Loveridge & Emery & Anor
[2011] FamCAFC 226
•2 December 2011
FAMILY COURT OF AUSTRALIA
| LOVERIDGE & EMERY AND ANOR | [2011] FamCAFC 226 |
| FAMILY LAW – APPEAL – Application for disqualification – Where the trial Judge briefly represented the mother pro bono as a barrister some years previously – Whether the trial Judge erred in dismissing an application to disqualify himself – Where the application for disqualification was made on the last day of trial – The trial Judge was justified in rejecting the application for disqualification – The father’s conduct in delaying making the application constituted a waiver of his right to object – No appellable error found. FAMILY LAW – APPEAL – Where the father foreshadowed making an application for an adjournment on the last day of the trial when he appeared without counsel – Where the father absented himself from the hearing before the foreshadowed application was agitated – Where the proceedings had previously been adjourned at the father’s request – Where the father asserted he was not able to adequately represent himself – Where the father asserted that due to his state of health it was not appropriate to expect him to take further part in the proceedings – Whether the trial Judge erred by failing to grant an adjournment of his own motion – The trial Judge was justified in not adjourning the proceedings – No appellable error found. |
| Allesch v Maunz (2000) 203 CLR 172 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 CDJ v VAJ (1998) 197 CLR 172 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Vakauta v Kelly (1989) 167 CLR 568 Webb v The Queen (1994) 181 CLR 41 |
| APPELLANT: | Mr Loveridge |
| 1ST RESPONDENT: | Ms A Emery |
| 2ND RESPONDENT: | Ms E Emery |
| INTERVENOR: | Director-General of the New South Wales Department of Human Services |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Clark |
| FILE NUMBER: | NCC | 2444 | of | 2008 |
| APPEAL NUMBER: | EA | 51 | of | 2011 |
| DATE DELIVERED: | 2 December 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Thackray and Young JJ |
| HEARING DATE: | 28 November 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 March 2011 |
| LOWER COURT MNC: | [2011] FamCA 203 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE APPELLANT: | Self represented litigant |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Goodchild |
| SOLICITOR FOR THE 1ST RESPONDENT: | Oliver Campbell Heslop Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | In person |
| SOLICITOR FOR THE 2ND RESPONDENT: | Self represented litigant |
| COUNSEL FOR THE INTERVENOR: | Mr Anderson |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitors Office NSW |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sundstrom |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Denise Clark Solicitor & Advocate |
Orders
The Application in an Appeal filed on 23 September 2011 be allowed.
The appeal be dismissed.
There be no order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Loveridge & Emery and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 51 of 2011
File Number: NCC 2444 of 2008
| Mr Loveridge |
Appellant
And
| Ms A Emery |
First Respondent
And
| Ms E Emery |
Second Respondent
And
| Director-General, New South Wales Department of Human Services |
Intervenor
And
| Ms Clark |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The father has appealed against orders concerning his son, J, who is now 8 years old. The orders were made by Austin J on 29 March 2011, following a trial over four days in November 2010 and concluding on 11 March 2011.
The orders provide for the child to live with his maternal grandmother, and for her to have sole parental responsibility. The father is allowed only supervised time for four hours each fourth weekend. The mother can spend time with the child, as agreed with the grandmother.
The appeal is opposed by the mother and the grandmother, and also by the Independent Children’s Lawyer and the intervenor (the statutory child protection authority), all of whom sought orders at trial for the child to live with the grandmother.
The Grounds of Appeal
The father conducted the appeal without legal representation. Although his Amended Notice of Appeal, filed on 21 September 2011, contained six Grounds of Appeal, they can be distilled into three complaints:
(1)The trial Judge erred in refusing to adjourn the proceedings on the last day of trial, when the father appeared without counsel, and when his lack of preparation and state of health should have indicated he was unable to represent himself adequately;
(2)The trial Judge erred in refusing to disqualify himself when it was drawn to his attention, on the last day of trial, that he had once represented the mother in proceedings involving the father;
(3)The trial Judge erred in allowing the mother to rely on an amended Outline of Case filed shortly before trial, by which she abandoned her application for the child to live with her, and instead supported the intervenor’s proposal for the child to live with the grandmother.
The further evidence application
The father filed an application seeking to adduce further evidence in the appeal. All those opposing the appeal consented to the application, notwithstanding no argument had been advanced concerning the legal basis upon which it would be appropriate for the evidence to be received (as to which see CDJ v VAJ (1998) 197 CLR 172).
Given there was consent to the application, we will receive the additional evidence, which comprises the following:
·A medical certificate claiming the father was unfit for work on the last day of trial because he was suffering from “anxiety, depression, post traumatic stress disorder with somatic symtomatology of aggitation [sic] and grief relating to ongoing family court matters and failure of his matter to progress”.
·Documents relating to the complaint about the mother having been allowed to rely on her amended Outline of Case.
·An exchange of emails between the father and counsel who had represented him at trial.
·A letter sent by the Office of the Director of Public Prosecutions to the father’s then solicitors in 2006.
The relevance of some of these documents was not apparent, and the father did not refer to most of them in the course of argument.
The submissions on appeal
The mother’s Summary of Argument was filed out of time. Her counsel sensibly did not press her application for leave to rely upon that document when the father claimed he was prejudiced by the late filing.
We have therefore not had regard to the mother’s Summary of Argument, nor to the oral submissions made on her behalf. We note however, that the mother’s position was identical to that of the intervenor and the Independent Children’s Lawyer, both of whom provided Summaries of Argument on time.
Brief history of the litigation
The father’s complaints stand to be considered in the context of the long history of the proceedings, which we will now briefly trace.
The mother and father separated in January 2006, when the child was 2 years old. The first parenting orders were made in November 2007, when the father was in prison. These orders, made in the father’s absence, provided for the child to live with the mother and to have no contact with the father.
In September 2008, the father commenced the proceedings which have culminated in this appeal. His initial proposal was for the child to live with each parent on a week-about basis; however, by the time of trial he was proposing that the child live with him, and spend time with the mother as agreed, and if not agreed then during school holidays.
The father’s proposals involved the child being removed from the home of the grandmother in Queensland, where he had been living for some time (and where the mother was also living), and moving back to live in NSW with the father, whom the child had not seen since June 2008 (save for one meeting with the single expert in February 2010).
By her amended Response filed on 23 August 2010, the mother sought that the child live with her and that she have sole parental responsibility. The mother proposed that she be restrained from living more than 10 kilometres from the grandmother’s home, and that the grandmother spend time with the child as agreed, but failing agreement for not less than two nights per week. The mother also proposed that the child spend supervised time with the father for two hours every two months.
The grandmother filed a Response on 26 August 2010 in which she sought orders in the same terms as those proposed by the mother.
The position of the mother and grandmother differed from that of the intervenor. The intervenor’s Response filed on 13 July 2010 proposed that the child live with the grandmother and that she have sole parental responsibility. The intervenor’s position regarding the father’s time with the child corresponded with that of the mother and grandmother – namely that he should have supervised visits every two months.
The parameters of the dispute were narrowed substantially when, immediately prior to the trial commencing on 1 November 2010, the grandmother, the mother and the Independent Children’s Lawyer all decided to support the orders proposed by the intervenor.
Although the mother had filed an amended Outline of Case signalling her changed position on 28 October 2010, this had not come to the attention of the trial Judge prior to the trial commencing. We are also prepared to accept it had not come to the father’s attention. The positions of the parties were, however, clarified at the outset of the trial.
All parties, other than the grandmother, were represented by counsel when the trial commenced. The hearing proceeded without notable incident for three days. At the end of the third day, the matter was complete, save for the cross-examination of the single expert and for closing submissions. Counsel for the father informed the Court that he did not expect to cross-examine the expert for more than 30 minutes (Transcript 3 November 2010, page 225). The matter was then stood over to 5 November 2010, as the expert was not available until then.
When the trial resumed on 5 November 2010, the father was not in attendance. His counsel informed the trial Judge that he had had a brief telephone conversation with the father that morning and had been advised he was unwell and was going to see his doctor. Counsel sought an adjournment because he was no longer confident about cross-examining the expert without further instructions from the father.
Counsel for the father agreed with the proposition put to him by the trial Judge that, prior to his telephone conversation with the father, counsel had been “armed with all the instructions you could possibly have had about that cross‑examination”. He also agreed with his Honour’s proposition that his closing submissions would be “based on the evidence as it has unfolded, not directly in accordance with what [the father] tells you to say”. Notwithstanding his full agreement with what had been put to him by the trial Judge, counsel for the father maintained his application for an adjournment until the father could be present.
The trial Judge ultimately, and reluctantly, acceded to the adjournment application, which had been pursued even after the father’s advisors had drawn to the father’s attention that the trial would be postponed until March 2011, during which period the father would continue not to have any time with the child.
The hearing resumed on 11 March 2011, but the father appeared without counsel. It was on this occasion that the trial Judge was first informed he had appeared as counsel for the mother in the Local Court in 2006. The father asked the trial Judge to disqualify himself on the basis of this prior association, and he also foreshadowed seeking an adjournment on the basis, inter alia, that he was too unwell to proceed with the trial.
Before the hearing of the disqualification application was completed the father left the courtroom and did not return. The trial Judge then took further evidence relevant to the disqualification issue, and heard submissions on that point. Having done so, he ruled that he was not disqualified. He did not rule on the issue of an adjournment, noting the father was not present to pursue such an application.
The single expert was then called and was briefly questioned. After the expert gave her evidence, closing submissions were made by, or on behalf of, all parties, save, of course, for the father. Judgment was then reserved. The trial Judge published his reasons on 29 March 2011, and made the orders that gave rise to this appeal.
Failure to adjourn the trial – Grounds 1, 2, 4 and 5
These four Grounds of Appeal all deal with the father’s assertion that the proceedings should have been adjourned on the last day of trial, when he appeared without counsel.
In dealing with the father’s complaint, we proceed on the basis of respectful agreement with these remarks of Kirby J in Allesch v Maunz (2000) 203 CLR 172 at 184 [35] (footnotes omitted):
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.
The father’s specific complaints were expressed in the following terms (spelling and other errors in the original):
1. No legal representation, paperwork or files applicable to case due to legal team resigning and neglecting to inform me of resignation, and failing to send me my paperwork/files.
2.Due to grounds of appeal No. 1 I was unable to take part in the cross examination of final witness or proceed with final submittals due to no paperwork/files. It was unjust to expect me to do these things unprepared.
…
4.After I requested an adjournment, so I could seek medical help, as I had fallen ill, due to above grounds of appeal, the judge ignorantly pushed to case to keep going. I continued to request an adjournment to seek medical help, which the judge then got upset with me and ordered the bailiff to remove me from his court. Security Staff continued to escort me to the front doors with the bailiff telling me to “please leave the building”. At no time was I aware that if I did not return, that the case would continue without me. As far as I knew from the actions of the judge, bailiff and security staff, I was unable to return. I then procedded to my Doctor and obtained help and a medical certificate.
5.The fundamental principles of Natural Justice gives rise to a reasonable opportunity of appearing and presenting ones case in the adjudication of ones disputes.
In dealing with the father’s complaints it will be instructive to refer first to relevant portions of the transcript of the last day of trial. This will also provide context for the complaint concerning the failure of the Judge to disqualify himself, which we will discuss later.
The proceedings on 11 March 2011 commenced with his Honour noting that the father was without counsel, to which the father replied (our emphasis added in this and other citations from the transcript):
Yes. Your Honour, it seems that I will have to have a bit of a quick talk to settle my conflict of interest with this case or this hearing at hand, and I would like to mention a few things to the court before we proceed for I feel that the natural course of justice has been denied in this trial for me and I would like to explain that to you right now and I’ve handed the paperwork up to you with documents that I feel are contemptuous in this court.
It will be noted that at this stage the father expressed no surprise about the absence of his legal representatives. In any event, the trial Judge, having noted the other appearances, then enquired of the father whether he agreed that all that remained of the trial was the questioning of the single expert and the making of closing submissions.
The father readily agreed with this proposition, but then asked to tender a medical certificate explaining his inability to attend court on 5 November 2010. This was received without objection. It indicated that the father had been unfit for work on that day, as he was experiencing “anxiety, depression, post traumatic stress disorder with somatic symptomatology relating to ongoing family court matters”.
The following exchange then occurred between the trial Judge and the father (Transcript 11 March 2011, page 240):
[MR LOVERIDGE]: I’m not sure if your Honour is aware that I have no representation from Roderick William John Hale from Toronto Legal any more as I put in a complaint to the OLSC over these court hearings, with the way that he has dealt my matter in this court hearing as well.
HIS HONOUR: Well, I’m - - -
[MR LOVERIDGE]: My barrister has got no brief from any solicitor and refuses to act for me as from this point as well, obviously.
HIS HONOUR: I see.
[MR LOVERIDGE]: So I will act for myself, but I would like to get out these issues before this case can continue, your Honour.
Again we observe that the father still indicates no surprise that his counsel was not in attendance and provides a rational explanation for this state of affairs, which might suggest that such an explanation had been previously given to the father. We make no comment on the failure of counsel to attend to provide his own explanation.
The father then raised his concerns about the date stamp on the mother’s amended Outline of Case. This topic is relevant to Ground 6 and we will deal with that later. What is of significance for present purposes is that the transcript demonstrates that, during the discussion, the father consistently spoke over the trial Judge, which led his Honour to warn the father, for the first time, in these terms:
HIS HONOUR: If you keep speaking over me, [Mr Loveridge], I’m going to have you ejected from the court.
[MR LOVERIDGE]: That’s fine. I would like to ask if I could hand this document, which I think is imperative to your Honour.
HIS HONOUR: I don’t understand what the argument is about. I need you to tell me what the problem is.
The father then proceeded to outline his concerns about the date stamp on the amended Outline of Case. During the course of the exchange, the following further warning was given to the father:
HIS HONOUR: [Mr Loveridge], would you please stop talking over me when I’m trying to interject - - -
[MR LOVERIDGE]: Fine, your Honour.
HIS HONOUR: - - - and find out what’s going on, or I will have you ejected from the court; do you understand?
[MR LOVERIDGE]: That’s fine, your Honour.
HIS HONOUR: Do you understand that?
[MR LOVERIDGE]: Yes, your Honour.
HIS HONOUR: Very well. Is it the situation that you have a grievance about another party to these proceedings filing a case outline document that does not comply with order 14 made by me in June of last year?
The father then proceeded, with the help of the trial Judge, to explain his grievance. At one point in the process, this exchange occurred:
HIS HONOUR: I apprehend from what you’ve told me that your concern is that you are uncertain at the present time as to which orders are being pressed by - - -
[MR LOVERIDGE]: Of these stamps on this order, this illegal stamp, your Honour. It’s not a Family Court stamp. I would like to hand it up to you so that you could see it. I don’t know why you’re refusing it.
HIS HONOUR: [Mr Loveridge], the promise I made to you a moment ago about having you removed from the court if you didn’t stop talking over me was not an idle threat. Can I make myself any clearer than I already have?
[MR LOVERIDGE]: No.
The father then proceeded with his submissions about the date stamp, but having not persuaded his Honour of the relevance of his grievance, the father moved on, as the following exchange reveals:
[MR LOVERIDGE]: Okay, your Honour. The next issue is if I could quote to you just three lines from another [letter from the mother’s solicitors].
HIS HONOUR: No.
[MR LOVERIDGE]: Which is very important, your Honour.
HIS HONOUR: No. No, it’s not, [Mr Loveridge], unless you tell me clearly what this goes to. I’m not going to sit here - - -
[MR LOVERIDGE]: It goes to your conflict in this court case, your Honour, as the judge.
HIS HONOUR: Well, I better hear about that, yes.
The trial Judge then proceeded to allow the father to develop his argument relating to the disqualification issue. His Honour also sought assistance from counsel for the mother, during which his Honour was moved to say to the father “…please be quiet. It’s not your turn”. The interchange between the mother’s counsel and the bench then continued, during which the following transpired:
HIS HONOUR: And your solicitor asked for the production of documents that would verify the claim?
MR DAVIES: Yes. Nothing.
HIS HONOUR: And when did Mr Hale raise this as an issue?
[MR LOVERIDGE]: When I complained about it on the Wednesday I went off sick, your Honour, and we’ve taken four months to get to this issue and I haven’t seen my son over it or allowed to speak to him on the telephone. His father might as well be dead.
MR DAVIES: It seems to be around February, your Honour, 11 February - - -
[MR LOVERIDGE]: That’s a lie, your Honour.
MR DAVIES: - - - this year.
[MR LOVERIDGE]: It was when I was ill. And because of these points, your Honour - - -
HIS HONOUR: [Mr Loveridge] - - -
[MR LOVERIDGE]: - - - that I wanted to put through, I lose representation.
HIS HONOUR: [Mr Loveridge], one more interjection you’re out of the court; do you understand?
[MR LOVERIDGE]: Can I be - - -
HIS HONOUR: Do you understand?
[MR LOVERIDGE]: Yes, your Honour.
HIS HONOUR: I will let you be heard, but in turn; do you understand?
[MR LOVERIDGE]: Okay, your Honour.
HIS HONOUR: Don’t interrupt again.
[MR LOVERIDGE]: Yes, your Honour.
There then followed further exchanges between the bench, the father and counsel for the mother concerning the disqualification issue, at the conclusion of which the following occurred:
HIS HONOUR: The gravamen of [Mr Loveridge’s] problem is that I’ve apparently acted for the mother in the past.
MR DAVIES: Yes, your Honour.
HIS HONOUR: And I don’t know whether that’s right or not, but on the face of a letter that emanates from your own instructing solicitor’s office, it appears on the face of it that I did. Now, I don’t know whether that was simply for the purposes of a mention or whether information came to my attention. I have no idea. I have no recollection of it. So Mr - - -
[MR LOVERIDGE]: Your Honour, I’m not feeling too well and I’m going to leave this courtroom because I’m going to break down. I can’t deal with these issues any more. I need to see and talk to my son. This is illegal actions taking part of the other parties all associated in this court case. There will be an official letter written to – like, the JCL, is it, or the JVL of court cases and how they are run. I have tried to explain this with my doctor’s certificate four months ago of the issues at hand. I have been shunned by everybody, everybody your Honour, down to Crown Solicitors phone calling me only yesterday on private phone lines, which I have the numbers of, and trying to talk to me and telling me that I am unrepresented in this court case when I have not even been told that I have no representation.
What’s going on, your Honour? Down to the fact that my friend barrister over here says that Harris Wheeler, that I accepted Harris Wheeler workings for [Ms A Emery] in this situation, the choice was to either take another nine months or one year off or - - -
HIS HONOUR: [Mr Loveridge], stop speaking for a moment. You told me a moment ago that you had to leave the court, that you’re breaking down.
[MR LOVERIDGE]: I don’t agree with what the barrister just said, your Honour.
HIS HONOUR: If you’re going to leave the court, that’s a matter for you.
[MR LOVERIDGE]: I know I’ve got to go and youse have got to fix it up or this is just shambles, your Honour. What’s happening? Where’s my son? Do I get an order to see my son or talk to my son?
HIS HONOUR: [Mr Loveridge], I’m not allowing you to interject.
[MR LOVERIDGE]: I’m going to the doctor again, and why am I forced to the doctors for more news all the time. It’s terrible, your Honour.
HIS HONOUR: If you leave, [Mr Loveridge], the proceedings may continue in your absence. Please be aware of that before you depart.
[MR LOVERIDGE]: Your Honour, I’ve just told you that you’re a part of it, it’s a massive conflict in the interest and I demand a retrial. I want natural justice. I have been denied natural justice.
HIS HONOUR: You’re not being recorded, [Mr Loveridge]. You’re too far away from - - -
[MR LOVERIDGE]: Your Honour, I’m ill, I’m an ill man.
HIS HONOUR: All right.
[MR LOVERIDGE]: Can we finish this very soon? I need to go to the doctor.
HIS HONOUR: I will take as long as I reasonably need to deal with the problem. Now, if you need to leave that’s a matter for you, but be aware that before you do leave, if that’s your choice, that this case may proceed in your absence.
[MR LOVERIDGE]: Your Honour, if that happened, I don’t know how it could.
The hearing then continued, with the father apparently having not departed, since the transcript reveals him interjecting during submissions by counsel for the mother on the disqualification issue.
In the course of one of those interjections the father, for the first time, mentioned a possible adjournment of the trial. By this stage, sufficient had been said to fill some 20 pages of the transcript. The foreshadowing of an application for an adjournment occurred in the following context:
[MR LOVERIDGE]: Your Honour, I’m going to be seeking an adjournment as well and a whole new trial over these issues and I am still legally aided funded and I just have to go and get my legal representation.
HIS HONOUR: Mr Davies, have you got those letters ready? Do you want to pass them along the bar table so that those at the bar table can see it. [Mr Loveridge], so far you’ve made an application for me to disqualify myself from the trial, which would bring the trial to an end. I need to adjudicate that first unless you are withdrawing that application and replacing it with an adjournment application.
[MR LOVERIDGE]: No, that’s fine, that must happen, your Honour. That must happen.
HIS HONOUR: Mr Davies, it would be instructive if your attorney could make those inquiries forthwith.
[MR LOVERIDGE]: Your Honour, if I could just clarify this talk about the conflict of Harris Wheeler actually representing [Ms A Emery] in the middle of this court proceedings. It has been some three years my Family Court proceeding has been on foot and it came down to two weeks before the – before our hearing that we find out of this – these instructions from Harris Wheeler that now there’s a conflict of interest, and rather to choose not to adjourn a court case for another nine months to a year for the other parties to get legal representation, I chose to take it on to see or talk to my son, your Honour. I can’t go five/six years without seeing my son. He has never been hurt by me in any form/shape whatsoever, but he is totally isolated from his father and family, from the grandmother, your Honour. I ask if this is kosher…
We pause to note that the father is here referring to an arrangement between the parties prior to trial that permitted the mother’s solicitors to continue acting for her, notwithstanding that at some earlier stage they had represented the father in a criminal matter.
The exchanges then continued (we set them out to indicate the patience with which his Honour continued to deal with the father notwithstanding his repeated interjections):
HIS HONOUR: [Mr Loveridge], have you got any further evidence that you want to adduce on the issue?
[MR LOVERIDGE]: Your Honour, I’ve got much. I would like to know about these letters. Who is – who am I fighting against? Why is [Ms A Emery] on the stand and getting questioned from my barrister if she is irrelevant? Why is the barrister on the stand for [Ms A Emery]?
HIS HONOUR: [Mr Loveridge], it’s really important that if we work through these problems, we do them - - -
[MR LOVERIDGE]: I know, your Honour. I need to know what order I am fighting, your Honour.
HIS HONOUR: It’s important that we do it sequentially. Your first application, as I understand it, is you want me to disqualify myself so that the trial stops in its tracks.
[MR LOVERIDGE]: Well, we need a retrial, obviously, with this conflict, your Honour.
HIS HONOUR: Well, it’s pointless talking about what orders - - -
[MR LOVERIDGE]: Well, that’s fine. I can write to - - -
HIS HONOUR: - - - if we’re - - -
[MR LOVERIDGE]: - - - I can write of my complaints of this court case.
HIS HONOUR: Right.
[MR LOVERIDGE]: But I would choose for you - - -
HIS HONOUR: So are you pursuing your application for me to disqualify myself?
[MR LOVERIDGE]: Yes, your Honour.
HIS HONOUR: Do you have any further evidence you want to tender on the application?
The father then sought to tender a further document. In the course of the exchanges about its admissibility, the following transpired:
[MR LOVERIDGE]: I would like it filed, your Honour.
HIS HONOUR: I will read it and then I will determine whether it’s relevant to the issue.
[MR LOVERIDGE]: I think it should be filed. I urge it to be filed, your Honour.
HIS HONOUR: Very well. I reject the document for irrelevance.
[MR LOVERIDGE]: I’m talking of the dates of the back stamp, the legal date of the 28th when it was filed on the 27th.
HIS HONOUR: Yes. It’s rejected for being irrelevant to the question under consideration. It might be relevant to your adjournment application, if there is one.
[MR LOVERIDGE]: I will send that – I will send that through with my complaints, your Honour, about the court case.
HIS HONOUR: Is there any other document you want to tender on the application to disqualify myself, [Mr Loveridge]?
[MR LOVERIDGE]: My barrister, is he not here today?
HIS HONOUR: I don’t know who your barrister is. I know who it was on the last occasion.
[MR LOVERIDGE]: You know [Mr Wilkins] quite well. He has told me of you and Mr Wilkins. He has told me that you go fishing together, your Honour, and he was representing me here last time, so I find that amazing how you say to me you don’t know who my representing barrister was.
HIS HONOUR: Well, it was Mr Wilkins on the last occasion. I have no idea - - -
[MR LOVERIDGE]: He has been through the whole occasion, your Honour, my barrister in this court case.
HIS HONOUR: Since I came on the bench 46 minutes ago Mr - - -
[MR LOVERIDGE]: And why is he not here today, your Honour? I don’t know why he’s not here today, your Honour.
HIS HONOUR: Since I came on the bench 46 minutes ago, [Mr Loveridge], I haven’t seen any barrister in your company, so I’m not aware of any barrister acting for you today.
[MR LOVERIDGE]: Well, I would just like to ask that court, where is my barrister.
HIS HONOUR: I have no idea.
[MR LOVERIDGE]: Okay. So where do we go from here, your Honour?
HIS HONOUR: Do you have any further evidence you want to tender on the - - -
[MR LOVERIDGE]: No, your Honour. That’s about all I would like to further.
HIS HONOUR: Thank you. Is there any other evidence that anyone else wants to tender on the application as to whether I disqualify myself?
After some further interchange, his Honour indicated he intended to stand the matter down to allow enquiries to be made concerning the extent of his involvement in the proceedings in the Local Court in 2006. Before he did so, the following exchange occurred:
[MR LOVERIDGE]: Your Honour, I could give you a little bit more information on how you acted for [Ms A Emery] on that day.
HIS HONOUR: I see.
[MR LOVERIDGE]: It was for an apprehended AVO that I was taking out on her myself. An undertaking was actually given by the judge on that day and breached by [Ms A Emery] by coming around to my house as well, which we have tendered in the affidavit in this Family Court trial.
HIS HONOUR: So were you at court on that day, were you?
[MR LOVERIDGE]: Yes, your Honour.
HIS HONOUR: I see.
[MR LOVERIDGE]: I remember you, your Honour. And I told my solicitor and barrister about you when I fell sick on the day and it has been four months since anybody has bothered to inform your Honour. I don’t know why we have wasted the court’s time in this way. I’m not a lawyer, your Honour, I’m not a barrister, but I can tell my lawyer and barristers my views and I feel that my views should have been pressed forward to you earlier, your Honour, and not come to this day. Now I have a grave problem. I have a child that is going to be born in two months. My - - -
HIS HONOUR: [Mr Loveridge], that has got nothing to do with the question as to whether I disqualify myself. That’s a question as to what happens to the case if I - - -
[MR LOVERIDGE]: This is not good for the health of my unborn baby, your Honour.
HIS HONOUR: [Mr Loveridge], stop interrupting me because it’s going to delay things. Your desire for an outcome is completely contradictory with your application for me to disqualify myself.
[MR LOVERIDGE]: That’s what has to be done, your Honour.
HIS HONOUR: That’s all right, as long as you understand.
[MR LOVERIDGE]: That’s exactly why I am ill.
HIS HONOUR: Well, if you want me to disqualify myself - - -
[MR LOVERIDGE]: And you can understand my illness.
[HIS HONOUR]: - - - telling me about your baby, the imminent birth of your new baby is utterly irrelevant to whether I disqualify myself. That will only become relevant if I don’t disqualify myself and the case remains to proceed.
[MR LOVERIDGE]: I understand, your Honour. I understand.
HIS HONOUR: All right. Now, did I just get it right: “I was at court on the day for the AVO. I remember you, your Honour.”
[MR LOVERIDGE]: I beg your pardon?
HIS HONOUR: You said at 10.48, “I was at court on the day for the AVO. I remember you, your Honour.”
[MR LOVERIDGE]: I was at court on the day and I remembered you after I have read the paperwork when I got ill and tried to inform my solicitors and barristers of it on 5.11.2010.
HIS HONOUR: All right. I will stand the matter in the list. Can you inform the single expert that there’s a delay. I don’t know whether it’s temporary or permanent at this stage, Mr Sundstrom.
MR SUNDSTROM: I will tell her that, your Honour.
[MR LOVERIDGE]: Your Honour, I’m going to a doctor. I would have to - - -
HIS HONOUR: And Mr Davies, would you have a message passed to the court officer when the result of the inquiries are known from, presumably, both the file and the court file.
MR DAVIES: Well, I may have to talk to [Mr Loveridge] about that because I have - - -
[MR LOVERIDGE]: I’m not self-representing, your Honour.
MR DAVIES: - - - found in the interim that the - - -
[MR LOVERIDGE]: I’m going to be getting Legal Aid.
MR DAVIES: - - - Harris Wheeler file was sent to other solicitors. Harris Wheeler didn’t continue to act for [Mr Loveridge].
HIS HONOUR: I see. There’s a suggestion in the file note that [Mr Loveridge] was going to collect the file.
MR DAVIES: Yes. And then that didn’t happen because of financial issues, I think.
HIS HONOUR: So the file is not available to the - - -
MR DAVIES: The file, well the file that Harris Wheeler has - - -
[MR LOVERIDGE]: It’s because I took him to the OLSC, your Honour.
MR DAVIES: - - - can be brought in. That file, the file that Harris Wheeler has, can be brought here, as I say, but there were other representatives of [Mr Loveridge] after that.
HIS HONOUR: All right, I see.
MR DAVIES: No, I don’t know were that means that - - -
[MR LOVERIDGE]: That’s not the fact, your Honour. The fact is that I’ve taken that to the OLSC. Harris Wheeler has - -
HIS HONOUR: [Mr Loveridge], please - - -
[MR LOVERIDGE]: Harris Wheeler has been - - -
HIS HONOUR: Would you remove [Mr Loveridge] from the court, please?
[MR LOVERIDGE]: I’m going to the doctors, your Honour, over this issue.
HIS HONOUR: You will have to move quickly because I will have you removed otherwise.
[MR LOVERIDGE]: And I would like this case reheard and adjourned, your Honour, for contempt of court.
MR DAVIES: Your Honour, we will make all the inquiries that we can about the whole surroundings. I will go across to the court as well to see whether there’s any court record there that can shed light on the situation.
HIS HONOUR: Well, as soon as you’ve got the information, can you pass a message so that I can reconvene and then I will need to make a decision about whether I disqualify myself or not. Thank you.
In his reasons for decision, the trial Judge made reference to the father’s departure from the court in the following terms (our emphasis added):
75.While the application [for disqualification] was being debated with the parties it was necessary to repeatedly warn the father against his constant interjections. The father did not desist and, but for his decision to leave voluntarily, would have been escorted from the courtroom by the court officer. Prior to his exit, the father was warned that should he not return to Court after a temporary adjournment to permit the mother to make inquiries about the issues raised by him, and in particular the contents of the letter dated 26 June 2006, the trial would continue in his absence…Unfortunately, during that adjournment and prior to the application being determined, the father voluntarily departed the Court complex and did not return.
…
95.The father exited the courtroom contemporaneously with a direction being made for the court officer to escort him out. But having been warned the trial would continue should he fail to return to Court it cannot reasonably be said that the father did not know he could return. The warning necessarily implied that he could and should return if he desisted from repeated interjections.
It is apparent from these observations that whilst the trial Judge had indicated his intention to have the father removed, the father voluntarily left the courtroom. It is true there is nothing in the transcript, or in the other material, to show how his Honour learned that the father had “voluntarily departed the Court complex”. We do note, however, that his Honour clearly retained the hope the father would return at some stage because, following two adjournments during the day, he asked for the father to be called three times outside the courtroom.
The father now asserts in Ground 4 that:
…the judge then got upset with me and orderded the bailiff to remove me from his Court. Security Staff continued to escort me to the front doors with the bailiff telling me to ‘please leave the building’. At no time was I aware that if I did not return, that the case would continue without me. As far as I Knew from the actions of the judge, bailiff and Security staff, I was unable to return. I then procedded to my Doctor and obtained help and a medical certificate.
We observe that the transcript reveals the father was, in fact, informed (not once, but twice) that the case could continue without him if he departed. At no stage was the father advised that he could not return if he left. We also observe that the father’s claim about what he was told by security staff is nothing more than an unsworn assertion. Furthermore, there is nothing in the transcript to suggest that the father had any intention of returning once he departed. On the contrary, his stated expectation was that, after he left, “youse have got to fix it up”.
In his reasons for decision, the trial Judge drew attention to the absence of the father for the last part of the trial. He dealt with it in these terms:
96.It is a fundamental principle of natural justice that parties should be afforded a reasonable opportunity of appearing and presenting their case in the adjudication of their disputes. But being afforded the opportunity and making use of it are different things. If a party eschews the given opportunity to be heard by departing the Court without good reason in the knowledge that the trial may continue in that party’s absence, as was the case with the father here, there is no miscarriage of justice by continuation of the trial in the absence of further participation by that party. The court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).
97.The unilateral decision of the father to discontinue his participation in the trial deprived him of the ability to cross examine the single expert witness and make final submissions about the outcome of the proceedings.
It will be observed from our recitations from the transcript that the trial Judge quite properly postponed consideration of any adjournment until after he ruled on the disqualification application. As his Honour pointed out, if that application succeeded, the trial would have to be adjourned. However, the father did not wait to hear the outcome of his application. He left the Court, and was therefore not present to advance an adjournment application after the trial Judge refused to disqualify himself.
As the trial Judge said after the father’s departure (Transcript 11 March 2011, page 278):
I should put on the record, though, that in the absence of (the father) to prosecute any implied or alternate application for an adjournment, I don’t know what his reasons for the adjournment application were. It’s trite to observe I can’t adjudicate an application for which there is no evidence or submission made to support it.
The question we must consider is whether the trial Judge erred in not adjourning the trial, on his own motion, after the father walked out. As we understand the father’s submissions, there are two bases upon which his Honour should have done so. The first is because the father did not have counsel and was not adequately prepared to represent himself. The second is because the father’s state of health was such that it was not appropriate to expect him to take further part in the proceedings.
We will deal with the father’s health first.
His Honour had before him the certificate provided by the father’s doctor about the father’s condition when the trial had been adjourned in November 2010. That certificate suggested that the father’s mental health problems were associated with “ongoing family court matters”, which suggests to us that it was desirable for the proceedings to be completed, rather than strung out by a further adjournment.
His Honour was provided with no further information concerning the father’s health on 11 March 2011, other than the father’s statement that he needed to go to the doctor. The inference, however, was that the father’s health problems were similar to those he had on the previous occasion the proceedings were adjourned. Indeed, that was the case, as now appears from the further medical certificate we have received. Significantly, this differs from the earlier certificate in that it indicates not only that the father’s health problems were associated with “ongoing family court matters” but also with the “failure of his matter to progress”. This again might suggest it was in the interests of the father for the matter to be completed – not adjourned.
Our own consideration of the transcript reveals that the father was able to present his case adequately on 11 March 2011, notwithstanding his belief that he needed to “go to the doctor”. It is true the father appeared incapable of heeding the many instructions given to him not to interrupt. But the evidence of the single expert concerning the father’s “reactive” and “impulsive” behaviours, “preoccupations”, and “compromised psychosocial adjustment” suggests this would still have been the case when the trial resumed, had it been adjourned.
We are therefore not satisfied that it would have been appropriate for the proceedings to have been adjourned on account of the father’s health.
Turning now to the father’s lack of legal representation, it appears from what the father told the trial Judge that he did not have a solicitor because he had made an official complaint about the solicitor’s conduct. The father also advised the Court that he was aware he did not have counsel because his counsel did not have a solicitor to instruct him.
Following examination of the transcript, we are not persuaded that the father was caught by surprise when his counsel failed to appear on the final day of the trial. On the contrary, the father announced he was going to act for himself - and proceeded to do so. He then appeared to have no difficulty in raising issues concerning the date stamp on the amended Outline of Case; the late filing of material; and the disqualification of the trial Judge.
There was nothing in what the father said to the trial Judge to indicate that he was not able to cross-examine the single expert, or make closing submissions. Indeed, before his departure, the father was making what might properly be regarded as closing submissions. Whilst we accept it may not have been easy for the father to cross-examine an expert and make closing submissions, this did not place him in any different position to the many other litigants who do not have legal representation. In this regard, however, it is important to recall that the father’s counsel could have cross-examined the expert, and made submissions, on 5 November 2010, were it not for the fact that the father had given him instructions to seek an adjournment.
Although the father, at one stage on 11 March 2011, expressed confidence in obtaining legal aid to secure alternative representation, there was nothing to suggest it was likely he would obtain such representation if the matter was adjourned. Furthermore, the father did not suggest to the trial Judge that he did not have available the documents he needed to represent himself. Had he done so, there is little doubt they would have been made available, given the patient and courteous hearing he had been afforded.
It is not without significance that the father had complained bitterly to the trial Judge about the long delay in resolution of the proceedings, and the fact that he had not seen his son for a very long time. It is noteworthy that on the previous occasion the matter had been adjourned, a further date could not be allocated for four months. Although there was no discussion of the likely duration of a further adjournment, there was no reason to expect the matter could be brought back quickly.
It is also important to record that the single expert had already been put off once, and would have had to come back a third time if the trial was again adjourned. There were also three counsel engaged, at least two of whom were funded by the public purse. The grandmother had come from Queensland, although it is true she had been told she could attend by telephone. The trial Judge had also set aside valuable time to hear the matter (which had already occupied significant court time).
Although the principles laid down by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 need to be applied with care in proceedings involving children, it is nevertheless appropriate that we draw attention to the judgment of French CJ who said at 182 [5]:
In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.
In the present case, there was not even a realistic prospect of costs being awarded against the father to compensate for the loss arising out of another adjournment. In this regard we note that the father commented during his submissions on appeal that if any order for costs was made he would “have to go bankrupt again”.
It is also important to record, as was pointed out in the submissions of counsel for the Independent Children’s Lawyer, that even after the father left the court, his interests were carefully considered. Thus, for example, the trial Judge continued to give careful attention to the disqualification issue the father had raised. It is also apparent from examination of his Honour’s reasons that he paid careful attention to the evidence, including that which might be seen as favourable to the father. We observe also that the father’s Amended Notice of Appeal does not challenge any finding of fact made by the trial Judge.
At no time in his submissions to us did the father articulate what matters he may have wanted to put to the single expert in cross-examination. The only clue appears from the transcript on 3 November 2010, when the following exchange occurred after the trial Judge enquired how long the father’s counsel would be in cross-examining the expert:
MR WILKINSON: I don’t think I will be that long, your Honour. I will be putting to her propositions with regard to her professional knowledge about subjects. I won’t be all that long.
HIS HONOUR: Are you going to contest her experience and qualifications?
MR WILKINSON: No, certainly not. No, in fact, I should be relying on her experience and qualifications.
It is important also to remember that the proceedings are about the best interests of the child, not the interests or desires of the father. After the father left the courtroom, the child’s interests continued to be represented by the Independent Children’s Lawyer. It is noteworthy in this context to record that counsel for the Independent Children’s Lawyer changed his position during the closing addresses when he proposed that the father have somewhat more frequent time with the child than had been proposed at the outset of the trial. His Honour accepted part of the Independent Children’s Lawyer submission on this point. Although this was by no means all that the father was seeking, it is further demonstration of the fact that the father’s absence did not result in his position being overlooked.
For all of these reasons, we find no merit in any of these grounds.
Refusal of application for disqualification – Ground 3
By this ground of appeal the father complains about Austin J’s rejection of his application to disqualify himself from further hearing the matter. The ground does not identify how it is that his Honour erred in so doing.
As we have earlier noted, the disqualification application was made when it was drawn to his Honour’s attention that he had once appeared for the mother in proceedings in the Local Court. These proceedings arose out of an incident between the father and the mother in January 2006, which resulted in the father being charged with a series of offences. The criminal proceedings were associated with an application for an Apprehended Violence Order (“AVO”).
The criminal proceedings and the proceedings for the AVO came before the Local Court on 21 June 2006. Following this hearing, the solicitors then representing the father reported by letter to the father that the trial Judge (who was then a barrister) had appeared for the mother, pro bono, and had informed the Magistrate that the mother would thereafter be represented by someone else. It is not contentious that his Honour appeared before the Magistrate without a brief, and that his involvement was confined to the proceedings on 21 June 2006.
The practitioner who was acting for the father in the 2006 proceedings was called to give evidence about the circumstances in which Austin J had come to appear for the mother without a brief. Having refreshed his otherwise deficient memory by examination of the relevant file, the practitioner said his Honour had appeared at the request of the presiding Magistrate. The practitioner also gave evidence that he had discussions with Austin J at the hearing about an interim AVO being made, but when that did not eventuate the matter was adjourned.
His Honour recorded in his reasons (paragraph 67) that he had:
no recollection whatsoever of the mother, the father, the apprehended violence proceedings between them, or my transient appearance in those proceedings on 21 June 2006. Had I remembered any of those details I would have disclosed them at the outset.
His Honour further recorded what he had been told from the bar table, namely that the mother also had no recollection of him acting for her.
The father claimed he remembered the trial Judge from his appearance in the earlier proceedings. However, as his Honour recorded, the father had appeared with his lawyer before his Honour “on several occasions over many months” and therefore had “ample opportunity to observe and recognise” him.
As the trial Judge recorded (paragraph 74), the father had, at the hearing on 11 March 2011:
made some vague and unspecific references in his submissions to having instructed his solicitor and/or counsel during the trial in November 2010 to raise the matter of disqualification, but such submission is unsubstantiated by any evidence. It is difficult to accept at face value that the father’s solicitor and counsel simply refused point blank to follow his express instructions to make a disqualification application. Even if that was the case, the father must have known that his instructions were countermanded and no disqualification application was made at any point in the months elapsed between 5 November 2010 and 11 March 2011, and he acquiesced to that state of affairs. The issue was not even floated until the father’s solicitor corresponded with the other parties on 11 February 2011. …
The correspondence from the father’s solicitor on 11 February 2011 indicated that the trial Judge “may have acted” for the mother when his Honour was a barrister. The solicitor’s letter noted that the father had been asked to provide a copy of a letter in which this had been mentioned, but acknowledged that the letter had not been provided. In fact, a copy of the letter was not provided until the father tendered it upon the resumption of the hearing on 11 March 2011. The father’s solicitors had not sought to mention the matter before his Honour in the meantime, as had been suggested to them by the other solicitors involved in the proceedings.
Although, as we have noted, the father absented himself prior to Austin J ruling on the disqualification application, the transcript records that his Honour continued to give the matter careful attention following the father’s departure. Having heard the submissions of counsel, and the evidence given by the legal practitioner who had represented the father in the 2006 proceedings, his Honour indicated that he would not disqualify himself, and would give his reasons for his decision later.
The trial Judge’s reasons for refusing to disqualify himself were contained in his substantive judgment. With great respect, we consider his Honour’s statement of the relevant principles to be an exemplary exposition of the law.
His Honour commenced by referring to what he called “the cardinal principle” laid down in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 (“Ebner”) that:
…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 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.
His Honour next, correctly, noted that the application of that principle entails two distinct steps, as was explained in Ebner at 345. He then recorded the “four distinct but overlapping categories of cases covered by the doctrine of apprehended bias” referred to in Webb v The Queen (1994) 181 CLR 41 at 74 and Ebner at 348-349.
His Honour then recorded:
80.Although not articulated by the father, by implication, his grievance was that a fair-minded lay observer might apprehend my bias in these proceedings in favour of the mother and against the father by reason of my past association with the mother, such association arising out of my pro bono appearance for the mother once on an adjournment of the apprehended violence proceedings between the parties some five years ago.
81.A reasonable apprehension of bias may exist where a presiding judge has a substantial relationship with a party to proceedings before that judge (see Bienstein v Bienstein (2003) 195 ALR 225 at 232), but it is likely to be a question of degree. A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a judge, from sitting in proceedings before the court to which the former client is a party. However, the apprehension of bias is liable to arise if the correctness or appropriateness of advice as to law or strategy given to the client by the erstwhile legal adviser is a live issue for determination by the court. Much depends upon the nature of the relationship, the ambit of the advice given, and the issues falling for determination (see Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 87-88; Kartinyeri & Anor v Commonwealth of Australia (1998) 156 ALR 300 at 305; Bienstein at 232).
82.In the circumstances of my transitory appearance for the mother in 2006 to facilitate an adjournment of the apprehended violence proceedings, on a pro bono basis, without a brief, and without any interim or final order being made in those proceedings, it is inherently unlikely that I proffered any advice of significance to the mother. Even if I did furnish advice to the mother about the proceedings, there is no evidence before the Court as to the nature of that advice. In the absence of knowledge about the nature of the advice the correctness or appropriateness of that advice is clearly not an issue in these proceedings.
83.The lack of memory of both the mother and I about one another, and the proceedings in which we were ephemerally associated, is a material consideration (see Kartinyeri at 300-301). It is hardly possible I might favour the mother in these proceedings by reason of our past association if I cannot remember her or the circumstances of our association.
84.It is also important to note that, while the apprehended violence proceedings between the mother and father in 2006 related to an incident which is also relevant to these proceedings, there is no need in these proceedings for me to make any findings of fact about the differing versions of the incident on 3 January 2006. It is common ground that the father was charged with a variety of offences arising out of that incident and he was convicted on a number of those charges following his pleas of guilty.
Austin J then went on to note that the High Court has repeatedly cautioned judges against disqualifying themselves on the ground of apprehended bias unless the grounds for doing so are substantial. In an instructive summary of the relevant authorities, his Honour said the need for caution in acceding to disqualification applications had been expressed in different ways, including the following:
(1)It would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he/she should automatically disqualify himself/herself whenever requested by one party to do so (see Livesey v NSW Bar Association (1983) 151 CLR 288 at 294; Kartinyeri at 302).
(2)It is equally important that judicial officers discharge their duty to sit and do not accede too readily to suggestions of appearance of bias (see Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Bienstein at 233).
(3)A conclusion that there is a reasonable apprehension that a judge is biased should not be drawn lightly (see Vakauta v Kelly (1989) 167 CLR 568 at 584-585).
(4)When parties have been engaged in a proceeding for some time, with the inevitable commitment of resources and costs that entails, a judge should not disqualify himself/herself unless there is – not may be – an issue to which a disqualifying factor is relevant (see Re Polites at 92).
(5)A judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established (see Bienstein at 233).
(6)Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked. Judges do not choose their cases and litigants do not choose their judges. If one party to a case objects to a judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground (see Ebner at 348).
His Honour concluded by expressing his satisfaction that a fair-minded lay observer would not reasonably apprehend that he might not bring an impartial mind to the resolution of the proceedings. He recorded that the father’s application failed at the second step referred to in Ebner because it constituted “a bare assertion, devoid of explanation about how [his] past association with the mother might possibly cause departure from impartial adjudication of the case”.
His Honour next noted that even if he was in error in reaching this conclusion, the disqualification application should still fail because the father’s conduct amounted to a waiver of his right to object to him hearing the matter. As authority for that proposition his Honour referred to the decisions of the High Court in Vakauta v Kelly (1989) 167 CLR 568 at 577-579, 586-588 and Ebner at 344, 357, 360. In explaining how the father had waived his right to object, his Honour said:
89.The father acknowledged that he recognised me from the prior proceedings in 2006. He did not say when he first acquired that realisation, but I impute that it was probably before the trial commenced, or at least in the early stages of the trial. The father was undoubtedly aware that my surname is the same surname of the barrister who appeared for the mother in the apprehended violence proceedings in 2006. The father had plentiful opportunity in June and November 2010, when appearing in these proceedings, to recognise me as the same person who appeared for the mother in 2006. Indeed, it would be quite unlikely that the father recognised me as the same person on say the third day of trial, but not the second day of trial.
90.If the father’s submissions are to be accepted, he first raised the matter with his lawyers on or about the fourth day of trial when he fell ill and did not attend Court. So far as the other parties are concerned, the matter was not raised until 11 February 2011 when the father’s solicitor sent letters to the other parties, and the Court knew nothing of it until even after that. The letter written by the father’s solicitor to the other parties on 11 February 2011 expressed, or at least implied, recent receipt of the father’s instructions about the proposed disqualification application.
91.By then, the trial had run for three full days and was nearly at an end. All of the lay evidence had been taken and the matter was adjourned for three months, to accommodate the father’s illness, to take the oral evidence of the single expert witness. The proceedings had been pending for well over two years and concern parenting orders for a young child whose stability has been gravely disturbed.
92.The father unreasonably delayed his objection to me continuing to preside over the proceedings and the public interest in finalisation of the proceedings outweighed the father’s private interest in belated objection to my adjudication.
We conclude that his Honour was justified in rejecting the application for him to disqualify himself for all the reasons he gave. Even had there been a proper basis for seeking disqualification (which in our view there was not), the father’s conduct in delaying making the application until the last day of the trial constituted a waiver of his right to object.
There is no substance in this complaint.
Acceptance of “unauthorised paperwork” – Ground 6
By this ground the father complains about “the acceptance of unauthorised applicable paperwork filed in proceedings, and timeline’s of filings” [sic].
This ground primarily relates to concerns the father has about amendments/alterations made to the mother’s Outline of Case document.
On 27 October 2010, the mother’s solicitors filed an Outline of Case in which it was noted that the mother was seeking an order that she have parental responsibility for the child and that the child would reside with her and have supervised time with the father as proposed by the intervenor in its application filed on 13 July 2010.
On 28 October 2010, the mother filed an amended Outline of Case in which she indicated she now supported the position of the intervenor and the Independent Children’s Lawyer and proposed that orders be made in accordance with their application – which was for the child to live with the grandmother, who would have parental responsibility.
The mother’s second Outline of Case document clearly identified that it was an amended Outline. It bore both the original date of filing (27 October 2010) and the date on which the amended document was filed (28 October 2010). The differences between the two documents were identified in the latter by underlining the new material and by scoring through of material no longer relied upon.
We were provided with two copies of the amended Outline of Case. On one of these, a handwritten alteration had been to change the date stamp from “27 October 2010” to “28 October 2010”. It is not clear who had done this, nor was it suggested what advantage might have been obtained from doing so. However, the father contended that the alteration of the document was inappropriate and constituted criminal behaviour which he proposed to have investigated.
Whatever the father’s concerns about the change in the date of the document, it is not a matter with which we should be concerned in this appeal. If there is illegal conduct involved, the matter will no doubt be considered by the relevant authorities when it is drawn to their attention.
Our only concern is whether there was any prejudice to the father in the presentation of his case by the late change in the mother’s position, which is the other matter the father raised. We have already noted that the mother’s position did change very close to the time of trial. However, the position of all parties was clearly stated at the commencement of the hearing. The father was represented by counsel at the time and no objection was taken to the late amendment.
The father complained that he had prepared his affidavits believing that the case he was meeting was for the mother to have the care of the child, whereas the case with which he was presented when he arrived at court was for the child to live with the grandmother.
This argument overlooks the fact that the intervenor had, for some time, been seeking orders that the child live with the grandmother. It is also important to note that, despite the initial differences in their proposals, the other parties were united in one thing – namely that the father should have only very limited, supervised time with the child. It is also significant to recall that the mother was living with the grandmother and that their joint proposal (prior to the late change) involved the child continuing to spend at least two nights per week with the grandmother.
At no time in his submissions before us did the father indicate what further evidence he would have provided had he known the mother and grandmother would propose that the child would live with the grandmother. Nor did he indicate how, in any other way, his position was prejudiced by the mother and grandmother altering their position immediately before trial.
As to the father’s concerns about the “timeliness of filings”, we observe that the transcript of the opening stages of the trial indicates that a great deal of the affidavit evidence was filed late, including affidavits on which the father relied and which were said to have been “about six weeks late”. His Honour specifically enquired whether there was any objection to the late filing and he was informed by all counsel, including the father’s, that there was no objection. (Transcript 1 November 2010, pages 2 and 3).
There is accordingly no substance in Ground 6.
Conclusion and costs
For the reasons we have given, there is no merit in any of the father’s complaints in his Amended Notice of Appeal.
We observe that in his submissions the father also advanced arguments attacking the substantive orders. It was not open to the father to do so, given that his Grounds of Appeal were confined to the procedural fairness/disqualification issues. However, we should record that we are more than satisfied that the orders made were well open on the evidence.
Costs were sought in the event the appeal was dismissed. Although the father’s lack of success provides a basis for costs to be ordered, we will not make such an order. The father is unable to meet any order for costs as he has no assets and is in receipt of disability payments. Furthermore, we accept the appeal was brought in good faith, and that the father is genuinely distressed by orders which will, at best, allow him very limited time with his son.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Thackray and Young JJ) delivered on 2 December 2011.
Associate:
Date: 2 December 2011
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