Hopper and Hopper
[2011] FMCAfam 154
•4 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOPPER & HOPPER | [2011] FMCAfam 154 |
| FAMILY LAW – Application to disqualify federal magistrate – apprehension of bias – prejudgement – comments made by federal magistrate during directions hearing following receipt of family assessment report – child related proceedings – role of independent children’s lawyer – duty to minimise trauma to child associated with proceedings – active case management. |
| Family Law Act 1975, ss.68LA, 69ZN |
| Hopper & Hopper [2010] FMCAfam 699 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 26 Fam LR 627 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 EL v ML (2005) FLC 93-245 Vakuata v Kelly (1998) 167 CLR 568 |
| Applicant: | MR HOPPER |
| Respondent: | MS HOPPER |
| File Number: | ADC 2201 of 2009 |
| Judgment of: | Brown FM |
| Hearing date: | 11 February 2011 |
| Date of Last Submission: | 11 February 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 4 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Ms Tinning |
| Solicitors for the Respondent: | Von Doussas |
| Independent Children’s Lawyer: | Legal Services Commission of SA |
| Counsel for the Independent Children’s Lawyer: | Mrs West |
ORDERS
The application of the husband filed 23 December 2010 is dismissed.
The proceedings are fixed for further directions on 28 April 2011 at 9:30am on which date it is anticipated it will be clear whether any other party wishes to be joined in these proceedings and whether it is appropriate to re-allocate the matter for final hearing.
IT IS NOTED that publication of this judgment under the pseudonym Hopper & Hopper is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2201 of 2009
| MR HOPPER |
Applicant
And
| MS HOPPER |
Respondent
REASONS FOR JUDGMENT
Introduction
Since 5 June 2009, I have had family law proceedings before me concerning Mr Hopper “the father” and Ms Hopper “the mother”. These proceedings have concerned child support, property proceedings and children’s issues.
More recently, the proceedings have focussed on appropriate arrangements for the care of the parties’ daughter, [X] born [in] 1999, particularly whether it is appropriate for orders to be made for [X] to spend time with her father.
As a result of some comments made by me, in open court on 2 December 2010, Mr Hopper has made application for me to disqualify myself from having anything further to do with this matter. These reasons for judgment are concerned with this disqualification issue.
The issue concerning [X] is an emotionally fraught one because [X] has not spent any time with her father since April of 2009. Because of the significant risk that this situation will become entrenched, if it has not already become so, on 8 July 2010, I ordered that [X] be independently represented in these proceedings.
The independent children’s lawyer (the ICL) is Mr Winter, an experienced family lawyer employed by the Legal Services Commission of South Australia. Mr Winter is to be regarded as a party to these proceedings. Neither the ICL nor the mother join in the father’s application for me to disqualify myself. It is their position that the case should proceed to final hearing under my direction.
Background
Mr Hopper commenced these proceedings on 5 June 2009. At that stage he sought orders for the parties to engage in parentage testing to determine [X]’s paternity. Concurrently with that application, he sought declarations relating to his liability to pay child support for [X].
The mother responded to this application in early July of 2009. She sought orders in respect of the settlement of the parties’ matrimonial property issues. She denied that there was any basis for the father to consider that he was not [X]’s biological father.
The parties’ applications first came before me on 14 July 2009. Since that date, the parties have appeared before me on at least nine subsequent occasions. In the jargon of trial case management, I am the “docket judge” for the Hoppers.
Cases are allotted randomly to Federal Magistrates but once allocated, a docket management system is adopted for each such case. This means that from commencement to disposition, the same Federal Magistrate deals with each case which is allotted to him or her.
The benefits of the docket system are said to include the following:
·consistency and continuity of approach during the case;
·the parties not having to explain their cases afresh to a different judicial officer at each court event;
·a facility for the court to identify salient issues at the earliest possible stage and put in place steps to resolve those issues, either through adjudication or some form of primary dispute resolution.
The docket management system has particular application in cases relating to children brought under Part VII of the Family Law Act. The legislature has designated such cases as “child-related proceedings” and has made significant directions to courts, such as this one, as to how such proceedings are to be conducted.
Pursuant to section 69ZN the court is required to give effect to a number of principles, whilst exercising jurisdiction in proceedings concerning children. These principles are as follows:
·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 proceedings.
·the court is to actively direct, control and manage the conduct of proceedings.
·proceedings are to be conducted in a manner which will safeguard the child and parties concerned from family violence, abuse and neglect.
·proceedings are to be conducted in a way the will promote cooperative and child-focused parenting.
·proceedings are to be conducted without undue delay, formality and legalism.
Although the parties have been able to resolve many matters between them, the case has been a difficult one for all concerned, myself included. There have been related proceedings, concerning allegations of family violence and assault, between the parties, conducted in the criminal jurisdiction of the Magistrates’ Court of South Australia.
For obvious reasons, the initiating paternity application was one fraught with emotional significance for the parties. In addition, in February of 2010, both parties commenced contravention proceedings, against the other, in respect of consent property orders made on 16 December 2009.
However, by far the greatest degree of controversy seems to surround the appropriate arrangements for the ongoing care of [X]. It is the mother’s position that [X] has independently determined that she does not wish to spend time with her father because of her past experience and current perception of him.
On the other hand, it is Mr Hopper’s position that the mother is a highly manipulative and unstable person, who has actively and successfully attempted to alienate [X] from him to satisfy her (the mother’s) own emotional ends. As a consequence, he is fearful that [X] may lose the potential to have a loving paternal relationship with him and this will be to [X]’s long term detriment and contrary to her best interests.
Clearly the parties’ respective positions about what is likely to be best for [X] are polarised in the extreme. For obvious reasons, neither party is likely to be either an objective or dispassionate source of information about the factors which are currently influencing [X].
[X] is a child who is old enough to be able to articulate a view about the type and extent of the relationship she wishes to have with her father, although her view alone is not the sole factor in determining the case. This being the position, several experts have been engaged, both by the court and the parties themselves, in an attempt to canvas, independently of her parents, what [X]’s views are about her father both at present and into the foreseeable future.
The views of these various experts and the extent of their respective involvement with [X] are set out in an earlier judgement, which I prepared in this case and which should be read in conjunction with these reasons for judgement.[1] The first expert was Ms S, a psychologist, whom the mother had consulted with [X] for on-going counselling and support of [X]. Ms S wrote as follows:
“[X] presents as a vulnerable young girl who, if I base my assumptions on the truth of her statements during our sessions, has experienced genuine fear and distress as a result of interactions with her father Mr Hopper. These include the long term impact of living in an alleged Family Violence situation where she describes Mr Hopper engaging in verbally abusive, controlling and physically threatening acts towards her in her home as well as the immediate impact of witnessing the alleged physical assault of her mother and older sister by Mr Hopper. Although I have not heard Mr Hopper’s version of events, the sadness, fear and anxiety expressed by [X] appears genuine to me.
[1] See Hopper & Hopper [2010] FMCAfam 699
The second expert was a family consultant, Mr T. He interviewed both parties and [X] in October of 2009. He wrote as follows:
“[X] stated very clearly that she does not wish to see her father at this time because “I’m really angry at him for what he did” and “I’m really petrified of him – he hurt mum and [Y] and I’m scared he’ll hurt me … maybe down the track but not right now … maybe in a few years”. Asked how she would react if time with her father were ordered [X] hugged her bear tightly, and said in a tearful voice “I probably would refuse because I do not want to see him at all”.
The third expert was Ms J, a psychologist, who was asked to interview [X], about her attitude to her father, in June of 2010. She wrote as follows:
“[X] presents as a capable child. She was confident in her expressed views and talked willingly about matters relating to school and general interests. [X]’s thinking about her mother and father was black and white, and fixed. Her reported experiences of her father were of a critical, aggressive and frightening parent. Her reported experiences of her mother are of a loving, supportive and understanding parent. There is no middle ground in her reported experience with either parent.
[X] shows no desire to see her father and expresses no awareness of ways in which he could demonstrate an ability to be a competent parent. At this stage, her determined view is that she should not be forced to spend time with him. Any interaction with her father is seen as overwhelming, unreasonable and unmanageable.”
Mr Hopper’s initial position was that he wished orders be made which would enable him to spend time with [X]. He has amended this position and now seeks orders that would result in [X] living predominantly with him. It being his view that such an outcome will provide the only effective means of ensuring that he has a proper level of relationship with [X], which is quarantined from the mother’s influence. On the other hand, he asserts that he will be able to ensure that [X] has a proper level of relationship with her mother.
[X] has two older adult siblings. They are [Z] aged around twenty and [Y] who has recently turned eighteen. [Z] and [Y] are not biologically related to Mr Hopper but share his surname. It seems that they identify strongly with him and are currently aligned with him. They no-longer live with their mother. [Y] has apparently recently had an argument with Ms Hopper and has moved out of her home.
I am told that [Y] is exploring the possibility of bringing her own proceedings, in this court, to enable her to spend time with [X]. She is apparently applying for legal aid to assist her with such an application. If [Y] does become involved in the matter, it will complicate the case. I have already expressed my disquiet at the prospect of a young adult cross-examining her mother in family law proceedings relating to her sibling.
It was in July of 2010, following an interim hearing between the parties regarding potential arrangements for [X] to spend time with her father, that I elected to appoint an independent children’s lawyer for her. I also considered that it was appropriate that the ICL should obtain a family assessment report for the final hearing of the case, which was allocated for mid March of 2011, although I did not specifically direct what the parameters of that report should be. I said as follows:
“In my assessment, I should adopt the terminology of Kelly & Johnston and characterise the current case as a challenging and demanding one. In my view, it is one which requires a full psychological assessment of all the parties involved, including [X] and possibly also [Y] and [Z], subject to their willingness to be involved.
However, at this stage, I propose to await the appointment of the independent child representative, before embarking on the formal process of obtaining such a report and determining its parameters and participants, given the controversy likely to surround such issues. In addition, clearly, [X]’s representative, when appointed, is likely to have views as to who is the appropriate person to prepare such a report.”
Mr Winter determined that the family assessment report should be conducted by Dr M, a psychologist. He interviewed each of the parties and [X], as well as [Y] and [Z] in October of 2010. His report was released to the parties in early November.
Dr M reported that Mr Hopper told him his relationship with [X] was “non-existent” because she was “angry at him because he had left and the family home has had to be sold, etc.”[2] This state of affairs was apparently confirmed by [X] herself. Dr M summarised his interview with [X] as follows:
“[X] was initially not keen to talk to me as she said she had already talked to other people about her father. She was upset about the fact that she had to talk to yet another person about the same subject, and sat in the interview room clutching a teddy bear. However, after I had explained the purpose of the interview, and that it was her way of being heard by the Court, she agreed to talk with me about her memories of family life, and was able to provide detailed responses to my questions.
With respect to her perception of the relationship between her parents [X] told me that she remembers there being lots of arguments, with most being to do with the cleanliness of the house. She explained that her father had a thing about dust and the bench tops being cleaned, and that he would always find something to criticize, although [X] felt that her mother kept the house clean and that her father’s criticisms were unreasonable. She told me that if her father didn’t like something then he would start yelling at the closest person, and then if he could find her mother then he would start yelling at her. She said that she witnessed her father yelling and swearing at her mother “all the time”, and he also used to push her in the chest with his finger. She said that her father would follow someone if he was yelling at them if they were trying to get away, or he would sometimes push her mother into their room and continue the argument there. She added that when her father was behaving like this towards her mother [Y] would sometimes take her into her room and try to reassure her as she said that she (i.e., [X]) felt very scared in case her father hurt her mother.”[3]
[2] See Family Assessment Report at page 3
[3] Ibid at page 10 & 12
In the conclusions section of his report, Dr M reported as follows:
“[X] was clear she wanted no contact with her father, telling me she considered she did not have a good relationship with him when the family was together, and finding much of his behaviour, e.g., his house rules and his behaviour towards her mother – which she saw as generally initiated by him because of some perceived failure on the part of her mother – as being unreasonable. She described a number of symptoms consistent with anxiety as a consequence of her father’s anger, and saw her closeness with her mother as a consequence of her mother being able to comfort her when upset, as well as concerns on her part for her mother’s well-being.
While reporting that her symptoms of anxiety have largely abated since her parents separated, although she still has recurrent memories of her father’s assault in April 2009, [X] said she now doesn’t trust her father and doesn’t think she would ever feel safe with him. She also expressed a reluctance to have any contact with [Z] and [Y], explaining she was “disappointed and angry” with [Z] for taking her father’s side, and upset with [Y] for attempting to get her to talk with her father and [Z].
With respect to contact between [X] and her siblings, despite her current negativity towards them, I could find no good reason why there should not be some form of contact between them, although it would be sensible for [Z] and [Y] to enjoy [X]’s company for its own sake, and not to convey their own agenda with respect to either their mother or Mr Hopper, into these visits.
I am disinclined to recommend contact between [X] and her father at this time, however. Because of her emotional closeness to her mother [X] cannot but be aware of her mother’s feelings about Mr Hopper which, in turn, would no doubt be a factor in shaping her thoughts and feelings about her father. But [X] was also able to offer evidence based on her own experiences of her father that has made her feel anxious and has resulted in her feeling that she cannot trust him and would not feel safe with him.”[4]
[4] See Dr M’s report at paragraphs 11, 12 ,13 and 14 on page 15
The hearing on 2 December 2010
It was comments made by me on 2 December 2010, following the release of Dr M’s family assessment report, which have led to
Mr Hopper’s application for me to disqualify myself from further involvement with the matter. In particular he complains as follows:
“During the hearing Federal Magistrate Stewart Brown referred to the up coming trial as an “exercise in futility” when speaking to me and also said that it would not have a “happy ending” for me.
These statements lead me to believe that Federal Magistrate Stewart Brown has already decided the outcome of the trial prior to hearing any of the witnesses or seeing any of the evidence put before him by either party at the trial.”[5]
[5] See father’s affidavit at paragraphs 3 and 4
In addition, Mr Hopper has raised concerns that I have exhibited either bias in favour of the mother or have pre-judged the case, such that he may not get a fair hearing at the trial. The context of my remarks is as follows:[6]
[6] The transcript was prepared from a contemporaneous electronic audio recording of proceedings by Auscript. The passages of the proceedings quoted in these reasons for judgement have been transcribed verbatim from that transcript.
“HIS HONOUR: And, Mr Hopper, one of the things that struck me about Dr M’s report is that, when [X] was interviewed, or prior to that, she was apparently somewhat annoyed that she was being asked by another professional person about seeing and spending time with you, and that struck me, of course. And now we have another recommendation that Dr M has made. What is your attitude, Mr Hopper?
MR HOPPER: My attitude has been the same all the way through. I would just like to have some contact with my daughter. I have always had a good relationship with her prior to her departure.
HIS HONOUR: There’s a hearing next year, Mr Hopper. What do you think that will achieve?
MR HOPPER: I don’t believe it will achieve a lot, your Honour.
HIS HONOUR: You don’t think it will achieve a lot.
MR HOPPER: No.
HIS HONOUR: Well, Mr Hopper, if it won’t achieve a lot, what is the point of it?
MR HOPPER: I’ve got to keep trying for my daughter.
HIS HONOUR: And, Mr Hopper, have you thought about another approach, that it may be better to wait?
MR HOPPER: As Dr M pointed out to me, that waiting might mean I never see her again.
HIS HONOUR: All right, Mr Hopper. I just wonder - that the hearing, I suspect, may be an exercise in futility, and it also may cause more injury to both you and Ms Hopper. And I suspect that wounds that exist on both of you will become more enflamed, and any process of healing will be delayed. But I hear what you say. Ms Tinning, what is your position?”
In response to this question, Ms Tinning, who is the mother’s counsel, indicated that her client remained opposed to [X] spending any time whatsoever with Mr Hopper. She indicated her client’s position that it would be detrimental to compel [X] to spend time with her father, after she had apparently expressed her opinion to four different professional people that she did not want to spend time with her father.
Shortly after this exchange and after Mr Winter had inquired of me whether it was appropriate for Dr M to be the first witness in the forthcoming trial, I asked him (Mr Winter) if he had a view about the case, generally. I believe that I was entitled to ask him this given the legislatively stipulated role of the independent children’s lawyer set out in section 68LA(5) of the Family Law Act. Pursuant to this section, the independent children’s lawyer must:
·act impartially in dealings with the parties to the proceedings;
·ensure that any views expressed by the child in relation to the matters are fully put before the court;
·if a report is prepared for court proceedings
Øanalyse that report and identify issues relevant to the best interests of the child concerned; and
Øensure those matters are properly drawn to the court’s attention; and
·endeavour to minimise the trauma to the child associated with the proceedings before the court; and
·facilitate the resolution of the case before the court, in a manner which is consistent with the best interests of the child concerned.
The transcript of this exchange reads as follows:
“HIS HONOUR: Yes. But do you have a view about the case, generally?
MR WINTER: The case, generally, is that, unfortunately, this child has been embroiled not only in these proceedings but ‑ ‑ ‑
HIS HONOUR: But the criminal proceedings.
MR WINTER: ‑ ‑ ‑ in the criminal proceedings. Both parties did not come out of those criminal proceedings as clean as they would like it.
HIS HONOUR: No.
MR WINTER: There were faults attributed or blame attributed to both. This poor child is caught in the middle and my view is the same as your Honour’s view that a trial is of limited value.
HIS HONOUR: Well, I characterised it as an exercise in futility.
MR WINTER: Yes. I heard that, sir.
HIS HONOUR: I suspect the child will be presented at a contact centre. She will say to the workers, “I don’t want to see my father,” and the contact workers will say, “We are not going to compel you given your age ‑ ‑ ‑ ”
MR WINTER: Yes. I put that ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ and given that you have said to, not one, not two, not three but four independent experts who are trained to interview children, “I do not want to see my father.” Now, I appreciate that that is unsatisfactory from Mr Hopper’s point of view but I do not know what can be done. And I suspect spending two or three days in which the parties criticise each other and cross-examine each other about what has happened them in the past will only make each of them more hurt, more upset, and the chances of any change in this child’s attitude will not be increased, quite the opposite. But, as you say, Mr Winter, I can only point these things out. And you have pointed them out. A lot of resources have been allocated to the matter and not every case has a happy outcome. Sad, but true.
MR WINTER: The concern is that it does appear, though, that the mother’s two children – two natural children to other relationships – are against the mother at this particular point in time.
HIS HONOUR: Yes. That seems to be the case.
MR WINTER: And that is a worry to me, as a representative of [X].
HIS HONOUR: Of course. It means that the family – any chance of there being some process of resolution or healing is further delayed because everyone is fractured and allied against one another. And I have no solutions to those issues. They remain in the hands of the parties.
MR WINTER: Well, sir, perhaps with the setting of trial directions today the father will have a short period of time over Christmas and the New Year to consider his position and either seek further advice or take certain actions.
HIS HONOUR: Yes.
MR WINTER: Thank you.
HIS HONOUR: Thank you, Mr Winter.”
This passage appears to be the origin of Mr Hopper’s complaint that I indicated to him that the particular case, in which he was personally involved, would not have a “happy ending”. Although there were further references to this expression, subsequently in the judgment.
Up to this stage, it should be pointed out that neither [Z] nor [Y] had made any formal application to the court in respect of spending time with [X], independently of Mr Hopper. At an earlier stage of the proceedings, I indicated my view to the parties that I was unable to make a parenting order concerning [X] spending time with either of her older siblings in the absence of an explicit application from one or other of these siblings.
As is clear, I think, from the transcript, it was Mr Hopper, who initially made the concession that he did not “believe” the proceedings would “achieve a lot”, albeit at my invitation. It was in this context that
Mr Hopper raised the prospect of another outcome in the case, which apparently did not involve him being involved with [X]. He said as follows:
“MR HOPPER: In regard to the trial and the futility of it, I’m happy to make an offer in regard to not going to trial but it will always be conditional on [X] having a relationship with her brother and her sister. I’m fighting not just for myself but for them as well. They are both of the opinion that they will have to wait until [X] hates their mother just as much as they do, and that’s a very upsetting scenario. I’m happy if Ms Hopper were to promote the relationship between [X] and her two siblings that I would withdraw from the trial because, ultimately, I don’t believe this would benefit me in any way, shape or form – the trial or the process we’ve been through. …”
In response to this statement, I asked Mr Hopper what he proposed and whether he had something specific to put to the mother’s counsel about [Z] and [Y]. Mr Hopper indicated that he did not at that stage. This led to me making the following comments and making the following inquiries of Mr Winter:
“HIS HONOUR: Well, Mr Hopper, I can only deal with the applications I have and, as I said to you, you might think it trite but every case doesn’t have a happy ending. And this is not a perfect process. And I hear what you say about [Z] and [Y] but I don’t know what I can do about [Z] and [Y]. Have you a view about [Z] and [Y], Mr Winter? What can be done about them?
MR WINTER: Well, obviously, they’re not parties to these proceedings. They are not children anymore. Perhaps there is some force in Ms Tinnings’ submission that we have a directions hearing in – set the directions now but then adjourn it for a further hearing in ‑ ‑ ‑
HIS HONOUR: You see, I think there is probably much weight in what Mr Hopper says. If there can be a normalisation of the relationship between the three children who were in the one household for a long time.
MR WINTER: Yes.
HIS HONOUR: And I suspect that is, in practical terms, the only likely conduit between [X] and her father ‑ ‑ ‑
MR WINTER: Well, perhaps ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ but, in terms of devising mechanisms to do that – and I am not sure how it can be done.
MR WINTER: I can’t think of any mechanisms, your Honour, but perhaps the mother has heard this for the first occasion from the father.
HIS HONOUR: Well, I don’t know if she – I think it has been a theme of Mr Hopper’s position in the past.”
Accordingly, I do not think that it can be said that I dismissed
Mr Hopper’s position that it might possibly be a positive thing for [X] if she was able to renew her apparently severed relationship with [Y] and [Z]. It is also the case that I alluded to the possibility that the
re-establishment of these relationships might be a “likely conduit between [X] and her father. …”
Thereafter, Ms Tinning provided her instructions regarding what her client had done in respect of facilitating [X]’s relationship with [Z] and why from Ms Hopper’s perspective those efforts had not been successful. I said as follows:
“HIS HONOUR: All right. I don’t think, with the greatest respect, it is useful for the catalogue – for a catalogue of why it can’t happen. And I suspect what I have to do is confirm the hearing and each party can question the other, if it goes that far, and we will see what that achieves.”
Thereafter I made formal orders confirming the trial dates allocated and made directions about the filing of affidavit material. These trial dates have recently been vacated, given the fact that it is probable [Y] will become involved as a party to the proceedings but she will not be ready by next month.
The legal principles to be applied
Federal Magistrates and Judges have a duty to hear the cases listed before them in accordance with the listing practices of the courts to which they belong. They are not at liberty to decide which particular cases they will hear. Similarly, litigants are not entitled to decide who will hear their cases.
Accordingly, it is a significant matter to ask a judicial officer to disqualify himself from further involvement in a case properly listed before him. The application must be made on some substantial ground, relating to the fundamental principle that justice should be dispensed fairly, openly and impartially.
The High Court expressed the principle as follows:
“Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.”[7]
[7] See Ebner v Official Trustee in Bankrupty (2000) 205 CLR 337 at 348
The test to be applied in determining whether a judicial officer is to be disqualified, by reason of appearance of bias, from proceeding to hear a matter, was most recently stated by the majority of the High Court in Johnson v Johnson[8] as follows:
“…the test to be applied in Australia in determining whether a judge is disqualified by reasons of the appearance of bias (which in the present case, was said to take the form or prejudgment) is whether a fair-minded lay observer might reasonable apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”
[8] Johnson v Johnson (2000) 26 Fam LR 627 at 630
The test is based on the fundamental principle that justice must both be done and seen to be done. If fair-minded people either perceive or suspect that a court has a preconceived notion of the appropriate outcome for a case, it will inevitably lead to the erosion of public confidence in the judicial process.
However, the High Court went on to state that the “reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.” In particular, the High Court said as follows:
“The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of the “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 view which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.” (footnotes omitted)
In an earlier case involving issues of bias, which came before the High Court, Laws v Australian Broadcasting Tribunal[9] Gaudron and McHugh JJ described the hypothetical lay observer as follows:
“A reasonable bystander does not entertain a reasonable decision-maker will bring an unfair or prejudiced mind to an enquiry merely because he has formed a conclusion about an issue involved in the enquiry:
…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 a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.”
[9] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100
The proceedings before me on 2 December 2010 were “child-related proceedings” as defined by division 12A of the Family Law Act. Those proceedings also included an independent children’s lawyer, who had obligations placed on him pursuant to section 68LA(5) of the Act. These duties included the responsibility to place the views of the child concerned before the court and endeavour to minimise the trauma likely to be occasioned to her by the proceedings. In addition, an independent children’s lawyer is directed to analyse any family report applicable, with a view to determine what are the salient issues arising from such report.
In the jargon of judicial case management, the listing of the case on 2 December 2010 was a “case management event”. It occurred because Mr Winter had been appointed as the independent children’s representative for [X] and the family assessment report of Dr M was to hand.
Clearly, in my view, these two eventualities engage the provision of section 68LA(5), particularly in the context of the matter having already been allocated a final hearing date. In this context, I believe I was entitled to raise issues about the possible outcome of the proceedings, particularly in terms of the possible emotional implications for [X].
In the explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Act 2005, which was the legislation that implemented the provisions of Division 12A of the Act, it was said that the rationale of the division was “to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings.”
In particular, the explanatory memorandum said as follows:
“This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best interests of the child by encouraging parents to focus on their parenting responsibilities.
…
The court must consider the child’s needs and the impact that the conduct of the proceedings may have on him/her. In particular the court must consider the likely stress on the child of the conflict between the parents that is created by the proceedings and seek to minimise this.”
Conclusions
As the history of these proceedings demonstrates, I have been substantially involved in the litigation between the parties over a number of months. Part of my function is to manage and direct the proceedings in accordance with the ethos of Division 12A of the Family Law Act.
The proceedings concern [X], a child who is currently aged 11 years of age. The main focus of the case has been on whether it is likely to be in her best interests, in both the short and longer term, to spend time with her father and how some form of relationship may be maintained between the two. As such, it cannot be doubted that the case and its outcome must have a significant effect upon her.
[X] herself is not strictly a party to the proceedings, although in many ways, she is the person likely to be most intimately affected by their outcome. It is her views, not the views of the parties, which the court is directed to consider as part of its task in determining how her interests will best be served.
In recognition of this essentially inquisitorial aspect of proceedings relating to children, the applicable legislation recognises that, in some cases, it is appropriate for children to be represented independently of their parents and for an independent assessment to be made of their needs.
Both these eventualities have occurred in this case, so far as [X] is concerned. In assessing the potential impact of these proceedings on her, I would regard it as largely axiomatic that she would expect her views to have some significance for the court and her parents and it would not be helpful to her if she feels that her views are either discounted or disregarded.
Accordingly, although the case takes the form of an adjudication between the positions as advocated by each of her parents, the nature of the case is essentially an inquiry into what is the best outcome for [X]. The independent children’s lawyer is directed to use his endeavours to ensure that the result which he advocates achieves such a result.
In my view this inquisitorial nature of the hearing in a children’s case provides the rationale behind legislatively mandated principles directed at reducing the potentially aggressive and adversarial nature of proceeding between separated parents regarding arrangements for the care of their children. This is the goal of so-called “active case management”.
This is a difficult case, which provides no obvious solution. All parties agree that [X] is estranged from her father, although her parents vehemently disagree as to the causes of this estrangement. However regardless of the aetiology of the estrangement, the fact remains that [X] has consistently maintained, to a number of experts involved in the case, that she does not want to speak with or see her father. At this stage of proceedings, this is the unchallenged reality of the case, as most recently expressed in the comprehensive report of an independent expert, Dr M.
Pursuant to section 69ZN of the Family Law Act, the court is directed to give effect to a number of principles in conducting proceedings relating to children. It is to have regard to the impact of such proceedings on any child and consider the needs of any such child. In so doing the Court is authorised “to actively direct, control and manage the conduct of the proceedings”.
Such directions are in keeping with the ethos of modern case management. It is no-longer the case that judicial officers are required to remain as silent as the sphinx during proceedings before them. In my view, this is particularly so in cases concerning the welfare of children, where the legislature has recognised the deleterious consequences for children of heavily adversarial litigation between their parents.
A case cannot be actively directed, controlled or managed, if the person who is presiding over it feels constrained to remain mute. Certainly, such passivity will not protect children from the consequences of adversarial litigation between parents or encourage a child-focused outcome to such cases. In addition, judicial silence is not likely to have any utility in how the needs of a child will best be met.
The purpose of the hearing on 2 December 2010 was to ascertain what were the views of the various parties concerned, including Mr Winter, regarding the on-going conduct of the case, in the light of Dr M’s detailed assessment of [X] and the dynamic of her family. Dr M’s report was not the first professional person to embark upon such an inquiry. Indeed one of the first things [X] apparently expressed to
Dr M was her apparent upset at having to tell another professional person what were her view about spending time with her father.
In the light of this state of affairs, it was in my view appropriate for me to inquire of Mr Hopper what he thought the proceedings might achieve. In so doing, I was, I believe, attempting to be child focused. It was he, not I, who initially indicated that he thought the proceedings would not achieve a lot.
Then, as now, I have no reason to doubt the sincerity of this opinion, given the difficult circumstances of this case, which I have long been at pains to indicate provides no ready or obvious solution. That is not to say I dismiss the emotional potency of them for Mr Hopper. However the focus of the case remains on its emotional impact on [X] rather than on Mr Hopper.
It was in this context, I first used the expression “exercise in futility” to which Mr Hopper now takes exception. However, it should be pointed that, in so doing, I used a conditional or subjunctive mood. I said it “may be an exercise in futility” and the expression arose following
Mr Hopper’s indication that, from his perspective, the proceedings would not achieve a lot.
I also, prior to the use of the expression, asked Mr Hopper to indicate more specifically to me what was the point of the proceedings. He provided a frank and heartrending but not particularly responsive answer to my question – “I’ve got to keep trying for my daughter”.
I also alluded to my concerns, perhaps metaphorically and imprecisely expressed, as to the damage such a hearing would have on the parties’ on going parenting relationship. Although, in so doing, I concede
Mr Hopper’s position that this relationship is currently non-existent and likely to remain so for the indefinite future. Accordingly, it may be regarded as simplistic for concerns to be raised about the possibility of it being further damaged by court proceedings.
However the test for ostensible bias in a judicial officer is what an impartial and fair-minded lay observer would make of the comments complained of by Mr Hopper. Given the circumstances of this case, particularly the following factors: [X]’s age; the fact of her repeated insistence to four experts that she did not wish to spend time with her father; and significantly Mr Hopper’s own concession that he considered the proceedings would not “achieve a lot”; I do not believe that such a person would consider that I had prejudicially prejudged the case.
In my view, it was congruent with modern practices of case management, in family law matters concerning children and in keeping with the ethos of the relevant legislation, as most recently enshrined in section 69ZN of the Act, that I inquired directly of Mr Hopper what he thought the proceedings brought by him would achieve. His answer to this question set the tone of the subsequent discussion which took place.
It was in this context that I inquired of Mr Winter what his view of the matter was. Again, given the structure of section 68LA(5) of the Act and given that it was Mr Winter who had engaged Dr M to provide the family assessment report in the case, I believe that this was a question I was entitled to ask. Mr Winter indicated his view that a trial in the case would have “limited value [given that [X] was] caught in the middle”.
In this context, after having alluded to the fact that [X] had been interviewed by four different experts and had maintained a consistent position she did not want to spend time with her father, I too questioned the benefit of a trial involving adversarial cross-examination as a mechanism for changing [X]’s attitude. This led me to make a generalised comment “not every case has a happy ending”.
This comment can perhaps be criticised for being either trite or clichéd. It is however, given its non-specific form, also a truism. This court frequently deals with very difficult cases, involving significant levels of conflict between parents, who hold vastly different views about what is the appropriate outcome for their children. Children deal with such entrenched conflict in many different ways. The outcome of such cases, whether they involve a formal adjudication or otherwise, is frequently problematic, so far as the family as a whole is concerned, particularly in terms of its future functionality.
In this context, I alluded, somewhat nebulously I acknowledge, to possible delays in healing and resolution for the particular family involved this case, which might be increased because of the trial process. I also raised issues of alliance and fracture in the family, which was a tangential reference to the putative involvement of [Z] and [Y] in the case.
This discussion led to Mr Hopper articulating his so-called offer to resolve the trial on the basis that [X] had some form of on-going relationship with [Z] and [Y]. To use his own words, he said “I’m fighting not just for myself but for them as well”. However, at that stage, it was common ground that neither [Z] nor [Y] had made a formal application to the court to spend time with [X].
In addition, Mr Hopper, at that stage, was unable to provide a fleshed out proposal for [X] to interact with her older siblings in the short to medium term. However, I do not think that it can be said that I dismissed Mr Hopper’s proposition out of hand or poured cold water upon it.
To the contrary, I engaged with Mr Winter about the issue and noted that there was much weight in the possibility of there being a normalisation in the relationship between [Z], [Y] and [X], who had lived in the same household for a long time. I also noted that such an outcome might provide a conduit between [X] and her father.
However, at that stage of the proceedings, I also observed that none of the parties themselves were able to suggest an actual mechanism as to how this could occur and I myself was unable to think of any. It was at this time I confirmed the dates allocated for the trial to take place and made directions as to the filing of affidavit material.
All in all, I do not think that a fair minded lay observer would reasonably believe that ultimately, if the case proceeded further, I would be incapable of bringing an impartial and unprejudiced mind to the issue of how [X] might have a meaningful level of relationship with her father in future. Notwithstanding I had expressed some reservations about the possible utility of the proceedings, albeit after Mr Hopper himself had expressed similar misgivings, which were echoed by Mr Winter.
To the contrary, I consider that I indicated my openness to the exploration of other avenues to ameliorate [X]’s paternal relationship through as yet unspecified mechanisms involving [Z] and [Y]. As matters have subsequently transpired, the March 2011 hearing has been vacated so that it can be seen whether [Y] will bring her application to court.
It should also be pointed out that one specific but central issue in the case was never the subject of any formal discussion or reference in what occurred on 2 December 2010 between me and Mr Hopper,
Ms Tinning and Mr Winter. This issue concerns the viability of [X] being transferred from her mother’s household into that of her father as a means of ensuring she has an on-going level of relationship with her father. This, after all, is Mr Hopper’s formal application. I made no comment whatsoever, either specifically or impliedly, in respect of this central issue.
It is a significant thing to ask a judicial officer to disqualify him or herself from the hearing of a matter by reason of perceived prejudgment or bias. Its effect is to suggest that I would either consciously or unconsciously conduct myself in a way other than in accordance with my Oath of Office.[10]
[10] see EL v ML (2005) FLC 93-245 at 80,033
As Toohey J said in Vakauta v Kelly[11] ,approving earlier comments of McHugh JA, “in the case of a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial, a conclusion that there is a reasonable apprehension that he is biased should not be drawn lightly.” This caution should be further tempered by contemporary case management practices and the emphasis in cases involving children on avoiding adversarial litigation as much as possible by encouraging parents to be child focussed and to reach mediated outcomes.
[11] Vakuata v Kelly (1998) 167 CLR 568 at 584-5
In addition the comments to which the applicant has taken exception must be placed in context. They were made before any oral evidence had been taken from the parties but at a stage at which there was evidence to indicate that the child, who is the subject of the proceedings, had unequivocally stated, on no less than four occasions, that she had no wish to engage with her father, the last occasion of which was to an independent expert engaged by the independent children’s lawyer.
In my view, in these circumstances, it would be absurd if a judicial officer was not able to allude to the patent difficulties arising in the case, for the father, of him being able to achieve the apparent objective sought by him in the case – some form of relationship between him and [X]. That is quite a different process to the attribution of fault or blame, by the court, between the parents, as to the causes for the apparent parental alienation of the child concerned.
In my view, it would not be consistent with the court’s duty to consider the impact of the proceedings on [X], if it stood mute in the face of her stated and repeated preferences to independent experts regarding her relationship with her father, untested though those expert opinions are. I do not think that such silence could be regarded as being congruent with the objectives of so-called child-focussed litigation or the desirability that the parties to such litigation should have a cooperative relationship, as parents, following its conclusion.
However, ultimately much litigation in this court, in spite of well-intentioned legislative amendment, remains highly adversarial. It does remain focused on who of the parties is more at fault and, as such, leads to cases in which each party elaborates lists of criticisms against the other. Although very often, the court has qualms about the utility of such cases and forebodings about their possible consequences, it remains obliged to determine them.
In confirming the hearing of the trial of the parties’ matter, I obliquely refer to such a situation in this case, when I said:
“...I suspect what I have to do is confirm the hearing and each party can question the other, if it goes that far, and we will see what that achieves.”
For all the foregoing reasons, I have come to the conclusion that the application herein is not properly based. Accordingly the order of the court will be that the application filed on 23 December 2010 is dismissed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 4 March 2011
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