Nghiem and Alberts & Ors

This case involved parenting disputes concerning two children, X and Y, who have different fathers. The mother sought orders for equal shared parental responsibility for one child and sole parental responsibility for the other, with both children living with her. Conversely, the Independent Children’s Lawyer (ICL) proposed that the children live with their respective fathers and paternal grandmother, with those parties having parental responsibility. Allegations of family violence were made against both parents, with specific findings of family violence by the mother against the elder child and by the elder child's father against the mother. The court was required to determine the parenting arrangements for X and Y, considering the allegations of family violence and the ICL's recommendations, which were largely supported by the other parties. Additionally, the mother made an oral application for the judge to recuse himself due to an apprehended bias, based on comments made by the judge at the conclusion of evidence.

The court was tasked with determining the living arrangements and parental responsibility for both children, X and Y. A key issue was whether the mother's application for specific parenting orders should be granted, or if the ICL's proposals, which differed significantly, were more appropriate. The court also had to consider the impact of the family violence allegations on the children's welfare and the capacity of the parents to co-parent. Furthermore, the court needed to rule on the mother's application for the judge's recusal, assessing whether the judge's comments gave rise to a reasonable apprehension of bias.

In dismissing the recusal application, the court found that a properly informed hypothetical observer would not reasonably apprehend bias from the judge's comments, which were made after evidence had concluded and prior to final submissions. Regarding the parenting orders, the court largely adopted the proposals put forward by the ICL. Consequently, X was ordered to live with his father, Mr Alberts, who was granted sole parental responsibility, with provisions for the mother to be notified of major long-term decisions. Y was ordered to live with the paternal grandmother, Ms Hoang, who shared equal parental responsibility with Y's father, Mr Thach. The orders included detailed arrangements for the children to spend time with the mother, subject to her engaging in counselling and family therapy, and also mandated family therapy between the mother and Mr Alberts to improve their communication and co-operation. The court also made orders restraining the parties from making derogatory remarks about each other in the presence of the children and prohibited the use of physical discipline.