P v Q [No 2] - [2023] WASCA 163

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   P -v- Q [No 2] [2023] WASCA 163
CORAM:   MITCHELL JA
VAUGHAN JA
HALL JA

HEARD:   8 AND 9 NOVEMBER 2023
DELIVERED          :   15 NOVEMBER 2023
PUBLISHED           :   17 NOVEMBER 2023
FILE NO/S:   CACV 27 of 2023
BETWEEN:   P
Appellant
AND
Q
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other Party

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   MONCRIEFF J
Citation: [P] and [Q] [2023] FCWA 37
File Number            :   4061 of 2018

Catchwords:

Family law - Parenting orders - Financial orders - Where primary orders give sole parental responsibility of children to father and restrain mother from contacting children - Where primary orders also make financial adjustment between former parties to a de facto relationship - Where primary proceedings were ordered to proceed on an undefended basis as a result of the appellant's perceived misconduct - Whether primary judge had power to make orders excluding the appellant from the proceedings in the circumstances - Whether primary judge's conduct of the primary proceedings gave rise to a reasonable apprehension of bias - Whether appellant was denied procedural fairness by reason of an infringement of the bias rule and the hearing rule in the primary proceedings

Legislation:

Family Court Act 1997 (WA), s 66A, s 66C, s 107, s 108
Family Court Rules 2021 (WA), r 5, r 8, r 172, r 173

Result:

Appeal allowed
Primary orders set aside
Retrial ordered

Category: B

Representation:

Counsel:

Appellant	:	G Mohammed
Respondent	:	J E P Mansfield
Other Party	:	No appearance

Solicitors:

Appellant	:	Not applicable
Respondent	:	Paynes Lawyers
Other Party	:	Legal Aid (WA)

Case(s) referred to in decision(s):

Akbar v Mali [2015] FamCAFC 244; (2015) FLC ¶93-685
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Beckert v Beckert [2021] FedCFamC1A 40; (2021) 64 Fam LR 218
Browne v Dunn (1893) 6 R 67
Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289
CNY17 v Minister for Immigration [2019] HCA 50; (2019) 268 CLR 76
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
Dennis v Commonwealth Bank of Australia [2019] FCAFC 231; (2019) 272 FCR 343
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179; (2016) 50 WAR 453
Galea v Galea (1990) 19 NSWLR 263
Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530
Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136
Herold v Herold [2015] FamCAFC 5; (2015) FLC ¶93-628
House v The King (1936) 55 CLR 499
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Lazarevic v The State of Western Australia [2007] WASCA 156
Masters v The Queen [2022] NSWCCA 228; (2022) 102 MVR 223
Meadowcroft v The State of Western Australia [2023] WASCA 98
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Navarro v Navarro [2019] FamCAFC 32
P v Q [2023] WASCA 121
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1
Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31; (2012) 246 CLR 636
Polsen v Harrison [2021] NSWCA 23
QYFM v Minister for Immigration [2023] HCA 15; (2023) 97 ALJR 419
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
Tate v Tate [2000] FamCA 1040; (2000) 26 Fam LR 731
Teo v Guan [2015] FamCAFC 94; (2015) 296 FLR 172
Zane v Allan [2008] FamCAFC 115; (2008) FLC ¶93-378

REASONS OF THE COURT:

On 15 November 2023, we made orders allowing this consolidated appeal, setting aside the orders of the Family Court of Western Australia which are the subject of the appeal and remitting the matter for a new trial. We said that we would publish our reasons for making those orders later. These are our reasons for making those orders.

Summary

The appellant mother and the respondent father were in a de facto relationship which broke down in 2018. They are the parents of two young boys who, at the time of making the orders, were aged 6 and 9 years. The parties' relationship since separation has been highly acrimonious and they have been unable to agree as to the parenting arrangements for the children. In May 2018, the primary proceedings, in which the parties sought parenting and financial orders, were commenced in the Family Court of Western Australia.
In the trial of the primary proceedings, which began in February 2021, the appellant was subject to cross-examination for an extraordinarily long time. Part of the reason for the length of the cross‑examination, but not the only reason, was the approach taken by the appellant to answering questions posed in cross-examination. The difficulties presented by the appellant's behaviour during 2021, when she was self‑represented, led the primary judge, on two separate occasions in October 2021, to order that all applications by the appellant be dismissed and the matter proceed on an undefended basis.
On 15 December 2021, the primary judge reinstated the appellant, who by that time was represented by counsel, to the primary proceedings. The trial eventually resumed on 29 August 2022. At that time, both parties were represented, and the court continued to be assisted by an independent children's lawyer. Cross-examination of the appellant continued over four days from 29 August 2022 to 1 September 2022. On 1 September 2022, the primary judge again ordered that all applications by the appellant be dismissed, and the matter proceed on an undefended basis. On 2 September 2022, the judge dismissed an application by the appellant to be reinstated to the proceedings.[1]
[1] See [P] v [Q] [2022] FCWA 196 (reinstatement decision).
The trial proceeded in the absence of the appellant, other than that, on 1 December 2022, the primary judge heard and refused an application by the appellant that he recuse himself from the trial on grounds of apprehended bias. Ultimately, the primary judge made parenting orders on 3 March 2023, giving the respondent father sole parental responsibility for the children and restraining the appellant mother from contacting the children. The judge also made financial orders on 8 March 2023, which adjusted the parties' assets.
The appellant now appeals against the orders made on 1 September 2022, providing for the trial to proceed on an undefended basis, the parenting orders made on 3 March 2023 and the financial orders made on 8 March 2023.
A summary of the orders made by the Family Court, the factual and procedural background, the primary judge's approach and the appellant's grounds of appeal is contained in the decision of this court on the appellant's stay application.[2] We adopt that summary without repeating it. These reasons should be read with the court's reasons in the Stay Decision.
[2] P v Q [2023] WASCA 121 [3] ‑ [77] and [85] (Stay Decision).
By grounds 1 ‑ 3, the appellant in effect contends that she was denied procedural fairness in the primary proceedings by reason of a breach of both the bias rule and the hearing rule. Ground 1 in effect contends that the primary judge erred in law in ordering the case to proceed on an undefended basis on 1 September 2022.[3] Ground 2 contends that, as a consequence, the appellant was wrongly deprived of the reasonable opportunity to challenge evidence relied on by the respondent, to adduce evidence in support of her own case and to make submissions. Ground 3 contends that the manner in which the primary judge conducted the case gave rise to a reasonable apprehension of bias on his part.
[3] Although the ground also contends that the judge erred in refusing the appellant's application to be reinstated to the proceedings on 2 September 2022, only the orders of 1 September 2022 are identified in the relevant appeal notice.
Although the primary judge did not expressly say so, it may be inferred that his Honour apprehended he was exercising the power conferred by r 172(2) of the Family Court Rules 2021 (WA) (Rules) in dismissing the appellant's applications and ordering the case to proceed on an undefended basis. However, the conditions for the existence of that power ‑ that a party does not comply with the Rules, the regulations or a procedural order ‑ were not satisfied or found to be satisfied by the primary judge when he made the orders on 1 September 2022. Nor did the primary judge make any finding that the exclusion of the appellant from further participation in the trial was necessary to enable the court to fairly determine the matter, so as to have engaged the court's implied power to ensure the effective exercise of its jurisdiction. In all the circumstances, it was not open to the judge to be satisfied that the exclusion of the appellant from further participation in the trial was necessary to enable the court to fairly determine the matter. The primary judge erred in the exercise of his discretion in making orders excluding the appellant from further participation in the trial. Ground 1 is established.
The order excluding the appellant from further participation in the trial wrongfully deprived her of the opportunity to adduce additional evidence, to challenge the evidence relied on by the respondent, and to make submissions as to the appropriate orders. As such, the order excluding her from further participation in the trial breached the hearing rule and so denied procedural fairness to the appellant. Ground 2 is also established.
In addition, the manner in which the primary judge conducted the proceedings on 1 September 2022 culminating in the order that the case proceed on an undefended basis, considered in the context of the whole trial, gave rise to a reasonable apprehension of bias on the part of the primary judge. The appellant did not waive her right to a determination in that respect by a tribunal that was, and was seen to be, impartial. Ground 3 is established to that extent and it is not necessary to consider the wider reach of the ground as to the case as a whole.
Given these conclusions, the appeal must be allowed, the impugned orders must be set aside, and the matter must be remitted to the Family Court for retrial. It is unnecessary and inappropriate for this court to determine the remaining grounds of appeal.

The appeal hearing

We note the following matters in relation to the hearing of the appeal.
Although the appellant had been self-represented up to the hearing of the appeal, counsel appeared for her at the appeal hearing. Counsel indicated that the appellant abandoned ground 4 of the appeal.[4] The appellant's application to adduce additional evidence in the appeal filed on 17 October 2023 was also abandoned at the hearing of the appeal.[5]
[4] Appeal ts 133.
[5] Appeal ts 134 - 135.
Counsel for the appellant indicated that he wished to rely on grounds 5 and 6 as his primary grounds and only wanted the court to consider grounds 1 ‑ 3 in the event that ground 5 or ground 6 failed. Ground 5 contended that the primary judge's finding ‑ that it was in the children's best interests that all forms of contact with their mother cease ‑ was not open on the evidence before the trial court. Ground 6 challenged the financial orders on the ground that a miscarriage of justice arose from the respondent's failure to disclose his financial affairs. By these means, the appellant hoped to avoid a retrial if she could succeed on grounds 5 and 6, while keeping grounds 1 ‑ 3 in reserve if ground 5 or ground 6 were not established.[6]
[6] Appeal ts 128 ‑ 132.
At the hearing of the appeal, the court indicated that it was unanimously of the view that it would need to deal with grounds 1 ‑ 3 first and would not consider grounds 5 or 6 in these reasons if one or more of grounds 1 ‑ 3 succeeded.[7] That was because grounds 1 - 3 raised issues as to the validity and acceptability of the primary proceedings which must be considered at the outset.[8] Success of one or more of those grounds would require the primary orders to be set aside and the matter remitted to the Family Court of Western Australia for a new trial. Counsel for the appellant then indicated that grounds 1 ‑ 3 were maintained and not abandoned.[9]
[7] Appeal ts 132 - 133.
[8] See Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [3] (Gummow ACJ), [117] (Kirby & Crennan JJ); Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 [10].
[9] Appeal ts 133.

Grounds 1 and 2: breach of hearing rule by exclusion from trial

Grounds 1 and 2 in effect contend that the appellant was denied procedural fairness in the primary proceedings by reason of being improperly excluded from further participation in the trial.
If ground 1 succeeds, then ground 2 will also be established. The orders made on 1 September 2022 (which are challenged by ground 1) had the effect of preventing the appellant from challenging through cross‑examination the evidence relied on by other parties and adducing evidence of her own expert witness. She was also prevented from giving evidence in re‑examination. Exclusion from the proceedings deprived the appellant of the opportunity to (through her counsel) make closing submissions. That outcome could only be justified if an order excluding the appellant from further participation in the trial had been properly made in the proceedings.
It cannot reasonably be contended, and the respondent does not contend, that the exclusion of the appellant from the primary proceedings could not have affected the outcome of the hearing.
On the other hand, if ground 1 fails, so that the exclusion of the appellant from the primary proceedings was expressly or impliedly authorised by the Family Court Act 1997 (WA), there would be no proper basis for concluding that there had been a breach of the implied statutory requirement[10] that powers conferred by that Act be exercised with procedural fairness.
[10] See PlaintiffS10/2011 v Minister for Immigration [2012] HCA 31; (2012) 246 CLR 636 [97] ‑ [98].
Counsel for the appellant accepted that ground 2 could not succeed if ground 1 failed.[11] Counsel for the respondent accepted that a retrial would be necessary if ground 1 succeeded.[12]

Power relied on by the primary judge

[11] Appeal ts 143, 213, 231.

[12] Appeal ts 232.

The primary judge's oral reasons for making orders on 1 September 2022 do not expressly refer to the source of his Honour's power to make the orders or the criteria governing the proper exercise of that power. As set out at [46] of the Stay Decision, the judge made the orders on the basis that identified aspects of the appellant's behaviour satisfied the judge that the appellant was 'not properly participating in the proceedings'.
The primary judge did make observations on 2 September 2022 that indicate his Honour apprehended that the appellant's application for reinstatement to the proceedings was made under r 173 of the Rules.[13] That strongly suggests that his Honour understood himself to be exercising a power under r 172 of the Rules.
[13] Trial ts 2/9/22 at 18, 19 ‑ 20; reinstatement decision [58].
Relevantly, under r 172(2):
If a party does not comply with these rules, the regulations or a procedural order, the court may —
(a) dismiss all or part of the case; or
…
(c) determine the case as if it were undefended …
Rule 173 provides for the court's power to grant relief from an order made under r 172(2), having regard to the matters specified in r 173(2) of the Rules.
As Finn & Thackray JJ observed in Zane v Allan,[14] in relation to the equivalent r 11.02 of the Family Law Rules 2004 (Cth) (repealed), the discretion to order an undefended hearing under the rule requires a finding of non‑compliance with the rules, regulations or a procedural order. In Akbar v Mali,[15] the court observed that the consequence of non‑compliance imposed pursuant to r 11.02 must be responsive to the particular breach, proportionate to the seriousness of the breach and may take into account the wider interests of case management and other litigants.
[14] Zane v Allan [2008] FamCAFC 115; (2008) FLC ¶93-378 [46]. See also Herold v Herold [2015] FamCAFC 5; (2015) FLC ¶93-628 [51] ‑ [53].
[15] Akbar v Mali [2015] FamCAFC 244; (2015) FLC ¶93-685 [31].
In the present case, the primary judge did not identify a rule, regulation or procedural order with which the appellant had failed to comply, non‑compliance with which would justify the orders made on 1 September 2022. Rather, his Honour referred to the appellant's 'continued non‑responsiveness, her behaviour, her argument posture, her deflection, her refusal to answer questions and engage, as in any productive, or in a very limited productive way, other than on her terms'.[16] However, the order made by the primary judge on 1 September 2022 reflected the terms of r 172(2)(a) and r 172(2)(c) of the Rules.
[16] Trial ts 1/9/22 at 92.
In his Honour's subsequent reinstatement decision, he characterised the manner in which the appellant answered questions as a 'disengagement' with the proceedings.[17] Even if the primary judge's characterisation of the appellant's conduct is correct, that characterisation is not equivalent to a finding of non‑compliance with any rule, regulation or procedural order.
[17] Reinstatement decision [49].
The inference to be drawn from the above circumstances is that the primary judge understood himself to be exercising the power conferred by r 172(2) of the Rules. In doing so, his Honour erred in law by failing to identify any non‑compliance with the Rules, regulations or a procedural order which enlivened the power. The judge also erred in law by failing to consider whether the orders he made were responsive to the particular breach and proportionate to the seriousness of that breach. In this manner, the exercise of the primary judge's discretion miscarried. Ordinarily, that would require this court to consider for itself how the discretion ought properly to have been exercised before allowing the appeal. However, for the reasons that follow, it was not reasonably open for the judge to have concluded that the exclusion of the appellant from further participation in the proceedings was an appropriate exercise of the court's discretion in the circumstances.

Available sources of power

Counsel for the respondent identified two sources which she contended supported the power of the Family Court to exclude the appellant from further participation in the proceedings.
The first, and primary, source on which the respondent relied was the implied power of the Family Court to make orders to prevent its processes being abused and to protect the integrity of its processes once set in motion. Counsel for the respondent contended that the appellant's conduct in the witness box was an abuse of process which had the effect of delaying the proceedings and was a form of disengagement with them.[18]
[18] Appeal ts 174.
Alternatively, counsel for the respondent contended that the appellant's responses to questions asked in the course of cross‑examination failed to comply with r 8(1) of the Rules, so as to enliven the power in r 172.[19]

Statutory power under the Rules

[19] Appeal ts 174 - 175.

Rule 8 relevantly provides:
Each party has a responsibility to promote and achieve the main purpose, including —
…
(g) assisting the just, timely and cost-effective disposal of cases; and
…
(j) limiting evidence, including cross-examination, to that which is relevant and necessary …
…
(l)complying with these rules and any orders.
The 'main purpose' referred to in the chapeau to r 8(1) is set out in r 5 of the Rules in the following terms:
The main purpose of these rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

Reading the relevant provisions together, the respondent's contention amounted to a suggestion that the appellant had not complied with the Rules in as much as she had not complied with her responsibility to promote and achieve the resolution of the case in a just and timely manner at a cost to the parties and the court that was reasonable in the circumstances of the case. In that respect the respondent particularly relied on the matters mentioned in sub-pars (g), (j) and (l) of r 8(1) of the Rules.
In our view, the terms in which r 8(1) and the associated r 5 are cast are too broad and general to constitute a basis for concluding that all conduct which in fact fails to achieve the main purpose stated in r 5 necessarily involves a party not complying with the Rules within the meaning of r 172(2).
Rule 8 refers to a 'responsibility of a party', rather than proscribing anything particular which a party must or must not do. That responsibility relates to a very broadly expressed objective of the Rules. Pursuant to the Rules, the court might make procedural orders designed to achieve the main purpose of the Rules, breach of which may empower the court to act under r 172(2) of the Rules. However, it cannot have been objectively contemplated that parties would be exposed to the sanctions referred to in r 172(2) whenever they conduct proceedings in a way that fails to achieve that broadly stated objective.
Mere non-attainment of the primary purpose of the Rules will not constitute a failure to 'comply with these rules' within the meaning of r 172(2) of the Rules. Something more is required. It is not necessary or appropriate to attempt to catalogue what might suffice. It might occur, for example, in a truly exceptional case where non-compliance with r 8(1) is manifest by the party's conduct in abandoning or forswearing his or her responsibility to promote or achieve the main purpose. But, as can be seen from the consideration that follows of the appellant's conduct in the context of the respondent's reliance on the implied power, that was not the present case. It was not open to the primary judge in the circumstances of the present case to find that r 172(2) was engaged on the basis that the appellant did not comply with r 8 of the Rules. In any event, the primary judge did not make any finding that the appellant had failed to comply with r 8 of the Rules.
Therefore, the conditions for the exercise of the power in r 172(2) did not exist and were not found by the primary judge to exist before he made an order that the trial proceed on an undefended basis. The matters relied on by the primary judge were incapable of empowering the judge to make the orders excluding the appellant from the proceedings on 1 September 2022.
Counsel for the respondent was therefore correct to focus on the court's implied power to protect the effective exercise of its jurisdiction and prevent abuses of its process. The appellant did not suggest that the Rules did or could narrow the scope of the power implicit in the conferral of jurisdiction by the Act.

Implied power to ensure the effective exercise of the court's jurisdiction

Counsel for the respondent referred to the decision of the Full Court of the Family Court of Australia in Teo v Guan,[20] which recognised that that court had an implied power to make orders to prevent its processes from being abused and to protect the integrity of its processes once set in motion. The Full Court also recognised that courts exercising family law jurisdiction, like other Australian courts, have an implied power to grant interlocutory relief, at least against the parties to the proceeding against whom final relief may be granted, as is needed to ensure the effective exercise of the jurisdiction invoked.[21]
[20] Teo v Guan [2015] FamCAFC 94; (2015) 296 FLR 172.
[21] Teo [98] ‑ [99], citing Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 [35].
In Tate v Tate,[22] the Full Court of the Family Court of Australia was concerned with an order that a wife's application for property settlement and spousal maintenance orders proceed on an undefended basis. The order was made after a protracted failure by the husband to comply with discovery orders. The appeal was against the refusal to reinstate the husband and permit him to cross‑examine. In the course of dismissing the appeal, the court observed:[23]
Where, as here, non-compliance with the orders and directions of the court will, in the opinion of the trial judge, defeat the attainment of justice, then suitable remedies must be found. In this instance the remedy necessarily excluded the husband from any further participation in the proceedings. Whilst such cases are 'exceptional', and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that manipulation of the court processes, (as was attempted and indeed partially achieved in this instance), through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the court. In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.
Counsel for the respondent accepted that this was the discretionary test to be applied either under r 172 of the Rules or in the exercise of the court's implied power.[24]
[22] Tate v Tate [2000] FamCA 1040; (2000) 26 Fam LR 731.
[23] Tate v Tate [108].
[24] Appeal ts 223 ‑ 224.
This passage from Tate v Tate suggests that the exclusion of a party from proceedings will, at least generally, be on the basis that it is necessary to ensure the attainment of justice is not defeated. That is consistent with the approach taken by this court in relation to springing orders. This court has recognised that entry of judgment prior to trial without regards to the merits of the case is, generally speaking, the antithesis of justice, so that a springing order can only be justified where necessary to enable the court to fairly determine the substantive matter in dispute and as a last resort.[25]
[25] Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179; (2016) 50 WAR 453 [42].
Likewise, ordinarily proceeding to make orders directly affecting the rights of a party after a trial from which that party has been excluded is the antithesis of justice. Such an order can only be justified as a last resort where the participation of the party in the proceedings would seriously compromise the effective exercise of the court's jurisdiction or where the conduct of the party prevents the fair determination of the proceedings.

Exercise of the power in this case

For the following reasons, it was not open to the primary judge to be satisfied on 1 September 2022 that the exclusion of the appellant from further participation in the trial was necessary to enable the court to fairly determine the substantive matter in dispute.
The primary judge characterised the appellant's conduct prior to 8 October 2021 as an effective disengagement from the proceedings. Even if the judge's characterisation of the appellant's conduct prior to 8 October 2021 is accepted as correct, it was not open to properly characterise the appellant's conduct from 29 August 2022 to 1 September 2022 as a disengagement with the proceedings that could justify an order excluding her. In that regard, there is a difference between a party, as a witness, providing unsatisfactory answers to questions, which may lead the court to make an adverse assessment of the credibility and reliability of the evidence, and a refusal to answer questions. The appellant could not be said to have abandoned the proceedings.[26]
[26] Contrast Beckert v Beckert [2021] FedCFamC1A 40; (2021) 64 Fam LR 218.
It is of course important to understand the primary judge's decision on 1 September 2022 to exclude the appellant from the trial in the context of what preceded that decision. That context includes the way in which the trial had proceeded between 8 February 2021 and 8 October 2021, leading to the primary judge making orders that the trial proceed on an undefended basis on two occasions during that period. However, the more immediate context is the way the trial had proceeded over the four days from 29 August 2022 to 1 September 2022. At this time, the appellant was represented by Mr Bannerman. Mr Rodda appeared as counsel for the independent children's lawyer and Ms Mansfield appeared for the respondent.
Almost all of the four days were occupied by the cross‑examination of the appellant by Mr Rodda and Ms Mansfield. There was a limited amount of discussion of issues between counsel and interposition of another witness's brief oral evidence. The court generally started at about 10 am and, with the usual lunchtime adjournment, finished at about 4.20 pm in the afternoon. The incident that led the primary judge to permanently exclude the appellant from the trial occurred at about 3.30 pm on 1 September 2022. By that time, the appellant had conservatively been on the witness stand for well over 15 hours during that week of the hearing, in the context where she had previously been cross‑examined by counsel for the independent children's lawyer over 11 days prior to 29 August 2022.[27]
[27] 9 February 2021, 6, 7, 8, 20 and 22 September 2021, 4, 5, 6, 7 and 8 October 2021.
This is an extraordinarily long time for a single witness to be cross‑examined. Further, reading it fairly and as a whole, our review of the transcript of the trial from 29 August 2022 to 1 September 2022 indicates that the length of the cross‑examination over those days was only partly attributable to the manner in which the appellant framed her answers to questions. There were, on our review, other material contributing factors to the length of the cross‑examination which were not attributable to the appellant.
There were occasions on which the appellant's responses to questions could fairly be characterised as non‑responsive obfuscation or argument. That is regrettable, but perhaps not unusual given the issues at hand and the nature and length of the cross‑examination. However, on the whole, the appellant generally appears to have been attempting to answer the many questions which were posed to her over the four‑day period.
The length of the cross‑examination of even the most uncooperative of witnesses is largely in the hands of the cross‑examiner. The cross‑examiner determines the number of questions necessary to achieve the cross‑examiner's aim of cross‑examination. The aim of cross‑examination of a non‑expert witness will usually be to attempt to impugn the credibility of the witness's evidence, obtain admissions or concessions as to matters of primary fact within the witness's personal knowledge, and to comply with the rule in Browne v Dunn.[28]
[28] Browne v Dunn (1893) 6 R 67 (HL).
An object of demonstrating that the court should treat the witness's evidence as incredible or unreliable is likely to be achieved after a significant series of non‑responsive, argumentative and obfuscatory answers to difficult questions. It is difficult to see that this objective had not been established by counsel for the independent children's lawyer's cross‑examination of the appellant well prior to 29 August 2022.
The cross‑examiner also determines the breadth and precision with which questions are asked. Short, precise and particular questions are more likely to obtain admissions or concessions in an efficient manner than questions which allow for exposition by the witness.
In the present case, there were many occasions on which the primary judge directed the appellant to answer the question. However, not infrequently on those occasions, the appellant's answer was not beyond the scope of the question. The problem frequently arose from the broad and imprecise terms in which the question, not directed to a matter of primary fact, was posed.
For example, the cross‑examination on 29 August 2022 began with a curious form of questioning in which an excerpt of the video of exhibit 7 was played to the appellant. The appellant was taken to an observation in the trial transcript made by former counsel for the independent children's lawyer, Ms Cohen, about what the video showed. The appellant was asked to respond to Ms Cohen's comment.[29] An early example was as follows:[30]
[29] Trial ts 29/8/22 at 19.
[30] Trial ts 29/8/22 at 22 ‑ 23.
Right. Now, what Ms Cohen goes on to say is, in the next paragraph:
Your Honour will have seen from the start of the video, that [the respondent] is walking away and [the appellant] has chased him down the street.
So do you agree ‑ what would you say in response to that proposition, [Ms P]?---I was ‑ without going into too much context, [the respondent] had had the police order the week before and had left us with ‑ without any money.
Yes?---So -
HIS HONOUR: [Ms P], it was a very simple question?---Sorry.
I would like you to answer the question, please?---Sorry. If you could please repeat it.
RODDA, MR: Yes. So the question is Ms Cohen put to his Honour that at the start of the video, you can see that:
... [the respondent] is walking away and [the appellant] has chased him down the street.
So do you agree with that or disagree?---Yes. Agree.
The utility and permissibility of questioning a witness about counsel's description of a video which is in evidence before the court is highly doubtful. Further, the initial question was not a 'very simple question'. The appellant was not asked whether she agreed with Ms Cohen's statement. Rather, the appellant was asked what she would say in response to the statement. When a more directed question was posed, asking whether she agreed or disagreed with Ms Cohen's statement, the appellant said that she agreed with the statement. An open‑ended question, 'What is your response?', allows the witness to describe his or her reaction to the statement. The witness can hardly be criticised for his or her response when the question is posed in those terms.
Yet that is what the primary judge did, for example, when a question was put to the appellant about evidence which W (the respondent's current partner) had given attributing a statement to the appellant:[31]
So what do you say in response to that, [Ms P] ‑ - -?---I know … [W] has, from the very get go, been out to work the system to get me.
HIS HONOUR: Can you please ‑ - -?---I ‑ I
- answer the question?--- ‑ - ‑ don't understand -
[Ms P], stop?---Yes. Well ‑ well, she's obviously -
Stop. Answer the questions, please. All right. Thank you. Yes, Mr Rodda.
RODDA, MR: So what's your response there, [Ms P]?
[31] Trial ts 29/8/22 at 57 ‑ 58.
The appellant then gave a response which led counsel to ask whether it was likely that the appellant would have wanted to make the statement attributed to her by W's evidence. The appellant then said that she might have said something along those lines but could not recall the exact words that were said.
The proper way of asking the question would be to ask the appellant whether she made a statement to a specified effect to W during the phone call. That question would have called for an answer, 'yes', 'no' or 'I don't recall'. However, the appellant cannot be said to have failed to answer a question asking her to respond to evidence given by W when she gave her response to that evidence.
There were occasions on which the appellant did not answer the question posed, so that a direction to answer the question was required. However, the respondent did not point to any occasion on which the appellant refused to answer a question posed to her despite repeated directions for her to do so.
Much of the length of the cross‑examination appears to have resulted from a tendency to ask questions which were not addressed to matters of primary fact, but rather invited the appellant to make evaluative assessments of the evidence before the court. An example appears in the passage reproduced at [34] of the Stay Decision.
Compliance with the rule in Browne v Dunn does not ordinarily, and did not in this case, require cross‑examination of extensive length. As this court recently noted in Meadowcroft v The State of Western Australia,[32] the rule in Browne v Dunn is concerned with substantive unfairness and not with mere formalities. The court described the rule in the following terms:[33]
The rule in Browne v Dunn has been described in the following terms: 'unless notice has already been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings (Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 [623]).
The rule does not apply where the witness is on notice that his or her evidence is in contest and notice may come from a variety of sources including the other side's opening and from the general manner in which the case is conducted (Lazarevic v The State of Western Australia [2007] WASCA 156 [17] (McLure JA, Wheeler JA & EM Heenan AJA agreeing)).
It may be noted that the requirement is to put the nature of the case to the witness so that he or she has an opportunity to respond, and not to obtain a particular response from the witness.
[32] Meadowcroft v The State of Western Australia [2023] WASCA 98 [62].
[33] Meadowcroft [56] ‑ [57].
Counsel for the appellant conceded that the appellant's approach to responding to questions posed in cross‑examination from 29 August 2022 to 1 September 2022 significantly contributed to the length of the cross‑examination. However, we agree with counsel that the appellant's approach was not the only significant contributor, and that the number and nature of questions posed to the appellant were also significant contributors to the extraordinary length of the cross‑examination. Recognising that the appellant was a difficult witness, whose answers might reasonably be regarded as unsatisfactory, it seems to us that the number of questions posed to her exceeded that which was required to achieve the reasonable aims of cross‑examination in this case.
In the present case, the appellant had responded to questions during an extensive cross‑examination over four days. The nature of the proceedings, concerning the appellant's future care of and contact with her children, inevitably placed a significant psychological strain on the appellant. The appellant had been diagnosed as having difficulty in regulating her emotions and had demonstrated that difficulty in earlier stages of the proceedings. It was unreasonable to expect that she would be able to completely control her emotions throughout the whole of such an extensive cross‑examination.
Despite the challenges presented by the length of the cross‑examination, the nature of the proceedings and her psychological difficulties, the appellant was generally able to maintain her composure and attempted to respond to questions during the four days of hearing from 29 August 2022 to 1 September 2022. There were occasions in which the appellant became emotionally distraught but was able to resume her composure after a short break. On some of those occasions, as discussed below, the judge's intemperate tone and loss of composure is likely to have contributed to the appellant's emotional state. The appellant had not failed to engage with the proceedings or questions asked of her.
At the point at which the order excluding the appellant from proceedings was made on 1 September 2022, set out at [45] of the Stay Decision and described at [84] below, the appellant was clearly very upset. But that emotional dysregulation occurred after the judge shouted at her. The appellant asked for a five‑minute break to compose herself, and there was at least a real prospect that the provision of a break would enable her to do so, as had occurred on previous occasions.

Counsel for the respondent particularly relied on a repeated pattern during her cross‑examination of the appellant at trial. The pattern involved counsel putting to the appellant a document which was, on its face, inconsistent with a fact asserted in the appellant's evidence. The appellant was then asked to identify where in the document the asserted fact appeared. The appellant then obfuscated, provided non‑responsive, argumentative answers, and became emotionally dysregulated. Examples of that pattern appear in passages quoted in the Stay Decision:
1.at [42], where the appellant is asked to identify where on a bank statement alleged payments of the respondent's expenses were evident;
2.at [44], where the appellant is asked to identify where in AUSTRAC notifications alleged overseas money transfers were evident; and
3.at [45], at the point when the primary judge made the impugned orders, when the appellant was asked to identify where in a series of Facebook messages she had agreed to spend time with the younger child at a café on his birthday.
The appellant's responses to these questions may be regarded as unsatisfactory and could count strongly against acceptance of her evidence. However, the appellant's responses to these questions did not preclude the court from fairly and effectively exercising its jurisdiction. The respondent's counsel had complied with the rule in Browne v Dunn by putting to the appellant documents which were said to be inconsistent with her evidence. Asking a witness to identify where a certain event is shown in a document which patently does not show that event is a forensically effective manner of making counsel's point. However, apart from admitting an inability to point to the relevant event, the question is not capable of being answered in its terms when the event the witness is asked to identify does not appear in the document. The appellant's non‑responsive, argumentative, obfuscatory responses did not prevent counsel from making her forensic point. Counsel could submit, and the court could conclude, that the relevant aspects of the appellant's evidence were unsupported assertion which was inconsistent with the documentary evidence before the court. The court was not precluded from assessing the credibility and reliability of the appellant's evidence either on these specific matters or more generally.
Counsel for the respondent submitted that it is necessary to consider the impact of the appellant's behaviour on the capacity of the court to conduct child‑related proceedings without undue delay.[34] The respondent submits that the appellant's behaviour unnecessarily prolonged the proceedings, to the prejudice of the interests of the children, which were best served by a rapid resolution of the proceedings, and the resources of the court, which could otherwise be devoted to the resolution of other pressing disputes.[35] That submission may have force if it was the appellant's conduct that was the sole or principal factor in preventing the resolution of the proceedings within a reasonable time. However, as has been noted, the appellant's responses to questions posed in cross‑examination was merely one of a number of factors which contributed to the extraordinary length of this trial, and in our view was not the predominant cause of the length of the cross‑examination from 29 August 2022 to 1 September 2022.
[34] See s 202B(8) of the Family Court Act.
[35] Appeal ts 224.
In argument on the appeal, counsel for the respondent referred to submissions which had been made by Mr Bannerman on 2 September 2022 when he unsuccessfully applied for the appellant to again be reinstated to the proceedings. Mr Bannerman made concessions as to the propriety of the cross‑examination of the appellant and the impact of the appellant's inappropriate responses in lengthening the cross‑examination.[36] However, those were not concessions which led to the orders being made on the previous day. It is not a matter which, in our view, binds the appellant as suggested by counsel for the respondent. Ultimately, the question of whether the exclusion of the appellant was necessary to ensure the effective exercise of the court's jurisdiction is a matter for the court's own assessment.
[36] Trial ts 2/9/22 at 3 - 6.
It may also be noted that the primary judge did not regard the appellant's mere presence in court as so disruptive to the proceedings as to demand her exclusion from the courtroom. The judge permitted the appellant to be in the court while the balance of the trial proceeded. There is no reason to think that the appellant's presence after the conclusion of cross‑examination (which surely must have been close to concluding) would have been any more disruptive to the trial process if her counsel had also been able to remain and continue to represent her in the trial.
In the circumstances of the present case described above, the manner in which the appellant engaged with the proceedings in the four days from 29 August 2022 to 1 September 2022, considered in the context of the whole of the trial to that point, was not such as to make her exclusion from the proceedings necessary to ensure the attainment of justice in the primary proceedings. In the circumstances of the present case, it was not open to the primary judge to conclude that the exclusion of the appellant from the proceedings on 1 September 2022 was necessary to ensure the effective exercise of the court's jurisdiction.
In these circumstances, the decision to exclude the appellant from further participation in the trial was unreasonable or plainly unjust, so that error in the exercise of the primary judge's decision can be inferred from the outcome.[37]

Conclusion as to grounds 1 and 2

[37] House v The King (1936) 55 CLR 499, 504 ‑ 505.

For the above reasons, in our view grounds 1 and 2 are established. The appellant was denied procedural fairness as a result of being excluded from further participation in the trial in a manner that was not authorised by the Family Court Act or the Rules.

Ground 3: reasonable apprehension of bias

We turn to consider ground 3, which alleges a reasonable apprehension of bias arising from the manner in which the primary judge conducted the primary proceedings.

General principles

Reasonable apprehension of bias will be established 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. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The reasonableness of the apprehension may then be assessed.[38] The test is objective and the fair‑minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[39] However, the observer is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision‑makers.[40]
[38] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60]; QYFM v Minister for Immigration [2023] HCA 15; (2023) 97 ALJR 419 [37] ‑ [38], [67], [162], [194], [225].
[39] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].
[40] Ebner [8]; CNY17 v Minister for Immigration [2019] HCA 50; (2019) 268 CLR 76 [28]; QYFM [47], [70], [171].
One circumstance in which a reasonable apprehension of bias might arise involves intervention by a trial judge in the proceedings over which the judge is presiding.[41]
[41] See, for example, Dennis v Commonwealth Bank of Australia [2019] FCAFC 231; (2019) 272 FCR 343; Navarro v Navarro [2019] FamCAFC 32 esp at [11] ‑ [17]. See also the summary of principles in Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530 [18] ‑ [26], although this case was not resolved on the apprehension of bias ground: see [28].
In Polsen v Harrison,[42] the New South Wales Court of Appeal rejected an argument that, in the circumstances of that case, intervention by a trial judge in a civil case gave rise to a reasonable apprehension of bias. In reaching that conclusion, the court (Bell P, Basten JA & Simpson AJA) identified a number of general propositions to be considered in such a case, including that:[43]
(xxi)the fair‑minded lay observer would not reasonably apprehend bias on the part of a judge from a short and emotional exchange taken out of context and weighed in isolation;
(xxii)the fair‑minded lay observer will have regard to the cumulative effect of comments made by a judge and not to particular individual statements removed from their context; and
(xxiii)subsequent statements made by a judge, following the comments or conduct said to give rise to a reasonable apprehension of bias, may indicate that an earlier expressed statement or impression was not final or that the judge had not committed to a particular point of view.
(citations omitted)
[42] Polsen v Harrison [2021] NSWCA 23.
[43] Polsen [46].
This passage was cited with approval by the New South Wales Court of Appeal (Brereton JA, N Adams & Lonergan JJ) in Masters v The Queen.[44]

Reasonable apprehension of bias

[44] Masters v The Queen [2022] NSWCCA 228; (2022) 102 MVR 223 [112].

The appellant's submissions in relation to ground 3 identified a range of matters occurring both before and after the proceedings on 1 September 2022 that were alleged to give rise to a reasonable apprehension of bias. However, ground 3 can be resolved with a focus on the proceedings on 1 September 2022, understood in the context of the preceding course of the trial. When that is done, a reasonable apprehension of bias can be seen to arise from the manner in which the proceedings were conducted on that day. That is sufficient to impugn the orders made on 1 September 2022 dismissing the appellant's applications and ordering the trial to proceed on an undefended basis. The setting aside of the orders made on 3 and 8 March 2023 will follow from that conclusion.
In our view, the following aspects of the proceedings on 1 September 2022 in combination might lead a properly informed lay observer to apprehend that the judge might decide the question of whether the case should proceed on an undefended basis other than on its legal or factual merits.
First, the primary judge adopted a highly intemperate tone in speaking to the appellant, and at some points was shouting at her.
We have watched the recording of the exchange set out at [44] of the Stay Decision on exhibit 69. The questions and answers in the exchange between Ms Mansfield and the appellant are given in a calm measured tone. The appellant's voice begins to waver towards the beginning of the primary judge's questions. In asking the appellant whether she has documents that support her contention, the judge's voice becomes aggressive, and the second question is shouted at the appellant. At this point the appellant stands up and becomes upset. She is apparently attempting to maintain her composure but is cut off by the judge's shouted response, which demands a 'yes' or 'no' answer.
We have also watched the recording of the exchange set out at [45] of the Stay Decision on exhibit 69. The appellant's voice begins to waver as the judge's questioning begins. The judge shouts the words 'just stop'. The appellant begins crying when she first asks for five minutes. The judge's response, 'no', to the second request is shouted, as is much of the balance of his statements to the appellant. The appellant becomes extremely upset as the judge leaves the court.
The conduct of the primary judge in shouting at the witness on more than one occasion is a significant departure from appropriate judicial standards that the community and litigants are entitled to expect from a judge.
Secondly, the language used by the primary judge on 1 September 2022 is at points emotive and suggests that the judge is venting his exasperation. The judge observes that '[e]verybody in this court has had to put up with enough' at the end of the passage quoted at [42] of the Stay Decision. At another point, the judge told the appellant to '[j]ust get a hold of yourself'.[45] At the end of the passage quoted at [44] of the Stay Decision his Honour says to the appellant, '[W]hen you're actually asked to identify something that supports a contention, you obfuscate, you don't answer you deflect' which led the judge to conclude that '[the appellant's] evidence about it is unreliable'. In the passage quoted at [45] of the Stay Decision, just before making the impugned orders, the judge says, 'I've wasted enough time over your histrionics'.
[45] Trial ts 1/9/22 at 20.
Thirdly, when the appellant is becoming visibly upset after being spoken to in an intemperate tone by the primary judge, his Honour refuses the appellant's request for a short break. Despite being concerned about the appellant's emotionally dysregulated behaviour, he denies her the opportunity to compose herself in the way that has enabled her to do so on previous occasions.
Fourthly, the way in which the judge makes the impugned decision to exclude the appellant from further participation in the trial might lead a reasonable observer to apprehend that the decision might be the product of a pique of temper rather than a considered application of the applicable legal principles. The judge does not seek any submissions from counsel for the appellant, the respondent or the independent children's lawyer as to what he should do. His Honour simply says, 'That's it. I'm proceeding undefended in this matter' before adjourning. While the CCTV recording does not capture vision of the primary judge, the audio strongly suggests that the primary judge has slammed something down on the bench and stormed out of court immediately after making the decision.
The combination of the above matters might lead a properly informed lay observer to conclude that the composure and temper of the primary judge might have been overcome by his frustration in having to deal with a very difficult litigant and witness. That loss of temper and composure might lead the properly informed lay observer to apprehend that the judge might decide the question of whether the case should proceed on an undefended basis other than on its legal or factual merits. A loss of composure and temper is apt to result in a decision made as a piqued response to a trying litigant rather than as an application of the relevant legal principles to the circumstances of the case. That is the logical connection between the matters said to give rise to the apprehension of bias in this case and the feared deviation from the course of deciding the case on its merits. That apparent loss of composure and temper would strongly suggest to a reasonable properly informed observer that the judge's decision was influenced by an emotional outburst and not by an objective impartial assessment of the merits of the case. In all the circumstances of this case, it may be reasonably apprehended that the primary judge was diverted from deciding the proper exercise of the court's power on the merits of the case.
In reaching this conclusion, we are conscious that the standard of judicial office is not the standard of perfection. We agree with the following observations of Kirby ACJ (Meagher JA concurring) in Galea v Galea:[46]
In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing.
[46] Galea v Galea (1990) 19 NSWLR 263, 279.
In Galea, Kirby ACJ considered that:[47]
[T]he hypothetical lay observer would most likely also have been irritated by some of [Dr Galea's] prevarications and would have been aware that, soon afterwards, the emotional storm had passed and the trial resumed its steady progress on calmer seas.
[47] Galea (279 - 280).
By contrast, in the present case, the trial did not resume progress on calmer seas. The point at which the primary judge apparently lost his composure was the point at which the judge made the critical decision to order that the trial proceed on an undefended basis. A reasonable properly informed lay observer might apprehend that the primary judge made that critical determination otherwise than by an objective impartial assessment of the merits of the case. At the time the judge made that critical decision in the trial, he was subject to a reasonable apprehension of bias. The orders made by the primary judge on 1 September 2022 excluding the appellant from further participation in the trial must be set aside on that basis. The setting aside of the parenting orders made on 3 March 2023 and the financial orders made on 8 March 2023 necessarily follows from the setting aside of the order precluding the appellant from further participation in the trial.
The respondent submits that the events of 1 September 2022 must be understood in the context of the course of the whole trial, of which the properly informed lay observer must be taken to be aware. That submission may be accepted. The respondent then in effect contends that the reasonable observer would understand and share the primary judge's frustration at the appellant's behaviour.[48] However, that response by a reasonable observer would tend to increase rather than decrease the prospect of the observer apprehending that the primary judge was diverted from deciding the proper exercise of the court's power on the objective merits of the case. The fact that the judge's apparent emotional reaction to the frustrating conduct of a litigant might be perfectly understandable tends to reinforce rather than negate that apprehension. The question for this court is whether a reasonable apprehension of bias arose rather than whether the judge might have been justified in proceeding in circumstances giving rise to a reasonable apprehension of bias.
[48] Appeal ts 245 - 246.
It is unnecessary for us to consider whether the situation might have been salvaged if the primary judge had subsequently reinstated the appellant to the trial, which had then progressed on 'calmer seas'. That did not occur, as the appellant's reinstatement application was refused and the trial proceeded without her further participation other than making the application for the primary judge to recuse himself which is discussed below.

Waiver

The respondent contends that the appellant waived her right to object to the primary orders on grounds of apprehended bias. That submission was, to a large extent, pitched at the broader grounds for apprehending bias advanced by counsel for the appellant at the hearing of the appeal. It is necessary, however, to focus on the narrower ground of apprehended bias, which arose from the manner the proceedings were conducted on 1 September 2022, and consider whether there has been a waiver in relation to the orders made on that date.

This court recently considered the general principles by which a party may waive the right to object to the making of an order on grounds of reasonable apprehension of bias in Goldsmith v Legal Services and Complaints Committee.[49] We adopt that summary without repeating it. The particular issue of concern which arose in Goldsmith was the degree of knowledge that must be possessed by the person said to have waived the right to object. That issue of knowledge does not arise in the present case, where the circumstances said to give rise to a reasonable apprehension of bias all occurred in court and in the appellant's presence.
[49] Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136 [36] - [39] and [64] - [66].
For the following reasons, we do not accept the respondent's submission that the appellant waived her right to object to the orders made on 1 September 2022 precluding her further participation in the trial on grounds of apprehended bias.
First, the appellant appealed against the orders made on 1 September 2022 promptly after they were made. The appellant filed her appeal notice against those orders in CACV 89 of 2022 (which became consolidated with this appeal) on 14 September 2022. The appellant, who was self‑represented in the appeal, had great difficulty in articulating her grounds of appeal in an appellant's case which complied with the Supreme Court (Court of Appeal) Rules 2005 (WA). She failed to do so before the orders disposing of the primary proceedings were made in March 2023. However, it is apparent from the primary judge's recusal reasons that, at least by 1 December 2022, the appellant was indicating that apprehended bias would be a ground of appeal against the orders made on 1 September 2022.[50]
[50] [P] v [Q] [2022] FCWA 271 [11].
Secondly, contrary to the respondent's submission,[51] no waiver could arise from the absence of an invitation by the appellant's trial counsel for the judge to recuse himself on 1 September 2022. There was no opportunity for Mr Bannerman to do so between the occurrence of all of the circumstances which we have identified as cumulatively giving rise to a reasonable apprehension of bias and the orders being made precluding the appellant from further participation in the trial. Counsel for the appellant could reasonably have regarded himself as unable to make a recusal application after orders were made on 1 September 2022. On 2 September 2022, the primary judge expressed the view that, once the orders were made on 1 September 2022, the only standing which the appellant had was to make an application for reinstatement under r 173 of the Rules.[52]
[51] Appeal ts 264.
[52] Trial ts 2/9/22 at 18.
Thirdly, despite the indication noted in the previous paragraph, on 30 November 2022 the appellant did apply for the primary judge to recuse himself from the further conduct of the proceedings on grounds of apprehended bias. Both the respondent and the independent children's lawyer disputed the appellant's standing to make the recusal application.[53] Despite those objections, the judge was prepared to hear that application on 1 December 2022, and dismissed it that day. Contrary to the suggestion from the respondent's counsel at the hearing of the appeal,[54] we do not perceive any abuse of process in the appellant both appealing against the orders made on 1 September 2022 on grounds on apprehended bias and also applying in the Family Court for the primary judge to recuse himself. The two actions are directed to different purposes. The appeal is directed to impugning orders which had already been made. The appeal had not been determined at the time the recusal application was made to the primary judge. The recusal application to the Family Court was directed to preventing the future conduct of the proceedings by the primary judge. The making of the application to the Family Court and the appeal to this court both indicated that the appellant was not acquiescing in proceedings conducted in circumstances giving rise to a reasonable apprehension of bias or electing to adopt a position inconsistent with alleging a reasonable apprehension of bias.
[53] Trial ts 1/12/22 at 3 - 4.
[54] Appeal ts 267.
Fourthly, given the stage that the trial had reached by the time of the refusal of the recusal application on 1 December 2022, there was no waiver arising from an unreasonable failure to seek leave to appeal against the refusal of that application prior to delivery of final judgment.[55] The appellant is not precluded by the absence of an interlocutory appeal against the orders made on 1 December 2022 from challenging the final orders on grounds of apprehended bias.

Conclusion as to ground 3

[55] As to which, cf Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [84] ‑ [86]. Cf the discussion in Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7^th ed, 2022) [10.380].

For the above reasons, we are satisfied that ground 3 is established.

Grounds 4 and 5

Given that the success of grounds 1 ‑ 3 has impugned the validity and acceptability of the primary proceedings, the appeal must be allowed, the impugned orders must be set aside, and the matter must be remitted to the Family Court for retrial. It is unnecessary and inappropriate for this court to determine the remaining two grounds of appeal.

Orders

For the above reasons, we made the following orders on 15 November 2023:
1.The appeal is allowed.
2.The following orders made by the Family Court of Western Australia in 4061/2018 are set aside:
(a)order 1 of the orders made on 1 September 2022;
(b)orders 1 ‑ 13 of the orders made on 3 March 2023; and
(c)orders 1 ‑ 2 of the orders made on 8 March 2023.
3.The matter be remitted to the Family Court of Western Australia for a new trial.
4.The parties have liberty to apply as to costs within 30 days of the publication of the court's reasons for making these orders.
The effect of these orders was to restore the regime for supervised contact between the appellant and her children that was in place prior to the orders made on 3 March 2023. When the orders were made, we indicated that, if either party seeks a variation of those orders pending retrial, then the variation application should be made to the Family Court.
In making the Stay Decision, this court referred the appellant's application for a stay of the parenting orders made on 3 March 2023 to the hearing of the appeal. The setting aside of the parenting orders has made the application for a stay of those orders pending determination of the appeal redundant. It was therefore unnecessary to make any further order in relation to the stay application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EM
Associate to the Honourable Justice Mitchell

17 NOVEMBER 2023

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION: P -v- Q [No 2] [2023] WASCA 163 (S)
CORAM:   MITCHELL JA
VAUGHAN JA
HALL JA

HEARD:   ON THE PAPERS
DELIVERED          :   29 FEBRUARY 2024
FILE NO/S:   CACV 27 of 2023
BETWEEN:   P
Appellant
AND
Q
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other Party

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   MONCRIEFF J
Citation: [P] and [Q] [2023] FCWA 37
File Number            :   4061 of 2018

Catchwords:

Family law - Costs - Whether general position that parties bear their own costs should be departed from - Turns on own facts

Legislation:

Family Court Act 1997 (WA), s 237

Result:

Application for costs refused
Each party to bear their own costs of the appeal

Category: B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance
Other Party	:	No appearance

Solicitors:

Appellant	:	Not applicable
Respondent	:	Paynes Lawyers
Other Party	:	Legal Aid (WA)

Case(s) referred to in decision(s):

AK v V (No 2) [2021] WASCA 74
P v Q [2023] WASCA 121
P v Q [No 2] [2023] WASCA 163
Penfold v Penfold (1980) 144 CLR 311

REASONS OF THE COURT:

Background

On 15 November 2023, this court allowed the appellant's appeal against parenting and financial orders made by the Family Court of Western Australia. This court found that the primary judge erred in making an order on 1 September 2022 excluding the appellant from further participation in the primary proceedings and consequently denied the appellant procedural fairness. The court also found that the manner in which the primary judge conducted the proceedings on 1 September 2022 gave rise to a reasonable apprehension of bias. The court set aside the order made on 1 September 2022, parenting orders made on 3 March 2023 and financial orders made on 8 March 2023. The court remitted the matter for retrial. The court also gave the parties liberty to apply as to costs.[56]
[56] See P v Q [No 2] [2023] WASCA 163 (Appeal decision).
On 14 December 2023, the appellant applied for an order that the respondent pay her costs in the appeal, fixed in the amount of $50,573. The parties have agreed that this application should be determined on the papers. For the following reasons, the application should be dismissed.

Statutory provisions

It is common ground that the exercise of this court's costs discretion is governed by s 237 of the Family Court Act 1997 (WA) (Act). Section 237(1) provides that, subject to s 237(2) and other presently immaterial exceptions, each party to proceedings under the Act is to bear the party's own costs. Section 237(2) allows this court to make such order as to costs as the court thinks fit if it is of the opinion that there are circumstances that justify it doing so. In considering what order (if any) should be made under s 237(2), the court is required by s 237(3) to have regard to the following matters:
(a)the financial circumstances of each of the parties to the proceedings; and
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party; and
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters; and
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court; and
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings; and
(f)whether a party to the proceedings has made an offer in writing to another party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
In Penfold v Penfold,[57] the plurality in the High Court observed that an equivalent provision to s 237(1) expressed a general rule but was not paramount to the equivalent of s 237(2) of the Act. The former must yield whenever the court finds in a particular case that there are circumstances justifying the making of an order for costs. Section 237(2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs.
[57] Penfold v Penfold (1980) 144 CLR 311, 315.
It has been recognised that, while costs do not 'follow the event' any more on an appeal than they do in any other proceedings under the Act, a party being wholly unsuccessful in an appeal, which by definition seeks to deny the other party the 'fruits of their judgment', can be of great significance.[58] However, that consideration applies where an appellant unsuccessfully challenges orders made in favour of the other party on appeal, rather than where the appeal is successful.
[58] See AK v V (No 2) [2021] WASCA 74 [83] and cases there cited.

Disposition

We are of the view that the appropriate outcome in this case is that each party bear their own costs of the appeal.

Success in the appeal (s 237(3)(e))

The appellant was successful in the appeal, which is a factor counting in favour of an award of costs to her. However, the significance of that factor is moderated by the following two matters.
First, the appeal did not resolve any of the substantive issues as to the parenting or financial orders which should be made to resolve the dispute between the parties. The substantive rights of the parties remain to be resolved in the remitted primary proceedings.
Secondly, at a time when she was self‑represented, the appellant filed applications in an appeal on which she was substantively unsuccessful, or which were required only by reason of the appellant's failure to comply with procedural rules and orders. These comprised:
1.An application in an appeal filed on 19 October 2022, seeking an extension of time to file an appellant's case.
2.An application in an appeal filed on 16 November 2022, seeking a further extension of time to file an appellant's case.
3.An application in an appeal filed on 6 December 2022, seeking a stay of any orders which might be made in the primary proceedings while they proceeded on an undefended basis and a further extension of time in which to file an appellant's case.
4.An application in an appeal filed on 24 March 2023, seeking a stay of financial orders made on 8 March 2023. This application was dismissed on 7 August 2023.[59]
5.An application in an appeal filed on 27 March 2023, seeking a stay of the parenting orders made on 3 March 2023. This was substantively unsuccessful at the hearing on 7 August 2023.[60]
6.An application in an appeal filed on 6 April 2023, seeking to restrain the respondent from applying for passports for, or travelling overseas with, the parties' children. This application was dismissed on 7 August 2023.[61]
7.An application in an appeal filed on 18 April 2023, seeking an extension of time to comply with procedural orders.
8.An application in an appeal filed on 8 June 2023, seeking an order that an exhibit in the primary proceedings be 'dismissed as evidence'. This application was dismissed on 7 August 2023.[62]
9.An application in an appeal filed on 9 September 2023, seeking leave to issue subpoenas. This application was dismissed on 21 September 2023.[63]
10.An application in appeal filed on 17 October 2023, seeking leave to adduce a 570-page affidavit as additional evidence in the appeal. The application was referred to the hearing of the appeal. At the hearing of the appeal, counsel for the appellant (who was engaged only shortly prior to the appeal) abandoned that application.[64]
[59] See P v Q [2023] WASCA 121 [115] (Stay decision).
[60] See Stay decision [110] - [111].
[61] See Stay decision [112] - [114].
[62] See Stay decision [116] - [118].
[63] Appeal ts 125.
[64] See appeal ts 134 - 135.
These applications and the appellant's failure to comply with procedural orders required the respondent's counsel to attend hearings in this court on 25 November 2022, 9 February 2023, 24 March 2023, 24 May 2023, 7 August 2023 and 21 September 2023. The costs of these appearances and the applications were generally reserved. In considering whether an award of costs should be made in the appellant's favour on the basis of her success in the substantive hearing, it is necessary to take into account her lack of success in the above applications and hearings.
Overall, the respondent has not been wholly unsuccessful in the appeal proceedings considered as a whole.

Manner of conduct of the appeal proceedings (s 237(3)(c))

The manner in which the parties conducted the appeal proceedings counts against an award of costs in favour of the appellant. The procedural hearings and applications noted above, many of which were supported by voluminous material, would have required considerable work to be undertaken by the respondent's lawyers. There is evidence, not contradicted by the appellant, that she sent an unreasonably large volume of emails to the respondent's lawyers during the course of the appeal proceedings, which would have placed a significant additional burden on the respondent's lawyers.[65]
[65] Affidavit of respondent sworn 19 January 2024, par 26.
The appellant's failure to comply with procedural requirements significantly delayed the resolution of the appeal. The appeal against the order made on 1 September 2022 was filed on 14 September 2022. An appellant's case was not filed in the time required by the Supreme Court (Court of Appeals) Rules 2005 (WA) or orders of this court extending time. The consequence of this delay was that the court had no opportunity to deal with that appeal before final orders were made in the primary proceedings in March 2023. After orders were made in March 2023, the appellant filed further appeals against those orders. The appeals were consolidated on 24 March 2023, and the appellant again received an extension of time within which to file her appellant's case. The subsequent failure by the appellant to comply with procedural orders, including for the filing of an appellant's case, meant the hearing of the stay applications which had been programmed for 24 May 2023 could not proceed at that time and did not occur until 7 August 2023. On 24 May 2023, the court made a springing order for the appeal to be dismissed if a compliant appellant's case was not filed by 13 June 2023. A compliant appellant's case was only filed on 9 June 2023, almost 9 months after the first of the consolidated appeals was instituted. In the context where the appellant's ultimate success related to the order made on 1 September 2022, significant time and expense might have been saved had the appellant initially filed an appellant's case within the time required by the Rules.
We recognise that the above matters are largely a product of the appellant being unrepresented in the appeal until shortly prior to the hearing. It appears that, although much of what she did was misguided, the appellant was trying her best to comply with procedural requirements and bring the matter to a hearing. However, much of the appellant's conduct of the proceedings was objectively unreasonable and, as between the parties, she should be responsible for the unnecessary burden her conduct of the proceedings imposed on the respondent.
We reject the appellant's submission that the respondent unreasonably failed to concede points of fact or law at the hearing of the appeal.[66] Counsel for the respondent conducted what was a difficult appeal in an entirely appropriate manner, consistent with her professional and ethical obligations, and her submissions, while not ultimately accepted, were of considerable assistance to the court in resolving the appeal. The appellant's criticism is entirely unwarranted.

Failure to comply with previous orders (s 237(3)(d))

[66] Outline of arguments by the appellant filed on 5 February 2024, par 7(c)(iii).

The appeal was not necessitated by the failure of a party to comply with previous orders of a court.
We note the appellant alleges that, since the determination of the appeal, the respondent has failed to comply with interim orders of the Family Court which were revived by this court's orders. Those revived interim orders provided for the appellant to have supervised contact with the children.[67] This allegation will be a matter for the Family Court to deal with. It is not a matter appropriately resolved by this court on an application for costs. It is, in any event, not a matter which in our view should have a material effect on the exercise of our discretion as to the costs of the appeal.

Offer to settle proceedings (s 237(3)(f))

[67] See Appeal decision [105].

Neither party made an offer in writing to the other party to settle the proceedings.
We note that counsel for the appellant, after being engaged only shortly prior to the hearing of the appeal, emailed the respondent's counsel the day prior to the hearing of the appeal proposing a settlement discussion. Given the proximity of the hearing, the history of the matter and the absence of any concrete settlement proposal, it was reasonable for the respondent's counsel not to take up that suggestion.
The issue of the making of, and response to, offers to settle the proceedings is a neutral factor in the exercise of our discretion as to costs.

Financial circumstances of the parties (s 237(3)(a))

The financial circumstances of the parties is also a neutral factor in the exercise of our discretion as to costs. Each party is employed, earns a relatively modest income and has relatively modest assets.
We note that the appellant deposes to having paid over $44,000 in legal costs relating to the proceedings, to borrowing over $25,000 from her father to do so, and to owing over $13,000 in counsels' fees.[68] However, much of this expenditure relates to fees of lawyers who were never on the record as the appellant's lawyers in the appeal. Legal costs paid to lawyers who were not on the record would not ordinarily be recoverable in the appeal.

Legal aid (s 237(3)(b))

[68] Affidavit of appellant sworn 13 December 2023, pars 15, 19 - 20.

The parties received limited legal aid assistance in this appeal. The respondent received an allocation for legal aid in respect of the stay applications in which he was substantially successful.[69] The appellant received a limited allocation of legal aid but appears to have fallen into a dispute with the Legal Aid Commission as to its employment.[70] Ultimately it appears the legal aid granted to the appellant was used to obtain an opinion as to the merits of the appeal, which was negative. Otherwise, each party appears to have been responsible for funding their own lawyers in the proceedings.
[69] Affidavit of respondent sworn 19 January 2024, par 19.
[70] Appeal ts 09/02/2023, 19 - 20.
The position in relation to legal aid is also a neutral factor in the exercise of our discretion as to costs.

Other matters (s 237(3)(g))

It is also relevant to note that the order of 1 September 2022 was made by the primary judge acting on his own motion. The respondent did not advocate for an order excluding the appellant from the primary proceedings to be made at that time. The primary judge did not give either party an opportunity to be heard before making the order. Both parties have been detrimentally affected by the making of the order on 1 September 2022 as, unless a mediated agreement can be reached, they will be subjected to the cost and inconvenience of a retrial. This is a factor counting against the award of costs against the respondent.
In that regard, we do not accept the appellant's submission that the 'conduct of the respondent had a direct hand in the cause of action arising in the appeal'.[71]
[71] Outline of arguments by the appellant filed on 5 February 2024, par 7(c).
The appellant first relies on the respondent seeking 'no contact' parenting orders in the primary proceedings. However, this court has made no finding as to whether such orders were merited.
The appellant also refers to counsel for the respondent continuing an unnecessarily lengthy cross‑examination of the appellant in the primary proceedings. In allowing the appeal, we noted that this was a contributing factor to the length of the cross‑examination of the appellant, but also noted that the appellant's response to questions was also a contributor to the length of the cross‑examination.[72] Those observations were made in the course of considering whether the manner in which the appellant engaged with the proceedings was such as to make her exclusion from the proceedings necessary to ensure the attainment of justice in the primary proceedings.[73]
[72] Appeal decision [63].
[73] Appeal decision [72].
While both parties contributed to the length of the cross‑examination which formed the background to the order made on 1 September 2022, the management of the proceedings was the responsibility of the trial judge. The impugned order was made at the instigation of the trial judge rather than at the instigation of either party.

Conclusion

Having regard to all of the above matters, we are not of the opinion that there are circumstances justifying a departure from the position that each party bear their own costs of the appeal. To the contrary, in our view it is in the interests of justice that there be no order as to costs.

Orders

For the above reasons, we order that:
1.The appellant's application in an appeal filed on 14 December 2023 is dismissed.
2.There be no order as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KP
Associate to the Hon Justice Mitchell

29 FEBRUARY 2024