MERRELL & MERRELL
[2019] FCCA 1184
•8 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MERRELL & MERRELL | [2019] FCCA 1184 |
| Catchwords: FAMILY LAW – Applications for travel orders, enforcement of subpoena, contravention, issue of passports, adjournment, parenting orders, recusal – parties agree final parenting orders – respondent seeks adjustment of property interests – applicant bankrupt – respondent pursues investigation of applicant’s financial position – bankruptcy – failure to compete statement of affairs – respondent seeks production of financial records on subpoena – seeks suspension of period of operation of Airport Watch List order – property settlement – subpoena objection – parties agree in hearing of recusal application alone – applicable principles – orders made. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.54, 178 Family Law Act 1975 (Cth), ss.67Z, 69ZN, 70NBA, 79 |
| Cases cited: Barakat v Goritsas (No 2) [2012] NSWCA 36 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Galea v Galea (1990) 19 NSWLR 263 GlaxoSmithKline v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150 Johnson v Johnson (2000) 201 CLR 488 Luck v Secretary, Department of Human Services [2017] FCA 540 Articles: The Hon Bathurst CJ, Duties of Bar & Bench: Some reflections on case management and judicial bias: [2014] NSWJShol 20 |
| Applicant: | MR MERRELL |
| Respondent: | MS MERRELL |
| File Number: | MLC 4595 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 30 April 2019 |
| Date of Last Submission: | 30 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 8 May 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Mr Duffy |
| Solicitors for the Respondent: | Victoria Legal Aid |
ORDERS
The Application in a Case filed on 18 April 2019, be dismissed.
By 4.00pm on Friday, 31 May 2019 the applicant file and serve any Amended Initiating Application seeking relief for the further parenting orders as set out in his Response filed on 17 April 2019.
By 4.00pm on Friday, 21 June 2019 the respondent file and serve any Amended Response to the Amended Initiating Application.
The following applications are listed for Interim Hearing on 1 July 2019:
(a)the Application in a Case filed on 6 March 2019;
(b)the Response to the Application in a Case filed on 17 April 2019;
(c)the Contravention Application filed on 6 March 2019;
(d)the Notices of Objection to the subpoena addressed to the Directors of ….
Save with leave of the Court no party may file or serve any further affidavits in relation to the applications addressed in paragraph (4) of this Order.
IT IS NOTED that publication of this judgment under the pseudonym Merrell & Merrell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4595 of 2017
| MR MERRELL |
Applicant
And
| MS MERRELL |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain why I have concluded that the application for recusal should be refused. The matter has had an elongated history.
The applicant father is aged 52 years and the respondent mother aged 32. The applicant is a professional by occupation. He is a bankrupt. The respondent’s occupation is home duties.
The parties’ relationship began in Country A in 2007. The parties married in Melbourne on … 2008 and separated on 6 October 2016. There are two children of the marriage born on … 2009 and on … 2012 respectively (children). Following separation the children remained in the care of their mother and initially spent regular and flexible time with their father.
Following the breakdown of the relationship, on 17 March 2017, an interim Intervention Order (IVO) was made against the applicant naming the respondent and children as affected persons.
By Initiating Application filed on 12 May 2017, the applicant father sought parenting orders respecting the children. The applicant also made an ex parte application to have the children placed on the Airport Watch List with the immediate object of preventing the respondent mother from departing with the children to Country A. The applicant also sought among other things a Family Report and the appointment of an Independent Children’s Lawyer (ICL). A Notice of Risk and Affidavit accompanied the Initiating Application alleged that the children were at risk of serious psychological harm from the respondent.
On 12 May 2017, an interim order was made placing the children on the Airport Watch List.
By her Response, the respondent sought parenting and property orders. Her Notice of Risk stated that the applicant had been diagnosed with paraphilia, a sexual disorder associated with voyeurism. She alleged that the applicant made video recordings of young women at his place of business. The respondent’s initial affidavit made a number of disclosures including that she had been charged with assault in consequence of a dispute with the applicant. She also deposed to her affair in 2015 and the failure of the parties’ relationship. She deposed to the applicant’s treatment for his psychiatric condition and his depression.
The respondent also claimed that the children were at risk of serious psychological harm and serious neglect from their father. The respondent said that she had reported various incidents to police, Child Welfare Authority, a psychologist and a psychiatrist. Annexed to her affidavit dated 13 June 2017, was a letter from Dr B to Dr C stating:
Mr Merrell has been battling for some time with ongoing sexual desires that have resulted in profound depression and suicide ideation.
The applicant does not disclaim or deny his mental condition and, on independent expert opinion, he is considered to be of low risk to the children.
On 15 June 2017, the matter returned before the court. Consent orders were made for the applicant to spend time with the children on the basis that he was supervised by his parents when doing so. The applicant’s parents, who attended court on that date and on a number of occasions thereafter, gave undertakings respecting supervision. Orders were made for the appointment of an ICL and to regulate the parties’ proceeding which concerned both parenting and property issues.
By her affidavit filed on 8 August 2017, the respondent raised her concerns about the children being in the presence of Mr D, a friend of the applicant, who, she deposed, had informed her that he liked to travel to Asia on sex tours to have sex with young girls. These allegations, like all others, are and remain, untested.
By orders made on 18 August 2017, the proceeding was set down for trial on 18 August 2018. At this point the respondent deposed to the difficulties that had been encountered in securing proper financial disclosure from the applicant, a problem which she claims has been ongoing. Orders had been made for such disclosure.
Upon his appointment the ICL issued a large number of subpoenas. The ICL also directed, and the parties consented in orders that the applicant undertake a psychosexual assessment and that both parties be psychiatrically assessed.
Difficulties were experienced in securing the parties’ attendance at those medical appointments and on 11 December 2017, further orders were made, again by consent, for the parties to undertake such assessments. Orders for supervised spend time were made respecting the Christmas holiday period.
The respondent deposed that, from her discussions with the applicant’s trustee in bankruptcy, the applicant had not filed, and apparently had no intention of filing, a statement of affairs. The respondent received advice that an application be made pursuant to s 178 of the Bankruptcy Act to compel the applicant to complete and file that statement.
Further, in December 2017, following a contested hearing, an IVO was made against the applicant, operative for three years, naming the respondent as a person protected by that order.
On 11 April 2018, the Department of Health and Human Services (DHHS) responded to a s 67Z Notice. The Departmental response was that there was no information to support the allegation that the applicant posed a significant threat to the respondent or the children.
The DHHS response further identified that the respondent was the subject of extensive allegations of having withheld the children from the applicant and of her perpetrating violence against the applicant and involving the children directly in the proceeding, including making false allegations of sexual abuse. In addition, the applicant submitted that he has been the subject of ongoing and repeated anonymous allegations reported to DHHS.
On 18 May 2018, a Family Report was obtained. The Family Report highlighted the respondent’s concerns that the children were not safe in their father's unsupervised care by reason of his use of pornography and the revelation that he had been filming female staff in the shower at his work and residential site.
Contrastingly, Dr E, who completed a psycho-sexual assessment of the applicant on the 7 December 2017, determined there was a low risk of sexual offending and a low parental risk. Contrary to the respondent’s case, Dr E concluded that there were no indicators to prevent the applicant from having normal time with the children.
Prior to finalising a report, one of the applicant’s treating medical practitioners, Dr F, responded to an email from the ICL requesting a short summary regarding any risk the applicant posed to the children. Dr F stated that the applicant’s behaviour of filming women without their consent might not necessarily mean he was a risk to the children, adding however, “at least when they are young.”
The family report writer recommended that the children live with their mother and spend unsupervised time with their father on alternate weekends from Friday after school until Monday before school. It was also recommended that the children spend half the school holidays with the applicant and half of all special days. It was further recommended that the children commence overnight time with their father at his current residence once he had prepared suitable sleeping space for them, (as their former home was now used for another purpose).
It is self-evident that those recommendations and the opinions of Dr E and Dr F respectively, stand in contrast with the allegations as to the magnitude of the risk presented by the respondent.
On 28 May 2018, final parenting orders were made by consent and interim property orders were made. The parties agreed in equal shared parental responsibility, for the children to live with the respondent and to spend time with the applicant. Other parenting orders were made including that upon expiry of the Airport Watch List Order and in the event either party wished to travel, the other party would be given 60 days’ notice of that proposed travel.
As concerned interim property orders, the trial was vacated upon an undertaking of the applicant to complete a statement of affairs in accordance with s 54 of the Bankruptcy Act. Further orders were made for the applicant to file a Financial Statement. The parties were required to file an Outline of a Case and the proposed orders which they sought. Those orders were made in circumstances where the respondent’s counsel recognised that the parties’ assets may be negligible and that there may be no utility in pursuing the property application.
The applicant complied with the orders and by his statement of affairs, lodged with the Trustee in Bankruptcy on 29 April 2018, disclosed that: (a) unsecured creditors of $823,000; (b) various secured creditors; (c) negative equity of ~$16,700. The applicant claims that the liabilities which he incurred, were incurred as a sole trader and that should the respondent seek to have that reassessed she may become an equal partner and incur 50% of those liabilities. Again, while these matters remain untested, they would, if accepted, underline the futility of pursuing an application for an adjustment of property interests.
The applicant also filed an affidavit in which he explained that, because his business was conducted as a Not for Profit organisation which … description of business… neither he nor the Australian Taxation Office could simply close his business as …. In the event, the business has been sold, apparently to a company which is conducted by a colleague of the applicant, Mr D.
From the parties’ Financial Statements filed on 29 June 2018 and 13 June 2017 respectively:
a)the applicant has an income of ~$1,000 per week, personal expenditure of $1,500 per week, no property and liabilities of $53,000. He has no superannuation;
b)the respondent has an income of ~$700 per week, personal expenditure of $500 per week, property of ~$3,000 in value and no liabilities. She too has no superannuation.
The respondent has not filed a Financial Statement since 2017.
While the parties have been represented by lawyers they are now self-represented. A number of lawyers who had acted for the respondent have withdrawn.
The respondent has pursued her investigation of the applicant’s financial affairs including by the issue of subpoenas. She issued those subpoenas at a time when she was self-represented. Objections to her subpoenas were filed by various of the subpoena parties and the applicant.
On 18 December 2018, orders were made permitting the respondent to inspect some of the documents of which production had been sought. Such inspection was permitted of documents sought from National Australia Bank and … Limited (being the company which has apparently purchased the applicant’s bankrupt business).
In addition to the subpoena issued and served on … Limited, a subpoena in near identical terms was also served on its director, Mr D. It now emerges that a Notice of Objection that had been filed by Mr D was not addressed in the course of the Duty List hearing which took place on 18 December 2018. The parties and the court mistakenly took the view that the order permitting inspection of the documents produced on subpoena by … Limited had dealt with the matter. Although it was not raised before me, it also appears that the applicant had filed a Notice of Objection to the subpoena addressed to Mr D and that this too had not been addressed.
Otherwise, the proceeding was adjourned for Mention on 1 May 2019.
Current applications
In the intervening period, the respondent filed a number of applications. The spate of recent filings gives colour to the nature of the proceeding. As I observed in the course of submissions it has been a matter of increasing frustration that on every occasion that an application is listed for hearing, it has been necessary to adjourn the matter by reason of the need to afford procedural fairness to one or other of the parties. The problem continues to occur and must be arrested.
While I address the applications in further detail below, I note that certain of them had been returnable before the court on 20 March 2019. On that date, the parties were self-represented. The court made orders designed to bring some clarity to the matter, including for the applicant to file a Response to the Application in a Case and answering affidavits.
Insofar as the applicant has been ordered to file a Response, any application and answering affidavits, he has complied with those orders.
On 20 March 2019, directions were made that Mr D be served with the Order, that he attend court at the Mention on 30 April 2019 and in default of him doing so that a warrant may issue for his arrest. A notation to the Order referred the applicant to the Women’s Legal Service.
The matter was adjourned to 30 April 2019. On that date the respondent was represented by counsel. The applicant remained self-represented.
It is against that background that I address the applications which have been filed. In the events which have followed it is convenient to address the current status of each of the six applications which are on foot.
Overseas travel
By Application in a Case filed on 6 March 2019, the respondent sought orders permitting that she travel with the children to Country A so as to be able to visit her family.
By her affidavit sworn on 5 March 2019, the respondent mother requested the renewal of the children’s passports. She deposed that she would like the children to have quality time with their grandparents and form bonds and a personal connection with their extended family overseas.
By his answering affidavit filed on 17 April 2019, the applicant has addressed in some detail the reasons why he opposes the application that the respondent and children might travel to Country A.
In short, and as expanded upon in his oral submissions, the applicant contends that the respondent has constantly failed to comply with the final parenting orders and that her conduct supports a conclusion she will continue to fail to comply with such orders such that the court should not as a matter of discretion make an order permitting the respondent to travel with the children. The applicant provided by way of example that the respondent had without any or proper notice moved across Melbourne, changed the schools of the children and refused to allow the children to spend time with him. If his evidence was accepted it would indicate that the final parenting orders are not being observed. The respondent’s decision to unilaterally relocate across Melbourne has meant that: (1) the applicant must now travel 1 ½ hours to spend time with the children; (2) the respondent has apparently disregarded that the final parenting orders record the parties agreement for equal shared parenting responsibility. Why the respondent has relocated across Melbourne without consulting the applicant as to why it would be in the children’s best interests to move such a distance has not been explored. Yet the applicant submitted that he saw no point in issuing a contravention application as it would only add to the endless litigation which is on foot in this and other courts. I understood that submission as indicating the fervour with which the applicant does oppose the application for a travel order.
The applicant discovered at 7.00am on the morning of the hearing that the respondent had filed an affidavit which dealt with his answering affidavit. Although the Order made on 20 March 2019 afforded the respondent to file an answering affidavit, the she had not complied with that order in accordance with the timetable which it contained.
Insofar as the respondent seeks to travel overseas with the children it would also seem necessary for her to recognise that, because the final parenting orders made on 28 May 2018 confer equal shared parental responsibility upon the parties, the applicant is entitled to be consulted in relation to the orders sought: Sadasivam & Seshan [2019] FamCAFC 76, [22], [33].
This circumstance dictated that the applicant be afforded procedural fairness and that the application be adjourned, as it was, by consent.
Property
By her Application in a Case filed on 6 March 2019, the respondent further sought to have Mr D, director of … Limited comply with the subpoena filed on 12 November 2018. I put to one side any question of the power to make such an order. A person is obliged to comply with a subpoena unless it is set aside. The question of compliance itself entails the resolution of any Notice of Objection.
By her affidavit filed 6 March 2019, the respondent claimed that Mr D was deliberately not complying with subpoena requests to produce company details that could assist in the finalising of property matters between the parties.
As noted above, on 20 March 2019, directions were made respecting the giving of notice to Mr D. It would appear that that notice had been effective because he communicated with the court and other parties indicating that he was overseas and would be overseas when the matter was listed for hearing on 30 April 2019.
When the matter was called on, Mr D did not appear.
Further, the applicant indicated that, as he understood the position, there may be no difficulty with compliance with the subpoena if the respondent narrowed the scope of the documents which she sought within boundaries which were not oppressively wide. The subpoena seeks production, relevantly, of:
(a)All payslips in relation to services provided by [the applicant];
(b)All Company tax returns lodges with the Commissioner of taxation;
(c)All balance sheets, profit and loss statements, financial statements, BAS statements, jounrnals, ledgers in relation to [the company]
Contextually, a subpoena in near identical terms has also been issued to … Limited and orders have already been made on 18 December 2018 permitting inspection by the respondent of the documents described in para (a)-(b) of the subpoena addressed to the company. So, in substance, the only outstanding issues concern the wide ranging documents in para (c) of the subpoena.
On its face, the period for which production of documents sought is not limited in time. However, from the respondent’s affidavit it is apparent that the company was registered on 6 June 2016. For that reason, it is not immediately apparent why the subpoena is oppressive in terms of time. Accordingly, the respondent was encouraged through her counsel to communicate with Mr D so as to attempt to define with greater precision both the ambit of the documents and the period for which such documents was reasonably required.
As noted above, on 30 April 2019, an order has been made permitting inspection by the respondent of the documents described in paragraphs (a)-(b) of the subpoena. If the parties cannot resolve the scope of the subpoena and the documents sought (and which Mr D may apparently be willing to produce), it remains for the court to determine any objection to that subpoena before any further question of enforcement can be dealt with.
Response to application – parenting
By way of Response filed on 17 April 2019, the applicant sought that:
a)the Watch List Order remain until the children are aged 18 years;
b)for the court to clarify the current orders;
c)for the children be returned to their approved school, being School G Primary School or if not, make up time for the father including cost of travel as a result of the change of school;
d)changeover arrangements be clarified;
e)the children be permitted mobile phones provided by their father;
f)Mr H, who lives with the mother be ordered to attend a behavioural and psycho-sexual assessment to clarify if the children are at risk;
g)paragraph (5) of the Final Parenting Order made on 28 May 2018 be altered so as to apply to both parents equally;
h)the removal of paragraph (6) (discharging the ICL) of the Final Parenting Order made on 28 May 2018;
i)the court delay the further hearing of the proceeding until a hearing for an IVO before the Magistrates’ Court is concluded; and
j)the child ([X]) attend an ENT appointment.
Although the applicant is now self-represented, it is clear that final parenting orders have been made. In the result, the Response is not a competent vehicle for many of the orders which are being sought: Sadasivam & Seshan [2019] FamCAFC 76, [11], [15], [30]. As the Initiating Application remains on foot, it is necessary for the applicant to file an Amended Initiating Application to seek this relief. He may do so in circumstances where the application for property order remains extant. It is a matter for him if he wishes to do so.
This conclusion notwithstanding, if accepted, the matters addressed by the applicant’s affidavit speaks loudly to the abject disregard of the final parenting orders and for the need for those orders to be obeyed. It may be that an order for family dispute resolution is appropriate once the Amended Initiating Application has been filed.
Contravention Application
On 6 March 2019, the respondent filed a Contravention Application alleging:
a)the applicant had taken the children to see a psychologist on 14 February 2019 and was refusing to provide her with any such information about the visit;
b)the applicant had failed to deliver the children to School J Primary School on the 4 and 5 March 2019.
The application is not supported by an affidavit.
The applicant was afforded an opportunity to respond to the application. By a separate affidavit, also filed on 17 April 2019, the applicant denied the applicant’s claims to the Contravention Application. His affidavit addressed the subject matter of the respondent’s Contravention Application in detail and, if accepted, would appear to provide a cogent explanation for the matters alleged.
Again, the applicant discovered at 7.00am on the morning of the hearing that the respondent had filed an affidavit (which appears not yet to have been served) that dealt with the applicant’s affidavit answering the allegations raised by the Contravention Application. The court may make new parenting orders on the hearing of a Contravention Application: s 70NBA. The parties should immediately address the prospect whether this may occur.
The hearing of this application was also adjourned by consent.
Adjournment
By Application in a Case filed on 25 April 2019, the applicant sought an adjournment of the applications listed for hearing on 30 April 2019.
A substantive basis on which this order was sought was that the extant applications should not be heard until the court had determined the application for recusal.
The parties agreed in the adoption of that course.
Recusal
By Application in a Case filed on 18 April 2019, the applicant seeks that I recuse myself from the current proceedings on the basis of apprehended bias and that the case be reallocated.
The application was supported by affidavit which addressed the basis on which recusal was sought. It exhibited transcript of the proceedings before me on 18 December 2018 and 20 March 2019.
Yet again, the applicant discovered that as concerned this application, one of the respondent’s answering affidavits filed on the morning of the hearing adduced evidence in relation to this application. And again, in filing that affidavit (which also appears not yet to have been served) the respondent had not complied with the order in accordance with the timetable which it afforded her an opportunity to answer the evidence filed by the applicant.
The matter was stood down to allow the applicant to consider the four paragraphs which addressed the recusal application. The applicant elected to proceed with his application. The applicant presented his submissions in a considered manner and without any attempt to place a gloss on the events upon which he relied and upon how it was that he submitted the observations which had been made on earlier hearings undermined his confidence (and that which he submitted a reasonable bystander would have), whether I would or could now bring an impartial mind to the determination of the application that the respondent and children be permitted to travel to Country A.
Mr Duffy of counsel correctly drew attention to the principles stated in Vakauta v Kelly[1] respecting apprehended bias.
[1] (1989) 167 CLR 568.
The principles applicable to the determination of an application for recusal on the grounds of apprehended bias are well settled. The test for recusal on the ground of apprehended bias is to be determined by whether: “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”: Ebner v Official Trustee in Bankruptcy.[2]
[2](2000) 205 CLR 337, [6], [33]; see also Johnson v Johnson (2000) 201 CLR 488, [11]; Luck v Secretary, Department of Human Services [2017] FCA 540, (Kerr J).
The two elements of the test were stated in Ebner by Gleeson CJ, McHugh, Gummow and Hayne JJ at [8] as follows:
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. ... Only then can the reasonableness of the asserted apprehension of bias be assessed. (emphasis added)
Further, in Luck v Secretary, Department of Human Services,[3] Kerr J stated:
[3] [2017] FCA 540, [91].
As was noted by L’Heureux-Dube and McLachlin JJ in R v S (RD) [1997]3 SCR 484 at [119]:
...the duty to be impartial ‘does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet....
The informed fair minded observer would know that the judicial oath taken by all judges requires them to determine all matters on their legal and factual merits.
More recently, in Ugur v Attorney-General for New South Wales,[4] White JA with whom Meagher and Brereton JJA agreed, examined a number of important principles which I have set out below. By way of overview, the NSW Court of Appeal reiterated that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice – it is not that he or she will decide the case adversely to one party. The principles recognise that: (1) the hypothetical fair-minded lay observer will recognise that a professional judge is capable of departing from an earlier expressed opinion; (2) judges cannot wait until the end of a case to start thinking about it; (3) there is no principle which requires that a judicial officer exercise greater reticence with a self-represented litigant than a party who is represented; (4) the circumstance that a judge had indicated a predilection to granting an application unless a fact or argument was put which would cause him or her to change their view is not a sufficient ground for disqualification and would not raise an apprehension that the issue would not be decided with an impartial and unprejudiced mind; (5) a judge should not lightly recuse him or herself. White JA stated as follows:[5]
[4] [2019] NSWCA 86.
[5] [2019] NSWCA 86, [93]-[98].
The test as to whether a judge is disqualified by reason of appearance of bias, including bias by pre-judgment, is whether 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 has to decide.[6] Application of the test requires articulation of why the statements of the judge relied on as showing pre-judgment or partiality give rise to the apprehension of bias through pre-judgment or departure from impartial decision-making.[7] Disparaging comments by the judge are unlikely to lead the hypothetical fair-minded lay observer to apprehend that the judge might be biased unless the observer might consider the comments not only to be inapt but to be so unreasonable as to indicate an inability to bring an impartial mind to the questions to be decided.[8]
[6]Citing Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48, [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, [6]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48, [31].
[7] Citing Michael Wilson & Partners Limited v Nicholls, [63].
[8] Citing Barakat v Goritsas (No. 2) [2012] NSWCA 36, [13].
In Re JRL; Ex parte CJL,[9] Mason J said:
[9] [1986] HCA 39; (1986) 161 CLR 342, 352.
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. 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’.”
The hypothetical fair-minded lay observer will recognise that a professional judge is capable of departing from an earlier expressed opinion. Disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he would decide the case adversely to a party.[10]
In Johnson v Johnson the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said (at [13]):
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.”
Although greater reticence is often observed by judges when dealing with self-represented litigants, that is not necessarily to the advantage of those litigants. Nor is there any principle that a judge should be more reticent in dealing with a self-represented litigant than with the litigant who is represented by counsel or a solicitor lest an apprehension of bias arise. The question is not whether the litigant apprehends that the judge might be biased, but whether a fair-minded lay observer might apprehend that the judge might not bring an impartial mind to the issues. In Johnson v Johnson, Kirby J gave separate reasons. His Honour said (at [53]):
Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers.[11] The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted.[12] The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context; Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.[15]
. . . The hypothetical observer might apprehend that the primary judge might approach the Attorney General’s application for summary dismissal of Mr Ugur’s proceeding with a predilection to granting it unless Mr Ugur could point to some matter of fact, or some argument of law, that could cause him to change his view. That would not be sufficient to disqualify the judge from hearing the matter on the ground of apprehended bias.[16] It would not raise an apprehension that the primary judge would not approach the application with an impartial and unprejudiced mind.
[10]Citing GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser HealthCare (UK) Ltd [2013] F CAFC 150, [39]- [40].
[11] Citing Galea v Galea (1990) 19 NSWLR 263 at 282.
[12] Citing Wentworth v Rogers (No 12) (1987) 9 NSWLR 400, 422.
[15] Citing R v S (RD)[1997] 3 SCR 484, 505.
[16] Citing Re JRL; Ex parte CJL.
Speaking extra-judicially, The Hon Bathurst CJ reiterated the well-settled principles that there is a close relationship between case management in a docket list and the issue of bias. The Chief Justice observed it to be clear that judges cannot be expected to sit in silence during argument (or to begin thinking about the issues once the case had concluded) and would often form tentative opinions about the matters in issue. Bathurst CJ emphasised that: (1) judges should not sit silently through a proceeding; (2) the process of raising opinions during the course of proceedings was meant to draw a response which might assist the court to clarify an issue or correct a mistaken view: (3) the raising of issues during debate did not mean that the judges mind could not be altered; (4) case management in a modern docket court system would continue to raise issues regarding the possible appearance of pre-judgment.[17]
[17]The Hon Bathurst CJ, Duties of Bar & Bench: Some reflections on case management and judicial bias: [2014] NSWJShol 20, citing GlaxoSmithKline v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150; Johnson v Johnson (2000) 201 CLR 488; Vakauta v Kelly (1989) 167 CLR 568; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427.
As those principles fall to be applied here, I have examined the transcript of the proceedings on 18 December 2018 and 20 March 2019. There is no doubt that I challenged the applicant directly as to why it would be wrong for the respondent and children to travel to Country A, a Hague Convention country. I did so in the context of the applicant’s apparent ongoing failure to make financial disclosure and the parties’ respective financial impecuniosity.
In the present case, I have not yet embarked upon a hearing. Thus far, I have recognised that the parties are in dire financial circumstances and that the applicant’s failure to provide financial disclosure has led to the adjournment of the application for an adjustment of property interests pursuant to s 79 of the Family Aw Act 1975 (Cth). The respondent finds herself in Australia as a person who has no effective financial support from the applicant. She has the care of the two children. Ordinarily, children are entitled to the benefit of a relationship with their extended family. The basis for the applicant’s opposition to the children being permitted to travel was not identified. Nor was it supported by any affidavit or other evidence.
As the authorities confirm the process of raising opinions during the course of proceedings is meant to draw a response which might assist the court to clarify an issue or correct a mistaken view. They also confirm that the raising of issues during debate does not mean that the judge’s mind could not be altered. In the result, the applicant has been afforded an opportunity to file an affidavit which provides the evidence on which he relies in opposing the application for orders that the children might travel to Country A. The applicant’s affidavit filed on 17 April 2019, deposing that the children would be at risk if they travel to Country A by virtue of the environment they would be exposed to. Contextually the applicant deposed to being a victim of sexual abuse by a member of the Christian Brother’s Order and for that reason he holds a grave fear of abuse of his children by any person. He deposes that he would live in fear because the respondent’s mother suffers from bipolar disorder and is a member of a cult and when her children were young, she attempted to kill them. He deposes to the respondent’s father being abusive and physically violent toward the respondent and her brother when they were children. The applicant also deposes to the respondent’s brother having had sexually abused her when she was a child. He also deposes to the respondent’s family being involved in cartels in Country A. He now relies on each of these matters.
In the course of the hearings respecting the respondent’s travel application, I have reflected on the systemic nature of the problems which infect this relationship including the allegations that the respondent has been in constant disobedience of the final parenting orders. Should that evidence establish the truth of those allegations there would be undeniable force in the applicant’s submission that the court should not exercise its discretion in favour of travel upon the application by a person herself in breach of those orders. In that context, the applicant submits that the observations which I have been made challenging the question of why the respondent’s travel application should not be granted fail to recognise the true position and do so in a way which suggest that the travel application is bound to be granted. However, the submission fails to recognise that the court must decide the case on the evidence and bring an impartial mind to it – a mind that can be changed, including where an initial impression of the case might be shown to be erroneous.
Turning to the second, important step posed in Ebner, I am not satisfied that there is a logical connection between the applicant’s complaints and a fear that there would be a deviation from the requirement to decide the travel application on its merits. What falls to be assessed is not the actual state of mind of the judge at the time of the impugned exchange, but the fair minded observer’s view of the capability of the judge to determine the matter according to law, on the basis of the evidence and upon the submissions which are made at the hearing: Barakat v Goritsas (No 2).[18] As the NSW Court of appeal identified in Barakat[19] it is incumbent on a party making an application for recusal on the basis of apprehended bias to identify the issues which will need to be determined, the conduct which gives rise to the apprehension and the logical connection between the conduct and those issues. In this context, the applicant’s submissions failed to grapple with the precise issues that fell to be determined and the connection between the impugned conduct which arose in the course of the Duty List hearings. As he was self-represented, this was understandable. I have accordingly considered the question for myself.
[18] [2012] NSWCA 36, [8], (Basten JA, Young JA and Sackville AJA agreeing).
[19] [2012] NSWCA 36, [12].
When a judge addressing proceedings in a Duty List is presented with an application of this kind it is inevitable that the court will apply the principles prescribed by the Act to seek to identify the real issues in dispute and to actively direct, control and manage the conduct of the proceedings: see s 69ZN(4); see generally, Div 12A, Part VII, Principles for conducting child-related proceedings. I do not accept that there has been any pre-judgment of the application and I am not satisfied that an objective bystander (including a one who was self-represented), might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions in this application; namely, whether the best interests of the children would be served by permitting that they travel overseas and whether the risks of them not being returned to Australia were disproportionate in all the circumstances to the relief being sought. To the contrary, the events which occurred on those days demonstrate that the applicant has been afforded an opportunity to put on the very evidence on which he might rely in seeking to oppose the application. It is upon the whole of the evidence and the parties’ submissions that the court will now be able to consider all issues arising upon the travel application.
In my opinion, having re-examined the transcript, I do not accept a hypothetical fair minded observer would conclude that my mind could not be changed by the evidence or that an erroneous initial view of the matter might not be corrected by evidence or submissions on the hearing. Such an observer will recognise that a judge is capable of departing from any initial views that were expressed earlier. Particularly is that so in circumstances where the applicant has been afforded the opportunity to place evidence before the court and allowed time in which the submissions on the application might be put.
For those reasons, I have concluded that I ought refuse the application.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 8 May 2019
[13]Citing R v S (RD) [1997] 3 SCR 484, 533; President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA 147, 177.
[14] Citing R v S (RD) [1997] 3 SCR 484 505; Galea v Galea (1990) 19 NSWLR 263, 282.
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