Kien and Lavan - [2010] FMCAfam 1266

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KIEN & LAVAN

[2010] FMCAfam 1266

FAMILY LAW – Application for judicial officer to disqualify herself – judicial officer had heard three interim hearings – whether comments made in exchanges with counsel or in reasons for judgment were sufficient for a lay person to form the view that she may not bring an impartial and unprejudiced mind to the final determination – application refused.

Family Law Act 1975, ss.60CC, 77

Ebner v The Official Trustee in Bankruptcy [2000] HCA63
Johnson & Johnson [2000] HCA48

Applicant:

MS KIEN

Respondent:

MR LAVAN

File Number:

ADC4258 of 2008

Judgment of:

Mead FM

Hearing date:

4 November 2010

Date of Last Submission:

4 November 2010

Delivered at:

Adelaide

Delivered on:

18 November 2010

REPRESENTATION

Counsel for the Applicant:

Ms Pyke QC

Solicitors for the Applicant:

White Berman

Counsel for the Respondent:

Mrs Lindsay

Solicitors for the Respondent:

Cardone & Associates

Counsel for the Independent Children’ Lawyer	Mrs Tinning
Solicitor for the Child	Barr Lawyers

ORDERS

That the application in a case filed herein by the husband on

26 October 2010 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Kien & Lavan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC4258 of 2008

MS KIEN

Applicant

And

MR LAVAN

Respondent

REASONS FOR JUDGMENT

Introduction

On 26 October 2010 the husband, who is the respondent in the substantive proceedings currently before the court, filed an application in a case seeking an urgent hearing and an order that I disqualify myself from further hearing the action. He sought further that the matter be adjourned for consideration and further trial directions by another Federal Magistrate. He also sought that the trial listing of

1 December 2010 be vacated and that the trial on children’s issues be listed before another Federal Magistrate as a matter of urgency.
Proceedings in this matter in respect of children’s issues commenced by way of the wife filing an initiating application on 16 December 2009. The child the subject of the application is [X] who was born [in] 2007 and is now aged 3 years and 3 months.
The wife sought on an interim basis that [X] live with her and spend time with his father on alternate Sundays from 9am to 6pm and other times as agreed between the parties. In the alternative she sought an order that [X] spend time away from the husband and his parents:-
a)
for not less than 2 hours on each day for the first week after the making of the order, for not less than 3 hours on each day of the second week after the making of the order, for not less than

3 hours on Monday to Friday inclusive of the third week after the date of the order and for a period of 6 hours on the Saturday;
b)the same orders in respect of the fourth week after the making of the order together with an additional period of 6 hours on the Sunday and further;
c)in the fifth, sixth, seventh and eighth weeks after the date of the making of the order a period of 3 hours on Monday to Friday inclusive of each such week and from 9am on the Saturday to 10am on the Sunday of each weekend;
d)as of the ninth week after the making of the order [X] live with her and spend time with the husband on alternate Sundays from 9am to 6pm and otherwise as agreed;
e)for each party to keep the other informed of all relevant medical details regarding the child and for each of them to be able to have liberty to have access to and confer with [X]’s health professionals and obtain copies of relevant reports;
f)the usual orders in relation to each party advising the other of any accident or emergency involving [X] and keeping each other informed of their address;
g)that the husband be restrained from taking [X] interstate or out of Australia without her prior consent;
h)a Family Assessment be prepared by a psychologist at the expense of the husband.
By way of final orders she sought that [X] live with her and spend time with his father on alternate Sundays from 9am to 6pm, as well as the orders in relation to health issues, accidents and emergencies, notification of change of address and the injunction relation to travelling out of South Australia or Australia. She also sought an order that the husband collect and deliver [X] from and to her residence.
The application was returnable for 1 February 2010, on which date the matter was adjourned to enable the husband to file responding documents.
It was noted that the parties were agreed on that occasion that current arrangements between the parties that provided for [X] to spend time with his mother at his child care centre were to continue pending further order of the court. The matter was adjourned to 26 February 2010.
The husband filed a response on 18 February 2010.
The husband sought orders on an interim basis that [X] live with him and for him to have sole parental responsibility for [X]. He also sought an order on an interim basis that [X]’s visits with his mother be supervised, that a Family Assessment report be prepared by a psychologist at the joint and equal expense of the parties, and that both parties be restrained from taking [X] interstate or out of the Commonwealth of Australia.
On a final basis the husband sought orders that [X] live with him, that he have sole parental responsibility for [X] and for [X] to spend time with his mother as ordered by the court.
On 26 February 2010 the parties agreed to be restrained from taking [X] out of the Commonwealth of Australia, to having his name placed on the Federal Police Watch List and for handovers to take place from and to [X]’s child care centre, with the husband not to be present. They also agreed that the wife be at liberty to provide a copy of the order made on 26 February 2010 to [X]’s child care centre.
The parties were unable to agree on interim arrangements for [X]’s care, and the court made the following orders after hearing argument:-
5. That during the period of the adjournment the said child do live with the father save as specified in paragraph 6 herein.
6. That during the period of the adjournment the said child live with the mother:

a.From 9:00 am to 12 noon on Tuesdays and 9:00 am to 5:00 pm from on Fridays save that in lieu of Good Friday 2010 the said child shall live with the mother from 9:00 am to 5:00 pm on 1 April 2010; and

b.That the mother be at liberty to continue attendance at the childcare centre.

7. That until further order the mother be restrained and an injunction is hereby granted restraining her from transporting the said child in any vehicle wherein the driver does not hold a current Australian driver’s licence.

8. All interim proceedings in this matter be adjourned to 4.15 pm 29 April 2010 NOTING forty (40) minutes allowed.

9. That each party file and serve not more than one further affidavit on or before 23 April 2010 as to the said child’s current circumstances and in particular as to the mother’s residency status and the status of her Chinese driver’s licence.

10. That the court facilitate the attendance of an interpreter in the Mandarin language on the adjourned hearing.

The matter next came before the court on 29 April 2010. Again there was no agreement between the parties as to the time [X] was to spend with his mother following upon that hearing, which resulted in further argument and the following orders:-
1.     That during the period of the adjournment:-
(a)    [X] born [in] 2007 live with each of his parents as follows:-
(i)with his mother from 9.30am to 4.30pm on each of Tuesday, Thursday and Friday of each week and on Mother’s Day 2010 from 10am to 5pm.
(ii)    with his father at all other times.

2. That all handovers be effected at the Community Children Centre, [address omitted], Adelaide SAVE AND EXCEPT on Mothers Day when it shall occur outside the [omitted] Cinema [address omitted] between the parties only in the absence of any other adult known to either party;
3. That the mother be at liberty to continue to attend at the said Child Care Centre.

4. That until further order paragraphs 1, 2, 3, 4 and 7 of the order of 26 February 2010 continue in operation NOTING HOWEVER the terms of paragraph 3 hereof.

5. That upon the mother providing to the father’s solicitor a copy of a document evidencing her having presented for and passed a test for a South Australian driving licence, paragraph 7 of the order of 26 February 2010 be discharged.

6. That until further order the parties be restrained and injunctions are hereby granted restraining each of them from changing the Child Care Centre attended by [X].

7. That until further order the father be restrained and an injunction is hereby granted restraining him from facilitating, instructing or requesting any person whatsoever whether a licenced enquiry agent or otherwise to observe, photograph, video or the like the mother and/or the child for the purpose of these proceedings.

8. Pursuant to Section 62(G)2 of the Family Law Act 1975 THAT a report be prepared as to such matters that are relevant to these proceedings directed to the best interest of the child [X] generally but in particular as to what time and under what conditions the child should spend with each of their parents, with the report to include observation of interaction between the child and each of his parents as well as with the paternal grandparents and to have particular regard to the issues raised in the father’s affidavit material as to the mother’s mental health and her residency status in Australia.

9. That the report be available to the parties and to the Court on or before 27 August 2010.

10. This matter be listed for trial at 10am on 1 December 2010 (2 days allowed).

11. Directions and interim issues be adjourned to 3 September 2010 at 9.30am (1/2 hour allowed).

12. Liberty to either party to apply.

On 29 April 2010, as well as the matter being given a trial listing for

1 December 2010, directions and interim issues were adjourned to

3 September 2010 on the basis that a Family Report would be available to the court and to the parties on or before 27 August 2010. It was hoped that this might assist the parties in their negotiations as well as assisting the court if the matter did proceed to a trial on 1 December 2010.
On 4 June 2010 the applicant wife filed an amended initiating application including issues relating to property settlement as well as an application for spousal maintenance. She also filed an application in a case seeking interim orders restraining the husband from taking [X] to any counsellor or psychologist unless ordered by the court and from taking [X] to the Early Learning Centre at [P] or any other Early Learning Centre/School unless ordered by the court. She sought also that the husband arrange for [X] to attend the Community Child Care Centre, [address omitted], Adelaide for child care each Monday to Friday. Both of those applications were returnable for 21 June 2010.
The husband did not file a response to the amended initiating application or the application in a case, but on 17 June 2010 filed an affidavit in response to the issues raised therein.
On 21 June 2010, orders were made after argument in the following terms:-
1.That on or before 16 July 2010 the respondent husband file and serve an affidavit with respect to issues of property settlement and a statement of financial circumstances.

2.That on or before 30 July 2010 the parties exchange mutual informal discovery.

3.That all inspection arising therefrom be completed by 26 August 2010.

4.That any relevant asset the value of which is not agreed in writing by the parties’ solicitors by 30 July 2010 shall be valued by a jointly appointed licenced valuer or valuers at the expense in the first instance of the husband by 17 August 2010 with the valuation or valuations to be filed by 30 August 2010.

5.That the wife pay to the husband one half of the cost of any such valuation contemporaneously with any payment to her of any sum by way of final property settlement.

6.That the parties and their legal representatives do attend at a Conciliation Conference with a Registrar of the Court on 1 September 2010 at 9.15am.

7.That pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be appointed to represent the interests of the said infant child [X] as a matter of urgency and to facilitate such appointment the parties respective solicitors do forward all documents filed to date on behalf of their respective clients to Mr Graham Russell of the Legal Services Commission of South Australia on or before 12 noon on 22 June 2010.

8.That the Court forward the order for the above appointment and copies of all orders made herein to date to Mr Russell by 12 noon on 22 June 2010.

9.That the father forthwith remove [X] from [P] Early Learning Centre and ensure that as an from 22 June 2010 the said child resume attendance at the [C] Community Child Care Centre in accordance with the terms of paragraph 4 of the order of 29 April 2010.

10.That until further order the parents be restrained and injunctions are granted restraining each of them from taking [X] to or facilitating the attendance of [X] upon any medical practitioner or allied health professional SAVE AND EXCEPT in the case of significant physical ill health.

11.That the independent children’s lawyer use his or her best endeavours to have read all of the affidavit material and annexures filed by each party herein to date NOTING that the court has not read the annexures to the father’s affidavit filed herein on 17 June 2010.

12.That until further order and pursuant to Section 77 of the Family Law Act 1975 (as amended) the father pay to the mother by way of urgent spousal maintenance the sum of FIVE HUNDRED AND FIFTY DOLLARS ($550) per week, first payment due on 25 June 2010 and weekly thereafter payable by direct deposit into the mother’s bank ANZ Credit Card Account.

13.That children’s issues be adjourned for argument to 2pm on 25 June 2010 (1 hour allowed).

The order made on that day for the appointment of an independent children’s lawyer was made on the basis of urgency, and interim children’s issues adjourned for further hearing to 25 June 2010, some three days later. An order was also made on 21 June 2010 for urgent spousal maintenance.
On 23 June 2010, two days after the order for the appointment of an independent children’s lawyer and the order adjourning interim children’s issues to 25 June 2010, an application in a case was filed by the husband seeking that order 4 of the orders made by the court on

29 April 2010, and orders 9 and 12 of the orders made by the court on 21 June 2010, be stayed.
Paragraph 4 of the order of 29 April 2010 restrained the parties from changing the Child Care Centre attended by [X]. Paragraphs 9 and 12 of the orders made by the court on 21 June 2010 were the orders requiring the father to remove [X] from the [P] Early Learning Centre and requiring him to ensure that as at 22 June 2010 [X] resume attendance at the [C] Community Centre Child Care Centre in accordance with paragraph 4 of the order of 29 April 2010, and the order restraining the parents from taking [X], or facilitating his attendance upon any medical practitioner or allied health professional save and except in the case of significant physical ill health.
On 25 June 2010, after hearing counsel for each of the parties and counsel for the independent children’s lawyer, interim children’s orders made on 29 April 2010 were continued until further order, the court declined to stay interim orders regarding the parties ability to change the child care centre attended by [X], and with respect to payment to the wife by the husband of spousal maintenance, directions and interim issues were adjourned to the previous adjourned hearing date of 3 September 2010 to await the receipt by the parties and the court of the Family Report, and the interim applications filed by the wife on 4 June 2010 and by the husband on 23 June 2010 were otherwise dismissed.
On 3 September 2010 the court ordered inter-alia that interim issues and trial directions with respect to children’s issues be adjourned to

27 September 2010. The expert report had been received by the parties later than anticipated and the adjournment was to enable the parties to properly consider the expert report.
On 27 September 2010, again after hearing argument, the court made directions with respect to the filing of trial affidavits and ordered that [X] spend more extended time with his mother, including some overnight time as follows:-

(1)That pending trial [X] born [in] 2007 live with his parents as follows:-

(a)   with his mother:-
a.     from 9.30am to 4.30pm on each of 28 September 2010 and 5, 12 and 19 October 2010;
b.     from 9.30am Tuesday to 4.30pm Wednesday each week commencing on 26 October 2010;

c. from 9.30am Thursday to 4.30pm Friday in each week commencing on 30 September 2010

(b) with his father at all other times.

I have only referred in these reasons to applications and orders concerning children’s issues, but note that substantive proceedings are also before the court with respect to property settlement.
It is in relation to the hearings concerning children’s matters that the complaints of the husband arise.
In late June or early July 2010 the husband filed a notice of appeal with respect to order 4 of my order of 29 April 2010 and orders 9 and 12 of my order of 21 June 2010. That appeal was discontinued by the husband on 5 October 2010, with no order as to costs.

Issues before the Court

In his affidavit filed on 26 October 2010, the husband referred to comments made by me during hearings on each of 26 February 2010, 29 April 2010 and 25 June 2010 on which he relied in support of his application. Those comments are set out in chronological order in paragraphs 13, 14, 20, 24 and 27 of his affidavit. I will refer to each of the comments later herein.
Counsel for the applicant husband argued that the husband’s complaints were based on an apprehension of bias without suggesting that the court had shown actual bias.
The question of apprehended bias was dealt with in detail by the High Court in Ebner v The Official Trustee in Bankruptcy [2000] HCA63 and Johnson & Johnson [2000] HCA48.
In the case of Johnson & Johnson (supra) Their Honours Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in their joint judgment in paragraph 11 at pages 492 to 493 “…it has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgement) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide…”
Their Honours went on to say in paragraph 12 and 13:
l)“That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice…”
m)“…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 the extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgement, as inscrutable as the Sphinx. In Vakauta v Kelly 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 pre-judgment. 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.”

In the same case, Kirby J., in his judgment commencing at paragraph 20 and concluding at paragraph 61, considered developments in the law of apprehended bias, the basic principles, which, in his words at paragraph 36 “explain the approach to apprehended bias established by this Court” and also considered the knowledge that should be imputed to the fictitious bystander and matters that lawyers know.
His Honour referred in his reasons, in paragraphs 36 to 45 inclusive, to what he referred to as “three interrelated reasons that explain the approach to apprehended bias established by this Court”. In paragraph 37 His Honour said “the first involves the ultimate foundation for the rule that an adjudicator must be free of actual or apprehended bias.” In paragraph 41 he referred to the appearance of justice and “…..the importance attached by the law not only to the actuality of justice (that is, whether the adjudicator had, in fact, pre-judged issues in the case) but also the appearance of impartiality both to the parties and to the community……”. In paragraphs 43 to 45 inclusive of His Honour’s judgment he referred to applying realistic criteria, and at paragraph 43 said “the third consideration grows out of the first two. However, it also derives from the changes that have occurred in society since the earlier rules were expressed in terms requiring proof of a “high probability” of bias before an adjudicator was disqualified on the basis of pre-judgement.”
In paragraph 44, after a discussion of a retreat from an earlier approach requiring affirmative proof of a “real danger” of bias before judicial disqualification was justified, His Honour went on to say “……despite these changes, there are still many constraints upon raising the possible disqualification of an adjudicator. If the party complaining is legally represented, the submission will require explicit instructions and usually be made after time for advice and reflection. The advice will weigh up a host of countervailing factors…..”.
His Honour said in paragraph 45 “such considerations lay behind the salutary warning given in re JRL; exparte CJL that judicial officers in Australia were obliged to discharge their professional duties unless disqualified by law. They were told not to exceed too readily to suggestions of an appearance of bias, less parties be encouraged to seek such disqualification without justification. Applications of that kind might sometimes be made in the hope of securing an adjudicator more sympathetic to a parties cause. Or they might be made because of the strategic advantage that may thereby be secured, especially the interruption of lengthy proceedings and the delays consequent upon obtaining a fresh start in a busy Court or tribunal.”
In Ebner & The Official Trustee in Bankruptcy [2000] HCA63, in their joint judgment, Gleeson CJ, McHugh, Gummow & Hayne JJ, stated at paragraph 3 “fundamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal.”
Ms Pyke QC of Counsel for the applicant husband submitted that when the court is deciding the issue of the possibility of reasonably apprehended bias, the concerns must be identified and there must then be an established connection between the issues of concern raised and the matter to be determined.
The principles laid down by the High Court in the cases referred to above and the comments made by Kirby J. in the second of those cases have provided the basis for the determination of applications for disqualification on the grounds of apprehended bias in all courts in Australia since that time.

Comments made by me on 26 February 2010

The first complaint raised by the husband relates to comments that I made from the bench prior to my determination of interim care arrangements for [X] on 26 February 2010.
At the time of the hearing on 26 February 2010, each of the parties had filed and served an affidavit in support of the orders they sought. The affidavit of the wife was filed on 16 December 2009 and that of the husband filed on 18 February 2010.
It was common ground that [X] was born [in] 2007.
There was dispute as to the exact care arrangements for [X] between that time and 11 September 2007 when [X] and the wife spent time overnight in the [omitted] Hospital, but it was common ground that the wife had been involved in [X]’s care on a daily basis.
On 14 September 2007 the wife was admitted to [omitted] Hospital where she remained for about one week.
It was the husband’s evidence that after her return to the matrimonial home on 20 September 2007, the wife cared for [X] during the day with both parents caring for the child in the evenings.
It was the husband’s evidence that on 19 October 2007 the wife was admitted to the [omitted] Hospital for a brief period and thereafter stayed with his sister until approximately 30 October 2007. On 30 October 2007 the parties signed a safety plan with respect to [X] with Families SA. The safety plan was annexed to the wife’s affidavit and referred to the wife being supported in the daily care and protection of [X] by the husband and his sister.
The husband’s affidavit referred to [X] living with him at his sister’s home as and from 30 October 2007 and going to work with him each day, with [X]’s care being shared between the husband and his sister in the evenings.
It was the husband’s evidence that by late December 2007 [X] was in the primary care of the husband living with him at his sister’s house, had commenced attending child care and that by 18 January 2008 he was formerly enrolled in child care five days per week.
The parties formerly separated in late February 2008. It was unclear on the affidavit material of the parties as to the time that [X] had spent with his mother from late 2007. The husband said the time had either been when [X] was at child care or when the wife visited him at the home of the husband’s sister. The wife’s evidence was unclear as to this period.
It was the husband’s evidence that by mid 2008 [X] had begun to spend increased time at the home of his parents such that he was eventually residing with the husband’s parents from Monday to Friday, attending child care each weekday and spending time with the husband on most weekends.
It was the husband’s evidence that he was also visiting [X] on a daily basis whilst he was at child care and spending time with him on most evenings at his parent’s home.
It was common ground that as of approximately April 2009 the wife and paternal grandparents were in dispute about [X]’s care arrangements such that she no longer visited [X] at their home but only saw him at the child care centre.
The wife’s application was filed on 16 December 2009. It was her evidence that she had made many requests and attempts to have [X] returned to her care as and from late 2007, which requests and attempts were unsuccessful. She deposed to having had little support in and limited knowledge of the English language and further that the husband had threatened and she believed that if she persisted with her request to spend more time with [X] Families SA would take him away following their earlier involvement in the matter. She also referred to not issuing proceedings earlier in the hope that she could negotiate an agreement with the husband and out of “respect” for his parents.
The husband was served with the wife’s application and affidavit on

18 January 2010. By then [X]’s day to day living arrangements, namely attending at child care on a full time basis from Monday to Friday of each week, living in the home of the paternal grandparents, and having his father spend time with him on weekends and visiting at the child care centre during the day, had been in place almost unchanged for all but some four months or so of [X]’s life, namely a period of about 2 years.
In paragraph 2 (p) of the husband’s affidavit filed on 18 February 2010 in preparation for the interim hearing on 26 February 2010, the husband deposed to having made a decision in 2010 “to again become the primary carer for [X]. I thought it best to commence a gradual transition of care from my parents to me. Therefore[X] currently stays with me a minimum of three (3) nights per week and continues to attend child care on weekdays.” He expanded on that issue in paragraph 6 of the same affidavit, and in paragraphs 7 and 8 deposed to both he and the wife wanting [X] to have a stable and secure home and his concerns about an increase in the likelihood of confrontations with the mother if [X] was living with him rather than with his parents. He deposed in paragraph 8 to being comforted by the order made on 1 February 2010 such that he felt secure enough to have [X] permanently live with him.
The hearing conducted on 26 February 2010 was an interim hearing. It was a hearing conducted on the papers with no cross examination involved. The evidence of each of the parties was untested, but I have referred to the commonality of the parties evidence with respect to [X]’s almost unchanged care arrangements for most of his life up to the time of the filing of the wife’s application in December 2009 and the serving of that application on the husband on 18 January 2010.
By that date it was obvious to both parties that [X]’s care arrangements were in dispute, and, absent an agreement between the parties those arrangements would be determined by the court. Such a determination both on an interim basis and on a final basis would have to be made by the court in accordance with the provisions of Section 60 of the Family Law Act[1] wherein the court is directed to make orders that are in the best interest of children taking into account in particular the factors set out in Section 60CC (2) and Section 60CC (3) of the said Act.
[1] Family Law Act 1975 (as amended)
I do not accept that the comments that I made as referred to in paragraphs 13 and 14 of the husband’s affidavit filed 26 October 2010 could be interpreted as a fore-warning that if the husband increased the time he spent with [X] I would presume that he had attempted to improve his position for the purposes of the proceedings, or that I might not bring an impartial or unprejudiced mind to the resolution of the action, as referred to in paragraph 15 of the husband’s said affidavit.
It is important that the comments I made on that occasion be read in the context of the entirety of the exchange between bench and bar commencing at 9.30am on Friday 26 February 2010 and concluding at 10.29am on that same day.
It was the husband who raised in his supporting affidavit the stability of [X]’s living arrangements up to the time of the first hearing on

1 February 2010, and it was his evidence that it was only after that date that he considered increasing the time that [X] spent overnight at his home. It was his evidence that this was because of the security that was provided by the court orders, which would ensure there was not an opportunity for hostility between he and the wife.
The issue of the husband’s apprehension of possible increased opportunities for hostility between he and the wife if [X] spent more time living in his home was raised in circumstances where the husband was the respondent to the proceedings and in respect of which he did not raise any specific allegations.
Throughout the exchange between bench and bar at the hearing on

26 February 2010 I made reference to my intention for orders on that occasion to be made initially for a very short period of time, to an acceptance of the submission of counsel for the husband with respect to [X]’s settled arrangements at the child care centre including lunch time and nap times, to his submission on behalf of the husband that [X] had had to that date for whatever reason, a particular pattern of existence for most of his life and to my concern about any dramatic changes to those arrangements. It was in that context that I raised the matters to which the husband had deposed in his affidavit about the possibility of changing [X]’s night time care arrangements quite dramatically from what they had been leading up to that date and time. I also said, in the context of limiting the mother’s time with [X] that I did not consider it to be in his best interests to have any dramatic change of living arrangements at that time.
I am satisfied, referring in particular to the matters raised in the joint judgment in Johnson & Johnson (supra) at paragraph 13 thereof, that I was merely expressing a view that reflected my thoughts at the time and that such expression should not on that account be taken to indicate that I had prejudged the issue. I raised the issues to indicate to counsel that I had commenced to think about the matter, and on the basis that I was assisting counsel by indicating the issues that I had thought about in case either on that occasion or at the next hearing counsel wanted to address those issues in further submissions.
I do not accept, in circumstance where both parties were by then aware that the issue of [X]’s short term and long term living arrangements were to be determined by the court in the absence of any agreement between them, that a fair minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the question of [X]’s living arrangements.[2]
[2] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63
It was submitted that my comments indicated that I had formed a view that the husband would not be spending additional time with [X] because he thought it was the right thing to do but because he was attempting to manipulate [X]’s living arrangements to improve his own position with respect to the proceedings overall.
It was submitted that in determining the ultimate issue the court had to determine the parties attitudes to parenting and parental responsibility.
It was clear I was concerned about dramatic changes proposed by both the husband and the wife as regard’s [X]’s day to day care arrangements.
The orders sought by the wife were a significant change in [X]’s day to day care arrangements.
The husband raised in his affidavit the fact that he was considering a significant change to [X]’s living arrangements as regards the amount of time he spent in the sole care of his father.
I am satisfied that I did nothing more than make it clear to both parties that these were issues to which I had turned my mind. I do not accept that such comment is indicative of a pre-determination of an issue or an unprejudiced mind. The Family Law Act requires a consideration of the impact on a child of a change in circumstances.

Comments made by me on 29 April 2010

The second complaint raised by the husband relates to comments made by me from the bench during the second substantial interim hearing on 29 April 2010. By that time the wife had filed two further affidavits on 4 March 2010 and 23 April 2010 respectively and the husband had filed a further affidavit on 28 April 2010.
The affidavit filed by the wife on 4 March 2010 was in response to that of the husband filed on 18 February 2010. In that document the wife disputed some of the husband’s evidence relating to his living arrangements and [X]’s care arrangements in the latter part of 2007 and in January and February of 2008. She otherwise responded to the issues raised in the husband’s affidavit filed 18 February 2010 as regards the difficulties the husband and the wife experienced in their relationship, her concerns that the husband had unilaterally made decisions about [X]’s care without consulting her, disputing the amount of time she had been responsible for [X]’s day to day care and expressing concern that the husband had at times sought to limit her time with [X] and impose unnecessary restrictions on that time.
In her affidavit filed on 23 April 2010, the wife gave evidence as to [X]’s circumstances at that time, the progress of the time he was spending with her pursuant to existing orders, the fact that she sought to increase [X]’s time with her to include overnight time and the arrangements that she had for him in those circumstances. She provided further details about her residency status and her drivers licence. These were the issues she was required to addressed pursuant to paragraph 9 of my order of 26 February 2010.
In the husband’s affidavit filed 28 April 2010, he made specific comment about observations of [X]’s physical state after spending time with his mother on 5 March 2010, 12 March 2010, 16 March 2010 and 19 March 2010. He specifically referred to [X] being tired, hungry and having a soiled nappy containing dried faeces on 5 March 2010, again being tired, hungry and having a soiled nappy containing dried faeces on 12 March 2010, and observing a bruise on [X]’s elbow on 16 March 2010 which he said had not been on the child when he was dropped off at child care that morning. He deposed to questioning the attendant at the child care centre when he collected [X] from there on 16 April 2010 as to whether or not the wife had anyone else with her when she returned the child, because of his concerns about the wife driving [X] whilst she was unlicenced. He further deposed as to his concerns that the child care centre attendant was being untruthful in her reply.
He deposed to [X] being awake but tired when he was collected at the child care centre at 5pm on 19 March 2010, with child care staff advising that he had slept from 2pm when he was returned until 5pm on that day. He deposed to it being his view that that information did not match with the tired state of [X] at 5pm.
He further deposed to [X] sleeping from 5pm to 8pm that evening at which time he was wide awake and that he did not sleep again until almost midnight. He said that concerned him greatly in terms of [X]’s sleep patterns and his “increasing perception that the staff at the child care centre were “protecting the mother’s behaviour.” He continued on in the same affidavit to depose to the fact that the pattern of over-tiredness and soiled nappies had continued, and to [X] having become increasingly anxious about going to the child care centre.
He deposed in paragraph 7 of that affidavit to deciding to engage a private investigator on account of concerns that he had that the mother was not complying with the orders of the court, for the purpose of making discrete observations as to whether the mother had complied with orders of the court and generally as to the welfare of [X].
He deposed to having made arrangements to have [X] attend [P] Early Learning Centre which he said [X] was very keen to do because he had cousins attending the school, and further that he was booked in on Monday, Tuesday and Friday until July when he could have a full-time position.
He said that he proposed to have [X] attend at the Early Learning Centre on Mondays, Tuesdays and Fridays of each week and continuing at the Child Care Centre on Wednesdays and Thursdays of each week until he could attend [P] Early Learning Centre for five days a week. He said in that same paragraph that in July he proposed to extend the time that [X] spent in the [P] Early Learning Centre to five days a week subject to his needs until he commenced attending at primary school.
On 26 February 2010, in addition to the orders made for [X] to spend time with his mother from 9am to 12 noon on Tuesdays and 9am to 5pm on Fridays, it was ordered that the wife be at liberty to continue attendance at the Child Care Centre.
The court had been advised by counsel from the bar table both on

1 February and 26 February 2010 that the wife attended at the Child Care Centre to spend time with [X], with Ms Dickson advising the court, in response to a question from me, that her client was attending at the Child Care Centre according to her affidavit on two to three days a week on average. No point was taken at that time by the husband’s counsel as regards that exchange. No specific orders were sought by the husband at the hearing on 29 April 2010 to restrict the wife’s attendance at the Child Care Centre to see [X], and although there were no specific orders in paragraph 6 (b) of the order of 26 February 2010 as to the number of days per week the wife could attend at the Child Care premises it was perfectly clear that the understanding of the court and the parties at that time was that the wife would continue to attend upon the Child Care Centre in the same manner as she had then been doing for a considerable period of time.

Annexure “B” to the husband’s affidavit filed 26 October 2010 is a transcript of the proceedings that commenced at 4.16pm on Thursday 29 April 2010 and concluded at 5.05pm that same day. Annexure “C” is a copy of the reasons delivered following upon argument on that occasion.
The issues in respect of which the husband raises his complaints are set out in paragraphs 20 to 24 inclusive of his affidavit filed on 26 October 2010.
The first of those matters related to the following exchange:-
Her Honour – “I hope it is nothing from a private detective or investigator, Mr Scragg’
Mr Scragg -“Yes it is Your Honour”
Her Honour - “I am about to make an order restraining your client from undertaking any such appalling behaviour – do move onto the next topic, Mr Scragg”
The husband was concerned, taking into account those comments and the restraining order that I subsequently made, and after perusal of my reasons for judgment, in particular paragraph 9, that I had pre-judged him personally and the matter generally.
Again in my view it is necessary to go to the entirety of the transcript of the proceedings on that day and the reasons for the interim judgement.
On 26 February 2010, I had ordered inter-alia that each party file and serve not more than one further affidavit on or before 23 April 2010 as to the said child’s current circumstances and in particular as to the mother’s residency status and the status of her Chinese driver’s licence. They were both matters of particular complaint on the part of the husband at the hearing on 26 February 2010.
I have referred to the affidavits filed by the wife on 4 March 2010 in response to the affidavit of the husband filed 18 February 2010, and in particular to her affidavit filed on 23 April 2010 in respect of [X]’s current circumstances, the mother’s residency status and the status of her Chinese driver’s licence.
The husband had not filed any affidavit within the timeframe specified in paragraph 9 of the order of 26 February 2010. He did however file an affidavit to which I have already referred on 28 April 2010. This affidavit was neither objected to by the wife’s counsel nor was there any suggestion from the court that the material contained therein should not be considered by the court at the hearing on 29 April 2010, notwithstanding the terms of paragraph 9 of the order of 26 February 2010.
At line 24 on page 3 of the transcript of the hearing on 29 April 2010 the husband’s counsel Mr Scragg advised the court that there was further affidavit material which he wished put before the court. The court declined to accept anything further and I repeated my request for Mr Scragg to advise the court of the orders sought by his client at that hearing. Mr Scragg went on to say that the further affidavit material had been filed but the court refused to accept it because it included a video of observation of the wife which on account of the CD disc the court refused to accept. I presumed from his submission that an attempt had been made to file the document. He said however that it was filed in a timely way. I declined to allow him to complete the submission and pointed out the terms of paragraph 9 of the order of 26 February 2010, the fact that both parties had filed a further affidavit in accordance with the order, advised that I would not accept the further material and requested Mr Scragg address me with regard to his client’s proposals.
Mr Scragg submitted that his client’s proposal was that the status quo, that is the existing order, be maintained, because following observations of the wife the husband had grave reservations about her capacity to look after [X]. The court asked Mr Scragg whether those concerns had been forwarded to the wife’s solicitor. He advised that they had, and Ms Dickson of counsel for the wife informed the court that she had seen the material on which the husband sought to rely for the hearing. She indicated that in the event that the court had been inclined to accept the material from Mr Scragg, she would have formally objected to the tendering of that material. Ms Dickson also pointed out that the affidavit referred to by Mr Scragg had apparently been sworn on 27 April 2010.
There was then further discussion between the bench and the bar as to the issue of material pertaining to the wife’s driver’s licence, after which Ms Dickson continued with her submissions as to interim orders sought by her client with respect to [X]’s care.
Mr Scragg then made further submissions as to concerns about the wife’s driver’s licence and the fact that even if she was able to legally drive it didn’t mean that she was competent to do so. I made certain enquiries of the wife’s counsel as to the wife’s ability to undertake a driving test, suggested that I would be likely to make such an order so that the wife would be required to satisfy the husband’s solicitors that she had passed a required driving test and then suggested to Mr Scragg that he could move on from the issue of the licence.
Mr Scragg then addressed the court in relation to issues raised in the husband’s affidavit, particularly the alleged condition of [X] when he returned to child care in terms of whether or not the wife had changed the child’s nappy and the like.
I put to the husband’s counsel that nothing had been obtained from the Child Care Centre to verify those concerns. He advised the court that he had only just come into the matter and that it did present a difficulty to him to “become abreast of all of the issues.” He then went on to say “there is, Your Honour, as I say, this additional affidavit material I have which indicates that there is a ………”.
It was then that I said to Mr Scragg that I hoped that it was nothing from a private detective or investigator. When he replied that it was I said “I am about to make an order restraining your client from undertaking any such appalling behaviour. Do move on to the next topic Mr Scragg.”
Mr Scragg, at my insistence, then continued with his submissions. These related primarily to concerns as to the wife’s capacity to care for [X], the fact that the extension of orders that she sought was beyond what was reasonable, and concerns as to the uncertainty of the wife’s residency status in Australia. He said that there were issues of concern in that the wife’s ability to remain in Australia was conditional upon the Minister intervening. He further submitted that the husband had requested of the Minister that the matter be resolved because of his concern that the residency application on the part of the wife may have been a motivator behind her seeking to spend time with [X], with the wife allegedly having demonstrated no interest in [X] for significant periods of time. He further submitted that until such time as there was “some sort of third party intervention” by “someone with expertise to properly address the matters”, the wife was not restricted from spending regular time with [X] at Child Care because she wasn’t working.
He also submitted that another concern of the husband were the issues that had led to the intervention of third parties in respect of disputes that had occurred within the family, and he said that they were seen to reflect upon the capacity of the wife. He said that external intervention had included insistence on the wife being referred for further treatment and help, that those issues “exist in a background and underlying way”, and that the husband was concerned that those issues meant that there should be no extension of time for [X] to spend with his mother particularly on any overnight basis.
Ms Dickson then raised the issue of [X] moving from the Child Care Centre to [P] Early Learning Centre as raised by the husband in his affidavit filed on 28 April 2010.
I then delivered judgment.
I referred in paragraphs 2, 3, 4 and 5 to the issue of the wife’s mental health. I found that the wife had significant difficulties leading up to and after the birth of [X], but made the comment that the question of what those difficulties could be attributed to appeared to be a moot point, with nobody in the medical field having made any particular findings or comments. I referred however to the fact that much of that had occurred a considerable period of time ago, and to the fact that on 26 February 2010 I had raised concerns as to the level of control that the father seemed to have exercised since the parties separated with respect to contact between [X] and his mother.
In paragraph 7 of my reasons I referred to the evidence contained in the husband’s affidavit filed on 28 April 2010 with respect to [X]’s proposed attendance at [P] Early Learning Centre. I said that that information confirmed, to a great degree, the level of control that the husband was attempting to exert over [X]’s life to the exclusion of the wife, in that he was purporting to make arrangements about [X]’s education without consultation with the wife. I said that it was extraordinary that he would consider that he had the right to make the extensive arrangements about [X]’s day to day care without consulting the wife.
I then referred to paragraph 7 of the husband’s affidavit of 28 April 2010 where he deposed to deciding to engage a private investigator on account of his concerns about the wife not complying with orders of the court. In paragraph 9 of my reasons I stated that I was perfectly satisfied to accept, even though the hearing on 29 April 2010 was an interim hearing and the parties evidence was untested, that there was likely to be a great deal of truth in the evidence contained in the affidavit of the wife filed on 23 April 2010, as to having been watched by the husband’s family when she collected and returned [X] to the Child Care Centre.
I also expressed the comment that the specific complaints made by the husband in his affidavit filed on 28 April 2010 as to [X]’s state of tiredness and cleanliness when he was returned to the Child Care Centre by his mother on each of 5, 12 and 19 March 2010, could easily have been corroborated by an affidavit from the Child Care Centre.
I went on to make comment in my reasons as to carefully having considered all of the material before the court, particularly the fact that the wife was frequently returning [X] to the Child Care Centre at 4.30pm on a Friday rather than at 5pm at the request of staff at that centre, her detailed communication book as to exactly what she and the child did during periods of time they spent together, the level of care she provided to him and the food and liquid that she provided to him as well as nappy changes that she gave him. I said this indicated that she was a parent who was well versed in the needs of a child and understood and met the needs appropriately. Nevertheless, I declined to extend the order for [X] to spend time with his mother to the extent sought by the wife, on the basis that any changes to [X]’s day to day arrangements should be slow and graduated.
I said that [X] should be spending time with a parent rather than at an Early Learning Centre or in a Child Care Centre for five days a week when there was a parent available for that care. I found that I was satisfied that the wife had taken on board the issues raised by the court, and that she understood and attended well to [X]’s day to day needs. I said however that that was not to say that [X] did not have a perfectly good, happy and secure relationship with his father and extended members of the husband’s household. I went on to comment that there was nothing in the laws of Australia that said that the husband should assume to himself the prerogative to make decisions about [X]’s day to day living arrangements without consultation with the wife.
Again, I am not satisfied that when looked at in their entirety that any of the comments made in exchange between the bar and bench during submissions or any of the comments made in my reasons for judgment on that day could be the basis for a reasonable apprehension on the part of a fair-minded lay observer that I would not bring an impartial and unprejudiced mind to the resolution of the question that I would ultimately be required to decide in accordance with the Act, namely how [X]’s interests are best met as regards the apportionment of his care between his parents.
I accept that the comments were robust. Nevertheless, the order in relation to the question of restraining the husband from facilitating, instructing or requesting any person to observe, photograph, video or the like the mother and/or the child for the purpose of these proceedings, was of an interim nature only. There was nothing to prevent the husband from filing an application in a case and an affidavit in support of that application, detailing the evidence on which he relied in support of such an application. This would have enabled the matter to be argued on an interim basis and the views of the wife’s counsel to be properly put before the court.
I referred to the issue of the husband obtaining information from a private investigator as to the behaviour of the wife whilst the child was in her care as “appalling behaviour”. The wife had already raised her concerns with the court as regards being watched by members of the husband’s family when she collected and returned [X] from and to child care. I considered it was important for the wife to be able to concentrate on [X]’s care during the time he spent with her and not be worried about every action she took. She had already provided to the court a detailed diary as to her care of [X]. The husband had not attempted to file any corroborative material from [X]’s Child Care Centre with respect to the allegations he raised in his affidavit filed

28 April 2010.
The ultimate question that the court is required to determine is one that involves inter-alia, a determination of the parenting capacities of each of a child’s parents. The court has to ultimately take into account the willingness and ability of each of a child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
I expressed clearly that [X] had a perfectly good, happy and secure relationship with his father and extended members of his father’s household.
I am satisfied that my comments did no more than raise certain tendencies of mind as to appropriate parental behaviour and appropriate methods of bringing evidence before the court (the issue of evidence from the Child Care Centre being easily obtainable having been raised by me),
I am satisfied that the views that I expressed could not be taken by a lay person to indicate pre-judgment, particularly when considered in the light of the entirety of the exchange between bench and bar on

29 April 2010, the reasons for judgment given that day and the orders made on that day. These provided for the wife to spend significantly less time with [X] than she had sought, and required the husband’s concerns about the wife’s ability to actually drive competently to be addressed by way of her undertaking a South Australian driver’s licence test and evidencing her passing of that test before she was permitted to drive [X] unaccompanied. The order further restrained both parties from changing the Child Care Centre attended by [X] on an interim basis only against the backdrop of the husband’s evidence that he intended to do so without consultation with the wife. The injunctive order against the husband with respect to surveillance was also on an interim basis only.
In paragraph 25 of the husband’s affidavit filed 26 October 2010 he suggests that he is unable to pursue or further his case in respect of the issue of spousal maintenance if he is unable to pursue evidence in terms of surveillance of the wife.
I repeat that the restraining order is an interim order only, that no formal application has been made to the court to permit the husband to undertake such activity, and in the event that such application was made by the husband in respect of either children’s issues or spousal maintenance in a proper and orderly fashion such that the husband deposed to the particular matters on which he intended to rely and in support of which he sought to be able to file surveillance to enable the wife to properly respond and argument to be had, the matter would be dealt with as an interim application in the normal course of events. I do not accept that the husband has effectively been restrained from pursuing that course.

Comments made by me on 25 June 2010

The next issue in respect of which the husband raises complaint arises from comments made by me in paragraphs 62, 70, 71 and 75 of my reasons for judgment delivered at a further interim hearing on 25 June 2010.
This hearing followed on an application in a case being filed on an urgent basis by the wife on 4 June 2010. In that application she sought that the husband be restrained from taking [X] to any counsellor and/or psychologist unless ordered by the court, that until further order the husband arrange for [X] to attend the Community Child Care Centre for child care each Monday to Friday, and that until further order the husband be restrained and an injunction be granted restraining him from taking [X] to the Early Learning Centre at [P] or any other early learning centre/school unless ordered by the court. She filed an affidavit in support of that application.
In that affidavit the wife deposed to matters relating to children’s issues, property settlement and urgent spousal maintenance.
With respect to children’s issues, the wife deposed inter-alia to the husband having enrolled [X] in the Early Learning Centre at [P] contrary to paragraph 4 of the order of 29 April 2010 and without her consent. She also deposed to having advised the husband by way of correspondence from her solicitor to the husband’s solicitor that she neither consented to that course or to the suggestion that the child be seen by psychologist Mr R, and further to receiving advice from his solicitor that the husband was not prepared to give an undertaking to the effect that he would desist from that course.
She deposed to having received advice from [X]’s Child Care Centre that [X] was as at approximately 26 May 2010 attending [P] Early Learning Centre on Mondays and Wednesdays of each week.
On the same day, namely 4 June 2010, the wife also filed an amended initiating application wherein she sought both orders with respect to property settlement and spousal maintenance. That application was also returnable on 21 June 2010.
On 21 June 2010, as well as making standard procedural orders with respect to settlement of property, I ordered the urgent appointment of an independent children’s lawyer and ordered the father to forthwith remove [X] from [P] Early Learning Centre, and ensure that as at

22 June 2010 he re-commenced attendance at the [C] Community Child Care Centre in accordance with the terms of paragraph 4 of the order of 29 April 2010. I also restrained the parents until further order from taking [X] to or facilitating his attendance upon any medical practitioner or allied health professional save and except in the case of significant physical ill health, requested that the independent children’s lawyer use his or best endeavours to have read all of the affidavit material and annexures filed by each party (noting that I had not read the annexures to the husband’s affidavit filed on 17 June 2010, being a transcript of the surveillance carried out by a Ms N of [omitted] Investigation Services Pty Ltd which apparently commenced on 1 June 2010, some five weeks after I made the order restraining the husband from pursuing such a course until further order, as well as photographs taken by the private investigator). I then adjourned the question of children’s issues for argument to four days later, being 25 June 2010, to enable [X] to be separately represented.
On 21 June 2010 I also heard argument with respect to the issue of urgent spousal maintenance. I made an order that until further order and pursuant to Section 77 of the Family Law Act 1975 (as amended), the husband pay to the wife by way of urgent spousal maintenance the sum of $550 per week.

On 23 June 2010 the husband filed the application in a case referred to in paragraphs 17 and 18 of this judgment with respect to an application to stay the orders concerning where [X] could attend for child care and whether he could attend on a psychologist.
At the hearing on 25 June 2010, submissions were made with respect to children’s issues by the husband’s counsel Mr Scragg, the wife’s counsel Mrs Lindsay and Ms Lee of counsel appearing for Mr Stuart Barr, the independent children’s lawyer.
It is the remarks made by me during the course of my judgment on

25 June 2010 in respect of which the husband complains.
My interim judgment given on that day following upon argument comprised some 82 paragraphs.
The issues of concern from the husband’s perspective arose from comments made in paragraphs 62, 70, 71 and 75 of those reasons.
He was concerned that as a result of comments made in those particular paragraphs I had prejudged him personally and prejudged his attitude to parenting such that I considered the fact that he had placed [X] in fulltime child care as an abrogation of his parenting obligations. He was concerned that at the final hearing I would be required to assess the nature of his relationship with [X], his capacity to provide for [X]’s needs including his emotional and intellectual needs, his attitude towards [X] and to the responsibilities of parenthood and the extent to which he had fulfilled or failed to fulfil his responsibilities as a parent. He was concerned that I might not bring an impartial or unprejudiced mind to the resolution of the action and that I had already shown a prejudgment of important issues in the matter and had restrained him from obtaining evidence to present his case at trial.
I have already commented on the interim nature of the order restraining the husband from obtaining surveillance evidence and the fact that the order was made on 29 April 2010 in circumstances where firstly the wife had raised, in paragraph 11 of her affidavit filed on 23 April 2010 her concerns about being watched by the husband’s family when she collected and returned [X] from and to the Child Care Centre and secondly where the husband had sought to put evidence from a private investigator before the court out of time prior to an important interim hearing.
No application was made to the court by the husband between the date of that order and the date of the filing of the application for disqualification seeking to put that evidence before the court, but in any event on 17 June 2010 an affidavit was filed by the husband annexing a surveillance report dated 1 June 2010 together with accompanying photographs, and a further affidavit was filed by the husband on 3 November 2010 for the purposes of trial annexing more detailed surveillance material.
The material annexed to the husband’s affidavit filed on 17 June 2010 was considered by the court at the interim hearing on 25 June 2010 following upon the independent children’s lawyer having had an opportunity prior to the hearing to read the material and make submissions with respect to same on behalf of the child.
I then also read all of the material annexed to the husband’s affidavit filed 17 June 2010 which I referred to in paragraphs 48, 49 and 50 of my interim judgment of 25 June 2010. I commented in those paragraphs that I concurred with the submissions of the independent children’s lawyer, namely that there was nothing in that material to my mind that supported the allegations made by the husband.
With respect to the issues raised in paragraph 62 of my judgment of

25 June 2010, I had already raised in paragraph 9 of my reasons of

9 April 2010 the issue of the husband being in a position to obtain corroborative evidence about his concerns as to [X]’s state of cleanliness and tiredness from the Child Care Centre.
I consider it was clear from the comments that I made on that day that I was open to receiving such affidavit evidence, particularly in light of the terms of paragraph 3 of my order of 25 June 2010.
These were all interim hearings. There had been nothing to prevent the husband from filing further affidavit material including, if he so wished, an affidavit from the Child Care Centre prior to the further hearing that ultimately occurred on 25 June 2010.
I made it clear in paragraph 62 of my reasons for judgment that I was raising the issue so that the husband was aware of the fact that I had turned my mind to the varying possibilities that might explain the absence of such corroborative material from the Child Care Centre. I considered it appropriate to do so, and far from being prejudicial, being a means of giving the husband an opportunity to address that issue appropriately.
As regards the comments raised by me in paragraph 70, 71 and 75 of my reasons for judgment on 25 June 2010, I consider that they need to be read in the context of paragraphs 70 to 78 inclusive.
The matters referred to in these paragraphs related to a consideration of the factor referred to in Section 60CC (3) (i) of the Family Law Act 1975 (as amended). These reasons were given at the conclusion of the third significant interim hearing in the matter and following upon submissions being made by the independent children’s lawyer who had been appointed just prior to that hearing.
The proceedings by that time had been before the court for some six months, with the husband consistently maintaining a position that [X]’s best interests could only be served by spending very limited and preferably supervised time with his mother.
I had not been able to find, on the papers filed by the husband in support of the orders he sought up to and inclusive of the third interim hearing, substantiation of any of the numerous concerns that he raised as to the capacity of the wife to appropriately care for [X], including his concerns about her mental health, her residency status, her driving capacity and her abilities to provide appropriate care for [X] in safe and secure circumstances.
The submissions of the independent children’s lawyer on 25 June 2010 were not supportive of the husband’s position.
I clarified in paragraph 72 of my reasons my comment as to the husband abrogating his primary care-giving role to the Child Care Centre against a backdrop of the wife having done nothing to bring the matter before the court for nearly 2 years after the parties separation. These were matters that needed to be considered on an interim basis, and reasons had to be given to support orders that were made.
Notwithstanding the findings and comments made on 25 June 2010, I again declined to make an order as sought by the wife that would extend the amount of time [X] spent with her each week. I am satisfied that I was doing nothing more than properly raising with the parties and with their counsel the matters which had occupied my mind by then on three interim hearings in circumstances where the matter was listed for a final hearing some five months later. I am satisfied that by so doing I gave each of the parties ample opportunity to address those issues with their legal representatives when preparing their affidavit material for the final hearing, at which time of course the evidence of each of them would be tested. At no time during any of the interim hearings did I make any finding to suggest that the husband had neglected [X] or that [X] had other than a close and loving relationship with his father and extended members of the husband’s family. Indeed, I was at pains to ensure that the stability of [X]’s life was not compromised by any dramatic changes to his day to day living circumstances pending trial.
I was however concerned as to the husband’s attitude to the wife generally and in particular to the issue of [X] having opportunity to spend time with his mother in circumstances where I was not persuaded on an interim basis that it was in his best interests not to do so.
I considered it important to bring these matters to the attention of the parties, particularly in circumstances where I had also commented on the fact that the wife had not instituted proceedings for nearly two years after separation. This was notwithstanding her evidence to the effect that she had been very unhappy with [X]’s care arrangements and her alleged lack of opportunity to play an important role in his dare during that time.
I do not accept that the comments made by me, no matter how robust on occasion, could indicate to a fair minded lay observer that I would not bring an impartial and unprejudiced mind to my determination of the parties competing applications at trial.
By the time this matter comes to trial in December 2010 it will have been in my docket for some twelve months.
In addition to the specific interim hearings to which I have referred in this judgment, the matter has been before me for the making of procedural orders with respect to property settlement and with respect to directions for the trial regarding children’s issues which is currently listed to commence on 1 December 2010.
I have been required to determine interim arguments in circumstances where, when the proceedings commenced, the wife had effectively spent no time on an unsupervised basis with [X] for most of his life. In making my interim rulings, particularly that of 25 June 2010, I was drawing the parties minds specifically to the factors referred to under Section 60CC of the Family Law Act and giving a clear indication of my thoughts about the issues arising thereunder well before the end of the case with the express purpose of assisting the parties.
I am satisfied when taking into account the matters in respect of which the husband has expressed concern against the backdrop of the evidence contained in the parties affidavits before the court, the submissions made by counsel on each of 26 February 2010, 29 April 2010, 21 June 2010 and 25 June 2010, exchanges between bench and bar during those submissions, and the reasons given prior to the making of interim orders on each of those occasions, that I should not disqualify myself from further hearing this matter to its conclusion.
I accept the submissions of Ms Pyke of counsel for the husband that the husband has not brought this application in an attempt to delay the proceedings and that he has indeed complied with the order with respect to the filing of affidavit evidence for the final hearing.
Judicial officers in Australia have a duty to sit and hear cases. They must be cautious in accepting an invitation from one party or another to find that comments made by them in interim hearings are justification for them being disqualified from determining the matter on a final basis. This is to ensure that such applications are not made too readily in the hope of securing a hearing in front of an alternative Judicial Officer who may be more sympathetic or to gain any advantage by an unavoidable delay in the proceedings.
I accept that the issues raised by the husband may arise more often in courts such as this where matters are allocated to judicial officers under a system of docket allocation which results in the judicial officer frequently being called upon to determine interim issues often on several occasions before the final hearing. They become familiar with the issues at a much earlier time than in a more traditional court system where the judicial officer may not be called upon to determine issues until trial. In my view it is therefore even more incumbent on the presiding judicial officer to bring to the attention of the parties and their legal representatives those issues to which their minds have been turned at an interim level. I do not accept that this course generally raises the issue of apprehended bias or that in this case the matters raised by the husband justified such a concern.
153. For these reasons I decline to disqualify myself from further hearing this matter and dismiss the husband’s application for such an order.

I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of Mead FM

Date: 16 November 2010.