Knowles & Douglas

[2021] FamCA 160

FAMILY COURT OF AUSTRALIA

Knowles & Douglas [2021] FamCA 160

File number(s):

PAC 1229 of 2019

Judgment of:

HANNAM J

Date of judgment:

26 March 2021

Catchwords:

FAMILY LAW – COURTS AND JUDGES – Disqualification – Apprehension of bias – Where the mother contends awareness of compromise parties had reached grounds feared deviation from deciding case on its merits – Where there is no basis upon which a fictional observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution to the parenting dispute between the parties – Application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Salerno & Salerno [2015] FamCA 774

Silva & Phoenix [2018] FamCAFC 41

Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

Number of paragraphs:

50

Date of hearing:

13 October 2020

Place:

Parramatta

Counsel for the Applicant:

Mr Livingstone

Counsel for the Respondent:

Ms Mahony

Solicitor for the Independent Children's Lawyer:

Ms Lam

ORDERS

PAC 1229 of 2019
BETWEEN:	MS KNOWLES Applicant
AND:	MR DOUGLAS Respondent

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	26 MARCH 2021

THE COURT ORDERS THAT:

1.The mother’s Application in a Case filed 4 August 2020 seeking that I recuse myself is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

.

REASONS FOR JUDGMENT

HANNAM J:

INTRODUCTION:

1. Since March 2019 the parties have been involved in a dispute concerning the future parenting of their only child, a boy aged almost nine (“the child”). The salient issue in these proceedings is whether the father poses an unacceptable risk of harm to the child on the basis of sexual abuse.

2. Shortly after trial directions were made in April 2020, the parties reached agreement in relation to final parenting orders for the child with which the Independent Children’s Lawyer (“ICL”) agreed. Proposed orders in these terms (“the proposed orders”) were sent by email to my chambers on 4 June 2020 and filed with the Court a few days later.

3. The proposed orders provide in summary that the parties hold equal shared parental responsibility for the child and that the child live with the mother and spend time with the father which is to be initially supervised by the paternal grandparents.  The children’s time with the father under the proposed orders will then gradually become unsupervised and increase to each alternate weekend and half of each school holiday. Other proposed orders relate to restraints on the parties and overseas travel.

4. I did not make the proposed orders as sought in chambers and the proceedings were then listed before me on 20 July 2020 for submissions in relation to them.

5. At the court event on 20 July 2020, and in the context of considering the proposed orders, I made reference to the contents of a report which had been prepared by the expert appointed in the proceedings (“the expert’s report”). Due to an oversight on my part, I did not mark the expert’s report as an exhibit on that day but there can be little doubt that the parties were aware that I had taken the expert’s report into account when I declined to make the proposed orders in chambers. I then made some observations about the contents of the expert’s report which indicated to me that the orders proposed by the parties may not be in the best interests of the child, in particular as it may not bring about resolution of the parties’ dispute.  I indicated that the parties may wish to add some further orders or notations to address these concerns, and they were given an opportunity to have further deliberations in relation to these matters but ultimately no agreement was reached.

6. As the parties then no longer had agreement as to the orders to be made with their consent, the application for consent orders was withdrawn.  Further directions were then made to ready the matter for trial.

7. In this application, the mother seeks that I recuse myself from further hearing the matter on the basis of apprehended bias.

8. The father seeks that the mother’s application be dismissed and that the mother pay his costs in relation to this application on an indemnity basis.

9. The ICL did not wish to be heard on this application.

10. The question for me to determine is whether a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the matters yet to be determined in the proceedings.

    BACKGROUND

11. The mother who is 28 and the father who is 36 commenced a relationship in 2011.  The child was born in 2012.  The parties separated in 2015 after a breakdown in their relationship.  The child was around three when the parties separated and they agreed upon an informal arrangement whereby the child resided with the mother during the week and with the father on weekends.

12. The mother commenced parenting proceedings in relation to the child in March 2018 seeking final and interim orders that the child live with her, that she have sole parental responsibility for him and that the father be restrained from having any contact with or otherwise approaching the child.  In her Notice of Risk filed when she commenced the proceedings, the mother alleged that the father had sexually abused the child sometime prior to 24 December 2018 and physically abused him in the same year including on at least one occasion in November 2018.

13. I am not aware of the mother’s current proposed orders. 

14. As I understand it, the father denies all allegations of abuse made against him and seeks parenting orders so that he may be involved in the child’s life, but I am not aware of the terms of his current proposal.

15. The proceedings were allocated into the Magellan Program[1] a short time after they were initiated and a Magellan Report was prepared and released to the parties on 1 May 2019.

    [1] The Magellan program is a fast-track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.  A Magellan report sets out the involvement of the Department of Communities and Justice with the family.

16. Following an interim hearing before a Senior Registrar on 29 May 2019, interim orders were made for the child to spend time with the father every Sunday for six hours and that such time be supervised by either the paternal grandmother and/or the paternal grandfather.  The parties also consented to other orders including that the child live with the mother, orders relating to notification in the event the child had a significant illness or hospitalisation, mutual restraints on the parents’ conduct and also for the appointment of an expert to prepare a report for the purposes of the proceedings.

17. The expert report dated 16 January 2020 was released to the parties in February 2020.

18. For the purposes of the background to this application, I set out some of the contents of the expert’s report.  This in no way suggests that the Court has accepted the opinion of the expert which has to date not been tested through cross-examination. 

19. In one paragraph relevant for the purposes of these proceedings the expert opines:

    I note that [the mother] indicated she would experience a finding by the court that [the child] had not been abused difficult to reconcile and she may require therapeutic support if this outcome is realised.

20. In addressing some of the other matters upon which her opinion was sought, the expert prefaces her opinion in terms such as “if the Honourable Court determines that [the father] did not abuse [the child]” and “if the Court determines that [the father] did abuse [the child]”. The final recommendations made by the expert are in the alternate, depending on whether the Court determines that the father did sexually abuse the child or did not do so.  In addition, the expert recommends that if the Court determines that the father did not sexually abuse the child “[the mother] may require therapeutic intervention to support her to accept this determination”. 

21. Directions to ready the proceedings for trial were made on 16 April 2020 and it was noted that the parties anticipated that the final hearing will take approximately four days. 

22. The proceedings were listed for a compliance check before a Registrar on 25 June 2020 and it was anticipated that on that occasion, so long as the trial directions had been complied with, a final hearing date would be allocated. 

23. On 4 June 2020 proposed orders were sent by email to my chambers, and were also filed with the Court on 9 June 2020. 

24. The proposed orders provide, in summary, that:

    ·Both parents have equal shared parental responsibility for the child;

    ·The child is to live with the mother; and

    ·The child is to spend time and communicate with the father on a regime commencing with supervised time along similar lines to the interim orders, and progressing to substantial and significant defined time which is to be unsupervised.

25. There are no notations providing any context to the proposed orders.

26. The proposed orders were considered by me in chambers but were not made.  Rather, the proceedings were listed for submissions in relation to the proposed orders on 20 July 2020.

27. At the court event on 20 July 2020 (which was conducted by telephone due to the restrictions associated with the COVID-19 pandemic), I indicated to the parties that I did not have any difficulty with the general “framework” of the proposed orders but indicated that I had the following concerns:

    ·The mother was reported in the expert’s report as having told the expert that even if the court proceedings establish that the child’s disclosures (which the mother understood were complaints of sexual abuse) have been a misunderstanding, the mother will always hold doubt in the back of her mind;

    ·The expert had recommended that the mother may require some therapeutic intervention to support her in accepting the regime of orders which were now proposed by the parties (and the orders did not provide for such intervention);

    ·The framework of the expert’s recommendations, understandably, depend upon whether there is a finding of unacceptable risk posed by the father or such finding is not made.  The orders proposed were in line with the expert’s recommendations if there were no finding of unacceptable risk; and

    ·A notation to the orders to the effect that the mother acknowledges there is no unacceptable risk posed by the father on the evidence may, together with therapeutic support, assist the mother in accepting the recommendations and assist in resolution of the hearing on a final basis and reduce the risk of further proceedings.

28. I clearly indicated that the foregoing observations were “some thoughts I had about the matter” and gave the legal representatives an opportunity to respond and to obtain instructions from their respective clients. 

29. The father’s counsel supported the inclusion of a notation along the lines I had indicated and each legal representative then took the opportunity to speak to their respective clients. 

30. When the proceedings resumed, it was indicated that all parties agreed to the concept of a notation in relation to the matters raised (though there appears to be a typographical error in the transcript so far as the mother’s position as put by her legal representative is concerned), but had reached an impasse as to the terms of that notation. 

31. As agreement could not be reached about the terms of the notation, the result at the end of the court event was that the parties no longer had agreement about final orders that they sought the Court make with their consent.  Accordingly, the parties withdrew their joint application that such orders be made with their consent.

    THE APPLICATION

32. On 4 August 2020 the mother filed an Application in a Case seeking that I recuse myself from further hearing the matter.

33. It is the mother’s case that I am required to disqualify myself on the basis that a fair minded lay observer would apprehend that I may not bring an impartial mind to the resolution of the dispute. She contends that, as I have reviewed the proposed consent orders and in the exercise of my discretion not made the orders as sought, I have been privy to information which she contends would not generally be available to a trial judge, being the basis on which the parties were prepared to settle their dispute.  She contends that this would result in the fictional observer having the relevant feared apprehension.

    Apprehended bias

34. In Ebner v Official Trustee in Bankruptcy[2]  ("Ebner"), the plurality of the High Court (Gleeson CJ, Gummow and Hayne JJ) set out the test for disqualification as follows:

    Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

    [2] [2000] HCA 63; 205 CLR 337.

35. As explained, it is the mother’s contention that the matter that is said might lead me to decide the case other than on its legal and factual merits, is my awareness of the parties position as to the basis on which they were prepared to settle their dispute.

36. Although the applicant mother did not clearly develop in written or oral submissions the logical connection between the matter identified and a feared deviation from determining the case on its merits, she relies heavily on my decision in Salerno & Salerno [2015] FamCA 774 (“Salerno”). Counsel for the mother submits that the reasoning of the Court in that case is correct, and that the authorities relied on in that matter remain good law. In Salerno I had said the following in relation to the question of the logical connection between the matter identified and the feared deviation:

    So far as the first question is concerned, it has been clearly identified that my knowledge of the parties’ position arising from negotiations is the matter that might lead me to decide the case other than on its legal and factual merits. The logical connection between that matter and an apprehension of deviation from the course of deciding the case on its merits is that a fair-minded lay observer may consider that it is impossible for me to put this knowledge of the parties’ position including any compromise they may have reached, out of my mind in determining the matter.

37. I approach the matter on the basis that this is the mother’s contention in these proceedings, that it is impossible for me to put the knowledge of the party’s position out of my mind in determining the matter.

38. At the hearing of the application, the mother relied in particular on some of the comments I made on 20 July 2020. These comments were made after it became apparent that the parties had not reached agreement about a notation providing some context to the proposed orders, which I indicated might, if agreed to, have resulted in me making the orders to resolve the matter.  The comments identified by the mother in this regard are as follows:

    HER HONOUR:  …but the difficulty now I suppose is that, having seen these orders, whether the parties are going to have an application or anyone has an application, because I’m assuming that – well what do the parties wish to do?  I am really concerned that if I make these orders as they stand, without any form of notation of context or anything, that the dispute will not be resolved and that we will be back here, that’s my concern.  Because it can’t – anyway, so what are the parties wanting me to do now since you can’t reach agreement about a notation?

39. Later, when the mother’s lawyer indicated that the mother was now seeking that the matter be set down for trial, I said “right, will she have some other application though, as a result of me having known what she was prepared to consent to?”  Although identifying these remarks of particular concern nothing further was articulated by counsel on the mother’s behalf in relation to the application. 

40. In my view, the foregoing remarks cannot be interpreted as any indication of the prospects of success of any disqualification application that may be made and is not a matter that attaches any weight in the determination of this application.

    DISCUSSION

41. Both counsel submitted knowledge of proposed consent orders will not necessarily lead to disqualification in every case. 

42. In Silva & Phoenix[3] the Full Court held that the relevant enquiry must not only be the knowledge of any consent order, but the circumstances in which the Court declined to make the orders.  In that case, apprehended bias was established as the Court rejected proposed property settlement orders on the basis that those orders were “manifestly inadequate” and not just and equitable.  In other words, the Court in rejecting those orders effectively had made findings relevant to the property proceedings that the proposed orders were not just and equitable.

    [3] [2018] FamCAFC 41.

43. In the proceedings under consideration, I made no finding or even comment in respect of the central issue for determination in these parenting proceedings. Rather, the fictional observer would be aware from the interchange with counsel that my difficulty in making the proposed orders was that I could not determine whether those orders were proper and in the child’s best interests in the absence of findings as to the issue of unacceptable risk.  If, for example, it were the case that the father did pose an unacceptable risk of harm to the child, then the proposed orders would not be in the child’s best interests despite the parties having reached agreement in relation to them. The fair minded lay observer would understand that for that reason, a notation in which it was acknowledged or accepted by the parties that the father did not pose such a risk, might provide some context or a platform upon which such orders could be made.

44. It appears that the mother in these proceedings adopts the position that I explained the parties had taken in Salerno that, having been aware of the parties proposed orders, it would be impossible for me to put their respective positions out of my mind in determining the matter. 

45. However, as contended by the father, the circumstances of Salerno can be distinguished from the present case. In Salerno, both parties and the ICL sought that I recuse myself and ultimately, I did not decline to make orders that the parties sought as the parties did not reach consent on all aspects of the matter, but was made aware of their compromise.

46. In the circumstances under consideration, the fair minded lay observer would be aware that in parenting proceedings it is not unusual for parties to change their proposals over time and that the proposed orders amounted to nothing more than a proposal prior to trial which may or may not be considered by the Court to be proper in all of the circumstances.  The fictional observer would understand that I did not consider it proper to make the orders proposed by the parties at the time when there was a risk that the making of such orders would not resolve the central dispute between them.

1. The fair-minded lay observer would understand that I declined to make the orders sought by the parties at a time prior to final hearing and on the basis of the apparent undisputed facts.

2. The difficulty with making the proposed orders in these circumstances is that the central fact to be determined (whether the father poses an unacceptable risk of harm to the child) was unresolved.  Not making the proposed orders in circumstances where this central matter remained unresolved would not, in my view, be understood by the fair minded lay observer to indicate that my mind is so prejudiced in favour of rejecting a parenting proposal in the terms agreed to, that I will not alter that view regardless of the evidence or arguments presented at a future date.

3. In these circumstances, a fair mined lay observer may very well attach particular weight to the reasons given for declining to make the orders in the terms proposed (that is, my concern that it would not resolve the central matter of dispute between the parties), but this would not cause the fair minded lay observer to conclude that I would not bring an unprejudiced mind to resolving the parenting dispute. 

4. In all of the foregoing circumstances, I am not satisfied that the fair minded lay observer may apprehend that I may not bring an unbiased mind to the dispute. Accordingly, I dismiss the mother’s application for recusal.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.

Associate:

Dated:       26 March 2021