Fennessy & Sanchez

[2007] FamCA 506

FAMILY COURT OF AUSTRALIA

FENNESSY & SANCHEZ [2007] FamCA 506

FAMILY LAW – APPEAL - APPEAL FROM FAMILY COURT OF AUSTRALIA -
Appeal against refusal of father’s applications that the judge be disqualified from hearing the substantive proceedings and that he grant an interlocutory order that regarding contact with a child.

FAMILY LAW - APPEAL – EXERCISE OF DISCRETION – INTERLOCUTORY PARENTING ORDER – Assertion that the trial Judge erred in failing to consider and apply the principles of Goode and Goode (2006) FLC 93-286 not established. Part VII Family Law Act 1975 discussed. Court not satisfied trial Judge was in the circumstances obliged to refer in his reasons for judgment to matters discussed in Goode. Trial Judge's reasons for judgment adequate and course of reasoning thereby revealed not found to constitute appealable error. If trial Judge did err either in relation to Goode factors, or as to adequacy of reasons or exercise of discretion, Full Court not able to re-exercise discretion, and remitter for re-hearing of interim application inappropriate where judgment in substantive proceedings reserved.

FAMILY LAW - APPEAL – DELAY – Assertion that the trial Judge ought to have disqualified himself from hearing the substantive proceedings as a result of the implications of delay not established. R v Maxwell (1998) 217 ALR 452 adopted with regard to delay. No evidence that the trial Judge has ever said or done anything which may give rise to a reasonable apprehension of a lack of impartiality.

FAMILY LAW - APPEAL – PREJUDICE – Not established that the trial Judge should have disqualified himself from hearing the substantive proceedings for other reasons including, inter alia, prejudice of relevant and live trial issues, impartiality, actual bias, contempt of his own orders and of the Court, corruption of the Court process, denying the best interests of the child and denial of procedural justice.

The Family Law Act 1975 (Cth),Part VII, s 94(2)

R v Maxwell (1998) 217 ALR 452
Goode and Goode (2006) FLC 93-286

APPELLANT: MR FENNESSY

RESPONDENT: MS SANCHEZ

INDEPENDENT CHILDREN’S LAWYER: Peter Williams

INTERVENER: Director-General, Department of Child Safety

FILE NUMBER: BRF 5353 of 2003

APPEAL NUMBER: NA 32 of 2007

DATE DELIVERED: 1 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Coleman, Boland and Stevenson JJ

HEARING DATE: 18 May 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 28 March 2007

LOWER COURT MNC: [2007] FamCA 261

REPRESENTATION

ADVOCATE FOR THE APPELLANT: Mr Fennessy, in person

COUNSEL FOR THE RESPONDENT: Mr Canning

SOLICITOR FOR THE RESPONDENT: Andersons Solicitors

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Linklater-Steele

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Williams Lawyers

COUNSEL FOR THE INTERVENER: Mr Parrott

SOLICITOR FOR THE INTERVENER: Crown Law

Orders

1. That the appeal be dismissed.

2. That the appellant pay the costs of and incidental to the appeal of the     Respondent, the Intervener and the Independent Children’s Lawyer as        agreed and failing agreement as assessed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Fennessy & Sanchez.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 32 of 2007
File Number: BRF 5353 of 2003

Mr Fennessy

Appellant

And

Ms Sanchez

Respondent

And

Independent Children’s Lawyer

And

Director-General, Department of Child Safety

Intervener

REASONS FOR JUDGMENT

Introduction

1. By Notice of Appeal filed on 24 April 2007 Mr Fennessy (“the father”) appealed against orders made by Collier J on 28 March 2007 in proceedings between the father, Ms Sanchez (“the mother”) and the Department of Child Safety (“the Department”).

2. By his orders the trial Judge refused the father’s application that he disqualify himself from the further hearing of substantive parenting proceedings which had concluded save for final submissions by the father, and rejected the father’s application for an interlocutory order that a child of the former relationship of the father and the mother spend time with the father on a defined basis.

3. Each of the mother, the Department and the Independent Children’s Lawyer (“ICL”) has resisted the father’s appeal and sought to maintain the trial Judge’s orders.

Background

1. By way of brief background to the appeal, we refer to the following matters which we apprehend to be uncontroversial, and emerge from his Honour’s reasons for judgment of 28 March 2007.

2. The trial of the substantive proceedings occurred over approximately fifty hearing days including and prior to 30 June 2006.

3. On 11 and 12 September 2006 further evidence was received in the trial. The father did not participate in the proceedings on those two days although he had actively participated in the proceedings when they were heard on previous occasions. There has been no further evidence in the trial subsequent to 12 September 2006.

4. On 12 September 2006 the trial Judge ordered that the ICL file written submissions within 42 days and that the mother thereafter file submissions within a further 30 days. His Honour’s orders provided that the Department file and serve submissions within a “further period expiring on 22 December 2006”. The father was allowed until 25 January 2007 to file any submissions upon which he wished to rely. All parties were granted 14 days thereafter in which to file submissions in reply. The directions made for the filing of submissions were not complied with, particularly by the ICL.

5. On 14 February 2007 the father filed an application in which he sought orders in the following terms:

   1.That Collier J upon hearing this application disqualify himself from further participation in this continuing trial which commenced 16 July 2005 Case No BRF5353/03.

   2.That Collier J be injuncted from receiving submissions and closing arguments from any party in the trial proceedings and especially on 17 Jan 07.

   3.That Collier J apart from hearing this application make no further directions or orders in the trial commenced 16 July 05 Case No BRF5353/03.

   4.That Collier J hear this application in Brisbane.

6. That application was heard by the trial Judge on 8 March 2007. Orders were made and reasons for judgment published on 28 March 2007. As their terms have the potential to assume significance in this appeal we record that they provided:

   (1)That the husband’s application filed 14 February 2007 be and is hereby dismissed.

   (2)That the question of costs of 8 March 2007 is reserved until after delivery of final judgment in this matter at which time the matter may be relisted to argue that aspect.

   (3)That the father notify me within seven days of the date of these orders in writing as to whether or not he proposes to file written submissions in the matter. Should he so propose such written submissions are to be filed and served upon all other parties within 28 days of the date of these orders.

7. Although not apparent from the formal application filed by the father on 14 February 2007, during the course of proceedings on 8 March 2007, the father made an oral application for an interim order that the child the subject of the substantive proceedings spend time with him.

The trial Judge’s Reasons for Judgment

1. The trial Judge delivered formal reasons for judgment on 28 March 2007. A review of those reasons for judgment promotes an appreciation of the father’s challenges to his Honour’s orders.

2. Having, under the heading “Procedural Background”, set out the matters to which we have referred, his Honour proceeded to consider “The Applicant’s Submissions”. He commenced by referring to correspondence which passed between Counsel for the ICL and his Honour’s associate, noting that the father took “strong exception to the expression used in my associate’s letter that I accepted, without question, that counsel had been making all proper efforts to complete his submissions”. The trial Judge interpreted the father’s complaint as constituting “prejudgment of the substantive issue, in that I have clearly shown I will agree with anything that the Independent Children’s Lawyer says”. The father’s assertion was rejected, for reasons which his Honour detailed, during the course of which he explained why he rejected the father’s assertion that anything in the letter written by his associate was in any way “sinister” or reasonably able to give rise to the inference of partiality asserted by the father.

3. The trial Judge perceived the crux of the father’s complaint to be that “because of what was happening, that is the submissions were not being filed within the time specified in my original timetable, or even by subsequent directions which I made on 20 December 2006 that the aims of all other parties to prolong this matter were being achieved”.

4. His Honour concluded that:

   16.It is clear that as a result of non-compliance with my directions for filing submissions in a timely fashion that this matter has been prolonged. However to say that the non compliance with my directions has been a deliberate and reasoned act on the part of those representing the Independent Children’s Lawyer and the wife is a finding not open to me on the material that I have presently before me.

5. It was further concluded that:

   17.It was the contention of Mr [Fennessy] that the failure to conclude the matter by delivery of submissions and thereafter a judgment was a denial of natural justice. Clearly it is axiomatic that a court should deal with the matter from commencement of hearing to delivery of judgment as expeditiously as possible. This has been an extraordinary case. It has been heard over an extended period of time in various stanzas of weeks of hearing. Mr. [Fennessy] has always complained that the matter was intended to be heard as a matter of extreme urgency and in this he refers to a statement of Jordon J. It is apparently Mr [Fennessy’s] belief that this matter was to take absolute priority over every other matter in the Court and to be heard in one extended and continuous period of time to conclusion.

6. Reference was then made to the directions of 20 December 2006, the effect of which was to extend the time for filing of submissions against the background of “further correspondence”, copies of which were forwarded to all legal representatives and to the father.

7. Of the delay in filing submissions of the ICL, the trial Judge concluded:

   22.Nonetheless it must be clear that the delay that has been occasioned particularly by the Independent Children’s Lawyer in forwarding his submissions has been extensive. The fact that the Independent Children’s Lawyer and his counsel at differing times sought to explain that delay does them some credit but does not alter the fact that the delay, as I have said, was real and extensive.

8. His Honour said of the delay on the part of the legal representatives of the mother:

   23.The delay on the part of the legal representatives of the wife was far less significant by comparison. I have now received the submissions of the intervenor. At the end of the day the matter has been significantly delayed by the non-compliance with my directions. The question is; does this amount to some form of either procedural unfairness or a denial of natural justice as complained of by the father.

9. In passages of his reasons to which we will give further and closer scrutiny, the trial Judge dealt with the father’s application for “an order immediately for him to have interim time with the subject child”.

10. The trial Judge recorded, accurately it is apparent having regard to the grounds argued by the father in this Court, that the disqualification application was based on “a number of grounds which I set out hereunder”, they being:

    ·Not complying with or ensuring procedural fairness;

    ·Denial of natural justice;

    ·Denial of time which could have been spent with the subject child;

    ·Cutting relationship with the child;

    ·Contempt of court;

    ·Contempt in court;

    ·Discreditation of the Independent Children’s Lawyer;

    ·The fact that the child is entitled to widest community of love and possible affection.

    ·It would be apparent to a fair minded observer that because of the way in which I have conducted the hearing I could not bring an open mind to the final determination of the matter.

11. Having reviewed the relevant law, the accuracy of such review not being disputed, his Honour recorded:

    35.Mr. [Fennessy] claims that I have denied him procedural fairness and have denied him natural justice. As I understand it this is largely because of the delays which he says have occurred in the hearing, which delays he lays at my door. To my mind Mr [Fennessy] perceives in respect of these two matters that anything that does not accord with his own view of his entitlement and his rights is either a denial or a failure to afford procedural fairness. To my mind these allegations are without proper foundation. I am satisfied that Mr [Fennessy] has been given every opportunity to deal with this matter and put his case as forcefully as he would wish.

12. Of the father’s complaint in relation to the truncated and delayed course of the trial of the proceedings, the trial Judge recorded:

    36.He [the father] complains that the matter should have been heard straight through in one continuous hearing. This was not done. This was a matter of availability of time of the Court and a judge to hear his matter and this of course required that the needs of his case be balanced against other cases awaiting hearing by the Court. The nature of the case required or at least indicated that a judge from other than the Brisbane registry should hear the matter and it was on this basis that I became the trial judge.

13. His Honour concluded:

    37.I am satisfied that everything that could be done was done to hear this matter to completion in a timely and appropriate fashion, having regard to other claims on the Court’s time and resources. I am satisfied that Mr [Fennessy] has been given every opportunity to deal with the matter and put his case as forcibly as he would wish.

14. Turning to the disqualification application alleging bias, the trial Judge said, “[t]o my mind these grounds are partly directed to the issue of actual bias”. He concluded in that regard:

    39.To my mind the fact that interim or interlocutory orders are made during the course of a hearing does not and cannot indicate that the final decision will accord with those interim orders. In my view it is not open to Mr [Fennessy] to say that because I have made the interim decisions I have that it is automatic that my final decision will be to the same effect.

15. The question of “perception of bias that could lead to disqualification” was then considered by the trial Judge.

16. His Honour articulated his understanding of the father’s complaint in that regard in the following terms:

    43.Mr [Fennessy] clearly asserts that which I have done in the conduct of this matter is sufficient to cause in the mind of a reasonable observer who has witnessed the whole of the proceedings a concern that I am not able to bring a balanced and unbiased approach to a final determination of the issue. Mr [Fennessy] clearly believes that not to agree with what he proposes, and to do or say anything with which he does not immediately agree would raise an apprehension of bias. In this regard Mr [Fennessy] relies upon the orders that I have made refusing this application to spend time with his daughter. He indicates that this must clearly raise in the mind of our impartial observer an apprehension that at the conclusion of the hearing the final orders that I make will not vary from the interim orders made to date.

17. The gravity of the father’s complaint as the trial Judge perceived it was encapsulated in the following terms:

    47.It is obvious that the interim orders that I have made were made at various times with various parts of the evidence available to me. Mr [Fennessy] maintains that because I have continued to refuse to permit him to spend time with his daughter, in the face of the evidence of Dr N, that it must follow as night follows day that I will refuse him the opportunity to spend time with his daughter in my final orders. This is not so. Further it is not the case that the impartial observer would perceive it to be so. Interim orders are made at various stages of proceedings for various reasons. It is not sufficient for a litigant to say because the interim orders go against me it is either a) a fact that the final orders will go against me or b) a proper perception by an observer that this would be the result.

18. His Honour rejected the father’s complaint on the basis that:

    50.I do not accept that any of the exchanges heard by a person not a party to the proceedings and being a person who had been an observer for the whole of the proceedings would fear, on what I had said or done or caused to be communicated, that I could not bring to bear on this matter a mind free of prejudice.

19. For the reasons which he has thus advanced, the trial Judge refused the father’s application for disqualification being not satisfied that he had:

    55. a)        Exhibited actual bias to Mr [Fennessy] on any of the       grounds that he has alleged; or

    b)Demonstrated apprehended bias such as would cause the reasonable observer to fear that I could not bring a clear and unprejudiced mind to the task of judgment in this matter.

The Grounds of Appeal

1. The father’s Notice of Appeal contained some eleven grounds. In support of those grounds the father filed comprehensive written submissions of some 36 pages. At the commencement of the hearing of the appeal the father tendered  the transcript of two days of evidence, 28 and 29 June 2006. On those days Professor N was cross-examined by the father and Counsel for the other parties and the ICL. The father made brief oral submissions in support of his written outline of argument.

2. We conceive it is more instructive, and perhaps fairer to the father, to deal with his grounds of appeal, a number of which overlap or are capable of overlapping, by reference to the subject matter raised by groups of grounds rather than addressing each and every ground individually. We so conclude having regard to the matters which the father emphasised during the course of his oral submissions in support of his appeal. In essence, the subject matters of complaint before this Court comprise:

   i)The order denying the father time with his child on an interim basis;

   ii)The disqualification based upon the implications of delays;

   iii)The disqualification based on other matters.

3. As is apparent from their terms, and the father’s outline of argument in support of them, some of the complaints raised by the father are also potentially relevant to challenges to the outcome of the substantive proceedings, if his disqualification appeal to this Court fails and the trial Judge proceeds to deliver judgment in those proceedings as he then would. It should be clearly understood that our consideration of the second and third classes of complaint is limited to the issue of whether the trial Judge erred in refusing the father’s disqualification application.

The Refusal of the Application for an Interlocutory Parenting Order

1. In his Notice of Appeal the father complained that “the trial judge failed to consider and apply the Principles of Goode v Goode”.

2. In his written Outline of Argument, the father articulated this complaint in the following terms:

   a)An application for interim contact was very firmly to the forefront of the judges [sic] mind Para’s 25,28,30 of the reasons but in particular AB 111 L15 being the clarification sought by the I.C.L. and my reply at AB 113 L 25.

   b)However His Honour failed to consider interim contact and give adequate reasons for refusing to do so. The application was based on a material change in circumstance that is the exceptional circumstances that had arisen due to further delays since the Full Court heard the last appeal on 5 Sept 06 which related to circumstances as at 30 June 06, the last occasion when His Honour refused to grant contact and then refused to disqualify himself on the same day.

   c)The last application and refusal at 30 June was prior to new legislation which came into effect on 1 July 06.

   d)Under the new legislation and indeed as a result of Goode V Goode 2006 Fam. CA 1346 the Full Court set out guidelines as to how an interim  application should be heard

   e)I refer to Para 82 of the Goode and Goode judgment sub Para’s (a) to (k) inclusive and rely particularly on that paragraph

   f)The trial judge as the transcript shows did not consider Para 82 or in fact any of the judgment of Goode and Goode when it was incumbent upon him to consider the presumption in S6IDA, much less decide it, and failed to consider any of the other matters he is required to consider from (e) to (k).

   g)The trial Judge had before him an interim application, however is [sic] arose, he acknowledged that It [sic] was before him and if he momentarily forgot about it he was certainly reminded of it by the I.C.L. at AB 11 L15 and by me at AB 113 L25 just seconds before the hearing ended

   h)I say that His Honour was only too well aware of Goode and Goode it being he that caused it to come into existence however, inexplicably, he chose to ignore it

   i)As 9 months had elapsed since the previous application on 30^th June 06 and the exceptional circumstances of “regrettable” and “real and extensive” (AB23 P22) delays then the father submits he was well entitled to bring such an application and having done so was entitled to a reasoned adjudication on the matter in accordance with the principles of Goode and Goode His Honour failed to do that.

1. On behalf of the mother it was submitted that the decision of the Full Court of 5 September 2006 precluded the father from successfully agitating this challenge. Somewhat less cryptically, the submissions of Counsel for the ICL asserted in this regard:

   80.In circumstances where the learned Trial Judge had refused interim applications for contact at the conclusion of evidence at trial but before delivery of judgment and in the circumstances where that decision had been upheld upon appeal, there was nothing in the circumstances which called for the determination of any further interim application.

   82.In the circumstances of this case his Honour was not required to determine or apply to the alleged interim application the principles as stated in Goode and Goode.

2. The submissions of Counsel for the Department did not add to the submissions of Counsel for the ICL which were adopted in oral submissions by Counsel for the Department.

3. During the course of oral submissions, questions arose as to what had in fact been decided by the trial Judge on 30 June 2006 with respect to the father’s application at that time for what was then “contact” with the child, and what was said by the Full Court on 5 September 2006 when dismissing the father’s appeal against the trial Judge’s orders of 30 June 2006.

4. The submissions of Counsel for the mother and for the ICL were somewhat at variance in relation to the effect of those judgments. Counsel for the mother, essentially, submitted that the trial Judge had declined on 30 June 2006 to entertain the father’s application for interim parenting orders for reasons which he gave, a course of which the Full Court did not disapprove on 5 September 2006, and that his Honour’s statements on 8 March 2007 and his reasons of 28 March 2007 should be seen as a subsequent, and justifiable, refusal to entertain a further application, albeit it was at that time an application for “time spent with” the child rather than “contact” by virtue of the changes to Part VII of the Family Law Act 1975 (“the Act”) which commenced on 1 July 2006.

5. The submissions of Counsel for the ICL were that the trial Judge had in fact entertained, and rejected, the father’s application for interim parenting orders on 28 March 2007, but was not obliged to address the matters to which the Full Court referred in its judgment in Goode and Goode (2006) FLC 93-286.

6. For reasons which will emerge, perhaps somewhat unusually, it is necessary to have regard to these earlier judgments. It is clear from the formal application by the father which gave rise to the hearing on 8 March 2007, and the course of the proceedings on that date as it emerges from the transcript, that the father’s application for interim parenting orders was an oral application, albeit one which does not appear to have been formulated with precision at any time. The transcript suggests to us that no-one then present was in any doubt that, primarily in reliance upon evidence of Professor N, the father was seeking to spend time with the child on a regular single day basis.

7. The father made submissions to the trial Judge in support of his request for an interim parenting order during the course of which the trial Judge said:

   HIS HONOUR: You have run an application and you’ve run an appeal to the Full Court based on what may or may not have happened as a result of Dr N’s evidence. That is over, please move on (Appeal Book page 90 lines 2 – 4).

8. After further exchanges the trial Judge said:

   HIS HONOUR: Mr [Fennessy], the Full Court, as I understand it, dealt with two appeals, one concerning my refusal to grant you a form of interim contact and the other your application made that I disqualify myself and as I understand it, the Full Court dismissed both appeals. Am I right or wrong? (Appeal Book page 90, lines 17 – 20).

   To which the father replied, “You’re right at that time” (Appeal Book page 90, line 22).

9. The father then suggested that “[t]hings have moved on since then” (Appeal Book page 90, line 30), to which the trial Judge replied, “They may have, but the issue of Dr N was dealt with by their Honours. Now, please move onto something else.” (Appeal Book 90, lines 32 – 33).

10. The father then proceeded to address matters in relation to his disqualification application and somewhat later during the hearing the trial Judge raised with the father the decision of the Full Court in Goode and Goode (supra). The father then made a number of submissions which are not material for present purposes. We have not discovered, or otherwise been referred to any other portions of the transcript of the proceedings in relation to the interim parenting issue.

11. In his reasons for judgment, the trial Judge accurately recorded, that:

    25.He [the father] then returned to the thread of seeking an order immediately for him to have interim time with the subject child. He made observations about the difficulties that can be created by the passage of time. He spoke of reliance upon the recommendations of Professor N and made it clear that he wanted to have orders that would enable him to see his daughter. In effect what I understood him to be saying in this regard was that I should give him an interim order and dispense with the reports and submissions and deal with the matter by use of common sense.

12. Importantly, his Honour then said:

    26.Of course this application effectively again seeks an order that was the subject of an appeal to the Full Court of the Family Court. That appeal was dismissed…

13. As the father conceded, his application for interim parenting orders was not reliant upon any evidence received by the trial Judge subsequent to 30 June 2006, albeit there had been other evidence on the two days in September 2006 to which we earlier made reference.

14. The provisions of Part VII of the Act in its current form commenced operation on 1 July 2006. The appeal to the Full Court on 5 September 2006 was determined without demur on the basis that the law governing the appeal was Part VII of the Act as it was prior to 1 July 2006.

15. The decision of the Full Court in Goode and Goode (supra) was delivered on 15 December 2006. It is apparent that, if the trial Judge heard and determined the father’s interim parenting application on 28 March 2007, the judgment of the Full Court in Goode and Goode (supra) potentially impacted upon the nature and adequacy of his Honour’s reasons for judgment.

16. If, as was submitted on behalf of the mother, the trial Judge on 28 March 2007 declined to entertain that application, for the reasons he had given on 30 June 2006 when declining a similar application, it is difficult to see how the judgment of the Full Court in Goode and Goode (supra) could have been relevant to the form or content of his reasons for judgment, although it is arguable that the decision not to entertain an interlocutory parenting order is an order made in parenting proceedings.

17. There is little doubt that the trial Judge’s reasons for judgment of 28 March 2007 do not reveal that the matters referred to by the Full Court in Goode and Goode (supra) were considered. To that extent, if the refusal to entertain the application for an interlocutory parenting order was an order made in parenting proceedings, unless one accepted the submission of Counsel for the ICL that his Honour was not obliged to give any reasons in that regard, the father’s complaint would appear to have substance.

18. In his judgment of 30 June 2006 Collier J said:

    10.This case indeed involves a vast volume of evidence. It is regrettable that to reach an interim determination is not the simple task that the father seems to see it to be. To isolate the evidence of one person, and thus to put everything else to one side, and to make a reasoned judgment without a thorough and intensive review of the balance of the evidence is in my view not open to me, particularly and especially at this stage of a trial that has occupied very many days. I consider that to endeavour to do so – that is, make an interim decision based on the evidence of only one person, notwithstanding that person’s evidence – would be an improper exercise of my discretion. It would have the effect of determining one of the central issues of the trial; that is whether the father should see the child [L], or not. It is not, to my mind, a matter where contact should be ordered at this stage as some form of trial or experimental process.

    11.I do not believe the decision of their Honours of the Full Court in Cowling v Cowling (1998) FLC 801 is of particular assistance in reaching the determination that I do, nor do I agree that that decision requires me to say – if I was prepared to do so – that at this stage, either, there is no risk to the child of being with the father, or there is a risk of some harm or damage to the child if contact is not permitted.

    12.Again – and I stress – those are matters for ultimate decision on the whole of the evidence. Whilst I acknowledge the Professor’s eminence in his field, he has not heard all of the evidence that I have heard. I must give due weight to his clearly expert testimony; I will do so. However, I must, and will weigh it against all other evidence that I have heard, both lay and expert, to which the Professor has had no access, in order to reach a final conclusion in this matter.

    13.To elevate the Professor’s evidence to the only or determinative evidence, and in doing so, to ignore other evidence which is before me – both lay and expert – would be to make an error. To make interim orders based on that evidence alone, in my view, would be to further compound that error.

    14.The evidence is not concluded. At this time I am not persuaded that it is appropriate that I should entertain the father’s application for interim relief, and I decline to do so. [The emphasis in paragraph 14 is ours.]

19. In the Full Court’s judgment of 5 September 2006 Kay J, with whom Coleman and Bennett JJ concurred, said:

    18.So in the circumstances, the trial judge was faced with a situation where the child had not seen the father for some two years. The issue before the trial judge that has not yet been concluded is whether any contact was appropriate, and if so, what contact, as well as the competing residence applications, and in the circumstances, the trial judge concluded that he was not satisfied that it was appropriate to make an order at that time.

    19.This is an appeal from a discretionary judgment. Unless it can be demonstrated that the judgment offended the legal principles that were relevant or was based on a misunderstanding of the evidence or reached a result that was patently unjust, it would be quite inappropriate for an appellate court to interfere with the judgment. In the circumstances, I am not satisfied that any error has been demonstrated in the manner in which the trial judge dealt with the issue of the interim contact arrangements. (AGF & LLS [2006] FamCA 923, paragraphs 18 – 19).

20. Although it is less than entirely clear, having regard to the portions of the judgments to which we have referred, we are satisfied on balance that on 8 March 2007 his Honour refused to entertain the father’s oral application for interim parenting orders, essentially for the reasons which he had advanced in support of a similar decision on 30 June 2006 in circumstances where that decision was unsuccessfully appealed by the father. The trial Judge was clearly aware of the terms of the Full Court judgment of 5 September 2006 as his comments on 8 March 2007 confirm. In those circumstances, the course of his Honour’s reasoning process is not in doubt, nor was his exposition of the reasoning process inadequate. Nor, to the extent that Ground 9 raises it, was his Honour’s exercise of discretion, or the reasons for it, such as to enliven appellate intervention. We so conclude having read the transcript of evidence on 28 and 29 June 2006 in addition to the material previously filed by the father in the appeal.

21. The necessity to refer in reasons for judgment to the provisions of Part VII of the Act varies according to the facts and circumstances of each case. If his Honour in fact entertained and determined the father’s application for interim parenting orders, we are not satisfied that the failure to address the matters referred to in Goode and Goode (supra) constitutes, in the circumstances of this case, an appealable error. It is apparent that his Honour would have reached the same conclusion had he approached the issue in the manner suggested by the Full Court in Goode and Goode (supra), and been justified in doing so. The evidence upon which the father relied was the same as the evidence upon which he relied on 30 June 2006.

22. Relevant to our conclusion is the statement by the Full Court in Goode and Goode (supra) that:

    74. … because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief.

23. If we are wrong in our conclusion as to these matters, and should conclude that the trial Judge in fact determined the father’s interim parenting application, and impermissibly failed to give adequate reasons for his decision in that regard, the question would arise as to the consequences of so concluding.

24. The father submitted that this Court should re-exercise the trial Judge’s discretion and make the interim parenting orders which he sought. This Court would be unable to do that, any decision that this Court made being arbitrary in the extreme as this Court has seen and heard no witnesses cross-examined, read but a miniscule portion of the thousands of pages of transcript of the trial, and has no ability to properly and judicially determine the matters made relevant for that purpose by Part VII of the Act.

25. The father’s alternate position appeared to be that he sought an order directing all parties to mediation or some similar process with a view to reaching a “commonsense settlement”. With respect to the father, against the background of this litigation, such a course would be unlikely to achieve anything, but in any event is a course which all parties could cause to occur without the necessity of a Court order if they wished to.

26. The father appeared to submit that, in the last resort, although it would be “a waste of time to do so”, the Court should remit the matter for a further rehearing. That must be understood in the context that, if successful, the father’s disqualification application would result in a new trial of the whole of the proceedings.

27. This Court would not, with respect to interim parenting orders, be in a position to attempt to re-exercise the trial Judge’s discretion in any fashion resembling a judicial determination, nor would it make an order with respect to mediation or some similar process. In theory the Court could order that the matter be remitted for the re-exercise of discretion with respect to the father’s interim parenting application. The Court does not propose doing that and concludes that such course would in the circumstances of this case be an abuse of the Court’s processes for reasons which we shall briefly indicate.

28. As is clear, the evidence in the substantive proceedings concluded on 12 September 2006. All that remains before judgment can be delivered is for the father to file his written submissions in the substantive proceedings. Before this Court the father advised that he has “no intention of filing any submissions” in the substantive proceedings. If this appeal is otherwise unsuccessful, it thus remains only for the trial Judge to produce his Judgment in the substantive proceedings.

29. Against that background, to order a further interim hearing with respect to parenting issues, before the trial Judge or anyone else, would be an exercise in futility. This would be so quite apart from the reality that after a trial of the substantive proceedings which has occupied 50 days, it would be naive to imagine how any kind of judicial determination of interim parenting issues could possibly arise from a hearing occupying a few hours or perhaps a day.

30. Thus, even if we are in error in rejecting the challenge embodied in Ground 9 of the father’s Notice of Appeal, we would not make orders, the effect of which would be to sentence the parties to another interlocutory hearing with respect to parenting issues. We perceive no impediment to such course would arise by virtue of any provision of s 94(2) of the Act. It remains to consider the balance of the father’s complaints.

Disqualification based upon the Implications of Delays

1. As a reading of them makes clear, the father has vehemently complained of both the length of the trial and the truncated fashion in which it has taken place over a period of many months. It may well be that the father has cause for complaint in relation to the time the trial has taken, and its course, but those are not matters which arise for consideration in this appeal.

2. So far as delay is concerned, we record, as we indicated to the father during the course of his oral submissions, that in any appeal with respect to the substantive orders in these proceedings, though not a “ground” of appeal as such, “delay” is a factor to which an appeal court will have regard when assessing the merits of complaints that do constitute “grounds” of appeal. In R v Maxwell (1998) 217 ALR 452 at 462 Spigelman CJ, Sperling and Hidden JJ said:

   Delay is not, however, of itself, a ground of appeal. Nor does the delay in and of itself indicate that the trial miscarried or that the verdict is in any manner unsafe. Nevertheless, a comparison between the judgment and the issues in the trial may indicate that the effect of delay has been such as to constitute a miscarriage of justice.

   This Court has adopted a similar approach in appeals involving delay.

3. Of necessity, to succeed with his disqualification appeal in reliance upon delay, the father must demonstrate that the trial Judge must have caused or acquiesced in unjustifiable delays of such magnitude that a reasonable apprehension of an absence of impartiality towards the father would arise. Implicit in that conclusion is acceptance of the suggestion that the trial Judge had pre-determined that the father would not see his child, an outcome which delays potentially render more probable. We do not perceive that the father has established that scenario, or its likelihood.

4. It is clearly regrettable that the proceedings were not able to be completed with fewer interruptions and delays. We are not in position to know why that occurred, but we record that it has not been demonstrated that the disruption of the proceedings or the delays in completing them or their ultimate duration are referrable to anything done or not done by the trial Judge. Nothing to which we have been referred demonstrates, as the father’s case needs it to, that the trial Judge, by causing or acquiescing in delays thereby gave rise to a reasonable apprehension that he remained impartial to the outcome of the father’s case.

5. It is significant in this context that nowhere in his extensive submissions does the father, save perhaps in one minor respect, suggest, other than in broad but highly critical terms, that the trial Judge has ever, throughout the lengthy course of these proceedings, said anything which might give rise to a reasonable apprehension of a lack of impartiality.

6. To the extent that the question of delay, which permeates the father’s submissions to this Court, impacts upon some or most of his Grounds of Appeal, we are not satisfied that such challenges have been made out.

7. It remains to consider the remaining issues which the father has agitated before this Court.

Disqualification in Reliance upon Other Matters

1. Specific reference to a number of grounds is instructive for the purpose of determining these complaints.

2. Ground 1 of the father’s Notice of Appeal provided:

   The trial judge prejudged relevant and live trial issues.

3. As a reading of his Outline of Argument makes clear, the father has many and varied complaints about the conduct of the ICL. Nothing to which we have been referred either establishes the substance of those complaints, or more importantly, any nexus between complaints about the conduct of the ICL and the impartiality of the trial Judge. The reality that the many particular complaints in support of this ground do not purport to relate to the trial Judge reinforces our conclusion that the complaint lacks substance. Some of the particular complaints however do purport to relate to the trial Judge, and we need to address them.

1. The correspondence to which the father refers and of which he complains was made available to all parties, including the father as the trial Judge recorded in his reasons for judgment. In the interests of completeness and transparency, we set out the substance of relevant correspondence:

   1.A letter from the ICL’s Counsel to Collier J’s associate dated 24 October 2006 stated:

   Unfortunately … I have not yet completed the submissions on behalf of the Independent Children’s Lawyer … I have been working on the matter diligently since the hearing of the matter concluded … I have advised the counsel for the mother and the Intervenor of my position and they do not have any difficulty with maintaining the current timetable and are content to allow me to deliver the submissions as soon as I am able.

   2.A letter to the ICL from The trial Judge’s associate dated 25 October 2006 stated:

   His Honour is prepared to allow a short extension of time for you to conclude your written submissions in this matter. His Honour instructs me to inform you that he accepts without question that you have been making all proper efforts to complete those submissions … a copy of this letter be sent to the legal representatives for the wife and the department and to Mr [Fennessy].

   3.A letter from the appellant father to Collier J dated 11 November 2006 stated:

   I have to hand your letter of 25 ult to James Linklater-steele [sic] wherein your associate states inter-alia “His Honour instructs me to inform you that he accepts without question that you have been making all proper efforts to complete those submissions”.

   Major issues in the trial which you needed to decide were the honesty and competence of the Independent Children’s Lawyer (ICL). Of course you have now already prejudged that issue as your ringing endorsement, that I have referred to above, illustrates. Your statement “accepts without question” is prejudgment at its highest (or worst) level and it is but further evidence of the pathetic and in fact corrupt, dishonest and cynical manner in which you have conducted “this trial”.

   …

   I say if in 42 days the ICL is still struggling to conjure an argument then you will struggle even longer. Sixty days has now passed and this inept and dishonest lawyer who poses as an ICL cannot decide what a Jury would need to decide in a few hours or days. The shambles of the trial reflects the shambles that is this pathetic court, the subject of more controversy and disquiet than any court in the history of this country. It is in fact a failure, an institution that is in terminal decline, on the cusp of extinction brought about by the maggot class of judges which it has attracted including Barry, yourself, the Chief Justice and others who imagine they know it all when in fact they are corrupt fools with giant egos who feel that the term “justice” confers infinite wisdom and power, the power to corrupt, hostages to the Femanazi and abject failures in respect of acting in the best interests of the children. These 6000 pages of proceedings are an illustration of the failure of a corrupt, spineless, dishonest judge who in concert with others seeks to pervert the course of justice, corruptly bury the facts and harm the child all to protect his incompetent and corrupt colleagues, all of the maggot class.

   4.A document entitled “Submissions” from the appellant father to Collier J dated 5 December stated:

   You might recall that you wrote to the ICL and told him you were prepared to allow “a short” extension of time for him to file his submissions in this case. You will also recall my reply to you in response to the letter you sent to me.

   The indulgence to the ICL arose because the ICL had told you, by letter, that 42 days was insufficient for him to prepare his submission. In fact 84 days have now elapsed with nary a whisper from the ICL.

   I wonder what he thought your deliberately imprecise term “short period” meant?

   Perhaps he thought “short” to be a term relative to the length of the trial, in the taking of evidence over 14 months?

   …

   Could you ever imagine any judge ever granting such a request? Could you ever imagine the judge further extending the time by a further 42 days? Could you ever imagine and [sic] competent judge telling an advocate unlaterally [sic] I will grant you a short extension of time?

   (a)Without reference to any other party and

   (b)Without specifying what short meant and in fact without specifying an actual date-whether in the civil or criminal jurisdiction or of the federal court;

   …

   You must realize that one does not wait years, at your convenience, while your conjure + fabricate a judgment, over years, concerning a trial you have largely forgotten and concerning facts and circumstances which overtime [sic] have changed to a degree that render anything you may, in your inept and flawed judgment produce, in the form of an order. No doubt with Xmas being near you should forgive the ICL and those who are “privileged to practice in the law” and grant them over time as they no doubt have other briefs to attend to and their not inconsiderable cheques to spend before returning to work at the end of Jan 07. Be consistant [sic] give Mr. F 84 days also, more if he is busy and tell him that you hold him and his client in the same unqualified esteem as you hold the ICL. [original emphasis]

   5.A letter to the ICL from Collier J’s associate dated 8 December 2006 stated:

   His Honour has directed me to enquire when your written submissions will be filed. In the event that you are unable to assure me that this will be done within five working days His Honour proposes to re-list the matter for further directions.

   6.A letter to the ICL from Collier J‘s associate dated 14 December 2006 stated:

   Further to our letter dated 8 December 2006, I would confirm that this matter has been listed for mention at 10am (Brisbane time) on Wednesday, 20 December 2006 by way of telephone link-up.

   Please provide me with a telephone number at which you can be contacted at that time, by no later than close of business on Tuesday, 19 December 2006.

   7.A letter to appellant father from the ICL dated 18 December 2006  stated:

   We refer to the above and enclose the following for your records:

   Copy of Fax to the Associate to Justice Collier dated 18.12.06.

   Would you please note your records accordingly.

   8.A facsimile transmission from the ICL dated 18 December 2006 stated:

   We refer to your letter of 8th December 2006 and advise that written submissions on behalf of the Independent Children’s Lawyer will not be completed by 15 December 2006 as per your request.

   Our position is that the submissions are still to be completed and we will require some further time in order to finalize them.

   We acknowledge both his Honour’s previous directions and his continuing concern that the matter be completed as expeditiously as possible. We wish to advise his Honour that we are doing our best to complete the submissions and would seek to pass on to his Honour the following assurances.

   The endeavour of the written submissions in this matter has become an extraordinarily large, complex and difficult task that may not have an equal in the history of child litigation.

   As we have not received any contact from Mr [Fennessy] since the trial we have taken the view that it is likely Mr [Fennessy] will not put forward any submissions in relation to the matter. The father’s case and his cross examination of the mother have occupied the major part of the trial. While it is not our role to conduct a case for Mr [Fennessy] it is imperative not withstanding [sic] that Mr [Fennessy] has abandoned the trial process that the court receive submissions on all of the evidence relevant to the court’s determination. We believe it is our duty to the Court and to [L] whose interest we represent, to put submissions forward that would seek to encapsulate what we believe to be the father’s arguments and the supporting evidence for the courts consideration. This unfortunately has lead to a significant increase in the matters we are submitting on.

   The draft submission with out [sic] annexure, stands at present at some 390 odd pages and is not yet complete. Included within the submissions we have summarized the relevant affidavit evidence tendered by the parties, including the 13 or so affidavits by Mr [Fennessy], we have reviewed and completed summaries of the 50 plus exhibits and in addition we have undertaken the task of providing as annexures to the submissions ad memoirs, being transcripts of critical taped conversations tendered in evidence.

2. As noted previously, the directions for submissions were made after the matter had been before the Court for two days in September 2006 during which the father did not attend or participate in the proceedings. Notwithstanding that, the trial Judge made provision for the father to file written submissions after receiving the submissions of the parties.

3. Nothing to which the father has referred us establishes in what manner the trial Judge’s willingness to extend time for the filing of submissions, by all parties, indicated some lack of impartiality upon his part. It is not insignificant in this regard that the father did not seek to re-list the matter before the trial Judge to seek an expedited timetable for submissions or otherwise apply to have matters progressed until his application of 14 February 2007, by which he sought that his Honour disqualify himself from further hearing the proceedings.

4. Ground 2 of the father’s Notice of Appeal provided:

   The trial judge demonstrated partiality and affection to other parties and in particular to the Independent Children’s Lawyer (I.C.L.).

5. The Outline of Argument of the father makes clear his contention that the terms of the correspondence between the trial Judge’s associate and the ICL would give rise to a reasonable apprehension that the trial Judge lacked impartiality. It may be, although we do not find it to be so in the unusual circumstances of this case, that the trial Judge was unduly generous in extending time for the filing of submissions even allowing for the duration of the trial and complications advanced by the ICL to explain the failure to comply with directions. Even if that were the case, that does not, without more, raise a reasonable apprehension of a lack of impartiality on the part of the trial Judge. It is significant that the father has not suggested how the relevant lack of impartiality ought reasonably be seen to have thereby arisen.

6. It is to be remembered that the directions were made after two days of hearing in September 2006 from which the father absented himself. It can fairly be said that when the directions were made, the trial Judge had no reason to believe that the father would lodge any written submissions or object to the time frame for others to do so being extended. As late as 8 March 2007 the father did not commit himself on that issue, although then asked about it during the course of the proceedings before the trial Judge.

7. The correspondence was, as his Honour recorded in his judgment, made available to all parties. As we have noted earlier, not until 14 February 2007 did the father make any application with respect to the directions or any extension of time to comply with them, and his application then was that the trial Judge disqualify himself.

8. Nothing in the correspondence, either as to form or substance, which passed between the trial Judge, through his associate or otherwise, and any party to the proceedings could in our view give rise to a reasonable apprehension of a lack of impartiality.

9. Ground 3 of the father’s Notice of Appeal provided:

   The trial judge demonstrated actual bias and by his further actions and behavior [sic] created an apprehension of bias.

10. We have earlier dealt with the question of “delays generally”. Only by concluding that the trial Judge caused or acquiesced in the delayed finalisation of these proceedings could this challenge succeed. The father’s complaint, variously expressed in his Outline of Argument in support of this Ground is effectively that the trial Judge deliberately allowed the proceedings to be “drawn out” so as to reduce the father’s chances of obtaining orders whereby he would spend time with the child the subject of the proceedings.

11. It is clear that his Honour was undoubtedly aware that the father was not seeing his child and would not do so unless and until he made an order to that effect. Putting to one side entirely the improbability of a Judge being a party to any course of conduct of the kind the father alleges, nothing to which the father has referred us suggests that the trial Judge ever said anything to him which might reasonably indicate that he continued to bring anything other than an impartial mind to bear on the issues before him.

12. Ground 4 of the father’s Notice of Appeal provided:

    The trial judge is in contempt of his own orders and in contempt of the principles of the Family Law Act.

13. To the extent that we understand this complaint, part of it appears to be that the course the trial took before his Honour prejudiced the father from the presentation of his case. In substance though not so expressed, this seems to be a natural justice challenge. Nothing to which the father has referred this Court persuades us that the trial Judge, in any way, identified by the father or otherwise, denied him natural justice in the course of the trial such as would, or could, advance this complaint. Indeed, the thrust of the father’s complaints with respect to the length of the trial is hard to reconcile with an apparent natural justice challenge.

14. Ground 5 provided:

    The trial judge corrupted the court process so as to pervert the course of justice to cause a miscarriage of justice and detriment to the child.

15. From the father’s Outline of Argument, this complaint seems in substance to be a revisiting of the complaints about the delays in the hearing of the proceedings. Putting to one side the many and colourfully expressed criticisms of the trial Judge, and the lawyers appearing in the case, nothing to which the father refers or in his outline of written submissions establishes anything done or not done by the trial Judge which was a “corruption of the [Court] process” or perverted the course of justice so as to cause a miscarriage of justice and detriment to the child. These complaints proceed on a false assumption: the trial Judge has not yet determined what parenting orders should be made in the child’s best interests. The father may be successful in the substantive proceedings. Nothing to which we have been referred suggests that he could not be.

16. Objectively, having regard to the totality of the complaints agitated by the father in this appeal, only the trial Judge’s refusal during the currency of the proceedings to make the interim parenting order which the father wanted can be seen as a matter upon which the father relies to advance this complaint. Nothing to which we have been referred persuades us that the trial Judge’s refusal of the interim parenting orders sought by the father throughout the proceedings constituted action of the kind complained of in this ground or in any way “tainted” the course of the proceedings before him. It is to be noted that, when the trial Judge delivers judgment in the substantive proceedings, complaints of this kind, if able to be demonstrated, would be likely to impact on any challenge to the substance of the orders then made. In this appeal however, nothing advanced by the father establishes this ground.

17. Ground 6 of the Notice of Appeal provided:

    The actions of the trial judge are inimicable to the child’s best interests.

18. Having regard to the matters raised in the Outline of Argument of the father, there is little we need say, having dealt with the substance of most of the matters there raised earlier in these reasons. We do however respond to the submission that:

    The actions of the trial judge in separating the child from both her father any [sic] every person she had every [sic] known for an extensive and extended period for no good or explicable reason is an affront to justice more so when the evidence is that the child had an extremely close and loving relationship with her father. The trial judge being solely responsible for his actions, including delaying actions denials and lies has caused irreparable substantial and continuing harm to the child.

19. This submission overlooks a number of matters, not the least of which is that the trial Judge has heard more than 50 days evidence in relation to the child the subject of the proceedings, in which there are clearly a number of substantial issues the determination of which will impact upon the trial Judge’s exercise of discretion. It also assumes, erroneously, findings of fact which have not been made, and may never be made.

20. We have earlier referred to the ability of the father in an appeal against the substantive orders to seek to advance challenges to the exercise of discretion by reference to the impact of delay on the judicial process.

21. The other matters raised in the context of this specific complaint are all matters which go to the substantive judgment in the proceedings. Nothing raised by the father in reliance upon them in support of this ground advances his complaints in the present appeal.

22. Ground 7 provided:

    The trial judge denied procedural justice which resulted in the denial of natural justice.

23. To the extent that sense can be made of this challenge, we do not accept that the trial Judge’s refusal of interim parenting orders provides any reasonable basis for apprehension as to the outcome of the substantive proceedings or otherwise advances these complaints. Nor do we accept that anything done by his Honour or anyone else in the case or any of the circumstances surrounding the course of the case establish a reasonable apprehension that there is “no possibility whatsoever that the judge will order contact”.

24. The father referred to the evidence of Professor N, and to the evidence of a senior clinical psychologist, Mr T. It is not suggested that the trial Judge has at any time in any way signified that he will not accept the evidence of those, or any other witnesses upon whose evidence the father wishes to rely in the proceedings. Nor does anything said by the trial Judge or ordered by him provide support for the assertions with respect to the outcome of the proceedings, whether or not his Honour misunderstood the basis upon which Professor N expressed his expert opinion evidence before him.

25. Ground 8 provided:

    The trial judge gave insufficient, inadequate and wrong reasons in refusing to disqualify himself.

26. The trial Judge gave extensive and cogent reasons for refusing the father’s application for disqualification. His Honour’s reasoning process is clear. The law to which he had regard is, sensibly, not suggested to have been other than accurate and balanced.

27. We have earlier dealt with the specific reasons challenged in relation to the father’s interim parenting application. No finding of fact having been shown to have been other than reasonably open to his Honour, his reasoning process being apparent, adequate and sustainable, this ground cannot succeed.

28. Grounds 10 and 11 provided:

    10.The trial judge has corruptly deliberately and unlawfully prolonged this trial commenced 16 July 2005

    11.The trial judge in his reasons has relied on wrong facts.

29. Nothing advanced by the father in the course of his oral submissions to this Court establishes either of these complaints.

Conclusion

1. No ground of appeal having been made out the appeal will be dismissed.

Costs

1. Each of the parties to the appeal sought orders for costs in the event that the appeal was successful. The father opposed that course but advanced little in opposition to an order for costs in the event of the appeal being dismissed.

2. In our view, the absence of merit in the appeal constitutes circumstances justifying orders for costs of the other parties to the appeal and we will so order.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  1 June 2007