Parsons and Chou (No 3)
[2016] FamCA 96
•19 February 2016
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 | of | 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 with B, and was pregnant with the parties’ second child.
Both parties allege that the relationship had been characterised by violence perpetrated by the other parent. The mother also alleges that the father continued to behave in a threatening manner towards her after separation and on a number of occasions has sought Apprehended Domestic Violence Orders for her protection.
Interim orders were made by consent in October 2013 providing for B to live with the father and spend time with the mother two nights per week.
In December 2013, the mother gave birth to the second child, a girl who she named C. The father refers to this child as “Y”.
The father contends that the mother has been abusive towards the children and neglectful of them throughout their lives.
In February 2014 the father began spending time with C for two and a half hours, two times per week. The parenting orders were also an amended so that B was to live with each of the parties on a “two night about” basis.
From around this time the mother alleges that on many occasions the children were returned to her from the father with unexplained bruises to their bodies.
The complaints each parent makes about the other parent’s care of the children has at all times been a central issue in contest between the parties. The father in particular relies upon complaints which he alleges that B has made to him about the mother’s conduct, in particular, that the mother had hit him or C.
In April 2014 the parenting arrangement was changed again so that B came to live with each parent on a fortnightly rotating basis of three or four days in each parent’s care with between four and seven changeovers per fortnight. C spent time with the father, three times per week for three hours on each occasion.
The trial was to originally commence in August 2015 but it was unable to begin due to competing priorities in the court calendar. At that time the father sought a change in the then current interim parenting arrangements to significantly reduce the amount of time the children would spend with their mother each week. The Court made an order that the father was to file an Application in a Case if he sought to change the then current interim parenting arrangements for the children but no such application was filed.
The current interim parenting arrangements continued until 27 October 2015 when the father withheld the children from the mother when they were due to be returned to her care. The father says that B had made disclosures about sexual abuse in the mother’s household. The father had also made observations of what he believed to be a concerning pattern of bruising on C that gave rise to a concern that the children were being exposed to an unacceptable risk of harm in the care of the mother.
The father took B to The Children’s Hospital to have him medically examined after he allegedly made the disclosure. He also took C to the hospital after he made the observations about the skin colouration he believed was bruising on her inner thighs.
Although the father did not refer to it in his affidavit in support of the interim orders, he had also made a recording of a conversation with B which he told police was made shortly after B’s initial disclosure. The independent children’s lawyer (ICL) requested that the father produce the recording, which he did and it was tendered in evidence and played. The ICL asked some short questions in cross-examination of the father.
The children did not see or have any communication with their mother for the following six weeks.
On 9 November 2015 the father filed an Application in a Case seeking on an interim basis that he have sole parental responsibility for the children, that they live with him and spend time with the mother on a supervised basis at a contact centre for two hours a fortnight. In her Response, the mother sought that she have sole parental responsibility for the children, that they live with her and that they spend supervised time with the father each alternate weekend for a period of three hours.
For the reasons given in my judgment published on 14 January 2016, on 11 December 2015 I made short term orders suspending the children’s time with the father until the father’s application could be completed, which was to occur on 14 January 2016.
Two days prior to the adjourned date the father filed an Application in the Case that I be recused from further hearing of the matter, including the completion of the application for interim orders on 14 January 2016 and the trial commencing 22 February 2016.
The application
The father’s application is based upon the contention that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the interim application on 14 January 2016, and the trial commencing 22 February 2016 on the basis that I had not acted impartially in the conduct of the proceedings on 11 December 2015.
According to the written outline of submissions the alleged lack of impartiality was said to have been constituted by not admitting relevant evidence, forming a view of the evidence adverse to the father, clearly criticising the father, failing to afford the father procedural fairness, failing to permit counsel to address on a relevant issue and in making the interim orders that were made. The application was opposed by the ICL and the mother.
The Law & Discussion
In Ebner v Official Trustee in Bankruptcy[2], the plurality of the High Court (Gleeson CJ, Gummow and Hayne JJ) set out the test for disqualification:
[2] [2000] HCA 63; 205 CLR 337
[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
In Minister for Immigration &Multicultural Affairs v Jia,[3] Gleeson CJ and Gummow J said “[t]he question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.”
In Johnson v Johnson[4], the plurality observed:
[11] It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
…
[13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation.
[3] [2001] HCA 17 at [71].
[4] [2000] HCA 48; 201 CLR 488 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
In Strahan & Strahan (Disqualification)[5], the Full Court stated (at [5]-[6]):
In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. This point was firmly made by Mason J in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342. Given the importance of the proposition, and the fact that Strickland J cited it in his reasons, we propose to set out what Mason J said at 352:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
[5] [2009] FamCAFC 204
Counsel for the father relied on decision of the Full Court in Murray & Tomas and Anor[6]. The decision provides a recent example of a disqualification application in parenting proceedings. In that decision, after referring a very considerable number of passages from the trial judge’s Reasons and the terms in which they were expressed, the Court found (at [41]) :
Whilst, in my view, the circumstances of the present application fall short in numerous respects of those there described, in my view, there is nothing expressly stated or implied by the trial Judge’s Reasons which suggests that he retains, or could be expected to retain, the kind of open mind which the test clearly requires. That is to say, his Honour could not be expected, having regard to what he has said, and the terms in which he has said it, in his Judgment of 2 June 2010, to be neutral in the legal sense. I’m satisfied that the first step requirement of the recusal test has been satisfied.
[6][2011] FamCAFC 81
It is clear that “each case must be determined by reference to its particular circumstances”.[7]
[7] Livesey v New South Wales Bar Association [1983] HCA 17 at [18].
The context of the proceedings
The context of the proceedings is an important element when determining a recusal application. This application is made in the particular context of child related proceedings. Orders concerning parental responsibility and with whom a child will live and spend time are parenting orders which are determined in accordance with provisions of Pt VII of the Act. Under s 60CA of the Act, “in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”. In deciding the parenting arrangements which are in the best interests of a particular child the Court is required to consider a series of identified principles, objects and considerations.
The principles for conducting child related proceedings, which includes applications for parenting orders, are set out in Div 12A of Pt VII. Relevantly, that Division includes the following:
69ZR Power to make determinations, findings and orders at any stage of proceedings
(1) If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c) make an order in relation to an issue arising out of the proceedings.
Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2) Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3) To avoid doubt, a judge, Judicial Registrar, Registrar or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
In Aligante & Waugh(No 2)[8], after considering the Explanatory Memorandum, Watts J stated the following concerning s 69ZR:
40. Section 69ZR(1) FLA envisages that before making final orders, a court may find a fact or determine a matter. The section would have no meaning if what was being referred to was the determination of uncontroversial facts or matters. The word “fact” or “matter” must, at least, include a fact or matter disputed between the parties.
41. The work that s 69ZR FLA does, in Division 12A Part VII FLA, is to free up a trial judge, so that the trial judge can conduct proceedings in a more child focused way. Whilst the features of an adversarial trial are not entirely abandoned, and procedural fairness is still a touchstone, there is flexibility in the judge controlled process created by the Division. That flexibility allows a judge, without having to fear a disqualification application based on pre-judgment, to make findings about disputed facts and to determine issues, if the judge forms the opinion that it is in the child’s best interests to conduct the hearing in that manner.
[8] [2010] FamCA 554.
What is said might lead to deciding the case other than on its legal and factual merits?
The contention that my alleged failure to admit relevant evidence set out in the father’s written outline of argument was not pursued in the oral application for recusal.
The oral application focused in particular on findings adverse to the father, which were contained in paragraphs 52, 55, 58, 61, 81 and 82 of the judgement delivered on 14 January 2016.
Paragraph 52 says:
Although the letter from the father’s solicitor of 29 October 2015 asserts that the child had made similar disclosures to the doctor at the hospital and the father also asserts this in his affidavit, there is no record of such a disclosure having been made. I am of the view that had the child made this complaint to the examining doctor in these circumstances, it would be expected to be recorded in the discharge summary.
In paragraph 55 I said “I am of the view that the recording with which the father relies upon as being virtually contemporaneous with the original disclosure of its nature is highly unreliable.”
In paragraph 58 I said:
In my view, an inference may arise on the father’s evidence alone that the recording may have been made by the father after the child failed to disclose anything at the two JIRT interviews. Police records record that “at the conclusion of the [second JIRT] interview, it was explained to [Mr Parsons] that due to the lack of evidence, there may not have been anything that happened. It was also explained that investigators would speak with the mother of the children in an attempt to establish the identity of “[Q]”. With the lack of disclosure, it appeared that [Mr Parsons] was disappointed that his son did not disclose any abuse at his mother’s residence”.
In paragraph 61 I said:
The father’s case that the mother does have an associate called [Q], depends to a very large extent upon the disclosures said to have been made by the child to the father and the paternal grandmother on 25 October 2015, that a person named [Q] in the maternal home has touched each of the children on the genitals in the course of them sleeping together in the mother’s bed at her home. For the reasons given, I have significant concerns about the alleged disclosure made by the child about the actions of the person, [Q]. [B] did not disclose any untoward action by [Q] to police during either interview and in the conversation between the father and [B] recorded by him it is the father who introduces the person named [Q], to the child.
Paragraphs 81 and 82 of the judgment are as follows:
In my view, greater concerns arise about risk to the children’s emotional wellbeing from the father withholding the children from their mother on the basis of matters which are highly disputed between the parties. As previously indicated, it is the mother’s position that the circumstances in which [B] came to originally live with his father in September or October 2013 are not agreed. It is the mother’s position that the father withheld the child who was 18 months old from her at this time. The mother says that she did not see [B] for two and half weeks following this incident and this did not occur until she commenced proceedings.
Only two months later, rather than file an Application in a Case as ordered, the father simply retained the children. He did not file an Application in a Case until almost two weeks later and retained the children contrary to the interim orders in the meantime. The day after the father filed his Application in a Case, the mother was advised by Centrelink that that agency was aware the children were no longer in her care. It appears that the father advised Centrelink of the children’s circumstances prior to filing this application for a change in orders. As a result of the father’s actions the children spent no time with their mother and did not communicate with her for six weeks.
In each of these paragraphs, I am assessing the father’s general contention in the interim parenting proceedings that the circumstances surrounding the disclosures made by B and observations of C on 27 to 28 October 2015 give rise to an unacceptable risk of harm in the care of the mother. In the course of that judgement I made reference to cases such as SS & AH[9], George &George[10] and Deiter & Deiter[11] which deal with a consideration of disputed facts, especially those which relate to an assessment of risk in interim hearings. In “weigh[ing] the probabilities of competing claims and the likely impact on children”[12] I regarded that the father’s assertion that the child had made disclosures of inappropriate sexual behaviour to the doctor at the hospital, and the virtually contemporaneous recording made by the father of B’s disclosure, and the nomination of the wrongdoer in the mother’s home as “[Q]” as significant elements of the alleged risk of harm in these circumstances. In paragraphs 52, 55, 58 and 61 I express an opinion about the “likelihood of the occurrence of harmful events”[13] having regard to these particular elements, leading to my conclusion that on the basis of the material available to me that I was of the opinion that there was not an unacceptable risk of harm in the maternal household.
[9] [2010] FamCAFC 13.
[10] [2013] FamCAFC 182.
[11] [2011] FamCAFC 82.
[12] SS & AH [2010] FamCAFC 13 at [100].
[13]Deiter & Deiter [2011] FamCAFC 82 at [61].
In the course of submissions on behalf of the father it was said that there was no criticism in that finding that there was insufficient evidence to be satisfied that there was an unacceptable risk. The cause for concern, which is said to give rise to the reasonable apprehension of bias is the chain of reasoning that lead to that finding and in the result, being the suspension of orders providing for the children to spend time with their father.
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.
The second step – the logical connection between the matters identified and the feared deviation from deciding the case on its merits
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.
So far as the final proceedings themselves are concerned, the disclosure concerning possible sexual misconduct in the home of the mother is one small matter to be considered in the proceedings. It is to be remembered there are a large number of allegations made by both parents of suspected abuse in each of the other parent’s homes. However, these matters may very well not be determinative of the outcome of the final parenting proceedings when so many considerations relating to the best interests of the children must be taken into account. It is also possible that while the account of one parent may be preferred over another with respect to a particular incident it does not necessarily follow that this parent’s evidence will be preferred in general. It also may be that other relevant factors come to light which were not known on 11 December in relation to the October 2015 allegation.
In my view, in these circumstances a determination of the particular matters being considered on 11 December which involved an assessment of the evidence known at the time does not give rise to a fair minded lay observer concluding that I will determine the competing parenting applications other than on their merits.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 19 February 2016.
Legal Associate:
Date: 19 February 2016
0
11
0