Parsons and Chou (No 3) - [2016] FamCA 96

FAMILY COURT OF AUSTRALIA

PARSONS & CHOU (NO 3)

[2016] FamCA 96

FAMILY LAW – COURTS AND JUDGES – Disqualification – Apprehension of bias – Interim parenting decision.

Family Law Act 1975 (Cth) s 69ZR

Aligante & Waugh(No 2) [2010] FamCA 554.
Deiter & Deiter [2011] FamCAFC 82
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
George &George [2013] FamCAFC 182
Johnson v Johnson [2000] HCA 48; 201 CLR 488
Livesey v New South Wales Bar Association [1983] HCA 17
Minister for Immigration &Multicultural Affairs v Jia [2001] HCA 17
Murray & Tomas and Anor [2011] FamCAFC 81
Parsons & Chou [2016] FamCA 3
SS & AH [2010] FamCAFC 13
Strahan & Strahan (Disqualification)[2009] FamCAFC 204

APPLICANT:

Mr Parsons

RESPONDENT:

Ms Chou

INDEPENDENT CHILDREN’S LAWYER:

Ms Vincent

FILE NUMBER:

PAC

4424

2013

DATE DELIVERED:

19 February 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

14 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Breeze

SOLICITOR FOR THE APPLICANT:

Blachfield Nicholls Partners

COUNSEL FOR THE RESPONDENT:

Ms Peters

SOLICITOR FOR THE RESPONDENT:

Rafton Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Watts McCray Lawyers

Orders

(1)The application in a case filed 12 January 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Parsons & Chou (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4424 of 2013

Mr Parsons

Applicant

And

Ms Chou

Respondent

REASONS FOR JUDGMENT

The parents of two young children have been involved in a dispute concerning their future parenting for a number of years. The trial of their competing applications is due to begin on 22 February 2016. In November 2015, the father made an application to vary the then current interim parenting arrangement. That application first came before the Court on 11 December 2015 but the parties were not in a position to proceed with the application to its completion in the time allotted on that day. On that date I made short-term parenting orders and indicated that I would deliver my Reasons for those orders at a later date. Those Reasons for Judgment were delivered on 14 January 2016.[1]
On 12 January 2016, the father filed an Application in a Case seeking that I recuse myself from further hearing the matter. On 14 January 2016, I first delivered my Reasons for Judgment for the 11 December 2015 orders and gave the parties an opportunity to read them. I then heard and dismissed the application for recusal, indicating that I would publish my reasons at a later date. These are those Reasons.

Background

[1]Parsons & Chou [2016] FamCA 3

The parenting proceedings relate to the parties two children: B, who almost four and C who is two.
The parents separated in mid-2013 when the mother moved out of the family home…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parsons and Chou (No 3)

Details

AGLC: Parsons and Chou (No 3) [2016] FamCA 96
Case: [2016] FamCA 96
Decision Date: 19 February 2016

CaseChat Overview and Summary

This matter concerned an application for recusal brought by the father against Hannam J in proceedings filed on 12 January 2016. The father contended that the judge had demonstrated bias, thereby creating an apprehension that the court could not retain an open mind when determining the ongoing interim and final parenting applications.

The primary legal issue before the court was whether the judge’s previous findings and remarks, particularly those made in relation to the father's conduct and the evidence presented, gave rise to a reasonable apprehension of bias. This required the court to consider whether a fair-minded lay observer, informed of all the circumstances, would apprehend that the judge might not decide the case solely on its merits. The court also had to determine if there was a sufficient logical connection between the alleged instances of bias and the matters still to be determined by the judge.

Hannam J reasoned that many of the matters complained of were neutral observations about the evidence or the objective quality of the evidence, rather than concluded findings of untruthfulness or general criticism of the father. The judge noted that remarks about the medical records, the timing of a recording, and concerns about a child's disclosure were not intended to suggest dishonesty. The use of the word "withholding" was considered a neutral description of the father's actions in not making the children available to the mother as ordered. The judge found that the contention of bias based on the interim orders themselves was more akin to an appeal against those orders. Furthermore, the court considered the nexus between the alleged bias and the remaining proceedings, concluding that while there was a strong connection to the completion of the interim application, the connection to the final hearing was less direct, especially given the prospect of further evidence and expert reports.

The application in the case filed 12 January 2016 was dismissed.

Orders

Orders of the court

(1) The application in a case filed 12 January 2016 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is said that the chain of reasoning that led to that finding involved a number of findings adverse to the father. In my view, the matters referred to in the various paragraphs complained about are “neutral in a legal sense” and suggest that I “could be expected to retain an open mind”[14]. In paragraph 52 I simply note that the medical records do not record a disclosure that one would expect would be recorded and in paragraph 58 I note that “an inference may arise on the father’s evidence alone that the recording may have been made [at a time, other than it was said to be made by the father]”. In paragraph 61 I referred to concerns about the child’s disclosure rather than a concluded finding that the father is untruthful as contended by his legal representative.[14] Murray & Tomas and Anor [2011] FamCAFC 81 at [41]. In relation to paragraph 55, it was contended on behalf of the father that there was an implicit criticism of the father for recording the conversation. In my view this paragraph is clearly an assessment of the objective quality of the evidence, not a criticism of the father’s conduct. The contention that the orders that I made in dealing with the application of themselves amount to bias comes is in my view more in the nature of an appeal against the orders themselves, rather than a genuine application for recusal. So far as my remarks in paragraphs 81 and 82 are concerned, there seems to be particular objection to the word “withholding”, as a description concerning the father’s actions at the time. In my view, “withholding” is a relatively neutral word to describe the father not making the children available to the mother in accordance with the orders. The overall tenor of the interim orders made for a limited time is that they were made in a particular context and that they would be further considered six weeks hence. Even if it could be concluded that a fair minded lay observer might conclude that I had not retained an open mind that is not the end of the matter. It is submitted on behalf of the mother that even if the court made findings or expressed a view which favoured one party over another, or which were critical of, or adverse to one party, this cannot alone ground a disqualification application. It is submitted that criticism of the father’s conduct with respect to a particular event does not amount to a criticism of the father’s actions more generally and an apprehension of bias. So far as the second step is concerned, this involves an “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”[15]. In other words there needs to be a nexus between those matters said to evidence bias and those matters still to be determined by the same trial judge.[15] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8] The proceedings that were still to be determined by me when the application was made were the completion of an interim parenting application and the determination of the parenting applications on a final basis. Clearly there is a greater nexus between the completion of the interim application and the matters under consideration on 11 December than the hearing of the final application listed to commence on 22 February 2016. So far as the former is concerned, it was possible on 11 December that there would be further evidence before the Court on 14 January, particularly concerning C’s presentation to hospital. Further, of particular significance to the welfare of the children a further report from the Expert in the proceedings which was in the process of being prepared on 11 December.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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