed in Johnson v Johnson requires that the court is satisfied that 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.
Their Honours subsequently state that this double test is by no means easy to apply and its application requires attention to four discrete elements, which are as follows:
First there is the postulate of the fair-minded lay observer. Their Honours comment this reflects the principle that it is public confidence in the administration of justice which is sought to be preserved and not the capacity of a judge.
Secondly, the test is being described as ‘objective’ by which it is meant a third party’s assessment of the judge’s conduct and capacity, and not, as with actual bias and assessment of the judge’s own state of mind.
Thirdly, there is said to be as two-stage process required; it is necessary to articulate ‘the connection between the events giving rise to the apprehension of bias through pre-judgement and the possibility of departure from impartial persistent decision-making’.
Fourthly, use of the term “might” lowers the burden of proof below that of probabilities. Thus the court not need not be satisfied that the fair-minded lay observer would have such an apprehension, nor need any apprehension in the mind of the observer involve a state of satisfaction on the probabilities. Apprehended bias of the trial Judge was found to exist.
In the third matter of Huda, apprehended bias was not found by the Full Court of the Family Court, however procedural unfairness was found on the basis of the Trial Judge’s interventions, the number of interventions, the length of the interventions, the circumstances of the intervention which led to procedural unfairness but not bias.
It is for the wife to satisfy these tests.
The test in matters of actual bias is the Judge’s state of mind, which can only be evidenced from the transcript. The wife has chosen to not provide the entirety of the transcript, instead providing parts of the transcript which she alleges shows both actual bias and apprehended bias.
The basis of the wife’s claim of actual bias would appear from her affidavit to be my referencing to her husband being a health professional. In her affidavit of 30 April 2019, the wife sets out statements she says which supports her allegations of my actual bias:
Do you madam, even know how hard it is to become a [health professional] and do the exams? What did you expect from him?
Are you a [health professional], madam?
He is a [health professional], . You are not a [health professional], madam.
He is a [health professional], what you want from him?
He is a [health professional], he knows how to treat eczema. You are not a [health professional].
The transcript provided by the wife reveals no such comments, but does reveal comments such as, “Well, his father is actually a [health professional] isn’t he. We can’t avoid that fact, can we?” This related to an issue of whether one of the children, X, had eczema or not. The father asserted that he did, whilst the wife asserted he did not, and that the lesions on his skin were from the child self-harming.
In the disqualification hearing before me on 7 August 2019, the wife said paragraphs 5 to 15 and 45 of the transcript dated 3 April 2019, demonstrated my bias against her because I said the father was a health professional. From a reading of the transcript, it is apparent that I was in fact trying to ascertain what the wife’s position was in regard to whether her son had eczema or not at that time. It was clear the father’s position was the child did have eczema at this time.
At a further part of the transcript I said the following words:
Because it is very hard, these exams to become a health professional, you know that you lived through it didn’t you, so is there no possibility that that could have been what it was.
The transcript supports this was an attempt by me to have the wife look at the reasons for her unhappiness in the United Kingdom in a different way to that which was expressed in her affidavit, namely the husband’s very poor treatment and need to control her.
Referring to the husband being a health professional during the hearing does not in any way support actual bias by me against the wife. The statements are a matter of fact and no finding or pre judgment emanates from these words. I have made no findings in this matter as the evidence has not closed.
Given the heavy onus upon the wife to establish actual bias combined with a paucity of evidence to support her assertion I reject her claim of actual bias.
With respect claim of apprehension of bias. The wife asserts I have expressed opinions as to the likely outcome of the matter prior to the conclusion of the evidence. It is highly relevant to this claim that the husband has yet to be cross-examined in relation to the very serious allegations of violence, coercion, control and abuse during the marriage and post-separation made by the wife.
The wife also claims that my comments would demonstrate an apprehension of bias towards her as her husband is a health professional, she will not be awarded a fair trial nor has she been afforded the degree of professional courtesy as required by the code of judicial conduct.
Going to the question of apprehension of bias and relying upon decision in Anae:
a)First there is the postulate of the fair-minded lay observer. Their Honours comment this reflects the principle that it is public confidence in the administration of justice which is sought to be preserved and not the capacity of a judge.
b)Secondly, the test is being described as objective by which it is meant a third party’s assessment of the judge’s conduct and capacity, and not, as with actual bias and assessment of the judge’s state of mind.
c)Thirdly, there is said to be as two-stage process required, it is necessary to articulate the connection between the events giving rise to the apprehension of bias through pre-judgement and the possibility of departure from impartial persistent decision-making.
d)Fourthly, use of the term “might” lowers the burden of proof below that of probabilities. Thus the court not need not be satisfied that the fair-minded lay observer would have such an apprehension, nor need any apprehension in the mind of the observer involve a state of satisfaction on the probabilities.
In the Royal Guardian case:
The test for apprehended bias is uncontroversial and the relevant principles were summarised by this court in Tarrant where actual bias is not alleged. The legal test as expressed in Johnson v Johnson requires that the court is satisfied that 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.
The questions I have been tasked to decide in the substantive proceedings are the party’s entitlement to their matrimonial property, whether I rebut the presumption of equal shared parental responsibility, whether this resides solely with the wife and the time the father is to spend with the children.
The wife’s application for final orders did not seek a no time order, or that time with the children and their father be supervised. Rather, the wife’s position in her affidavit, to Dr B, and throughout her evidence, was that she wanted the children to spend time with their father as they had been doing prior to the hearing, and wished for the father to maintain drug and alcohol testing. The wife’s application may change at the resumption of the part heard hearing, however at the time of the first stage of the hearing, it was the wife’s case that the children should spend time with their father unsupervised, that this time be limited and not as he sought an equal time arrangement, and that drug and alcohol testing continue.
The wife asserts I said to her, “You, madam provoked your husband to hit you. It is not his fault”.
No such sentence or words are in the transcript she has provided. At no time did I say these words to the wife.
During the trial, the wife was questioned by Mr Haddock along the following lines: “Why would you argue and provoke your husband when the children were in the vicinity when your case was that if you challenged him he became violent”. The wife had difficulty understanding this concept and I did my best to explain to her that although the husband’s behaviour as described by her is completely unacceptable, there was an issue that on her own evidence, there were times when she provoked her husband in the presence of the children, and the children witnessed poor behaviour.
On this point, one of the factual issues being explored was that the wife said she came home with the children late one night. She and the husband were sleeping in separate bedrooms. The wife believed she heard a woman’s voice in her husband’s bedroom. One of the children was with her. The wife knocked on his bedroom door calling out to him to come out. The wife described the husband opening the door and being angry, aggressive and violent in front of the child. Accordingly, she and the children left the home.
What was being explored with the wife in that incident was that knocking on the door whilst one of the children was with her put the child at risk, given there appears to be no reason for her to have taken this action at that time. The wife initially said, “I had not thought of that”, and then became agitated, rhetorically asking, “Am I not allowed to knock on my husband’s door when there is another woman in the house”, failing to understand the import of the question.
The wife claimed that I failed to give her an opportunity to address any objections to the husband’s material, and that I had allowed Mr Haddock to raise objections to the wife’s material prior to the hearing, which is to the applicant’s prejudice and demonstrates a biased approach. On the first day of the trial, I asked the wife whether she intended to object to any of the husband’s material and she declined. I have renewed that offer to her and she may do so at the resumed hearing.
The wife alleged that I “dismissed the evidence of a third party prior to submissions”. The wife is yet to commence her case, and I have given her leave to file an affidavit of her psychiatrist or psychologist and have not yet heard her submissions.
In the wife’s affidavit of 21 May 2019, some of the allegations of the 30 April 2019 affidavit are repeated, however, there are fresh allegations, namely:
You complain, complain, and complain.
The transcript does not support this comment.
You are a feisty woman.
You make complaints about everyone consistently. It is a significant issue in this matter, your conduct.
Your own material causes me significant concern as to your functioning and how you behave in the society in general. Just because you don’t get your way doesn’t mean you complain.
Your parents were very difficult for you on your own evidence. I don’t want your children to suffer the same fate.
They disowned you can I just say I apprehend you are very similar to your parents why wouldn’t you be you are their child. This might be a problem, a real problem for you bringing up two boys.
Is that your husband who isolated you or was he studying so damn hard to get his qualification that you could not go out and do things?
The transcript does not reveal this statement.
You are highly litigious, highly litigious, do not take backward step, you let nothing go it may rebound on you, madam, it may rebound on you.
Why are you getting upset?
I might say your former husband was being very responsible. It is consequences we girls have from having babies you can’t do anything about it. Yet you try to make out that it was a negative about him. Again him controlling you and not letting you work? Do you see another way of looking at it?
Are you telling me this gentleman has not disclosed is operating bank accounts for his businesses. I find that impossible to accept.
What the transcript supports is the following exchange:
You make complaints about everyone consistently. It is a significant issue in this matter, your conduct. In the material I have read your own material not what your husband has said. Your own material causes me significant concern as to your functioning and how you behave in society in general. Just because you don’t get your way does not mean you make a complaint. You are not in control.
You have done it with the police . You’ve done with the Health Commission. --- Yes, your Honour.
I believe you’ve done it sometimes with your children’s school. If you believe your rights are infringed and things aren’t right, you go for it. That has a consequence for you. The position you’re taking might have a consequence for you because you may not be right you might have forgotten something, you might have made a mistake, but the deadset certainty is that in everything you write, that you do, to the police, to the court, to everyone, leaves you no room. --- That’s right, your Honour.
And that’s actually an issue I want to explore with Dr B in the parenting proceedings. --- Yes, your Honour.
Because I’ll tell you I have been doing this a long time madam and parents who have absolutely no flexibility in a point of view make very difficult parents for children. --- Yes.
Your parents were very difficult for you on your own evidence. I don’t want your children to suffer the same fate you suffered at the hands of your parents, I really don’t. --- My parents, your Honour?
Yes, your parents didn’t support you through all of this. --- No, your Honour.
Your parents disowned you. --- Yes, your Honour.
They made life really difficult for you. --- Yes, your Honour.
Because they no doubt have their fixed views and position about things, and they’re entitled to have that, but it has had a very bad consequence for you, and can I just say to you, I apprehend you may be very similar to your parents. Why wouldn’t you be, you are their child. This might be a real problem for you bringing up two boys. These are things no one’s ever spoken to you about I suspect never even raised it. You know living in Australia children challenge their parents. --- They do, your Honour.
You were the one who hurt your children.
These words are not in the transcript tendered.
What are you laughing for? What are you crying for?”
The wife asserts that I repeatedly expressed disrespect towards her, which made it impossible for her to adequately and effectively represent herself in this action by saying words to the effect of: “I am not going to read your affidavit”. These words are not in the transcript tendered.
The wife has not yet opened her case and has only been cross examined thus far.
In relation to the wife’s allegation that I said, “girls are meant to have babies that’s just the way it is your husband did the right thing by not sending them to childcare”, the transcript does not support these words were said. Rather, the transcript supports the following exchange:
I might say your former husband was being very responsible. It’s the consequence we girls have of having babies can’t do anything about that. You tried to make out that was a negative about him again him controlling you, not letting you work. Do you see another way of looking at it now? – Absolutely, your Honour. I would like to have an opportunity in cross-examination your Honour. --- You will, you will. --- Thank you. --- You will have your opportunity.
This was my attempt to ask the wife to look at her complaint of the husband controlling her and not letting the work in a different way as at this time the child was but 3 months of age.
Again with the wife’s complaints about being isolated when they were first married in the United Kingdom and that this was a part of his control of her. This was at a time when the husband was sitting and studying his exams to become a health professional. I attempted to have the wife to look at this in a different light; that she was lonely, that her husband was not available to her as he was studying for exams, exams that were difficult and exams that she also had to live through. The wife has turned that into bias against her when I was merely asking her to look at other reasons for why she was so unhappy in the United Kingdom.
This is not bias, nor an apprehension of bias. Rather, it is an attempt by a Judge to ask the wife to look at the matter in a different way to ensure she understands the decision made may be different from that which she wants the Court to make. The wife has confused this important aspect of judicial intervention with pre-judging the matter or being unfair to her.
I accept the submissions of Mr Ridge and Mr Haddock that the reasonable observer would not apprehend bias, rather a Judge trying to assist a self-represented mother in a very difficult situation in a parenting and property matter in which she alleges significant and serious physical, emotional, coercive and controlling behaviour by the husband.
Consistent with the wife’s behaviour when being interviewed by Dr B and reported by him, it was difficult to posit a contrary point of view to the wife without her becoming extremely upset.
The wife claimed that I repeatedly and excessively interrupted her and more so during cross examination of Dr B.
Both Mr Haddock and Mr Ridge submitted that I had shown no bias to the wife nor an apprehension of bias towards her. Each submitted that I had intervened in her cross-examination of Dr B and that this had, to use Mr Ridge‘s words, been of “invaluable assistance” to the wife in framing allowable questions and thus obtaining evidence from him that was important to her case.
That I had intervened in her cross-examination to either assist her to understand a question, point out a different way of looking at events, prepare the wife for a possibility that her position may not be my ultimate position, let the wife know what I was taking from her answers so that she could deal with this in re-examination, and correct any erroneous view I had formed, or deal with these matters in her closing submissions or to control the wife whose behaviour at times bordered on histrionic.
It is clear from the transcript that what was in my mind was controlling the proceedings, ensuring the wife asked the questions she wanted of Dr B, that she understood that her way of looking at matters may not be the only way of looking at matters, and that I may not ultimately agree with her position.
The evidence the wife has produced does not support her assertion of either actual bias nor an apprehension of bias. Using the dicta from Anae, there is no connection between the words used by me and the wife’s claim of apprehension of bias that would form a basis for an objective third party to form a view I had either prejudged the matter or would depart from impartial decision making in my judgment.
For all the above reasons, I dismiss the wife’s application.
Although it is correct the Court must be mindful of a waste of resources in that an Appellate Court may arrive at a different position to that which I have come to in this judgment, I am now part heard in this matter which has run for five days with a further three days of evidence in September. Only the wife and Dr B have been cross-examined. The remainder of time set aside for the trial is for the wife to cross examine a handwriting expert and the father, present if she wishes and affidavit of her treating psychologist and/or psychiatrist, and any other evidence she may wish me to receive into evidence, and then for submissions.
I am yet to hear the wife’s cross-examination of the father, read a report from her current psychologist or psychiatrist or hear her submissions. Given where the evidence is at, I do not accept that I have in any way either prejudged the outcome, prevented the wife from presenting her evidence, asked questions she wanted of the experts, nor dealt with her in a disrespectful way. The transcript would reveal an attempt, not apparently successfully, by the Court to inform the wife that her position may not be the position the Court takes at the end of the day, to look at the matter from a different perspective so that she can address me on those matters in her case and submissions.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 6 September 2019.
Associate:
Date: 4 September 2019
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