Garwood & Shipton (No 9)
[2024] FedCFamC1F 350
•27 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garwood & Shipton (No 9) [2024] FedCFamC1F 350
File number(s): ADC 4995 of 2018 Judgment of: KARI J Date of judgment: 27 May 2024 Catchwords: FAMILY LAW – COURTS AND JUDGES – Apprehended Bias – Application for disqualification of a judicial officer – Where the mother apprehends that the judge may not bring an impartial mind to the proceedings – Whether the judge’s conduct might lead a fair-minded lay observer to reasonably apprehend that the judge may decide the case other than on its legal and factual merits – Consideration of the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 - Where the conduct of the judge should be considered with the background and context to which the conduct took place – Apprehended bias not established – Application dismissed Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Adlin & Northern Territory Central Authority (No. 5) (2021) FLC 94-019
Charisteas v Charisteas (2021) 273 CLR 289
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Garwood & Shipton (No 6) [2023] FedCFamC1F 813
Garwood & Shipton (No 7) [2023] FedCFamC1F 935
Garwood & Shipton (No 8) [2024] FedCFamC1F 208
Johnson v Johnson (2000) 201 CLR 488
Re JRL; Ex parte CJL (1986) 161 CLR 342
Webb v The Queen (1994) 181 CLR 41
Division: Division 1 First Instance Number of paragraphs: 85 Date of hearing: 5 February 2024 Place: Adelaide Counsel for the Applicant: Mr Rice KC, assisted by Mr Manetta Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondent: Mr Cox SC, assisted by Ms Hume Solicitor for the Respondent: Angela Ferdinandy ORDERS
ADC 4995 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARWOOD
Applicant
AND: MS SHIPTON
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
24 MAY 2024
THE COURT ORDERS THAT:
1.That paragraph 1 of the Application in a Proceeding filed 31 January 2024 be dismissed.
2.That the proceedings be listed for Case Management on 12 June 2024 at 12 noon, with Counsel instructed for trial to appear.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garwood & Shipton has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These reasons relate to an application brought by the mother that I be disqualified from further hearing the proceedings. Significantly, the application has been filed at a time when I have commenced the final hearing and heard nine days of evidence; albeit only that of the mother. For a range of reasons that are not germane to the present application, I have been unable to conclude the final hearing, despite three separate attempts to do so.
The basis for the disqualification application is that the mother apprehends that I may not bring an impartial mind to the proceedings. Her concerns in that regard are multivarious and span the period from some time after the first tranche of the trial concluded on 20 September 2022 until no later than 1 December 2023 when the mother filed a Notice of Appeal in relation to a costs order that had been made by the court on 3 November 2023; a period of some 14 months.
The disqualification application was filed by the mother on 31 January 2024 just prior to the recommencement of the part-heard final hearing on 5 February 2024. The filing of the application resulted in the third adjournment of the final hearing.
For the reasons that follow, the application is to be dismissed.
THE SUBSTANTIVE PROCEEDINGS
The proceedings between the parties concern both parenting arrangements and the threshold question as to whether the parties were in a de facto relationship; the latter a necessary jurisdictional requirement prior to granting any financial relief.
For ease, a starting point to understanding relevant information in relation to the parties, their relationship and the litigation can be found in reasons published 3 November 2023 in the proceedings (Garwood & Shipton (No 7) [2023] FedCFamC1F 935):
8For present purposes it is necessary to understand the following history of the parties and their relationship:
(a) The applicant was born in 1974.
(b) The respondent was born in 1969.
(c)The child [X] was born as a result of an artificial conception procedure undertaken in the United States in 2017, using the applicant’s genetic material and donor eggs.
(d)The respondent’s case is that the applicant was nothing more than a sperm donor.
(e)The applicant does not agree that his purpose was simply to provide the genetic material for [X’s] conception. Moreover, he asserts that the parties were in a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) (“the Act”).
(f)While the respondent agrees that the parties were girlfriend and boyfriend, she denies that the parties were ever in a de facto relationship.
(g)It is otherwise an agreed fact that for a period of time the applicant was the Chief Operating Officer of the respondent’s business, which operates [a business] at several sites […].
(h)While there is much more to the respondent’s case, for present purposes it is important to understand that two significant allegations have been made by her in relation to the applicant. The first allegation is that she was the victim of a rape perpetrated by the applicant, and the second is that the applicant misappropriated a significant amount of funds from the respondent’s business.
9The substantive proceedings are presently in a state of suspended animation in circumstances where:
(a)The final hearing commenced before me on 5 September 2022. That hearing was listed for 12 sitting days. The final hearing became protracted for a range of reasons and did not conclude. At this juncture, the respondent is the only witness to have given oral evidence.
(b)Additional final hearings dates were allocated for the conclusion of the final hearing commencing on 17 April 2023 with a further 13 sitting days allocated.
(c)Sometime in or about early-mid February 2023 the respondent became self‑represented; filing a Notice of Address for Service to that effect on 17 February 2023.
(d)At a time when the respondent was self-represented, an application was made by the applicant that the provisions of s 102NA(2) of the Act apply to these proceedings, prohibiting either of the parties from personally cross-examining the other of them. That question was favourably determined on 16 February 2023, with the court publishing ex tempore reasons (Garwood & Shipton (No 4) [2022] FedCFamC1F 104), and making orders pursuant to s 102NA(1)(c)(iv) to that effect.
(e)By 6 March 2023 the respondent obtained new legal representation. Her current solicitors filing a Notice of Address for Service on 6 March 2023. There was however some significant confusion about the extent to which the respondent’s new legal representation had been engaged, with the respondent appearing on her own behalf on occasion thereafter with respect to interlocutory applications that she then pressed.
(f)Be that as it may, on 31 March 2023, the respondent filed an Application in a Proceeding, in which, significantly for present purposes, she sought an adjournment of the continuation of the final hearing for a period of “at least six months”.
(g)The respondent’s application for an adjournment of the final hearing was granted with the consent of the applicant on 12 April 2023. The reason for this, as best as the court can understand, was largely due to the respondent obtaining new legal representation and needing time to prepare for the resumption of the final hearing.
(h)On 5 May 2023 new final hearings dates were allocated for the sitting weeks commencing 7 August 2023, 14 August 2023 and 28 August 2023; 15 sitting days in total.
(i)Between 5 May 2023 and 2 August 2023 there was a flurry of activity in the proceedings. That flurry of activity included the filing of various interlocutory applications and cross applications by each of the parties. In particular, the respondent filed two separate Applications in a Proceeding (on each 11 and 28 July 2023), all of which were met with the filing of a Response by the applicant (on each 21 July 2023 and 3 August 2023). In addition, the applicant filed an Application in a Proceeding on 2 August 2023. For present purposes it is not necessary to understand the subject matter of each of those interlocutory applications, other than to note that they will likely need to be determined prior to the resumption of the final hearing.
(j)However, against the backdrop of the part heard final hearing set to resume on Monday, 7 August 2023, the respondent filed an Application in a Proceeding out of hours on Thursday, 3 August 2023 at 5.57pm. By that application, of significance for preset purposes, the respondent sought an order restraining both the applicant’s solicitor personally together with the firm of solicitors from continuing to represent the applicant in the proceedings.
(k)At the first day of the resumption of the part heard trial on Monday, 7 August 2023, and in the face of the Application in a Proceeding filed on 3 August 2023, the court was initially advised that the applicant’s solicitor sought leave to withdraw and cease acting for the applicant in the proceedings. Ultimately however, over the course of the hearing the applicant terminated his instructions to both his solicitor and the firm of solicitors. These events culminated in an unopposed adjournment of the final hearing for a period of a week to 14 August 2023.
(l)By the hearing on 14 August 2023, the applicant was able to secure alternate legal representation. However, given the inability of those new legal representatives to adequately prepare the matter, the balance of the final hearing dates in the weeks commencing 14 and 28 August 2023 were vacated; again unopposed on the part of the respondent. New final hearings dates were then allocated, essentially consuming the month of February 2024 out of an abundance of caution and to avoid the matter being again adjourned part heard. In addition, the matter was listed for mention on 21 August 2023 to procedurally mange the balance of the extant interlocutory applications.
10.Significantly for present purposes the respondent has filed two amendments to the Application in a Proceeding first filed on 3 August 2023. In that regard:
(a)On Sunday 6 August 2023 at 7.38 pm an Amended Application in a Proceeding was filed. The significant amendment to that application was that the respondent additionally sought an order that the applicant’s senior counsel be restrained from acting in the proceedings. Least it not be obvious, this amended application was again filed out of hours. This time on the Sunday night before the trial was to resume on the Monday, and came hot on the heels of the application filed out of hours the preceding Thursday (3 August 2023), seeking orders to restrain the solicitor, and solicitors firm from acting.
(b)On Sunday 13 August 2023 at 8.27 pm (again out of hours the Sunday night before the adjourned resumption of the part heard final hearing on the Monday) a Further Amended Application in a Proceeding was filed. The amendment made by the respondent on that occasion is the subject matter of the costs application to which these reasons relate. Namely the proposed order set out at paragraph 1(a) which provided as follows:
The Honourable Justice Kari recuse herself from hearing this action on the grounds summarised in Schedule A hereto.
Since August 2023 a number of events have occurred. Whilst some of those events took place following the hearing relating to these reasons, I record the outcome of those events, but otherwise have not had regard to those reasons and I do not bring to account those events in my deliberations relating to the disqualification application that is the subject of these reasons; particularly as neither party has sought to reopen these proceedings to permit me doing so. The events of significance so far as the progression of the litigation are as follows:
(a)The two amendments to the mother’s Application in a Proceeding first filed 3 August 2023 resulted in a bifurcated hearing process.
(b)The application to restrain the father’s counsel was heard by Tree J on 6, 7 and 14 February 2024, with reasons delivered and orders made 28 March 2024 (Garwood & Shipton (No 8) [2024] FedCFamC1F 208). The application was dismissed.
(c)The application that I recuse myself was withdrawn by the mother at the hearing of the application on 6 September 2023. The withdrawal of the application resulted in the father pressing a costs application. That application for costs was heard by me on 15 September 2023, with reasons delivered and orders made 3 November 2023 (Garwood & Shipton (No 7) [2023] FedCFamC1F 935). A cost order was made in favour of the father in the amount of twenty-five thousand dollars ($25,000).
(d)The mother filed a Notice of Appeal in relation to that costs order on 1 December 2023. That appeal was heard on 19 March 2023 by Austin, Williams and Riethmuller JJ. Reasons were published and orders made 14 May 2023 dismissing the appeal, together with an order for costs in favour of the father (the respondent in the appeal) in the amount of sixteen thousand dollars ($16,000).
It is apparent from submissions made by the mother’s counsel at a case management hearing before me on 25 January 2024 that the mother anticipated that the filing of the Notice of Appeal on 1 December 2023 would have resulted in an adjournment of the part-heard trial scheduled to recommence on 5 February 2024. This is because the mother sought a remedial order in the appeal that the appellate court “declare a mistrial and order that the proceedings be remitted to another judge for hearing and determination”.[1] At the hearing on 25 January 2024 I commented to the mother’s counsel to the effect that any application for an adjournment of the trial would need to be made before me as the primary judge. It is these comments I suspect which resulted in the application the subject of these reasons. At the hearing on 25 January 2024, the mother’s counsel was unable to advise whether such an application would be made, however in an attempt to case manage the matter I made orders on 25 January 2024 effectively granting leave for the filing of any application to adjourn the trial and providing for any such application to be filed no later than 31 January 2024.
[1] Mother’s Notice of Appeal filed 1 December 2023, p. 8.
THE DISQUALIFICATION APPLICATION
In accordance with the orders made 25 January 2024, both of the parties filed an application to adjourn the trial on 31 January 2024; albeit for different reasons.
Significantly for present purposes, the mother’s Application in a Proceeding filed 31 January 2024, sought at proposed order 1 that I be disqualified from further hearing the proceedings (“the disqualification application”). The orders sought in the application were:
1.For a declaration of a mistrial and orders that:
(a)the Honourable Justice Kari is disqualified from further hearing these proceedings on the grounds set out in annexure "A" to this application; and
(b)that paragraphs 3 and 4 of this application, and all current and further applications in these proceedings be referred to another Judge of this Honourable Court for hearing and determination.
2.That in the event that the declaration and orders sought in paragraph 1 above are not made on 5 February 2024, an order vacating the further hearings listed in this matter from 8 February 2024 to 1 March 2024 to enable the just and proper determination of the proceedings numbered ADC 4460 of 2023 (in respect of part of the respondent's application filed on 13 August 2023), and adjourning the proceedings for mention to a date not before (a) the determination of the proceedings numbered ADC 4460 of 2023 and (b) the determination of the application in respect of paragraph 1 above.
3.In the event that neither the orders in paragraph 1 or paragraph 2 are made on 5 February 2024, orders:
(a)for an updated Family Assessment Report to be prepared by [Ms B];
(b)for an updated report from [Ms G];
(c)for leave for the respondent to file and serve an updated trial affidavit; and
(d)for the settling of an amended trial plan taking account of the availability of witnesses.
4.That the applicant pay the respondent's costs of and incidental to this application to the extent that the above orders are opposed by the applicant.
Annexure “A” to the application was lengthy. The court was advised at the hearing of the application that Annexure “A” was similar to some of the matters raised in the Notice of Appeal that was filed on 1 December 203 in relation to the cost order made 3 November 2023.
Annexure “A” provided as follows:
1.In:
1.1 refusing to consider the respondent's written submissions and restricting the respondent to 20 minutes of oral submissions at the hearing on 15 September 2023 on the basis:
1.1.1 of an observation that the document bore a time stamp of 11.53am when the sealed document had been emailed to her Honour's chambers at 11.27am and handed up to her Honour shortly after the hearing began at 11.30am;
1.1.2 that the respondent's affidavit material was filed 2 hours and 26 minutes late when her Honour had repeatedly allowed the applicant to breach timeframes for the filing of documents or fail to file any document at all without comment and permitted the applicant to rely on those documents including, during 2023 alone, on the numerous occasions in the attached schedule;
1.1.3that there had been no request for outlines to be filed, when by contrast her Honour had previously allowed the applicant to rely on outlines which had been filed when there had been no order made and even required the respondent (at the time unrepresented) to read and address the outline (including raising issues about her alleged lack of mental capacity) during the course of a hearing, as set out in the attached schedule;
1.1.4 that there had only been 1 hour 30 minutes allotted to the hearing, ignoring the submissions of the applicant's counsel or otherwise taking the reasonable view:
1.1.4.1 that the written submissions were necessary given the numerous issues raised by the lengthy affidavit filed by the applicant on the Wednesday afternoon (of 48 pages) prior to the hearing on Friday morning and that the respondent's counsel was not seeking to have the Court sit beyond the allotted hearing time;
1.1.4.2that the number of issues and the length of the affidavit could not reasonably have been anticipated at the time of setting the timetable for the filing of a responsive affidavit and the length of the allotted hearing time, by way of explanation for the lateness by 2 hours 26 minutes for the filing of the affidavit and for the respondent's submissions having been reduced to writing to ensure the respondent could be brief in oral submissions and the hearing concluded within time;
1.2 permitting the applicant's solicitor to withdraw on the eve of the resumed trial on 7 August 2023 without requiring any explanation at all for that withdrawal and suggesting "she might take the view, I don't know, that it's a side issue that she doesn't want to distract from the litigation" (T6.22) when there was compelling evidence that the documents on their face showed misconduct by the solicitor, as outlined in the submissions of the respondent, which her Honour had read (T9.24);
1.3 commenting at the hearing on 7 August 2023 that she was "deeply, deeply troubled" by the late filing of the respondent's application (T9.17) when her Honour, on the basis of the documents analysed in the respondent's submissions, should have been "deeply, deeply troubled" about the conduct of the applicant's solicitor [Ms Y] in not withdrawing as the solicitor on record in 2019 or at least well before the trial began;
1.4in her aggressive attitude at the hearings of 7 and 14 August 2023, including to the extent of interrogating the respondent's counsel at the hearing of 7 August 2023 about the several persons sitting in the gallery of the court in proximity to the appellant:
"Her Honour: ... There's a team of people with your client and your instructor. Who are they? Who's present in the body of the courtroom with your client? ...
Counsel: Well, your Honour, I don't feel comfortable [asking] that, to be honest, with respect your Honour
Her Honour: Why not? Why not?"
1.5 referring so emphatically to the lateness of the applications, by way of heavy criticism of the respondent, when that arose from the further trial affidavit of the respondent filed 31 July 2023 canvassing by way of evidence in re-examination the box of documents produced mid‑trial, when the fault was clearly that of the applicant's solicitor [Ms Y] who should have withdrawn from the proceedings in 2019 and well before the start of the trial in September 202 and not mid-trial in August 2023, as she did;
1.6saying the applications were filed immediately before the hearings in August as applications to be relied on at those hearings when that was not correct and the appellant's counsel made that clear (eg, hearing of 14 August 2023, T7.38);
1.7ignoring the respondent's evidence on the application heard on 15 September 2023 and the related submission of the respondent's counsel that:
1.7.1 that the respondent properly relied, in bringing the application, on the statements of her Honour in open court that:
1.7.1.1she had previously acted for [Ms AC] (T5.45, 1 September 2022; T43.31, 31 August 2022);
1.7.1.2when she saw the name [Ms AC] in the court documents, it "twigged' to her Honour, the name "look[ed] familiar'', causing her Honour to review her "client conflict register from when I was at the Bar and I saw an entry in relation to" [Ms AC] (T44.9-12, T46.13, 31 August 2022);
1.7.1.3[AT Lawyers] were her "instructors", her Honour noting instructions from a "[Ms AE]", "according to [what her Honour described as her] records" (T44.32, 31 August 2022);
1.7.2that the respondent properly relied on her Honour's express statement in Court that if the applicant objected, that was the end of it - ie, the only issue was one of waiver: T45.45. That is, the Court emphatically told the parties that she was acting on the basis that she had acted for [Ms AC] so it was inappropriate that she be the trial judge absent a waiver. It did not matter that her Honour could not recollect the details of her involvement or why she was conflicted, just as Bromwich J had no recollection of his previous involvement with the appellant in QYFM (2023) 409 ALR 65;
1.8 ignoring the respondent's further submissions:
1.8.1that it was inappropriate to go behind and investigate statements from the Bench such as this. Parties should be entitled to rely on statements of judicial officers that they were instructed and conflicted and that the only issue in the Court's view was one of waiver. Parties should appropriately rely on what they are told by judicial officers;
1.8.2that these were matters of litigation privilege, as the applicant's senior counsel acknowledged during the hearing on 31 August 2022 (T44.40). Respectfully, despite the suggestion from the Bench that this inquiry of her former client and instructors be undertaken, it is quite inappropriate, just as it would have been wrong to ask for copies of her Honour's "records". It is inappropriate for a judicial officer to suggest that her former client waive privilege over contacts with her and disclose the contents of her solicitor's file to investigate the scope of her brief, particularly when that request comes with the weight of the Court's authority. It inappropriately puts pressure on former clients to open their own files and those of their solicitors;
1.8.3that there was no evidence that the applicant's former wife would ever have been persuaded to waive litigation privilege to assist the respondent;
1.8.4that the applicant, on his own admission, knew on 31 August 2022 that her Honour had had no involvement. He wrongly failed to disclose this to the Court (and thereby the respondent) on 1 September 2022. He failed to disclose this to the respondent either then or immediately upon receipt of the Further Amended Application. The costs incurred by the applicant would have been avoided if he had disclosed when he knew from [Ms AC] to the Court and the respondent and made clear that [Ms AC] had apparently waived privilege already. The applicant brought these costs upon himself, it should be inferred, to try to damage the appellant financially by running up a costs claim as a potential weapon.
1.9 in fixing the costs to be paid given:
1.9.1the applicant's claim for more than $52,000 in costs for work allegedly incurred on this paragraph of the application across 17 days (from the filing of the application on 13 August 2023 to 31 August 2023, when the respondent advised the applicant that the application was not pressed) was manifestly excessive and not supported by the vague documents produced;
1.9.2the claim involved the costs of three counsel, including two senior counsel, all acting concurrently;
1.9.3one of the two senior counsel was one whose continued involvement in the proceedings was under challenge given the issues of abuse of process and other misconduct which have been raised;
1.9.4it was highly likely that the costs claimed to have been incurred by the applicant's new solicitors (engaged to replace the applicant's former solicitors, who had just withdrawn) had a purpose extending beyond paragraph 1 (a) of the application and related to getting up to speed on the proceedings generally;
1.9.5relevant documents had not been produced enabling a proper examination of the nature of the work actually claimed to have been done in these 17 days, particularly given the evidence of the applicant that he knew that her Honour had had no involvement and the only reliable evidence of work actually done was of an approach made to the previous solicitor with whom her Honour had engaged;
1.10permitting an excessively long and oppressive cross-examination of the respondent across 8-9 days of the trial in September 2022 such that the trial had to be adjourned part-heard having heard from a single witness only when the matter was meant to be fully heard in September 2022;
1.11directing the respondent, when unrepresented in February 2023, to confer with counsel who had cross-examined her for 8-9 days and her instructing solicitor [Ms Y] after a two-hour hearing in Court after which [Ms Y] filed an affidavit dated 17 February 2023 that she and cross-examining counsel believed the respondent might lack mental capacity and requested the Court consider taking steps to determine the capacity of the respondent (raised in an Outline dated 27 February 2023 and handed to the respondent at the hearing on 28 February 2023 and without there being any order directing the filing of Outlines), nothing about which prompted any adverse comment from her Honour;
the conduct of the learned trial judge was such that a fair-minded lay observer 'might entertain a reasonable apprehension that the trial judge might not be bringing an impartial and unprejudiced mind' to the determination of the current and any future applications in the proceedings.
(As per the original)
At the hearing of the application, the court was advised that the mother did not rely on 1.10 of Annexure “A”.
Senior counsel for the mother submitted at the hearing that:
(a)The application was put on the basis that “a fair minded lay observer might entertain a reasonable apprehension. There’s no submission put your Honour is actually biased.”;[2] and
(b)“the essential gravamen of the grounds are that, taking into account the perspective of the fair minded lay observer, that your Honour has, with respect, engaged in differential treatment of the parties and your Honour also has, with respect, by dealing with the matters in August and September as you did, you gave rise – it gives rise to the appearance of prejudgment…”.[3]
[2] Transcript 5 February 2024, p. 5 lines 40-41.
[3] Transcript 5 February 2024, p. 5 line 45 to p.6 line 2.
At the hearing on 5 February 2024, and given the disqualification application, senior counsel for each of the parties agreed that only paragraph 1 of the mother’s application alleging an apprehension of bias, was to be the subject of submissions. The reality, however, of the timing of the application was that the resumption of the part-heard trial was adjourned.
THE LEGAL PRINCIPLES
As identified, the mother’s disqualification application rests upon a foundation of there being an apprehension of bias.
The legal principles to be applied whenever there is a question over the independence or impartiality of a judge, are well settled (Charisteas v Charisteas (2021) 273 CLR 289 at [11]) and were identified by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) in the following terms:
6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Footnotes omitted)
(Bold emphasis added)
As discussed by the High Court in Johnson v Johnson (2000) 201 CLR 488 (at [13]) (“Johnson v Johnson”):
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.” Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(Footnotes omitted)
As succinctly summarised by Aldridge J in Adlin & Northern Territory Central Authority (No. 5) (2021) FLC 94-019:
4. It is well established that judges have an obligation to sit on matters that are assigned to them, except where there is some good reason, such as actual bias or the reasonable apprehension of bias, for them not to sit. It is not for litigants to pick and choose judges according to their perception as to the way that their choice might advantage them or disadvantage their opponents (Rajski v Wood (1989) 18 NSWLR 512 at [519]–[520]; Re: J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 per Mason J at 352).
5. In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ said:
19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
As discussed by Deane J in Webb v The Queen (1994) 181 CLR 41 at 74, there are four potentially overlapping categories of apprehended bias:
(a)Disqualification by interest;
(b)Disqualification by conduct;
(c)Disqualification by association; and
(d)Disqualification by extraneous information.
The attributes of the “fictitious bystander” described as the fair-minded lay observer were summarised in Johnson v Johnson at [53]:
… Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
(Footnotes omitted)
The fair-minded lay observer was also described at [80] as “a rational person not unacquainted with the legal process, the oath or affirmation that judges have taken and judicial obligations generally, and in broad terms what has occurred and may occur in the case before and after the challenged conduct”.
As highlighted by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at [5]:
… It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he [or she] will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way… Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
DISCUSSION
With reference to the matters outlined in Annexure “A” it is clear that the mother points to my conduct over the course of the proceedings, as particularised in that document. Each occasion of alleged conduct giving rise to the apprehension of bias shall be considered in turn.
It is however understood that it is the mother’s position that the conduct the subject of complaint both individually and cumulatively grounds her apprehension of bias.
During his submissions senior counsel for the father submitted that the conduct complained of largely falls into the category of
.. “robust discussions” with counsel. It’s part of the function, fairly obviously, of a judge to test the particular submissions being put or challenge a submission that is being put and, in particular, in combination with perhaps the case management principles, to control the court – that is, your Honour’s court in this instance – and the proceedings generally.[4]
[4] Transcript 5 February 2024, p. 36 lines 3-8.
Refusal to accept the mother’s written submissions at the hearing on 15 September 2023 (1.1)
The hearing on 15 September 2023 related to the father’s application for costs thrown away arising from an abandoned application filed by the mother on 13 August 2023 seeking that I be disqualified from hearing the proceedings.
On 3 November 2023 I delivered reasons and made an order for costs in favour of the father in relation to his application for costs thrown away (Garwood & Shipton (No 7) [2023] FedCFamC1F 935). As identified earlier, it is this order that was the subject of the Notice of Appeal filed 1 December 2023. The mere filing of the Notice of Appeal allows me to infer that the mother was unhappy with the order that was made. This however in and of itself could not ground any apprehension of bias, and nor is that asserted by the mother. This fact however does colour many of the conduct complaints now made by the mother relating to that hearing and the reasons for judgment.
The mother’s complaint about my conduct at the hearing on 15 September 2023 arises from my refusal at that hearing to accept written submissions filed by the mother shortly prior to the commencement of the hearing. My reasons for doing so were discussed in ex tempore reasons that I delivered during the hearing, which were subsequently published: Garwood & Shipton (No 6) [2023] FedCFamC1F 813. I refer to, rely on and repeat those reasons for present purposes.
It is however important to contextualise some background to the hearing on 15 September 2023:
(a)The hearing date (at 11.30 am on 15 September 2023) was allocated at a procedural hearing on 6 September 2023.
(b)At the procedural hearing on 6 September 2023:
(i)Discussions were had between bar and bench as to matters to be attended to, to ready the matter for hearing understanding that the hearing would be heard within relatively short compass.
(ii)No request was made by the mother’s senior counsel for the filing of written submissions.
(iii)In addition, the mother’s senior counsel enquired and was given assurance from the court that the hearing on 15 September commencing at 11.30 am would conclude by 1.00 pm.
In relation to the written submissions that were not received during the hearing on 15 September 2023, of significance:
(a)The hearing commenced at 11.38 am.
(b)The written submissions were filed by the mother moments before the commencement of the hearing (albeit that they bore a time stamp of 11.53 am “ACT time”, which would have been 11.23 am Adelaide time). They had not been considered by me prior to the commencement of the hearing, and nor had the father and/or his legal representatives had a chance to consider the same. It is against that backdrop that the father’s counsel objected to the court’s receipt of the written submissions.
(c)Having received an objection to the court receiving the written submissions, argument was heard and a ruling made.
(d)Importantly, during the course of that argument, senior counsel for the mother was given the opportunity to accept an adjournment of the hearing, with costs, to enable the court, the father and his legal representatives to consider the written submissions. That course however was rejected by senior counsel, and the hearing proceeded by way of oral submissions only.
(e)Submissions in relation to the costs application commenced at approximately 12.20 pm with me indicating that the time would be equally allocated between counsel for the father and senior counsel for the mother; a duration of approximately 20 minutes each.
As is clear from the ex tempore reasons, a number of matters of significance bore on the court’s refusal to accept the written submissions; significantly the lack of procedural fairness afforded to the father.
In all of the circumstances that have been outlined, it is difficult to understand how having refused an adjournment of the hearing, a complaint can now be made of the refusal to accept the written submissions.
It is also difficult to understand against that backdrop how it is now asserted that the time allocated to the hearing on 15 September 2023 was inadequate. This is particularly so given the hearing time afforded to the hearing in discussions with counsel at the hearing on 6 September 2023, coupled with senior counsel for the mother’s not seeking an adjournment of the hearing on 15 September 2023 for whatever reason, but particularly so after the court’s refusal to accept the written submissions coupled with an understanding that the hearing would conclude by 1.00 pm with 20 minutes allocated to each counsel for submissions.
The mother also complains that partial criticism was made of the mother’s late filing of the affidavit relied on by her for the hearing (by two hours and 26 minutes), when the father had “repeatedly” breached filing deadlines without consequence, with a schedule attached to Annexure “A”, detailing all of the occasions “during 2023 alone” that the father is said to have breached court imposed timeframes. This complaint however is novel in circumstances where of significance here, objection was taken to the late filing of the written submissions, requiring a ruling by the court.
Whilst the mother may now complain that she has been treated differently to the father, a number of observations might be made:
(a)It is difficult to understand if indeed over the course of the proceedings the father was given preferential treatment as alleged by the mother in circumstances where the schedule prepared by the mother’s legal representatives only outlines the alleged breaches by the father and not the mother.
(b)It is for the parties to raise an objection relating to the late filing of material. Where an objection is taken (as occurred here), the court is required to rule on the same, on the merits of any such application. It is accepted that forensic decisions are made by a party and their legal representative about whether to object to the late filing of material taking into account a range of factors including but not limited to any prejudice to the parties. These forensic decisions are not ones that the court is, nor should be privy to.
(c)Where no objection is taken, breaches of court orders and/or procedural requirements prescribed by the rules invariably pass without consequence to the party in breach. Where that has occurred, it is inappropriate for either party to keep a score card of all such breaches over the life of lengthy litigation (such as these proceedings) and then deploy the same to attack the conduct of the judicial officer so as to ground an application for apprehended bias.
For all of the reasons identified, and in light of the legal principles earlier discussed, it is difficult to see how the matters argued in 1.1 can ground an apprehension of bias.
Permitting the father’s solicitor to withdraw on the eve of the resumed trial on 7 August 2023 (1.2)
To understand the conduct complained of at the hearing on 7 August 2023, it is important to contextualise that hearing, in particular those matters set out in Garwood & Shipton (No 7) [2023] FedCFamC1F 935 at [9(j)] and [9(k)] set out at [6] above.
The application filed by the mother seeking to restrain the father’s solicitor and the firm of solicitors representing him arose in relation to conduct of the father’s then solicitor. While the concerns in relation to the former solicitor’s conduct are numerous and varied, of significance, the principal concerns stem from matters relating to an alleged taxation fraud on the part of the father It is the mother’s assertion that the father’s then solicitor was complicit in that alleged taxation fraud.
It would be trite to observe that allegations in relation to the professional conduct of the father’s then solicitor are serious and have the potential to have far-reaching consequences, including but not limited to matters concerning her ability to practice.
Importantly, these matters are live ones in the context of the final hearing. That final hearing is part-heard. The mother is thus far the only witness to have given evidence. The court may or may not consider it appropriate in due course to make findings about these matters. However, to date, no such findings have been made, nor are they able to be made at this stage, in the absence of hearing all of the evidence.
At the commencement of the hearing on 7 August 2023, and prior to the father terminating his instructions to his then solicitors, senior counsel instructed to appear for the father’s former solicitor submitted:
[MR AU]: … I’m not instructed to make any admissions on the part of [Ms Y] in relation to any of the allegations against her, but in the immediate issue of whether [Ms Y] can or should remain a solicitor on the file doesn’t depend on the correctness of those allegations, but on an objective assessment. [Ms Y] is in a position to indicate that she considers that in the circumstances she should not continue to act for the applicant. Your Honour asked is [Ms Y] off the file. I think formally the answer to that is “no”, but she would seek an order, and I think the appropriate order would be under rule 8.04(1)(b) of the Family Law Rules…[5]
[5] Transcript 7 August 2023, p. 3 lines 29-36.
Having heard those submissions the following exchange between myself and senior counsel for the mother took place:
HER HONOUR: All right. Thank you. I might just turn to Mr Cox next briefly, and then I will come to you, [Ms AL]. Mr Cox, it seems that, without admission and without engaging in the issue, before me at least, [Ms Y] has made a decision to withdraw from the file. The balance of the application, and I’m aware – it was brought to my attention this morning – that an amended application was filed yesterday. That means not technically until this morning, but it has been amended to restrain [Ms AL] as well.
MR COX: Yes.
HER HONOUR: But it also included a restraint on the firm generally. Now, [Mr AU] has been careful to indicate to me that the position at the moment at his client’s end is only that [Ms Y] has withdrawn, not the firm.
MR COX: Yes.
HER HONOUR: So, what’s the position that you’re in, just as a summary? I don’t want to hear full submissions just yet.
MR COX: Yes. Well, as to [Ms Y] withdrawing mid-trial, which is – that’s what this is – in our submission there should be more than simply a statement from [Mr AU], from my learned friend from the bar table, given the disruption it would cause. It’s not sufficient just to say - - -
HER HONOUR: She hasn’t just withdrawn though, she has withdrawn because she is – it’s responsive to the application that has been filed.
MR COX: Well, but if there’s no admission that any issue was raised, then why can’t she continue. She has to, in our submission, really address the merits somewhat before she should be permitted to withdraw.
HER HONOUR: Why does she – why does she need to address the merits? She might take the view, I don’t know, that it’s a side issue that she doesn’t want to distract from the litigation and so that’s why she’s withdrawing.
MR COX: Well, it’s a matter for your Honour. That’s all I would seek to say on that. As to the firm, well, the issue doesn’t arise unless they want to try to act for her. In some instances, sometimes a person at a firm, an employee, might be restrained. One of the cases we refer you to, that happened, but the firm was allowed to continue. We wanted to make it clear that that wasn’t acceptable in the circumstances and we would seek - - -
HER HONOUR: So, you would press the restraint in relation to [AV Lawyers] as well?
MR COX: No, we wouldn’t today, if they don’t seek to represent. It depends how their retainer works, or whether they’re intending to act, but if they’re not intending to, we wouldn’t seek an order. If he intends to engage other solicitors, not [AV Lawyers], then we wouldn’t press the order today.[6]
[6] Transcript 7 August 2023, p. 5 line 36 to p.6 line 39.
Later in the hearing, and having been asked by senior counsel for the father for an adjournment of a week to enable both herself and the firm of solicitors to take their own advice about the applications made to restrain each of them, the following exchange took place between with senior counsel appearing for the father’s former solicitor:
HER HONOUR: [Mr AU], in terms of [Ms Y], I’m not inclined today to release her. That might be something obviously that I do next week, but I’m not inclined to take that position just yet.
[MR AU]: Yes. If the court pleases. I think from her point of view she will not actively be involved in advising the applicant, so of course - - -
HER HONOUR: Yes. She’s on record that she’s in a holding pattern, I think, is how I might describe it.
[MR AU]: Yes. One possibility is if the applicant instructs different solicitors and they file a notice of acting, that probably solves all of the problems. Anyway, that - - -
HER HONOUR: That will deal with it, yes, yes. That might happen between now and next Monday.
[MR AU]: Yes. Ultimately the first question is what does the applicant wish to do because it’s within his power to simply go to a different firm and then the whole issue with [AV Lawyers] falls away, I think, but I’m not - - -
HER HONOUR: That’s why I’m reluctant to do anything just yet. I think, to be fair, not only is [Ms Y] entitled to some considered advice as to what she does, but the firm is as well, as is [Ms AL], but equally, [Mr Garwood] is entitled to consider his position and the implications of the various options available to him. So, that’s why I’m reluctant to do anything formally today, other than simply adjourn the matter.
[MR AU]: I understand. Could – if your Honour is prepared to stand the matter over for half an hour – I’m not promising that we will have a clearer position then, but it’s possible that we might, in which case we won’t make much more progress, but there might be one or two steps further forward.
HER HONOUR: All right. All right. I have no difficulty with that, so I will hold the matter in the list. I’m happy to come back onto the bench, say, at 11, it’s a little over half an hour, and we will see where we’re at, at that juncture.[7]
[7] Transcript 7 August 2023, p.10 lines 12-47.
When the hearing resumed, the court was advised that the father had terminated the instructions of both his former solicitor and the firm of solicitors. Accordingly, all questions relating to the conduct of the father’s former solicitor and whether leave would be given for her to withdraw became otiose.
Moreover, the comments about which complaint is now made were carefully couched that the former solicitor “might” take the view that the issues relating to her were a “side issue” that she did not wish to “distract” from the substantive litigation. The use of the word “might” recognises that any number of explanations for the former solicitor’s withdrawal were possible, and that no concluded view had been formed (nor could it have been formed) in that regard.
When the full exchange from the hearing is understood, together with the context in which it took place it is difficult to understand how it might lead to a perception which grounds an apprehension of bias with reference to the relevant legal principles.
Comments made at the hearing on 7 August 2023 (1.3)
Further complaint has been made by the mother about comments that I made at the hearing on 7 August 2023.
Again, it is important to understand the full context in which those comments were made; importantly an application having been filed on the eve of the resumption of a part-heard trial, which had three weeks of sitting days allocated.
The transcript of the hearing reveals that the full exchange with senior counsel for the mother made it clear that the timing of the application and the impact it would have on the final hearing from the perspective of the allocation of court resources was the principal concern.
HER HONOUR: All right. Mr Cox, I’m now being asked to adjourn the matter for a week to enable, I think, advice from various sources, the firm’s own advice, [Ms AL] obtaining advice, and it may be that [Ms Y] wants to consider her position further. Is that application for an adjournment something that’s opposed or is it agreed to?
MR COX: No, I don’t think I – I don’t know that we can oppose that.
HER HONOUR: All right. I’m troubled by the late filing of the application and the consequential effect to the trial listing. I’m not sure what will come of that ultimately, but I am deeply, deeply troubled that it was filed so late in the day on the eve of trial, I’m deeply troubled by that.
MR COX: Yes. Well, I think when your Honour reads our submissions, it will be our submission that we’re deeply troubled with respect from the fact that [Ms Y] continued to act after February 2019. She should have been off - - -
HER HONOUR: I’ve read your original submissions, I read them on Friday.
MR COX: Yes.
HER HONOUR: I don’t know what the amendments – I suspect they relate to [Ms AL], not to [Ms Y], but I’m not sure.
MR COX: Both.
HER HONOUR: But I understand why the application has been filed, I make that clear, and I’m not making any comment on the merit of it or otherwise, but the late filing of it is really concerning given we were trundling along ready to start, resume three weeks of trial.
MR COX: Yes, and the primary responsibility for that rests on [Ms Y] and [Ms AL], and that’s why we’ve addressed that in our submissions.
HER HONOUR: All right. We will see where we end up with all of that, but it seems that the application to adjourn is not opposed.
MR COX: Yes.[8]
[8] Transcript 7 August 2023, p.9 lines 7-44.
Again, when the full context of the hearing is understood, together with the entire context in which the comments were made, it is difficult to understand how these comments might ground an apprehension of bias with reference to the relevant legal principles.
“Aggressive attitude” at the hearings on 7 and 14 August 2023 (1.4)
The conduct complained of relates to two hearings in the proceedings; the hearing on 7 August 2023, already referred to, together with a hearing on 14 August 2023. However, Annexure “A” only articulates one exchange during the hearing on 7 August 2023 said to have been “aggressive”, and otherwise there was no articulation of any specific exchange from the hearing on 14 August 2023, nor was there any generalised articulation made of the concerning conduct in relation to both hearings. The conduct complaint was not illuminated any further in oral submissions. Accordingly, consideration shall be limited to the identified conduct.
Again, it is important to contextualise the full exchange in which the comments fell.
HER HONOUR: All right. Mr Cox, can I just ask, there’s a team of people with your client and your instructor. Who are they? Who’s present in the body of the courtroom with your client?
MR COX: Well, your Honour, I don’t feel comfortable answering that, to be honest, with respect, your Honour.
HER HONOUR: Why not? Why not?
MR COX: Because it’s contrary to my professional obligations. Deane J addressed this in one case. It’s inappropriate for counsel to ask who are persons present in the public court, but I - - -
HER HONOUR: Well, I want to be satisfied that none are potential witnesses. That’s the reason I’m asking the question.
MR COX: Well, your Honour, it would be better if – well, your Honour, I’ve never been asked to identify persons in the courtroom before and I don’t feel comfortable, with respect, doing that. If your Honour wishes to ask, your Honour can do so directly, but I consider it’s - - -
HER HONOUR: Well, it’s not uncommon in this jurisdiction for people in the courtroom to be identified. I want to be satisfied that there are no witnesses, potential witnesses, in the courtroom and that’s the purpose of my question.
MR COX: Well, if your Honour – we wouldn’t oppose your Honour making an order as to witnesses and then we’re assured that anyone who’s a potential witness be, you know, not present in court.
HER HONOUR: I’m a little flummoxed, but, in any event, I will hold the matter till 11.
MR COX: If your Honour pleases.
HER HONOUR: I expect an assurance that none of the persons present are witnesses when we come back, thank you. All right. Thank you. I will adjourn the court.[9]
[9] Transcript 7 August 2023, p.11 lines 3-39.
I have additionally had recourse to the recording of the hearing and the exchange identified. I do not accept that there was anything aggressive in the exchange. The exchange was entirely calm, there were no raised voices, there was no forcefulness. Merely an enquiry was made of counsel, the enquiry was rebuffed, and there was no return to the matters raised over the course of the balance of the hearing.
When the entire context in which the comments were made (particularly in terms of a part heard final hearing), and understanding that there was nothing that could remotely be categorised as aggressive in the exchange, it is difficult to understand how these comments might ground an apprehension of bias within the relevant legal principles.
Criticism of the late filing of applications by the mother (1.5)
The conduct complained of in this instance relates to alleged “heavy criticism” made of late filed applications by the mother. Whilst not articulated in Annexure “A”, nor in oral submissions, and doing the best that I can to understand the conduct complained of, this complaint appears to relate to comments made in the reasons delivered on 3 November 2023 in relation to the cost order made that day.
So far as an any attack on the reasons given for judgment are concerned, I do not consider that I need to weigh into those matters as part of these reasons, other than to identify that if the reasons are infected by errors of fact or law, then the appropriate forum for such complaint lays with the appellate court.
However, if I am wrong about those matters, as is clear from the reasons, specifically at [11] and [46],[10] criticism was made of the mother’s conduct in the litigation in the context of the cost application that fell for determination, as it was properly relevant to the court’s consideration of whether to make an order for costs pursuant to those factors prescribed by s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”), and in particular s 117(2A)(c).
[10] Garwood & Shipton (No 7) [2023] FedCFamC1F 935 at [11] and [46].
Accordingly, it is difficult to understand how this conduct could ground an apprehension of bias with reference to the relevant legal principles.
Identifying the applications filed by the mother before the hearings in August 2023 as ones to be relied on at those hearings (1.6)
The conduct complained of in this instance is again difficult to pinpoint from Annexure “A” and the oral submission, but again doing the best that I can, it presumably relates to something in the reasons delivered on 3 November 2023, although, again, that is not clear.
Understanding this complaint to be one relating to the reasons for judgment, I make the same comments earlier made as to the appeal process being the appropriate forum to address the reasons for judgment.
Whatever the case may be, the reality of the applications filed by the mother on the eve of the resumption of the part heard trial on each 3 August 2023 as amended on 6 August 2023, together with that filed on 14 August 2023 (as discussed at [8] above), were ones that needed to be dealt with prior to the resumption of the part-heard trial, and they had the effect of an adjournment of the part-heard trial.
Understanding these matters it is not only difficult to understand the basis of the concerns raised, but importantly it is impossible to see how the conduct (whatever it might be) could give rise to any apprehension of bias with reference to the relevant legal principles.
Ignoring the mother’s evidence and submissions of counsel at the hearing on 15 September 2023 (1.7 and 1.8)
The conduct complained of in this instance again appears to be a complaint in relation to the reasons delivered on 3 November 2023. I accordingly repeat those matters earlier identified as to the appellate process being the appropriate forum to challenge the reasons.
However, a number of comments can be made about this conduct complaint:
(a)To the extent that it is a repetition of those matters raised in 1.1 of Annexure “A”, true it is that the written submissions were not received by the court at the hearing on 15 September 2023, it cannot however be said that the submissions of senior counsel at that hearing were ignored.
(b)Rather as observed by me during the hearing of this application, it was apparent that at the hearing on 15 September 2023, senior counsel for the mother appeared to read verbatim from the written submissions that had been prepared. Whether this was actually the case or not however is irrelevant.
(c)That is because senior counsel for the mother made oral submissions and those submissions were not ignored. Indeed, specific reference was made to matters raised in the oral submissions throughout the reasons together with specific reference to the submissions at [44]-[45].[11]
(d)In addition, specific reference was made in the reasons to the material before the court for the purposes of the hearing and to which regard was had in the reasons, that included numerous affidavits filed by each of the parties.
[11] Garwood & Shipton (No 7) [2023] FedCFamC1F 935 at [44]-[45].
In all of those circumstances it is again difficult to understand how this complaint could give rise to an apprehension of bias with reference to the relevant legal principles.
Fixing costs in determining the costs application (1.9)
The conduct complained of in this instance again appears to be a complaint in relation to the reasons delivered on 3 November 2023. I therefore again repeat my earlier comments about the appellate process being the appropriate forum to deal with those matters.
However, again, this is a complaint which is difficult to categorise as one that could ground an apprehension of bias.
The quintessential task required of the court in determining the father’s application for costs was to consider s 117 and s 117(2A) of the Act. These matters were considered in the reasons.
Having determined it appropriate to exercise discretion and make an order for costs in favour of the father, and in the face of an application that costs be assessed on an indemnity basis, it was necessary to proceed to consider the basis upon which costs were to be assessed.
As it turned out, an order for costs calculated on an indemnity basis was not made, and instead costs were fixed at amount of less than half that which was claimed, an outcome entirely permissible pursuant to r 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
It is therefore again difficult to conceive how this complaint could therefore give rise to any apprehension of bias with reference to the relevant legal principles.
Directing the mother to confer with the father’s counsel at a hearing in February 2023 (1.11)
The conduct complained of in this instance relates to events which took place in February 2023.
It is relevant that no complaint was made at about these matters for a period of almost a year; importantly the vast majority of that time being a period during which the wife has been represented. This significant delay alone is enough to dismiss this alleged conduct concern.
However, even if I am wrong about this, and it is part of an accumulation of conduct which forms the basis of complaint, for the reasons that follow I do not consider that it can ground an apprehension of bias.
During oral submissions it was not clear which particular hearing(s) in February 2023 were of concern to the mother. Whilst there has been no particularisation of the timing of the actual complaint made and the hearing(s) captured by the complaint, again, doing the best that I can, it appears that the conduct arose during a hearing on 28 February 2023. I have come to this conclusion as:
(a)There were four separate hearings in February 2023;
(b)The mother was represented at the first hearing on 1 February 2023;
(c)The mother was not represented at the balance of the hearings, being those on each 15 February, 16 February and 28 February 2023;
(d)There is a reference in the terms of 1.11 to the affidavit filed by the father’s former solicitor on 17 February 2023, and the late filed outline on 27 February 2023; and
(e)The only hearing occurring in February after those two dates referred to in 1.11 was on 28 February 2023.
At the hearing on 28 February 2023, the mother was self-represented. I accept that this hearing took place within relatively close proximity of the first tranche of the final hearing in September 2022, where the mother had been the subject of cross-examination by the father’s senior counsel, who also appeared for the father at the hearing on 28 February 2023. It is also apparent from the transcript that during the hearing on 28 February 2023, there was some limited cross examination of the mother.
With reference to the transcript from the hearing on 28 February 2023 it is understood that:
(a)The father had filed written submissions for the hearing on the same day as the hearing.
(b)It is not correct to submit that there was no criticism of the father with respect to the late filing of documents for that hearing, when comment was made about the same at the outset of the hearing.[12]
(c)Indeed the hearing itself was adjourned to enable the mother to be provided with documents filed late by the father so that she could have regard to them and form a position about them.
(d)Importantly, enquiries were made, in the context of the late filed material as to the applications to be pressed by the father that day.[13]
(e)Thereafter I went on to make comment to the father’s senior counsel about the merits of the father’s application to have the mother psychiatrically assessed, the effect of which was that I did not consider that the same had merit.[14] These comments resulted in the application not being pressed that day (or at all) by the father.
[12] Transcript 28 February 2023, p. 2 lines 18-20 and 38-39.
[13] Transcript 28 February 2023, p. 2 lines 38-45.
[14] Transcript 28 February 2023, p. 3-4.
Importantly, when regard is had to the transcript, it is clear that there was no direction that the mother confer with the father’s legal representatives when the matter was stood down for the mother to read the recently filed material, and to allow each of the parties to consider their positions with respect to the issues before the court that day.
The following exchanges and comments directed to the mother prior to the adjournment make that clear:
HER HONOUR: - - - as a course? So I’m going to stand it down, give you a chance to read the outline. You can have a think about what position you want to promote to me so that we can ensure that my orders are complied with in a way that you’re comfortable, is what I’m trying to get at. If it can’t be done that way, then I will stop that process. I will hear submissions from [Ms AL], then from you, and I will make a decision as to what’s to occur; all right?
[MS SHIPTON]: I have done a response, your Honour. I just couldn’t upload it at the time last night.
HER HONOUR: All right.
[MS SHIPTON]: But I - - -
HER HONOUR: That’s all right.
[MS SHIPTON]: I have printed them.
HER HONOUR: All right. Let’s just see where we get to - - -
[MS SHIPTON]: Okay.
HER HONOUR: - - - when I come back.
[MS SHIPTON]: Thank you.
HER HONOUR: So I’m going to give you a chance to read that outline - - -
[MS SHIPTON]: Yes.
HER HONOUR: - - - gather your thoughts, and then I will recall the matter.
[MS SHIPTON]: Okay.
HER HONOUR: All right?
[MS SHIPTON]: Thank you.
…
HER HONOUR: All right. So I will stand it down for you to consider your position on both sides, and we will come back at, say, quarter to. Is that sufficient time?
[MS AL]: Thank you, your Honour.
HER HONOUR: [Ms Shipton]?
[MS SHIPTON]: Thank you.
HER HONOUR: All right. Thank you. I will adjourn the court.[15]
[15] Transcript 28 February 2023, p.7 line 43 to p.8 line 33 and p.10 lines 36-45.
In all of those circumstances, and given the factual inaccuracies in the submission put, it is difficult to comprehend how the events at the hearing could give rise to an apprehension of bias.
If, however, I am wrong about the timing of the hearing, and if it is the case that a direction was given to the mother that she confer with the father’s legal representatives at either of the hearings on 15 or 16 February 2023, this is an unfortunate reality that occurs when a litigant is self-represented. To suggest that the same could possibly ground an apprehension of bias is entirely meritless.
CONCLUSION
Having found no merit in any of the conduct complaints made by the mother, it follows that the two-stage test required by Ebner fails.
For all of the foregoing reasons, the application that I disqualify myself shall be dismissed.
I shall make an order that the proceedings be listed for a Case Management hearing to manage the numerous extant interlocutory applications, and the allocation of hearing dates to conclude the part-heard trial.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 27 May 2024
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