KSM & MNC

[2006] FamCA 597

[2006] FamCA 597

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No EA78 of 2005
AT SYDNEY  File No SYF2987 of 2004

BETWEEN:

KSM
Appellant Wife
- and -

MNC
Respondent Husband

REASONS FOR JUDGMENT

CORAM:  BRYANT CJ, KAY AND MAY JJ
DATE OF HEARING:                 22 August 2005
DATE OF JUDGMENT:             12 July 2006

APPEARANCES:  Mr Batey of Counsel with Ms Druitt of Counsel, instructed by Karras Partners, Lawyers, DX 3622, Double Bay, appeared on behalf of the Appellant Wife.

Mr Thomas of Counsel, instructed by, Meyer Pigdon, Lawyers, DX 11578 Sydney Downtown, NSW appeared on behalf of the Respondent Husband.

KSM & MNC
EA78 of 2005
CORAM:  Bryant CJ, Kay & May JJ
DATE OF HEARING:         22 August 2005
DATE OF JUDGMENT:     12 July 2006

Catchwords:           COURTS AND JUDGES – Bias – Appeal against refusal of trial Judge to disqualify himself for apprehended bias – Adverse comments about a witness who had yet to be called - A fair-minded lay observer would conclude the trial Judge took a strong dislike to aspects of the mother’s case at an early stage in proceedings when evidence only part heard – Trial Judge ought to have appeared to remain with an open mind until all evidence relevant to the issues on which he was commenting had been heard – Appeal allowed.

1. On 22 August 2005 we heard an appeal against the refusal of Cohen J to disqualify himself from presiding over a part-heard relocation dispute on the basis of a reasonable apprehension of bias.  On 25 August 2005 we made orders allowing the appeal, remitting the matter for rehearing with priority before a judge other than Cohen J and granting the parties relevant certificates under the Federal Proceedings (Costs) Act 1981 (Cth).  We indicated when we pronounced the orders that the reasons for judgment would follow.  These now are our reasons for making the orders.

Background

1. The parties are the parents of M born in October 2002.  They resided together in Sydney in a de facto relationship between June 2002 and March 2004. 

1. In April 2004 the mother filed an application seeking to be able to relocate with the child from Sydney to the Gold Coast.  The father opposed the mother’s application and sought orders either that there be a shared residence arrangement or that he have the full-time care of the child.

1. The competing applications came on for hearing before Cohen J on 4 April 2005.  Evidence commenced on the afternoon of 5 April with the wife being cross-examined that afternoon and on the morning of 6 April.  On the afternoon of 6 April one of the wife’s witnesses, R was interposed, as was the wife’s brother S.  His evidence continued until the morning of 7 April 2005 when the wife returned to the witness box.  She was cross-examined for a further hour and then the matter was adjourned until 12 April 2005 when it was briefly mentioned and then adjourned again to enable the mother to file an application seeking the trial judge disqualify himself.  That application came on for hearing on 24 June 2005 and was dismissed after the trial judge delivered a ruling on it on 6 July 2005. 

1. At the time we heard the appeal in August 2005 the part-heard proceedings before Cohen J had not been resumed.

The appeal

1. The Notice of Appeal contained three grounds:

“1.That His Honour erred in finding that a reasonable observer would not have apprehended that His Honour would not bring an impartial and unprejudiced mind to the case.

2.That His Honour erred in finding that his comments during the (part-heard) trial would not be likely to convey to a reasonable and intelligent lay observer and [sic] impression of bias.

3.That His Honour erred in finding that he should disqualify himself from further hearing of the substantive Applications.“

1. In opening the case before the trial judge Mr Batey on behalf of the mother said:

“The mother’s reasons for moving to the Gold Coast is that first of all she has, she says, all her family support and friends support living there.  She also has the opportunity to become a part owner in an interior design business.  She has not been able to obtain a similar offer in Sydney.  And another factor is that her father has terminal cancer and she suggests, and the evidence, we say, would support it, there is a very good relationship between the child and maternal grandfather. …

…The main plank is that she says that she has no support down here, she has many opportunities there and she is near her family and friends.

…

…So there is no mistake about the mother’s position.  She says, and we suggest you will gather this from the affidavit material, that the cooperation and communication between these parties is abysmally low, and therefore she says that even if he were to move to Queensland, any prospect of a shared care arrangement on a 50/50 basis would not be feasible.”

1. In his opening the father’s counsel Mr Thomas indicated that absent any opportunity for substantial input into the child’s life the mother would not do anything to encourage the relationship between the father and the child.  He also indicated that his client remained very skeptical of any business arrangement that had been made between the mother and her proposed business partner R and that the mother was a witness whose credit was severely under attack.

1. Amongst the witnesses proposed to be called by the mother was J, a private investigator.  He had sworn an affidavit in which he deposed that he was engaged on 17 April 2004 by the mother and her father to be present and witness the mother vacating premises in Sydney being the former home of the mother and the father.  He said that he attended at the home on 19 April 2004 with the mother’s father, her brother S and professional removalists who were employed to assist in the removal process.  He deposed that after the move he was further engaged by the mother’s father on an ongoing basis to:

“Keep an eye on things and make sure they are safe.  Utilise your experience and keep me advised.”

1. He further deposed that he was present on a number of occasions when the father attended at the mother’s address for contact purposes.  He was also in attendance at the Sydney home when the mother went to collect the child at the end of a contact period.  He also deposed of other occasions when he observed changeover at the Sydney property.  He said that he took offence to being described in the affidavits of the father and other people supporting him as “[the wife’s] thug”.

1. In the course of cross-examination of the mother’s brother S by Mr Thomas the following exchange took place [emphasis added]:

“Do you know who [J] is?---Yes.  He is a – I think he is a private – well, he does a few things but one of the roles he has is a private investigator and – yes.

All right.  Have you had anything to do with either actually engaging him or suggesting his engagement in relation to your sister’s Family Law matter?---Yes.  At the – just after the conversation mentioned by Mr Batey, [the wife] was very nervous about coming back and living with [the husband] because there was a bit of animosity between them and we were asked to come down and help her move out of her house.  And I think that the period that it transpired was between, say, a Friday and a Monday and we moved out on the Monday.  And over the weekend I had suggested to [the wife] and my dad that in the event that we do this I’d like as much as possible to do it properly, do it in a way where, you know, that there’s no – like, if [the husband] comes home and there’s an adversarial situation, there’s someone who is independent there to manager [sic] the situation---

HIS HONOUR:        You mean bully him?---Pardon?

You mean bully him?---No.  I – I didn’t – I didn’t want to be – I ---

[S], I want you to understand something? --Yes?

What you say to some degree might affect the outcome of these proceedings?---Yes.

So, I need to believe you and if you start telling me stories that no normal person would believe, I won’t – I’ll have difficulty believing you?---Okay. I – I did not suggest that we have [J] there to bully [the husband].  I---

But that’s what you knew it was for?---No, not at all.  Because [J] didn’t actually see [the husband] that day.  We’d – none of us saw [the husband] that day.  [J] also – and the other reason why I suggested it was that we take a proper record of the things that were moved out of the house so then at a later date that we could, you know, properly account that the things that were taken out of the house were only [the wife’s] things.  And actually, [J] spent most of the day not doing anything bar actually videoing the stuff that was taken out of the house.

But that was because [the husband] didn’t turn up as you feared he might, wasn’t it?---No.  Look, you know, I think that it was – it’s absolutely absurd to escalate a very difficult situation of moving her out of the house.  I’ve actually had a partner of mine move out of the house and I know how devastating it is.  And I also was aware that [the wife and the husband’s] situation at the time was inflamed and desperately didn’t want to inflame it any further.

And so you had someone there to bully him, to keep him quiet, so he wouldn’t try to stop her taking this (indistinct).

MR BATEY:   Well, your Honour, I object, your Honour.  Because your Honour, that’s the third time your Honour has used it and with great respect, your Honour ---

HIS HONOUR:        Because that’s how I see it and I’m entitled to put it to him to give him the opportunity to deny it.

MR BATEY:   You are, your Honour.  But three times, your Honour?

HIS HONOUR:        And that’s how I see it, Mr Batey.

MR BATEY:   Well, that’s how---

HIS HONOUR:        Have no doubt.

MR BATEY:   Well, your Honour, that really is tantamount to badgering because, your Honour, if I had put that three times---

HIS HONOUR:        I’m not badgering him.  I don’t accept his answer so far.

WITNESS:     Well, your Honour, even now I may regret that decision because of the questions you’re asking me but – but I did it with the best of intent.  It wasn’t intended to be a bullying process.

HIS HONOUR:        [S], if you didn’t expect him to be there and all you needed was somebody to record what was taken, you could’ve employed a photographer?---I’d not met [J] until the morning that we arrived.  I had no idea whether [J] was a big guy or a little guy.  I just knew – I just knew that we needed someone who was independent who was at that situation at the time.

You expect me to believe that, do you?---I – look – what I am I meant to ---

That you (indistinct) an independent person?---Yes.  And I suggested it – I didn’t suggest it, I – [the husband’s] the mother [sic] of [the wife’s] child.  I don’t want to – I don’t want to go and do the heavy on him while he is going through an awful situation of his partner moving out of the house and coming home to an empty house…”

The discussion between his Honour and the witness concerning [J’s] involvement continued for several more questions.

1. It was the mother’s case that she had an opportunity to go into a business venture with R in Queensland.  He ran an interior decorating business.  The mother relied upon an affidavit from R in which he deposed that:

“6.I am looking to purchase a new premises and a show room to expand my business operations.

7.In line with the expansion of my business I have made an offer to [the wife] for her to become an equity partner in the business.”

1. He was interposed and cross-examined.  It became apparent from his cross-examination that there were no concrete plans about the proposed joint business venture and that any particular concepts were in a fairly embryonic stage. 

1. It was apparent from cross-examination that R was on friendly terms with the mother and her parents.  He was asked by Mr Thomas:

“Now, you see, it’s not the case, is it sir, that you were told by one of the [wife’s family] that what [the wife] needed was someone to offer her a job in Queensland and would you be so kind as to do that, was it?--- No, that’s not the case.

…

Did you speak to either her father, her mother or her brother about putting this offer to her?---Yes, we have discussed it.

Have you spoken to any of those three people without [the wife] being present?---Yes, I have.

…

Did you speak to any of those three people, that’s [wife’s father], his son or his wife, between Easter and the date that you sent the first letter?---Yes, I would say I would have, yes.

And so which of those three would it have been, if it was only one or which combination of them, would it have been that suggested you write to [the wife] to offer her this position?---That was already discussed.”

1. The cross-examination concluded with the witness acceding to the proposition that the letter setting out the possible joint venture had been:

“created purely at the request of [the wife] to give her some sort of excuse to say she had a job or some business opportunity in Queensland.”

1. When the mother had returned to the witness box after R and her brother had been interposed she was directed immediately to R’s evidence about the proposed business venture.  The following exchange took place:

“Now, you were in Court yesterday at all stages during the evidence-in-chief and in cross-examination of [R]?---Yes, that’s right.

Ma’am, I put to you that your evidence and his concluding evidence just cannot stand together in relation to your plan to acquire an interest in his business?---The plan is and has been and still is that we would work together when I moved up there.  That is the plan.

HIS HONOUR:        Come on.  You heard his evidence?---We – yes, but we still – I still have every intention of going into business (indistinct)---

So now you’re going to work with him.  He said he was just put up to offer you this job by your father as a tactic in these proceedings.

MR BATEY:   Well, your Honour, with respect, I don’t think that is it.  What he said---

HIS HONOUR:        Well that was my understanding of his evidence.

MR BATEY:   That might be your understanding, your Honour, but that is not what he said.

HIS HONOUR:        No, that may well be right.

MR BATEY:   Thank you.

HIS HONOUR:        He didn’t say it.  But that’s the inference from it.

MR BATEY:   Well, if that’s the impression that your Honour has got, then that’s fair enough.

HIS HONOUR:        It is.  It is.

MR BATEY:   But I think it’s only fair to this witness, your Honour, that in fact if you’re going to quote him ---

HIS HONOUR:        All right.  Well, I’ll confirm what he said.”

1. The gravamen of the complaint about the trial judge’s conduct at this stage of the proceedings is that he has formed and expressed strong views about two witnesses whom he had yet to see in the witness box or hear be cross-examined.  In particular he has expressed strong views about J whom he has described as a bully and about the role that the mother’s father played in the arrangements concerning the involvement of both J and R.  These were contentious matters that remained to be resolved as part of the competing applications being heard by his Honour.

1. In the course of the submissions in support of the application to the trial judge that he disqualify himself in relation to this comments about J attending with the wife at the former matrimonial home “to bully” the father, when it was put to his Honour that there was no evidence to support that proposition his Honour said: “I live in the real world, not the theoretical world”.  Then when challenged as to the appropriate use of the term in light of the evidence of the mother as to why J was there his Honour said:

“I don’t beat around the bush.

…

…The suggestion was that he was there for no other purpose but to stop the husband from trying to stop the wife from emptying the flat out.  Well, if that’s not bullying what is it?”

Counsel pointed out that the evidence did not support the conclusion and when it had been put directly to the mother that J was there to bully the father she said “No” to which his Honour said:

“You really expect me to believe that, do you”.

1. His Honour indicated that he had mainly made the latter comment to give the mother the opportunity to reconsider an answer which might be considered difficult to believe. 

Conclusion

1. The test to be applied in determining whether or not a judge is disqualified by reason of the appearance of bias was discussed in Johnsonv Johnson (2000) 201 CLR 488; (2000) FLC 93-041 where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said (citations omitted).

“The governing principles

…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 prejudgment) 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.

… two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’.

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. 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 prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

... No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation.”

1. The application of the principles set out in Johnson to the facts of the particular case may leave room for debate.  However, in this case we came away from reading the material with the firm impression that a fair-minded lay observer would conclude that at an early stage in the proceedings, before several significant witnesses had been heard, the trial judge had taken a strong dislike to several aspects of the mother’s case which was unlikely to be changed by any further evidence.  His classification of J as “a bully” and his conclusions that the mother’s father had been instrumental in creating a false and artificial case to assist the mother were clearly conclusions that ought not have been made until after the witnesses had been heard and tested, and submissions made.  It was our firm conclusion that given the very serious consequences that flowed from a decision in the proceedings it was appropriate for the trial judge to appear to remain with an open mind in the proceedings until all evidence relevant to the issues about which he was commenting had been heard. 

1. Unfortunately in the circumstances of this case, we conclude that the trial judge has crossed the permissible boundaries and that although in his reasons for judgment he endeavoured to explain that his views were tentative, we think that the fair-minded lay observer would not share that conclusion.

1. For those reasons we determined that the appeal ought to be allowed and that the matter be remitted to another judge for further hearing.

I certify that the 23 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate