Edhouse & Edhouse (No 2)
[2024] FedCFamC1F 102
•29 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102
File number(s): SYC 4161 of 2021 Judgment of: KARI J Date of judgment: 29 February 2024 Catchwords: FAMILY LAW - COURTS AND JUDGES – Apprehended Bias – Application for disqualification of a judicial officer –Whether the judge’s comments might lead fair-minded lay observer to reasonably apprehend that the judge may not decide the case other than on its legal and factual merits – Consideration of the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 - Where the comments of the judge should be read in the full context in which they were made – Where the docketed judge has acquired cumulative knowledge of the matter – Apprehended bias not established – Application dismissed Legislation: Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 69ZN, 69ZP, 69ZQ, 69ZR
Cases cited: Acheson & Begbie [2023] FedCFamC1F 704
Adlin & Northern Territory Central Authority (No.5) (2021) FLC 94-019
Charisteas v Charisteas (2021) 273 CLR 289
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Edhouse & Edhouse [2021] FedCFamC1F 79
Edhouse & Edhouse [2022] FedCFamC1A 84
Field v Kingston (2018) FLC 93-850
Johnson v Johnson (2000) 201 CLR 488
Johnson N v Johnson ML (1997) FLC 92-764
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Re JRL; Ex parte CJL (1986) 161 CLR 342
Division: Division 1 First Instance Number of paragraphs: 100 Date of hearing: 16 February 2024 Place: Heard in Adelaide via Microsoft Teams, delivered in Adelaide Counsel for the Applicant: Mr Grew Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Ms Cantrall Solicitor for the Respondent: Lander & Rogers Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors ORDERS
SYC 4161 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EDHOUSE
Applicant
AND: MS EDHOUSE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
29 FEBRUARY 2024
THE COURT ORDERS THAT:
1.That paragraph 2 of the Application in a Proceeding filed 9 February 2024 be dismissed.
2.That the balance of the Application in a Proceeding filed 9 February 2024 (paragraphs 3 and 4) be listed for hearing at 10.00 am on the first day of trial, 4 March 2024.
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 Edhouse & Edhouse has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These reasons relate to an application brought in parenting proceedings that I be disqualified from further hearing the proceedings.
The reason for that application is that the mother apprehends that I may not bring an impartial mind to the resolution of the proceedings.
The application forms part of that filed by the mother on 9 February 2024. The application is opposed by the father. Whilst there is an Independent Children’s lawyer (“ICL”), the ICL did not wish to be heard on the application.
For the reasons that follow, the application is to be dismissed.
BACKGROUND
Preliminary comment
To understand the disqualification application, the context in which it has arisen needs to be understood. This context is important in circumstances where the matter has been docketed to me and actively case managed by me for some time prior to the events which form the foundation of the mother’s application.
Necessarily, where a case had been docketed and/or judicially managed, the judicial officer brings cumulative knowledge about the proceedings, acquired over several hearings, to each hearing and ultimately any final hearing. Moreover, when proceedings are docketed and/or judicially managed, it would be impossible for any judicial officer not to bring that acquired cumulative knowledge to each hearing and ultimately any final hearing.
The benefits of active case management of this nature are numerous. Amongst the benefits is that the judicial officer is familiar with the matter, the disputed facts and the issues to be tried. This familiarity allows for case specific management, targeted at focussing the parties and the court on the resolution of those facts and issues; whether through some form of alternate dispute resolution (avoiding the delays and costs of a final hearing), or through a contested final hearing. In addition, this familiarity allows for a case to proceed to a final hearing at the earliest opportunity, as the attention of the court and the parties is focussed, with less opportunity for distraction by issues that do not go to the heart of the disputed facts and/or issues to be tried.
From the perspective of the court there are overarching benefits to the administration of justice derived from active case management of this nature. Amongst those benefits is maximising the use and availability of judicial resources, as amongst other things, less time is required addressing the background of the proceedings at every court hearing and/or in preparation for the same.
As discussed by the High Court in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 (at [174]-[177]):
174.The Federal Court has adopted a docket system. In that system a number of cases are assigned to a particular judge who then oversees, and makes directions with respect to, all interlocutory matters before hearing a case assigned to him or her. The procedure for trials in the jurisdiction also involves the preparation, exchanging and filing of statements and documents in advance of the hearing which may, and almost always will, be read before the trial begins.
175.This system has its disadvantages and dangers. On the one hand, the trial judge will be well educated in many of the details of the case on each side by the time that the hearing starts. But on the other hand, it may sometimes be difficult for the trial judge, apparently fully conversant with the facts and issues, not to have formed some provisional view at least of the outcome of the case…
176.I mention these matters because in sum they may well incline a trial judge towards a degree of outspokenness of a kind to which he or she would not be inclined in a conventional trial on largely oral evidence. That this is so does not provide any excuse for the manifestation of apparent bias on the part of a trial judge but it may explain why a judge finds himself or herself speaking more candidly and strongly than he or she might otherwise do, or even have been able to do, in the past or in other jurisdictions. The question nonetheless remains whether the fair-minded lay observer might reasonably have apprehended that the judge might not be bringing an impartial and unprejudiced mind to the resolution of the questions he was required to decide.
177.It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried. In any event, it would have been apparent to any observer from the trial judge's remarks here that his Honour was already well acquainted with the issues, and many of the details of the respective cases of the parties. Indeed, no other conclusion would have been open having regard to the matters which the trial judge raised and the way in which he expressed himself. That he had not formed any final view appears from the number and type of questions that he asked. For example, at one stage he enquired whether one way of looking at the case was a distorted way of doing so. A little later he said that the responses which had been made to him had given him useful background.
(Footnotes omitted)
Moreover, Part VII, Division 12A of the Family Law Act 1975 (Cth) (“the Act”), empowers and indeed requires the court, when conducting child related proceedings to take up active case management, so as to limit the impact of proceedings on the children who are the subject of those proceedings. The principles set out at s 69ZN of the Act provide:
69ZN Principles for conducting child-related proceedings
Application of the principles
(1)The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b) in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
In order to give effect to those principles, the court is invested with a range of duties and powers as follows:
69ZQ General duties
(1)In giving effect to the principles in section 69ZN, the court must:
(aa) ask each party to the proceedings:
(i) whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and
(ii) whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence; and
(a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b) decide the order in which the issues are to be decided; and
(c) give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d) in deciding whether a particular step is to be taken—consider whether the likely benefits of taking the step justify the costs of taking it; and
(e) make appropriate use of technology; and
(f) If the court considers it appropriate—encourage the parties to use family dispute resolution or family counselling; and
(g) deal with as many aspects of the matter as it can on a single occasion; and
(h) deal with the matter, where appropriate, without requiring the parties’ physical attendance at court.
(2)Subsection (1) does not limit subsection 69ZN(1).
(3)A failure to comply with subsection (1) does not invalidate an order.
69ZR Power to make determinations, findings and orders at any stage of proceedings
(1)If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c) make an order in relation to an issue arising out of the proceedings.
Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2)Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3)To avoid doubt, a person who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
Importantly, any of the duties and powers set out in ss 69ZQ and 69ZR of the Act can be exercised by the court of either its own volition, or at the request of one or more of the parties to the proceedings.[1]
[1] Family Law Act 1975 (Cth) s 69ZP.
These powers of the court might give the impression at times that a judicial officer is overtly directive of proceedings. It is however a necessary element of ensuring that the best interests of children are at all times the paramount concern of the court.
These reasons should be read against these introductory remarks.
The parties and the litigation
The parties to these proceedings are the parents of the child X (born 2019), who is five years of age.
The parties commenced their cohabitation in 2014, they married in 2015 and they separated on 10 February 2021.
Parenting proceedings were commenced by the father on 4 June 2021.
When the mother filed her Response to the parenting proceedings, she also raised financial issues. To the parties’ mutual credit, they were able to resolve the question of property settlement, with final orders made in that regard on 23 December 2022 by a Judicial Registrar.
The parenting dispute has become protracted. A final hearing however is scheduled to commence on 4 March 2024 before me, with 5 days allowed.
Throughout the course of the proceedings a number of different judicial officers have heard and determined various applications. In the context of the parenting proceedings, of significance:
(a)On 25 August 2021, a Senior Judicial Registrar made orders for X to live with the mother and spend time with the father for three nights each fortnight, with the same to increase to four nights each fortnight in January 2022. No orders were made with respect to allocation of parental responsibility. A further order however was made at the request of and with the consent of the parties for the preparation of a single expert family report by Dr F.
(b)On 22 September 2021, and as a consequence of an application for the review of the Senior Judicial Registrar’s decision, Justice Austin made orders for X to live with the mother and spend time with the father for two nights each week (from 5.00 pm Saturday until 7.00 pm Monday). An order was also made allocating sole parental responsibility to the mother.[2] These orders continue to be the living/time spending arrangements for X.
(c)On 2 June 2022, an appeal commenced by the father was dismissed by McClelland DCJ, Tree & Christie JJ in relation to the orders that had been made by Justice Austin on 22 September 2021.[3]
[2] Edhouse & Edhouse [2021] FedCFamC1F 79.
[3] Edhouse & Edhouse [2022] FedCFamC1A 84.
In or about April 2023 the proceedings were docketed to me, to case manage the proceedings and ultimately hear the final hearing.
The proceedings first came before me on 28 April 2023. The parties at that stage were in receipt of the Family Report prepared privately by Dr F dated 14 January 2022. At that hearing the parties indicated to the court (through their legal representatives) that they wished to participate in a mediation in an attempt to amicably resolve the parenting proceedings. Accordingly, orders were made by consent for a mediation to take place prior to the adjourned case management hearing on 19 July 2023.
In addition, orders were also made by consent for the mother to obtain and file reports from her treating specialist and General Practitioner. This order was made at the request of the father as recorded in the notation, in circumstances where the mother had disclosed to the father that she had been diagnosed with an illness and had undergone treatment for the same.
When the matter returned before me for case management on 19 July 2023, the mother was not in attendance. Moreover, the mother’s legal representative at that time, advised the court that she had been unable to contact the mother or take instructions from her from about 30 June 2023. In that circumstance, the mediation that had been scheduled to take place on 18 July 2023 pursuant to the to the orders of 28 April 2023, had not proceeded. In addition, the mother had not complied with the order made on 28 April 2023 for the filing of reports from her treating specialist and General Practitioner. Against that backdrop, the mother’s solicitors indicated that they intended to file a Notice of Withdrawal.
As a result of this information being conveyed to the court, orders were made to adjourn the case management hearing for a short period of time in an attempt to ascertain the position of the mother and have her engage in the proceedings. The proceedings were accordingly adjourned to 28 July 2023. A notation was also made that in the event that the mother did not attend the adjourned hearing, then the court would give consideration to issuing a warrant for the mother’s arrest.
At the hearing on 28 July 2023, the mother’s solicitor again appeared for the mother. This appearance was despite the fact that they had filed a Notice of Ceasing to Act for the mother on 24 July 2023. The mother’s solicitor explained to the court that the mother had been hospitalised and that this was the reason for her non-engagement. A hospital discharge summary report, in support of the same, dated early July 2023 had been provided to my chambers and the father’s solicitors by email shortly prior to the commencement of the hearing. That discharge summary set out the mother’s principal diagnosis as “Pneumonia – Community acquired” and indicated that the mother had been admitted after presenting to the emergency department in late June 2023 and discharged in early July 2023.
By the time of that hearing however, the mother remained in default of her obligations pursuant to the order made on 28 April 2023 for the filing of reports from her treating medical practitioners.
In all of those circumstances a range of orders were made on 28 July 2023, including orders which provided for:
(a)The mother’s solicitors to file and serve a Notice of Address for Service;
(b)An extension of time for the mother to obtain and file the reports from her treating specialist and General Practitioner;
(c)Leave for the father to issue subpoenas to five different medical facilities/specialists in relation to the mother’s medical treatment;
(d)The mother to file and serve a copy of the Discharge Summary dated July 2023; and
(e)No further case management hearing was allocated in circumstances where the proceedings were already listed for a First Day of Trial hearing on 24 August 2023, with a view to listing the matter for final hearing.
In addition, orders were made by consent placing X’s name on the Airport Watchlist and restraining each of the parents from removing X from the Commonwealth of Australia. These orders were made as the father had filed an Application in a Proceeding on 21 July 2023 seeking the same.
Following the hearing on 28 July 2023:
(a)The mother’s solicitors duly filed the Notice of Address for Service, but not the Discharge Summary, nor any affidavit annexing the medical reports from her treating specialist and General Practitioner.
(b)The father issued the five subpoenas he had been given leave to issue to each Dr G of H Medical Service, Dr J of K Medical Centre, Dr L, Dr M of N Medical Centre and P Hospital as well as an additional subpoena to Dr Q of R Medical Centre.
On 23 August 2023 the father filed an Application in a Proceeding, which he sought to have heard urgently. By that application, the father sought orders which significantly provided for him to have sole parental responsibility for X and that she live with him and spend supervised time with the mother.
By that application the father sought a range of additional orders including but not limited to:
(a)Orders for an updated Family Report to be prepared by Dr F;
(b)Orders permitting the father to provide to Dr G and N Medical Centre a number of documents that the mother had produced to the father through the discovery process in the proceedings, all being letters written by Dr G to the mother’s General Practitioner, Dr M.
(c)Orders requiring the mother to disclose to the father details of her health insurance policy and copies of letters referred to by the mother’s solicitors in correspondence to the father’s solicitors but not disclosed;
(d)Leave to issue five further subpoenas;
(e)The appointment of an Independent Children’s Lawyer.
When regard is had to the affidavit the father filed in support of that application, it is apparent that the father pressed such an application as he was concerned as to a range of potential risk factors concerning the mother and particularly the mother’s “physical and/or mental health and her capacity to care for [X]”[4] arising from:
[4] Father’s affidavit filed 23 August 2023, paragraph 22.
(a)The contradictory information produced by the mother to the father about her illness diagnosis and treatment as against the records, and/or lack thereof, able to be obtained by the father pursuant to subpoena and to that end:
(i)There were no records capable of production by Dr G, the mother’s specialist.
(ii)The records produced by the mother’s General Practitioner, Dr M, and/or N Medical Centre did not return any documents that confirmed the mother had been diagnosed with the illness and/or received any treatment for the same.
(iii)The records produced by N Medical Centre included an entry that the mother had been referred for a test in mid-2022 without any reference to the mother by that stage, to the father’s knowledge, having been diagnosed with and receiving treatment for her illness.
(iv)The records that were produced by N Medical Centre identified that in late 2022 the mother had not undertaken the test but the following month the results from the test indicated that the mother had a “[symptom]”.
(b)The lack of documents produced by P Hospital in relation to:
(i)The mother attending the hospital for anything related to her diagnosis, including the surgery.
(ii)The mother’s hospital admission between late June 2023 and early July 2023 and, in particular, there had not been production of the Discharge Summary dated early July 2023 which the mother had produced to the court through her solicitors at the time.
(c)The information contained in the notes obtained from the mother’s Psychologist Dr J which recorded:
(i)That the mother had advised that the maternal grandmother was deceased, something which the father did not know about and did not accept as accurate; and
(ii)That the mother first disclosed her diagnosis to Dr J in mid-2022, despite having four appointments with him across the previous month after the diagnosis was made.
The father’s Application in a Proceeding, was listed to the existing hearing the following day on 24 August 2023.
At the hearing on 24 August 2023:
(a)The mother’s solicitors again advised the court that they intended to cease acting for the mother.
(b)The order requiring the mother to file reports from her treating specialists and General Practitioner remained extant, together with the order for the mother to file a copy of the discharge summary dated July 2023.
(c)The order for the parties to participate in mediation remained extant.
(d)Orders were made:
(i)Listing the father’s Application in a Proceeding for a contested hearing on 26 October 2023;
(ii)For the mother to file and serve a Response to the said application and any affidavit in support by 29 September 2023;
(iii)For the parties to instruct Dr F to prepare an updated Family Report; and
(iv)Adjourning the First Day hearing to 7 December 2023.
On 4 September 2023, an order was made in chambers bringing the matter back for further case management on 7 September 2023. As explained to the parties at the hearing on 7 September 2023, I had done so as I was contemplating allocating the interim hearing an earlier date if possible, and because I wanted to know whether the mother had engaged new legal representation, which might allow an earlier hearing date.
The day after this order, the mother’s new legal representative filed a Notice for Address for Service.
At the hearing on 7 September 2023 leave was given to the father to provide copies of various medical records (all letters written by Dr G to the mother’s General Practitioner, Dr M) produced by the mother to the father (but not filed), to each to Dr G and to Dr M. Leave was also given to the father to file an affidavit from each Dr G and/or Dr M.
On 29 September 2023 the father filed an affidavit sworn by Dr G. The written contents of that affidavit is now reproduced in its entirety:
1.I am an associate and director in clinical practice with [S Medical Service]. [S Medical Service] provides comprehensive […] care for patients with various [illnesses] at [P Hospital].
2.I am currently the chair of the Section […] at [P Hospital] and the Clinical Director of [H Medical Service] comprehensive [treatment] centre at [P Hospital].
3.I acknowledge receipt of a subpoena which was issued to me in these proceedings, being a subpoena filed 2 August 2023. This subpoena was served on my practice by the Applicant's solicitors, Coleman Greig Lawyers (CGL) on 2 August 2023.
4.Upon receiving the subpoena, I caused correspondence to be sent to CGL advising that no records were held in relation to [Ms Edhouse], DOB […] 1983, who I understand is the’ Respondent named in these proceedings. Annexed hereto and marked with the letter “A” is a true copy of this letter dated 3 August 2023.
5.I understand that further communications were entered between CGL and [Ms T] who is employed by [S Medical Service] in relation to the Subpoena and more. Particularly the question of whether any records were held for the Respondent.
6.On 8 September 2023, a letter was received from CGL attaching 7 individual letters, purporting to be letters authored by me on behalf of [S Medical Service] which were addressed to a [Dr M] of [N Medical Centre]. Having read those letters, I note that they concerned the Respondent and specifically in relation to [medical] treatment that supposedly occurred whilst the Respondent was a patient under my care. Annexed hereto and marked with the letter “B” is a true copy of the letter from CGL dated 8 September 2023, together with the enclosures referred to therein.
7.Upon receiving this correspondence from CGL and reviewing the enclosures, I directed [Ms T] to respond to CGL advising that the 7 letters were not created by myself or were on behalf of [S Medical Service] and that the letters appeared to be fakes due to it not being my signature and the incorrect positioning of the [S Medical Service] logo on the letter. Annexed hereto and marked with the letter "C” is a true copy of this letter dated 11 September 2023.
8.Further in relation to the above, I confirm that at no times has a person by the name of [Ms Edhouse], DOB […] 1983 been a patient under my care and therefore there are no records held for this person which I am able to produce in accordance with the subpoena.
On 3 October 2023 the mother filed a Response to the Application in a Proceeding together with an affidavit in support of the same.
By her Response the mother sought orders:
(a)Dismissing the father’s Application in a Proceeding.
(b)Discharging the orders made by Justice Austin for time spending between the father and X;
(c)For a new four night each fortnight time spending regime between the father and X, commencing at the conclusion of school Friday until commencement of school Monday in alternate weeks, AND from the conclusion of school Wednesday until commencement of school Thursday in intervening weeks.
By that affidavit the mother, of significance for present purposes, variously deposed:
24.[Mr Edhouse] has alleged that I may not have had [an illness] and that instead I might be experiencing psychological disturbances.
…
26.As I understand [Mr Edhouse’s] position, he is seeking Orders for [X] to be removed from my primary care and for her to live with him based on his allegations that:
a. Certain medical records disclosed by me in the proceedings may not be authentic;
b. That I falsely claimed to have been diagnosed with [an illness], and undergoing treatment for same;
c. That I may be "experiencing psychological disturbance which may be causing her to either intentionally fabricate facts or circumstances, or genuinely believes those facts or circumstances to be true".
…
28.In respect of [Mr Edhouse’s] assertions about certain medical records disclosed in the proceedings, I am unable to give further details in relation to those documents unless and until I receive a certificate pursuant to section 128 of the Evidence Act.
29.I confirm I have been diagnosed with [an illness] in 2022. I attended upon [Dr G, specialist], for treatment under an assumed name due to my concerns regarding my privacy being invaded. [Mr Edhouse] has, during our marriage, involved himself in my medical treatment, referred me to various doctors, had access to my medical records and at times dictated my medical treatment as detailed in this Affidavit. This has continued post separation.
…
34.I completed a total of 16 round of [treatment] under the care of [Dr G], 4 cycles of [one treatment] three weekly followed by 12 cycles of [another treatment] weekly.
35.In late 2022 I attended [P Hospital] for a two-night stay and [Dr U] performed a [surgery].
36. I did not claim Medicare or private health fund rebates for my treatment.
37.I am unable to comply with the orders for the production of medical records in relation my […] treatment namely, order 5 made 28 April 2023 and extended by order 3 made 28 July 2023. I see that those orders be discharged.
…
65.My mother was diagnosed with [an illness] in about [mid] 2014. In about [early] 2022 my mother and father left Melbourne and returned to [Country V]. [In mid] 2022 my father rang and told me that my mother was unwell and in hospital.
…
67.My mother died in the early morning [in mid] 2022. I spoke about this with my treating psychiatrist that day. My mother’s memorial was [in mid] 2022 and her funeral took place [the following day].
68.I do not have a death certificate for my mother. Annexed to this affidavit and marked “E” is a photograph of my mother’s service program and three photographs of her funeral.
69.I did not tell [Mr Edhouse] that my mother had died because I did not believe he would be sympathetic towards me and I was worried he would accuse me of lying.
70.I have not told [X] that my mother has died as she was very upset when she learned that her god mother had passed away, and I did not want to upset her further…
…
85.I was hospitalised between [late] June 2023 and [early] July 2023 at [P Hospital] and was diagnosed with Pneumonia.
…
88.[In early] July 2023, I was discharged by [Dr W] who handed me a printout of my discharge summary which is annexed to this Affidavit and marked “H”. I do not know why that document has not been produced under Subpoena.
(As per the original)
The mother’s affidavit also contained as an annexure a copy of the Hospital Discharge Summary dated July 2023, but not reports from her treating medical practitioners and General Practitioner.
As it turned out, the hearing listed for 26 October 2023 proceeded as planned and was not brought forward. I propose to set out a summary only of what occurred at that hearing, but will discuss the hearing in more detail later in these reasons as my conduct at that hearing is a focus of one element of the mother’s concerns. To that end:
(a)Shortly after the commencement of the hearing, the mother’s solicitors sought leave, and were ultimately granted leave to withdraw, leaving the mother self-represented.
(b)Thereafter there was some discussion between myself and the father’s counsel about the mother’s position as foreshadowed in her recent affidavit as to her unwillingness to give further evidence without the benefit of a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) (“the Evidence Act”).
(c)The mother was then asked by me to stand at the bar table and I asked that she be sworn in, identifying that I was doing so, so that the matters that she put to the court would form part of her evidence.
(d)The mother was then sworn in.
(e)The mother thereafter sought an adjournment of the hearing so that she could engage new legal representation.
(f)The mother was asked by me (in light of the matters she had deposed), whether she would disclose the alias under which she had sought treatment.
(g)The mother declined to provide that name without the benefit of further legal advice.
(h)I thereafter did not require the mother to answer that question, but indicated to her that I was “troubled”[5] by her refusal to answer that question, and that the court was “entitled to draw inferences” by the mother’s refusal to answer that question.[6]
(i)The mother then indicated that she couldn’t answer that question “without a certificate”.[7]
(j)No further questions were directed to the mother, other than matters of a procedural nature.
(k)The proceedings were ultimately adjourned to 2 November 2023.
[5] Transcript 26 October 2023, p. 10 line 26.
[6] Transcript 26 October 2023, p. 10 lines 26-27.
[7] Transcript 26 October 2023, p. 10 line 31.
The matter returned before me on 2 November 2023. On that occasion:
(a)The mother was represented by new solicitors.
(b)Amongst the orders made were:
(i)An order listing the matter for trial commencing 4 March 2024.
(ii)An order adjourning the matter for further case management to 22 November 2023.
(iii)An order for the mother to file and serve any further affidavit that she intended to rely upon for the purposes of the extant interlocutory applications, with the same to be filed by 17 November 2023.
(iv)An order appointing an Independent Children’s Lawyer.
On 10 November 2023 the father’s solicitor wrote to my chambers to provide a jointly signed minute of proposed orders for the release of court documents to the Family Report writer Dr F.
In response to that communication, the matter was called for hearing on 15 November 2023, at which time the First Day hearing on 7 December 2023 was vacated and the proceedings were listed for interim hearing on 13 December 2023. I ultimately made orders in terms of the proposed orders emailed to my chambers by consent at the hearing.
The hearing on 13 December 2023 proceeded, with three separate orders published as follows:
(a)An order was made on the oral application of the mother during the hearing, granting the mother a certificate pursuant to s 128 of the Evidence Act in relation to her “[…] diagnosis, [treatment], [surgery] and pneumonia diagnosis”.
(b)Procedural orders were made for the filing of material and other associated matters to prepare the matter for trial.
(c)An order was made:
(i)Adjourning further consideration of an oral application made by the mother’s counsel during the hearing for the release of material filed in the proceedings to the mother’s treating practitioner Dr J, to 16 February 2024; and
(ii)Adjourning the father’s interlocutory application filed 23 August 2023 and the mother’s Response filed 3 October 2023 to 16 February 2024.
My conduct during the hearing on 13 December have also given rise to the mother’s concern, and shall be discussed in more detail later in these reasons. However for present purposes I record:
(a)This hearing was the first occasion that the mother made an application, which was made orally by her counsel (as foreshadowed in the Case Summary Document filed on 12 December 2023 by the mother in preparation of the hearing), for a certificate to issue pursuant to s 128 of the Evidence Act.
(b)As is clear from the orders that were made, that oral application was granted. Importantly the certificate that was granted was in the exact terms as sought by the mother.
(c)The father sought to agitate his Application in a Proceeding first filed in August 2023 for the change of X’s living arrangements. However, the father was dissuaded from doing so as a result of remarks from the bench, which included remarks that the matter had been given an early trial date on the basis that the application would not be pressed and because the court considered that the issues in dispute between the parties required a fulsome hearing.
(d)The mother additionally made an oral application for the release of material on the court file to the mother’s treating psychiatrist Dr J. That application was the subject of discussion between the mother’s counsel and the bench wherein I indicated that I was presently not favourably disposed to the application, but that I would consider it further when fulsome trial material was before the court, including but not limited to the updated report of Dr F. Accordingly, the oral application was adjourned to 16 February 2024.
THE DISQUALIFICATION APPLICATION
As earlier identified, the mother filed an Application in a Proceeding on 9 February 2024 (“the disqualification application”). The orders sought in that application were:
1.That this Application in a Proceeding be listed on an urgent basis.
2.That Justice Kari be disqualified from hearing this matter.
3.That the final hearing listed 4 to 8 March 2024 be vacated.
4.That the trial directions made 13 December 2023 be vacated.
(As per the original)
The disqualification application was accompanied by an affidavit of the mother also filed on 9 February 2024. That affidavit had attached to it transcripts from the hearings which took place before me on each 26 October 2023 and 13 December 2023.
The disqualification application was listed for hearing on 16 February 2024, later in the same day as the existing case management hearing.
On the morning of the hearing of the disqualification application a Case Outline was filed on behalf of the mother (“the Case Outline”). The mother relied on that outline at the hearing of the disqualification application, and the submissions made in the document were supplemented by the oral submissions of counsel. All of the submissions made have been considered, even if not specifically addressed in these reasons.
In the Case Outline, the mother submitted that I be recused from hearing the proceedings “by reason of apprehended bias”.[8]
[8] Mother’s Case Outline filed 16 February 2024, Annexure ‘A’, paragraph 4.
No Response to the disqualification application was filed by the father or the ICL. The father’s counsel made submissions during the hearing. The ICL did not wish to be heard on the disqualification application.
THE LEGAL PRINCIPLES
As identified, the mother’s disqualification application rests upon a foundation of there being an apprehension of bias.
The legal principles to be applied whenever there is a question over the independence or impartiality of a judge, are well settled (Charisteas v Charisteas (2021) 273 CLR 289 at [11]) and were identified by the High Court in Ebner v Official Trustee in Bankruptcy[9] (“Ebner”) in the following terms:
6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Footnotes omitted)
(Bold emphasis added)
[9] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
As discussed by the High Court in Johnson v Johnson (2000) 201 CLR 488 (at [13]) (“Johnson v Johnson”):
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.” Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(Footnotes omitted)
As succinctly summarised by Aldridge J in Adlin & Northern Territory Central Authority (No. 5)[10]:
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 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) 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.
[10] Adlin & Northern Territory Central Authority (No.5) (2021) FLC 94-019.
It has also been said in Re JRL; Ex parte CJL (1986) 161 CLR 342 (at 352):
… There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1976) 136 CLR, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp. 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
(Footnoted citations inserted)
As properly identified by Christie J in Acheson & Begbie [2023] FedCFamC1F 704 (at [7]) (“Acheson & Begbie”):
7.The doctrine of apprehended bias deals with the circumstances in which a judge may be perceived to decide a case other than on its merits (see Webb v The Queen (1994) 181 CLR 41 at 74; Ebner at 348-349). There are four potentially overlapping categories of apprehended bias:
(1) Disqualification by interest;
(2) Disqualification by conduct;
(3) Disqualification by association; and
(4) Disqualification by extraneous information.
DISCUSSION
The mother’s articulation of what it is said “might” lead me to “decide the case other than on its legal and factual merits”,[11] arises from my conduct during two separate hearings, the first on 26 October 2023 and the second on 13 December 2023.
[11] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8].
In the Case Outline filed by the mother on 16 February 2023, the conduct is described as “identifiable instances”[12] during the course of those two hearings particularised as follows:
[12] Mother’s Case Outline filed 16 February 2024, Annexure ‘A’, paragraph 7.
(a)That during the hearing on 26 October 2023, when the mother appeared in person:
(i)It was improper for the “the mother to be sworn in, without explanation as to its necessity and whilst unrepresented”;[13]
[13] Mother’s Case Outline filed 16 February 2024, Annexure ‘A’, paragraph 9.
(ii)It was improper having sworn the mother in, whilst unrepresented to have sought to obtain evidence from the mother about the alias under which she had sought treatment; and
(iii)It was improper for the court not to have complied with the “specific duties”[14]/“obligations” [15] owed towards self-represented litigants.
[14] Mother’s Case Outline filed 16 February 2024, Annexure ‘A’, paragraph 11.
[15] Mother’s Case Outline filed 16 February 2024, Annexure ‘A’, paragraph 10.
(b)That during the hearing on 13 December 2023 comments were made by me to the mother’s counsel during the course of the hearing which indicated a pre-judged state of mind, in particular:
(i)My comments to the mother’s counsel during an exchange about the evidence before the court that the mother relied upon in response to the father’s interlocutory application seeking a change to the primary care arrangements for X, as follows:
If I was to hear that application then, I would draw the strongest inference against your client possible. Because she’s been given every opportunity to explain what has occurred. And at every turn, she’s decided not to…[16]
(Emphasis in original)
(ii)My questioning when an oral application was pressed during the hearing for a Certificate to issue pursuant to s 128 under the Evidence Act as to whether the mother had committed “perjury” in the evidence already deposed to by her and filed with the court.
[16] Mother’s Case Outline filed 16 February 2024, Annexure ‘A’, paragraph 13; Transcript 13 December 2023, p.8 line 12.
I shall deal with each area of conduct separately.
In doing so I understand that the complaints are made both individually and collectively as ones giving rise to an apprehension of bias.
Having the mother sworn into evidence without explanation to her
As identified earlier, the complaint from the mother centres on the exchange between myself and the mother once she became self-represented at the hearing on 26 October 2023. In particular, the mother’s concern is that she was sworn in without explanation as to why, with the effect as described by me to her that “the matters that you put to me from the bar table form part of your evidence before the court, all right?”.[17]
[17] Transcript 26 October 2023, p.9 line 9.
It is apparent from the submissions made on behalf of the mother that the gravamen of the mother’s concern is one of procedural fairness. Quite properly, the concern is not over the fact that the mother was sworn in and/or that her submissions would form part of her evidence. Rather the mother’s concern is that this course was taken without explanation to the mother as to why this course was taken.
The mother asserts that the failure to explain why she was being sworn in was a breach of the “obligations which fell upon Her Honour as they regard unrepresented litigants”,[18] with reference to Johnson N v Johnson ML (1997) FLC 92-764 at 84,404 (“Johnson”) in which the Full Court of the Family Court identified:
[18] Mother’s Case Outline filed 16 February 2024, Annexure ‘A’, paragraph 10.
4.The obligations of trial Judges when hearing cases involving unrepresented litigants under Part VII of the Family Law Act are:
(i)To inform the litigant in person of the manner in which the trial is to proceed, the order of witnesses and the party’s right to cross-examine witnesses;
(ii) to explain to him or her any procedures relevant to the litigation;
(iii) to assist unrepresented litigants by taking basic information from witnesses such as name, address and occupation;
(iv)to explain to the unrepresented party the effect and possible undesirability of the interposition of witnesses and the right to object to the same;
(v)to advise the litigant in person of his or her possible right to object to the tendering of evidence which is or may be inadmissible;
(vi)to inform the litigant of his or her possible right to a claim of privilege in relation to a question or tendering of evidence;
(vii)to ensure as far as possible that a level playing field is maintained at all times;
(viii)to attempt to clarify the substance of submissions of unrepresented parties, especially where garrulous or misconceived advocacy ignores or obfuscates the substantive issues.
In the Case Outline, the mother’s counsel articulated the “obligation” said to have been breached in the following terms:
12. … her Honour, by no means, ensured the maintenance of an equal playing field, nor informed the mother of her rights. It is contended that this was in consequence of her Honour’s confidence in her pre conceived judgments.
The first comment to be made about the concerns now raised on behalf of the mother is that it is a misnomer on her part to call the “guidelines” identified by the Full Court in Johnson as “obligations”, when they are not. Rather, as identified by the Full Court of the Family Court in Re F: Litigants in Person Guidelines (2001) FLC 93-072 [2001] FamCA 348 (at [209]) (“Re F”) the “guidelines are exactly what they are and they are neither immutable nor incapable of revision”. The Full Court went on to identify:
229.With these matters in mind, we think that the giving of such assistance should lie in the discretion of the trial judge and should not be required by mandatory guidelines nor should the nature of the interventions from the bench be rigidly proscribed or prescribed. The exercise of such discretion serves the goal of achieving a fair trial so that the interests of justice can be served. Therefore, the application of the guidelines must depend on the circumstances of the particular case.
230.We have noticed that a number of litigants in person are endeavouring to use the alleged breach of the guidelines as a ground of appeal in itself. We do not think it is appropriate for the guidelines to be used in this way as there may well be good reason in particular cases to depart from some of the guidelines but always remembering the Court’s obligation to provide procedural fairness and a fair trial. Thus, if in the circumstances of a particular case, a trial judge does not follow the guidelines, it does not follow that there has not been procedural fairness and a fair trial.
Moreover, the rhetorical question to be asked is: what more could the court have been required to do, other than to advise the mother that her submissions would form part of her evidence before the court?
Importantly however, even it could be said that there was procedural unfairness to the mother and something more should have been said to the mother to explain to her why she was being sworn in, no actual unfairness and/or prejudice flowed to the mother as a consequence of the court taking that course and proceeding to ask the mother the obvious question which flowed form the affidavit that she had filed on 3 October 2023 as to the alias under which she had obtained medical treatment. This is because the mother declined to answer this specific question put to her, and the topic was not pressed further with her.
As discussed by the Full Court of the Family Court in Johnson in formulating the guidelines, the mere failure to afford procedural fairness does not in and of itself give rise to appellate error (see Johnson at [114]). In the same way, the mere failure to afford procedural fairness does not in and of itself meet the first and/or second limb of the test identified in Ebner.
Whilst I acknowledge that comment was thereafter made by me that I was “troubled” by the mother’s refusal to answer questions asked by the court, and that the court was entitled to draw “inferences” from the mother’s refusal to answer those questions, those comments must firstly be seen in light of the comments of the High Court in Johnson v Johnson earlier discussed, and secondly in the full context in which they were made.
In considering the wider context in which the comments were made and having regard to the background set out earlier in these reasons, it must be remembered that:
(a)The father had filed an urgent interlocutory application some two months earlier in which he sought the primary care of X, which was the application listed for hearing that day.
(b)In support of that application the father had made serious allegations about the mother’s mental health in the context of risk to the child (including that she had fabricated her diagnosis and treatment and that she had falsified medical records). The significance of these allegations to the parenting proceedings were acknowledged by the mother’s counsel during her oral submissions on this application, wherein it was properly conceded that the allegations made by the father are serious, and that if made out, they may impact the overall parenting arrangements for X.
(c)The mother was on oath as and from 3 October 2023, identifying that she had obtained treatment under the name of an alias, and accordingly it was entirely foreseeable that at some point she would be asked to disclose the name of that alias; particularly so at that juncture when the father had already issued a number of subpoenas to obtain documents in relation to this topic, and when he also had an application before the court for leave for further subpoenas to be issued. Indeed, had the mother been represented, it would not have been objectionable for the court to have had the mother sworn in and the question posed of her. If that had occurred, the mother would have either answered that question, declined to answer that question or declined to answer that question and have made an application that a certificate issue pursuant to s 128 of the Evidence Act. As it turned out, the mother declined to answer the question and identified that she wanted to obtain further legal advice, and seek a certificate.
(d)The mother was also in breach of various orders by that stage; including of significance to this topic, the order first made with the mother’s consent some six months earlier on 28 April 2023, directed to the topic of the mother’s diagnosis and treatment for the mother to request and thereafter file and serve reports from her treating specialist and General Practitioner.
(e)As a consequence of the mother failing to file those reports, the father had sought and been given leave to issue a number of subpoenas to gain some understanding of the mother’s diagnosis and/or treatment.
Secondly, the comments must be seen in the context of that which followed, in particular:
(a)My subsequent comments to the mother that “I’m not going to require you to answer it if you refuse to, but there are consequences to you failing to answer the question. It’s a matter for you.”[19]
(b)That the mother was not pressed to answer any further questions (other than of a procedural nature); and
(c)Importantly, that the mother’s application for an adjournment of the determination of the father’s Application in a Proceeding filed 23 August 2023 was granted.
[19] Transcript 26 October 2023, p.10 line 28.
Moreover, as discussed later in these reasons, the mother’s counsel at the hearing of the disqualification application acknowledged that the allegations made by the father were “serious” and that subject to whether they were made out, may impact the parenting arrangements for X.
When seen in this context, I do not consider that the comments were indicative of any fixed or resolved view on my part and nor that the fair-minded lay observer might apprehend bias. Rather, they were an entirely proper indication to the mother of the concerns held by the court regarding the totality of the evidence before the court as it then stood, and about which the court understood and was affording the mother the opportunity to take further legal advice.
Comments about the inferences capable of being drawn against the mother
The concern raised by the mother arises from an exchange with the mother’s counsel at the hearing on 13 December 2023.
As earlier identified, the specific comment about which complaint is made is:
If I was to hear that application then, I would draw the strongest inference against your client possible. Because she’s been given every opportunity to explain what has occurred. And at every turn, she’s decided not to.[20]
(Emphasis in original)
[20] Mother’s Case Outline filed 16 February 2024, Annexure ‘A’, paragraph 13; Transcript 13 December 2023, p.8 line 12.
Again however, these comments must be seen in light of the full context in which they were made.
Firstly, the entire chronology of the litigation following the matter being docketed to me, as discussed earlier, must be understood, including but not limited to the mother’s failure to comply with orders of the court, particularly that requiring the mother to obtain and file reports from her treating specialist and General Practitioner and the order for the mother to file and serve a copy of the hospital discharge summary (the former order at the time of hearing the application remained extant).
Importantly, it must also be understood, as the transcript reveals:
(a)That at the commencement of the hearing on 13 December 2023, the father’s counsel sought to press the father’s Application in a Proceeding first filed on 23 August 2023 seeking orders that the father have primary care of X.
(b)Upon understanding that the father sought to press his interlocutory application, I made less than discrete overtures to the father’s counsel in an attempt to dissuade the father from pressing that application in circumstances where the matter had been given an expedited trial listing on the basis that I considered the issues best dealt with at a final hearing, and because I held concerns about the proximity of the trial and my inability to determine the application swiftly given the intervening Christmas period and my leave arrangements.
(c)I thereafter indicated to the parties that I was going to stand the matter down to enable the father’s counsel to take instructions as to whether the Application in a Proceeding was to be pressed.
(d)Before doing so, the mother’s counsel was invited to identify any matters to be pressed at the mother’s end. The mother’s counsel indicated that the mother sought that the Application in a Proceeding be adjourned, and if not accepted “then the mother will defend the application and seek that it be dismissed”.[21]
[21] Transcript 13 December 2023, p.5 line 13.
(e)There was then a discussion between myself and the mother’s counsel about whether and when any application for a certificate pursuant to s 128 of the Evidence Act would be made. This exchange which had arced back to the evidence before the court for the interlocutory hearing, culminating in the comments made by me about which concern is now raised. It is therefore necessary to set out the full exchange, and not a cherry picked portion.
[MOTHER’S COUNSEL]: No. If I could answer in this way: as the court has already indicated, the issues in this matter are unfolding. They’ve not yet crystallised. So the state of the mother’s evidence ‑ ‑ ‑
HER HONOUR: Well, part of why they are not yet crystallised is because your client won’t go on oath, because she has told the court repeatedly until she is granted a certificate, she will not go on oath. And she’s been given opportunity to go on oath. But she can’t have it both ways, frankly. Because things are in a state of suspended animation because she won’t tell the court what’s occurred and why.
[MOTHER’S COUNSEL]: I hear what your Honour says about that. The court has – and I’ve read the transcript from the previous occasions where your Honour his dealt with this issue particularly when the mother was self-represented. But from the mother’s point of view, she will be compelled to give evidence around these central issues at the trial. And it’s at that moment of being compelled where she will receive the certificate from your Honour and give her evidence from the witness box as to what she says has occurred and why. It’s not a matter ‑ ‑ ‑
…
HER HONOUR: I’ve made an order already compelling the mother to file an affidavit. I’m just looking for when that order was made. So Mr Grew, you might help me.
[FATHER’S COUNSEL]: Certainly.
HER HONOUR: Because I can’t remember, but I know I made an order which is what has resulted in the affidavit that she’s now filed.
[FATHER’S COUNSEL]: It would have been the orders after the – on the last occasion. I’m instructed it was on 2 November. Order 4 of those orders, your Honour.
HER HONOUR: Let’s just have a quick look. Sorry. Yes.
[MOTHER’S COUNSEL]: Your Honour, as I read Order 4 of 2 November, your Honour’s order is that no later than 12 noon 17 November 23, the mother to file and serve any further affidavit upon which she intends to rely with respect to the extant interlocutory application.
HER HONOUR: And at that point the extant interlocutory application was an application that the change of primary care and the affidavit in support filed by the father together with other material he had filed, including an affidavit from the alleged oncologist – putting all of these topics in issue.
[MOTHER’S COUNSEL]: Yes.
HER HONOUR: So is there not already an order for compulsion?
[MOTHER’S COUNSEL]: And the mother has complied with that order by filing an affidavit which indicates that she won’t give further evidence ‑ ‑ ‑
HER HONOUR: Without a certificate.
[MOTHER’S COUNSEL]: ‑ ‑ ‑ without a certificate.
HER HONOUR: Okay. So what am I missing?
[MOTHER’S COUNSEL]: I understand that initially – that sounds circular initially, I understand that.
HER HONOUR: It doesn’t initially sound circular. It is. She was compelled to file an affidavit. She’s chosen to be selective in that affidavit as to the information she puts before the court, again raising the section 128 certificate. But not pressing the button on running that application. So when will it be made?
[MOTHER’S COUNSEL]: Just answering the first part of your Honour’s question, the mother has filed the affidavit material that she relies on for this interlocutory application. She has filed that. Your Honour can draw from that evidence what your Honour will, and your Honour will, if the matter runs, hear submissions from each of the parties about how to deal with the absence of that evidence which the mother has elected not to bring. So your Honour will hear about that. In relation to when ‑ ‑ ‑
HER HONOUR: If I was to hear that application then, I would draw the strongest inference against your client possible. Because she’s been given every opportunity to explain what has occurred. And at every turn, she’s decided not to.
[MOTHER’S COUNSEL]: I understand – and I wasn’t there on this occasion, so I’m in your Honour’s hands as always and my friends, because the court as currently constituted was – but I understand on the last occasion, a section 128 certificate was not issued. It was discussed, but was not issued in anticipation of the giving of this evidence. Is that ‑ ‑ ‑
HER HONOUR: The application wasn’t made. It’s been floating in the ether with your client saying – the mother saying I’m not prepared to give any evidence until there’s a 128 certificate. So unbeknown to the parties, but part of the reason I made Order 4 was because it compelled the mother to put some evidence before the court. And yet, she’s chosen to file an affidavit that is silent until she obtains a 128 certificate but not made an application in that regard. So I don’t know what I’m missing. Because the way I now see things is – not pre-empting how I might determine the application if it is ever made – but at the moment, there was an order compelling her to do something. And she chose to be selective about the information she put before the court and she’s chosen not to bring the 128 certificate application.[22]
(Emphasis added)
[22] Transcript 13 December 2023, p. 6 line 18 to p.8 line 32.
When the context of the entire exchange is understood, it can readily be seen that:
(a)The exchange with the mother’s counsel was in relation to the state of the mother’s evidence for the purposes of the Application in a Proceeding.
(b)Importantly, the mother’s counsel positively invited the court to “draw from that evidence what your Honour will”.[23] This submission would not have been made by the mother’s counsel lightly, nor without an understanding as to the negative inferences capable of being drawn against the mother by the court.
[23] Transcript 13 December 2023, p.8 lines 8-9.
Whilst I accept that the comments made by me were certainly forthright and robust, they no more than identified the inferences to be drawn against the mother if the application was to proceed in the absence of further evidence from her; as invited by her counsel.
I accept that the comments made were unfavourable to the mother, however they were, to use the words of the High Court in Johnson v Johnson (at [13]), no more than the “identification of a “real issue” and “real problem” with the mother’s case if the interlocutory application was to proceed that day in the absence of the mother seeking to adduce any further evidence and/or in the absence of making an application that a certificate issue before giving any further evidence on the interlocutory application.
As it turned out however, the interlocutory application was not pressed; with the father taking up the comments I had initially made that I considered the issues best traversed at trial when the evidence of all of the witnesses could be tested.
Moreover, as succinctly stated by Christie J in Acheson & Begbie (admittedly in different circumstances):
61.This particular complaint brings to mind the observations of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 cited by the Full Court in Strahan & Strahan (Disqualification) (2009) FLC 93-414:
… It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he [or she] will decide the case adversely to one party…
62.There is an interplay between the role of the judge as adjudicator and the role of the judge as case manager in a modern system of case management. The overriding principle of achieving timely and efficient outcomes for litigants means that a judge will, as occurred here, control the court room including permitting or disallowing questions as part of evidence in chief, cross‑examination or re-examination.
6.The Full Court in Scott & Munayallan [2022] FedCFamC1A 44 neatly summarised the principles which mitigate against disqualification in this passage at [25]:
The High Court of Australia has made plain it would be both an abdication of judicial function and an encouragement of procedural abuse for a judge to impulsively or too readily disqualify him or herself whenever requested by one party to do so (Livesey v NSW Bar Association (1983) 151 CLR 288 at 294; Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300 at 302). A judge should not disqualify him or herself for reasonable apprehension of bias unless substantial grounds exist (Bienstein v Bienstein (2003) 195 ALR 225 at 233; Vakauta v Kelly (1989) 167 CLR 568 at 584–585; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352).
Finally, it is understood that the mother does not consider that Order 4 made 2 November 2023, was an order compelling the mother to file an affidavit, and as a result my comments that the mother was “given every opportunity to explain what has occurred” were improper. This submission however was not the subject of further elaboration in oral submissions (both at the hearing on 13 December 2023, nor on the hearing of the disqualification application) and it is therefore difficult to form a concluded view on the topic of compulsion. I accordingly consider it unwise to address the submission further, other than to identify the following:
(a)The order made 2 November 2023 provided:
4. That no later than 12 noon on 17 November 2023 the Mother do file and serve any further affidavit upon which she intends to rely with respect to the extant interlocutory applications before the court.
(b)Whilst I accept that the order was permissive, in the sense that the mother was not required to file any further affidavit if she did not wish to do so, if however the mother wished to put any further evidence before the court for the purposes of the interlocutory application, then the order compelled her to do so and that she do so by 17 November 2023.
(c)The question of compulsion in family law proceedings in the context of evidence in chief was discussed by the Full Court of the Family Court in Field v Kingston (2018) FLC 93-850. There the court identified that a certificate is available to a witness’ evidence in chief “where the requisite element of compulsion exists” (at [28]). The court went on to identify (at [44]):
However, where a party is directed to file an affidavit and the order specifies the subject matter of the affidavit, the requisite degree of compulsion may well arise permitting the issue of a certificate, for as we have said, it is being compelled to give the evidence which enlivens the privilege, not the means by which the compulsion arises (see Crawford v Crawford (No 3) [2016] NSWSC 704).
(d)The question strikes me to be whether the terms of the order were sufficiently specific in identifying the subject matter of the affidavit so as to enliven the requisite degree of compulsion.
Leaving this topic to one side, when the entire exchange about which complaint is now made, is considered and viewed in its full context, I do not consider that the fair-minded lay observer would apprehend bias.
Comments made during the oral application that a certificate issue under s1 28 of the Evidence Act
The third and final conduct of concern to the mother, relates to the enquiries made by me when the oral application was pressed by the mother’s counsel at the hearing on 13 December 2023 for a certificate to issue pursuant to s 128 of the Evidence Act, in particular my enquiry as to whether there had already been perjury on the mother’s part in the evidence already deposed by her.
Again, it is important to consider the context in which the comments were made. In particular, the manner in which it was raised by me at that hearing, which was as follows:
But what I was really addressing – asking you to address me about is what I understand – and if you think I’m wrong, tell me – but you – someone is not entitled to a certificate if they have already perjured themselves, and that’s really what I’m seeking some submissions about. And if I am misguided, then tell me I am misguided.[24]
[24] Transcript 13 December 2023, p.26 lines 16-20.
That comment was made to invite submissions from the mother’s counsel to address concerns I held, and/or to disabuse me of those concerns, in light of the evidence already deposed to by the mother, (in part that earlier set out herein), but also to understand the submissions made in support of the application that a certificate issue.
Having raised those matters, the mother’s counsel proceeded to make oral submissions addressing the concern that had been raised.
Moreover, when the transcript from the hearing on this topic is considered in its entirety, it is clear that the question was asked carefully to invite submissions from the mother’s counsel, with no view expressed on my part that the mother had committed perjury in the documents already filed by her.
Importantly, the transcript reveals and indeed orders were made granting the certificate to the mother in the exact terms as sought by her. This evidences that the court was ultimately persuaded by the submissions made by the mother’s counsel.
Having been successful in her application before the court for a certificate to issue, I do not consider this exchange to be one that could give rise to an apprehension of bias.
Conclusion
When all of these matters are taken together, I do not consider that the conduct about which complaint is made, either individually, nor collectively meets the test in Ebner.
I accordingly shall make an order dismissing the application.
Given the proximity of the trial, I now propose to hear the application to adjourn the trial on the first day of trial.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 29 February 2024
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