GRANT & AIDEN

[2017] FamCA 286

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN [2017] FamCA 286

FAMILY LAW – COURTS AND JUDGES – Disqualification for bias – application by the mother that the trial judge be disqualified for actual bias-actual and apprehended bias considered-bias is claimed due to trial judge not allowing mother to ask questions going to the matters in evidence in relation to contravention proceedings already determined-actual bias claimed due to trial judge not permitting evidence to be adduced prior to consent orders being made in relation to the sexual relationship between the father and mother  – where the mother has failed to identify anything said or done by the trial judge that might indicate that she has decided the proceedings on anything other than its factual or legal merits –orders made refusing the mother’s application.

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Minister for Immigration v Jia Legeng (2001) 205 CLR 507

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 10 May 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 4 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Trapski Family Law

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Colla

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

1. The mother’s oral application for disqualification made on 4 May 2017 be dismissed.

2. All extant applications for final orders be listed for hearing part heard before Justice Macmillan at 10.00 am on 16 May 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Aiden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5094 of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter was listed for final hearing before me commencing on 20 March 2017. Late on day six of the hearing the mother, who is the respondent in the proceedings, applied for me to recuse myself from the further conduct of the proceedings on the grounds of what she submitted was actual bias.

2. On the first day of hearing, the mother applied for leave to proceed with her application on an undefended basis for a number of reasons, including that the father had not filed his Amended Application in the appropriate form and that the Independent Children’s Lawyer had filed material late. That application was dismissed. Towards the conclusion of the first day of hearing the mother foreshadowed that she would be making an application for an adjournment on the basis that although her appeal against the findings made by Cronin J on 22 March 2016 that she had contravened the orders made 4 February 2011 had been heard, judgment had not been delivered.

3. On day two in circumstances where I had time available in a matter of weeks, I determined that the matter should be adjourned in the hope that the Full Court would by then have delivered its judgment and to give the mother a further opportunity to comply with the orders for her to file the affidavits of evidence in chief of her witnesses or if those witnesses refused to provide their evidence by affidavit, to file and serve witness statements. Although some procedural matters were addressed, including some evidentiary issues, the father had not yet formally opened his case.

4. The matter was next listed for hearing before me on 26 April 2017. On that date counsel for the father opened his case and the father commenced his evidence. Prior to him doing so and I, having re-read the affidavits of the parties and their respective witnesses in anticipation of the hearing, gave the mother the opportunity to address me as to why I should not strike out paragraphs 3 to 56 inclusive of her trial affidavit filed 13 January 2017 which set out in significant and explicit detail the history of her sexual relationship with the father. Having heard submissions from the mother, counsel for the father and the Independent Children’s Lawyer, I struck out those paragraphs of the mother’s affidavit.

5. The matter has without doubt been complicated by the fact that despite the objections of counsel for the father and the Independent Children’s Lawyer, I permitted the mother to conduct her case by videolink from Brisbane. This was in circumstances where I could otherwise see no realistic alternative way of making it possible for the mother, given what she asserts are her parlous financial circumstances,  to participate in the proceedings unless I acceded to her application for a hearing by videolink. Problems arose during cross-examination in relation to orders and other documents on the Court file when counsel for the father sought to put to the mother to refresh her memory when she said she could not remember previous proceedings, or more importantly, the orders made during those earlier proceedings. As there was a 10 day break in the proceedings, counsel for the father agreed to prepare a bundle of the court documents which he said he would be putting to the mother during cross-examination. Although this was done for the mother’s benefit and to facilitate the conduct of the proceedings, the mother objected to the court book prepared by counsel for the father and forwarded to both the mother and the Brisbane Registry of the Court.

6. On day six when counsel for the father attempted to continue his cross-examination, putting to the mother what was in effect part of a chronology of the history of the proceedings based upon the orders in the court book, the mother objected to having to answer questions in relation to those earlier proceedings because she said he was asking questions about the contravention proceedings when she had not been permitted to do so. When I did not allow her objection and asked counsel for the father to proceed, the mother thereafter continued to refuse to answer the questions and said “it is not relevant…it is just not relevant.” Although I encouraged the mother to answer the questions she was asked, she would not do so and it was at that point that she indicated that she wished to make an application for me to recuse myself.

7. Doing the best I can based upon the mother’s submissions, it is her case that there has been actual bias based upon the following matters:

   ·That unlike counsel for the father, she had not been permitted to ask any questions in cross-examination of the father regarding the contravention proceedings determined by Cronin J on 22 March 2016, the subject of the appeal which was dismissed by the Full Court on 24 March 2017; and

   ·Unlike counsel for the father, she was not permitted to adduce evidence of matters prior to 2011 when she consented to final orders including orders that the child spend unsupervised time with the father. This included her complaint about the evidence of her sexual relationship with the father which the mother complained was not struck out until the third day of the hearing, immediately prior to the opening of the father’s case. 

Legal Principles

1. A claim of bias usually takes one of two forms. The first of those is a claim of actual bias, which requires the applicant seeking an order that the judicial officer be disqualified to prove that that judicial officer has approached the issue being determined with a closed mind or has prejudged the matter.  A finding of actual bias is determined by reference to evidence of the actual views and/or behaviour of the judicial officer against whom a claim is made.  In Minister for Immigration v Jia Legeng (2001) 205 CLR 507, 531-2 Gleeson CJ and Gummow J said in relation to actual bias as follows:

   [71]…Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

   [72]…The state of mind described as bias in the form of pre-judgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any pre-disposition or inclination for or against an argument or conclusion...

   …

   [78]…In considering whether conduct of a decision-maker indicates pre-judgment, or in some other respect constitutes a departure from the requirements of natural justice, the nature of the decision-making process, and the character of the person upon whom parliament has conferred the decision-making capacity, may be of critical importance…

2. The evidence of actual bias must be clear and not based upon a suspicion of bias or the possibility that a decision may be biased. It is generally acknowledged that actual bias is difficult to prove.

3. The evidence required to establish a claim of apprehended bias, the basis upon which applications are more commonly made, is considerably less difficult to prove. The test of whether a judicial officer should be disqualified on the basis of apprehended bias is, as articulated by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson (2000) 201 CLR 488, 492 [11] (“Johnson”), “...whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide”.

4. In Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-345 [8] (“Ebner”) Gleeson CJ, McHugh, Gummow and Hayne JJ said as follows:

   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 or 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.  (Citations omitted)

5. In Johnson the plurality of the High Court said at page 493 as follows:

   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 developed to take into 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. 

   (Citations omitted)

Discussion  

1. The proceedings before me are parenting proceedings in relation to the child of the marriage who is now 10 years of age. The child has been living with the father since the execution of a recovery order in early June 2016 and the mother is seeking orders for the child to be returned to her care. The father seeks orders for sole parental responsibility and for the child to continue to live with him.

2. The proceedings must be conducted in accordance with the principles in s 69ZN, Division 12A of the Family Law Act 1975 (Cth) (“the Act”). Of particular relevance for the purposes of the mother’s application for disqualification is the second of those principles, which requires the Court to actively direct, control and manage the conduct of the proceedings.

3. Section 69ZT provides that certain specified sections of the Evidence Act 1995 (Cth) (“Evidence Act”) do not apply unless the Court determines otherwise. Although I have not made orders applying any of those rules of evidence, in any event the rules that do not apply do not include the sections of the Act in relation to relevant evidence or sections 135 or 136 of the Evidence Act which give the Court power to limit or exclude evidence if the probative value of that evidence is substantially outweighed by the danger that the evidence might be:

   ·Unfairly prejudicial to a party; or

   ·Misleading or confusing; or

   ·Cause or result in undue waste of time.

4. Section 69ZP of the Act provides that the Court may exercise a power under Division 12A of the Act either on its own initiative or at the request of one or more of the parties.

5. Although the mother in this case asserts that there has been actual bias for the purposes of the determination I must make, I have assumed based upon the way in which she put her case that she may not fully understand what she is required to prove or the distinction between actual and apprehended bias. That being the case, I propose to address both forms of bias.

6. The mother’s case as to bias, whether that is actual or apprehended bias, arises from what she submits is counsel for the father being permitted to ask questions in cross-examination in relation to matters that arose prior to the Court making final parenting orders by consent in 2011 and in relation to the contravention proceedings before Cronin J in February and March 2016. This is in circumstances where she submits she was not permitted to either give evidence in chief or cross-examine the father in relation to these issues. Whilst the mother opposed the Court striking out those parts of her evidence relating to the parties’ sexual relationship, it was only after the Court did not uphold her objection to having to answer questions asked by counsel for the father in relation to the history of the proceedings and the orders made in those proceedings, that she either submitted that the decision to strike out the material itself was biased and would lead to a conclusion that the Court would not approach the case with an open mind or that a fair minded observer would conclude that was the case.

7. I will turn first to my evidentiary ruling on day three of the hearing. The parties in this case commenced their relationship in 2004, married in late 2005, and separated in September 2007. Not only have the parties now been separated for almost 10 years, since separating the parties have been engaged in proceedings on a number of occasions and the mother has consented on more than one of those occasions to orders which provide for the child to spend unsupervised time with the father. Not only has the mother previously consented to orders that the child spend unsupervised time with the father, it is her case in the proceedings before me that she should spend half of the school holidays with the father on an unsupervised basis.

8. It was on that basis that I observed that the mother’s evidence as to her sexual relationship during the parties’ relationship was of marginal, if any, relevance and would be unlikely to assist in my determination of the issues in dispute in the current parenting proceedings. The mother also indicated that because she was a victim of family violence, she did not propose to put this evidence to the father in cross-examination. This would have left the father with no opportunity to answer these allegations other than by way of his evidence in chief.  

9. I concluded on the basis of the marginal, if any, relevance of that evidence and after weighing up the probative value of that evidence against the possible prejudice of that evidence to the father’s case and the likely waste of time that would result because of the father having to respond orally to that evidence, that I should strike out that evidence. Procedural fairness is a two way street and there are two teams on the metaphoric level playing field. Whilst I, rather than the other parties, raised the question of the admissibility of this particular evidence, not only must I ensure that procedural fairness is afforded to both parties, Division 12A requires me to actively manage the proceedings and envisages that being done on the Court’s initiative.

10. Whilst the mother complains that she has not been permitted to adduce any evidence of events prior to the making of the consent orders on 4 February 2011, that is not the case. Notwithstanding the orders made 12 October 2016, which made it clear that the parties would not be permitted to rely upon previous affidavits without leave, the mother in her case outline sought to do just that.  Ultimately I gave the mother leave to rely upon her affidavit filed 27 June 2016.  Although counsel for the father and the Independent Children’s Lawyer initially objected to some of the mother’s evidence and the documents annexed to that affidavit, they ultimately took a pragmatic approach, save and except in relation to two of the attached documents which I struck out, and indicated that they would leave it to the Court’s discretion to determine the relevance of and weight to be afforded to this evidence. The fact that I did not strike out all of the evidence of matters prior to the February 2011 consent orders is contrary to both the mother’s assertion that the Court was not open to persuasion or that a reasonable lay observer would believe that to be the case.  

11. The mother’s other complaint was that I upheld counsel for the father’s objections about her asking the father questions about anything touching upon the contravention applications and in particular the most recent contravention proceedings before Cronin J, but allowed counsel for the father to put similar matters to her. However, as I observed when I disallowed the mother’s objection to answering questions about the previous proceedings and the outcome of those proceedings, the mother’s cross-examination went to the matters in evidence in those proceedings or was in relation to the matters that were the subject of those proceedings, whereas counsel for the father was relying upon the orders themselves rather than the facts upon which they were based. There was in my view a clear distinction and I ruled accordingly.

12. Significantly in my view the mother does not point to any conduct on my part or views I expressed which would lead the Court to conclude that I would not bring an impartial or unprejudiced mind to these parenting proceedings or that would suggest to a reasonable minded lay observer that I would not do so. The Court must manage the proceedings before it, including making rulings on the evidence and the reasonableness of any suggested apprehension of bias must be considered in the context of ordinary judicial practice. I am satisfied that a reasonable minded lay observer would understand that the evidentiary rulings were part of the proper management of the proceedings and do not suggest that I would not bring an unprejudiced mind to the determination of the proceedings before me.

13. The mother has not identified a logical connection, as referred to by the High Court in Ebner, between my rulings on the admissibility of her evidence  and “the feared deviation from the course of deciding the case on its merits”. In all of the circumstances, I propose to dismiss the mother’s application.

1. The parties have already confirmed their availability in the week commencing 15 May 2017, subject to the outcome of this application, and I propose to adjourn the matter to16 May 2017.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 10 May 2017.

Associate: 

Date:  10 May 2017