Philidor & Philidor (No 3)
[2023] FedCFamC1F 1131
•19 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Philidor & Philidor (No 3) [2023] FedCFamC1F 1131
File number(s): MLC 9942 of 2020 Judgment of: MCNAB J Date of judgment: 19 December 2023 Catchwords: FAMILY LAW – PARENTING – Application for recusal on the basis of apprehension of bias – where the application is dismissed – where the Full Court has dismissed grounds of appeal alleging a reasonable apprehension of bias regarding the conduct of a hearing that resulted in interim parenting orders being made - where the applicant now seeks orders that the trial judge recuse himself on the basis of findings made for the purposes of making interim orders- where there has been delay in making the application – where the application is dismissed. Legislation: Family Law Act 1975 (Cth) ss 62B, 65DA, 69ZR, 102NA, 121.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 10.14(b)
Cases cited: Ebner v the Official Trustee in Bankruptcy [2000] 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Pearlman v WA A/Information Commissioner [2019] WASC 257
Philidor & Philidor [2023] FedCFamC1A 192
Re Andrew [1996] FamCA 43; (1996) FLC 92-692
Re JRL; Ex parte CJL (1986) 161 CLR 342
Vakauta v Kelly (1989) 167 CLR 568
Division: Division 1 First Instance Number of paragraphs: 22 Date of last submission/s: 19 December 2023 Date of hearing: 19 December 2023 Place: Melbourne Counsel for the Applicant: Ms B Kildea Solicitor for the Applicant: Milton Lawyers Counsel for the Respondent: Mr R Hamilton Solicitor for the Respondent: Nevett Ford Counsel for the Independent Children's Lawyer: Ms P Treyvaud Solicitor for the Independent Children's Lawyer: Walters Family Lawyers ORDERS
MLC 9942 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PHILIDOR
Applicant
AND: MR PHILIDOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
19 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application in a proceeding filed 7 December 2023 be dismissed.
AND UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) applies to any cross-examination occurring in the proceedings on or after 11 September 2019;
and further noting that the parties have been advised by the court:
(a)that pursuant to those requirements, neither parent may cross-examine the other parent personally;
(b)that pursuant to those requirements, any cross-examination of either parent may only be conducted by a legal practitioner acting on behalf of the other party;
(c)as to the availability of the Commonwealth Family Violence and Cross‑Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
(d)that a copy of these orders will be provided by the court to Victoria Legal Aid which administers the said scheme.
2.By 4.00 pm on 19 December 2023, the mother provide to the Independent Children's Lawyer (“ICL”) the following:
(a)child’s daycare/kindergarten;
(b)hospital/s attended by the mother since July 2023;
(c)any mental health practitioner attended by the mother;
(d)the Wellness program attended by the mother; and
(e)the mother’s general practitioner.
3.The ICL not disclose the details of the subpoena to the father and the father’s solicitors be restrained from disclosing details of the parties subpoenaed or their location to the father.
4.The mother file and serve any further affidavit/s upon which she intends to rely by 4.00 pm on 10 January 2024.
5.The father file and serve any further affidavit/s upon which he intends to rely by 4.00 pm on 18 January 2024.
6.The father’s costs of this day be reserved, including whether those costs or a portion of them be paid by the solicitor for the mother, be reserved.
AND THE COURT NOTES THAT:
A.The Respondent father has provided an oral undertaking to the Court this day as follows:
(a)not to take any steps to view either on the court portal or in person any subpoenas filed by the ICL in the proceedings from this day.
B.The allocation of the legal representative for the mother be undertaken as a matter of urgency and the mother’s address not to be disclosed to any person other than the legal representative appointed for the mother.
C.The matter remains listed before the Hon. Justice McNab for final hearing (part-heard) on 24 January 2024 at 10.00 am for 2 days.
D.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross‑examine the other party/parties.
F.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Delivered Ex-Tempore
(Revised from Transcript)McNab J:
I have before me an Application in a Case which was filed on 7 December 2023 which seeks orders that:
(1)all relevant times for the filing and service be abridged and this application be listed with urgency;
(2)this application and any further applications be listed before and heard by an appropriate judicial officer, other than the Honourable McNab J.
(3)the orders made 27 June 2023 be discharged or in the alternative, suspended;
(4)at an appropriate time the mother attend upon the single expert, Dr D, for further assessment and report as to her current psychiatric diagnosis, functioning prognosis, and likely impact, (including degree) of those matters upon her parenting capacity together with recommendations as to the same, inclusive of the impact of the orders made 27 June 2023 or any similar orders.
On 27 June 2023, the Court made interim orders in this matter following a nine-day hearing. Those orders provided in substance a regime for allowing the father to spend supervised time with the child X born 2019. The orders provided for the Child Expert to explain to the child that he would be spending time with the father and the orders anticipated that a further Family Report would be obtained following the child spending supervised time for an interim period prior to the resumption of the hearing. It was anticipated by those orders that the Court would be informed by evidence of how the child and mother coped with the child spending supervised time with the father. Those orders were the subject of an appeal filed on 24 July 2023 and an Amended Notice of Appeal filed on 2 October 2023. The Full Court dismissed that appeal by orders and judgment made on 15 November 2023.
The application before me today proceeds principally on the basis that the terms of the judgment made on 27 June 2023 gives rise to an apprehension of bias such that I should recuse myself from further hearing of the matter. In particular it is submitted that because I made findings of fact about risk to the child, I have made credit findings that preclude me from further hearing the matter because of a reasonable apprehension of bias. The submissions make reference to the test of a fair-minded lay observer, as set out in Ebner v the Official Trustee in Bankruptcy [2000] 205 CLR 337.
The written submissions in support of this application are in large part identical to the grounds raised before the Court of Appeal in relation to apprehended bias although, in these submissions, there is reference to the effect of the reasons for judgment. The judgment of the Full Court deals directly with an application for recusal based on apprehended bias arising from the conduct of the hearing at [21] - [50]; in relation to the conduct of the hearing [51] - [56] of the judgment deals with the ground that I ought not continue to hear the case based on credit findings made in the judgment.
The applicant relies on an affidavit affirmed on 7 December 2023 and, in particular, in relation to this ground at [37] and following she cites examples of conduct which was said to give rise to a reasonable apprehension of bias. Those grounds were rejected by the Full Court. At [48] the Full Court, Austin, Schonell & Strum JJ, stated:
48.Having read the transcript as a whole, the evidence, the reasons for judgment, and considered the submissions of the mother, we are not satisfied that the rational, not unduly suspicious, hypothetical observer would find that any of the examples relied upon by the mother, either individually or cumulatively, ‘might lead a judge to decide a case other than on its legal and factual merits’.[1]
[1]Philidor & Philidor [2023] FedCFamC1A 192 (“Philidor”).
After citing Ebner, the Full Court found that the first limb of the test in Ebner was not established.
At [49] the Full Court held that there is no merit to the first part of Ground 1.
In respect of the submission that I should be enjoined from further hearing the matter based on credit findings, the Full Court at [51] - [55] considers those grounds. By way of summary, the Full Court stated at [51]:
51.The second part of Ground 1 contends that as a consequence of the making of adverse credit findings, the primary judge should be recused from further hearing the matter. The mother submitted that where there will be a further hearing which will likely involve further evidence from the mother and her parents, ‘[a] fair-minded observer, in the circumstances of this case would be of the view that his Honour would be disinclined to believe the mother, or either of her parents’ evidence and that she could not obtain a fair trial before his Honour’ …[2]
[2]Philidor.
That submission is very much in the same terms as [10] of the applicant’s written submissions in support of this application filed 12 December 2023. The Full Court then goes on:
52.The mother submitted that the primary judge turned his mind to this consideration in circumstances where his Honour said in his reasons, ‘[t]he fact that I have made findings of fact and then made interim orders does not disqualify me from continuing to hear this matter and make final orders if the parties cannot agree on final orders (at [14]).[3]
[3]Philidor.
At [53], the Full Court makes reference to the provisions of section 69ZR of the Family Law Act 1975 (Cth) (“the Act”). That section provides:
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 person 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.
At [54] the Full Court states:
54.That section makes plain that the mere fact of making findings at an interim hearing does not in and of itself preclude a judge from further hearing the matter. [4]
[4]Philidor.
And then, importantly, the Full Court states:
55.The ground, however, suffers from a more fundamental difficulty. As the proceedings are part heard, any application for recusal must be made to the primary judge in the first instance, not this Court.[5]
[5]Philidor.
The applicant relies on that paragraph as a basis for making this application. In considering the application, I have regard to the relevant settled authority in relation to reasonable apprehension of bias, which was referred to by the Full Court at [17] in the following terms:
17.The apprehended bias test requires the establishment of two limbs. Firstly, an identification of what it is said might lead the judge to decide the particular case other than on its merits and secondly, the articulation of the logical connection between the first matter and the feared deviation from the course of deciding the case on its merits (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”)).[6]
[6]Philidor.
In the course of discussion, I referred to the decision of the majority in Johnson v Johnson (2000) 201 CLR 488 at [11] – [13], which I will not set out in full but are well known and which were, in fact, referred to in part by the Full Court. Importantly, the test for bias involves a hypothetical, fair minded lay observer. The observer 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[7]
but is said to have a vested understanding that judicial officers are bound by statutory and ethical obligations to act in a fair-minded manner and decide matters according to merit based on the evidence before the Court.[8]
[7]Johnson v Johnson (2000) 201 CLR 488 at [13].
[8]Johnson v Johnson (2000) 201 CLR 488 at [12].
The test is an objective assessment, and the subjective assessment of the applicant is not relevant. So, putting it plainly, whilst the applicant may have strong views about my continued involvement or any continued involvement by me in this hearing, those views are not relevant.[9]
[9]Pearlman v WA A/Information Commissioner [2019] WASC 257 at [131].
In Re JRL; Ex parte CJL (1986) 161 CLR 342 at page 352, Mason J observed:
… 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.’ 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.
(Citations Omitted).
In considering this matter, and having regard to the provisions of s 69ZR(3) of the Act, I do not believe that I am bound to recuse myself from further hearing the matter. The fact that there have been findings where I have preferred the evidence of the father against that of the mother and the grandparents in relation to the extent and effect of family violence does not mean that I am foreclosed from observing my statutory and ethical obligations to act in accordance with my oath of office to decide matters according to merit based on the evidence before the Court, or on evidence that is received at the resumption of the hearing in relation to the progress of the current orders or any further orders, whether final or interim.
Of course, there is a discretion for me to recuse myself if I was to form the view that I could not continue to hear the case in an impartial way, but I do not think that this is such a case. The concerns that the mother has that I have made findings of fact which would lead an ordinary person to apprehend that I was biased has been expressly rejected by the Full Court. The concerns that the mother has in relation to the findings that I made regarding medical evidence before the Court have been expressly rejected by the Full Court, and in that regard, I refer to the consideration of the Full Court under Ground 3 from [63] - [73] of the Full Court’s decision. The submission that I have misunderstood or misconstrued the mother’s case in relation to Re Andrew[10] and misconstrued or misunderstood the medical evidence before the Court, which comprised Ground 4 and Ground 5 of the appeal, were found to have no merit and, indeed, at [83] of the decision of the Full Court, the Full Court was moved to comment:
83.The reasons disclose the primary judge carefully addressed the varying diagnoses of the mother, the impact time with the father would have on the mother, whether it was in the child’s best interests to have a relationship with the father and the capacity of the mother to continue as the child’s primary carer if time were ordered.[11]
[10]Re Andrew [1996] FamCA 43; (1996) FLC 92-692.
[11]Philidor.
So, to the extent that the application relied upon a ground that my conduct in relation to the trial led to a reasonable apprehension of bias, that ground has been expressly rejected by the Full Court. As to the basis of the application that the findings contained in the judgment and the terms of the orders preclude me from impartially determining the matter going as it proceeds, I find that that has not been established to the requisite level, that is, firmly established; and in that regard, I refer to the passage from Re JRL; Ex parte CJL (1986) 161 CLR 342 that I cited earlier. I must now determine the evidence placed before the Court regarding events subsequent to the making of interim orders and consider what further orders ought to be made having regard to that evidence considered against the objects of the Act. The Full Court expressly rejected submissions that I had ignored evidence of the mother or her parents or misconstrued or misunderstood the medical and other expert evidence: see [78], [79], [83] and [85] of Philidor. I presume that the hypothetical lay observer would consider that I would conduct myself similarly for the balance of the proceeding.
There has been delay in making an application for recusal. As to the matters raised by the mother’s submissions regarding the conduct of the trial, they should have been raised at the time. A party who believes that comments or questioning by a judicial officer in the course of a hearing may give rise to an appearance of prejudgment should not let that pass without objection. Standing by and waiting until the outcome is known will usually amount to a waiver of the right to object.[12]
[12]Vakauta v Kelly (1989) 167 CLR 568 (Brennan, Deane and Gaudron JJ) at p 572.
As to the delay since the judgement was published on 27 June 2023, no recusal application was made notwithstanding the matter was mentioned on at least two occasions since that date and prior to the appeal being heard and determined. That delay causes prejudice to the father and was raised as a ground of opposition during this application.
The application that I recuse myself is dismissed for these reasons.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for the Ex‑Tempore Judgment of the Honourable Justice McNab. Associate:
Dated: 18 January 2024
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