HELBIG & ROWE (NO 2) - [2012] FamCAFC 175

FAMILY COURT OF AUSTRALIA

HELBIG & ROWE (NO 2)

[2012] FamCAFC 175

FAMILY LAW ─ APPEAL ─ COURTS AND JUDGES ─ Disqualification ─ Appeal against the refusal of the Federal Magistrate to recuse himself from further hearing the part-heard parenting proceedings ─ Whether the Federal Magistrate erred in failing to find that a fair minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the questions he was required to decide ─ Where the Federal Magistrate clearly recognised, caution was needed in relation to matters with respect to which the evidence was incomplete and/or remained to be tested, in order to avoid giving rise to a reasonable apprehension of an absence of impartiality in relation to the part-heard trial of the proceedings ─ Where the Court found that the Federal Magistrate carefully, and, successfully avoided saying, or recording, anything in the nature of a pre-emptive or premature finding, conclusion, or intimation ─ Nothing to which this Court was referred established that the Federal Magistrate erred in declining to recuse himself from further hearing the part-heard parenting proceedings ─ Where the cumulative effect of the matters upon which the mother based her appeal did not satisfy either of the requirements which the High Court has consistently held to be applicable to recusal applications ─ Appeal dismissed.
FAMILY LAW ─ APPEAL ─ COURTS AND JUDGES ─ Waiver ─ Challenge to the Federal Magistrate’s conclusion that, even if the mother had made out a case for recusal, his Honour would have declined to do so on the basis that the mother waived her entitlement ─ Where the Court, having regard to the authorities, was not persuaded that the Federal Magistrate erred in concluding, as he did, that the mother had waived any claim that his Honour’s recusal was warranted.
FAMILY LAW ─ APPEAL ─ COSTS ─ Where it was conceded on behalf of the mother that if the appeal was unsuccessful she could not resist an order for costs ─ Where the appeal was unsuccessful ─ Order for costs made in favour of the father with execution of order stayed until determination of the financial proceedings between the parties.

Family Law Act 1975 (Cth)

Bennett and Bennett (1991) FLC 92-191
Briginshaw v Briginshaw (1938) 60 CLR 336
British American Tobacco Australia Services Limited v Laurie and others (2011) 242 CLR 283
Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337
Galea v Galea (1990) 19 NSWLR 263
Garrett v Freeman(No 3) [2007] NSWLEC 139
Goode and Goode (2006) FLC 93-286
House v The King (1936) 55 CLR 499
Housing Commission of New South Wales v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378
Johnson v Johnson (2000) 201 CLR 488
Kennedy and Cahill (1995) FLC 92-605
Michael Wilson & Partners Limited v Nicholls and others (2011) 244 CLR 427
Pettitt v Dunkley (1971) 1 NSWLR 376
Re JRL; Ex parte CJL (1986) 161 CLR 342
Smits v Roach (2006) 227 CLR 423
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud (1989) VR 8
Vakauta v Kelly (1988) 13 NSWLR 502
Vakauta v Kelly (1989) 167 CLR 568

APPELLANT:

Ms Helbig

RESPONDENT:

Mr Rowe

FILE NUMBER:

PAC

5421

2010

APPEAL NUMBER:

2012

DATE DELIVERED:

2 November 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

12 October 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

23 May 2012

LOWER COURT MNC:

[2012] FMCAfam 607

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Druitt

SOLICITOR FOR THE APPELLANT:

Ian Harper & Co

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

Pryor Tzannes & Wallis

Orders

That the appeal be dismissed.
That the mother pay the father’s costs of and incidental to the appeal as a agreed or assessed on a party and party basis and that execution of such order be stayed until determination of the financial proceedings between the parties.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 73 of 2012

File Number: PAC 5421 of 2010

Ms Helbig

Appellant

And

Mr Rowe

Respondent

REASONS FOR JUDGMENT

introduction

By Amended Notice of Appeal filed 13 July 2012 Ms Helbig (“the mother”) appealed against the refusal of Foster FM on 23 May 2012 to recuse himself from further hearing parenting proceedings between herself and Mr Rowe (“the father”).

background

The parenting proceedings in the Federal Magistrates Court related to the children of the parties, X born in 2005 and Y born in 2008.
The trial of the parenting proceedings commenced before the learned Federal Magistrate on 21 November 2011. At the conclusion of the two days allocated for the trial, it was common ground that, for a variety of reasons, a number of further days would be required to complete the trial. Without opposition from either party, the learned Federal Magistrate then determined the interim arrangements which were to apply for the parenting of the children pending the resumption and completion of the trial.
On an interlocutory basis, the learned Federal Magistrate made orders on 29 November 2011 that the father’s time with the children as defined by his Honour be supervised by any of the members of his family who were referred to in the orders or such other person as the parties agreed. An appeal against those orders by the mother was dismissed by this Court on 24 October 2012.
As is not in doubt, it was not until 16 May 2012, almost 6 months after the learned Federal Magistrate delivered his interlocutory judgment (29 November 2011) in the parenting proceedings between the parties, that the mother sought, by application in a case, that his Honour recuse himself from the further hearing the part-heard trial. On 23 May 2012, the learned Federal Magistrate refused to make such order. This trial thus remains part-heard before his Honour.
As is not in doubt, at no time on 21 and/or 22 November 2011 did Counsel for the mother seek that his Honour recuse himself from further hearing the proceedings.

reasons for judgment of the federal magistrate

The learned Federal Magistrate recorded, accurately no doubt, the basis upon which the mother sought his Honour’s recusal. The learned Federal Magistrate also referred extensively to the authorities relevant to the application before him. There is no suggestion that his Honour referred to irrelevant authorities, or failed to refer to any relevant authority.
The learned Federal Magistrate rejected the mother’s recusal application on the basis that:
50.This case is one involving lengthy parenting proceedings where there are allegations of misconduct as against the Father; and, although the various matters referred to above are the subject of complaint by the Mother, it cannot be said that they mean the case will be approached other than with an unprejudiced mind, noting in particular that the matter has already proceeded for several days.
...
54.In the context of a hearing under Part VII of the Act and in considering the full context of the robust discourse between the bench and both counsel prior to the commencement of evidence and over an extended time period particularly as to interlocutory orders, where after submissions interim orders were made continuing the Father’s time with the children under supervision, the Court is not satisfied that the fair minded lay observer possessing the requisite qualities and observing a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial could conclude there to be a “logical connection between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits”.
His Honour further recorded:
56.Notwithstanding the above the Court is of the view that in circumstances where at the time of initial hearing the Mother was represented by competent counsel and that a period of almost 6 months had elapsed before the present application was brought before the Court that the court otherwise would have dismissed the present application on the ground of waiver.

the appeal

Sensibly, the comprehensive submissions for both parties engaged with the two issues which assume relevance in this appeal.
The first is whether the learned Federal Magistrate erred in failing to find that a fair minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the proceedings which were part-heard before him. If that question is answered in the negative, that is the end of the mother’s appeal. If the question is answered in the affirmative it is then necessary to consider whether the mother waived her complaint by not, until 16 May 2012, requesting the learned Federal Magistrate to recuse himself from further hearing the proceedings.

1) Did the learned Federal Magistrate err in failing to find that a fair minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the questions he was required to decide?

Given that a variety of cogent submissions were advanced on behalf of the mother in support of this complaint, rather than paraphrase them, it is preferable to set out those complaints in the terms in which they were articulated.
It was submitted on behalf of the mother that:
6.The learned Magistrate did not deal with his findings as to the characterisation of the appellant as an evangelical [...] despite the error of fact (it was not her evidence but a description attributed to her by the father’s therapist in subpoenaed documents).
It emerged during the course of the hearing of the appeal that, howsoever it came to be known, the parties did in fact identify themselves as Evangelical Christians. There was thus no material error of fact in the learned Federal Magistrate’s findings with respect to that issue. As explained by Counsel for the mother, the complaint with respect to this issue was thus really in relation to paragraph 43 of the learned Federal Magistrate’s reasons for judgment of 29 November 2011 where his Honour recorded:
43.This factor really focuses upon the mother. There is no doubt that it’s the father’s concession that the mother is, quite rightfully, to be and to remain the primary carer of these young children and that he will have such time with the children as is ordered by the court at a final hearing. However, the court has some reservations in relation to the mother’s willingness to facilitate a relationship with the father absent court orders making that happen. The background of that concern is set out in the reasons for judgment set out above and stems systematically from the evangelical background of both parties on and different views in relation to the role of sexuality in their relationship.
It was submitted by Counsel for the mother in relation to that passage of his Honour’s reasons that:
2. i.at paragraph 43 the judgement focuses inappropriately, for interim proceedings, on the mother in terms of s 60cc(3) and her ability to facilitate and encourage the relationship between father and child. The learned Magistrate concludes the mother’s attitude to facilitation “stems systematically from the evangelical background of both parties on and different views in relation to the role of sexuality in their relationship” despite the learned Magistrate not having heard the mother at all. It is not the mother’s evidence that she is an evangelical Christian and there is no evidence of any connection between such beliefs and her actions; or any proof of any inability to foster the relationship with the father; given the fact of the father’s relationship with [Y] (Dr. [R] “positive relationships with her parents” see [...] and despite separation when [Y] only an infant.) (Original emphasis, footnotes omitted, and errors as in original)
Counsel for the mother further submitted that paragraph 47 of learned Federal Magistrate’s reasons for judgment of 29 November 2011 supported the conclusion urged on behalf of the mother. Paragraph 47 provided:
The family reporter expresses some reservations in relation to the mother’s capacity in this regard. She is described by the family reporter to be a very committed parent with anxious and obsessional personality traits. Probably this part of her character has impacted upon the children in the way in which she conducts their day to day life. The family reporter observes also that, of course, there are mismatched expectations and values between Mr [Rowe] and Ms [Helbig], the mother, which have created mistrust and hurt between them. This also will impact upon her capacity and understanding as how she is in a more normalised way to deal with the children’s emotional and intellectual needs. The Court has no reservations as to the father’s capacity in this regard, particularly in relation and in the context of the orders proposed to be made.
The “capacity in this regard” to which his Honour referred was clearly a reference to the capacity to promote a meaningful relationship between the children and the father.
On behalf of the mother it was also submitted that:
8.The learned Magistrate displayed a readiness to accept the husband’s assertions and thereby refute the appellants [sic] assertions without first hearing the appellant, so giving rise to the conclusion that he was not and would not be approaching the resumption of hearing with an open mind and affording the wife a fair hearing to which she was entitled.
Counsel for the mother submitted, on page 8 paragraphs 2(a), (b), (c) and (e) of her summary of argument, that the following paragraphs of the learned Federal Magistrate’s reasons for judgment of 29 November 2011 illustrate that, his Honour had “made findings of fact by adoption of the husband’s assertions which were contrary to the assertions of the appellant”. Those paragraphs recorded:
16.The circumstances subsequent to separation were that between separation and August 2009 the father travelled most weekends and sometimes midweek from Sydney to [the North Coast] to spend time with the children. During those periods he stayed with the mother in the basement of her home. The mother and sometimes her father were present in the home. The father was able to take the children swimming and to the beach without either the mother or her father accompanying him.
17.After 21 August 2009 on which date the father travelled to Western Australia for work reasons, he was able to travel back to [the North Coast] from Western Australia in October 2009 and spent time with both children for intervals of four hours on four consecutive days, that time being monitored by the mother and/or her father. During the time he stayed with his daughter in Sydney, and on the second to fourth nights stayed with his parents at [T] and drove to see the children at [the North Coast].
18.The father further travelled from Western Australia to [the North Coast] to see the children in February 2010 where he spent four hours each day over three or four consecutive days with the children, supervised by the mother, her father or childcare workers. He similarly travelled to [the North Coast] in May 2010, September 2010, December 2010, April/May 2011 and July 2011.
On page 8 paragraph 2(g) of her summary of argument, Counsel for the mother asserted that the learned Federal Magistrate “attempts to qualify the interim judgment with a caveat as to untested issues of fact, however it is apparent he made findings of fact nonetheless” in the following paragraph of his Honour’s reasons:
27.The proceedings of course concluded without the Court being able to make any determinations on a part-heard basis as to contested issues of fact, but at the conclusion of the evidence, the parties provided to the court a short minute of orders sought by each of them in relation to the father’s time with the children pending a resumption of the contested hearing. ...
Counsel for the mother referred to the learned Federal Magistrate’s reference to “paragraph 6 and 7 of Dr. [R]’ recommendations of daytime only” (original emphasis) in paragraph 29 of his Honour’s judgment of 29 November 2011 which recorded:
... The further recommendations are that until Dr [P] is satisfied that Mr [Rowe] and Ms [L] are competent to manage [X’s] diabetes, that Mr [Rowe] spend day only time with the children, always in the company of Ms [L]. A further recommendation was that Mr [Rowe’s] time with the children is day only until the children are comfortable spending time with the paternal grandparents’ or their sister’s home, following which overnight time should commence from Saturday am to Sunday pm. Bearing in mind that those recommendations are made in the context of the father at that time being resident in Western Australia, he is now much more available to the children.
It was further submitted by Counsel for the mother that:
3.The learned Magistrate had determined to “restore a proper relationship” [...] between father and children from the outset and his focus remained inappropriately on that one factor rather than the broader question of the best interests of the children (MRR v GRR). (Footnote omitted and error as in original)
The cumulative effect of the passages relied upon by her was submitted by Counsel for the mother to be that a reasonable lay observer would conclude that, in the final determination of the proceedings, the learned Federal Magistrate preferred, or was likely to prefer the evidence of the father to that of the mother where the two were in conflict. That was submitted on behalf of the mother to constitute the second element to which the High Court referred in Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 (“Ebner”) as follows:
8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. (Footnotes omitted)
It was further submitted that the decision of the High Court in British American Tobacco Australia Services Limited v Laurie and others (2011) 242 CLR 283 (“British American”) provided further support for so concluding. The majority relevantly said in that case:
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.
140.Of course judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence. Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding. This is not a case of that kind. It does not raise considerations of case management and the active role of the judge in the identification of issues with which Johnson was concerned. At issue is not the incautious remark or expression of a tentative opinion but the impression reasonably conveyed to the fair-minded lay observer who knows that Judge Curtis has found that BATAS engaged in fraud and who has read his Honour’s reasons for that finding. Some further reference should be made to those reasons. (Footnotes omitted and original emphasis).

Albeit in the minority, Chief Justice French in British American said:
44.The fact that a judge has expressed a strongly worded view at the outset of a hearing does not prevent characterisation of that view as provisional. In such a case the reasonable apprehension of bias must be “firmly established” before prohibition will issue. Sometimes the line of judgment is “ill-defined”. On the other hand, a gratuitous statement in a judgment given in one case adverse to a person not involved in that case against whom a prosecution was pending, was sufficient to disqualify the judge who made the statement from sitting on an appeal arising out of the prosecution. (Footnotes omitted)
Counsel for the father submitted that there was a material distinction between the facts of this case, and the facts in British American, by virtue of the previous finding of the judicial officer whose recusal was sought in the latter case. As is not in doubt the judge whose recusal was sought in British American (see pars 139-140) had previously made a finding of fraud. Given the High Court’s judgment in Briginshaw v Briginshaw (1938) 60 CLR 336, and the serious nature of a finding of fraud, it is perhaps unsurprising that the majority concluded as they did on the facts of that case. The fact that there was division in the High Court in relation to the outcome of the appeal, unrelated to the applicable test, demonstrates the difficulty in determining where the “line is drawn” in many cases.
The decision of this Court in Goode and Goode (2006) FLC 93-286 (“Goode and Goode”), placed the learned Federal Magistrate in an invidious position in the interlocutory application which he determined by his judgment of 29 November 2011. As is not in doubt, and the learned Federal Magistrate clearly recognised, caution was needed in relation to matters with respect to which the evidence was incomplete and/or remained to be tested, in order to avoid giving rise to a reasonable apprehension of an absence of impartiality in relation to the part-heard trial of the proceedings.
Conversely, as Goode and Goode makes clear, the learned Federal Magistrate was obliged to engage in some detail with the relevant legislative provisions. Failure to do so may have led to appealable error. The discharge of his judicial duty necessarily also obliged his Honour to refer to the evidence before him. Failure to do so could have resulted in a judicial decision unsupported by adequate reasons (see Pettitt v Dunkley (1971) 1 NSWLR 376, Housing Commission of New South Wales v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Sun Alliance Insurance Ltd v Massoud (1989) VR 8 and Bennett and Bennett (1991) FLC 92-191), or a decision amenable to appellate challenge on other grounds (see House v The King (1936) 55 CLR 499).
As is not in doubt, the focus of the applicable test is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of questions the judge is required to decide. It is not in doubt, at least in the modern era, that judicial officers are not obliged to remain “sphinx like” during the course of proceedings before them (see Galea v Galea (1990) 19 NSWLR 263 at 278-279, Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) and Garrett v Freeman(No 3) [2007] NSWLEC 139). This is particularly so in the context of interlocutory proceedings, and perhaps even more so in the case of subordinate courts such as the Federal Magistrates Court in which judicial officers invariably have a vast case load, which must be dispatched within the very limited time available to them for that purpose. The advent of “case management” in the 21^st century has added to the pressure on judicial officers such as Federal Magistrates. Whilst those matters do not temper what the authorities clearly reveal, they are relevant to the conclusions which a fair minded observer might reasonably reach. So are the statements made by the judicial officer during the course of proceedings, or findings, or observations recorded by him or her in judicial reasons.
Instructively for present purposes, the plurality of the High Court in Johnson, said with respect to apprehension of bias:
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. (Footnote omitted)
Without being critical of Counsel for the mother, who it must be said presented her appeal dispassionately and competently, it is not insignificant that, from all that was said during the two days of the trial of the proceedings prior to their interlocutory determination in November 2011, and the commendably extensive interlocutory reasons for judgment of the learned Federal Magistrate, relatively little of those statements have been advanced in support of the present appeal. That reality would not be lost on what a fair minded lay observer might reasonably conclude in relation to the Federal Magistrate’s impartiality.
The High Court’s decision in Michael Wilson & Partners Limited v Nicholls and others (2011) 244 CLR 427 (“Wilson”) also has relevance to the circumstances of this case. The case involved claims that the trial judge had a reasonable apprehension of bias and should have recused himself due to the fact that he had heard and determined several interlocutory applications in the proceedings which were made ex parte by Michael Wilson & Partners Limited (“MWP”) without notice to the other parties (at 427-428). The other parties (Nicholls and others) had applied twice for the judge to recuse himself from the trial. Both of those applications were rejected (at 428). The High Court held that “the issues at the trial were unrelated to the issues in the interlocutory applications. Hence there was no basis on which to conclude that there was a reasonable apprehension of bias on the part of the judge” (at 428).
The High Court said:
67.... an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment.
68.The Court of Appeal was wrong to take account as it did of the reasons for judgment published by Einstein J after the trial in deciding whether in this case there was a reasonable apprehension of bias. The central and determinative question for this aspect of the matter was: might what was done in connection with MWP’s ex parte applications reasonably cause a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the resolution of a question for decision at the trial? ... (Footnotes omitted and original emphasis)
The passages of the judgment of the High Court in Wilson are instructive for present purposes. The Court had previously (in EA 74 of 2012) dismissed the mother’s appeal against the interlocutory orders made by the learned Federal Magistrate. The issue is whether his Honour’s asserted preference for one side’s version of events over that of the other in that determination provides a reasonable basis for apprehending an absence of impartiality in the determination of the part-heard trial of the proceedings. If it does, as the High Court explained in Ebner, and further explained in Wilson, the issue becomes whether it might reasonably be concluded that the matters complained of establish the “feared deviation” referred to as the “second step” in Ebner.
As a balanced reading of the transcript of the proceedings before the learned Federal Magistrate in November 2011, and his Honour’s reasons for judgment make clear, the part-heard proceedings raised numerous controversial issues in respect of which some, but not all the evidence had been adduced and/or tested. The learned Federal Magistrate carefully, and, in this Court’s view, successfully avoided saying, or recording, anything in the nature of a pre-emptive or premature finding, conclusion, or intimation.
Counsel for the mother candidly, and sensibly, sought to establish her appeal by relying upon the cumulative effect of his Honour’s statements. As the authorities make clear, whilst some cases for recusal will be made out in reliance upon a specific statement, or a series of statements, by a trial Judge (see Vakauta v Kelly (1989) 167 CLR 568) that is not the only way in which a case for recusal can be made out, although it will usually be more readily made out in those circumstances.
The following exchange between the learned Federal Magistrate, and Counsel then representing the mother on 21 November 2011, to which the Court was referred, revealed:
HIS HONOUR: Well, she [a reference to the expert opinion evidence before the Court] certainly doesn’t recommend at this stage, a circumstance where the children are removed from this area to Sydney on a full weekend basis. Her position is that that’s something that needs to be contemplated once these preliminary hoops are jumped through and all of that works reasonably well. Because one of the things that needs to be sorted out is to – for the mother to agend [sic] a sufficient confidence to perhaps loosen her grip on these children which has been, it seems to me, a little bit too vice-like thus far.
MR TREGILGAS: Vice-like is probably a description I would use.
HIS HONOUR: Well, it may or may not be justified but we then have to consider her position. I would have thought, gentlemen, that it might be worthwhile having a look at that threshold issue of what Dr [R] says about commencing it. If he plans to have some time with the children either at his parents’ home or [A’s] home, in accordance with her recommendations, it’s suggested that start on a day basis - - -
The exchange which then ensued revealed:
HIS HONOUR: Yes. I would certainly be interested in seeing whether in fact you can reach an agreement, that perhaps this matter probably needs to be treated a little bit more cautiously than perhaps the applicant father’s case suggests in that there should be a period where these recommendations of Dr [R] are given some time to settle in and to be put in place.
MR TREGILGAS: Yes.
HIS HONOUR: Because I think, Mr Tregilgas, one of the issues – and I think, as Mr Levy quite rightly acknowledged, that there has been a bit of a vice-like grip from your client in terms of the children, but in her mind that has been warranted, and I think that Dr [R’s] recommendations appears that if it’s a controlled arrangement that gradually transitions the children to a more sensible relationship with their father particularly he is here and that engenders some confidence in your client, then we could get to the next step of perhaps after a period of time having them engage with a family consultant for the purposes of an update report as to his present circumstances, observations with the children, have a discussion with mum.
MR TREGILGAS: Yes.
The Court is not of the view that anything said by the learned Federal Magistrate with respect to the mother’s “vice like” grip on the children as emerges from the exchanges set out above, or anything else to which the Court has been referred, establishes a reasonable apprehension of an absence of impartiality by the learned Federal Magistrate, or a reasonable basis for believing that his Honour might deviate from his duty to finally determine the proceedings on the merits. As the expert opinion evidence suggested, and the learned Federal Magistrate clearly recognised, the issue between the parties was whether the father’s conduct gave the mother cause to be vigilant, or protective of the children’s psychological or emotional wellbeing. In this Court’s view, his Honour posed the question in a way which did not suggest how it might be answered once the whole of the evidence had been tested.
The complaints in relation to the parties’ apparent Evangelical Christianity do not, in this Court’s view, advance the mother’s appeal. As noted earlier, both parties were apparently Evangelical Christians. In reality, the complaint is not about religious beliefs, but about his Honour’s pre-judgment of the mother’s willingness and/or capacity to promote a relationship between the children and the father. The learned Federal Magistrate chose his words advisedly, expressing “reservations” about these matters and the basis of “concerns” which the expert evidence suggested. The same term had been used by Dr R in her expert opinion evidence. His Honour’s statement did not, in this Court’s view, provide the basis for a fair-minded observer reasonably concluding a lack of impartiality in relation to the issue, or that there was any basis for concluding that his Honour would not finally determine the issue on its merits.
As the evidence before the learned Federal Magistrate clearly revealed, issues of substance in the proceedings included the father’s alleged interest in pornography. The Court’s ultimate findings of fact in relation to those issues would impact materially on its conclusions with respect to the mother’s willingness or capacity to promote the children’s relationship with the father. Nothing said by the learned Federal Magistrate suggested that those issues would be determined adversely to the mother, or by a less than impartial judicial mind. Nothing said by his Honour would convey to a fair minded observer that the possibility of the wife’s assertions being found proved had been rejected or discounted by his Honour.
To the extent that it was submitted that the learned Federal Magistrate preferred prematurely, and without foundation, evidence of fact of the father to that of the mother where there was conflict, the Court cannot accept that the passages of his Honour’s reasons for judgment relied upon in that regard necessarily have that meaning. Even if they do, those were not matters which were influential in the interlocutory proceedings before his Honour and would not, having regard to the concessions properly made by Counsel for the mother with respect to them, be matters capable of impacting upon the final determination of the proceedings. At best, any apparent preference was tentative, and would be regarded as such by a fair minded observer.
The complaint with respect to the learned Federal Magistrate’s asserted determination to “restore a proper relationship” between the children and the father overlooks the reality that both parties sought such an outcome, albeit each argued that it should be pursued via the orders urged by each of them. At least in the context of his Honour’s interlocutory determination, the “broader question” of best interests was not pivotal to the exercise of discretion in the circumstances of this case. The issue was much more limited, as the Court’s judgment in EA 74 of 2012 reveals. The learned Federal Magistrate’s consideration of this issue could not lead a fair minded observer to reasonably apprehend an absence of impartiality on his Honour’s part.
Nothing to which this Court has been referred establishes that the learned Federal Magistrate erred in declining to recuse himself from further hearing the part-heard parenting proceedings. The cumulative effect of the matters upon which the mother based her appeal does not satisfy either of the requirements which the High Court has consistently held to be applicable to recusal applications.
In Re JRL; Ex parte CJL (1986) 161 CLR 342 Mason J, at page 352, said:
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.
With respect to the submissions of Counsel for the mother, those observations have application to the recusal application of the mother in this case. The challenge to his Honour’s rejection of the recusal application fails.

2) Whether the mother waived her complaint by not, until 16 May 2012, requesting the learned Federal Magistrate to recuse himself from further hearing the proceedings

Whilst strictly unnecessary to do so, it is appropriate to consider the challenge to the learned Federal Magistrate’s conclusion that, even if the mother made out a case for recusal, his Honour would have declined to do so on the basis that the mother waived her entitlement. The authorities in relation to this complaint are not in doubt.
In Vakauta v Kelly (1988) 13 NSWLR 502 at page 528, McHugh JA explained the principle of waiver to be:
If a party or his legal representative knows of circumstances which would
disqualify a judicial officer from hearing a case but permits the case to
proceed to decision, he waives his right to set aside the decision unless he was unaware of his right of objection. Moreover, he may waive his right in some cases even though objection is taken before a decision is made. If, with knowledge of the circumstances and his right to object, a party or his legal representative permits the case to continue for a period before taking
objection, he may be held to have waived his right to have the case
determined by an impartial adjudicator. Whether or not a party who has delayed in making an objection has waived his right will depend on all the
circumstances of the case. They will include the nature of the disqualifying
factor, the extent of any financial or other prejudice to the other party if the
hearing is terminated, the reason for delaying the objection, and the period
for which the hearing has continued since the objecting party became aware of his right to object.
In Vakauta v Kelly (1989) 167 CLR 568 (“Vakauta v Kelly”) at page 572, Brennan, Deane and Gaudron JJ said:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

The Full Court in Kennedy and Cahill (1995) FLC 92-605 and the High Court in Smits v Roach (2006) 227 CLR 423 followed the decision of the High Court in Vakauta v Kelly (supra).
Having regard to the authorities referred to above, the Court is not persuaded that the learned Federal Magistrate erred in concluding, as he did, that the mother had waived any claim that his recusal was warranted. At the time the learned Federal Magistrate heard and determined the mother’s recusal application, there had been no appeal against the interlocutory order his Honour made on 29 November 2011, notwithstanding that almost six months had elapsed since the making of the order.
Nothing said by the learned Federal Magistrate during the two days of the trial which preceded the interlocutory parenting decision prompted any application to his Honour for recusal at any time during those two days, notwithstanding that, as the submissions to this Court make clear, at least some of the matters stated by the learned Federal Magistrate early in the course of exchanges during the trial in November 2011 were relied upon as a basis for his Honour’s recusal in May 2012.
As the submissions of Counsel for the mother confirm, the events upon which the application for recusal was based had all occurred almost six months prior to the making of the apprehension application. Why that was so has not been adequately explained. The mother was competently represented at all material times. None of the factors identified by McHugh JA (as his Honour then was) can assist the mother’s challenge to the learned Federal Magistrate’s conclusion with respect to waiver. The majority’s observations in the High Court in Vakauta v Kelly (supra) apply to the circumstances of this case.
For those reasons, this challenge fails.

costs

The Court’s reasoning, with respect to costs, as provided in the judgment of this Court in EA 74 of 2012 delivered on 24 October 2012 (appeal by the mother against the interlocutory parenting made by the learned Federal Magistrate on 29 November 2011) also apply to the present appeal.
As recorded in EA 74 of 2012:
19.It was, sensibly in the Court’s view, conceded by Counsel for the mother that, if unsuccessful, the mother could not resist an order for costs in favour of the father, provided that execution of such order was stayed pending determination of proceedings for settlement of property between the parties. Counsel for the father resisted the latter contention with no great fervour.
20.The appropriate order to made is that the mother pay the father’s costs of and incidental to the appeal as agreed or assessed on a party and party basis, and that execution of such order be stayed until determination of the financial proceedings between the parties.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 2 November 2012.

Associate:

Date: 2.11.2012