Lawrence and Dehn (No 2)

[2015] FamCA 847

FAMILY COURT OF AUSTRALIA

LAWRENCE & DEHN (NO 2) [2015] FamCA 847

FAMILY LAW – COURTS AND JUDGES – Disqualification – Apprehension of bias – Waiver – In the context of contravention proceedings – Application for disqualification granted.

Family Law Act 1975 (Cth) s 70NBA.

British American Tobacco Australia Services Limited v Laurie [2011] HCA 2.
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337.
Lawrence & Dehn [2015] FamCA 475.
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342.
Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570.
Smits v Roach [2006] HCA 36; (2006) 228 ALR 262.
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568.

APPLICANT: Ms Lawrence

RESPONDENT: Mr Dehn

INDEPENDENT CHILDREN’S LAWYER: Ms Hafey

FILE NUMBER: PAC 4894 of 2008

DATE DELIVERED: 7 October 2015.

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 23 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Swaab Attorneys

COUNSEL FOR THE RESPONDENT: Ms Boyle

SOLICITOR FOR THE RESPONDENT: Eddy Neumann Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

Orders

1. I disqualify myself from further hearing in this matter.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4984  of 2008

Ms Lawrence

Applicant

And

Mr Dehn

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 11 July 2014 I found that the father had contravened parenting orders made in May 2013. The contravention was dealt with in the father’s absence.

2. For reasons which are dealt with in this judgment, the issue of penalty for the contravention was not finalised until 17 June 2015. The father then appealed three of the orders relating to penalty and costs.

3. On 23 July 2015, when two other outstanding contravention applications were before the Court, an application was made on behalf of the father that I recuse myself from further hearing on the basis of apprehended bias.

4. 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

1. On 7 May 2013 final parenting orders were made by consent with respect to the parties two children, C, who is currently 15 and F, who is now almost 14. Pursuant to the orders the children were to live with their father and spend limited supervised time with their mother once a month. C has had significant medical issues throughout his life associated with a brain tumour which has been present since he was an infant and particular orders were also made relating to the father providing the mother with information concerning C’s medical attendances.

2. It is not in dispute that the children have not spent time with their mother as provided for in the orders. The reason that this has occurred is a matter of significant dispute between the parties and central to the court events related to this current application.

3. On 5 May 2014 the mother commenced contravention proceedings alleging that the father had contravened two of the parenting orders. The mother alleged that the first contravention occurred in January 2014 when the father failed to make the children available to spend time with her. The second of the contraventions alleged that the father had failed to provide the mother in a timely fashion with details of C’s medical attendances in relation to significant illnesses between December 2013 and April 2014.

4. On 11 July 2014 the mother elected to proceed with the second of the alleged contraventions relating to the father’s failure to provide medical information. On that day I found the contravention proved in the father’s absence, having being satisfied that he had been served with the contravention application. Pursuant to s 70NBA of the Family Law Act 1975 (“the Act”) I varied the primary order by adding an additional order. The balance of the mother’s application was adjourned to 1 August 2014.

5. On 1 August 2014 the father sought to reopen the proceedings to adduce evidence in relation to a reasonable excuse for the contravention. This application was dismissed and the matter was adjourned to 12 August in relation to penalty for the contravention. The mother’s second contravention application also remained on foot.

6. The mother has since filed a further contravention application in relation to the children not spending time with her in August 2014.

7. On 12 August 2014 it was common ground that as the children had not been spending time with the mother in accordance with the 7 May 2013 orders, therapy with a qualified therapist should commence to facilitate this time occurring. The parties consented to orders that they attend upon a therapist and the primary orders with respect to the mother’s time with the children were suspended. Finalisation of the contravention proceedings was adjourned pending the commencement of therapy.

8. As it happened, C did not engage in therapy due to his medical condition in late 2014. The consent orders in relation to C’s attendance at therapy were subject to the opinion of his oncologist so far as his attendance was concerned.

9. Although the circumstances surrounding that therapist’s intervention with F are not entirely clear, I accepted statements by the therapist in an email to the father’s legal representative that F was compliant and the father was supportive of the therapy, but that in the opinion of therapist F was not at that stage ready to meet with her mother and he recommended that more time be allowed “for old wounds to heal”.

10. On 18 May 2015 the contravention proceedings were completed and a judgment with respect to penalty was delivered on 17 June 2015. The orders included an order that the parties do all things and make all necessary arrangements and appointments for them and the children to attend for family therapy with a different family therapist than the therapist who had been engaged in late 2014.

11. On 14 July 2015 the father appealed against some of the 17 June orders. The orders appealed against relate to the father being required to pay the mother’s costs and the imposition of a good behaviour bond.

12. The mother’s two outstanding contraventions (with respect to her time the children) were listed for 23 July 2015. There was also an application, which had been handed up in Court on 18 May but had not at that stage been properly filed, in which the father sought new parenting orders. On 23 July 2015, prior to dealing with any of the outstanding applications the father’s counsel made application that I recuse myself from further hearing the dispute between the parties.

13. The mother’s two outstanding contravention applications and the father’s Initiating Application, which was subsequently filed on 30 July 2015, have yet to be determined.

The Law

1. In Ebner v Official Trustee in Bankruptcy[1], the plurality of the High Court (Gleeson CJ, Gummow and Hayne JJ) set out the test for disqualification:

   6.       Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer 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.

   7.       The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

   8.       The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

   [1] [2000] HCA 63; 205 CLR 337

2. Mason J, in Re JRL; Ex parte CJL[2] said:

   5.It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.

   [2] [1986] HCA 39; (1986) 161 CLR 342.

What is said might lead to deciding the case other than on its legal and factual merits?

1. The application is founded upon the following matters:-

   ·That on 11 July 2014, the Court dealt with the matter in the absence of the father and in doing so accepted the evidence of a process server as to service which was disputed by the father.

   ·That on 11 July 2014, the Court found that the contravention was proved and that there was no reasonable excuse for it in the absence of the father.

   ·That the father was not given an opportunity to be heard in respect of these findings made on 11 July 2014 as he was not present and the application to reopen the proceedings on 1 August was dismissed.

   ·That the judgment in relation to the penalty delivered on 17 June 2015 includes a findings (at [62]) that it was more appropriate to deal with the contravention under the more serious contravention provisions.

   ·That the judgment in relation to penalty includes a finding (at [77]) that the father is resistant to complying with any order which requires him to share any form of ongoing co-parenting with the mother.

   ·That the judgment in relation to penalty (at [92]) implies that the father has not supported the relationship between the children and their mother.

   ·That the Court ordered the father to pay the mother’s costs with respect to the contravention in circumstances where the court could have found that it would not be in the best interests of the children for such an order to be made.

   ·That the penalty imposed upon the father with respect to the contravention is at the more serious end of the scale.

2. It is submitted on behalf of the mother that the father has waived his right to raise the issue of apprehended bias with respect to matters related to the proceedings in July and August 2014.

3. With respect to the submission that the father has waived his right to raise the matters arising from the events in July and August 2014, the father submits that the issues could not have been raised earlier as the proceedings with respect to the contravention were not finalised until June 2015.

Has the father waived his right to raise reasonable apprehension of bias with respect to the court events in July and August 2014?

1. In Smits v Roach[3] the High Court considered the issue of waiver in relation to apprehended bias due to association. It is clear from that judgment that it is settled law that “an objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and that, if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result”.[4]

   [3] [2006] HCA 36; (2006) 228 ALR 262.

   [4] Ibid at [45] per Gleeson CJ, Heydon and Crennan JJ.

2. In Vakauta v Kelly[5] where the High Court was dealing with a ground of apprehended bias related to comments made by a trial judge in the course of the proceedings it was said at [5]:

   5.Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object.

   [5] [1989] HCA 44; (1989) 167 CLR 568 per Brennan, Deane and Gaudron JJ.

3. In this matter, the father was legally represented on 1 August 2014, being the court event following the event in which the father was found to have contravened the primary order. On that date the father’s legal representatives made an application to reopen the proceedings so that the father could adduce evidence in relation to his reasonable excuse for contravening the order. He specifically did not seek to argue that he had been denied procedural fairness or that he was not aware that the proceedings were to be determined on 11 July. In these circumstances, I do not accept the submission that the father was not given the opportunity to challenge the findings made on 11 July which are said to ground in part the application for disqualification.

4. In any event and more importantly for this application, when the application to reopen the proceedings was refused, a matter which the father now argues would convey to a fair-minded lay observer that the court was biased against him, no application for recusal was made. Similarly, on the next occasion in court, 12 August 2014, when the father was represented by counsel, no application for recusal on this basis was made. The father also did not appeal against the findings in his absence that the order had been contravened or against the dismissal of the application to reopen the proceedings.

5. In my view, the father should not be permitted to rely upon circumstances that were known almost a year prior to the disqualification application after penalty in relation to a contravention committed by him is known. In standing by in August 2014 he has waived his right to rely upon these allegedly disqualifying facts.

Findings in the June 2015 judgment

1. The father’s position in relation to matters arising from the June 2015 judgment is that in dealing with the contravention under the more serious contravention provisions, making the findings referred to at paragraphs 62 and 77 and by inference at 92, ordering costs against him and imposing a bond, which is one of the more serious penalties available, the Court has pre-judged the matter in a manner adverse to the father. So far as the findings contained within the judgment delivered on 17 June 2015 are concerned, it is submitted on behalf on the mother that these are not matters which give rise to an apprehension of bias but are directed to alleged errors of law.

2. The order with respect to costs and in relation to the imposition of a good behaviour bond (which are two of the matters identified as alleged disqualifying matters) are now the subject of the father’s appeal. Although that appeal is yet to be determined, even on the assumption that some or all of the grounds of appeal may be upheld, it does not necessarily follow that errors of law if they be found, demonstrate prejudgment.

3. In relation to the findings complained of in the June 2015 judgment the father relies upon British American Tobacco Australia Services Limited v Laurie[6]. In that case the High Court was dealing with an apprehension of prejudgment said to arise from a judge having determined a matter in earlier proceedings involving different parties, which also arose in the proceedings under consideration. The question arose whether the trial judge may not be open to persuasion towards a different conclusion in the later proceedings to that he had reached in the earlier proceedings. In BATAS v Laurie (supra) the plurality closely examined the nature of the findings that the trial judge had made in the earlier case, the evidence upon which those findings were based and the nature of the application in which those findings were made. The appellant relied upon the decision of the High Court in Livesey v New South Wales Bar Association[7] in which it was said that:

   18.… a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.

   [6] [2011] HCA 2.

   [7] [1983] HCA 17 at [18]; (1983) 151 CLR 288 at 300.

4. The trial judge’s findings in the earlier proceedings in BATAS v Laurie (supra) were described in words which include the following:

   145.A reasonable observer would note that the trial judge's finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, … and that the nature of the fraud about which the judge had been persuaded was extremely serious.

5. An examination of my findings made in the June 2015 judgment is, therefore, required to determine whether I expressed clear views about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on a such a question of fact.

6. The first paragraph complained of is paragraph 62. It appears, however, that the more significant paragraphs on the same issue may be paragraph 63 and the first line of paragraph 64 which say:

   63.Section 70NFA(2) applies where a Court has not previously made an order imposing a sanction or taking an action in respect of a contravention or previously adjourned the matter in respect of a contravention (as is the case here) and the Court is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligation under the primary order.

   64.I am satisfied that the father showed such a serious disregard for the following reasons [the reasons are then set out].

   The critical finding here is that the father behaved in a way that showed a serious disregard of his obligations under the primary order.

1. The next paragraph which is said to ground the disqualification application is paragraph 77.  That paragraph is as follows:

   77.In my view, having regard to the matters set out in paragraph 64 of these Reasons, the father is resistant to complying with any order which requires him to share any form of ongoing co-parenting with the mother. In his Application in a Case he now seeks that order 20 be discharged and also seeks that the orders in relation to the mother’s time with the children be discharged. Although the further contraventions relating to the mother’s time with the children have not yet been dealt with, it is not disputed that the mother has not spent time with the children since the orders were made as required by the orders.

   The critical finding in that paragraph is that the father is resistant to complying with any order which requires him to share any form of ongoing co-parenting with the mother.

2. So far as paragraph 92 of my 17 June 2015 Reasons are concerned, it is said to be implicit in my finding that the father did not support the children’s relationship with their mother. Paragraph 92 says:

   92.In my view, the fact that the orders have not operated in the manner intended since they were made is a significant factor in this case. While not having determined two outstanding contraventions there is no dispute that the children have not received the benefit of spending time with the mother, or communicating with their [sic] so that their relationship with her, even in the limited sense envisaged in the orders, has not been supported.

3. In my view a criticism of the father is not implicit in circumstances where he agrees that the children have not spent time with their mother in accordance with the orders. Further, in other parts of the judgment (paragraphs 51 and 90), I refer to evidence which I accepted that the father was supportive of F attending family therapy to rebuild her relationship with her mother.

The second step – the logical connection between the matters identified and the feared deviation from deciding the case on its merits

1. So far as the second step is concerned, it is to be remembered that even if it could be said that the matters identified as disqualifying factors do give rise to a concern that the Court may decide future applications adversely to the father, this does not mean that a fair minded lay observer would conclude that there is a real possibility that the Court would not determine the case on its merits.

2. The contravention found proved concerned a matter of quite limited compass, being the failure of the father, as I found it, to provide information in a timely fashion to the mother. However, in the judgment concerning penalty I was required to determine whether the matter should be dealt with as a more or less serious contravention.  In determining to deal with the matter under the more serious provisions I made the finding that the father had behaved in a way that showed serious disregard of his obligations under the primary order.

3. The further contraventions alleged by the mother which are yet to be determined relate to quite different matters, that being the mother’s time with the children. With respect to one of these contraventions the father has already indicated that he does not dispute that the contravention occurred but will be seeking to prove that he had a reasonable excuse for the contravention.  He does not admit the second contravention. 

4. The finding in the 17 June 2015 judgment that the father showed a serious disregard for his obligations under the primary order is a question of fact which constitutes a live and significant issue in the subsequent contravention proceedings.

5. As has been previously indicated the father has also now filed an Initiating Application in which he seeks new parenting orders.  In determining whether it is in the children’s best interests for the parenting orders to be re-visited in accordance with Rice and Asplund[8] and determining any parenting application, if the proceedings are re-opened the issue of the father’s capacity to share ongoing co-parenting with the mother may well be a live issue.  My finding at paragraph 77 of the 17 June 2015 judgment that the father is resistant to complying with any order which requires him to share any ongoing co-parenting with the mother is an expression of a clear view about this question of fact.

   [8] (1979) FLC 90-725; (1978) 6 Fam LR 570.

Conclusion

1. For the reasons given, I am of the view that the father has waived his right to raise the matters from July and August 2014 in these disqualification proceedings as he stood by without complaint at the time those matters arose.

2. Some of the other matters said to ground the disqualification application are asserted errors of law. Although the exercise of my discretion with respect to those matters may generate an expectation in the father that I may decide other issues adversely to him, I am of the view that a fair-minded lay observer would not draw the conclusion that I will approach the outstanding issues otherwise than with an impartial and unprejudiced mind on that basis.

3. However, the fair-minded lay observer might reasonably apprehend that my findings that the father has shown a serious disregard of his obligations under the primary order and is resistant to complying with any order which requires him to share any form of ongoing co-parenting with the mother do logically give rise to a fear that the Court may not bring an unprejudiced mind to the determination of the outstanding contravention applications and parenting application. It is on this basis that I recuse myself from further hearing the outstanding applications between the parties

4. For the foregoing reasons I make the orders set out in the forefront of the decision.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 October 2015.

Legal Associate:

Date:  6 October 2015