Polson and Polson

[2017] FamCA 77

FAMILY COURT OF AUSTRALIA

POLSON & POLSON [2017] FamCA 77

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing – where signed Minute of Consent Orders were proposed – where it became clear that the parties were not, in fact, as one in respect of the basis on which the Orders were sought to be made – where the proposed Orders were not made by the Court – where Counsel for the Applicant made an oral application seeking the recusal of the trial Judge on the basis of apprehended bias – where Counsel for the Respondent supported the application –– Application dismissed.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson & Johnson (2000) 201 CLR 488

APPLICANT: Ms Polson

RESPONDENT: Mr Polson

INDEPENDENT CHILDREN’S LAWYER: Shila Batenburg & Associates

FILE NUMBER: BRC 3300 of 2014

DATE DELIVERED: 14 February 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 14 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cullen of Counsel

SOLICITOR FOR THE APPLICANT: Pippa Colman & Associates

COUNSEL FOR THE RESPONDENT: Mr Page of Queen's Counsel and Mr Taylor of Counsel

SOLICITOR FOR THE RESPONDENT: PD Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Sweetapple of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Shila Batenburg & Associates

Orders

IT IS ORDERED THAT

1. The oral Application made by Counsel for the Applicant that the trial Judge recuse herself from further conduct of the trial is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Polson & Polson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3300 of 2014

Ms Polson

Applicant

And

Mr Polson

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In this matter, Ms Cullen, who appears on behalf of the Applicant Mother, makes application that I recuse myself from further conduct of this trial.  Her submissions are supported by Mr Page QC, who appears on behalf of the father, and, I think, tentatively supported by Ms Sweetapple, who appears for the Independent Children’s Lawyer. 

2. The circumstances in which Ms Cullen’s Application – and in saying that, I am simply referring in short form to the Application she prosecutes on behalf of her client – is made, is obvious from regard to the transcript of proceedings which predate it. 

3. In broad summary, this matter was listed to commence before me yesterday and listed for five days.  It has been designated Magellan.  That arises, in broad summary, as a consequence of the evidence about assertions and allegations that one of the parties’ children in particular (B) was subjected to sexual abuse by her father.

4. A number of Orders have been made since the parties separated towards the end of 2013. 

5. The reality for B is that she has not spent time with her father since the time of her parents’ separation and her siblings have spent only supervised time on various occasions. 

6. During the course of yesterday, I was informed by the parties on a number of occasions that they were engaged in discussions with the hoped-for intention of arriving at resolution of this matter.

7. It can only be obvious from that information that all parties intended, at all times, that any such terms of agreement be formalised and provided to the Court in the form of a proposed Minute of Order - which the Court would then be invited to make with the consent of each of the parties and the Independent Children’s Lawyer.

8. When I resumed the hearing this morning, the parties provided to me terms of a Minute of Order which they proposed the Court make by consent. 

9. I do not intend, in these short Reasons, to repeat the discussions and discourse between myself and Counsel for each of the parties.  That is obviously recorded in the transcript.  It will be obvious from regard to the transcript that, after I made inquiry of the parties in an attempt to understand the terms of the Orders and to confirm that they were as one in their understanding of the terms of the proposed order, they were not, in fact, as one in terms of their understanding of the premise upon which they were together approaching the Court, seeking the exercise of discretion and the making of Orders by consent on a final basis.

10. It is clear that, in order to make such an Order, the Court must exercise its own discretion and must be positively persuaded that the terms of the proposed Minute of Order are orders which are in the children’s best interests, having regard to the relevant statutory considerations, including those considerations particularised in s 60CC of the Act, as they are applicable in the circumstances of the evidence before the Court. 

11. It is clear that subsequent inquiry made by the Independent Children’s Lawyer revealed that one of the terms of the proposed Minute of Order is now incapable of being put into effect - given what appears to be a fundamental difference between the parties. 

12. Consequently, it became clear that the parties were not, in fact, as one in terms of the orders sought to be made, because it seemed that each proceeded on a premise which would have seen the involvement of Ms C, in circumstances where, as a consequence of their ongoing fundamental disagreement, she is no longer prepared to be involved.

13. It is against that background, then, that the trial proceeds before me, and it is against that background, then, that the current Application is made. 

14. There is no dispute as to the relevant test to be applied.  It has been clearly annunciated in decisions such as Johnson & Johnson (2000) 201 CLR 488 and Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337. It is clear that the test to be applied in determining an application for recusal on the basis of appearance of bias - as opposed to actual bias - is whether a fair-minded lay observer might reasonably apprehend that a Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide.

15. As has been made clear by the plurality in Ebner[1], the application of the apprehension of bias principle requires two steps.  The first of these is the identification of what it is said might lead the Judge to decide a case other than on its legal and factual merits.  The second is that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. 

    [1]          Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337

16. As I understood the submissions made by Ms Cullen, they were, in essence, that the issue that remains to be decided – or, at least, one of the issues – is whether there remains a necessity in this case for ongoing supervision of the children’s time with their father.  As I understood the submissions made generally by Counsel, they were to the effect that there may be a perceived view that the mother’s proposal that the Court this morning make final orders by consent - which provided for unsupervised time within the framework of those orders - was in some way inconsistent with, or amounted to a deviation from, a position which now continues to be maintained:  namely, that ongoing supervision over the children’s time with their father is something which is in their best interests.

17. As I pointed out to Counsel during the course of their submissions, the Court is, in giving effect to the principles set out in s 69NZ of the Family Law Act 1975 (Cth), obligated by s 69ZQ(1)(aa) to ask each party to proceedings whether the party considers the child concerned has been, or is at risk of being, subjected to or exposed to abuse, neglect or family violence.

18. In this case, the allegations are contained within the case advanced by the mother, who gives evidence of B’s comments to her on a particular occasion, her observations of the children’s behaviour and other such matters.  

19. It seems not to be contested that the circumstances of this morning’s joint approach to the Court by the parties involved actions in open Court in respect of which any party would be at liberty to give evidence in any subsequent proceeding.

20. They are not, therefore, actions encompassed by s 131(1) of the Evidence Act 1995 (Cth), which prohibits the giving of evidence of settlement negotiations. In any event, subsections (2)(b), (c) and (g) of s 131 of the Evidence Act 1995 (Cth) contain a number of particularised circumstances in which s 131(1) of the Evidence Act 1995 (Cth) may be found not to apply and, thus, not to prohibit the giving of such evidence.

21. As I have already said, it can only have been known to the parties, during the course of their negotiations yesterday, that the end position would be an approach to the Court to seek the making of orders by consent - a process which, of itself, inherently requires the exercise of discretion.

22. Despite the submissions made by Counsel for the parties, I decline to recuse myself from further conduct of the proceeding. 

23. I am not persuaded that there has been discharge of the two limbs or steps annunciated by the plurality in Ebner & Official Trustee in Bankruptcy[2]. I take into account, in particular, the admonition contained in authorities such as Johnson & Johnson[3] that one of the overarching obligations of any court is to sit to hear and determine the allegations and cases listed before it. 

    [2] (2000) 205 CLR 337.

    [3] (2000) 201 CLR 488.

24. For those reasons, in the circumstances of this particular application, taking into account the admissibility of a recounting of those actions which occurred in open Court, the requirement to inquire of parties in the manner prescribed by s 69ZQ(1)(aa) of the Act and the obligation to conduct proceedings by way of active direction, control and management, I decline the application.

I certify that the preceding twenty-four(24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 14 February 2017.

Associate:                 

Date:    14 February 2017