Fowles & Fowles - [2021] FamCA 368

FAMILY COURT OF AUSTRALIA
Fowles & Fowles [2021] FamCA 368

File number(s): MLC 8587 of 2015

Judgment of: BENNETT J

Date of judgment: 9 June 2021

Catchwords: FAMILY LAW – COURTS AND JUDGES – Disqualification – where party alleges apprehended bias based on constraint on husband’s liberty, length of cross examination and intervention in cross examination - application made during long and protracted hearing – application dismissed

Legislation:
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Cases cited:
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283

Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337

Finch and Finch (2020) FLC 93-949

Galea v Galea (1990) 19 NSWLR 263

Fowles & Fowles (No. 2) [2019] FamCA 1027

Fowles & Fowles [2019] FamCA 1011

Johnson v Johnson (2000) 201 CLR 488

Livesey v NSW Bar Association (1983) 151 CLR 288

Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42

Michel v The Queen [2010] 1 WLR 879

R v T, WA (2014) 118 SASR 382

Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128

Number of paragraphs: [201]

Date of written submissions: Husband’s written submissions dated 29 October 2020;
Wife’s written submissions dated 9 November 2020;
Husband’s written submissions in reply dated 13 November 2020.

Date of hearing: 28 October 2020

Place: Melbourne

Counsel for the Applicant: Mr Sheales

Solicitor for the Applicant: Lander & Rogers

Counsel for the Respondent: Mr North SC

Solicitor for the Respondent: Taussig Cherrie Fildes Family Lawyers
ORDERS

MLC 8587 of 2015

BETWEEN:
MS FOWLES
Applicant

AND:
MR FOWLES
Respondent

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

THE COURT ORDERS THAT:
1.I grant leave for the husband to make an oral application that I recuse myself from hearing any further aspect of this proceeding.
2.The parties’ submissions in respect of the husband’s application be marked as exhibits and remain on the court file.
3.I dismiss the husband’s application with the effect that I remain seized of the matter for final determination.
4.Subject to any further or other order made by me, this matter be set down for further hearing on the following dates:
(a)31 August to 3 September 2021;
(b)6 to 8 September 2021 –

in the expectation that the matter will conclude within that time.
5.Any party wishing to make an application for costs of or incidental to the husband’s application, do so within 30 days and, regardless of the basis upon which costs are sought to be calculated, support such application with a memorandum of costs drawn in accordance with Schedule 3 to the Family Law Rules 2004. Upon an application being filed, my Associate will inform the parties of a timetable for filing submissions as to costs.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fowles & Fowles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
BENNETT J:

INTRODUCTION

[1]

APPREHENDED BIAS TEST

[6]

HUSBAND’S FACTUAL CONTENTIONS

[13]

Constraint on the husband’s liberty

[15]

Length of cross-examination

[31]

Alleged non-disclosure by the husband

[38]

The husband’s failure to give responsive answers

[38]

“True Copy”

[45]

Husband’s disruptive behaviour toward counsel for the wife

[53]

Counsel bickering

[61]

The husband failing to observe normal protocols

[69]

Soles of feet to camera

[70]

“Victim”

[71]

Reading the newspaper

[73]

My general warning

[74]

The child D

[78]

Group chat

[91]

Calling counsel by their given names

[93]

Inability to get instructions

[103]

The banana

[105]

Interrupting the affirmation

[117]

Interim applications

[121]

Other events occurring during Court proceedings

[122]

Intervention in cross-examination

[125]

Cumulative Impression

[194]

CONCLUSION

[201]

INTRODUCTION

On 28 October 2020, after 34 days of hearing and in what was hoped to be the last week of the final hearing of this property matter, the husband made an application that I recuse myself on the basis of apprehended bias. Mr North SC, for the husband submitted that I have “addressed the husband, and dealt with him and his liberties in such a way as to cause a fair-minded observer to have the relevant apprehension.”
Counsel for the wife, Mr Sheales, sought that husband particularise his application in writing as the wife had no notice of the application and would suffer prejudice in trying to address the facts of the application in terms of the context and accuracy of the proposed examples that could lead to an apprehension of bias. The husband was given until Friday 30 October 2020 to provide written submissions. However, on receipt of the husband’s contentions of fact and law on 29 October 2020 and after realising that transcripts would need to be produced, the wife was given until 6 November 2020 to provide her written submissions. With the week thus spent, neither party sought to make oral submissions, unless required to clarify some aspect of their written submissions, but the husband sought that he be able to respond to the wife’s submissions by further written submissions or oral submission if required. Due to the unavailability of the wife’s counsel, the wife was granted an extension until 9 November 2020 to provide the written submissions. On 13 November, the husband provided his submissions in reply as well as an affidavit in relation to the parties’ teenage son being present in the remote hearing on the afternoon of the day prior to the recusal application being made, which incident I will address later in my reasons. I mark the husband’s written submissions dated 29 October 2020 exhibit “H-23”, the wife’s written submissions dated 9 November 2020 exhibit “W-144” and the husband’s written submissions in reply dated 13 November 2020 exhibit “H-24”.
I have considered the submissions, reviewed much of the transcript upon which the husband relies, viewed some video footage of the hearing and listened to some limited audio recordings of the proceedings. I am comfortably satisfied that a fair-minded lay observer, who knows all of the circumstances of the case and understands that a judicial officer’s training, tradition and oath or affirmation equip her to disregard aspects of the case (including behaviour) which are irrelevant, immaterial and prejudicial, might not reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide.
I do not accede to the husband’s application for my recusal and, subject to any further order that I make, I will recommence the final hearing as provided for in the Order which appears at the commencement of these reasons.
The reasons which follow include the specific assertions made on behalf of the husband.
APPREHENDED BIAS TEST
The legal principles are not controversial. Both parties rely on the tests of apprehended bias in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”). The husband also relies on Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) and British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 (“BRATAS”). The wife otherwise relies on Livesey v NSW Bar Association (1983) 151 CLR 288 and Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42.
In Ebner, the High Court gave expression to the double ‘might’ test saying, with footnotes omitted:
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.
7. The 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 influence the outcome. No attempt need be made to enquire into the actual thought processes of the judge or juror.
8. The 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.
In British American Tobacco Australia Services Ltd French CJ held that:[1]
In judging whether the appearance of impartiality has been lost difficulties of principle and application can arise. Courts must make their judgments upon criteria referrable to a legally constructed fair-minded lay observer. That means, in effect, that their judgments are made on a subset of the available information. That is because the reasonable apprehension of bias goes to confidence in the courts on the part of litigants and the public, who will not have access to the details of the substantive law and all relevant aspects of the practice and procedure of the courts. In determining whether an apprehension of bias has a reasonable basis, the courts are asked to see themselves as others, not judges or lawyers, would see them …
[1] (2011) 242 CLR 283, [33].
In the earlier High Court decision of Johnson, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said this:
12.… The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
(Emphasis added)
In an earlier High Court decision, Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, Mason J said [at page 352]:
… 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 will decide the case adversely to one party. … [D]isqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”…
The wife adds that the High Court in Livesey held that: [2]
It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance to such a question of fact.
[2] Livesey v NSW Bar Association (1983) 151 CLR 288, 300.
The wife also relies on Martin for explanation of the test:[3]
That observer is amongst other things: (1) taken to be reasonable; (2) does not make snap judgments; (3) knows commonplace things and is neither complacent or unduly sensitive or suspicious; (4) has knowledge of all the circumstances of the case; and (5) is an informed one who will have regard to the fact that a judicial officer’s training, tradition and oath or affirmation, equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial. That a judge has made a previous decision on issues in a matter does not “mean either that [the judge] will approach the [other] 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 [the judge’s] previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that [the judge] will approach the issues in this way.
[3] Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42, [21].
HUSBAND’S FACTUAL CONTENTIONS
In his written submissions, counsel for the husband outlines a number of factual contentions which it is said give rise to an apprehension of bias. The wife responds that the husband’s contentions “are without substance”.[4] The husband in his reply, submits that the wife’s submissions are in error in that they consider each of the matters raised by the husband in isolation. The husband submits that in accordance with the findings of Kirby J in Galea v Galea (1990) 19 NSWLR 263 that:[5]
The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the intervention …
[4] Wife’s Response dated 9 November 2020, [4].
[5] Galea v Galea (1990) 19 NSWLR 263, 281-2.
Respectfully, I agree with Kirby J. Accordingly, all of the husband’s behaviour must be taken into account when determining the reasonableness of the steps taken to manage the proceedings in a way which is fair to both parties.
Constraint on the husband’s liberty
The husband contends that the injunction made on 5 July 2019 prohibiting him from leaving the Commonwealth of Australia has “[o]ver … approximately 27 days over the course of two years and seven months [caused him to feel as though he has] been subjected to an ordeal and that during that time throughout that period, his liberty has been constrained.” [6]
[6] Husband’s Factual Contentions dated 29 October 2020, [6].
It is necessary to provide context to the injunction. At the commencement of the trial on 18 March 2018, the wife sought an order that the husband be enjoined from leaving the jurisdiction. At that time, it was apparent that the wife alleged that a large but unspecified amount of the property with which these financial proceedings are concerned is located outside Australia in entities controlled by the husband. The husband denied that was the case. On 19 March 2018 the husband gave an undertaking not to leave Australia without the leave of the Court for the next 48 hours. On 21 March 2018 the husband was required to attend court with his passports and the undertaking was extended until 4.00pm, 22 March 2018. On 22 March 2018, the undertaking was extended until 4.00pm on 23 March 2018. On 23 March 2018, the husband’s undertaking given on 19 March 2018 was extended to 4.00pm on 28 March 2018.
Earlier, on 5 October 2015 the husband was restrained, by Order of Judge Hartnett (as she then was) from, inter alia, selling or otherwise disposing of or encumbering or diminishing any interest (legal or equitable), entitlement, power or office in respect of any business interest corporate entity or trust in which he has an interest save for in the ordinary course of business. One Mr V is the wife’s expert on the valuation of certain corporate entities and a report by Mr V was served on the husband husband’s lawyers on Friday, 23 March 2018. On Sunday, 25 March 2018 the husband wrote two communications to Mr V informing Mr V that he would resign and quit certain entities and posing the question that, without him [the husband] “Now what is it worth?” On the morning of 26 March 2018, which was the third day of the trial, the wife sought an immediate injunction restraining the husband from leaving the jurisdiction pending completion of this hearing.
On the afternoon of 26 March 2018, Senior Counsel for the husband informed the Court that overnight he would, at my invitation, seek instructions from his client as to whether his client would surrender his passports as an alternative to the granting of an injunction. On 27 March 2018, Senior Counsel for the husband informed me that he was not instructed that his client would surrender his passports. The husband applied for his passports (Australia, United States of America and Country U) to be returned to him so that he could travel. The husband had no particular plans to travel although he said that he wanted to return to the United States temporarily. The wife opposed the husband’s application on the basis that he had demonstrated a disregard for orders of this Court and would likely not return for the purpose of the final property hearing, leaving her significantly disadvantaged. I heard submissions, reserved my decision and gave the husband liberty to apply urgently in the event that he required to travel in the meantime. No injunctive relief was granted but it was understood that the husband would not leave Australia prior to the delivery of my reserved decision.
On 5 July 2018, when the financial proceedings were to be adjourned for further hearing, the wife made oral application to renew her application that the husband be restrained by injunction from leaving Australia and that he hand in his passports. Without admitting the necessity for him to relinquish his passports, the husband agreed for his passports to be held by the Court. On 5 July 2018 I pronounced the following interim orders:-
(1)The husband be and is hereby restrained by injunction from departing from the Commonwealth of Australia without further order of the Court.
(2)The husband cause his passports (Australia, United States of America and Country U) to be delivered to the Registrar of the Court and held for safekeeping NOTING THAT the husband does so voluntarily and without admitting the necessity for an order in this regard.

As of 5 July 2018, the matter had occupied 13 days of court time. The husband, who is the respondent, had been in the witness box for some 32 hours over 10 hearing days. On 5 July 2018 the hearing was adjourned to 1 October 2018 for a further two days.
On 22 August 2018 the husband filed an application in a case seeking that the injunction made on 5 July 2018, restraining him from traveling out of Australia, be discharged and his passports be returned to him. In the alternative, that he be permitted to travel to the United States for ten days as soon as practicable or from 22 September 2018 until Monday 8 October 2018, or from 7 December 2018 to 31 January 2018. The purpose of the trip was to visit his sick mother and then return to Australia. The husband was still being cross-examined by counsel for the wife in the substantive proceedings. The husband’s application in a case was set down for hearing on 10 September 2018 before me. On 10 September 2018 counsel for the husband requested this application be adjourned, save to costs. The day was spent in evidence and submissions about whether the parties’ son, D, [7] could attend school camp (over the husband’s objection). I delivered a decision on that issue on 12 September 2018 in case neutral citation [2018] FamCA 711. By way of background, I incorporate those reasons into these reasons. The husband did not request the relisting of his application filed 22 August 2018.
[7] D Fowles was born in 2003. In these proceedings, he has variously been referred to. No one seems to call him by his full name. I will adopt the diminutive name “D” in line with the Independent Children’s Lawyer.
On 16 November 2018 I ordered that the husband continue to be restrained by injunction from departing Australia without further order of the Court and that until further order, the husband’s passports continue to be held in the Registry. My reasons included the following:
6.Until now, absent the husband actually seeking to leave Australia for specific dates or for a specific purpose, I have been disinclined to make observations about the husband’s conduct of the trial and his presentation in the witness box, and I delayed delivery of this decision. However, having heard argument on the wife’s initial oral application, it is necessary that I rule on it because one or more of the parties has now specifically requested the decision.
[…]
21. There have been 13 days of hearing so far. It is likely that the next defended hearing dates that can be allocated to this matter will be 4 to 8 February 2019. It is less than satisfactory that the case has been adjourned part heard. However, it has run, and will continue to run, for times far in excess of counsels’ estimates of reasonable duration of the trial. Under this court’s case management system of judicial dockets, practitioners and parties cannot expect consecutive hearing days if, as here, the estimates of the time for hearing are grossly inaccurate.
Notably, when the proceedings commenced on 18 March 2018, as to parenting and property, the practitioners estimated that the matter would take five days (noted in the Order made on 8 March 2018).
The Order of 16 November 2018 effectively determined the wife’s oral application of 27 March 2018. My reasons for decision appear at case neutral citation [2018] FamCA 929 and I incorporate those reasons into these reasons to provide further context to the injunction. It is clear from my reasons of 16 November 2018 that the wife’s application was partially in response to emails sent by the husband on 25 March 2018[8] and comments made by the husband that he would to resign in various capacities from companies over which the wife alleged he had effective control and return to the United States of America to see his family and “have a break.” The wife contended that the husband’s relinquishment of control over certain entities was intended to, and would, have the effect of defeating her just entitlement in the financial proceedings. The tone of the husband’s emails is apparent from the reasons for decision at [30] and the emails should be read to be appreciated.[9] The injunction is open ended but is expressed to be subject to further order of the Court.
[8] The emails are exhibits “W18” and “W19” in the proceedings.
[9] The emails are extracted later in these reasons at [29].
On 29 November 2019, the husband made application to discharge the injunction so that he could visit his sick father. The husband’s father passed away later in 2019 which was after the husband’s documents were drawn but before they were filed, The husband sought to leave Australia to attend his father’s memorial service in the USA in December 2019 and his father’s ‘burial’[10] in Country U in January 2020, after which he maintained that he would return to Australia by 31 January 2020. The husband also sought to take the parties’ child, D, with him. The husband was still under cross examination in the financial proceedings. The wife opposed the application inter alia on the basis that the husband would not return to the jurisdiction and/or that he would not return their child to Australia. Moreover, that it was not in D’s best interests to go to the USA or Country U in the care of the husband. I accommodated the hearing of that application on 9 and 12 December 2019, sitting late into the night on the second day to do so. I allowed the husband’s application to leave Australia subject to certain conditions and compliance with outstanding orders for payment of funds but dismissed his application to take D to USA. My reasons for that decision are published under case neutral citation [2019] FamCA 1027 and I incorporate them into these reasons to provide context. The husband went to the USA and presumably to Country U and returned to Australia as scheduled.
[10] The husband’s evidence was that his father was cremated.
The husband contends that the “sheer duration” [11] of the injunction against overseas travel might cause a lay observer to conclude that the injunction has had a punitive effect. The husband says that: “Such an observer might well regard the husband as having been treated as a hostage and subjected to trial by ordeal and that there has been nothing limited about the duration of the restraint.” [12] I do not accept that submission. The Order is an interim order. As such, a party can apply to vary or discharge the injunction at any time, as the father has done. There is no restriction or condition precedent on the husband making such an application.
[11] Husband’s Factual Contentions dated 29 October 2020, [9].
[12] Husband’s Factual Contentions dated 29 October 2020, [9].
The wife submits that the use of the word “hostage” is “inflammatory and inappropriate”[13] and that the husband’s submission is inaccurate as the injunction is a lawful restraint on various actions of the husband and not a deprivation of his liberty. The injunction does impinge on the father’s freedom of movement, or liberty, but it is frequently the nature of an injunction to prohibit or mandate an otherwise lawful action where the court is satisfied that it is proper to do so. The wife correctly identifies that the husband does not suggest that the restraint on the husband was “unlawful or attended by error”. [14] The husband in his reply maintains that the word “hostage” is not inappropriate and was used by me in my reasons for decision of 23 December 2019 where I stated, inter alia [13]: “It is not appropriate to hold someone hostage or conduct a trial by ordeal.” This was in the context of stating some general principles about the exercise of the Court’s power to interfere with a litigant’s freedom to leave the jurisdiction. On behalf of the husband, it is submitted that injunction, having been maintained for over 30 months, is subjecting the father to an ordeal.[15] It is submitted by the husband, correctly in my view, that he is not required to prove that the restraint is unlawful but that the exercise of such power has the effect that a lay observer may (might) perceive bias.[16]
[13] Wife’s Response dated 9 November 2020, [5(a)].
[14] Wife’s Response dated 9 November 2020, [5(d)].
[15] Submissions in Reply on behalf of the Husband dated 12 November 2020, [4].
[16] Submissions in Reply on behalf of the Husband dated 12 November 2020, [6].
The husband is presumed to understand the nature of an interim injunction. Further, he has demonstrated his understanding of the interim nature of the injunction by making two applications for its discharge or suspension for the purpose of international travel. Notably, the husband abandoned the first application but the manner in which costs were dealt with would demonstrate to the lay observer that due consideration was given to the imposition and maintenance of the injunction. Finally, the reasons delivered on 23 December 2019 would also inform the lay observer of the nature and purpose of the injunction and the reasons why it was temporarily lifted.
At all material times the husband was represented by Taussig Cherrie Fildes, solicitors and Mr Timothy North SC leading Mr Salamanca of Counsel.[17] The husband has not filed a Notice of Appeal against any of the injunctive orders.
[17] Taussig Cherrie Fildes have since filed a Notice of Ceasing to Act on 2 February 2021.
Applying the lay observer test, I am not satisfied that the injunctive relief against the husband’s travel outside Australia is a basis for apprehended bias.
Length of cross-examination
The husband says that “unquestionably [he has] been subjected to an ordeal”[18] by way of his cross examination spanning over approximately 27 days over the period of two years in which these proceedings have been running and that the proceedings have been “meandering [in] nature” [19] in terms of the husband’s cross examination.
[18] Husband’s Factual Contentions dated 29 October 2020, [6].
[19] Husband’s Factual Contentions dated 29 October 2020, [7].
The husband contends that, despite his applications to place limits or deadlines on the wife’s counsel to conclude their cross examination of the husband, “the ordeal continued”. [20] It is submitted that, a lay observer might regard the extent of the husband’s cross examination to have gone beyond what is necessary or appropriate to fulfil the interests of justice and “amounting to an indulgence in favour of the wife but to the severe detriment of the husband.” [21] It is submitted by the husband that, as a consequence of the prolonged cross-examination, he became isolated and confined in the limitations placed on him concerning his communication with his legal representatives whilst under cross-examination. Notably, there has been no application by counsel for the husband for any relaxation of the protocol for the husband’s legal representatives to be able to speak with him during his cross examination. Furthermore, the husband and his legal representatives were sufficiently in communication to be able to participate in a Judicial Settlement Conference convened by Chief Justice Alstergren in mid-2020. There have also been numerous interim applications for which counsel for the husband gave every appearance of receiving instructions directly from the husband.
[20] Husband’s Factual Contentions dated 29 October 2020, [10].
[21] Husband’s Factual Contentions dated 29 October 2020, [11].
The wife submits that whilst the husband was under cross examination for 27 sitting days, the proportion of time he was cross examined on those days was only 25% of the 27 days. The wife further adds that the reason for the length of his cross examination is because of the husband’s lack of compliance with his obligations of disclosure; recanting on the provenance of documents that he had previously accepted; his refusal to accept the provenance of documents, and his behaviour directed towards the wife’s counsel even when directed to desist from such conduct, which the wife submits was abusive and disrespectful to the Court.
The husband in reply submits that the number of days under cross-examination over the period of two years and seven months whilst being subject to the injunction on the husband’s travel “is certainly most unusual, perhaps unprecedented” and may cause the lay observer to perceive bias on the basis of such cross-examination being not in the “context of ordinary judicial practice” as considered in Johnson.[22] The husband says that the ‘indulgences’ given to the wife’s counsel in terms of time for cross examination far exceeding their estimates, and the bringing of an application which interrupted the husband’s cross-examination which was subsequently abandoned, has the effect of an apprehension of bias in the apparent indulgences given to the wife and the lack of consideration or regard for the duration of cross examination of the husband and restraint on his movement.
[22] Johnson v Johnson (2000) 201 CLR 488, 493.
The husband submits that the wife is seeking to apportion all of the blame for any delay to the husband and says that this view is “one-eye and a misstatement of the events.”[23] This is based on what is submitted on behalf of the husband as “exchanges between the husband in the witness box and counsel for the wife cross-examining have been at times ‘willing’.” References to counsel for the wife lapsing in court decorum are also what the husband says has caused delays and even an apology. He says: “Discourtesy and rudeness have been displayed, not only by the husband in the witness box but by counsel at the bar table.”[24]
[23] Submissions in Reply on behalf of the Husband dated 12 November 2020, [12].
[24] Submissions in Reply on behalf of the Husband dated 12 November 2020, [12].
I have at various times in the proceedings raised the ability of the husband to speak to his lawyers notwithstanding he was still being cross examined. On 28 June 2018 (day 10 of the trial), there was the following dialogue:
HER HONOUR: Good morning.
MR SHEALES: Morning, your Honour.
HER HONOUR: […] Any housekeeping matters?
MR SHEALES: Just before I start, your Honour. Just [Mr Fowles] appears to have been quite distressed in the 20 minutes or so before your Honour came on the bench. And just perhaps, have your Honour – I refrain from it – but have your Honour inquire as to whether he feels up to proceeding.
MR FOWLES, ON FORMER AFFIRMATION [10.13 am]
HER HONOUR: Okay.[Mr Fowles], I can now see it – I didn’t see it when I walked in, but I can see that you appear to be distressed. When did you last speak with Mr North or Mr Salamanca or yourself?---Have I what?
When did you last speak to your lawyers?---Would I like to speak to them, no?
You haven’t spoken to them - - -?---When did I last?
Yes?---About 12 minutes ago.
Okay. How do you feel about continuing this morning with your evidence?---I want to continue with the evidence.
Okay. All right. Well, there’s no application made. Mr Sheales, I’m indebted to you.
MR SHEALES: Thank you, your Honour.
THE WITNESS: I just think it’s I just miss my boy and I feel like this whole system is just using him as a hostage for money and I don’t think anybody cares about him.
HER HONOUR: Well, I take into account your thoughts, only to a limited degree, as is relevant in property matters?---See, it’s only about property. Nobody cares about him.
That’s right. This is only about property because the parenting orders have already been made. Gentlemen, I do take it that you’ve considered ways forward in this case. There are some fairly obvious ways in which this matter may be resolved. It’s not for me to talk to you about them, but - - -?---No. They’re aren’t.
MR SHEALES: That’s your answer.
THE WITNESS: No. They want more money than actually exists. There’s no way to settle.
HER HONOUR: Well, nobody is going to get more money than actually exist?---That’s why we’re here.
But whether or not, what exists is probably a matter in issue. Anyway, there’s - - -
MR SHEALES: The understatement of the year, your Honour.
HER HONOUR: - - - a pretty obvious solution that I can see.
MR SHEALES: Pardon – excuse me, your Honour. I will not have the witness say, “Fuck you,” to me.
THE WITNESS: I did not say that.
HER HONOUR: Well, I didn’t hear it and I’m - - -
MR SHEALES: I want it noted - - -
THE WITNESS: And I won’t have him say “Fuck you” in the court.
HER HONOUR: You just behave yourself. In fact, I will take a break. Mr North, Mr Salamanca, take your client outside. Make sure he is all right - - -
THE WITNESS: I’m all right.
HER HONOUR: - - - in the realms of – well, I don’t know that you are – in the realms of being able to proceed today with his evidence and I remind you, of course, that ultimately, there will be an answer. It seems to make that it might a pretty obvious answer at this stage. I don’t think it would have escaped either of you. But I do want you to make sure that he is all right. Okay.
ADJOURNED [10.14 am]
RESUMED [10.24 am]
HER HONOUR: So, [Mr Fowles], you’re all right and you’re still bound by your affirmation?---I’m bound my affirmation, yes.
And you’re all right?---All right, in what regard?
To proceed to give your evidence?---To proceed to give evidence. Yes.
I wouldn’t want you to subsequently say, “I said I was all right because I wanted to be brave and I was concerned about the cost of the proceedings and further delaying of proceedings, but really, I couldn’t give evidence to the best of my ability”?---I can give evidence regarding financial matters to the best of my ability.
Good. Yes, Mr Sheales.
The cross examination of the husband was prolonged by:
(a)Counsel for the wife pursuing alleged non-disclosure by the husband;
(b)The husband’s failure to give responsive answers;
(c)The husband’s disruptive behaviour and interchanges with counsel for the wife;
(d)The husband failing to observe usual protocols;
(e)Counsel bickering;
(f)Cross examination being interrupted by interim applications;
(g)Other events occurring.
I will deal with each of these issues in turn.
Alleged non-disclosure by the husband
It is alleged by the wife in the financial proceedings that the husband has failed to adequately disclose his financial situation. The evidence in the husband’s case is not concluded. We have yet to hear in full from some professional witnesses upon whose services the husband says he relies heavily including in the sense that those witnesses know information about the husband’s financial affairs that he cannot recall, for example, Mr DD who was being re-examined by Mr Salamanca on the last sitting day, Until their evidence has been tested, it is not possible for me to make a finding about non-disclosure and/or how material any such non-disclosure is to the wife’s case. I did not stop cross examination providing that counsel for the wife has continued to cover new ground or to augment previous cross examination from the perspective of new material which has come to hand. The wife has a lot of documents in respect of which her counsel has sought explanations from the husband. Some discovery by the husband has been piecemeal and apparently tardy.
The husband’s failure to give responsive answers
In considering the days 1-13 of the transcript, being the part of the transcript referenced by the husband in his submissions, there was 23 occasions when the husband was asked by counsel or directed by me to “answer the question” after he refused to give an answer or failed to give an answer which was responsive.[25]
[25] Transcripts in Confidence, pp. 196, 216, 257-8, 265, 271, 304, 307, 328, 376, 474, 476, 551,615, 651-2, 672, 680, 693, 717, 899, 900, 911, 1002, 10064.
I will provide some examples of non-responsive answers but will endeavour to make those examples illustrative of another point as well.
The husband is restrained[26] from, inter alia, selling or otherwise disposing of or encumbering or diminishing any interest (legal or equitable), entitlement, power or office in respect of any business interest corporate entity or trust in which he has an interest save for in the ordinary course of business. One Mr V is the wife’s expert on the valuation of certain corporate entities and a report by Mr V was served on the husband husband’s lawyers on Friday, 23 March 2018. On the 6^th day of the hearing (26 March 2018) the husband was cross examined about the purport of two communications sent the previous day, on 25 March 2018, to Mr V. The communications were as follows:
(a)Sent 25 March 2018 at 1:20:17 a.m.[27] The subject matter was “resignation”. The text said “I will be submitting my resignation from [T Inc] and [W Pty Ltd] next week. I quit. Now, what is that worth? Regards, [Mr Fowles], Managing Director”
(b)Sent 25 March 2018 at 8:37:45 a.m.[28] The subject matter was “resignation”. The text said “I resign as RM of [W Pty Ltd] effective immediately. I also resign from all the day to day stuff I was doing. Can I resign as a director of company [W Pty Ltd] and [L Pty Ltd]. I’m now retired. Regards, [Mr Fowles], Managing Director”
[26] Order made 5 October 2015 by Judge Hartnett (as she then was) in the Federal Circuit Court of Australia.
[27] Exhibit “W18”.
[28] Exhibit “W19”.

Counsel for the wife commenced to cross examine the husband: [29]
MR SHEALES: Thank you, your Honour.
What does “RM” mean?---I was abused by - - -
What does it mean?--- - - - [Ms Fowles] over many years - - -
What does it mean?--- - - - both physically - - -
What does “RM” mean? Answer the question?--- - - - and verbally.
HER HONOUR: All right. Please be responsive to the question…
[29] Transcript in Confidence, 26 March 2018, p. 474, 3-11.
Following on from this, I asked the husband:[30]
[30] Transcript in Confidence, 26 March 2018, pp. 476-7, 9-5.
HER HONOUR: […] In W18, “I will be submitting my resignation from [T Inc],” so the American entity “and [W Pty Ltd] next week. I quit. Now what is it worth?” Can you tell me what was intended – what sort of response you were intending to elicit from the expert witness for the wife in these proceedings?---Your Honour, I’ve been abused for years, and I’m exhausted, and I need a break.
Just answer the question, please?---And I just need some – I need some time off from work.
Well, what were you resigning?---From day to day – I don’t want a – I want a break. I don’t know. I want a break.
So you don’t know what you were going to resign from? What offices could you resign from?---I’m not sure. I would like to just go see my family and have a break.
Yes, what offices could you resign from?---What could I? Well, [UU Group] is dismissed. [VV Company] is a failure.
No, what offices within [T Inc] and [W Pty Ltd] could you resign from? You can resign as a secretary?---I guess I could resign from [T Inc.] I guess I - - -
You can resign as a director. You can’t resign as a shareholder, right. What other offices could you possibly resign – I don’t know what resignation refers to, so tell me what you could - - -?---Okay. So at [T Inc] – at [T Inc], for example, I’m what’s referred to as a 24, and I’m also a 4, and I’m also a 7.
For goodness’ sake, just tell what you can resign from?---Being an advisor or a supervisor under ..... rules and regulations.
In [W Pty Ltd], the Australian entity, what offices can you resign from?---What offices? Well, under the undertaking I can’t resign from being a director.
I’m not asking you in relation to the undertaking. It occurs to me that you can resign as a director?---I - - -
You could?---I don’t know whether I can or not and that was a question I asked [Mr DD] last night. So as a sole director of a company - - -
No?---I said, “Can I resign as a director,” and I said, “Well, what if I die or what if I become incapacitated? What happens to a single member company if there’s a sole director?” And that was a question I had for my accountant and I don’t have an answer for that. So I don’t know whether I could or could not. I don’t know the corporate law.
Whilst the husband’s responses strike a plaintive note he had two counsel and one, often two, lawyers sitting in court who could have made an application for an adjournment or a break had they been concerned about the husband’s capacity to give evidence. The husband is an unusual character. He impresses as having a sound sense of his personal superiority. His transcribed evidence underrepresents the dramatic way in which he gives evidence (or does not give evidence). Exchanges such as the above passage prolonged the husband’s cross examination but, it may ultimately be submitted, were of his own making given the subject matter of cross examination – being the texts to the wife’s valuer – and his indirect style of response.
Mr Foster was directed by myself or by counsel for the wife approximately 20 times on the 29^th day of the hearing, being 19 October 2020, to answer the question.
“True Copy”
There has been a refusal by the husband to come to terms with routine matters such as the identification (or not) of a document as a “true copy”. For example on the 9^th day of the hearing, being 27 June 2018, Mr Fowles took issue with a document being a “true copy” until he was advised that the document was produced by his lawyers:[31]
MR SHEALES:   My learned friend says his too. Now, could you – in the discovered documents – could you look at this document? Two pages. Could you look at this document, please, and can I suggest to you it’s an email from [Mr NN] to yourself and [Mr DD] dated 16 February of this year. Could you firstly confirm that that is a true copy of the email that you received from [Mr NN]?   No, I can’t confirm this is a true copy because a lot of stuff you’ve presented has been cut and pasted so far - - -
Okay? - - - so I can’t confirm anything you present.
All right. Well, let me tell you where that document came from. That document was given to us by your lawyers this morning as being produced by you to them in - - -
answer to the call. Are you saying you doctored your own documents?   No, I didn’t doctor documents, but you did.
Okay. So do you understand - - -
HER HONOUR:   There’s no – sir, there is no evidence to establish that. You keep on saying it, but don’t take it as a given. If that is a document that is from the documents that you produced to the court, or you produced today, and the wife’s solicitors now have, would you be confident that that was a true copy of what it purports to be?- - -So did you say that this was produced today?
MR SHEALES:   By you? - - -By me? Then it would be true, yes.
Of course? - - - Of course, yes.
[31] Transcript in Confidence, 27 June 2018, pp. 614-5, 35-14.
On the 11^th day of the hearing, 29 June 2018, counsel for the husband objected to part of Mr Sheales’ cross examination which involved the construction of a Notice to Admit Facts which had been served by the wife on the husband for, inter alia, the purpose of having the husband admit the authenticity of “300 pages” which she had obtained from the husband, apparently without his knowledge or consent. I recited a ruling I made on the first day of the hearing, contrary to the submission of Mr North, that the wife could rely on more than one Notice to Admit Facts. Otherwise, I found that to the extent that the Notice required the husband to admit the “authenticity” of documents, rather than whether the documents were “genuine” – “genuine” being the terminology in the Family Law Rules 2004 – for the purpose of a Notice to Admit Facts, “authentic” is synonymous with “genuine” and I relieved the parties with such compliance with the Family Law Rules 2004 as was necessary for the Notice to Admit and the husband’s subsequent Notice Disputing, to have that effect. My reasons for decision are reported at case neutral citation [2018] FamCA 498. I incorporate those reasons into these reasons to add context to the husband’s evidence that he was not prepared to accept any document shown to him by counsel for the wife as being a “true copy”. I am not at all critical of the husband for Mr North’s objection, which was disallowed. However, the husband refers to my reasons for decision on multiple occasions as part of the basis for his refusal to acknowledge the authenticity of a number of documents sought to be tendered by the wife.
On the 12th day of the hearing, being 4 July 2018, the husband took issue with a document as follows:[32]
[32] Transcript in Confidence, 4 July 2018, pp. 916-7, 29-12.
MR SHEALES: Yes. [WW LLC] is the person you did the deal with? - - - Well, [WW LLC] was the investment that [UU Group] made, yes.
Yes. And can I suggest to you that is a true copy of the 1099 form prepared by [WW LLC] and forwarded to you for tax purposes for the payment to of 1.202,500 – so US$1.202 million. Do you have a problem with that? - - - As I said, the cheque was written to me and it was endorsed to [W Pty Ltd] because I was - - -
I’m asking you about this document in front of you. I’m not asking about the cheque? - - - Yes.
Do you accept that that is a true copy? - - - No, I don’t accept anything from you. I think a lot of the documents produced are probably doctored.
All right. To doctor a document – this document, one would need to know the identification number of [WW LLC] in relation to their tax – for their tax purposes in the United States; you would agree with that? - - - I – I think this document looks accurate. If you’re asking me to say that I definitely know it’s accurate, I can’t say that.
Can I ask you to note the date on the document of the fax imprint, 02.10.12. See there? - - - Yes.
Now, this is being faxed from where? - - - 212…5.
No, no, no. Not 212. What’s the number in front of 212? - - - One.
What’s that the country code for? - - - United States.
What is the area code for 212? New York? - - - Yes. Yes, it’s coming from New York.
Yes? - - - Probably – it probably came from [UU Group].
Yes. Were []UU Group in the habit of doctoring documents to your knowledge? - - - No, but you are.
Again on the same day, Mr Fowles took issue with a document: [33]
HER HONOUR:   So the reason you don’t accept it as being a true copy is just because you don’t accept anything as being a true copy?‑‑‑I can’t verify where it came from. There are lots of documents being put to me that could have been changed at some point, and I can’t – if I had to swear that I know that that was a true copy, I’m just not able to do that.
MR SHEALES:   No, I understand?‑‑‑I can’t ‑ ‑ ‑
HER HONOUR:   So you’re not prepared to look at [AJ Group] ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ swear that’s it definitely an original copy of an original document.
Well, that’s not what you’re asked. True copy of a document – [AJ Group] dot com. What is there about this which is irregular?‑‑‑Nothing that I see – nothing that I can see. I said I – it looks like all the information there is correct, but I don’t know the source of a lot of these documents. I can’t – if I had to swear that that is definitely a copy of the receipt, and then somebody has changed – like, whited out a number and – and put in a number there, I don’t know that. The – the source of these ‑ ‑ ‑
Well, can you have a look at it, and can you tell me which numbers look like they’re whited out?‑‑‑I don’t see anything wrong with it. I can’t swear that it’s a true copy of an original.
Thank you?‑‑‑I don’t know ‑ ‑ ‑
[33] Transcript in Confidence, 4 July 2018, pp. 928-9, 23-46.
On 20 October 2020 (the 30^th day of the hearing), an email was put to Mr Fowles by the wife’s counsel in which the husband took issue with the words “true copy”:[34]
You see that email there, Mr Fowles?---Yes.
Okay. That’s a true copy of an email you received from [Ms RR]?---I – I don’t know what – I mean – you know, we’re doing this again. And I don’t know what you mean by “authentic”, “true” and all those other words. It was subject to a very long opinion, or decision written by her Honour. And so, I don’t know what “true” means. I don’t know what “authentic” mean, and I don’t know what all these legal definitions are. But that’s an email I got from [Ms RR] – that I got from [Ms RR].
The effect of the husband’s answer was to admit that the document was a copy of an email from one Ms RR, an employee of EE Company of FF State who had conduct of the bank’s work with some relevant family trusts.
[34] Transcript in Confidence, 20 October 2020, p. 105, 32-39.
Later that same day, Mr Fowles again took issue with “true copy”:[35]
MR SHEALES: Thank you, your Honour. Could we go to bundle of documents 1, to the [Mr Fowles] tender documents – personalised tender documents – and go to page 67 of 170, please. [Mr Fowles], can you just look at that front page, which appears to be addressed to you from [Mr NN], and just confirm with yourself that – for yourself it’s a true copy of the tax return prepared for you by Mr - - -?---We’re going with this true thing again and if this – this looks like an accurate document to me, but anything that goes through your hands is suspect to me.
Well, it came from your side, so - - -?---Yes, but it came through your hands, and I don’t trust you.
All right. Can you please satisfy yourself it’s a copy of your 2014 United States Gift (and Generation-Skipping Transfer) Tax form, please?---I think I’ve answered that question already.
So you’re not prepared to so identify it?---I think you’ve asked me if it’s true and I don’t understand true, and authentic, and all those things, and we’ve been through this before.
If you had listened to me – I’m not asking you if it’s true, I’m asking you if it’s a true copy of the document - - -?---I don’t know.
- - - prepared – okay?---I don’t know.
Your Honour, I would seek - - -
THE WITNESS: If it’s been through your hands, I don’t trust i
[35] Transcript in Confidence, 20 October 2020, p. 110, 3-29.
Shortly after, Mr Fowles took issue again:[36]
MR SHEALES: The next matter is page 170. Now, your Honour, this document falls into the category which was previously admitted on [Mr Fowles’s] behalf, but I will ask him for completeness.
Do you see page 170? You will recall I took you to that document yesterday?---Yes, I remember, and you – yes, I remember the document.
Do you admit that’s your signature on the document?---No.
Okay. Do you admit the truth – that it is a true copy of the document?---No, I do not admit that’s a true copy of a document.
And I would seek that to marked for identification, please.
[36] Transcript in Confidence, 20 October 2020, pp. 114-5, 39-4.
A significant amount of time has been given over to counsel for the wife seeking to have the husband identify documents to which the husband responds, in effect, that if the document is in the possession of counsel for the wife, he does not admit that it is a true copy. This has been notwithstanding that the husband admitted the “authenticity” of some of those documents as a consequence of the wife’s service on him of a Notice to Admit.
Husband’s disruptive behaviour toward counsel for the wife
Whether imagined or real, the husband bears a great amount of animus towards Mr Sheales of counsel. I will elaborate on this later in these reasons.
From the first day of the hearing Mr Sheales made accusations against the husband for inappropriate behaviour. He said:[37]
[37] Transcript in Confidence, 19 March 2018, p. 11-12, 22-34.
MR SHEALES:   Without seeking to go beyond what occurred on the last occasion here and what has occurred today, there has been incidents, basically, every single time we have been to court with the respondent father. On the last occasion, when we adjourned, your Honour might recall I turned up at the back of the court at the end. We went down and had coffee and the respondent father came and screamed at us across the courtyard in an abusive fashion. We let that go. That was a continuation of a number of events that happened previously. Excuse me, but what has occurred today is an extension of what has occurred previously on numerous occasions. When my instructor, Ms Anderson, and this time in the company of Ms Godfrey, who is sitting next to her, when she has been alone with no males around the respondent father has attempted to intimidate her in space and by looking at her in an aggressive fashion but, today, what occurred was 20 minutes ago when they were sitting on their own out there, the two of them, he came out of the room, he stopped a metre and a half from them, looked at them and said, “Fucking evil,”, walked three further paces, stopped again, said to them again, “Fucking evil,” and walked off.
It’s unacceptable, in our view. My instructors feel intimidated and, in my respectful submission, I have brought it to the attention of the court – it’s contemptuous obviously not in the face of the court, but contemptuous of the court and its processes.
HER HONOUR:   Was it agreed that that’s what happened, Mr North?
MR NORTH:   I will take instruction.
HER HONOUR:   Did Mr Sheales tell you about this before?
MR NORTH:   Yes. No, your Honour.
HER HONOUR:   No. It’s not agreed.
MR NORTH:   Not agreed.
HER HONOUR:   [Court officer], see if there’s any CCTV footage that is available. Well, I don’t know what you expect me to do. I don’t countenance anyone coming to work and being abused for the purpose of doing work and it isn’t satisfactory, but you’re on notice and, if that is what happens, then you don’t leave unattended people around
MR SHEALES:   It’s ..... , your Honour.
HER HONOUR: - - -where they can be picked on but, saying, that I acknowledge that people ought not to have to come to work to be abused, if that’s what happened, but it’s also denied, so not making any findings. Just let’s get on with it.
MR SHEALES:   If your Honour pleases.
I do not regard Mr Sheales’ statement as evidence. As best I recall, the wife gave no such evidence. I could not, and do not, make any finding adverse to the husband in the absence of direct evidence. However, I mention this incident at this juncture to demonstrate that there was significant aggravation between counsel for the wife and the husband from the very beginning of the hearing.
On the third day of the hearing (21 March 2018) the husband made the following non-responsive statements, noting that the given name of counsel for the wife is “Damian”: [38]
So it hasn’t been capitalised at all?---You – you got me there, Damian. It’s – it’s deferred.
HER HONOUR: Do not refer to counsel by his given name?---Sorry. We’ve known each other 15 years. It’s a – a hard habit to get over. I’m sorry, Mr Sheales.
MR SHEALES: Certainly. Let’s deal with that. You sent a letter – you caused your lawyers to send a letter to Landers, which effectively said, asserting we’ve known each other, been out for dinner. You know the letter I’m talking about. And you said you would go on affidavit and have me removed from the case - - -?---Yes.
- - - in the event that we didn’t agree to it. Why didn’t you go on affidavit? Why didn’t you follow through?---I was advised that there were better fights to fight.
You see – okay. I will return to that?---I – I – I did not like that advice.
Thank you for that?---But I bit the bullet, as I did in a lot of things.
[38] Transcript in Confidence, 21 March 2018, p. 192, 29-45.
On the third day of cross examination of the husband, being 23 March 2018 (day five of the hearing), Mr Sheales asked me to direct the husband to stop winking at him during his responses to questions in cross examination.[39] The husband had been winking. I suggested that counsel should continue his questioning without a direction needing to be made.
[39] Transcript in Confidence, 23 March 2018, p. 372, 7-13.
On the 30^th day when Mr Sheales, counsel for the wife was cross examining the husband about the New York apartment, the husband said “And – and, you know, you’ve got to be very careful here, Demon, with the – with the way you say things because you end up twisting things later on.” The transcript reflects the husband pronouncing counsel’s given name ‘Damian’ correctly however, the audio reflects his pronunciation as “Demon”.[40] Mr Fowles was then directed by me to call counsel for the wife “Mr Sheales”. Mr Fowles asked if he was to do so “out of respect of [Mr Sheales]?”[41] I confirmed that he was to do so at my direction. Mr Fowles then asked if I was ordering him to call counsel for the wife “Mr Sheales”, and again mispronounced his name calling him Mr Shields. Mr Fowles then pronounced “Sheales” correctly before asking “should I practice that with an Australian accent for you? So you’re ordering me to call him Mr Sheales; is that right?”[42] I confirmed the proper pronunciation with Mr Fowles and then the questioning was continued.
[40] Transcript in Confidence, 19 October 2020, p. 18, 1-2.
[41] Transcript in Confidence, 19 October 2020, p. 18, 5.
[42] Transcript in Confidence, 19 October 2020, p. 18, 11-12.
Mr Fowles made three references on the 30^th day to Mr Sheales being in “breach of duty” to the Court when Mr Sheales asked Mr Fowles questions based on premises or propositions with which the husband did not agree. Shortly after, Mr Fowles in response to a question by Mr Sheales concerning a property in the USA and an entity called the AL Trust, the husband stated: [43]
Disagree. Well, I don’t know. But I – it sounds – it sounds ludicrous as many things you say are. But I – I can’t agree with that price. It doesn’t sound right to me is the answer.
Comments of this nature were made throughout the proceedings with the husband referring to questions or documents put to him by Mr Sheales as “garbage”.
[43] Transcript in Confidence, 19 October 2020, p. 18, 35-37.

The animosity between the husband and Mr Sheales was present from the very start of the final hearing. It was not one sided. Mr Sheales was not above needling the husband. Unfortunately, Mr Sheales could have acted with more formality and discipline than he did. However, subject to hearing submissions from counsel and providing counsel with the opportunity to listen to the audio recordings (if they want to do so) I may find that, even if Mr Sheales had acted in an exemplary manner, the husband would have continued to make jibes and direct insults to counsel for the wife with the effect of disrupting the flow of cross examination. Having now seen the husband complete his cross examination and re-examination, it will be for me to consider, after hearing submissions, whether the husband’s disrespect of Mr Sheales in cross examination and his failure to give responsive answers at times was a technique to avoid answering questions or inadvertent. I have not made any findings at this point. Frequently, counsel for the wife asked questions which were too long or complicated to be fair and he was stopped.
Counsel bickering
An unfortunate feature of this litigation has been bickering between counsel, that is Senior Counsel for the husband, Mr North SC, and Mr Sheales of counsel for the wife. I accept that there is a certain amount of posturing in court, particularly in cross examination. The behaviour between counsel went beyond what is normal and, in my view, contributed to delay in the proceedings by causing a delay in the cross examination of the husband.
For example on the 5^th day of the hearing being 23 March 2018, the following exchange occurred:[44]
[44] Transcript in Confidence, 23 March 2018, p. 369-370, 26-34.
MR SHEALES:   Yes.
The fact of the matter is, I suggest to you, Mr Fowles, firstly, you intended to keep the cash for yourself? - - - No. I intend to use it for the benefit of [SS Company] and [Building YY].
Secondly, I suggest to you you intended that no one in relation to the accountants for the Fowles Family Trust ever became aware of you having this cash and receiving it.
MR NORTH: - - - Well, he can’t – he has answered what he has done or not done to inform the accountants. He can’t speak for the state of mind of the accountants.
MR SHEALES:   I’m not asking him to. You’re not listening to the question.
MR NORTH:   You did.
MR SHEALES:   I said, “It was your intention to conceal it.”
MR NORTH:   No. You started the - - -
MR SHEALES:   It was your intention they never find out.
HER HONOUR:   No, no, no.
MR NORTH:   Look, gentlemen - - -
MR NORTH:   Don’t talk over me all the time.
MR SHEALES:   Any chance that we could get some sense out of - - -
MR NORTH:   Don’t talk over me.
HER HONOUR:   What was the question?
MR SHEALES: The question was, “It was your intention that they never find out.”
MR NORTH:   No, it wasn’t the question.
THE WITNESS:   No, it wasn’t.
MR SHEALES:   I will play it back. I’m sick of being misquoted on my questions.
HER HONOUR:   We can’t actually play it back that quickly. We can play it back but it takes about 15 minutes.
MR SHEALES:   No, I won’t do that.
HER HONOUR:   Okay.
MR NORTH:   The question commenced with
HER HONOUR:   The question is now withdrawn.
MR SHEALES:   Right.
MR NORTH:   I beg your pardon, your Honour.
HER HONOUR:   The question is now withdrawn.
MR NORTH:   Thank you.
On the 10^th day of the hearing, being 28 June 2018, following on from the above interchange occurred: [45]
[45] Transcript in Confidence, 28 June 2018, pp. 712, 25-44.
MR NORTH: Well, my point is that, ordinarily, whilst the cross-examiner can direct the witness’s attention to particular parts of the document and ask questions to elicit whether or not it amounts to his statement, he can’t otherwise seek to reveal its contents by the mode of his questioning about the document.
MR SHEALES: What nonsense.
MR NORTH: Excuse me.
MR SHEALES: Well, you obviously misread the section when you were objecting.
HER HONOUR: Can you please - - -
MR SHEALES: Just admit you’re wrong.
HER HONOUR: Mr Sheales, you don’t sit down and talk.
MR SHEALES: Your Honour - - -
HER HONOUR: And sit down now.
Shortly after, the following exchange occurred:[46]
[46] Transcript in Confidence, 28 June 2018, pp. 714, 1-44.
MR NORTH: Well, it allows for the possibility of it proved in another way subsequently. Your Honour, I really am going to protest. I have rarely in my experience on nearly 30 years stood at a bar table addressing a court and been subjected to such a continual tirade of sotto voce insult from my opponent. Your Honour, could I ask - - -
HER HONOUR: It has been - - -
MR NORTH: - - - that he be reminded to respect the place he is in.
HER HONOUR: And what happens – there has been some two-way traffic. Right. Not today - - -
MR NORTH: Your Honour, we’ve been restrained.
HER HONOUR: You might think you’ve been restrained, but you haven’t been entirely silent. What do you propose happens if one of you misbehaves? Do I send you out?
MR NORTH: I don’t think anything happens, your Honour, other than perhaps my friend has regard - - -
HER HONOUR: I think - - -
MR NORTH: - - - to where he is.
HER HONOUR: Okay. Don’t make any more comments sotto voce. Just bite your lip. And for your information, I’m going to be here for a very long time. Okay.
On the 13^th day of the hearing (5 July 2018), the following occurred between counsel when junior counsel for the wife, Dr Smith, was looking at a series of emails on a computer provided by counsel for the husband:[47]
[47] Transcript in Confidence, 5 July 2018, pp. 1025-6, 5-35.
MR NORTH:   Well, don’t open another one to [Ms AM]. Don’t open and read a correspondence between my client and his solicitor other than the one he was directed to send.
DR SMITH:   Well, there was six of them - - -
MR SHEALES:   Ace, we’re looking at the 10.28 - - -
HER HONOUR:   Excuse me, what did you just say?
MR NORTH:   Excuse me, your Honour, I’m - - -
HER HONOUR:   No. You sit down. What did you just say?
MR SHEALES:   I just called my learned friend Ace because I wouldn’t - - -
HER HONOUR:   Well, don’t. Okay?
MR SHEALES:        I wouldn’t dream of breaching a rule of court. I wouldn’t dream of - - -
HER HONOUR:   Okay. Just stop it.
MR SHEALES: - - -doing nonsense objections.
HER HONOUR:   I’m not interested in - - -
MR SHEALES:   I wouldn’t dream of - - -
HER HONOUR:   Be quiet.
MR SHEALES: - - - not reading my brief.
HER HONOUR:   If I tell you to be quiet you are silent immediately.
MR SHEALES:   Yes, your Honour.
HER HONOUR:   Okay. It was entirely inappropriate to call Mr North anything other than Mr North in court and to say, “Of course I won’t”, right? But what - - -
MR SHEALES:   It was - - -
HER HONOUR: - - - he was doing was no more than what I was sitting here thinking I hope nothing happens opens a confidential email because
MR SHEALES:   We - - -
HER HONOUR: - - - quite frankly none of you appeared to know what you were doing.
MR SHEALES:   No. But we can see the time of the email was 10.28 am this morning.
HER HONOUR:   Okay. But it doesn’t matter, does it?
MR SHEALES:   They were the emails he sent.
HER HONOUR:   It does not matter, does it, because there is nothing that you can stand there and say now which could justify you calling Mr North Ace?
MR SHEALES:   Well, other than he was - - -
HER HONOUR:   No. There is nothing.
MR SHEALES: - - - alleging that I would not be aware - - -
HER HONOUR:   I will give you a hint. There’s nothing.
MR SHEALES:   All right.
HER HONOUR:   Okay. So apologise, please?
MR SHEALES:   I apologise for calling my learned friend, Mr North, Ace.
HER HONOUR:   Yes, Mr North?
MR NORTH:   I note my friend’s apology.
Whereas Mr North is generally softly spoken to a fault, he had in days prior started to raise his voice to a low boom, apparently in frustration. On the afternoon of the 17th day of the hearing (6 February 2019), bickering between counsel had become intolerable. I warned counsel about the consequences of their continuing to talk over one another, shouting and bickering, as follows: [48]
HER HONOUR: And if anyone raises their voice except me from now on, I’m leaving. I will make a decision when I return, which will be the next day, as to who should bear the costs of wasted court time. Okay.
MR SHEALES: May it please.
HER HONOUR: That is, anyone at the bar table raises their voice. Heaven knows what will happen if you throw down a document.
[48] Transcript in Confidence, 6 February 2020, p. 231, 21-29.
Following this warning, I was pleased to note a significant decrease in counsel shouting, bickering or talking over one another. However, a level of animosity between counsel continued and was raised by counsel for the husband on the 30^th day being 20 October 2020:[49]
[49] Transcript in Confidence, 20 October 2020, pp. 94-5, 5-44.
So, [Mr Fowles], ultimately, what I put to you is the reason you are not calling [Mr NN] to give evidence is because he knows too much, and he knows your full affairs, and - - -?---You’ve already said that. Can we move on? I object. You’ve already asked that question.
You understand that, and you deny it?---You’ve already asked that question. I’m not going to answer it again.
All right. So, what is your explanation for not calling him?---You need to go and look at the transcript. You’ve asked that question before.
MR NORTH: And indeed, he has asked it before, he has received an answer before, and he’s just going over well-ploughed fields.
MR SHEALES: Well, I will take that as a refusal - - -
HER HONOUR: Okay, Mr North. What was the answer? Just remind me.
MR SHEALES: I will take that as a refusal to answer, your Honour.
HER HONOUR: Mr North, can you remind me what the answer was?
MR NORTH: I’m objecting to the question.
MR SHEALES: What was the answer previously, Mr North?
MR NORTH: Excuse me, your Honour. I am now getting quite tired of the behaviour of my - - -
HER HONOUR: Mr North, can you just answer my question? Can you refresh my memory?
MR NORTH: Your Honour, off the top of my – off the top of my head, I don’t know. But Mr Salamanca may be able to help. I’m not sure.
HER HONOUR: Mr Salamanca? You’re on mute, Mr Salamanca.
MR SALAMANCA: Sorry, your Honour, that doesn’t help. The – as I recall, the witness’ response previously – and he has been asked on more than one occasion – the reason he wasn’t calling [Mr NN] is because [Ms OO] was more familiar with the tax law applicable to the jurisdiction.
MR SHEALES: That’s right. And now I’m putting to him, quite - - -
HER HONOUR: Okay, thank you. Mr Sheales, you can’t put - - -
MR NORTH:   Your Honour, can I raise a matter?
HER HONOUR:   In a moment, you can. You can’t put a question like that. What you can do is to establish the availability of a witness, and you leave it there, and it’s a matter for comment later.
MR SHEALES:   As your Honour pleases.
HER HONOUR:   All right. If anything else encroaches – in my view, potentially encroaches legal professional privilege – yes, Mr North?
MR SHEALES:   Yes.
MR NORTH:   Yes, your Honour. I’m really wanting to make a complaint through you. Rarely do I experience rudeness from the other end of the bar table that we are habitually subjected to by my friend. And it has an effect here, because it only causes my client to respond in kind. It causes delay. It causes tension, and it distracts. I would ask my friend, through you, to refrain from behaving as if he’s in the public bar of the Frankston Hotel.
HER HONOUR:   Mr Sheales, it’s not just the content of what you say – and I don’t take what Mr North said as necessarily being directed to content – it’s the continual interjection. It’s the asking a question which can be a very long-winded question that you have use some effort to follow, and then interrupting the answer.
MR SHEALES:   Yes, your Honour.
HER HONOUR:   So, don’t do it.
MR SHEALES:   I will try not to. Thank you.
MR NORTH:   And could – could I ask - - -
HER HONOUR:   No, how about you just don’t do it? Not “try not to.” Just don’t.
MR SHEALES:   Your Honour - - -
MR NORTH:   And can I ask my friend to refrain from interrupting me when I’m making submissions?
HER HONOUR:   Well, it’s just a general habit of interruption and impetuosity, it seems. Yes?
My impression is that the behaviour of counsel to one another set a poor example for the husband to the point of encouraging the husband to act disruptively. The husband was receptive. On one occasion the husband directed counsel for the mother to “sit down” because Mr North SC was addressing the Court and he had deduced from my comments to counsel that only one counsel at a time could stand and talk. The conflict between counsel was not always loud. Much of it was sotto voce, most not picked up in the transcript but it was incessant, like the background murmur of traffic on a freeway. By virtue of the fact that the bickering reduced significantly following my warning to counsel on 6 February 2019, set out at [65], I am satisfied that counsel had the capacity to control themselves, they just chose not to do so.
The husband failing to observe normal protocols
The husband failed to observe usual court protocol in several respects which was disrespectful, disruptive and also wasted time. Unfortunately, counsel for the husband appeared to exercise little control over the husband.
Soles of feet to camera
On 8 September 2020, at the beginning of a mention in this matter by Microsoft Teams, the husband appeared with his feet crossed and positioned up on the table in front of the camera so that the soles of his shoes were fully visible, most prominent, and his head was in the background. Following Mr North SC announcing his appearance, I said: “Whoever has that shoe in the camera put it down immediately.” The husband did not move his feet. I again said: “Both of them immediately”. The husband took his feet off the table. The solicitor for the husband was also participating in the mention as was the wife, her solicitor and the Independent Children's Lawyer.
“Victim”
On 8 September 2020, I recognised that the husband had entered his name for the meeting as “Victim”. The following dialogue occurred:
HER HONOUR: I can now see there is something called a ‘victim (guest)’. This is stupid behaviour. I will terminate the link now when I re-join in approximately 2 minutes. Your client Mr North is to behave himself. He is not to show me the soles of his feet on the camera and he is to remove the label ‘victim (guest)’.
MR NORTH SC: Thank you your Honour.
HER HONOUR: Apologies to everyone else.
MR FOWLES: I think we should get on with it.
ADJOURNED
When I resumed, the husband had re-joined with his name as ‘husband’ but was not seated before the camera. I waited a moment before he returned to sit in front of the camera.
Reading the newspaper
Within a few minutes of resuming, the husband began reading a tabloid newspaper:
HER HONOUR: Mr North please tell your client he is not at liberty to read the newspaper whilst the hearing is on.
MR NORTH: Your Honour, I’m sure he heard that but I’ll repeat it if you want me to.
MR FOWLES: No that’s alright, I won’t read the newspaper.
My general warning
The husband then turned his camera off. I directed that he turn his camera back on and addressed the parties and counsel:
Alright I’ll say it now, in the event that any party, but I’m addressing my comments principally to the husband, misbehaves or acts in an offensive way during the hearing I will without further notice adjourn the hearing for the balance of that day. The first matter that I will deal with on the next sitting day after that, is responsibility for parties costs thrown away by virtue of that adjournment. This is the only time I’ll say it.
The husband’s counsel submits that when the husband at one point turned his camera off during the October 2020 tranche, whilst not giving evidence, that when I directed that he keep his camera on I had “singled out the husband” [50] as the wife had also turned her camera off at various times throughout the hearing whilst not giving evidence. Counsel submits that this is again supportive of the apprehension that the wife was being favoured. If it is true that the wife did have her camera turned off, I acknowledge that they may have inadvertently given an impression that I was being other than even-handed. The husband’s counsel points to my Guidelines at Part 6 that: “Participants shall have their microphone muted and cameras switched off when they are not speaking or not required to be seen as the Judge directs”, [51] as supportive of the husband being able to turn his camera off. However the submission does not address circumstances where “the Judge directs” that a camera remain on.
[50] Husband’s Factual Contentions dated 29 October 2020, [29].
[51] Husband’s Factual Contentions dated 29 October 2020, [28].
The wife says that the submissions of counsel are “nothing more than a recital of what occurred” and that the reference to my Guidelines does not support a finding of apprehension bias and is “misconceived”.[52]
[52] Wife’s Response dated 9 November 2020, [9].
When the COVID-19 pandemic hit Melbourne in March 2020, I immediately adopted remote hearings for all cases before me for which I was satisfied was appropriate. This matter was not a proceeding that I thought appropriate for a remote hearing by MS Teams or otherwise. However, with the effluxion of time I considered that we should attempt a remote hearing in order to bring the matter to a conclusion. In the conduct of remote hearings it is, in my view, essential that the atmosphere of the court room and the constraints on behaviour before the Court be replicated. Cameras present a novel problem. If a party is not giving evidence, absent a direction that they must attend in the court room, a party can elect not to be present. Leaving to one side some exceptional cases, in a fully attended hearing, a party who elects not to be present in court cannot then watch first-hand what goes on in court. However, in a remote hearing, a party can turn their camera off, and thereby not be visible to anyone in court, but continue to observe the proceedings by electronic means including pinning and enlarging images. I maintain that it is inappropriate for a person whose camera is off to be able to observe other participants in court.
The child D
On 27 October 2020, being the 33^rd day of the hearing, at 3.46pm and during the continuation of Mr DD’s cross examination, the husband could be seen answering his mobile phone and then waving at someone behind the camera. Mr DD is an important witness. From 2016 to 2020, Mr DD has made seven affidavits in this proceeding. According to the husband, Mr DD is a repository of much information about the husband’s financial situation and their association is of long standing. On a number of occasions, the husband has responded that details about financial structures and the like should be referred to Mr DD.
During re-examination by Mr Salamanca of Mr DD, the husband stood up and hung up his phone whilst stepping out of view of the camera. About 30 seconds later the husband returned to view and then beckoned to someone to come closer to him, by waving his hand toward himself. The husband could be seen speaking to someone as he made the gesture. He then beckoned again by waving his hand. The parties’ son D, a teenage boy, stepped into the view of the camera. The husband then waved into the camera in apparent encouragement of D waving at everyone in the MS Teams conference. D started to wave into the camera although he appeared tentative and embarrassed as opposed to the husband who appeared to be smiling and waving in a more exaggerated manner. D then began to step out of view of the camera and the husband again beckoned him to come back into view, extended his hand toward D but then waved goodbye to D. The wife then moved her computer or device so that her camera moved away from viewing her and put into view her kitchen. The wife then turned her camera back to put herself in view and appeared to speak to someone in the same room as her. The husband then left the view of the camera at 3.48pm and the wife could be seen talking and gesturing as she spoke to someone in the room she is in. The husband returned about 30 seconds later and began gesturing to someone with his hand and index finger raised in the air as if telling someone to “wait a minute”. He then continued to speak to someone in the room.

The twenty-sixth reference was to page 832, line 25 to page 833, line 35:
HER HONOUR:   Well, can I just raise something because I don’t want to have to raise it right at the end of the day, and everyone has a commercial interest so I would make clear that what I say, I do with that sort of level of expediency rather than any predisposition.
So that you and [Mr K] are not unduly burdened with the issue of priorities, would it not be – or would it be convenient and can you think of a reason why I would not, if asked, simply order that of any moneys you pay to Taussig Cherrie, an amount equivalent to 30 per cent thereof be paid by them off the Westpac loan? That way, we know that they’re getting 70 per cent of the money that you pay and the Westpac loan is getting 30 per cent?‑‑‑Well, they’ve made it clear that they will – they won’t show up again if I don’t pay 50.
That’s right. So instead of you having to think, “I will make the payment of 50,000 to them and then I will see what I can scratch around and get to pay the Westpac mortgage on an ongoing basis,” because I don’t know what small amount you managed to pay today ‑ ‑ ‑?‑‑‑Well, I think it was between three and five but I’m not sure.
Yes, well, that doesn’t even make the arrears, does it?‑‑‑No, the arrears are about six. So it’s about 3,000 a month.
So “Yes, your Honour, it doesn’t make the arrears”?‑‑‑Yes, your Honour, it doesn’t make the arrears.
Okay. That way, you can then decide to pay Taussig Cherrie $70,000, knowing that 30 per cent of that will make it into the Westpac ‑ ‑ ‑?‑‑‑But they’re not asking for 70.
I know. But just so you don’t have to be bothered by the priorities after today, they can be the funnel for the money: money for them and money for Westpac?‑‑‑So ‑ ‑ ‑
And that way, there will be some – I’m sure your wife won’t think it equitable, right? But there is more equity than would be achieved if you managed to pay them 50 and forgot to pay Westpac anything?‑‑‑Well, for – for simplicity of accounting purposes, I would rather pay Westpac directly because ‑ ‑ ‑
But you haven’t been doing that?‑‑‑No, not the last two months.
No. Okay.
MR SHEALES:   Can I also raise ‑ ‑ ‑
HER HONOUR:   So can I say, Mr Sheales and Mr North, I don’t want an application at 4.15.
MR SHEALES:   Yes. We might have a chat at some stage. Can I also indicate, your Honour, that we have just been advised that one of his obligations is to pay the body corporate fees at [X Street]. And I’m instructed that they’re 10,000 behind and they’re about to issue in VCAT. So ‑ ‑ ‑
HER HONOUR:   Well, that’s the sort of thing that ‑ ‑ ‑
MR SHEALES:   Yes .....
HER HONOUR:   ‑ ‑ ‑ would be achieved. Obviously there is a money stream from the husband to his solicitors, and it may well have the consequence of leaving him without representation.
MR SHEALES:   Your Honour pleases.
HER HONOUR:   Of course, they may all come along and appear on his behalf; if he goes bankrupt, they will have to pay it back, given the statement that he made the other day.
MR SHEALES:   Yes. Worried sick.
THE WITNESS:   Excuse me? Was that a question?
HER HONOUR:   It was a facetious comment about him being worried sick, but I don’t think he meant it?‑‑‑Well, I’m worried sick too. Yeah.
This was the twelfth day of the hearing in circumstances where there had been interim applications which had interrupted the flow of evidence for financial matters and an alteration of property interests. I sought to avoid yet a further obvious application which would interrupt the property case yet again.
The twenty-seventh reference was to the twelfth day of the hearing being 4 July 2018, and was to page 932, line 30 to page 934, line 5:
HER HONOUR:   Okay?‑‑‑ ‑ ‑ ‑ it appears to be.
What’s confusing about the term “true copy”?‑‑‑Well, there’s all these questions – I – I – I’m not a lawyer. You know, and – you know, sometimes I go outside ‑ ‑ ‑
Okay. What’s true mean?‑‑‑I don’t know what it means in terms of the law. You know, there’s all these legal terms ‑ ‑ ‑
Well ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ that I don’t ‑ ‑ ‑
No, true ‑ ‑ ‑?‑‑‑That are used ‑ ‑ ‑
‑ ‑ ‑ is just a word?‑‑‑Well, there are lots of words that, in my business, that have lots of ‑ ‑ ‑
What do you think true means?‑‑‑I don’t know; that’s the point.
MR SHEALES:   I couldn’t agree more?‑‑‑I don’t know.
HER HONOUR:   You serious? You don’t know what true means?‑‑‑What – I had to – what is it? Authenticate documents? I mean ‑ ‑ ‑
I’m not asking you about authentication. I’m asking you about whether you know what true means?‑‑‑No. Would you please explain it to me.
You’ve never heard the word true before?‑‑‑I’ve heard the word true, but I don’t know what it means in the context of being in ‑ ‑ ‑
True ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ in a witness box.
‑ ‑ ‑ means true?‑‑‑Well – well, you can’t define a word by itself.
MR SHEALES:   You can.
HER HONOUR:   No, I want you to tell me what you think the word true means?‑‑‑Well, I’m telling the truth and the whole truth, but I don’t – but I don’t whether this ‑ ‑ ‑
So is what you say true?‑‑‑Your Honour, I think we’re wasting our time here. This ‑ ‑ ‑
No, I don’t – you are wasting time when you sit there and say, “I don’t know what a true copy is”.
MR SHEALES:   Priceless.
HER HONOUR:   Because you know the next question I’m going to ask you is what’s a copy, so how come you don’t know what the words “true copy” mean?‑‑‑Because I – I had to step out of the room for a couple of hours yesterday on these – you know, while you guys are discussing the legal definition of me authenticating documents, and I ‑ ‑ ‑
I’m not asking you for that. I’m just asking you what you think the words “true copy” mean because you seem to have difficulty with them, and I don’t understand why?‑‑‑I do. I have a lot of difficulty with a lot of these questions.
No, just the words “true copy”, because if you can’t tell me what you think a true copy is, I may wonder whether you know much at all and whether you’re really trying to answer?‑‑‑I’m trying ‑ ‑ ‑
Sitting there, you’re doing your hardest, you can’t tell me what your interpretation of the words “true copy” is?‑‑‑Okay. So to me, true copy means do I think the facts in this are accurate, and I would say, yes, I would think the facts in here are accurate. That’s what I think true means. So I think this ‑ ‑ ‑
Okay. I will tell you?‑‑‑ ‑ ‑ ‑ represents the – I think this represents the truth.
True copy means it’s a copy that is correct. It’s a copy that has ‑ ‑ ‑?‑‑‑Well, I can’t – I can’t prove that. I can say that the facts here all look right to me, but I can’t tell you – whether it’s an actual copy or not. I mean, I haven’t seen the provenance of it. I don’t know where this document came from.
Okay. Thank you.
I have discussed above the husband difficulty with the concept of a “true copy”, even in some circumstances he had previously admitted the “authenticity”.
The twenty-eighth reference related to day 12 and was to page 944, line 30 to page 946, line 30:
THE WITNESS:   No. You know what? I have no idea.
MR SHEALES:   No, just hold on. Now ‑ ‑ ‑
MR SALAMANCA:   Well, your Honour, he qualified that then.
MR SHEALES:   Mark it for identification then.
HER HONOUR:   What do you mean? He said it was a true copy.
MR SHEALES:   No, he says ‑ ‑ ‑
MR SALAMANCA:    And then he said, “I have no idea”.
MR SHEALES:   I think what he’s saying, your Honour, is – he was being sarcastic saying it was ‑ ‑ ‑
THE WITNESS:   No, what I’m saying is ‑ ‑ ‑
MR SHEALES:   ‑ ‑ ‑ a true copy.
THE WITNESS:   ‑ ‑ ‑ I’m exhausted.
HER HONOUR:   Just excuse me. Did you say that this was a ‑ ‑ ‑?‑‑‑I ‑ ‑ ‑
‑ ‑ ‑ true copy?‑‑‑No, I corrected myself. I – I – I said ‑ ‑ ‑
No. Sir, you sat there and you said this was a true copy?‑‑‑I said it was true because I’m exhausted and I’m – I – I’m fatigued and what I should have said is ‑ ‑ ‑
Do you understand that it’s your duty to tell the truth?‑‑‑Yes, I understand that.
What were you doing when you told me that it was a ‑ ‑ ‑?‑‑‑I’m ‑ ‑ ‑
‑ ‑ ‑ true copy?‑‑‑I’m exhausted. I’m exhausted. I’m exhausted and I should have said I don’t know. I apologise.
MR SALAMANCA:   Your Honour, your Honour may not have heard what he said immediately after he said it’s true or after a pause. He said it’s true and after a pause he said, “I have no idea. I really have no” ‑ ‑ ‑
HER HONOUR:   Well, how can they stand as consistent statements?
MR SALAMANCA:   Well, your Honour, in my respectful submission, it’s apparent from the tone with which he said the word “true” that it was an insincere statement.
MR SHEALES:   Like most of his evidence. But, your Honour, I’m only seeking to mark it for identification.
HER HONOUR:   Were you being facetious?
MR SALAMANCA:   He was.
THE WITNESS:   No, I ‑ ‑ ‑
HER HONOUR:   No. Were you being facetious?‑‑‑I was exhausted and I should have – not have said that it was true. I should have said I don’t know. I – I – it – I – I was ‑ ‑ ‑
Do you know what facetious means?‑‑‑No.
Do you know what sarcastic means?‑‑‑Yes.
Were you being sarcastic?‑‑‑No.
Do you know what lying means?‑‑‑Yes.
Were you lying when you said it’s a true copy?‑‑‑No. I spoke in error out of fatigue.
MR SHEALES:   Now, I apologise and I apologise for my phraseology in the previous question, your Honour.
As her Honour has made clear to you, you understand you have to make full disclosure continuously at all times?‑‑‑Yes, I understand that I – yes.
HER HONOUR:   Seeing as you were just interrupted, Mr Sheales, again, how many other answers have you given incorrectly, sarcastically, out of fatigue?‑‑‑None that I can remember. That’s the first.
But you might have?‑‑‑No, I don’t – I’m tired. Can I have a break?
You want a break?
MR SALAMANCA:   Your Honour, could we deal with these documents first?
HER HONOUR:   No, he wants a break. Let’s half his dime.
ADJOURNED [3.16 pm]
The selected transcript above occurred on the twelfth day and two or three days after the husband gave evidence that he did not understand the term “true copy”. My questioning clarified whether the husband meant what he said when he twice identified the document handed to him as a true copy of the 2003 DD Trust Deed, once at line 17 and again at line 20 on page 944. The clarification resulted in the concession that it was true copy being withdrawn. Without that clarification the Court was effectively being asked to infer from the “tone” in which the husband agreed that it was a true copy that he did not mean what he said, that is:[97] “MR SALAMANCA: Well, your Honour, in my respectful submission, it’s apparent from the tone with which he said the word “true” that it was an insincere statement.”
[97] Transcript in Confidence, 4 July 2018, p. 945, 27-8.
The twenty-ninth and final reference related to the thirteenth day being 5 July 2018, and was to page 1004, line 45 to page 1006, line 25:
HER HONOUR: Right. So I note in that response you had no difficulty with the concept of true copy?‑‑‑I have a lot of difficulty with what Mr ‑ ‑ ‑
Well, you said you just admitted that something was a true copy. You had no difficulty saying it then. Why couldn’t you have said it last time it was put to you in terms of true copy? You said you didn’t understand the word “true”, do you recall that? About eight minutes ago. Do you recall about eight minutes ago saying you did not understand the word – what the word “true” meant?‑‑‑Yes.
Okay. Do you recall that a – about a minute ago you admitted that something was a true copy? Can you tell me what happened in that intervening seven minutes that gave you some understanding of the word – sufficient understanding of the word “true” that you could make that admission?‑‑‑Nothing happened.
Right. So tell me do you now understand what true means?‑‑‑I don’t know. I don’t know. I mean, I – I’m – I’m confused because I thought I knew what word “true” means but then when ‑ ‑ ‑
Well, what did you think it meant?‑‑‑What?
What did you think it meant?‑‑‑Well, I think that true means that it’s an accurate reflection of the facts.
That’s accurate. That’s right. Accurate. Correct. But you couldn’t ‑ ‑ ‑?‑‑‑Accurate and correct.
‑ ‑ ‑ say that before, so, what made you think in the last seven minutes that true means accurate?‑‑‑Well, nothing has changed.
That’s what occurs to me, nothing has changed, and so I don’t know why yesterday you didn’t know what “true” meant?‑‑‑Well, because yesterday I was very confused with the – I forget the words that are used by the court – but where all those documents were given to me and I had to say whether they were true or accurate ‑ ‑ ‑
Yes. But you weren’t being asked about those documents. You were simply being asked what does true mean and you couldn’t say?‑‑‑Because I think that the court seems to have sent me outside for an hour while you’re trying to understand what it – what – what these concepts mean. I don’t know how I’m supposed to understand the subtle meaning of these words in the court proceedings. So ‑ ‑ ‑
The reason I – it was explained to you, I think – I will stand to be corrected when counsel addresses me but I think it was made fairly clear to you by me, if no one else, that all I was asking you is what does true mean?‑‑‑And you – and we agreed ‑ ‑ ‑
There was no nuanced ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ that true means true is all we agreed.
No technical – listen to me. There was no nuance. There was no technicality. It was what does true mean and you were unable to say?‑‑‑Well – and then you said true means true and I said how do you define a word by itself. I – I’m – I – I’m – the – all this court stuff is new to me and there are words being used that have potential legal meanings that I don’t understand the implications of.
Okay. True has no potential legal meaning ‑ ‑ ‑?‑‑‑Okay.
‑ ‑ ‑ over and above what it is, that is correct or accurate. It is true?‑‑‑Okay. So I would be very happy to use the word true if it’s to mean that a document is – is, as you say, accurate.
It has never been put to you or suggested to you that true meant anything else other than ‑ ‑ ‑?‑‑‑That true – I’m sorry.
‑ ‑ ‑ that true meant anything else other than it’s ordinary meaning which would include, I expect, the concept of accurate?‑‑‑I’m concerned that the court uses some words with legal definitions that I don’t understand.
Well, don’t be?‑‑‑Excuse me?
Don’t be?‑‑‑Don’t be. Okay.
Next time you’re asked what does a word like “true” mean make an endeavour to answer it?‑‑‑Yes, your Honour.
Yes, Mr Sheales.
The selected transcript above followed on from the following cross examination by counsel for the wife:[98]
MR SHEALES: […] do you dispute you were the trust protector for the [Mr Fowles] Trust, subsequently name changed to the [DD] Trust, between 2003, 7 August, and 2014. Do you dispute – do you admit that you were the trust protector?---I’m not certain about the dates but I admit I was the trust protector and the primary beneficiary of the [Mr Fowles] Trust which changed its name to the [DD] Trust.
All right. Do you admit that the [Mr Fowles] Trust Trust Indenture that was forwarded to you yesterday by [Mr Y] is a true copy of the trust indenture of the [Mr Fowles] Trust?---I trust that [Mr Y] sent a proper document.
My question; yes or no, do you admit that the trust indenture of the [Mr Fowles] Trust, which was provided to you by [Mr Y] yesterday that you have produced to this court today, is a true copy of that trust indenture?---I will admit that.
I would seek to tender that, your Honour.
[98] Transcript in Confidence, 5 July 2018, p. 1004, 20-35.
During the husband’s cross examination, there was various times when the husband became distressed and I intervened in the questioning to ensure that he had the capacity to continue in the witness box:[99]
[99] Transcript in Confidence, 22 March 2018, pp. 254-5, 46-46.
MR SHEALES: They then asked you on top of meeting that 104,000, because the matter was going to trial imminently in a couple of weeks, they asked you to pay an 80,000 in anticipation of trial costs. Did you pay them that 80,000?---I can’t remember.
Are you serious?---Yes, I am.
Is that a serious answer?---I’m shell shocked by these legal fees. I’m shell shocked by this whole legal system. It is overwhelming how these people are capable of running up bills. I don’t remember. But I know that, you know, once you dig a deep hole like this you’ve got to keep giving the lawyers monies, and there’s no way out. So I assume – I don’t know. I – I’m shell shocked by it.
HER HONOUR: [Mr Fowles], what do you mean by shell shocked?---I mean that I’m depressed and I’m numb and I can’t even imagine spending all this money on lawyers. These lawyers don’t seem to achieve anything.
Right?---And I just can’t cope anymore.
Do you want to compose yourself?---Yes, I do want to.
Do you want some time outside with a glass of water or do you just want to - - -?---I need a lot more than just a little time outside, your Honour. I can’t - - -
All right. Well, let’s take a break for about 10 minutes, and obviously your solicitors can talk to you about your physical well-being, but, [Mr Fowles], just listen to me for a sec. When you come back I want to know whether you paid the $80,000 or any part of it?---I don’t know. It would be in the invoices whether it was paid or not. I don’t remember.
Do you want to have access to the invoices or do you just want to compose yourself?---What’s that?
Do you want to have access to the invoices or do you want to compose yourself?---Yes, I will – yes. I will look it up. Let me look at them.
Okay?---If it shows that it was paid, it shows that it was paid. I mean, you know, if you got evidence it was paid, it was paid. Just show me.
All right. Is there just the one copy of those?
MR SHEALES: There is at the moment, your Honour.
HER HONOUR: All right. Hand them to the court, Mr Salamanca. I will take a break for about 10 minutes, unless you tell me that [Mr Fowles] needs more time, and then we will resume the cross-examination.
MR NORTH: Thank you, your Honour.
Cumulative Impression
The husband’s counsel concludes that the cumulative effect of my actions leaves an impression on a lay observer that my “disdain and dislike for the husband” has “reached a level” that I am now “unable to disguise”. Counsel submits: [100]
It prompts your Honour to assume the worst of the husband even when a more favourable explanation is available and more probable. Your Honour has been prompted to rush to harsh judgments of the husband’s conduct and if an independent lay observer might arrive at such a conclusion, it is but a small step for that observer to go on to apprehend that your Honour might not bring an impartial and unprejudicial mind to the resolution of the ultimate issues. If your disdain for the husband is such that your Honour is now unable to contain or disguise it in Court, it might well be at such a level that your Honour is unable to set it aside when turning your mind to the determination of issues in dispute between the parties and exercising your discretion as to a just and equitable award as between them.
[100] Husband’s Factual Contentions dated 29 October 2020, [34].
Counsel for the husband submits that the consequence of the above is that “the proceedings have not achieved their purpose”, even if the ultimate outcome of the matter is considered to be just. [101] Therefore, the husband seeks that I recuse myself.
[101] Husband’s Factual Contentions dated 29 October 2020, [35].
The wife responds that the Full Court in Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42 held that the fair minded observer “is an informed one who will have regard to the fact that a judicial officer’s training, tradition and oath or affirmation, equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial” and “has knowledge of all the circumstances of the case”.[102] The wife says that the Court must maintain the decorum of the Court and that the husband’s behaviour and what is complained of by him did not meet that standard of decorum and so “necessitated” judicial intervention and/or direction.
[102] Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42, [21].

The husband relies on the judgment of Kaurakis CJ in R v T, WA (2014) 118 SASR 382 at [40]:
If an intervention gives an apprehension of bias it will also, of necessity, show that the capacity to objectively and dispassionately evaluate the evidence has been compromised. However, there will be some, probably fewer, interventions which, even though they do not suggest prejudgment, show that the judicial officer has lost the advantage of judicial detachment which he or she would otherwise have enjoyed as a judge adhering to the common law adversarial method of trial.
The husband says in considering the cumulative effect of my interventions and conduct that the reasonable observer may perceive that I have “lost the advantage of judicial detachment”.
Whilst I have not expressly applied the test of the fair-minded lay observer to every contention of the husband, I have at all times been mindful of it and applied it to my conclusions. That includes each of the selected transcripts of evidence upon which the husband relies in his submissions in relation to my interventions during cross examination. This is a case in which simple propositions are made complex. Questions which could have been answered with a “yes” or “no” were turned into an exchange of debating points. The fact finding exercise has been made immeasurably more difficult than it needs to be. Ultimately, I have to understand the evidence and any paucity of evidence. Had I not intervened to clarify for myself questions that needed to be answered, the length of this already long case would have grown exponentially.
Looking at the interventions relied upon individually and cumulatively with a comprehensive appreciation of the behaviour of the husband and contribution of counsel for both parties, I am not satisfied that there is a reasonable possibility that a fair-minded observer might reasonably conclude that I might not bring an impartial mind to the resolution of the case before me.
CONCLUSION
For the above reasons, I refuse the husband’s application and do not recuse myself.

I certify that the preceding two hundred and one (201) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.
Associate:
Dated: 9 June 2021

File number(s):	MLC 8587 of 2015
Judgment of:	BENNETT J
Date of judgment:	9 June 2021
Catchwords:	FAMILY LAW – COURTS AND JUDGES – Disqualification – where party alleges apprehended bias based on constraint on husband’s liberty, length of cross examination and intervention in cross examination - application made during long and protracted hearing – application dismissed
Legislation:	Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth)
Cases cited:	British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 Finch and Finch (2020) FLC 93-949 Galea v Galea (1990) 19 NSWLR 263 Fowles & Fowles (No. 2) [2019] FamCA 1027 Fowles & Fowles [2019] FamCA 1011 Johnson v Johnson (2000) 201 CLR 488 Livesey v NSW Bar Association (1983) 151 CLR 288 Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42 Michel v The Queen [2010] 1 WLR 879 R v T, WA (2014) 118 SASR 382 Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128
Number of paragraphs:	[201]
Date of written submissions:	Husband’s written submissions dated 29 October 2020; Wife’s written submissions dated 9 November 2020; Husband’s written submissions in reply dated 13 November 2020.
Date of hearing:	28 October 2020
Place:	Melbourne
Counsel for the Applicant:	Mr Sheales
Solicitor for the Applicant:	Lander & Rogers
Counsel for the Respondent:	Mr North SC
Solicitor for the Respondent:	Taussig Cherrie Fildes Family Lawyers

MLC 8587 of 2015
BETWEEN:	MS FOWLES Applicant
AND:	MR FOWLES Respondent

INTRODUCTION	[1]
APPREHENDED BIAS TEST	[6]
HUSBAND’S FACTUAL CONTENTIONS	[13]
Constraint on the husband’s liberty	[15]
Length of cross-examination	[31]
*Alleged non-disclosure by the husband*	[38]
*The husband’s failure to give responsive answers*	[38]
*“True Copy”*	[45]
*Husband’s disruptive behaviour toward counsel for the wife*	[53]
*Counsel bickering*	[61]
*The husband failing to observe normal protocols*	[69]
Soles of feet to camera	[70]
“Victim”	[71]
Reading the newspaper	[73]
My general warning	[74]
The child D	[78]
Group chat	[91]
Calling counsel by their given names	[93]
Inability to get instructions	[103]
The banana	[105]
*Interrupting the affirmation*	[117]
*Interim applications*	[121]
*Other events occurring during Court proceedings*	[122]
Intervention in cross-examination	[125]
Cumulative Impression	[194]
CONCLUSION	[201]