HALSTEAD & LEES AND ANOR
[2020] FamCA 187
•28 February 2020
FAMILY COURT OF AUSTRALIA
| HALSTEAD & LEES AND ANOR | [2020] FamCA 187 |
| FAMILY LAW – COURTS AND JUDGES – DISQUALIFICATION APPLICATION – Apprehended bias – Objective test – Waiver of objection – Where orders were made permitting the mother to travel overseas with the children – Where the mother did not travel with the children on the first occasion orders were made – Where the mother travelled with the children on the second occasion orders were made – Where the mother has since failed to return the children to the jurisdiction – Where the application was made after the mother breached the orders – Where the father argues a hypothetical fair minded observer might now reasonably apprehend that judicial conduct will not be impartial and that matters will not be decided on merit – Apprehended bias not established – Application dismissed |
| Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 |
| APPLICANT: | Mr Halstead |
| 1st RESPONDENT: | Ms Lees |
| 2nd RESPONDENT: | Ms Halstead |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 4768 | of | 2017 |
| DATE DELIVERED: | 28 February 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 13 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lindsay |
| SOLICITOR FOR THE APPLICANT: | Angela Ferdinandy |
| COUNSEL FOR THE 1st RESPONDENT: | No appearance |
| SOLICITOR FOR THE 1st RESPONDENT: | Litigant in Person |
| COUNSEL FOR THE 2nd RESPONDENT: | Ms Lewis |
| SOLICITOR FOR THE 2nd RESPONDENT: | Douglas Hoskins Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hemsley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
That paragraph 1 of the father’s Application in a Case filed 28 January 2020 and the paternal grandmother’s oral Application for disqualification made on 13 February 2020 be dismissed.
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 Halstead & Lees 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 ADELAIDE |
FILE NUMBER: ADC 4768 of 2017
| Mr Halstead |
Applicant
And
| Ms Lees |
1st Respondent
And
Ms Halstead
2nd Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The proceedings before the Court relate to the future parenting arrangements for X born … 2013 and Y born … 2015 (collectively “the children”).
Mr Halstead (“the father”) and Ms Halstead (“the paternal grandmother”) seek orders that they have equal shared parental responsibility and that the children live with them.
Ms Lees (“the mother”) opposes the orders sought by the father and the paternal grandmother and prior to her removal of the children from the Commonwealth of Australia sought orders that the children live with her and effectively spend no time with the father or the paternal grandmother.
Currently before the Court is an Application in a Case filed by the father on 28 January 2020 seeking, inter alia, that I be disqualified from further involvement in the proceedings in terms of any trial or interlocutory hearing.
The competing applications of the parties and the substantive issues raised herein were listed for a lengthy trial commencing 20 April 2020. Consequent upon the mother’s removal of the children and her failure or refusal to return them to the jurisdiction, the trial and other ancillary applications have now been vacated.
BACKGROUND
By Application in a Case filed 28 September 2018 the mother sought orders that she be permitted to travel with the children to the United States of America (“USA”) for a period of 15 days during the month of December 2018.
The purpose of travel was to take the children to City R to attend her brother’s wedding. Ancillary to the application for travel, the mother sought a further order that she be the sole applicant and signatory for the issue of a passport for Y. The passport for X was current.
The mother’s application was opposed by the paternal grandmother and the father. However, if the children’s travel was allowed then the father sought that certain conditions should be satisfied namely, a security sum of $35,000 to be paid to the father’s solicitors’ trust account and an itinerary of travel to be provided.
Whilst there were other reasons for opposition to the proposed travel raised by the father and paternal grandmother, it was primarily based upon a fear that the mother would not return the children to the jurisdiction.
On 23 November 2018 orders were made which permitted the mother to remove the children to travel outside the Commonwealth of Australia for the purposes only of travel to the USA. The travel was subject to certain conditions including the security of the mother’s interest in a property at C Town.
The mother did not take up the opportunity to travel pursuant to the order. She did however obtain a passport for Y.
The father was of the view that the purpose of travel, being the purported wedding of the mother’s brother, was a sham.
In December 2018 the mother’s solicitors advised that the travel arrangements would be rescheduled based upon Y’s ill heath, a delay in the issue of a passport for Y and higher than anticipated travel and accommodation costs. The father filed an Application in a Case on 23 September 2019 seeking to restrain the removal of the children from Australia by the imposition of an Airport Watch List Order.
On 10 October 2019 the mother filed a Response to the father’s Application in a Case seeking an order to travel with the children to Thailand in January 2020. The competing applications of the parties were heard on 11 October 2019. Judgment was reserved.
By the Affidavit of the paternal grandmother filed 10 October 2019, the Court was advised that the father had been acquitted of the criminal charge relating to Mr B who was an associate of the mother.
The import of the evidence and assessment of the paternal grandmother of the mother’s evidence given in the criminal proceedings was to highlight that the mother may not have told the truth in respect of the circumstances in which the father and Mr B each sustained grievous injuries, that the mother’s relationship with Mr B was sexual as opposed to merely a friend or companion and that when taken together, there was a real and attendant risk that the mother may abscond with the children.
For the reasons as set out in the judgment bearing the citation [2019] FamCA 764 delivered 23 October 2019, the mother was permitted to remove the children to travel outside the Commonwealth of Australia for up to 14 consecutive days in the month of January 2020 for the purposes of travel to Thailand.
The mother’s travel was subject to various conditions including a security sum of $40,000 that remained in the mother’s solicitors’ trust account.
It was a further condition that the maternal grandmother accompany the children on all flights to and from Australia.
At [87] of the judgment delivered 23 October 2019 the following appears:-
I am entitled to bring to account that the mother complied with the earlier order allowing her to remove the children from the Commonwealth of Australia …
It is not controversial that the mother did not travel with the children to the USA.
Further applications, including the father’s Application in a Case filed 13 December 2019 seeking that the order permitting the mother to remove the children for travel outside the Commonwealth of Australia be set aside, were listed for hearing on 17 December 2019.
Judgment bearing the citation [2019] FamCA 999 was delivered on 20 December 2019.At [20] of the reasons I accept that there was an error in my earlier finding that the mother had travelled with the children overseas and that they had been safely returned to Australia.
For the reasons given in the judgment, I did not interfere with the orders made on 23 October 2019 permitting travel.
On 16 January 2020 the father was able to confirm that the mother had not returned the children to the jurisdiction. On 17 January 2020 the father and paternal grandmother’s fears were confirmed by an advice from the mother’s solicitors that the children were no longer in Thailand.
The mother and the children remain at large and their whereabouts overseas is uncertain.
The father and the paternal grandmother are upset and distressed. The paternal grandmother joins with the father’s application seeking disqualification.
The Independent Children’s Lawyer (“ICL”) does not join in the application.
LEGAL PRINCIPLES
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [111], Kirby and Crennan JJ reiterated that:-
it is important to bear in mind the characteristics of modern litigation …
And at [175] of the judgment Callinan J says the following:-
This system [the docket system] has its disadvantages and dangers. On the one hand, the trial judge will be well educated in many of the details of the case on each side by the time that the hearing starts. But on the other hand, it may sometimes be difficult for the trial judge, apparently fully conversant with the facts and issues, not to have formed some provisional view at least of the outcome of the case.
At [176] his Honour continues:-
I mention these matters because in sum they may well incline a trial judge towards a degree of outspokenness of a kind to which he or she would not be inclined in a conventional trial on largely oral evidence. That this is so does not provide any excuse for the manifestation of apparent bias on the part of a trial judge but it may explain why a judge finds himself or herself speaking more candidly and strongly than he or she might otherwise do, or even have been able to do, in the past or in other jurisdictions. The question nonetheless remains whether the fair-minded lay observer might reasonably have apprehended that the judge might not be bringing an impartial and unprejudiced mind to the resolution of the questions he was required to decide.
(Footnotes omitted)
In British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, the majority comprising Heydon, Kiefel and Bell JJ set out the apprehended bias test at [139]:-
It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public’s perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.
(Footnotes omitted)
At [37] of French CJ’s judgment in British American Tobacco Australia ServicesLtd (supra) his Honour referred to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and identified that there is a two-step approach identified therein:-
The first is “the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”. The second is an “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”. In Ebner the constructed observer was the “fair-minded lay observer” concerned only with a reasonable apprehension of bias. The test is generally applicable to cases of asserted apprehended bias …
(Footnotes omitted).
In Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Mahoney JA observed at 438:-
In my opinion, four things emerge from the decision in Livesey and the cases which have succeeded it: (a) the disqualification of a judge for apprehended pre-judgment depends on form rather than substance; (b) whether there is an unacceptable appearance of pre-judgment is to be decided, not according to likelihood, but according to possibility; (c) it is to be judged, not according to what the court and the parties know, but according to the impressions of a lay person who does not know the facts; and (d) there will be an unacceptable appearance of pre-judgment if the judge has previously dealt with the issue of fact or credibility which is before him in the instant case.
In Kwan v Kang [2003] NSWCA 336 the test in Ebner (supra) and Johnson v Johnson (2000) 201 CLR 488 affirmed that the court should consider the nature and extent to which the appearance of impartiality should be determined:-
[77]Despite the importance of the appearance of justice being seen to be done, there is a strong need for courts to apply realistic criteria in considering whether a reasonable apprehension of bias has been established. This is particularly so when dealing with a disqualification application based on what is said to be pre-judgment by a judicial officer. This has often been stressed.
At [82]:-
While the test for apprehended bias by reason of pre-judgment is based on what may be regarded as a fairly low threshold of satisfaction, namely, “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind” to the issue, the element of reasonableness needs to be stressed. In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 Gaudron & McHugh JJ pointed out:
A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry.
The Court went further and said:-
[86]It is not unknown for judges to make findings on an interlocutory issue and to express those findings in a way that indicates that they have come to a final conclusion. If that conclusion is as to a significant issue on which the ultimate result of the trial depends, and further evidence is still to be led and final addresses are still to be made, the likely consequence is that the judge concerned will have to disqualify himself or herself.
[87]The reason for this is that a finding expressed in terms of finality, when made at an interlocutory stage, will usually give the impression that the judge’s mind is made up. If the judge’s mind is made up before evidence and final addresses are complete, it will mean that a conclusion has been unfairly arrived at. There is then likely to be an apprehension that, when the time comes to give final judgment, the judge might not be impartial or might be prejudiced against the party who was unsuccessful in the interlocutory judgment. It will then not merely be an apprehension that the judge will decide the case adversely against that party.
In Dunwell & Dunwell [2011] FamCAFC 2 Finn J considered that the test is objective and not subjective. Her Honour said:-
[51]When regard is had to the observations concerning modern judicial practice made by members of the High Court in Johnson (in the paragraph ([13]) which I earlier cited), I considered that his Honour’s questions and observations, when read in context, concerning the strength that the letter of 11 May 2009 appeared to give to the case for the restraining order against the wife’s solicitors, and the apparent reliance, at least at that stage, by the wife’s side only on her affidavit, did not exceed the bounds of legitimate questions and observations by a judge (as referred to in paragraph 13 of Johnson). In these circumstances, the fictional lay observer, whose position is to be understood in light of what is said in paragraph 13 of the High Court decision in Johnson, could not reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the case for the restraining order in relation to the wife’s solicitors. (See also the observations in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 of Gummow ACJ at [4] and Callinan J at [173] to [180].)
In the same decision Thackray J considered that an application for disqualification must be viewed against the pressure of litigation on a modern court faced with fiscal restraint and limits. His Honour said:-
[191]It is important to keep in mind that this was an interlocutory dispute in proceedings the trial Judge properly identified as having the potential to give rise to “satellite litigation”. As his Honour said, such litigation:
… uses a significant amount of court time. That means other cases waiting to be heard experience longer waiting times. In a time where the judicial resources of the Court are stretched enormously those waiting times become quite unacceptable to most litigants.
THE PROCEEDINGS
The future conduct of the proceedings is not limited to the hearing of the outstanding substantive application but now involves various applications that focus on determining the whereabouts of the children and seeking orders that may encourage or cause the mother to return the children to the jurisdiction.
There are now contempt and contravention proceedings issued against the mother and the maternal grandmother.
There are outstanding applications seeking the issue of subpoena or other orders to cause persons who are likely to be associated with the mother to give evidence as to the whereabouts of the children and also to consider aspects of the mother’s business and income which may enable the mother to remain out of the jurisdiction.
The gravamen of the father’s application is best conveyed at [2] of his counsel’s submissions:-
It is submitted however that as a result of the mother’s conduct since the making of Berman J’s Order permitting overseas travel to Thailand, there is a reasonable apprehension on the part of the hypothetical fair-minded observer that Berman J might not bring an impartial mind to bear on the adjudication of the issues arising in the determination of such applications.
The father’s counsel emphasised that the submission asserts apprehended bias and not actual bias. This submission should be considered against the import of [8] to [11] inclusive of the submissions, but in particular that:-
[11]the hypothetical fair-minded observer might reasonably apprehend that the Judge now has an interest in avoiding professional embarrassment by making parenting orders in the mother’s favour, that would have the effect of legitimising (in a non-juridical sense) the mother’s unlawful failure to return the children to the jurisdiction, and might not, therefore, decide subsequent applications for parenting orders, including the application for final parenting orders, without prejudgment.
Notwithstanding counsel’s protestations, I consider the concept of “an interest in avoiding professional embarrassment” to be an assertion that there is an apprehension of actual bias because by necessary implication it involves an apprehension that a particular course of conduct may well be embarked upon.
SUBMISSIONS
It is not unreasonable for the father to consider that I was in error in not making orders on 17 December 2019 that would have stopped the children leaving the Commonwealth of Australia.
The father does not however consider that any perceived misapplication of discretion is the basis of the application for disqualification.
The issue is that given that the mother has absconded with the children, at least for the foreseeable future, the father and paternal grandmother would be denied the ability to exercise parental responsibility and the care of the children even if their applications were successful.
It is argued that a hypothetical fair-minded observer would consider that the disillusionment with the Court process would manifest in a lack of confidence in judicial impartiality and raise the possibility that future applications may be decided other than on their separate merit.
The paternal grandmother pressed a separate application for disqualification and highlighted that it was independent of the father’s position, although counsel did not speak against the basis for the father’s submissions.
The paternal grandmother considered that there had been insufficient consideration of the matters set out in [23] to [24] of the paternal grandmother’s Affidavit filed 10 October 2019. It is also submitted that I gave insufficient weight to the summary of the paternal grandmother as to the basis upon which the father was acquitted. Counsel submitted that the evidence given in the trial in the Supreme Court of South Australia raised the inference that the mother and Mr B were romantically involved and it was their intention and purpose to murder the father. It was argued that this would be a basis to consider that the children were at extreme risk in the continued care of the mother.
The position of the paternal grandmother was similar to that of the father as set out at [13] of his Affidavit filed 23 September 2019.
The focus of the submission is the interpretation of my reasons for judgment delivered 23 October 2019 set out as follows:-
[78]The mother’s counsel raised some objection to the father’s affidavit in that it does not comprise evidence but rather, assertion, suggestion, opinion and argument. The contents, if untrue, may well be considered as scandalous or offensive.
[79]Ultimately, I did not strike out the affidavit but there is merit in the submission that the admissibility of its contents is suspect.
It was further submitted that there were “irregularities” in the manner in which the Court dealt with the mechanics of the hearing on 17 December 2019.
The mother attended the proceedings from a separate courtroom by video link. It was argued that this occurred without warning to the father or the paternal grandmother and as such, the arrangements must have arisen by reason of some separate communication with the Court.
The suggestion of direct communication with chambers is rejected. It appears that the mother made a request of the Registry Case Coordinators that she be given the accommodation of a secure room. The difficulty is that whilst secure, a secure room would not have enabled the mother to participate in the proceedings. Given the importance of parties being afforded the opportunity to participate in their own proceedings and the Court process, where the technology allows, reasonable accommodation is made.
CONCLUSION
It is not controversial that the father and the paternal grandmother did not agree with the Court’s decision on 23 October 2019.
It is acknowledged that the decision on 20 December 2019 rejecting the applications of the father and the paternal grandmother to stop the mother leaving with the children was the critical decision. However, for the purpose of the applications for disqualification, it is asserted that the hypothetical observer would bring to account and be cognisant of the chain of events commencing with the order of 23 November 2018.
That decision was not the subject of challenge by appeal.
It appears to be a concession by the father and the paternal grandmother that it is not an error in the exercise of discretion but rather, when the chain of events is considered in its totality, the spectre of apprehended bias is enlivened.
In Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232] the following is posited by the New South Wales Court of Appeal:-
the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.
Moreover, the hypothetical observer is to be considered as not “unaware of the way in which cases are brought to trial and tried” (Concrete Pty Ltd v Parramatta Design and Development Pty Ltd (supra) at [177]). I also consider that the hypothetical observer is not a person who is without knowledge of the Court and trial process, but would bring some consideration as to what may constitute a fair assessment.
CUMULATIVE EFFECT OF DECISIONS
There was no challenge by the father or the paternal grandmother to the orders made on 23 November 2018 and 23 October 2019. It is not argued that taken separately, the earlier hearings and the hearing on 17 December 2019 would found an application for apprehended bias, let alone actual bias. The complaint in respect of the outcome of each of the three hearings is that the exercise of discretion was misplaced.
The gravamen of the separate applications of the father and the paternal grandmother is in effect that they have lost confidence in the process and that a hypothetical observer might well consider the possibility that future applications will be determined other than on merit.
Detailed reasons for judgment were delivered in respect of each of the separate considerations of overseas travel for the children.[1] I do not consider that they are capable of providing the foundation for an application and would justify disqualification for apprehended bias.
[1] See Halstead & Lees and Anor [2018] FamCA 970; Halstead & Lees and Anor (No 3) [2019] FamCA 764.
No application for disqualification was brought following the hearing on 23 October 2019. It could be considered, that by then, any concerns that were raised following the orders of 23 November 2018 were made manifest by the decision on 23 October 2019 to permit travel subject to conditions. If by that stage of the proceedings, the cumulative effect of the father and paternal grandmother’s contention was that pivotal evidence had been either ignored or given little weight and was not considered sufficient to support an application for disqualification, then 17 December 2019 hearing would not have taken the matter further but for the mother committing an egregious breach of the orders namely, her failure to return the children to the jurisdiction.
In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 the High Court of Australia said at [76]:-
It is well established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias. (It may well be that the principle extends to criminal proceedings but that issue need not be considered.) If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection.
(Footnotes omitted).
CONCLUSION
Whilst I consider that it would be reasonable to find that the father and the paternal grandmother may have waived the objection of apprehended bias, it is not necessary to determine the present applications on that basis.
I do not consider that it could be said that “a fair-minded hypothetical observer” may apprehend that I have not brought an impartial and unprejudiced mind to the proceedings.
Whilst not the subject of contention by either of the father or the paternal grandmother, I also reject any contention of there being the appearance of actual bias in the conduct of the proceedings.
As discussed, interim judgments have been delivered throughout the course and conduct of the proceedings necessary to determine issues that are not related to the issue of overseas travel for the children.
It is not suggested that there was either apprehended or actual bias in respect of the conduct of those hearings and/or arising from the determination of the various issues considered.
The fact of the mother’s breach of orders leading to the distressing serious consequences of the mother absconding with the children, whilst understandable, does not present a reason for disqualification on the basis that future applications would not be able to be determined other than on their merit.
Upon application by the paternal grandmother, comprehensive orders were made on 22 January 2020 for recovery pursuant to s 67Q of the Family Law Act 1975 (Cth) (“the Act”) and location pursuant to s 67N of the Act. Orders were made that required the children be delivered to the paternal grandmother and that pursuant to order 6, during the period of the adjournment the children should live with her. By order made on 13 February 2020, that order has now been extended until further order.
At the hearing on 22 January 2020, the father foreshadowed that an application was to be filed. An order was made that listed the application for mention only. Inquiry was made as to the nature of orders likely to be sought. It was not disclosed that the primary interlocutory order sought by the father was for disqualification.
If the nature of the anticipated interlocutory application had been raised, it is likely that orders sought by the paternal grandmother would not have been made until the application was determined.
It is a relevant consideration that the orders sought by the paternal grandmother that were necessary to put in place interim arrangements for the children and necessary to locate and if possible recover the children were made.
It is not a matter whether the father and the paternal grandmother disagree with the Court’s findings, but whether the hypothetical observer would consider that judicial conduct was such as to present the father and paternal grandmother from presenting their case, or that in some way there had been a pre-judgment of the issues.
I do not find that apprehended bias has been established and I propose to dismiss paragraph 1 of the father’s Application in a Case filed 28 January 2020 and the oral Application for disqualification of the paternal grandmother made on 13 February 2020.
I make orders as appear at the commencement of these reasons.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 28 February 2020.
Associate:
Date: 28 February 2020
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