Leena & Leena (No 2)
[2025] FedCFamC1F 97
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Leena & Leena (No 2) [2025] FedCFamC1F 97
File number(s): PAC 2225 of 2023 Judgment of: ANDERSON J Date of judgment: 20 February 2025 Catchwords: FAMILY LAW – APPLICATION FOR DISQUALIFICATION – Apprehended bias - Where an application for disqualification is made during contested final parenting proceedings – Where the mother asserts that the Court assisted the father’s counsel to tender documents but provided limited assistance to the mother’s counsel – Whether comments from the bench at the conclusion of the third day of trial might cause a fair-minded lay observer to conclude that the Court will decide the competing parenting applications other than on its legal and factual merit
FAMILY LAW – APPLICATION FOR DISQUALIFICATION – Where the mother fails to attend at the fourth day of trial on the grounds that she is gravely ill and attending at a hospital– Where the Court expresses concern about the care and welfare of the children – Where the father’s counsel makes an oral application for the children to be placed into his care for a period of two nights – Where the Court makes such an order – Where the mother asserts lack of procedural fairness – Where the mother relies on the orders made with respect to the oral application as a ground for disqualification – All grounds fail – application dismissed.
Legislation: Family Law Act 1975 s 69ZN(4), s 69ZN(6), s 69ZX(1)(c)
Family Law Amendment Act 2023
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.06, r 8.15(3)(e)
Cases cited: Acheson & Begbie [2023] FedCFamC1F 704
Adlin & Northern Territory Central Authority (No.5) (2021) FLC 94-019
Allesch v Maunz (2000) 203 CLR 172
Cooper v Wandsworth District Board of Works [1863] 143 ER 414
Delta Properties Pty Ltd v Brisbane City Council (1995) 95 CLR 11
Johnson v Johnson (2000) 201 CLR 488
Michael Wilson & Partners Ltdv Nicholls (2011) 244 CLR 427
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369
Division: Division 1 First Instance Number of paragraphs: 66 Date of hearing: 11 February 2025 Place: Parramatta Counsel for the Applicant: Mr Blackah Solicitor for the Applicant: Marsden Law Group Counsel for the Respondent: Ms Giacomo Solicitor for the Respondent: Soden Legal Counsel for the Independent Children's Lawyer: Mr Blank Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 2225 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LEENA
Applicant
AND: MR LEENA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 6
JanuaryFebruary 2025 and the Response to an Application in a Proceeding filed on 10JanuaryFebruary 2025 be dismissed.2.The costs of and incidental to the application referred to in Order 1 herein together with the costs of the hearing on 11 February 2025 be reserved with such costs to be certified fit for counsel.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 21 March 2025.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE ANDERSON
APPLICATION
The mother filed an Application in a Proceeding on 6 February 2025. She seeks Orders that:
(a)I recuse myself from presiding over the current proceedings;
(b)The matter be adjourned for Final Hearing to the next available date before a different Division 1 Justice to be allocated by the Court.
Although the application was not drafted with precision, I inferred and was later advised by the mother’s counsel that the mother’s application was brought on the ground of apprehended bias.
This proceeding has an extraordinary history. The parties separated on 24 September 2022 and the mother commenced proceedings in Division 2 of this Court on 5 May 2023. Since that time:
(a)The parties have filed 178 documents, and their competing applications have been the subject of 26 orders;
(b)The mother and the father have between them filed 29 subpoenas;
(c)The affidavit material in the name of the parties alone, which was filed for trial exceeded 1300 pages and the tender bundles of the parties exceeded 2000 pages;
(d)The mother has expended and otherwise exposed herself to legal fees in the order of about $275,000.[1] That sum does not include the costs associated with the application filed on 6 February 2025;
(e)The father has expended a sum of $300,034.60 and by the conclusion of trial, the father would have exposed himself to a further sum of $124,913 including work in progress.[2] As for the mother, that sum does not include the costs associated with the application filed on 6 February 2025.
[1] Costs Notice filed 20 January 2025.
[2] Costs Notice filed 19 January 2025.
At the heart of this heavily contested litigation, which involves parenting and financial issues, are two children aged nine years and seven years. The elder child has been diagnosed with an attention deficit hyperactivity disorder, Autism and a general anxiety disorder. The mother says that consequently, the elder child “struggles with concentration and staying on tasks”. She also says that the elder child “needs and requires routine and consistency as change or disruption to normal routine can cause dysregulation”.[3]
[3] Mother’s Affidavit filed 6 December 2024, paragraph 44(a).
The younger child has been diagnosed with Autism, a sensory processing order, attention deficit hyperactivity disorder and eczema.[4] As a consequence of her diagnosis with a sensory processing disorder, the mother says that the younger child is “sensitive to certain sounds and… [she] dislikes certain materials on her body… ultimately resulting in her crying and becoming distressed”.[5]
[4] Mother’s Affidavit filed 6 December 2024, paragraph 44(b).
[5] Mother’s Affidavit filed 6 December 2024, paragraph 44(b).
On 17 August 2023, and with the consent of each party, a Senior Judicial Registrar made an order to the effect that:
(a)The parties have equal shared parental responsibility for the children;
(b)The children live with the mother;
(c)After a period of gradually increasing time, the children spend time with the father from the conclusion of school on Friday (or 9.00am if a non-school day) to the commencement of school on Monday (or 9.00am if a non-school day).
The mother by her Further Amended Initiating Application filed on 6 December 2024 seeks an order that the children’s time with the father be reduced such that the children spend time with the father on alternate Sundays from 9.00am to 5.00pm.
For his part, and by his Further, Further, Amended Response to Initiating Application filed on 26 November 2024, the father seeks an increase in his time with the children such that during school term time, the children spend time with him for five nights per fortnight.
The recusal application is made in circumstances where the proceedings were listed before me for a five-day trial, which commenced on 20 January 2025. On the fourth day of trial, being 23 January 2025, I vacated the balance of the trial. I did so on an oral application of the mother’s counsel who advised me that on the morning of 23 January 2025, the mother had been taken to hospital. As discussed below, the mother produced a medical certificate, which indicated that the mother would be “unfit for work/school/usual activities” for the period 23 January 2025 to 25 January 2025.[6] By her Affidavit filed on 6 February 2025, the mother described her condition on 23 January 2025 as “gravely ill”.[7]
[6] Exhibit W7.
[7] Mother’s Affidavit filed 6 February 2025, paragraph 43.
On an oral application of the father’s counsel but having heard oral submissions from counsel for all parties and the Independent Children’s Lawyer, I made an order to the effect that the children spend time with the father from 5.00pm on 23 January 2025 to 4.00pm on 25 January 2025. That period is less than the time, which was afforded to the father by operation of the orders made on 17 August 2023.
It is against this background that the mother makes an application for me to recuse myself.
EVIDENCE
In support of her application that I recuse myself from presiding over the current proceedings, the mother relied on an Affidavit filed on 6 February 2025.
The mother annexed to her affidavit the following:
(a)An extract of the transcript of the proceedings commencing at 12.00pm on 22 January 2025 and concluding at 4.43pm;
(b)A transcript of the proceedings on 23 January 2025 commencing at 9.40am and concluding at 2.12pm.
The mother also relied on Written Submissions filed on 10 February 2025.
The application was opposed by the father. In support of his position, the father relied on:
(a)Response to an Application in a Proceeding filed on 10 February 2025;
(b)An Affidavit in the name of the father filed on 10 February 2025; and
(c)Written Submissions filed on 10 February 2025.
The application was also opposed by the Independent Children’s Lawyer. She relied on submissions prepared by her counsel and filed on 10 February 2025.
BASIS OF THE MOTHER’S APPLICATION
Having regard to the mother’s affidavit filed on 6 February 2025, I am able to discern the following bases for the application:
(a)That during the conduct of the proceedings, the mother observed me “to consistently assist [the father’s] counsel with respect to the tendering of documents”. The mother also says that:
On numerous occasions, His Honour interjected [the father’s] counsel during the course of my cross-examination to question whether she intends to tender any documents raised as exhibits in the proceedings. I don’t recall His Honour doing the same for my counsel during his cross-examination of [the father];[8]
(b)Comments made by me prior to the conclusion of the third day of the final hearing on 22 January 2025;[9]
(c)A concern on the part of the mother that I “may not have brought an impartial mind to the resolution of the questions with respect to the risk [the father] poses to the children in the parenting proceedings”;[10]
(d)A concern on the part of the mother that I have “to date focused solely on the issue of risk and how this could impact…[my] determination”. The mother also asserts that I have “formed a premature view having not yet heard all the evidence to be able to globally assess all factors that are relevant to determine the best interests of the children”. In support of this ground, the mother refers to my decision to place the children in the care of the father on the evenings of 23 and 24 January 2025 in circumstances where I was advised that the mother was in hospital;[11]
(e)An assertion by the mother that she has “not been afforded procedural fairness in these proceedings” as well as an assertion that the mother was not afforded procedural fairness on 23 January 2025 at which time, and as discussed, I made a decision to place the children in the care of the father;[12]
(f)A complaint by the mother that on 23 January 2025, I made parenting orders in her absence.[13] Further, the mother complains that the orders made that day “were inconsistent with the interim parenting Orders made on 17 August 2023 which provided for the children to be in my care during the period between 23 January 2025 and 25 January 2025”.[14]
JUDICIAL PREJUDICE
[8] Mother’s affidavit filed 6 February 2025, paragraph 27.
[9] Mother’s affidavit filed 6 February 2025, paragraph 28.
[10] Mother’s affidavit filed 6 February 2025, paragraph 29.
[11] Mother’s affidavit filed 6 February 2025, paragraph 30.
[12] Mother’s affidavit filed 6 February 2025, paragraph 33.
[13] Mother’s affidavit filed 6 February 2025, paragraph 34.
[14] Mother’s affidavit filed 6 February 2025, paragraph 35.
Apprehended Bias
The High Court in Johnson v Johnson (2000) 201 CLR 488 (“Johnson v Johnson”) (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), settled the debate as to the appropriate test to be applied in the case of asserted apprehended bias. Their Honours stated at 87,631-2 as follows:-
11.It is not contended that Anderson J was affected by actual bias. 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.
12.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. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, 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".
(Citations omitted)
The position in Johnson v Johnson (supra) was reiterated in Michael Wilson & Partners Ltdv Nicholls (2011) 244 CLR 427 in which their Honours Gummow ACJ, Hayne, Crennan and Bell JJ said:
63.In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that "[t]he 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". So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
(Citations omitted)
In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369, Keifel CJ and Gageler J observed that application of the test entails the following:
38.(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
For the reasons discussed below, and even taken at their highest, the complaints made by the mother would not lead a fair-minded observer to form a view that I would decide the competing parenting applications other than on its legal and factual merit.
APPLICATION OF THE LAW
I have regard to the six grounds on which the mother relies in support of her application. I make the following findings.
Ground One: That during the conduct of the proceedings, the mother observed me “to consistently assist [the father’s] counsel with respect to the tendering of documents”
The mother abandoned her contentions under Ground One at the commencement of the hearing. However, given that the mother maintained her argument until such time, I consider that the argument warrants some commentary. I also consider that this is necessary in the expectation that in due course, the Court will be asked to determine the question of costs of the application. Each of the father’s counsel and the Independent Children’s Lawyer prepared Written Submissions on the topic.
At the commencement of the trial, I advised each of the parties’ counsel and counsel for the Independent Children’s Lawyer that annexures to affidavits would not be accepted as evidence in the proceeding unless and until the relevant document was tendered and accepted into evidence. That ruling, of course, reflects the terms of r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). I advised counsel that I would require each of them to establish the relevance of any document, which they sought to tender and to otherwise establish the probative value of any proposed tender prior to the same being admitted into evidence. I advised counsel that I would take the same approach with respect to materials referred to in Tender Bundles.
I accept the mother’s assertion that on several occasions during her cross-examination by the father’s counsel, I interrupted and asked the father’s counsel whether she proposed to tender a document, which had been put to the mother. I accept that from time to time, and during the task of cross-examination, even experienced counsel inadvertently fail to tender documents relevant to his/her cross-examination.
The mother’s contentions have no merit given my ability to actively control and manage the conduct of the proceedings. Section 69ZN(4) of the Family Law Act 1975 (“the Act”) expressly provides me with that ability. Section 69ZX(1)(c) of the Act also provides me with the ability to give directions about how particular evidence is given. I reject any submission to the effect that by controlling and managing the tender of documents in an orderly fashion that a fair-minded lay observer might reasonably apprehend that I was not bringing an impartial and unprejudiced mind to the resolution of the parties’ competing parenting applications. I also note that the mother’s counsel did not raise any objection to the approach adopted by me at any stage.
With respect to the mother’s assertion that I did not provide her counsel with the same assistance during his cross-examination of the father, I make the following comments:
(a)At about 2.19pm on 22 January 2025, the mother’s counsel agreed with an assertion by me that the mother’s case had concluded. However, the mother’s counsel advised me that the closure of the mother’s case was “subject to tender of documents” and the evidence of “Mr D”.[15] The reference to Mr D is a valuer who was engaged by the mother as a shadow expert to prepare valuation reports for motor vehicles held by the husband;
(b)At 2.23pm on 22 January 2025, the mother’s counsel commenced his cross-examination of the father. Prior to the conclusion of the day, the mother’s counsel cross-examined the father for a period of about two hours and six minutes. In contrast, and on 20 and 21 January 2025, the father’s counsel cross-examined the mother for a period of about 6.5 hours. The mother’s criticism of my conduct must be seen in this context;
(c)On about ten occasions between 2.23pm and the conclusion of the day on 22 January 2025, the mother’s counsel produced a document to the husband for his consideration. With respect to those ten documents, six documents were marked as exhibits[16] and one document being an order proposed by the Independent Children’s Lawyer had been marked for identification.[17] Two of the six exhibits were only marked as exhibits after I reminded the mother’s counsel to do so.[18] The transcript also reflects that I assisted the mother’s counsel with the identification of a document and made effort to ensure that it had not previously been tendered;[19]
(d)The transcript reflects that on 23 January 2025, I marked various documents referred to by the mother’s counsel absent any request by the mother’s counsel to do so;[20]
(e)The mother’s counsel also sought to tender a document during the mother’s evidence-in-chief. Due to his failure to have copies of the document he sought to tender, the mother’s counsel indicated that a copy would be provided to the Court “in due course”. No objection was taken by me to such a proposal.[21] At the time of preparing this judgment, the mother’s counsel has not produced the document referred to during the mother’s evidence-in-chief. Such an outcome reflects the difficulties faced by a judicial officer when relying on counsel’s advice that he or she will tender a document “in due course”;
(f)It was also implicit from submissions made by each counsel that a list of “tenders” would be prepared in respect of any document, which may not otherwise have been tendered during evidence-in-chief or during cross-examination.[22] Those submissions regrettably ignored my earlier direction.
[15] Mother’s affidavit filed 6 February 2025, page 45 of 131.
[16] Exhibits W1 to W6.
[17] MFI 1.
[18] Transcript, 22 January 2025, page 52, line 1; Transcript, 22 January 2025, page 67, lines 40 to 47.
[19] Transcript, 22 January 2025, page 67, lines 40 to 47.
[20] Transcript, 23 January 2025, page 7, lines 5 to 10; page 8, lines 35 to 41; page 16, lines 14 to 19.
[21] Transcript, 22 January 2025, page 5, lines 31 to 32.
[22] Transcript, 22 January 2025, page 26, line 15.
Although this ground was abandoned by the mother at the commencement of the hearing on 11 February 2025, I would have rejected any submission that by a fictitious bystander would entertain a reasonable apprehension that I would not bring an impartial and unprejudiced mind to the resolution of the competing parenting applications.
Ground Two: Comments made by me prior to the conclusion of the third day of the final hearing on 22 January 2025
The transcript records that at the conclusion of the third day of trial, I made several comments with respect to the competing parenting applications.
The mother says she is concerned by reference to these comments that I “may not have brought an impartial mind to the resolution of the questions with respect to the risk [the father] poses to the parenting proceedings”.[23] She also says that my comments support a conclusion that I have “formed a premature view not having heard all the evidence to be able to globally assess all factors that are relevant to determine the best interests of the children”.[24]
[23] Mother’s affidavit filed 6 February 2025, paragraph 29.
[24] Mother’s affidavit filed 6 February 2025, paragraph 30.
I reject the mother’s contentions. I do so in circumstances where the remarks were made:
(a)After the mother’s case with respect to the parties’ competing parenting applications had closed. It follows that the mother had been cross-examined by the father’s counsel and the Independent Children’s Lawyer and her allegations had been tested;
(b)After I had heard evidence from the children’s “treating autism specialist”[25] and in part, the father.
[25] Affidavit of Ms E filed 15 January 2025, paragraph 1.
At the time I made my remarks, I had also read:
(a)an affidavit in the name of the children’s treating paediatrician. That affidavit was admitted into evidence with the consent of the father’s counsel and the Independent Children’s Lawyer;
(b)the balance of the affidavit material relied upon by the parties and the Family Report prepared by a clinical psychologist and child psychotherapist dated 11 June 2024.
Prior to making my remarks, I also referred to the often-cited passage of the High Court in Johnson v Johnson (2000) 201 CLR 488 at [13]:
13.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.
(Footnotes omitted)
My remarks appear at pages 72 to 74 of the transcript with respect to the hearing on 22 January 2025. I say as follows with respect to my remarks as they appear in on page 73 of the transcript:
(a)The remarks in the third paragraph were equivocal and prefaced by the words “I think”;
(b)At paragraph 4, I reflected on the terms of the Family Law Amendment Act 2023 and the legislative changes, which were implemented on 6 May 2024. I commented that those changes were designed to ensure that courts have access to a holistic picture of family safety in order to prioritise the safety of children;
(c)At paragraph 5, I said that “as at 4.42pm today”, I could not find that there is “a risk of child abuse”. Paragraph 6 and the comments made by me therein are inherently connected to comments referred to at paragraph 5. My view as expressed at 4.42pm was not a final view. I did not express any view whatsoever about the nuances of the matter such as the father’s compliance with medical advice, the participation of the children in extracurricular activities or the mother’s application requiring the father to be personally present during his time with the children. The mother’s counsel accepted this to be so. Equally, I made no comment whatsoever about the children’s diagnosis of attention-deficit hyperactivity disorder and Autism Spectrum Disorder[26] or the impact, which these diagnoses may have on the structure of parenting arrangements to be implemented by me. Similarly, I made no comment whatsoever about the capacity of the father to competently parent children with the diagnoses referred to above. When I asked for submissions from the mother’s counsel in response to these matters during argument, he said as follows:
I assume that your Honour is still mulling those things over.
[26] Father’s Affidavit filed 20 December 2024, paragraphs 72 and 73.
In circumstances where I did not touch upon these issues, and in circumstances where the mother’s counsel conceded that I was “still mulling those things over”, the mother cannot sustain an argument that I had failed to globally assess all factors relevant to my determination of the best interests of the children.
Further, and during oral submissions, the mother’s counsel focussed particularly on the words “I don’t think” as they appear on page 73 of the transcript relating to the hearing on 22 January 2025. He made a submission that the words “I don’t think that [the father] presents a risk to the child…I don’t think I will” is the “foundation for the submission that your Honour has predetermined the issue of risk in this case”. He conceded that the phrase adopted by me and referred to above represents the “high water mark” with respect to comments made by me at the conclusion of the day. The focus on the words “I don’t think”, however, must be seen in the context of remarks, which surrounded it. Particularly, I said as follows:
Is [the father’s] parenting such that there ought to be a reduction of time? I don’t know yet. Is his parenting good enough that it ought to increase to what the ICL says? I haven’t made my mind up yet.[27]
[27] Transcript, 22 January 2025, paragraph 6.
The mother’s counsel accepted that my comments were “entirely equivocal”. Referring to the words “I don’t think” as they appear on page 73, the mother’s counsel said as follows:
Your Honour, as I said, this is as high as I can put it on the submission that your Honour has prejudged the issue of risk to the children.
The mother’s counsel went on to say that the words “I think” is “an unequivocal statement that you don’t think that the father presents risk”. That submission, of course, is inconsistent with the concession made by the mother’s counsel that my comments were “entirely equivocal”. The submission is also inconsistent with a submission that in a general sense, I was “still mulling… things over”.
My remarks must be seen in light of the comments of the High Court in Johnson earlier discussed, and secondly in the full context in which they were made. Further, I consider that sections 69ZN(4) and (6) of the Act and the powers of case management afforded to me by r 1.06 of the Rules, afforded me with the ability to conduct the proceedings in a way that would achieve the overreaching purpose of the rules.
I accept that the comments made were unfavourable to the mother, however they were, to use the words of the High Court in Johnson at [13], no more than the identification of a “real issue” and “real problem” with the mother’s case.
As succinctly stated by Christie J in Acheson & Begbie[28]:
61.This particular complaint brings to mind the observations of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 cited by the Full Court in Strahan & Strahan (Disqualification) (2009) FLC 93-414:
… 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 [or she] will decide the case adversely to one party…
62.There is an interplay between the role of the judge as adjudicator and the role of the judge as case manager in a modern system of case management. The overriding principle of achieving timely and efficient outcomes for litigants means that a judge will, as occurred here, control the court room including permitting or disallowing questions as part of evidence in chief, cross‑examination or re-examination.
63.The Full Court in Scott & Munayallan [2022] FedCFamC1A 44 neatly summarised the principles which mitigate against disqualification in this passage at [25]:
The High Court of Australia has made plain it would be both an abdication of judicial function and an encouragement of procedural abuse for a judge to impulsively or too readily disqualify him or herself whenever requested by one party to do so (Livesey v NSW Bar Association (1983) 151 CLR 288 at 294; Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300 at 302). A judge should not disqualify him or herself for reasonable apprehension of bias unless substantial grounds exist (Bienstein v Bienstein (2003) 195 ALR 225 at 233; Vakauta v Kelly (1989) 167 CLR 568 at 584–585; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352).
[28] Acheson & Begbie [2023] FedCFamC17 704
The submissions of the mother’s counsel also overlook that my comments were from their commencement, qualified and I made it clear (supra) that my tentative view as expressed on the basis of evidence at a particular time was open to dissuasion or modification.[29] Having regard to the context in which my comments were made and taking the entire circumstances into account, I reject a submission that a fictitious bystander would entertain a reasonable apprehension that I would not bring an impartial and unprejudiced mind to the resolution of the competing parenting applications. It is not for the mother to pick and choose her judge according to her perception as to the manner in which the trial was unfolding. As succinctly summarised by Aldridge J in Adlin & Northern Territory Central Authority (No. 5)[30]:
4. It is well established that judges have an obligation to sit on matters that are assigned to them, except where there is some good reason, such as actual bias or the reasonable apprehension of bias, for them not to sit. It is not for litigants to pick and choose judges according to their perception as to the way that their choice might advantage them or disadvantage their opponents (Rajski v Wood (1989) 18 NSWLR 512 at [519]–[520]; Re: J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 per Mason J at 352).
5. In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ said:
19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
[29] Johnson v Johnson (2000) 201 CLR 488 at [55]
[30] Adlin & Northern Territory Central Authority (No.5) (2021) FLC 94-019.
My comments as summarised above are simply indicative of an adjudicator expressing a tentative view on the basis of evidence heard at a particular time.
For these reasons, I reject any submission that by a fictitious bystander would entertain a reasonable apprehension that I would not bring an impartial and unprejudiced mind to the resolution of the competing parenting applications.
Ground Three: I “may not have brought an impartial mind to the resolution of the questions with respect to the risk [the father] poses to the children in the parenting proceedings”
Ground Four: I have “to date focused solely on the issue of risk and how this could impact…[my] determination”
It is convenient to deal with these grounds at the same time. On one hand, the mother asserts that I have not brought an impartial mind to the resolution of the questions with respect to the risk the father poses to the children. On the other hand, the mother says that “to date [I have] focused solely on the issue of risk”. Those two positions are inconsistent.
In any event, and as discussed above, I did not express any view whatsoever about the nuances of the matter such as the father’s compliance with medical advice, the participation of the children in extracurricular activities or the mother’s application requiring the father to be personally present during his time with the children. Similarly, I did not address the facts, which underpin those topics. As discussed, I said nothing whatsoever about the children’s diagnoses or the capacity of the father to parent children with those diagnoses. Instead, I expressed a tentative view based on evidence, which I heard as at 4.42pm on 22 January 2025.
Given the matters referred to above, and in circumstances where I expressly qualified my view, I reject a submission that a fictitious bystander would entertain a reasonable apprehension that I would not bring an impartial and unprejudiced mind to the resolution of the competing parenting applications.
There is one further matter, which warrants serious consideration. That is, the mother’s counsel did not make any application for me to recuse myself at the commencement of the fourth day of trial. Indeed, he conceded that the gravamen of the mother’s application was a complaint about the conduct of the interim hearing on 23 January 2025 as opposed to the trial itself. The mother’s counsel and I had the following exchange:
His Honour: ...the gravamen of your client’s complaint relay relates to the interim hearing and her dissatisfaction with that component of the trial as opposed to [my conduct during] the trial generally?
Mother’s counsel: I think that’s probably the main thrust though, yes, your Honour.
Having regard to this comment by the mother’s counsel, my concern is that but for the mother’s dissatisfaction with the orders made by me on 24 January 2025, the mother would not have brought any recusal application. In any event, and whatever the scenario, I maintain my view that a fictitious bystander would not entertain a reasonable apprehension that I would fail to bring an impartial and unprejudiced mind to the resolution of the competing parenting applications.
Ground Five: An assertion by the mother that she has “not been afforded procedural fairness in these proceedings”
The mother asserts that she has not been afforded procedural fairness.[31] In support of that assertion, the mother says that my comments ought to be considered in the context of my “various urgings of the parties to consider the minute of Orders as presented by the Independent Children’s Lawyer”.[32] The mother does not provide any evidence in support of her assertion that I urged the parties to adopt the order promoted by the Independent Children’s Lawyer.
[31] Mother’s Affidavit filed 6 February 2025, paragraph 33.
[32] Mother’s Affidavit filed 6 February 2025, paragraph 33.
The allegation is also difficult to understand in circumstances where at paragraph 6 of the transcript relating to the hearing on 22 January 2025, I said as follows:
Is [the father’s] parenting such that there ought to be a reduction of time? I don’t know yet. Is his parenting good enough that it ought to increase to what the ICL says? I haven’t made up my mind yet.[33]
[33] Transcript, 22 January 2025, paragraph 6.
A comment by me to the effect that I was still weighing up the alternatives presented by the mother and the Independent Children’s Lawyer is far removed from a beseeching to adopt the orders promoted by the Independent Children's Lawyer.
In Allesch v Maunz (2000) 203 CLR 172, Kirby J made the following comments when discussing procedural fairness:
35.It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
…
38…it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39.Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
(Footnotes omitted)
The assertion that I failed to afford the mother procedural fairness by making the remarks referred to above misunderstands the concept of procedural fairness. I have not prevented the mother from having a fair opportunity to present her case.[34] After making the remarks, the trial proceeded for an additional three days and there was cross-examination of the father, the father’s partner and the single expert. For reasons not relevant to this decision, I also granted the father’s counsel leave to cross-examine the mother with respect to the content of an affidavit filed by her on 6 February 2025. That affidavit was, in part, directed to the reasons why the mother failed to attend at Court on 23 January 2025.
[34] Cooper v Wandsworth District Board of Works [1863] 143 ER 414; Delta Properties Pty Ltd v Brisbane City Council (1995) 95 CLR 11.
For these reasons, I reject the mother’s broad assertion that I failed to afford her procedural fairness.
Ground Six: A complaint by the mother that on 23 January 2025, I made parenting orders in her absence.[35] Further, the mother complains that the orders made that day “were inconsistent with the interim parenting Orders made on 17 August 2023 which provided for the children to be in my care during the period between 23 January 2025 and 25 January 2025”.[36]
[35] Mother’s affidavit filed 6 February 2025, paragraph 34.
[36] Mother’s affidavit filed 6 February 2025, paragraph 35.
On 23 January 2025, the mother failed to attend at Court on the basis that:
(a)She had food poisoning; and
(b)She had attended at hospital to ensure her well-being and the well-being of her unborn baby.[37]
[37] Affidavit of the mother’s solicitor dated 23 January 2025, paragraphs 3 and 5.
In support of an application to adjourn the trial, the mother relied on an affidavit in the name of her solicitor sworn on 23 January 2025.[38] By that affidavit, the mother’s solicitor said that:
(a)The mother was so unwell that she was “unable to participate [at the trial] electronically or by phone due to her current state particularly due to the symptoms and also her condition requires her to use the bathroom very frequently”.[39] I had asked the mother’s counsel whether the mother was able to participate in the trial by electronic means in circumstances where the father was under cross-examination by the mother’s counsel and the mother’s case had concluded (save for a decision, which had not been made by the mother with respect to her wish to call an adversarial expert to give evidence with respect to the competing financial applications);
(b)The mother was at the time of the tender of her solicitor’s affidavit returning to a public hospital. The mother’s solicitor said that on arrival at the hospital, the mother would endure “length [sic] wait times before she is able to be seen by a doctor or undergo any further testing”.[40]
[38] Exhibit W8.
[39] Affidavit of the mother’s solicitor dated 23 January 2025, paragraph 5.
[40] Affidavit of the mother’s solicitor dated 23 January 2025, paragraph 7.
In addition:
(a)the mother’s counsel tendered a medical certificate, which indicated that the mother would be “unfit for work/school/usual activities” for the period 23 January 2025 to 25 January 2025;[41]
(b)the mother’s counsel advised me during oral submissions that the mother was 35th in line to be seen at the emergency department of the public hospital. The mother subsequently confirmed the accuracy of this information.[42]
[41] Exhibit W7.
[42] Mother’s Affidavit filed 6 February 2025, paragraph 16.
By her Affidavit filed on 6 February 2025 in support of the recusal application, the mother described herself on 23 January 2025 as been “gravely ill”.[43] She says that her symptoms included “included [various conditions], which rendered me physically and mentally unfit to attend the hearing in person or via teleconference”.[44]
[43] Mother’s Affidavit filed 6 February 2025, paragraph 43.
[44] Mother’s Affidavit filed 6 February 2025, paragraph 18.
In these circumstances, I was concerned about the welfare of the children. Particularly, I expressed concern about the care and welfare of the children in circumstances where I was told that the mother had been to hospital and was again enroute to the hospital at the time of the hearing. I asked the mother’s counsel how the mother might care for two children with their diagnoses and behavioural difficulties if the mother was so unwell that she could not participate in the trial by even electronic means.
At 12.47pm, I adjourned to enable the parties to have a discussion about the children’s parenting arrangements given that the mother was in her own words “gravely ill”. Particularly, I said as follows:
If the parties want to have a discussion about the children’s parenting arrangements over the next few days, I don’t need to make any order about it…I am concerned about where the children might be, and I will come back if you need me to make any order.
After adjourning and providing the parties’ counsel with an opportunity to confer, I was advised that the father wished to make an oral application. Particularly, the father sought orders that the children spend time with him until 4.00pm on Saturday 25 January 2025 being a period of two nights. I provided each counsel with an opportunity to take instructions. The mother was at that juncture represented by her counsel and two solicitors. The mother also tendered evidence in support of her counsel’s submissions.[45] The tender was a letter authored by the mother’s solicitors providing scant information in relation to the mother’s partner of seven months and/or his relationship with the children. The mother elected not to call her partner to give evidence at the trial.
[45] Exhibit W10.
Whilst the mother was aggrieved by my decision to place the children in the care of the father for a period of two nights, she cannot in circumstances where she was represented by three legal practitioners, complain that her counsel did not have an opportunity to make submissions or present material.
It is true that the only affidavit material before me was the affidavit of the mother’s solicitor filed in support of the adjournment application (supra). However, I reject any assertion that I could not by reference to the material before me at the time, make a decision, which I considered to be in the children’s best interests. The mother’s counsel also conceded during oral submissions in support of the recusal application that there is no jurisprudence, which would confine me to the positions of the parties.
CONCLUSION
For all these reasons, I dismiss the mother’s Application in a Proceeding on 6 February 2025.
I will reserve the question of costs.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 20 February 2025
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