Newett & Newett
[2021] FamCA 82
•17 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTIONNewett & Newett (No. 2) [2021] FedCFamC1A 11
Appeal from: Newett & Newett [2021] FamCA 82 Appeal number(s):
NOA 11 of 2021
File number(s):
BRC 2179 of 2018
Judgment of:
ALDRIDGE, AUSTIN & TREE JJ
Date of judgment:
17 September 2021
Catchwords:
FAMILY LAW – APPEAL – DISQUALIFICATION – Appeal against dismissal of recusal application – Actual bias – Reasonable apprehension of bias – Dissatisfaction with outcomes does not amount to bias – Matters were decided on their merits – Primary judge did not err by refusing to disqualify himself – Appeal dismissed – Appellant to pay first respondent’s costs in a fixed sum.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – No relevance – Application dismissed.
Legislation:
Criminal Code Act1995 (Cth) Div 273B
Family Law Act 1975 (Cth) Pt VII, ss 42, 102NA
Family Law Rules 2004 (Cth) Sch 3
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited:
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Newett & Newett and Anor [2020] FamCA 470
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Number of paragraphs:
83
Date of hearing:
25 August 2021
Place:
Brisbane (via video link), delivered in Sydney
The Appellant:
Self-represented litigant
Counsel for the First Respondent:
Mr Selfridge with Mr Hartnett
Solicitor for the First Respondent:
Damien Greer Lawyers
The Second Respondent:
Self-represented litigant
Counsel for the Independent Children’s Lawyer:
Mr Dodd
Solicitor for the Independent Children’s Lawyer:
Norman & Kingston Solicitors
ORDERS
NOA 11 of 2021
BRC 2179 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS NEWETT
Appellant
AND: MR NEWETT
First Respondent
MS ADLAM
Second Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, AUSTIN & TREE JJ
DATE OF ORDER:
17 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application for relief contained in paragraphs 5, 6, 10, 11, 13, 14, 15 and 16 of the Amended Application in an Appeal filed on 2 August 2021 is dismissed.
2.The appeal is dismissed.
3.The appellant pay the first respondent’s costs fixed in the sum of $8,762.61.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newett & Newett (No. 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & TREE JJ:
INTRODUCTION
The appellant, Ms Newett (“the mother”) and the first respondent, Mr Newett (“the father”) have been involved in parenting proceedings concerning their children since 2018. The proceedings have expanded to include the second respondent, Ms Adlam (“the maternal grandmother”) and an Independent Children’s Lawyer (“ICL”) who is representing the children’s interests.
The matter was transferred to the Family Court of Australia (“the Family Court”) on 13 January 2020 and since that time the primary judge has conducted at least 27 procedural and interim hearings. On 29 January 2021 the mother filed a Further Amended Application in a Case which sought, amongst a number of interim parenting orders, an order that the primary judge disqualify himself from the further hearing of the proceedings. The application for recusal was dismissed on 25 February 2021.
The mother has appealed from that decision. Her appeal is supported by the maternal grandmother and opposed by the father. The ICL, consistent with the stance taken at the hearing of the application, did not advance any submissions.
The mother did not wish to make oral submissions at the appeal but sought instead to rely on two documents headed “Amended Written Submission in lieu of Oral Submission” sent to the Appeal Registry on 23 August 2021 and “Written Reply to Submission of the Respondent Father” sent to the Appeal Registry on 24 August 2021, in addition to her Amended Summary of Argument filed on 5 July 2021. There was no opposition to that course and leave was granted for the mother to rely on the documents, although the mother did make some brief oral submissions as well.
BACKGROUND
In order to understand the appeal it is helpful to set out a basic chronology. The following is taken from the reasons of the primary judge in an earlier decision and appears not to be controversial (Newett & Newett and Anor [2020] FamCA 470).
The parties have three children born in 2011, 2013 and 2014.
The parties separated in January 2018. Interim orders were made by a judge of the Federal Circuit Court of Australia (“the Federal Circuit Court”) on 18 April 2018 which provided for the parties to have equal shared parental responsibility for the children, who were to live with the mother and spend five nights a fortnight with the father.
Later that year in November 2018, a final hearing was fixed for 17 June 2019, with an estimate of three days.
On 7 February 2019, the father filed an Application in a Case seeking that the children live with him and spend only supervised time with the mother. In doing so, he relied upon evidence of a person who provided services to the mother and that person’s daughter, who also provided services to the parties. If accepted, that evidence would indicate that the children may be at a risk of harm if they were to continue living with the mother. Their evidence is entirely disputed by the mother and, as the primary judge noted, remains untested (at [10(d)]). On 6 March 2019, the orders sought by the father were made.
The mother’s appeal against these orders was dismissed on 17 June 2019 due to a lack of utility because the parenting hearing was scheduled to start on the same day. The parenting hearing was, however, adjourned to 12 August 2019 with no change to the interim orders made on 6 March 2019.
The mother was admitted to the mental health ward at the City T Hospital (“the mental health ward”) on 27 May 2019 and was discharged three days later. She was diagnosed with an “‘acute stress reaction’ with probable [post-traumatic stress disorder] ‘due to the past traumatic domestic events’” (at [10(f)]).
The mother was again admitted to the mental health ward on 2 August 2019 and discharged on 5 August 2019. On that day, she was recorded as having a “stable mental state” and that she did not pose “any imminent risk of harm to [her]self or others” (at [10(i)]).
The mother disputes that there was any need for her to be taken to the mental health ward on either occasion or that there was any basis for her to be retained there for three days.
On 12 August 2019, a judge of the Federal Circuit Court amended the interim orders of 6 March 2019 by granting the father sole parental responsibility, permitting him to change the children’s school and to sell the family home.
On 27 November 2019, the mother made an oral application that the judge of the Federal Circuit Court recuse himself. His Honour made orders on 13 January 2020 transferring the matter to the Family Court and recusing himself from further hearing the matter.
The orders made on 12 August 2019 were set aside on appeal by Tree J on 6 April 2020. The interim application was remitted for rehearing by a judge of the Family Court.
The primary judge conducted an interim hearing and varied the orders on 17 June 2020 so as to allow the children to spend unsupervised time with the mother. His Honour declined to allow that to extend to overnight time. The time was slightly extended by orders made on 2 October 2020.
Two applications were made by the mother to remove the ICL which were dismissed on 21 September 2020 and 30 June 2021, respectively.
The matter was listed for a final hearing to commence on 30 November 2020. On that day the ICL was given leave to withdraw due, in part, to a private criminal prosecution being taken against him by the mother on 13 November 2020.
His Honour adjourned the final hearing of the parenting proceedings to a future date and made orders for the appointment of a replacement ICL. He decided to commence the hearing as to property issues on the following day.
At the commencement of the hearing on 1 December 2020 the mother made an unsuccessful application for an adjournment. The matter was stood down so that the mother could read some recently disclosed documents. She did not return to the Court and the matter proceeded in her absence. His Honour reserved his decision as to the property aspect of the matter but dismissed the mother’s recent interim application to vary the parenting orders.
The above history omits most of the plethora of directions hearings and interim hearings in this matter which have ranged across many issues including the appointment and removal of single experts, applications for psychiatric assessments, applications under s 102NA of the Family Law Act 1975 (Cth) (“the Act”), contravention applications and recovery orders.
The upshot is that the parenting proceedings are yet to be finalised. There is no doubt that they are attended by some difficulty. The mother asserts that the father has been violent to her, including that he attempted to strangle her once, and that he poses a risk of sexual abuse to the children. She asserts that the father has a brain injury which affects his mental capacity. For his part, the father says that these accusations demonstrate that the mother is delusional and he contends that she is mentally unstable.
Notwithstanding these allegations and the obvious disharmony between the parties, the children appear to maintain a good relationship with both parents.
On 3 December 2020, the mother filed an Application in a Case seeking a reconsideration of the existing parenting orders. Another Application in a Case followed on 11 December 2020 in which the mother sought the immediate return of the children to her and that she have sole parental responsibility for them. She also sought orders that the father and members of the paternal family have no contact with the children, her, the maternal grandmother and members of the maternal family.
Additionally, the mother sought an order that after these orders have been made, the primary judge recuse himself.
A Further Amended Application in a Case was then filed on 26 January 2021 which greatly expanded the orders sought and included interim property orders and orders against the father’s lawyer, the Queensland Police and the Australian Federal Police.
The mother made further amendments to the above application, and filed another Further Amended Application in a Case on 29 January 2021.
Quite properly, the primary judge decided to deal with the recusal aspect of the application first.
The mother’s basis for seeking the recusal of the primary judge was wide ranging (her first set of submissions to his Honour extended 47 pages and the second 22 pages). She asserted that she had suffered a terrible injustice in 2019 when her evidence was ignored and the children were removed from her care. When the matter was transferred to the Family Court she expected that the primary judge would “very swiftly collect evidence, review evidence and remove the Children from harm” (Mother’s Written Submissions filed on 1 February 2021, paragraph 13) but did not do so. Rather, his Honour “granted every wish of the Father” (Mother’s Written Submissions filed on 1 February 2021, paragraph 15) and “made it clear he will ALWAYS reject ANY evidence brought againt [sic] the Father” (Mother’s Written Submissions filed on 1 February 2021, p.13) (Emphasis in original) and that the primary judge acted under the “dictation” of the father, his lawyers and the ICL (Mother’s Written Submissions filed on 1 February 2021, paragraph 38).
His Honour refused to disqualify himself in reasons for judgment delivered on 25 February 2021. The balance of the mother’s application was listed for further directions.
THE APPEAL
On any view this matter has had an unfortunate and prolonged procedural history which is due, in large part, to the many procedural and interim applications filed by the parties, and in particular, by the mother. For her part, she views these applications as essential in attempting to redress what she sees as a great injustice. She is most aggrieved that these applications have not achieved the outcome she intended.
However, the present appeal only concerns the primary judge’s failure to recuse himself and is not a roving commission into what has occurred in the proceedings previously. Whilst we accept that it is implicit in the mother’s submission that the conduct of the primary judge, taken as a whole, indicates that he is biased or alternatively, gives rise to an apprehension that the matter may not be decided on its merits, the conduct and decisions of the Federal Circuit Court judges are not relevant to that issue.
Further, whilst we accept that the mother is acting for herself, it is not for us to rummage around in the many affidavits, transcripts and decisions which the mother seeks to place before us in order to find material which may be relevant to the questions in the appeal. Unless an error is reasonably obvious, it is for an appellant to identify and establish the asserted errors. This was explained by the Full Court of the Federal Court of Australia in Bahonko v Sterjov (2008) 166 FCR 415 as follows:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
Application in an Appeal
With these general observations in mind, we turn to the mother’s application to adduce further evidence in the appeal and the other orders that remain to be dealt with in her Amended Application in an Appeal filed on 2 August 2021 after the hearing before Tree J on 5 August 2020.
The mother seeks to have an additional appeal book prepared which contains the documents read and relied upon by the primary judge and a further appeal book containing “the Application, Affidavits, Submissions, Judgments and Orders of His Honour Justice Tree relating to Application in an Appeal for NOA84/2020, NOA85/2020, NOA11/2020 and NOA26/2021”. Justice Tree made orders for the provision of security for costs in Appeal No. NOA 84 of 2020 and Appeal No. NOA 85 of 2020 on 22 April 2021. The orders were not complied with and on 25 August 2021 the two appeals were dismissed. Appeal No. NOA 26 of 2020 has not yet been fixed for hearing.
Many but not all of these documents sought to be adduced are contained in the Further Contended Appeal Book which has been filed by the mother on 10 August 2021.
The particularly significant omission from the Further Contended Appeal Book is a number of recordings of hearings before the primary judge which the mother proposes that the Court obtain and listen to itself. No transcripts have been provided. The mother’s submissions do not identify the offending passage or where it is to be found in the various recordings. It is not the Court’s function to listen to the entirety of the recordings to try to identify the passage the mother has in mind. We will therefore not seek out or listen to the various recordings of the hearings.
The Further Contended Appeal Book contains hundreds of documents, almost all of which bear no apparent relevance to the issue in this appeal.
For example, we are unable to see the relevance of the emails that the parties themselves sent to or copied to the chambers of the primary judge. The mother did not identify any email from his Honour’s chambers which she asserted demonstrated actual or apprehended bias.
We do not see how documents created after his Honour’s decision, such as the applications before Tree J, can be relevant to it.
As explained in CDJ v VAJ (1998) 197 CLR 172, the point of further evidence on appeal is to demonstrate error, bolster the reasons under attack or provide material for any re-exercise of discretion. We are unable to see how the proposed material does so. Further, generally speaking, material that was available to be used at the hearing, but was not, should not be readily admitted into an appeal.
Finally, we do not accept that it is our function to trawl through the proposed evidence to see if there is some material that might be relevant in demonstrating error on the part of the primary judge.
We will not receive the Further Contended Appeal Book.
The mother seeks an order that we be “directed to view the Evidence submitted to the Subpoena Room on USB data key in June 2020”. We do not know what that USB stick contains or what possible relevance the contents may have to this appeal and the mother did not deign to tell us. We will not view the USB stick.
The proposed Orders 14 and 15, which sought the mother be “provided with Costs equivalent on an Equal Work for Equal Pay (Fair Work Act 2009) basis” and “Declaratory Judgments and Replacement / Corrective Orders”, cannot be made by us for many reasons, one of which is that we do not have the power, on appeal, to do so.
The proposed Order 16 is irrelevant as Appeal Nos. NOA 84 of 2020 and NOA 85 of 2020 were dismissed on 25 August 2021.
The relief sought by paragraphs 5, 6, 10, 11, 13, 14, 15 and 16 of the Amended Application in an Appeal filed on 2 August 2021 will not be granted and the application will be dismissed.
The Grounds of Appeal
Did the primary judge “[fail] to exercise jurisdiction and [make] error of jurisdiction in his assessment of the presence of his own actual and/or apprehended bias; impacting the legitimate expectation of complete independence and impartiality of Judicial Officers in a Chapter III Court?” (Ground 1)
We confess that we have some difficulty in understanding this ground to the extent that it differs from Grounds 2 to 4, which assert that the primary judge erred in not disqualifying himself.
In the mother’s Amended Summary of Argument filed on 5 July 2021, she referred to articles of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights which say that a person is entitled to a hearing by an independent and impartial tribunal. The principles set out in the cases on actual and apprehended bias, to which we shall briefly refer, give effect to those general propositions. It is to those cases that regard must be had.
The mother referred to s 42 of the Act which requires the Court to exercise its jurisdiction “in accordance with this Act”. She submitted that his Honour failed to so act by erroneously applying the law. As we have said that is the subject of Grounds 2 to 4.
Finally, his Honour unquestionably exercised the jurisdiction of the Court by hearing and determining the mother’s application.
This ground is not established.
Did the primary judge err by failing to disqualify himself? (Grounds 2 to 4)
The mother contends that not only was there a reasonable apprehension of bias, but that the primary judge was actually biased. It is important to observe that these are two different concepts which are attended by different tests. They are not interchangeable.
The primary judge proceeded on the basis that the issue was one of apprehended bias only. He said:
10.Before moving to a further examination of those factors, when addressing the Court orally on 11 February 2021, the mother (without identifying anything further) asserted that the principles of “actual bias” are enlivened by the facts of this case. Such an allegation is rejected in the absence of any evidence supporting such a significant submission being offered to the Court.
In her submissions to us the mother went much further, not only accusing the primary judge of actual bias but also of fraud, corruption, deceit and collusion. The sole basis for doing so seems to be that the mother perceives that all her contentions and applications have been rejected and those of the father accepted. Even if that was correct, which it is not, it falls well short of the extraordinarily serious allegations made by the mother. We cannot see that they are in any way justified.
The test for actual bias requires the appellant to establish that the judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] and [176]).
The relevant principles were helpfully summarised in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]–[70]:
68.A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun v Minister) at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.
…
70. As Gleeson CJ and Gummow J observed in that case at [71]:
“The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.”
It is difficult to distil what facts and circumstances on which the mother relies on to establish actual bias. Her own perception of the primary judge’s conduct is not sufficient and neither is the fact that the proceedings have not gone the way the mother believes they should have.
It is therefore helpful to refer to the terms of Ground 4 which identify the matters relied on as:
(a) The Case Management process and Orders made throughout 2020 and 2021,
(b) His Honour’s conduct during Case Management proceedings and at Trial,
(c) His Honour’s criminal act in not applying Schedule 1 s273B Criminal Code Act 1995 (Cth) despite evidence before the Court from June 2020,
(d) His Honour’s conduct in making oppressive Orders on 9 December 2020,
(e) His Honour’s refusal to hear the Urgent Children’s Safety matter on 3-4 December 2020, and simultaneously prioritising the Father’s Non-Urgent Recovery hearing filed 4 days later than the Mother’s application;
(f)His Honour’s refusal to acknowledge the public display of Family Violence on 1 December by the Father,
(g)His Honour’s refusal to make adverse credit findings against the Father pertaining to prima facie evidence of long term ongoing family violence committed against the Mother and Children by the Father.
(As per the original)
As to (a) and (b) we reject, at the outset, that the fact that the primary judge may have made more orders that favoured the father as opposed to the mother, of itself demonstrates bias. The mother asserted that over the course of 27 directions and interim hearings, his Honour made “275 orders and sub-orders” in this matter, of which 121 were “substantially benefiting the [f]ather” and only 23 which “negligibly benefit[ed] the [m]other” (Mother’s Amended Summary of Argument filed on 5 July 2021, paragraph 19). Although the mother holds a different view, there is no material before us that indicates that those outcomes were not made on their merits. Even if the decisions were erroneous, and we are not in a position to say that they were, that would not establish bias.
We have read the mother’s submissions as closely as they permit but, as we have said, we are unable to identify anything in them which identifies bias. The mother’s intense dissatisfaction with the steps taken by his Honour is not sufficient for that purpose. We are unable to take sub-grounds (a) and (b) further, noting again the heavy onus on the appellant in establishing bias.
Division 273B of the Criminal Code Act 1995 (Cth) (“the Criminal Code Act”) deals with protection of children. Section 273B.5, for example, makes it an offence for a Commonwealth officer who has the care and supervision of a child in his or her capacity as a Commonwealth officer, and who knows of information that would lead a reasonable person to believe that another person has committed a child sexual abuse offence, and to fail to report it to the police.
The primary judge, whilst charged with the task of deciding what parenting orders are in the best interests of the children, did not have the children under his care or supervision. We cannot accept that div 273B of the Criminal Code Act applies to a judge hearing proceedings under Part VII of the Act.
The primary judge recorded in the list of matters relied upon by the mother to demonstrate apprehended bias that:
11. …
(j) the mother also points to:
(i)my refusal to change residence despite, she says, “clear evidence of risk of sexual harm” in the father’s care and “evidence in the Family Report of … actual child abuse and neglect” and despite, she says, “evidence of the Father’s brain injury”;
(ii) a perceived refusal by me to “hear the Safety matters in relation to the children across 11 Case Management [H]earings”. The mother says, in contrast, I immediately “acted upon a non-urgent application by the Father to return the Children to the Father despite urgent Safety Applications being before the Court by the Mother”;
(iii) my not ordering a Magellan report be prepared and a perceived deferral to the ICL to gather evidence before the Department and Police;
(iv) my refusal to remove Mr AQ as ICL;
(v) my refusal to grant interim orders in favour of the mother to access income despite, she says, “evidence of serious Financial Fraud by the Father”;
(vi) my refusal to “overturn all previous judgments and Orders” following receipt of, she says, “confirmation of Fraud … by [Dr A]”;
(vii) my stating that only the car park incident between the parents following the property trial would be considered rather than the entirety of the change of circumstance evidence;
(viii) an allegation that I made “excuses for the Father’s clear intentional intimidatory behaviours towards the Mother and by citing the Father’s ‘rights’ to liberty and ignoring the Mother’s more important right to personal safety” and that I “actively encouraged the Father to continue acting with criminal stalking and intimidatory behaviour”;
(ix) a suggestion that “by applying Child Recovery Orders … [I] arranged for the Australian Federal Police to further stalk, cyberstalk and control the Mother’s liberty, instilling fear and potentially ruining her legal career; without ever considering the full range of medical, behavioural and family violence evidence before the Court regarding the Father”. The mother alleges this is “clear actual bias”;
(x) her interjections to remind me to allow her to make an uninterrupted submission; and
(xi) my alleged “error in weighing Mothers Mental Health claims higher that Fathers Domestic Violence Acts”.
(As per the original)
The mother suggested that the primary judge “turned a blind eye” to sexual harm (Mother’s Amended Summary of Argument filed on 5 July 2021, paragraph 39) and that “[e]vidence was put before the Court in June 2020… confirming the Father had on balance of probabilities likely committed multiple acts of sexual harm against the Children” (Mother’s Amended Summary of Argument filed on 5 July 2021, paragraph 67).
No reference was made to the Criminal Code Act. In any event, even if the sections relied upon by the mother did apply to the primary judge, error in their application does not demonstrate bias.
Of course, the primary judge has not yet conducted a final hearing and is yet to consider whether the allegations of sexual abuse carry weight. At best, it can be said that the primary judge has not accepted that the nature of the allegations are such that they warrant a change in the current interim parenting arrangements. However, even a failure of a judge to accept particular allegations does not establish bias as it is the task of a trial judge to choose between competing allegations.
Even error in making such findings falls short of establishing bias.
The asserted oppressive order of 9 December 2020 is the recovery order. It is apparent that his Honour was not satisfied that the mother had persuaded the Court that her allegations of the children being at risk of harm in the father’s care justified a different order. The fact that the mother vehemently disagrees does not show error, let alone bias. The recovery order was justified on the parenting orders that were then in place.
Finally, we are not aware of an occasion where the primary judge was called upon to make findings of credit. Such findings are normally only made at final hearings, and the final parenting hearing for this matter is yet to take place.
We are not satisfied that there is any basis, as suggested, that the primary judge was biased and his Honour did not err by refusing to disqualify himself on that basis.
The test for apprehended bias is well known and was stated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 as follows:
6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
(Footnotes omitted)
In the mother’s Amended Summary of Argument filed on 5 July 2021, she identified the matters that were said to give rise to an apprehension of bias in the following way:
54.The principle in Wilkinson v Downton (1897) 2 QB 57: “The principle that where a defendant has wilfully committed an act or made a statement calculated to cause physical harm, and which does cause physical harm (including psychiatric injury), it is actionable”.
55. A fair-minded lay observer might determine, upon review of evidence and the conduct of proceedings, a prejudicial determination having been made by his Honour in relation to the presence of family violence and of fraud brought upon the Court during proceedings by the [father].
56.A fair-minded lay observer might (and most likely would) note His Honour’s clear prejudicial and biased view that the [mother] is the perpetrator of family violence; and has erroneously prejudged the Mother to bear the balance of risk, preventing her having any contact with the Children or being deserving of any adjustment in the property pool relating to her losses as a result of family violence perpetrated by the [father].
57. His Honour’s prejudicial view has persisted despite the Mother continually presenting evidence to the contrary, confirming beyond reasonable doubt the Mother and Children to be victims of both fraud and family violence perpetrated by the Father – demonstrating His Honour made improper exercise of discretion, and will likely never turn his mind to the violence perpetrated by the Father and the need for Safety for the Mother and the Children, per Eaby v Speelman at [18]; which is required prior to Trial to relieve the anxiety of the Mother per Russell v Close Appeal SA45 of 1992 (unreported); further confirmed post-2012 Amendments of the Family Law Act in Starkey (No. 2) at [149]-[153] in order to allow the Mother the ability to reduce her trauma to participate in a clear and effective manner at Trial…
58. A fair-minded lay observer might (and most likely would) note His Honour was presented with evidence filed on 27 November 2020 in Affidavit of [the mother] (including via admissions made under cover of Affidavit by the perpetrators) that the Psychiatric Report of Dr A was fraudulently obtained and held dishonest and defamatory content, proving Fraud being brought upon the Court; yet failed to unravel such fraud during proceedings, and fully ignored such and continued to withhold the Children from the Mother with no contact (other than twice per week Facetime calls for 30 minutes), providing no meaningful relationship per s60CC(2)(a), and opportunity for the Father to continue the regime of coercive control per s4AB(2) over the Mother and Children, in contravention of s68B, 60CG, s60CC(2)(b) and s 60CC(2A) of the Act.
(As per the original)
In these submissions the mother conflates actual and apprehended bias.
The balance of the points in the mother’s Summary of Argument, in dramatic terms, go to the failure of the primary judge to accept the contentions made by the mother at various times.
In substance, the mother’s submissions are no more than a complaint that the mother considers the outcomes of various court events have not gone as she wished. That however, is not the essential question which whether the matters raised by the mother would cause a reasonable bystander to apprehend that the matter may not be determined on its merits.
It is the fundamental task of a judge to choose between competing contentions, and the failure of a judge, including the repeated failure, to accept the position of one party does not indicate that the decision was not made on its merits. That is why, in order to demonstrate apprehended bias the matters complained of must be specifically identified. It must then be explained how those matters led to the deviation from deciding the matter on its merits.
The mother’s stance is that her position is the only position which is correct, that any failure to accept it can only be explained by actual bias, and the fact that her case has not been accepted in the past indicates that there is a risk it will not be determined so in the future.
We do not agree.
CONCLUSION AND COSTS
We see no error in his Honour’s decision not to disqualify himself.
The appeal will be dismissed.
The appeal has been wholly unsuccessful. The appropriate order is that the mother pay the father’s costs fixed in the sum of $8,762.61, which was calculated at the time of the hearing pursuant to Sch 3 of the Family Law Rules 2004 (Cth) (which is now Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin and Tree.
Associate:
Dated: 17 September 2021
3
13
1