Hill and Hill
[2013] FamCA 845
•9 October 2013
FAMILY COURT OF AUSTRALIA
| HILL & HILL | [2013] FamCA 845 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Disqualification application – parenting proceedings – consideration of the context in which parenting proceedings are conducted under Division 12A of the Act and within a judicial docket – consideration of general principles – application dismissed. |
| Family Law Act 1975 (Cth) Div. 12A, ss 69ZN, 69ZQ Evidence Act 1995 (Cth) s 135 |
| Vakauta v Kelly (1989) 167 CLR 568 |
| APPLICANT: | Mr Hill |
| RESPONDENT: | Ms Hill |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Campbelltown |
| FILE NUMBER: | PAC | 1761 | of | 2011 |
| DATE DELIVERED: | 9 October 2013 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 6 September 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Weaver |
| SOLICITOR FOR THE APPLICANT: | Marina Voncina Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies |
| SOLICITOR FOR THE RESPONDENT: | York Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Karagiannis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Campbelltown |
Orders
That the mother’s application for disqualification be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hill & Hill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 1761 of 2011
| Mr Hill |
Applicant
And
| Ms Hill |
Respondent
REASONS FOR JUDGMENT
The Proceedings
The present application is an application that this Court recuse itself from further hearing of the primary parenting proceedings that relate to the children B born in 2009 and C born in 2010.
The primary proceedings were commenced by the applicant father by application filed on 19 April 2011. In that application he sought final orders in relation to the children that provided in summary for the mother and father to have equal shared parental responsibility, that the children live with the mother and that the father have substantial and significant time with the children as defined in the application.
The application first came before the Federal Magistrates Court of Australia as it then was on 14 June 2011. On that day the parties were ordered to attend a child dispute conference on 22 June 2011 and interim proceedings were listed for hearing on 6 July 2011.
On 6 July 2011 the parties agreed to interim orders by consent. Those interim orders that provided in summary:
a)That the children live with the mother;
b)That the mother have sole parental responsibility for the children;
c)That the children spend supervised time with the father each Saturday and on a mid-week day to be agreed by the parties;
d)The father was restrained from bringing the children into contact with the paternal grandparents and further restrained from discussing with the children any religious rituals or permitting the children to participate in or witness any religious rituals or ceremonious including but not limited to rebuking, anointing or casting out of demons;
e)Proceedings were adjourned to 7 October 2011 for further directions.
On 7 October 2011 the parties were directed to attend a financial conciliation conference on 28 November 2011 as to the question of property adjustment. An independent children’s lawyer was appointed for the children and a single expert report was ordered from Dr D. Proceedings were adjourned for further directions to 12 December 2011.
On 12 December 2011 the parties consented to final orders as to property. The parties otherwise consented to amended orders in relation to the appointment of Dr D as single expert. Proceedings were thereupon adjourned to 30 April 2012 to await the release of the single expert report.
On 30 April 2012 the single expert report was not available and proceedings were further adjourned to 6 June 2012.
On 31 May 2012 the single expert report of Dr D was released.
On 6 June 2012 Federal Magistrate Henderson transferred the proceedings to the Family Court of Australia at Parramatta, requesting that the matter be listed for final hearing as soon as possible and noting that the matter was likely to require in excess of five days hearing time.
On 12 June 2012 the proceedings came before a Registrar in this Court. Directions were made that the parties file and serve all affidavits upon which they wish to rely at trial by 24 August 2012 and that the matter be given a hearing date as early as possible. The matter was adjourned for further directions on 4 October 2012.
On 4 October 2012 the proceedings were once again listed before a Registrar. Orders were made that all affidavits to be relied upon to be filed and served within 21 days and it was noted that the matter is awaiting allocation of hearing dates for five days.
Subsequently hearing dates commencing 19 August 2013 were allocated. On 1 August 2013 the proceedings were once again listed before a Registrar and orders were made that each party file and serve any updating affidavit to be relied upon, a chronology and case outline by 14 August 2013.
On 19 August 2013 the hearing commenced and the hearing continued on 20 August 2013, 21 August 2013, 22 August 2013 and 23 August 2013. The hearing has proceeded to the point where both the mother and father have been cross examined and the paternal grandfather is part way through cross examination.
On 23 August 2013 counsel for the respondent mother informed the Court that she was instructed to make an application that the Court recuse itself from further hearing of the proceedings.
The proceedings were thereupon adjourned to 6 September 2013 for hearing of the disqualification application. The Court directed that the respondent mother file and serve a short outline of argument by 2 September 2013 and that the respondent father file and serve a short outline of argument in response by 5 September 2013.
On 5 September 2013 the disqualification application was heard on the basis of written and supplementary oral submissions and the Court reserved judgement on the application to a date to be advised.
It is noted that these proceedings have been before the Court for two or a half years. At the commencement of the proceedings the eldest child was just two years of age and the youngest child less than 12 months of age.
The context of these proceedings
The primary proceedings before the court are parenting proceedings are being conducted under the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”).
It is important to establish the context in which the hearing has been undertaken.
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents are parenting orders which are determined in accordance with the provisions of Part VII of the Act.
The Court is required to determine arrangements having regard to the best interests of the subject children by considering a series of principles, objects and considerations identified in Parts VII.
The principles for conducting child related proceedings, which includes applications for parenting orders, are identified in Div. 12A of Pt. VII. Section 69ZN, which sets out the principles, is set out below:
Principles for child-related proceedings
Application of the principles:
1)The Court must give effect to the principles in this section:
a.in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
b.in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
2) Regard is to be had to the principles in interpreting this Division.
Principle 1
3)The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
4)The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
a.The child concerned against family violence, child abuse and child neglect; and
b.The parties to the proceedings against family violence.
Principle 4
6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
In s 69ZQ the general duties imposed upon a judge required to give effect to s 69ZN are identified. Section 69ZQ is set out below:
General duties
1)In giving effect to the principles in section 69ZN, the Court must:
a.decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
b.decide the order in which the issues are to be decided; and
c.give directions or make orders about the timing of steps that are to be taken in the proceedings; and
d.in deciding whether a particular step is to be taken – consider whether the likely benefits of taking the step justify the costs of taking it; and
e.make appropriate use of technology; and
f.if the Court considers it appropriate – encourage the parties to use family dispute resolution or family counselling; and
g.deal with as many aspects of the matter as it can on a single occasion; and
h.deal with the matter, where appropriate, without requiring the parties’ physical attendance at Court.
2)Subsection (1) does not limit subsection 69ZN(1).
3)A failure to comply with subsection (1) does not invalidate an order.
Section 69ZR then provides that the Court has the power to make determinations, findings and orders at any stage of the proceedings, those being child-related proceedings. In particular, subsection (1) provides as follows:
(1)If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a)make a finding of fact in relation to the proceedings;
(b)determine a matter arising out of the proceedings;
(c)make an order in relation to an issue arising out of the proceedings…
Further, subsection (3) provides as follows:
(3)To avoid doubt, a Judge, Judicial Registrar, Registrar, Federal Magistrate or Magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
The Court considers that each of these principles, powers and duties are relevant to the consideration of the mother’s application as discussed below.
Preliminary Comments
In Vakauta v Kelly (1989) 167 CLR 568 Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of:
…the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
The plurality in Johnson v Johnson (2000) 201 CLR 488; (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at [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.
Kirby J. in Johnson v Johnson (supra) said at [46.2]:
Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in Court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value…
Later His Honour said at [46.4]:
The adversary system depends on vigorous interaction not only between the parties and their representatives but also between the adjudicator and those persons. Where the parties are represented by trained lawyers, the latter can be taken to be aware of (and presumed, if necessary, to have explained to their clients) the character and purpose of tentative opinions that guide the direction of the trial and encourage its proper focus. No rule of law should be adopted in relation to disqualification for prejudgment which unreasonably undermines, or is fundamentally inconsistent with, that system.
His Honour also said in Antoun v R[2006] HCA 2;
…. it is certainly true that the trial judge’s remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless; a waste of the court’s time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.
The Full Court of the Family Court observed in Dunwell & Dunwell [2011] FamCAFC 2:
In R v Watson, Barwick CJ, Gibbs, Stephen and Mason JJ distinguished the nature of remarks made during preliminary proceedings to those made during a final hearing:
The remarks on which the wife’s submission was founded were made during argument in an interlocutory proceeding. One must be careful not to exaggerate the importance of remarks of that kind. During the course of argument a judge will often follow the common, and sometimes necessary, course of formulating propositions for the purpose of enabling their correctness to be tested, and as a general rule anything that a judge says in the course of argument will be merely tentative and exploration.
In Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 Gaudron and McHugh JJ said at p100:
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: Reg v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 116; Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 554-555; Re Shaw; Ex parte Shaw (1980) 55 ALJR 12 at 14-15; 32 ALR 47 at 50-51 and 53.
When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. Thus, in Ex parte Angliss Group, the mere fact that the statement of reasons for a previous decision gave rise to the conclusion that members of the Conciliation and Arbitration Commission tended to favour the adoption of a principle of equal pay for both sexes as soon as it was economically and industrially practicable to do so was not a ground for disqualifying them from sitting on an application for an equalisation of rates of pay for male and female employees brought in reliance upon their reasons.
This Court rejected the notion that a fair and unprejudiced mind was "necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it".
In Re Shaw, the transcript showed that a judge of the Family Court of Australia had expressed opinions adverse to the case for the Husband before his counsel had opened his case. Nevertheless, Gibbs ACJ, with whose judgment Stephen J and Wilson J agreed, said that the evidence did not justify "a conclusion that the views which the learned judge expressed, although strong, were other than provisional, or that it could reasonably be suspected that at the end of the case she would not decide with a fair and unprejudiced mind."
It is necessary to bear in mind the caution expressed by Mason J in Re JRL; Ex parte CJL [1986] HCA 39:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation.
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.
There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.
The Test
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at 344-349:
6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer (emphasis added) might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle……
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.
The fair minded lay observer
Kirby J. said in Johnson v Johnson (supra):
“The fictitious bystander and matters that lawyers know”
[46] If a court of appeal were deciding an allegation of prejudgment for itself, according to its own knowledge and standards, a number of considerations might be taken into account in a case such as the present:
1. Appellate judges realise that most adjudicators strive to be independent and impartial and to make adjustments (so far as they can) for factors of which they are aware which might impact on their decision-making. By their training and experience, most such adjudicators are conscious of the high expectations imposed upon them.
2. Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.
3. Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
4. The adversary system depends on vigorous interaction not only adjudicator and those persons. Where the parties are represented by trained lawyers, the latter can be taken to be aware of (and presumed, if necessary, to have explained to their clients) the character and purpose of tentative opinions that guide the direction of the trial and encourage its proper focus. No rule of law should be adopted in relation to disqualification for prejudgment which unreasonably undermines, or is fundamentally inconsistent with, that system. (Footnotes omitted)
In Johnson v Johnson (supra), the plurality observed that:
It must be remembered that the person being observed is a “professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”…… Whilst the fictional observer, by reference to whom the test is formulated, is it not to be assumed to have a detailed knowledge of the law, or of the character or ability of the particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.
In Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Callinan J at par 177 said:
It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried.
Lander J. in Australian Securities and Investment Commission v Reid [2005] FCA 1274 reviewed authorities concerned with the level of knowledge and characteristics imputed to the fair minded lay observer. After he completed his review Lander J at par 110 described such a person as one:
…who is reasonable and fair minded, who has a general understanding of the facts and circumstances surrounding the case, who is not a lawyer but is not wholly uninformed and uninstructed about the law in general, and who would ordinarily think that a judge will act so as to ensure both the appearance and substance of fairness and impartiality without at the same time rejecting the alternative possibility.
The mother’s complaints
Counsel for the mother provided a written outline of submissions that noted that the mother seeks orders that would see the children spending no time with the father. Her position is that her application is founded upon a concern that the children are at risk in the father’s care.
It is submitted on behalf of the mother that a fair minded lay observer may apprehend that certain issues have been prejudged. Written submissions relied upon by the mother grouped the mother’s complaints into various categories for ease of reference. Those categories are considered hereunder. References are to date, transcript page and line number.
Issue of Supervision Continuing
19.08.2013 T9.40:
HIS HONOUR: Thank you. Well, Ms Gillies, I don’t know why this witness isn’t subpoenaed. There’s simply – at the moment there’s simply self-serving documents that can’t be tested at all. In all of the circumstances I strike out paragraph 54 of the mother’s affidavit and the attachment marked A.
MS GILLIES: May it please the court.
HIS HONOUR: Let’s see if we can focus on the best interests of the children in this case, particularly in cross-examination. Mr Weaver, next objection?
The document struck out comprised emails from a third party who was married to the father’s cousin expressing that person’s concerns as to the wider paternal family. That person was not to be called as a witness. The Court reminded the parties as to the necessity of focusing on the children’s best interests. It is conceded by the mother that alone the circumstance relied on (the rejection of the evidence) could not give rise to an apprehension of bias but contended that it could in some way be seen as excluding evidence as to the extended paternal family as not relevant to the issue before the Court. The evidence sought to be adduced was inadmissible in the form sought to be adduced. It was struck out.
19.08.2013 T55.5
HIS HONOUR: Otherwise, Mr Weaver and Ms Gillies and Ms Karagiannis, you might focus your mind on an appropriate course, whether it be Parenting After Separation or Keeping Kids in Mind or whatever that might be appropriate for this witness, so we get to the opportunity other than just for truncated times every so often to learn some parenting skills that have been denied him since the children were born, for all sorts of different circumstances, of course. But I will leave that with you.
It is submitted by the mother that the lay observer would perceive a view from the Court that unsupervised time with the children should start and thus the Court had prejudged the issue. In context the father was previously cross-examined at length as to perceived parenting capacity inadequacies during supervised time with the children. The Court’s query was as to whether an appropriate parenting course was available in that context where he had no time with the children other than supervised time for an extended period.
20.08.2013 T11.15
HIS HONOUR: By reason of the fact that this man has had very restricted time with his young children as a consequence of the cause of these proceedings. I find it inconceivable that there has been supervised time for two years in this matter. I don’t know how that ever happened. In any event let’s move on. Are you going to tender those documents?
It is submitted on behalf of the mother that the reasonable lay observer would conclude that the Court had predetermined the issue as to whether there should be time between the father and the children. No issue was taken by counsel for the mother with the Court’s comment at the time.
On the resumption of the hearing the following day this exchange took place:
HIS HONOUR: Thank you, sir, have a seat. Just before you start further cross-examination, Ms Karagiannis, I get the impression that from the tenor of your cross-examination yesterday that you may be making some application on behalf of the children, some interim orders if the matter goes over part heard. Is that something that’s contemplated?
MS KARAGIANNIS: Well, your Honour, at this stage it is just being contemplated, yes.
HIS HONOUR: All right. All right, well, in the context of that, I haven’t heard, of course, the mother’s evidence as yet, but I note that Ms Gilles yesterday invited me to perhaps give her some guidance as to where I was at. But I suppose, in fairness, I should say this to the parties if it’s to some assistance to them: that not having as yet heard the mother’s evidence, and particularly her oral evidence on cross-examination, at the moment there would be a significant possibility that I would make some interim orders pending further trial, as foreshadowed by the independent children's lawyer during her cross-examination of the father.
But having said that, of course, that – that very preliminary view may dissipate significantly on hearing the mother’s evidence. But I don't know whether that assists you, Ms Gilles, or otherwise, in considering – because I suppose if that happens, I suppose it makes the mother’s final position a little bit more difficult on the resumption of the trial.
MS GILLES: I think that my comments in relation to guidance, your Honour, were in relation to some comments that your Honour made, that you weren’t contemplating a no contact order, or you were contemplating an immediate removal of the supervision. I haven’t got the transcript, I'm – I will have it during the course of the day about your Honour’s actual comments, in that ‑ ‑ ‑
HIS HONOUR: Yes. Well, I was ‑ ‑ ‑
MS GILLES: ‑ ‑ ‑ it was in relation to that, and whether or not there was an absolute view that your Honour had formed at that stage that supervision was to be lifted, that I was seeking guidance as to whether or not that was a concluded view of your Honour’s.
HIS HONOUR: Well, in fact I think I said that I was still obviously had an open mind in relation to your client’s position as to no contact as well.
MS GILLES: I think that was after I had clarified the position.
HIS HONOUR: Yes.
MS GILLES: Yes, your Honour. But that ‑ ‑ ‑
HIS HONOUR: In any event, but that’s just something that seems to have been opened up by Ms Karagiannis’ cross-examination yesterday, because I – and I think the dates that we’re thinking about are November, which will mean about a two or three month delay in coming back. But I don't know whether that assists the parties or not. But in any event, we can continue.
MS GILLES: Thank you, your Honour.
If there was any apprehension in the mind of the reasonable lay observer as a consequence of the exchange that took place the previous day then the above exchange makes it quite clear that the Court had not predetermined any issue at all.
Issue of whether a no contact order will be made
19.08.2013 T55.5
This complaint has been considered above.
20.08.2013 T71.5 and T74.0
At this juncture counsel for the mother sought to cross examine the father in relation to any incident that occurred some 30 years ago when the father was four years or maybe six years of age being a circumstance where the father at that tender age had been sexually molested by a man who had been staying temporarily in his parent’s household. The father’s evidence was that he had no recollection of the circumstances of the incident and he would only be able to say what he had been told by others.
On that basis an enquiry was made of the counsel for the mother as to the relevance of this issue, particularly as sought to be adduced from the father. Counsel for the mother asserted that the relevance was in an assessment of the ability of the paternal family to protect the subject children and whether or not the children are at risk. Counsel for the mother asserted that the relevance was whether the paternal family were able to protect the subject children as a consequence of what had unfortunately happened in their own household some 30 years before. Counsel for the mother was later informed that subject to the question of relevance the father’s parents could be taken to the issue in their cross examination.
It is difficult to perceive that a fair minded lay observer could conclude otherwise than the Court’s approach to the issue was in the circumstances quite proper.
20.08.2013 T91.25
HIS HONOUR: Well, it would be very useful if in fact we focused upon the interests of these children. It can’t conceivably a position held that these children should have no relationship with their father where they’ve had two years of it up to now.
In submissions counsel for the mother said :
This, it would seem, your Honour, was in the context of the discourse between bench and counsel in relation to domestic violence. Again we would say that that particular comment in relation to the cross-examination in relation to domestic violence might very well be problematic to the reasonably-minded lay observer in terms of the importance that might be placed on the domestic violence and being given, we would say, appropriate weight to the cross-examination that had taken place in relation to it.
The context of the Court’s remarks were that they were preceded by a lengthy exchange with counsel for the mother in relation to the question of historical violence within the relationship between the mother and father and in the present context of the children having a loving relationship with the father as demonstrated by the contact centre notes admitted into evidence and the fathers ongoing time with the children up to trial.
The reasonable lay observer would understand and appreciate this context.
In Vakauta v Kelly (supra) Brennan, Deane and Gaudron JJ, said:
Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
It is appropriate for the Court to engage in such a way with counsel.
20.08.2013 T93.0
HIS HONOUR: Well, I must say, Ms Gillies, having considered the email or the – what do you call it – SMS correspondence, she gave as good as she got, in terms of communicating with the husband. So they’re both certainly capable of belittling and criticising each other in most colourful terms.
Counsel for the mother’s complaint seems to be that a reasonable-minded lay observer may come to the “conclusion that your Honour had formed a view in relation to the significance of domestic violence in this matter that was contrary to the case that the mother seeks to run before you.”
The following exchange then took place with counsel for the wife:
MS GILLIES: Maybe not as colourful as your Honour usually sees.
HIS HONOUR: Well, no, but in terms of their religious background, colourful for them.
MS GILLIES: I understand that, your Honour, but I must say that in some ways the SMSs were refreshing from what your Honour would usually in their absence of ‑ ‑ ‑
HIS HONOUR: At least the language is reasonably tidy.
MS GILLIES: Yes, that’s right. It’s a lot less colourful than your Honour might be used to.
HIS HONOUR: The tenor of it is still very clear. Well, I apologise for interrupting, Ms ‑ ‑ ‑
MS GILLIES: I thank you, your Honour, for that.
Counsel for the mother then resumed her cross examination of the father, raising no complaint as to the earlier exchange.
It is implausible that a fair minded lay observer Court have any apprehension as to bias in the circumstances of this exchange.
19.08.2013 T19.10-30
HIS HONOUR: I assume this is in the context, Ms Gillies, that only some months later the mother procured a revocation of the AVO? 20 June 2011.
MS GILLIES: No, it’s not, your Honour. Relates to something else.
HIS HONOUR: It sounds as though clearly there was no reasonable apprehension in June 2011 so how does this help me in August 2013?
MS GILLIES: It helps you, your Honour, in terms of what the father is prepared to put before the court. And given [Dr D’s] ‑ ‑ ‑
HIS HONOUR: I don’t have that affidavit before me.
MS GILLIES: No, your Honour.
HIS HONOUR: It’s a new relevancy.
MS GILLIES: Your Honour, I’m cross-examining in relation to some concessions in relation to that affidavit on the broader issue that ‑ ‑ ‑
HIS HONOUR: I can only assume, Ms Gillies, that seeking to trawl over the history in minutiae is in accordance with your client’s instructions. It certainly doesn’t give me much joy in terms of the future of these children.
Counsel for the mother submitted:
The problem that we would say is that at that point that those comments may very well lead a fair-minded lay observer to form a view about how domestic violence fitted into the case in your Honour’s view.
It is difficult to relate that submission to the test to be applied by the Court, particularly having regard to the following exchange:
HIS HONOUR: Is there anything that can be done that’s actually proactive and in the children’s best interests?
MS GILLIES: Your Honour, it’s on the broader topic of domestic violence which [Dr D], of course, is very concerned about in her report.
HIS HONOUR: Well, they haven’t been together now for a couple of years, I don’t think, have they?
MS GILLIES: I beg your pardon, your Honour.
HIS HONOUR: They haven’t been together now for a couple of years.
MS GILLIES: No, your Honour. But it – [Dr D] ‑ ‑ ‑
HIS HONOUR: There’s a lot of water under the bridge since then. The children have a relationship with him.
Counsel for the mother was reminded that the Court was charged with making orders in the best interests of the children in circumstances where the subject children have an ongoing relationship with the father albeit in a supervised circumstances and that the Court was required to look forward in the children’s best interests. Such a conclusion would be readily apparent to the fair minded lay observer.
20.08.2013 T4.10
HIS HONOUR: Trawling over the history.
Counsel for the mother submitted as to the Court’s comment as to how that might be perceived in the sense of how domestic violence was being viewed in the context of the running of the case.
In context the remark was made at the commencement of day two of the trial following the independent children’s lawyer expressing some concern that the hearing would not complete in the time allocated and seeking some guidance as to when the matter might be able to be resumed.
The following exchange then took place:
MS GILLIES: Not so much all of the history, your Honour, but certainly in relation to domestic violence, yes.
HIS HONOUR: All right. Okay. We will see where we’re at, but I would certainly like to try and get the maternal grandparents finished. Will you be long with them?
MS GILLIES: Yes.
HIS HONOUR: Do you propose with them to go back to circumstances in the 1990s, but inferentially referred to in the affidavits?
MS GILLIES: Not in any great detail, your Honour.
HIS HONOUR: Yes, I would hope so, that’s right. All right. Well, let’s see how we progress and we will decide whether we interpose the mother at an appropriate time.
MS GILLIES: Thank you, your Honour.
The fair-minded lay observer would have perceived the Court’s concern as to the prospective length of trial and been reminded by the remark by counsel for the mother of the mother’s focus on domestic violence as a pivotal issue in her case.
20.08.2013 T24.23
HIS HONOUR: Well, inherent in your question that, “You gave it a go three or four times thereafter,” is the proposition that on each occasion, the wife was acting hysterically. Is that ‑ ‑ ‑
Prior to the interruption by counsel for the wife the following exchange took place during the husband’s cross examination:
In your affidavit material, you tell us that you slapped your wife because you had seen on a TV show that it was a way to get people out of hysteria. You remember giving that evidence?‑‑‑Yes. But that you realised that it didn’t work, that is, slapping them?‑‑‑That’s right. It wasn’t – it wasn’t working, that’s right.
And you must have realised that on the first occasion that you say you slapped your wife, correct?‑‑‑Maybe not on the first occasion.
Well, on your evidence it didn’t work. That’s correct, isn’t it? That’s what you tell his honour?‑‑‑That’s right.
It didn’t work. That’s what you say, isn’t it?‑‑‑No, it didn’t – it didn’t work, no.
Right. But you gave it a go, on your own evidence, three or four times after the first time where it didn’t work, didn’t you?‑‑‑There was significant provocation.
And again, you say significant provocation, because you know that there’s no excuse for the violence you perpetrated on your wife; that’s so, isn’t it?‑‑‑I’m not making excuses for that, no.
Well, that’s exactly what you’re doing, isn’t it, by saying it was done with significant provocation? Exactly what you’re doing, making excuses?
The interjection was to clarify the context of the question put to the witness.
Thereafter the following exchange took place with counsel for the mother:
MS GILLIES: Well, that’s his evidence. I will go back to that, your Honour. I’m at this point exploring the witness’ own evidence whether ‑ ‑ ‑
HIS HONOUR: But he said he’s making no excuses. So at the moment, we have the last incidents of some physical violence between the parties three years ago.
MS GILLIES: Yes, your Honour. And that’s conceded physical violence.
HIS HONOUR: Yes.
MS GILLIES: Yes, your Honour.
HIS HONOUR: Well, very shortly thereafter, they separated.
MS GILLIES: They did, your Honour, but – and I hear what your Honour is saying in relation to historic matters, but if I can say this to your Honour: this was a very short marriage that on each party’s account seems to have been peppered with violence. What [Dr D] says is that if the violence ‑ ‑ ‑
HIS HONOUR: Well, there seems to be a very complex background set of facts in relation to each of the parties ‑ ‑ ‑
MS GILLIES: Yes, your Honour.
HIS HONOUR: ‑ ‑ ‑ that manufacture and produce the particular psychological makeup we have for each of them.
MS GILLIES: And what [Dr D] says in her opinion ‑ ‑ ‑
HIS HONOUR: Well, I’ve read that.
MS GILLIES: Yes. Well, your Honour will see the significance of the questions that I’m asking in relation to domestic violence. Thank you, your Honour.
HIS HONOUR: He’s not walking away from it. He says, “There’s no excuse for what I did.” That was his last answer just now.
MS GILLIES: And obviously I will make some submissions ‑ ‑ ‑
HIS HONOUR: Yes.
MS GILLIES: ‑ ‑ ‑ in relation to the previous answers. Thank you, your Honour.
Counsel for the mother contends that the Court’s statements “might be seen as being problematic in the context of how domestic violence during a relationship is viewed moving forward in making orders in relation to children.”
What was highlighted by the exchange set out above and what would be perceived by the fair minded lay observer was the significance of the issue of domestic violence in the case of the wife and the Court’s acceptance that the husband had acknowledged such conduct during the relationship.
20.08.2013 T88.5
HIS HONOUR: I’m sure that [B] and [C] are delighted that the parents are trawling over this history.
Counsel for the mother contends that in some way the above comment goes to diminish the significance of domestic violence in her client’s case which it is assumed would lead the fair-minded lay observer to form an apprehension of bias in the mind of the Court.
Such contention is rejected particularly having regard to the immediately following exchange between the Court and counsel for the mother:
HIS HONOUR: I have a very firm picture now of a very conflictual relationship; one against the other, and the other against the other. There are concessions as to the perpetration of violence by this man in the witness box; he has readily conceded…..
Thereafter followed a lengthy exchange with the counsel for the mother which would have left a fair-minded lay observer in no doubt as to the significance of the issue of domestic violence in the case of the mother and the Court’s understanding of that significance in considering any orders to be made. No apprehension of bias can reasonably be said to have arisen.
20.08.2013 T89.35
HIS HONOUR: And these parties have now been separated for two and a half years.
Counsel for the mother submits that “the fair-minded lay observer might form the view that the Court had prejudged the significance or otherwise of the domestic violence that’s alleged by my client or the domestic violence and how it should impact upon the orders.”
Following the remark referred to a lengthy and robust exchange took place with counsel for the mother in the following terms:
MS GILLIES: Can your Honour just excuse me for a moment; I just want to grab the part of [Dr D’s] report that I keep referring to.
HIS HONOUR: I suppose Ms Gillies you may do that, but I will then refer you then to a number of other issues in the report where there are issues of risk in your client’s household.
MS GILLIES: I ‑ ‑ ‑
HIS HONOUR: So both parties have to live with that on both side of the ledger. Now, no doubt Ms Karagiannis has alluded to that issue, or those issues.
MS GILLIES: Yes, your Honour, and as I’ve said, at page 56 of [Dr D’s] report, she says:
That the account of her mother and her family can be relied upon, it suggests that [Mr Hill] has been quite violent and abusive and therefore this constitutes a risk of harm to the children. Although he has not been violent towards his children, where there is family violence, children are also at risk of maltreatment.
Now, how I read that statement is different about your Honour’s comments about whether or not this is historic. Because how I read that particular statement of [Dr D] is that if a person is capable of the sort of family violence that the mother alleges against the father, that it does have an impact in terms of whether or not they are a risk to the children. That’s certainly a proposition that I will be exploring with [Dr D], and in fairness to this witness if I may put particular incidences to her, then I need to put them to him, one would have thought. I don’t want there to be a situation where [Dr D] says, “Well, I don’t know what the father’s version of that might be,” for example. And that’s why, your Honour, it’s that type of paragraph, although I’m certainly not saying that that’s the only one in isolation that has led to this cross-examination which I understand may be more detailed than some would like.
HIS HONOUR: Well, you will finish it by morning tea tomorrow in any event.
MS GILLIES: No doubt about that, your Honour. I hear what your Honour’s saying, and I understand that that’s not a – it’s not a request. But ‑ ‑ ‑
HIS HONOUR: Of course, [Dr D] does observe he hasn’t been violent to the children and we have two years of notes from the centre about that.
MS GILLIES: No, and she says that.
HIS HONOUR: Well, he seems to show quite a loving relationship between he and the children.
MS GILLIES: Well, and ‑ ‑ ‑
HIS HONOUR: From the context and her notes, as to the portions that weren’t read to him.
MS GILLIES: And no doubt, your Honour will raise that with [Dr D] as well at some point.
HIS HONOUR: It was just a fact just before me from the notes.
MS GILLIES: Certainly, but your Honour will see from that particular paragraph, and given that I’m charged with the task of acting for the mother in these proceedings, why these incidences are important.
HIS HONOUR: Well, it would be very useful if in fact we focused upon the interests of these children. It can’t conceivably a position held that these children should have no relationship with their father where they’ve had two years of it up to now.
MS GILLIES: Your Honour ‑ ‑ ‑
HIS HONOUR: I’m sure that Ms Karagiannis had difficulties explaining why there were to be no longer a father in their lives – to these two little girls.
MS GILLIES: Your Honour will appreciate that it is my client’s position that be no contact ‑ ‑ ‑ ‑
HIS HONOUR: It’s her case, and I weigh that.
MS GILLIES: And I take your Honour’s comments to mean that at this point it’s not futile for my client to be making that application.
HIS HONOUR: No, I understand that.
MS GILLIES: Because if your Honour’s comments were taken to be that there was some futility in relation to it, then obviously I need to get instructions from my client in relation to her position.
HIS HONOUR: Well, I don’t say there’s no futility in it; I just think that one needs to focus on these children.
MS GILLIES: But if your Honour is of the view that at this point in the evidence the children have to have a relationship with their father and that would mean therefore that they would have to have contact with him, then obviously that might suggest that your Honour has a view about the no contact position that my client has taken at this point.
HIS HONOUR: I don’t have a view about that at this stage.
MS GILLIES: Thank you, your Honour.
The exchange is a dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case as referred to in Johnson (supra).
The fair minded lay observer would have no doubt as to the Court’s position and that the Court had not predetermined or formed a view adverse to the mother’s case or would not bring an impartial mind to the resolution of the question required to be decided.
20.08.2013 T91.0
HIS HONOUR: Of course, [Dr D] does observe he hasn’t been violent to the children and we have two years of notes from the centre about that.
The submission on behalf of the mother as to this comment is in these terms:
We would say there is a risk that a fair-minded lay observer would think that because there had been no violence between the parties for two and a half years that that in some way impacted upon the domestic violence that was sought to be cross-examined upon and, in fact, was cross-examined upon as well.
and then
…But tying into the earlier submission in relation to whether or not the court had prejudged the significance of the domestic violence, and how it – relevantly, we say – then impacts upon the orders for the children.
How it would impact “in some way” was not explained.
The context has been considered above. The fair minded lay observer would be mindful that the question of violence in the relationship would need to be considered in the context of the present circumstances of the children and their relationship with the father. The weight to be attached to that issue is a matter for the Court. Once again this is an exchange with counsel seeking to identify the real issues and problems in the case.
Miscellaneous
19.08.2013 T9.40
HIS HONOUR: Let’s see if we can focus on the best interests of the children in this case, particularly in cross-examination. Mr Weaver, next objection?
This has been considered above.
19.08.2013 T41.22
During the father’s cross-examination the following exchange:
30 November 2012. [Ms E] supervises a visit and makes this note:
[B] continues to block [C] from playing with toys and hurting her. Stay-with parent having trouble managing her behaviour, nurses [C] to remove her from the situation. When advised [B] should be given boundaries stay-with parent was unsure of his role around discipline. Worker advised she would give him some parenting hints to assist.
Do you remember that occasion? ‑‑‑Yes.
HIS HONOUR: It sounds like, Ms Gillies, this is reflecting the children’s behaviour, probably, in their primary residence as well.
The submission by counsel for the mother is “looking at the test of the fair-minded lay observer, and whether or not those comments were open to your Honour at that stage, we would say that they’re problematic.”
Thereafter the following exchange with counsel for the mother took place:
HIS HONOUR: Or are you suggesting that all of this behaviour is simply a two hour aberration every week? Is that what you’re putting to the witness?
MS GILLIES: I’m not putting that, but I’m sure it will be – my client will be asked those questions. He couldn’t say what happens in my – in my client’s household, so ‑ ‑ ‑
HIS HONOUR: No. Well, their behaviour with him is certainly reflective of something.
MS GILLIES: Yes, your Honour, and ‑ ‑ ‑
HIS HONOUR: Inappropriate boundaries in the mother’s household as well if the children have no discipline.
MS GILLIES: If - if – if in fact that ‑ ‑ ‑
HIS HONOUR: It’s a bit of a double-edged sword, Ms Gillies, I would think.
MS GILLIES: If there are no boundaries, but there are some comments that are made about that in relation to later entries, your Honour……
Just how the exchange was “problematic” is not made clear.
Subsequently the mother was given leave to give oral evidence in chief in response to this issue (21.08.2013 T 21 206-207).
The fair minded lay observer would see a robust exchange between counsel and the Bench and the Court permitting the mother in evidence to deal with the issue.
20.08.2013 T106.30
Counsel for the mother refers to the ruling by the Court under s 135 of the Evidence Act 1995 (Cth).
Section 135 is as follows:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
The following exchange took place during cross-examination of the father:
MS GILLIES: You’re aware, aren’t you, that there has been evidence that has been given about religious meetings and the like that were held on your grandfather’s property at some point?‑‑‑Religious meetings?
Yes?‑‑‑There were ‑ ‑ ‑
No, I’m asking you whether there has been evidence in these proceedings in relation to him holding religious meetings when he had the property at F Town?
MR WEAVER: Your Honour, I have to object to that question. If my friend could be a bit more particular about what she is referring to with religious meetings.
HIS HONOUR: Is this the paternal great-grandfather?
MS GILLIES: Yes.
HIS HONOUR: Who has now got dementia.
MS GILLIES: I think that’s the evidence.
HIS HONOUR: Or so it’s asserted by his son at least.
MS GILLIES: So it’s – yes. I don’t cavil with that but may I ask the question?
HIS HONOUR: Can you put some timeframe on this? 1970s?
MS GILLIES: Well ‑ ‑ ‑
HIS HONOUR: I don’t know. Like, I think the witness says, “Well, there were”, but at the moment I’m struggling in terms of relevance.
MS GILLIES: Thank you, your Honour.
There were religious meetings, it would seem, at least into the ’90s at your grandfather’s property in [F Town]. Is that right as far as you’re aware?‑‑‑Religious meetings?
Yes?‑‑‑In, what, just ‑ ‑ ‑
So?‑‑‑ ‑ ‑ ‑ a home meeting?
Yes?‑‑‑A home religious meeting?Yes?‑‑‑Yes, they had – there was – to my knowledge, there was home religious meetings, yes.
Right. You’ve seen the [television] program that was done in relation to what was said to have occurred on your grandfather’s property?
MR WEAVER: Your Honour, I object.
HIS HONOUR: Did you ever attend them, [Mr Hill]?‑‑‑Pardon?
Did you ever attend these meetings?‑‑‑Like, it’s a home church – a home church meeting. If I was up there on a holiday, that would about it.
You have – you’ve read the affidavits of – excuse me a moment – [Ms G] and [Mr H], haven’t you?‑‑‑Briefly.
And they touch upon things that they say occurred at those religious meetings. You saw that?‑‑‑Pardon?
They touch upon things that they say occurred at the religious meetings that were conducted by your grandfather?‑‑‑Well, whatever they’re claiming, I didn’t – was not a witness to.(Emphasis added)
Okay. I’m not asking you whether you were a witness to them. You understand that your uncle [Mr I] participated in religious meetings on your grandfather’s property, don’t you?
MR WEAVER: Your Honour, I don’t see how my client would know what [Mr I] was doing.
MS GILLIES: And if he doesn’t, he can say, “I don’t know”.
HIS HONOUR: And under section 135, this is just an issue that seems to have no relevance at all. It’s just going to cause this Court to waste a whole lot of time.
MS GILLIES: Except if your Honour ‑ ‑ ‑
HIS HONOUR: Except it’s historical, it’s remote. There’s no suggestion in the evidence I can see that this witness, the father, has any recent or current involvement in anything.
MS GILLIES: No, your Honour. And I’m not suggesting that to him.
HIS HONOUR: And the mere fact there may have been some conduct by his extended paternal family is neither here nor there.
MS GILLIES: Well, it is here or there, your Honour, in terms of restraints that we might seek. So ‑ ‑ ‑
HIS HONOUR: He has already said he will consent to an order that he doesn’t come into contact with his paternal grandfather – well, the children – or uncle [Mr I].
MS GILLIES: Uncle [Mr I] and what I’m exploring, your Honour, is if there are other members of the family who are involved that particular congregation.
HIS HONOUR: Well, it might be [Mr H] and [Ms G].
MS GILLIES: It might be uncle ‑ ‑ ‑
HIS HONOUR: Not to see the children either.
MS GILLIES: It might be uncle [Mr J] and it might be uncle [Mr K].
HIS HONOUR: Well, it’s not uncle [Mr J] yet.
MS GILLIES: No, and that’s ‑ ‑ ‑
HIS HONOUR: All he has had is one conversation with the mother.
MS GILLIES: And, your Honour, that’s why I’m seeking to explore what their involvement with the teachings of [Mr Hill] was.
HIS HONOUR: You said this isn’t a religious case.
MS GILLIES: No, your Honour, it’s not a religious case.
HIS HONOUR: It’s all about violence.
MS GILLIES: It’s about protecting children, yes.
HIS HONOUR: Yes.
MS GILLIES: And if those people are involved in the particular congregation then ‑ ‑ ‑
HIS HONOUR: Which doesn’t exist anymore.
MS GILLIES: Well, your Honour, doesn’t know that. I don’t know that either.
HIS HONOUR: I think I’ve read affidavit material that says even the property has been sold, I think.
MS GILLIES: And that doesn’t necessarily mean, in my respectful submission, your Honour, that the ‑ ‑ ‑
HIS HONOUR: But your client makes no complaint about it.
MS GILLIES: About?
HIS HONOUR: Any current involvement by this witness ‑ ‑ ‑
MS GILLIES: No, your Honour.
HIS HONOUR: ‑ ‑ ‑ or anybody else.
MS GILLIES: Your Honour, I’m not – I’m not suggesting ‑ ‑ ‑
HIS HONOUR: So it’s just a fishing expedition.
MS GILLIES: No, your Honour. And I’m not suggesting that the father has a current involvement with the teachings of [Mr L] in the sense of the practices that my client would have some trouble with the children being exposed to. There were other members of the [Hill] family ‑ ‑ ‑
HIS HONOUR: And which they haven’t been.
MS GILLIES: On my instructions, there were other members of the [Hill] family that were involved. That’s one of the reasons I asked the husband quite specifically whether or not he would consent to a restraint on [Mr I] Hill who your Honour will have apprehended ‑ ‑ ‑
HIS HONOUR: And he has acknowledged that.
MS GILLIES: Yes, your Honour. But are there other members of the family and that’s what I’m seeking to explore so that your Honour has that information before you if and when we seek restraints.
HIS HONOUR: And ‑ ‑ ‑
MS GILLIES: If and when.
HIS HONOUR: And what are you going to tell me about their practices and how it impacts upon the children? You have no – I assume you have no knowledge.
MS GILLIES: We have the knowledge of what other witnesses ‑ ‑ ‑
HIS HONOUR: Currently.
MS GILLIES: ‑ ‑ ‑ in our case have said, and [the television program].
HIS HONOUR: Currently, not in 19 ‑ ‑ ‑
MS GILLIES: No, your Honour, but ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ whenever it was – 1990.
MS GILLIES: But if the practices are still being continued ‑ ‑ ‑
HIS HONOUR: Well, you will have to adduce evidence of that.
MS GILLIES: I’m seeking to cross-examine the husband on it, your Honour.
During submissions the following exchange took place:
MS GILLIES: Yes, your Honour, and what his understanding was, the participation of extended family matters within those practices might be. Leading on to whether or not other family members might have been involved in those particular procedures, including – potentially – the grandparents as well, given that the evidence that has been sworn by [Ms G] and [Mr H]. We would say that, again, they are concerns that ought to be ventilated before the court in terms of ‑ ‑ ‑
HIS HONOUR: Well, I suppose the difficulty, Ms Gillies, is that your client’s perception of relevance is really subject to my ruling. Your client may assert it’s relevant, but under section 135 I can simply rule that it’s not and of no assistance to the Court in the determination I have to make, or an area that is simply going to make the case prolonged, raise issues that are really of no concern. That was the nature of the ruling.
MS GILLIES: It was, your Honour, and whether or not, at that stage, the ruling might apprehend that there had been some prejudgment of whether or not these religious practices ‑ ‑ ‑
HIS HONOUR: No, it was a ruling as to evidence.
MS GILLIES: And just finishing what I was saying, your Honour, I don’t cavil with the fact, your Honour, that it was a ruling as to evidence, whether or not that ruling at that point may have shown to a reasonable, lay, observer that there had been some prejudgment in relation to the risks that the extended paternal family potentially are to the children, given certain practices ‑ ‑ ‑
The fair minded lay observer would be mindful that the witness had already given evidence that he did not witness any of the conduct alluded to in cross examination and as a consequence exploring the issue through him was of no utility and would be a waste of the Court’s time.
20.08.2013 T109.30
The following exchange took place immediately following the exchange referred to above:
MS GILLIES: I’m seeking to cross-examine the husband on it, your Honour.
HIS HONOUR: Well, you be brief on this topic ‑ ‑ ‑
MS GILLIES: I will be very brief ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ otherwise it will be stopped very quickly.
MS GILLIES: I will be brief, your Honour.
HIS HONOUR: I note your objection under section 135, Mr Weaver.
MS GILLIES: You’re aware that your uncle [Mr I] followed the teachings of your grandfather for a period ‑ ‑ ‑
MR WEAVER: Your Honour, I object to that. He doesn’t know ‑ ‑ ‑
MS GILLIES: Well, he could say that.
HIS HONOUR: Well, no. That’s what he’s being asked.
MR WEAVER: Yes, your Honour. All right. I withdraw the objection.
The complaint by counsel for the mother is:
Again, looking at this cumulatively, and whether or not a reasonable, fair-minded observer might think that your Honour had potentially adopted a view in relation to my client’s case, and sought to make that observation when it hadn’t been there, we again would say it could be problematic.
During submissions the following exchange took place with counsel for the mother:
MS GILLIES: Line 30, you note an objection under section 135 that was made by my friend. My understanding on a reading of it ‑ ‑ ‑
HIS HONOUR: Well, I think Mr Weaver, at that stage, stood up.
MS GILLIES: I don’t recollect that, your Honour. It very well may be the case, but certainly, as I understood it, there was no objection that it be made by him at that stage, on the basis of relevance. There had been an earlier objection been made, but he wasn’t on that basis. Again, looking at this cumulatively, and whether or not a reasonable, fair-minded observer might think that your Honour had potentially adopted a view in relation to my client’s case, and sought to make that observation when it hadn’t been there, we again would say it could be problematic.
HIS HONOUR: Well, the fact he was standing up, is evidence from what happened in the next line. He stood up, I noted your stood up, made your objection, you said something, and then he made the formal objection.
MS GILLIES: And then withdraws it.
HIS HONOUR: Well, I simply noted that, but in any event.
MS GILLIES: If I could then go to 22 August, your Honour.
HIS HONOUR: But I think in reality, then you simply continued on that topic. So the objection by him wasn’t pressed.
MS GILLIES: No, your Honour. But again, it goes to perceptions in relation to cross-examination, and whether or not the objection ‑ ‑ -
HIS HONOUR: Well, I didn’t object. He got up.
MS GILLIES: Well, your Honour, I didn’t recollect that as being the case. If your Honour remembers that that was the case, and if that’s what your Honour is referring to, then I certainly can’t say anything, because I don’t it. ….
Once again counsel for the mother submits that the exchange was “problematic”. The fair minded lay observer would see a brief exchange as to the course of evidence, nothing more.
22.08.2013 T381.5
HIS HONOUR: Yes. That’s right. Yes. Well, the document it’s not admissible you can’t get the contents in that way so we will just see what Ms Gillies makes of it I suppose.
In context the following exchange took place:
MS GILLIES: Have you seen the letter?‑‑‑I have – I think I have seen it. Yes.
All right. Can I ask you please to have a look at it, and if I can just ask you to read please the first two paragraphs on the first page just to yourself and just let us know when you’re finished. That’s the letter, your Honour, that forms annexure B to the affidavit of [Ms G]?‑‑‑Did you say the first two paragraphs?
Yes, please?‑‑‑I’ve read them.
Okay. The views that he expresses – could I have that back please?
MR WEAVER: Your Honour, I don’t think my client is aware of this letter. It was from, as I understand, [Mr K] to [Ms G]. There’s nothing in the letter that says my client knows about it.
HIS HONOUR: Well, like he said he was aware he had written to her.
MR WEAVER: But nothing more. That he ‑ ‑ ‑
HIS HONOUR: Yes. That’s right. Yes. Well, the document it’s not admissible you can’t get the contents in that way so we will just see what Ms Gillies makes of it I suppose.
MS GILLIES: It’s actually before, your Honour. It’s an annexure to an affidavit. But in any event.
HIS HONOUR: Well, if it survives objection when [Ms G] starts her evidence, I suppose.
MS GILLIES: Well, I don’t understand. There has been an objection to it, your Honour.
HIS HONOUR: Not yet.
MS GILLIES: Having read through that particular, or those first two paragraphs, do they accord with your view of [Ms Hill]? That is that she’s an unstable – I’ve done this, your Honour.
HIS HONOUR: Don’t tell me what’s in the document.
MS GILLIES: Your Honour, I have cross-examined the father on this document and put to him verbatim what’s in it already.
HIS HONOUR: Well, why don’t you put to this witness what his views are – it doesn’t – whether they accord with his brother’s view of what’s said to him. Just ask this witness what his views are. I’m not interested in what [Mr K] said to [Ms G], that’s just – has no weight whatsoever. But you know – you understand what his views are from the document you have put them to the witness if these are his views.
MS GILLIES: I’m sorry, your Honour. That’s what I thought I was about to do.
HIS HONOUR: Well, you were – I think you were basically referring to the document in doing it.
MS GILLIES: Yes. I was.
HIS HONOUR: Well, I don’t think you should do that. I think you should put some propositions to this witness without referring to the document.
MS GILLIES: Thank you, your Honour. Is it your view that [Ms Hill] is an unstable and scheming woman?‑‑‑I have found her unstable.
Counsel for the wife submits that:
Again, looking, we would say, from the point of view of the reasonable lay observer, whether or not, in the face of there being no formal objection to that, there might be an apprehension in relation to those comments, in the context of how the wife is running her case, and what evidence ought to come before the court.
As to what the “apprehension” might be is not made clear. The exchange with counsel for both parties to the fair minded lay observer was as to fairness to the witness who was asked to adopt someone else’s perceptions as to the witness’s opinions of another.
22.,08.2013 T389.15
HIS HONOUR: Move on, thank you Ms Gillies. This is just so tenuous and so going to extend proceedings unnecessarily – I think under section 135 you can move on.
MS GILLIES:Your Honour.
HIS HONOUR: It’s just a witch hunt.
This was in context as follows:
MS GILLIES: Just thinking about your travels to the farm of your father, and thinking about [Mr Hill] attending that farm as well, is it the case that he was attending there with you – and I’m asking you the question – up until his late teens?‑‑‑Yes, that would be correct. Yes.
Can you – able to be any more specific in terms of whether it was the year he finished school, or before he went down to [M Town] to start studying, or after – when he’d started university?‑‑‑Well, as I – as I said before it was either a biannually or more – on a biannually or annual basis, I suppose. I think it would be up – probably up until the time he left school. Once he got – once he got his licence, well, I don’t think he – you know, he – he tended to be more on – go somewhere on his own.
So, are we talking up to about the age of 18 or so?‑‑‑Yes.
Okay. Now, when you travelled up to the farm during this period. Up until your son turned about 18 or so?
HIS HONOUR: Move on, thank you Ms Gillies. This is just so tenuous and so going to extend proceedings unnecessarily – I think under section 135 you can move on.
MS GILLIES: Your Honour.
HIS HONOUR: It’s just a witch hunt.
As to this complaint and during submissions by counsel for the mother there was the following exchange:
MS GILLIES: Section 135 ruling in relation to it. And our questions in relation to how often he had been at the farm in that time, your Honour made the comment that it was just a witch hunt.
HIS HONOUR: The topic.
MS GILLIES: The topic, yes, your Honour. Again, in relation to – and your Honour has said, well, these are issues that your client might find relevant. But in relation to the general comments that you have made about the manner in which, I think, your Honour has said the wife has elected to bump her case, we would say again, that looking at it from the point of view of the reasonable lay observer, that those comments in relation to that line of questioning, especially when looked at in conjunction with other comments in relation to the manner in which she had chosen to run her case, again, might be said to be problematic. Could I ‑ ‑ ‑
HIS HONOUR: Of course – I suppose – do you concede that a reasonable lay observer is presumed to have a reasonable general understanding of the background facts of the case?
MS GILLIES: Yes.
This issue is referred to above in relation to the earlier s 135 ruling. The fair minded lay observer having a general understanding of the facts would apprehend the Court endeavouring to have the evidence focus on the issues before it and not be engaged in an examination of historical circumstances or issues that perhaps a party saw as relevant but were of no practical relevance to the courts determination. A party may choose to run their case as they see fit however that is subject to the Court’s obligations under Division 12A and the rules of evidence as they remain relevant.
22.08.2013 T 403.35
HIS HONOUR: There hasn’t been much other than the fathers arguing with each other. Complete unfocussed about the welfare of the children, it appears, having regard of the concessions by the mother in the witness box earlier today. Would 10 o’clock be a suitable time?
The reference to “fathers” should be to the “parties”.
The context was in the cross-examination of the paternal grandfather by counsel for the mother that had revealed significant and ongoing conflict between the parties.
The context of the impugned comment is otherwise as follows:
There was then, wasn’t there, some discussion surrounding whether or not [Mr Hill] and the family would come up to spend time at your property in [N Town] for Christmas 2010?‑‑‑Christmas 2010. That is, I think I referred to that before where [Mr Hill] was wanting to come up for Christmas ‑ ‑ ‑
HIS HONOUR: Well, maybe, [Mr Hill], you can reflect upon that overnight and we can resume that topic in the morning and maybe in the morning we’ll commence to hear some evidence that reflects upon the issues I have to determine; hasn’t certainly been very much.
MS GILLIES: I’m sorry, your Honour, I didn’t catch that?
HIS HONOUR: There hasn’t been much other than the fathers arguing with each other. Complete unfocussed about the welfare of the children, it appears, having regard of the concessions by the mother in the witness box earlier today. Would 10 o’clock be a suitable time?
MR WEAVER: Yes, your Honour.
MS GILLIES: Yes, your Honour.
The “N Town” issue had been canvassed in the cross examination of the father and the cross examination of the mother.
The fair minded lay observer would be reminded by the remarks made that the issue before the Court was a prospective determination of the best interests of the children and be mindful of the mother’s concession in evidence that the children presently had a loving relationship with the father.
Counsel for the mother during submissions had the following exchange:
MS GILLIES: Well – and in terms of those comments, in my respectful submission, one would read those as not being directed to [Mr Hill] but directed more specifically to the mother and the manner in which her case was being run, given the evidentiary rulings that your Honour had made during the course of that afternoon. I did ‑ ‑ ‑
The issue is not what can be “read into” a comment but the perceptions of the fair minded lay observer familiar with the basic facts of the case and the course of the evidence.
23.08.2013 T (ALL).
As to the course of the hearing on the 23 August counsel for the mother submits:
MS GILLIES: And in relation to 23 August 2013, again this ties in with the submissions that I had made in relation to other aspects of the evidence specifically touching upon risk factors that my client says are present in the extended paternal family and your Honour’s comments in relation to domestic violence. There’s sought to be cross-examination in relation to matters arising from incidences – one incident in particular that occurred in the paternal grandparents’ home in 1997, and your Honour heard some evidence, although be it limited, in relation to that previously where there had been an assault of [Mr Hill], who – I withdraw that – [Mr H], who has sworn an affidavit in my client’s case, and at that stage, your Honour, we would say that it was apparent that again the issue of domestic violence, family violence, loomed large in relation to these proceedings, and also the risk that the paternal grandparents might pose in relation to the children.
In terms of their behaviours and what they’ve exposed children to in the past, we would say that they are all relevant matters to come before your Honour and certainly to cross-examine [Dr D] in relation to. Your Honour ruled that there could not be any questioning in relation to that, and in the sense of this particular application, we would say that again there is a prospect that a reasonable lay observer sitting in the back of the court might think that your Honour had formed a view in relation to the significance or otherwise of events in the paternal family simply because of their historical context, but ‑ ‑ ‑
The Court responded during submissions as follows:
HIS HONOUR: Or the lay observer could take the view that I just can’t understand how something that happened 18 years ago was possibly relevant to issue of young children in 2013, so it’s open to all sorts of inferences, bearing in mind that relevance has to have a temporal context as well.
The discrete components of this complaint have been considered above. The general complaint is misguided. The Court ruled that some historical events had no relevance to the courts determination as referred to above in the context of s 135 of the Evidence Act.
On 23 August 2013 the following exchange with counsel for the mother occurred:
MS GILLIES: … and I will be cross-examining, with your Honour’s leave of course, both of the grandparents in relation to events that arose in relation to not only [Ms O] but also [Ms G].
HIS HONOUR: All right. Well, we will deal with them as we deal with them, but in relation to this incident, I won’t allow you to. Under section 135, an investigation of this issue, notwithstanding it may loom large in your client’s mind, in my view has little or no likelihood to assist me in determination of this matter, because of its lack of proximity in time, and would engage the court in an undue waste of time.
Discussion
The principles to be followed and the duties of the Court in proceedings under Division 12A are set out above. It would be an abdication of those principles and duties to permit parties to pursue a course that undermined the integrity of properly conducted and managed parenting proceedings that consider the best interests of children.
The fair minded lay observer would be mindful of the nature of parenting proceedings and the general context in which they are conducted.
As observed by Callinan J in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (supra) at [174-176]:
The Federal Court has adopted a docket system. In that system a number of cases are assigned to a particular judge who then oversees, and makes directions with respect to, all interlocutory matters before hearing a case assigned to him or her. The procedure for trials in the jurisdiction also involves the preparation, exchanging and filing of statements and documents in advance of the hearing which may, and almost always will, be read before the trial begins.
This 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. The justifications for the provision of written statements in advance of trial have been thought to be the avoidance of surprise and the shortening of hearing time. These advantages will often be more illusory than real. The provision of written statements by one side will afford to the other an opportunity to rehearse in some detail his or her response. It is also impossible to avoid the suspicion that statements on all sides are frequently the product of much refinement and polishing in the offices and chambers of the lawyers representing the parties, rather than of the unassisted recollection and expression of them and their witnesses. This goes some way to explaining the quite stilted and artificial language in which some of the evidence is expressed in writing from time to time, as it was here. Viva voce evidence retains a spontaneity and genuineness often lacking in pre-prepared written material. It is also open to question whether written statements in advance do truly save time and expense, even of the trial itself. Instead of hearing and analysing the evidence in chief as it is given, the trial judge has to read it in advance, and then has the task of listening to the cross-examination on it, and later, of attempting to integrate the written statements, any additional evidence given orally in chief, and the evidence given in cross-examination.
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
These comments are particularly apposite in the context of this Court’s conduct of a Less Adversarial Trial within its judicial docket system and the exercise by the court of its function having regard to the principles, powers and duties thrust upon it by reason of Division 12A of the Act that are referred to above.
The mother’s complaints are set out above. The question involves a consideration of the ‘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.
The question is to be determined by the test of the lay observer who is reasonable and fair minded, who has a general understanding of the facts and circumstances surrounding the case, who is not a lawyer but is not wholly uninformed and uninstructed about the law in general, and who would ordinarily think that a judge will act so as to ensure both the appearance and substance of fairness and impartiality without at the same time rejecting the alternative possibility.
The answer to the test must be “firmly established”. As observed by Gummow J. in British American Tobacco Australia Services Ltd v. Laurie [2011] HCA 9:
[70] …But it was remarked in the joint reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson to which further reference is made below, that the hypothetical observer would be no more entitled to make snap judgments than would be the decision maker under observation. Accordingly, and as the joint reasons make clear, later statements which qualify earlier statements may be relevant. There is no logical reason why any temporal element should be brought into that general principle; it depends upon the circumstances of the particular case…
[71] To that perception of the role of the hypothetical observer must be added the consideration that "the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party". The words are those of Mason J in Re JRL; Ex parte CJL, in a passage adopted by Callinan J in Johnson v Johnson. Mason J also said in that passage, using words later said by the English Court of Appeal to have "great persuasive force", and adopted by the New Zealand Court of Appeal:
In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. 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.
This case is one involving lengthy parenting proceedings noting in particular that the matter has already proceeded for several days. Although the various matters referred to above are the subject of complaint by the mother, for the reasons set out above considering those complaints individually or as a whole it cannot be said that they mean that there is a real possibility the case will be approached other than with an unprejudiced mind.
For the reasons given the application for recusal is dismissed.
As a consequence of the dismissal of the mother’s application it is unnecessary for the Court to give consideration to the issue of waiver.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 9 October 2013.
Associate:
Date: 9 October 2013
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Jurisdiction
0
12
2