Maher and Weaver and Anor
[2017] FamCA 546
•28 July 2017
FAMILY COURT OF AUSTRALIA
| MAHER & WEAVER AND ANOR | [2017] FamCA 546 |
| FAMILY LAW – COURTS AND JUDGES – Disqualification – Where application that the Court disqualify itself by reason of apprehended judicial bias – Where consideration of the applicable “test” and considerations pertaining thereto – Where necessity for the answer to the test to be “firmly established” – Application dismissed |
| Family Law Act 1975 (Cth) Pt VII, Div 12A ss 69ZN, 69ZQ, 69ZR |
| Australian Securities and Investment Commission v Reid [2005] FCA 1274 Re JRL; Ex parte CJL [1986] HCA 39 |
| APPLICANT: | Mr Maher |
| RESPONDENT: | Ms Weaver |
| INTERVENOR: | Secretary, Department of Family and Community Services NSW |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Coady |
| FILE NUMBER: | PAC | 4774 | of | 2013 |
| DATE DELIVERED: | 28 July 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 26 July 2017 and 27 July 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Longworth |
| SOLICITOR FOR THE APPLICANT: | Somerville Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Braine |
| SOLICITOR FOR THE RESPONDENT: | S P Nasti & Co Solicitors |
| COUNSEL FOR THE INTERVENOR: | Ms Dart |
| SOLICITOR FOR THE INTERVENOR: | Secretary, Department of Family and Community Services NSW |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Mahony |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Louise Coady Family Lawyers Pty Limited |
Orders
That the father’s oral application for disqualification be dismissed.
That any application for costs arising from the application being dismissed be made by way of written submission filed and served within 14 days with any submissions in response to be filed and served within a further 7 days and thereafter judgment reserved to chambers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maher & Weaver and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4774 of 2013
| Mr Maher |
Applicant
And
| Ms Weaver |
Respondent
REASONS FOR JUDGMENT
The respondent father makes application that I recuse myself from the further hearing of this matter on the ground of apprehended bias.
The proceedings are final parenting proceedings commenced by the applicant mother in November 2013 initially in the Federal Circuit Court of Australia in relation to the children B born in 2007, C born in 2010 and D born in 2011.
The parents began living together in about 2003 and married in 2007. They separated initially in November 2011 and then later finally in January 2013.
The primary proceedings before the Court are parenting proceedings and are being conducted under the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”).
It is important to establish the context in which the hearing has been undertaken.
Orders concerning parental responsibility, with whom children will live and arrangements for spending time with parents are parenting orders which are determined in accordance with the provisions of Part VII of the Act.
The Court is required to determine arrangements having regard to the best interests of the subject children by considering a series of principles, objects and considerations identified in Part VII.
The principles for conducting child related proceedings, which includes applications for parenting orders, are identified in Div 12A of Pt VII. Section 69ZN, which sets out the principles. In s 69ZQ the general duties imposed upon a judge required to give effect to s 69ZN are identified. Section 69ZR then provides that the Court has the power to make determinations, findings and orders at any stage of the proceedings.
The Test
In Johnson v Johnson (2000) 201 CLR 488 (7 September 2000) the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said:
11. … 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”.
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.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (7 December 2000), the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said:
6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer (emphasis added) might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle……
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed…
In Ebner the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) then said:
The principle to be applied
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.
20. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21. It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22. The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23. Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
(emphasis added)
It is necessary to bear in mind the caution expressed by Mason J in Re JRL; Ex parte CJL [1986] HCA 39:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation.
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.
There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.
The fair minded lay observer
Kirby J. said in Johnson v Johnson (supra):
“The fictitious bystander and matters that lawyers know”
[46] If a court of appeal were deciding an allegation of prejudgment for itself, according to its own knowledge and standards, a number of considerations might be taken into account in a case such as the present:
1. Appellate judges realise that most adjudicators strive to be independent and impartial and to make adjustments (so far as they can) for factors of which they are aware which might impact on their decision-making. By their training and experience, most such adjudicators are conscious of the high expectations imposed upon them.
2. Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.
3. Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
4. The adversary system depends on vigorous interaction not only adjudicator and those persons. Where the parties are represented by trained lawyers, the latter can be taken to be aware of (and presumed, if necessary, to have explained to their clients) the character and purpose of tentative opinions that guide the direction of the trial and encourage its proper focus. No rule of law should be adopted in relation to disqualification for prejudgment which unreasonably undermines, or is fundamentally inconsistent with, that system. (Footnotes omitted)
In Johnson v Johnson (supra), the plurality observed that:
It must be remembered that the person being observed is a “professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”…… Whilst the fictional observer, by reference to whom the test is formulated, is it not to be assumed to have a detailed knowledge of the law, or of the character or ability of the particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.
In Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Callinan J at par 177 said:
It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried.
Lander J in Australian Securities and Investment Commission v Reid [2005] FCA 1274 reviewed authorities concerned with the level of knowledge and characteristics imputed to the fair minded lay observer. After he completed his review Lander J at par 110 described such a person as one:
…who is reasonable and fair minded, who has a general understanding of the facts and circumstances surrounding the case, who is not a lawyer but is not wholly uninformed and uninstructed about the law in general, and who would ordinarily think that a judge will act so as to ensure both the appearance and substance of fairness and impartiality without at the same time rejecting the alternative possibility.
The logical connection
The answer to the test for apprehended bias must be “firmly established”. As observed by Gummow J in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 9:
[70] …But it was remarked in the joint reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson to which further reference is made below, that the hypothetical observer would be no more entitled to make snap judgments than would be the decision maker under observation. Accordingly, and as the joint reasons make clear, later statements which qualify earlier statements may be relevant. There is no logical reason why any temporal element should be brought into that general principle; it depends upon the circumstances of the particular case…
[71] To that perception of the role of the hypothetical observer must be added the consideration that "the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party". The words are those of Mason J in Re JRL; Ex parte CJL, in a passage adopted by Callinan J in Johnson v Johnson. Mason J. also said in that passage, using words later said by the English Court of Appeal to have "great persuasive force", and adopted by the New Zealand Court of Appeal:
In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
It is incumbent for the father to firmly establish the “logical connection” between his complaints and the feared deviation from the course of deciding the case on its merits.
In considering the application of the above principles the father’s assertions as to bias are to be considered:
The First Exchange
During the mother’s ongoing cross examination on the first day of the trial the following exchange occurred in the context of cross examination of the mother by Mr Longworth of Counsel (Transcript [47]:
HIS HONOUR: She didn’t say she yelled at them.
MR LONGWORTH: Raising your voice, ma’am. Do you think that’s an effective way of managing them? It does get their attention, yes.
I suggest it doesn’t manage them, though, does it? What do you mean by manage them?
It doesn’t moderate their behaviour, does it? It allows them to pay attention to what I’m trying to say, yes.
I suggest that you swear at the children? No.
I suggest you tell them to fuck off? No.
I suggest you – when you’re exasperated, you tell [C] that he’s an idiot? No.
I suggest that even when [D] was a little child, you would tell him when he woke you in the middle of the night, “I hate you”? No.
MR BRAINE: Objection, your Honour. If my friend can be more specific. I mean, we’re talking about children ranging from the age of nine down to [E].
HIS HONOUR: If the husband wants to trawl through the minutiae of their relationship it just demonstrates his lack of reflective capacity in this case. Mr Longworth is bound by his instructions as to what the husband wants to be asked, so let’s see how we go.
It is noted that the child D at the time of trial is aged five and a half and the parties have been finally separated for about four years. The matter raised in the preceding question was it appeared an incident years before.
All counsel had previously been reminded that the Court is endeavouring to look prospectively in the best interests of all the children.
Counsel for the father, presumably on instructions, was it appeared on a path that would be of little utility to the Court in determining the question before it. If so on instructions the line of questioning reflected on the father.
In the context of the present hearing such comment was rightly made to remind counsel for the father as to the issues for determination and the need to engage in cross examination that was of relevance to the issues for determination.
The fair minded lay observer having the qualities discussed above and having heard the course of evidence thus far could only have regarded such comment by the Court as a robust exchange with counsel for the father in an endeavour to properly focus hearing those issues.
These are final parenting proceedings concerned with the best interests of four children. The father is required to firmly establish the “logical connection” between this complaint and the feared deviation from the course of deciding the case on its merits.
There is simply no articulation of any such logical connection but merely a specious contention in the context of the impugned exchange.
The Second Exchange
During the mother’s cross examination that had continued into day two of the hearing the following exchange occurred (Transcript [132]-[133]:
HIS HONOUR: Can’t they – can’t she have a male friend, because I asked her before. She’s still friends with him, she said.
MR LONGWORTH: Yes. And
HIS HONOUR: So she has an ongoing relationship with him.
MR LONGWORTH: With respect, your Honour, that’s misinterpreting the words.
HIS HONOUR: Well, I don’t know what the words that you’ve got are.
MR LONGWORTH: Well, the other words on it are “new boyfriend, [Mr II]”.
HIS HONOUR: Yes. That’s what she said he is; he’s a friend.
MR LONGWORTH: You – no, your Honour. There’s a relationship of two to three months sustenance which ended as she moved into the new house.
HIS HONOUR: Yes. But they’re still friends.
MR LONGWORTH: And it continues to say, “New relationship going well,” not new friendship.
HIS HONOUR: Is it your client’s contention she is cohabiting with this person?
MR LONGWORTH: It’s my contention – my client’s contention he doesn’t know anything about it, in circumstances where the mother is bringing an application in relation to time with the children.
HIS HONOUR: Yes. Well, she said
MR LONGWORTH: This is evidence without any iota of foreshadowing from the mother – nothing in her material.
HIS HONOUR: About, sorry?
MR LONGWORTH: [Mr II].
HIS HONOUR: Why does she need to?
MR LONGWORTH: It’s after
HIS HONOUR: He’s not living with her.
MR LONGWORTH: We don’t know that.
HIS HONOUR: He may come into contact with the kids when he visits as a friend, I suppose, as many of her friends do.
MR LONGWORTH: With respect, your Honour, we don’t know any of that.
HIS HONOUR: I assume that your client doesn’t live in isolation from female company or other friends that visit his home, but one is not suggesting they should be all here giving evidence, so let’s stop being precious about this and move on to something of substance, because the nature of this cross-examination is clearly indicative of there being absolutely no possibility of these parties being able to manage an equal time relationship with [E], but it’s his cross-examination and his case, so let’s move on some more, and I assume it’s all on instructions. I don’t think you completed the question in relation to the
MR LONGWORTH: No, I didn’t get a chance, your Honour.
HIS HONOUR: early discussion about [Mr KK].
MR LONGWORTH: No, I didn’t, and I just want to take some instructions on something.
HIS HONOUR: Yes. Go ahead.
MR LONGWORTH: Did you ever tell [Mr KK] that [Mr II] was happy to accept responsibility for you and the children? In the beginning of the relationship, yes.
What did you mean by that? He’s happy to be not a step-father but, you know, be in a relationship with a woman who has got children, or younger children, I should say.
Now, it’s your position, isn’t it, ma’am, that you say you haven’t had the opportunity to develop any structures, because you say you haven’t had enough time with the children, with the boys? No.
Do you accept you had them on certain days at least from 9 till 4? Yes.
And what’s the difficulty with instituting structure over that time? Because they have six days in between those seven hours that I get with them, it’s hard to get them to calm down, get into the routine, and then be able to go off to their father’s again, so when they come back after six more days, they’re excited, they want to be with mum, play, jump around, and then, like I said, it’s hard to get them to calm down, get back into the structure of the routine.
And you say that having them overnight would change that? It would give me more time to implement a routine, yes.
The exchange took place well into day two of the hearing with the mother still in cross examination by counsel for the father. The cross examination was mostly critical and disparaging of the mother.
Once again it resulted in preliminary comment as to one aspect of the dispute for determination from the Court that such a course was, it was to be inferred, on the instructions of the father and thus reflected on him. It was illustrative of the ongoing conflictual relationship between the parties that was freshly exposed by way of the mother’s evidence in chief and her cross examination as to conduct at a changeover only days before the beginning of the trial. Counsel was properly reminded of the possible consequences of his course.
It was a robust exchange with counsel in a context where the fair minded lay observer having witnessed the trial would properly regard it as such. There is again no articulation as to the logical connection between this complaint and the feared deviation from the course of deciding the case on its merits
The Third Exchange 25 July 2017
Late on the afternoon of 25 July 2017 the following exchange took place at about 3.25 pm:
MR RAY: Thank you, your Honour. My client is distraught. She is still outside the court in a very distressed state. We’ve tried to contact the court’s support staff, and unfortunately they’ve left for the day. She has – her mum has been sitting outside court for the last couple of days. However, even now she remains very distressed.
HIS HONOUR: Inconsolable.
MR RAY: That’s a better description.
HIS HONOUR: Well, there’s not much we can do about that at this stage. I don’t want to drag her in. Mr Longworth has got his instructions about what he has got to put to her, so we can just resume her evidence, hopefully if she’s a bit more composed, at 10 o’clock tomorrow.
MR RAY: Your Honour, indeed, if it is convenient to your Honour, of course, an earlier start is a possibility.
HIS HONOUR: Yes, well, I’ve got a – I think, a 9.30 listing tomorrow, but we could probably – if everybody is agreeable, I can make some arrangements to sit a little bit longer in the afternoon. We might be able to sit until 5 or so and maybe have a shorter lunch. See how we go. But I would imagine that with Mr Dart chomping at the bit in terms of cross-examination and then Ms Marnie that the mother’s evidence won’t finish, in any event, much before the close of business tomorrow. I expect the father might be entertained for some time. So it has got every looks of being – rolling over into next week.
MR RAY: And I think
HIS HONOUR: Because it needs to be finished.
MR RAY: it’s not realistic to have [Mr JJ] tomorrow at this stage, so she will have to be pushed back, and we’ve got
HIS HONOUR: Well, I suppose we could probably interpose her if – is she going to be unavailable next week, or
MS MARNIE: I don’t know about next week. We could probably arrange her for later in the week.
HIS HONOUR: I couldn’t imagine there’s an issue of interposing the case worker.
MR LONGWORTH: Not at all.
HIS HONOUR: And she wouldn’t be entertained for much, I don’t think. It’s all in her affidavit, I expect. So I’m happy to work in whatever you agree at the bar table about that.
MR RAY: Happy for her to be deposed tomorrow at 10 am, if it’s convenient.
HIS HONOUR: Well, if it’s necessary. Depends if she’s otherwise available. Is she working in an office in Sydney?
MS MARNIE: [Suburb LL] .....
HIS HONOUR: All right. Well, she probably needs some notice about when she’s required to give
MS MARNIE: But she can get here within an hour. It’s just a matter of competing priorities.
The reference to Mr Ray is to Mr Braine of counsel for the mother. The reference to Ms Marnie is to Ms Mahoney of Counsel for the ICL.
The exchange took place after the mother became distressed in cross examination and was excused for a period. The Court adjourned and the exchange took place upon the Court resuming and in the absence of the mother.
It is clear that the exchange related to the further conduct of the trial and its anticipated length.
The father takes offence at the passage:
I expect the father might be entertained for some time.
He asserts that the passage intimates that he was in some way amused by the cross examination of the mother by his counsel. How such intimation arises is not clear when the passage is considered in the context of the overall discussion.
It is patently clear that the reference was to the expected length of the father’s cross examination taking the hearing into the following week. Such conclusion is irresistible when one considers the short exchange as to evidence of the Department of Family and Community Services case worker that immediately follows and the prospect of interposing her evidence that was expected to be short.
Notwithstanding whatever inference the father seeks to put on the exchange, it is clear that when read in context it is simply not capable of the interpretation he seeks to maintain.
The test to be satisfied is discussed at length above.
To suggest that a fair-minded lay observer, having the characteristics discussed above, might reasonably apprehend that the Court might not bring an impartial and unprejudiced mind to the resolution of the question the Court is required to decide by reason of the impugned exchange is illogical if not fanciful.
These are final parenting proceedings concerned with the best interests of four children. The father is required to firmly establish the “logical connection” between his complaint and the feared deviation from the course of deciding the case on its merits.
There is simply no articulation of any such logical connection but merely an illogical contention in the context of the impugned exchange.
Discussion
The principles to be followed and the duties of the Court in proceedings under Division 12A are set out above. It would be an abdication of those principles and duties to permit parties to pursue a course that undermined the integrity of properly conducted and managed parenting proceedings that consider the best interests of children.
The fair minded lay observer would be mindful of the nature of parenting proceedings and the general context in which they are conducted.
As observed by Callinan J in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (supra) at [174-176]:
The Federal Court has adopted a docket system. In that system a number of cases are assigned to a particular judge who then oversees, and makes directions with respect to, all interlocutory matters before hearing a case assigned to him or her. The procedure for trials in the jurisdiction also involves the preparation, exchanging and filing of statements and documents in advance of the hearing which may, and almost always will, be read before the trial begins.
This system has its disadvantages and dangers. On the one hand, the trial judge will be well educated in many of the details of the case on each side by the time that the hearing starts. But on the other hand, it may sometimes be difficult for the trial judge, apparently fully conversant with the facts and issues, not to have formed some provisional view at least of the outcome of the case.
The justifications for the provision of written statements in advance of trial have been thought to be the avoidance of surprise and the shortening of hearing time. These advantages will often be more illusory than real. The provision of written statements by one side will afford to the other an opportunity to rehearse in some detail his or her response. It is also impossible to avoid the suspicion that statements on all sides are frequently the product of much refinement and polishing in the offices and chambers of the lawyers representing the parties, rather than of the unassisted recollection and expression of them and their witnesses. This goes some way to explaining the quite stilted and artificial language in which some of the evidence is expressed in writing from time to time, as it was here. Viva voce evidence retains a spontaneity and genuineness often lacking in pre-prepared written material. It is also open to question whether written statements in advance do truly save time and expense, even of the trial itself. Instead of hearing and analysing the evidence in chief as it is given, the trial judge has to read it in advance, and then has the task of listening to the cross-examination on it, and later, of attempting to integrate the written statements, any additional evidence given orally in chief, and the evidence given in cross-examination.
I mention these matters because in sum they may well incline a trial judge towards a degree of outspokenness of a kind to which he or she would not be inclined in a conventional trial on largely oral evidence. That this is so does not provide any excuse for the manifestation of apparent bias on the part of a trial judge but it may explain why a judge finds himself or herself speaking more candidly and strongly than he or she might otherwise do, or even have been able to do, in the past or in other jurisdictions. The question nonetheless remains whether the fair-minded lay observer might reasonably have apprehended that the judge might not be bringing an impartial and unprejudiced mind to the resolution of the questions he was required to decide.
These comments are particularly apposite in the context of this Court’s conduct of a Less Adversarial Trial within its judicial docket system and the exercise by the Court of its function having regard to the principles, powers and duties thrust upon it by reason of Division 12A of the Act that are referred to above.
The father’s three complaints arise over a two day period of the trial, where the fair minded lay observer would be mindful that the father’s evidence had not been received. The fair minded lay observer would also be mindful that these are parenting proceedings where it is not to be expected that the judicial officer would remain “mute as sphinx” but would engage in the course of evidence providing to the parties and their counsel preliminary thoughts as the case progressed. Such is to be expected in Division 12A parenting proceedings.
None of the complaints either individually or taken as a whole have any merit.
The application for disqualification is to be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 28 July 2017.
Associate:
Date: 28 July 2017
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