Q & L

[2006] FamCA 1341

[2006] FamCA 1341

JFQUACHC

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 145 of 2005
File No. SYF 2724 of 2001

IN THE MATTER OF:

Q

Appellant/Mother

- and -

L

Respondent/Father

REASONS FOR JUDGMENT
Published: 30 November 2006

BEFORE:  Bryant CJ, Kay & Coleman JJ
DATE OF HEARING:        3^rd day of May 2006

APPEARANCES:               Mr M of Counsel, (instructed by A Z & Associates, NSW ) appeared on behalf of the appellant mother.

The respondent father (address for service: PO Box  NSW) appeared on his own behalf.

Mr H, solicitor (instructed by S M, Sydney NSW 2000) appeared on behalf of the children.

Name of Appeal  Q & L

Appeal Number  EA 145 of 2005

Date of Appeal hearing                   3 May 2006

Reasons for Judgment  Published 30 November 2006

Coram  Bryant CJ,  Kay & Coleman JJ

Catchwords:   FAMILY LAW – DISQUALIFICATION OF TRIAL JUDGE - Appeal against trial Judge’s refusal of disqualification application during course of trial.
Principles, relevant to application for disqualification based on apprehended rather than actual bias discussed.

Johnson v Johnson (2000) 201 CLR 488
JRL: Ex parte CJL (1986) 161 CLR 342

Keating v Morris (BC 200506423) applied.

Galea v Galea (1990) 19 NSWLR 263
Vakauta v Kelly (1989) 167 CLR 568 and F, AG and S, LL (Apprehension of bias) (2005) FLC 93-210 discussed.

Appeal dismissed. Court not persuaded that trial Judge erred in concluding that “fair-minded lay observer” test not satisfied by appellant.

1. On Wednesday 3 May 2006 the mother’s appeal against the trial Judge’s refusal of an application for disqualification during the course of the trial of proceedings between the parties under Part VII of the Family Law Act 1975 (Cth) (“the Act”) on 16 December 2005, was heard and dismissed. We now publish our reasons for so deciding.

BACKGROUND

1. The parties married in July 1990 and separated in 2000.

2. There were two children of the marriage who were, at the time of hearing of the appeal, 13 ½ and 12 years of age.  The children had at all material times lived with the mother.  The father had supervised contact with the children subsequent to separation but had not had contact with the children on any basis for some years.

THE REASONS FOR JUDGMENT OF THE TRIAL JUDGE

1. The trial Judge recorded that the application for disqualification made to him by counsel for the mother relied upon “apprehended rather than an actual bias” the test in relation to which was “whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions I am charged to decide” (judgment, paragraph 1).

2. The trial Judge recorded his perception that counsel was submitting that “this client is unhappy with the course of proceedings and in particular certain decisions I have made” (judgment, paragraph 2).

3. The complaints made on behalf of the mother were regarded by his Honour as falling “within two categories” the first of which was “a simplistic belief that the procedures of the Court have been carried out in a way that may have disadvantaged her, despite the fact that they were the ordinary procedures in the Court”, the second “relating to rulings I have made on evidence which she feels might disadvantage her” (judgment, paragraph 2).

4. His Honour said of the counsel’s submissions “that mostly they were matters that were unbecoming of a barrister to put before the Court” (judgment, paragraph 3).  We record at the outset that nothing emerging from the transcript of the proceedings establishes that counsel for the mother, who also appeared for the mother on the hearing of the appeal, then, or in the conduct of the appeal before this Court, did other than act on instructions given to him by the mother. We are unable to discern any conduct by counsel that justified trial Judge’s stringent criticism of him.

5. The trial Judge observed that the client being “dissatisfied with rulings is not a basis for suggesting that those rulings could reasonably create an apprehension of bias”, such rulings, whether “correct or not”, not being “based upon bias” although the rulings themselves were potentially relevant in the event of an appeal against the outcome of the proceedings (judgment, paragraph 3).

6. His Honour concluded that the “accumulative effect” of the complaints agitated by counsel for the mother could not “properly show or reasonably be demonstrated to be something a fair-minded lay observer might apprehend as a lack of impartiality and prejudice” (judgment, paragraph 4). 

10.  His Honour thus declined to disqualify himself from further hearing the proceedings which were part heard before him.

THE GROUNDS OF APPEAL

11.  Under the heading “Overview” (Appellant’s Summary of Argument, page 4) counsel for the mother asserted that the trial Judge had erred:

… by not finding that a fair minded lay observer might reasonably apprehend that the Court might not bring an impartial and unprejudiced mind to the resolution of the proceedings.

That was alleged to have occurred by reason of:

… conduct by His Honour during the trial which could reasonably have been construed as :

a.Conferring upon the Respondent, a litigant in person, a positive advantage over the Appellant Mother;

b.Having predetermined a number of important issues raised in the proceedings against the Appellant; (Appellant’s Summary of Argument, page 4)

12.  It was further submitted that the trial Judge ought to have disqualified himself after “having indicated that he was personally affronted by the Application for disqualification”. 

13.  A further complaint was that the trial Judge failed to provide “adequate reasons for his decision” having not addressed “the grounds of the application other than in a very general way”, having not addressed “the various authorities provided to His Honour in support of the Application”, and having “incorrectly classified the grounds of the Application for disqualification as grounds for an Appeal only” (Appellant’s Summary of Argument, page 4).

14.  The Summary of Argument then proceeded to deal with the particular grounds of appeal by which the “Overview” complaints were sought to be advanced.  We shall consider the grounds of appeal in the order in which counsel for the mother agitated them before us, rather than in numerical sequence.

THE RELEVANT LAW

15.  The law which governs this issue is not in doubt. In Livesey v NSW Bar Association (1983)151 CLR 288 the High Court said at 293-4:

… a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.

16.  In Johnson v Johnson (2000) 201 CLR 488, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, under the heading “The governing principles”, discussed the grounds upon which a judge should accede to a disqualification application in circumstances not asserting actual bias.

17.   Their Honours re-affirmed at 492 that:

… the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … 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. (emphasis added)

18.  Their Honours recorded at 493 that:

two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial” [Vakauta v Kelly (1989) 167 CLR 568].

19.  Their Honours added at 493 that:

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.  At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. (footnotes omitted) 

20.  The judgment of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 would appear to have particular relevance to the facts of this case. The High Court does not appear to have subsequently departed from anything there said. Callinan J in Johnson’s case expressly referred, with obvious agreement, to the judgment, in which Mason J said at 352:

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.

21.  In the recent unreported decision of Keating v Morris (BC200506423) (delivered on 1 September 2005), Moynihan J of the Supreme Court of Queensland referred to the test which governs disqualification applications.  In the course of his judgment Moynihan J cited the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, wherein their Honours said

[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), … the governing principle is (subject to qualifications not presently relevant) ... 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. …

[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.

22.  Moynihan J suggested that the test:

[43] … comes down to whether the court is satisfied that the circumstances are such as to give rise, in the mind of a fair minded and informed member of the public, or party, to a reasonable apprehension that the decision maker’s mind is so prejudiced by conclusions already formed that the conclusion will not be altered irrespective of the evidence or arguments put forward.

and that:

[44] The relevant consideration is that the decision will not be seen to be impartial rather than that it will be adverse to a party.

GROUNDS 6 AND 7

23.  Grounds 6 and 7 provided:

6.   His Honour erred in that He ought to have found that a fair minded lay observer might reasonably apprehend that His Honour might not bring an impartial and unprejudiced mind to the resolution of the proceedings, having regard to conduct by His Honour that could reasonably have been construed as conferring upon the Respondent Father, a litigant in person, a positive advantage over the Appellant Mother.

7.   His Honour erred in that He ought to have found that a fair minded lay observer might reasonably apprehend that His Honour might not bring an impartial and unprejudiced mind to the resolution of the proceedings, having regard to His numerous interventions during the course of Counsel’s cross examination of the Respondent Father.

24.  In support of these grounds counsel for the mother relied upon a number of particular issues, they being “The Video Tape”, “Interruptions to cross examination and submissions”, “Evidence by telephone”, “Minutes of Amended Orders”, “Child Support Assessment” and “Dr W’s Report”.

25.  Dr W, a child psychiatrist, had prepared an expert’s report in the proceedings.  Prior to the application for disqualification Dr W had not been cross-examined.  Dr W had been shown, and from his report it is clear had viewed, a video tape provided to him by the father.  The video tape, necessarily made years earlier, apparently recorded uneventful periods of contact between the father and the two children.  The status of the video tape assumed significance during the trial and prior to the application for disqualification. 

26.  It was submitted that the trial Judge had suggested “very early in the proceedings” that the father should “edit his video tape down before His Honour would see it” and that his Honour would not view the video tape until it had been “edited”.  Reliance was placed upon the trial Judge’s statement to the father that he “just leave in it the parts that you want me to watch” (Appellant’s Summary of Argument, page 5).

27.  It emerged that the tape which Dr W had seen had been of three hours’ duration.  The father had already edited the original 6 hour tape down to 3 hours prior to Dr W viewing it.  His Honour was clearly suggesting that the father further edit the tape before he would view it.

28.  It was submitted that the “further editing of the tape” had been inappropriate and “unfair” to the mother “particularly as Dr W had had access to the whole of the 3 hours of video tape when preparing his report”.  Before this Court counsel for the mother complained that the trial Judge “would not resile from his suggestion to the Respondent [father] that the tape ought to be edited” (Appellant’s Summary of Argument, page 5).

29.  Having referred to these matters, the sequence of events in relation to which is undoubtedly correct, counsel for the mother submitted that the trial Judge’s:

… suggestion to the Respondent [father] about editing the tape could reasonably be construed as conferring upon the Respondent, a litigant in person, a positive advantage over the Appellant Mother. (Appellant’s Summary of Argument, page 6)

30.  In our view, this complaint has no substance.  Putting to one side what possible weight the tape could have had by virtue of its antiquity, as the trial Judge clearly recognised, the tape was unlikely to have revealed anything adverse to the father’s case.  To the extent that the tapes might have been relevant, their only possible relevance would thus potentially have been to assist the father’s case, although that significance could only be very limited given the time which had elapsed since the tapes were made, during which period the father has had no contact with the children.  It could thus be said that the trial Judge’s suggestion that the father further edit the video tape had the potential to adversely impact upon the father’s case. 

31.  It is to be remembered that nothing said by the trial Judge precluded counsel for the mother from having Dr W view the whole 6 hour tape if he wished him to do so, or any lesser or particular part of the tape.  Dr W had not given evidence when the trial became part heard and was adjourned to a later time for a further three days’ hearing.

32.  Nothing said by the trial Judge precluded counsel for the mother from cross-examining the father on such parts of its six hour total content as he desired.  To the extent that counsel complained, as he did at trial, that he had not had the opportunity to see the tape, that was not of significance given that neither the father nor Dr W, or anyone else whose cross-examination might relevantly include reference to the video tape, had completed his or her evidence, or was otherwise unable to be cross-examined on the contents of the tape.

33.  Regrettably, and perhaps with the benefit of hindsight, the whole question of the video tape can be seen to have assumed disproportionate significance in the proceedings before the trial Judge, but nothing said about the video tape, by way of observation or ruling, was other than reasonably open to the trial Judge in the expeditious conduct of the trial, nor could it have adversely impacted upon the mother’s case. 

34.  Relevantly for present purposes, nothing said by the trial Judge in relation to the video tape could be seen as indicating an absence of an impartial or unprejudiced mind in relation to the issues which the trial Judge was concerned.  Indeed, in our view, if there was any basis for complaint in relation to the video tape, which we do not suggest there was, that was more available to the father than the mother given that the trial Judge made quite clear that he was not interested in looking at more than a small portion of the tape upon which the father relied.

35.  Part of this complaint asserted that the trial Judge impermissibly failed to “address” submissions made by counsel and the authorities provided to him in support of such submissions.  With respect, his Honour was clearly well aware of the test which applied to the issue.  He was not obliged to refer expressly to any submission made by counsel in relation to the matter or to any authority to which counsel for the mother referred him.

36.  To the extent that his Honour made any ruling, that ruling was limited to an indication of what his Honour would choose to view of the video tape.  The rights of both parties to agitate portions of the tape with other witnesses during the remainder of the trial were not thereby impacted. 

37.  Nothing to which we have been referred persuades us that the disqualification application was advanced by reference to the video tape.

38.  So far as “Interruptions to cross examination and submissions” are concerned, the broad thrust of counsel’s submissions before this Court was that such “[i]nterruptions” had been “to the extent that the effectiveness of cross examination was significantly weakened” (Appellant’s Summary of Argument, page 6).

39.  A number of references were made to what were undoubtedly “interruptions” or “interventions” by the trial Judge during the course of the trial before him.  The trial Judge’s interventions were undoubtedly numerous and robust.  The issue however is whether such conduct would give rise to a reasonable apprehension that the trial Judge was bringing a less than impartial and unprejudiced mind to bear on the issues before him.  Relevant in that context, as the authorities make clear, were the issues requiring determination.  The real issues in the case fell within a very narrow compass and, with all due respect to him, had but limited potential to be impacted by any evidence given by the father.  It should be noted, and emerges from a reading of the totality of the transcript of evidence, that the trial Judge was also “vigorous” in his exchanges with the father

40.  It was submitted on behalf of the mother that the trial Judge had impermissibly intervened in the proceedings, reliance being placed upon a judgment of Kirby ACJ (as he then was) in Galea v Galea (1990) 19 NSWLR 263 in which his Honour said at 281:

It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion.

41.  At their highest, in our view the trial Judge’s interventions and interruptions could be seen as criticisms of the conduct of his client’s case by counsel for the mother.  Whether, however, they evidenced “that an opinion has been finally reached which could not be altered by further evidence or argument” is a different issue.

42.  In our view, the requirements of the test propounded by Kirby ACJ are not made out on the facts of this case as they emerge from the transcript of proceedings.  It is to be remembered that the father had only ever had supervised contact with the children, which had ceased at least four years earlier, and faced a Family Report wherein the wishes of the children were clearly revealed as being opposed to contact with their father, they being of an age where those wishes were entitled to substantial weight.

43.  In circumstances where the father was unrepresented, apparently spoke little English, and gave his evidence through an interpreter, the trial Judge was permitted more “vigorous interruption” than might otherwise have been the case. 

44.  Nothing to which we have been referred by counsel for the mother provides any foundation for inferring that the trial Judge had reached a concluded opinion in relation to any issue in the proceedings which was unlikely to be “altered by further evidence or argument” in relation to any issue.  That conclusion is reinforced by the reality that counsel for the mother was unable to suggest any such final or unalterable opinion when invited to do so by this Court. 

45.  It is abundantly clear that the trial Judge had reached a concluded opinion that he would not choose to view more than an edited version of the father’s 3 hour edited video tape. 

46.  His Honour also made clear his concluded opinion that he would not allow certain witnesses to give evidence other than in person, a topic to which we shall shortly turn. 

47.  Beyond those matters, no opinion of the kind described by Kirby ACJ can be suggested, and neither of those is an “opinion” conducive to finding an absence of an impartial or unprejudiced mind.  This challenge thus fails.

GROUND 8

48.  Ground 8 provided:

8.   His Honour erred in that He ought to have found that a fair minded lay observer might reasonably apprehend that His Honour might not bring an impartial and unprejudiced mind to the resolution of the proceedings in that it could reasonably have been construed that he had predetermined a number of important issues raised in the proceedings.

49.  The thrust of this submission was that the trial Judge had “pre-determined a number of important issues raised in the proceedings against the Appellant” (Appellant’s Summary of Argument, page 9).

50.   It was submitted that the circumstances in which the trial Judge rejected the application on behalf of the mother that her “elderly mother CT” and another witness LK “give evidence either by telephone or video link with the Family Court at Melbourne”, revealed an absence of impartiality. 

51.  The grounds of the application to give evidence by telephone or video link were that the mother’s mother CT “was quite elderly and would have great difficulty traveling [sic] to Sydney and that her sister LK had young children and would have difficulty arranging for their care whilst she was away”.  It was submitted that “[s]uch reasons at face value would appear to be reasonable” and to have “warranted some consideration” (Appellant’s Summary of Argument, page 10).

52.  Counsel for the mother submitted, accurately, that the trial Judge “indicated from the outset that he would not grant the application”.  Such indication was clearly given “before seeking the views of either the Respondent [father] or Separate Representative”.

53.  It was further submitted that the trial Judge was “not prepared to entertain the application nor any submissions in support of it” having apparently:

… pre-determined against the Appellant her application before hearing any submissions and indeed later His Honour indicated that he would not change his mind regardless [sic] any submissions made. (Appellant’s Summary of Argument, page 10)

54.  Reliance was also placed upon the fact that the trial Judge would not allow the evidence of the two witnesses to be given other than in person even if the father had consented to such course, a submission which accurately reflects what the transcript reveals in that regard.

55.  Reliance was placed upon an exchange between counsel and the trial Judge during the course of the application for disqualification.  Whilst it is clear that the trial Judge “predetermined” that he would not allow the evidence of the mother’s mother and sister to be given by video link or telephone, and whilst, with respect to him, the trial Judge should first have listened to the submissions of counsel for the mother, and invited submissions from the separate representative, it does not follow that such ruling by the trial Judge indicated any lack of impartiality on his part.

56.  When the issue of the mother’s witnesses giving evidence by telephone or video link first arose, the trial Judge said:

I won’t allow somebody who’s unrepresented to be confronted by telephone evidence of sexual abuse, nor will I – but even if she [sic] was represented it would hardly make any difference because I won’t allow people to make that sort of allegation unless I can see them and being cross-examined [sic]. (Transcript of 12 December 2005, page 2)

57.  Later, counsel for the mother said to the trial Judge “may I reserve my position?  We’ll just see what we can do, if anything, about getting one or both of them here”.  To which the trial Judge said “[i]t’s a matter for you.  I’m not going to allow them to give evidence ---” which was clearly a reference to giving evidence without attending for that purpose (Transcript of 12 December 2005, page 4).

58.  It was undoubtedly open to the trial Judge to give the indication he did in relation to the mother’s mother and sister giving evidence by video link or telephone.  It remained open to counsel for the mother to renew his application if, on his instructions, it was not possible to secure the attendance of the witnesses in Sydney for cross-examination.

59.  As the trial Judge clearly recognised, to the extent that the course he proposed in relation to the evidence by those witnesses was erroneous, a ground of appeal may thus have arisen.  The remarks of the Full Court (Kay, Holden & Mullane JJ) in  S v R (1999) FLC 92-834, in a case involving an unrepresented party, at 85,677:

Generally, where the credit of a witness is in issue, the Court ought at least be able to observe the manner in which the witness gives evidence as well as be in a position to hear or read the evidence. This is the advantage of the trial Judge frequently referred to as the justification for appeal courts being loath to interfere with findings of credit. (Devries and Another v Australian National Railways Commission (1993) 177 CLR 472; Abalos v Australian Postal Commission (1990) 171 CLR 167; Kearney v Roucek(1997) FLC ¶92-745; LC v TC(1998) FLC ¶92-803).

may need to be tempered by the availability of a video link and the duration and likely significance of the evidence. The discretion to allow evidence to be given by electronic means requires the Court to balance a number of competing considerations. A blanket refusal to properly give those matters consideration could lead to the ultimate decision reached being set aside. 

60.  Nothing to which we have been referred however provides a basis for concluding that the trial Judge indicated an absence of an impartial or unprejudiced mind in relation to the issue.  Indeed, it cannot be assumed that being required to call the witnesses to give evidence in person would not have potentially assisted the mother’s case.

61.  Had the trial Judge expressed his reservations, but nevertheless allowed the witnesses to give evidence by telephone or video and then, on the basis that he had not seen them give evidence and was thus not able to reliably assess their credibility in relation to a serious issue, gave their evidence little weight, the mother would have been potentially disadvantaged by her application having succeeded.

62.  Decisively for our purposes, the trial Judge’s ruling did not reveal in any way an inclination to predetermination of any issue, but simply that the issue should be determined on the basis of the best evidence, for reasons which he gave.

63.  It would no doubt have been preferable for the trial Judge to have listened to the submissions of counsel for the mother, and invited submissions from counsel for the separate representative before indicating his views.  The failure to do so however, does not in our view change the position as we have described it.  We thus do not find this challenge to have substance.

64.  It was further asserted in support of this ground that the trial Judge’s comments when the Minutes of Amended Orders sought by the mother were handed to him by “declining to read the orders and guessing at their contents conveyed the impression that her [the mother’s] proposal was not being seriously considered” (Appellant’s Summary of Argument, page 11).

65.  The minutes were handed to the trial Judge by counsel for the mother in the course of the receipt of objections by counsel for the mother to the affidavit evidence of the father.  When counsel mentioned the Minutes of Amended Orders the trial Judge properly asked whether the father and the counsel for the separate representative had been given copies.  The trial Judge received the minutes and, some 30 pages of transcript after the case had commenced and the mother’s position been explained to him, suggested that he could “guess” what the minutes provided and had them initialled and dated.  Counsel for the mother then moved on to objections to the affidavit material of the father.

66.  Read in context, on no rational basis could it be asserted that the trial Judge’s comments in any way indicated that the mother’s proposal was “not being seriously considered”.  Unsurprisingly, this complaint does not seem to have rated a mention when the wife’s disqualification application was made to the trial Judge.  This complaint does not advance the mother’s case.

67.  It was further submitted that the trial Judge had refused to permit the tender of the father’s “latest child support assessment notwithstanding that Counsel for the Appellant made clear submissions about its relevance” (Appellant’s Summary of Argument, page 12).  It was further complained that when the topic was raised in submissions on the disqualification application the trial Judge “interrupted the submissions and adjourned the proceedings to another day whilst submissions were still being made”.

68. The child support record first arose on the second day of the trial. The trial Judge said that “I’m not interested in all the Child Support Agency payments because the wife’s evidence is that you’re [a reference to the father] only a week behind or a month behind. Is that right?” At that point counsel for the mother intervened and said “I’m not sure about that, your Honour, but if the husband doesn’t tender them I certainly would seek to tender them”. The trial Judge asked “Why?” to which counsel for the mother referred to s 68F(2)(h) of the Act. The trial Judge said:

If you expect me to find as a matter of law that somebody hasn’t met their child support responsibilities by paying precisely what they have been assessed to pay in circumstances when you haven’t proven and there’s not a shred of evidence to suggest that he’s understated his income. (Transcript of 13 December 2005, page 50) 

To which counsel replied “Not yet” and the trial Judge responded “Then when you can you can tender it”.  Thereafter the trial Judge said “He’s paid his child support and I’m not going to find that he’s failed to pay proper amounts unless it’s proven that his income has been misstated” to which counsel replied “I will seek to tender that when it’s appropriate to do so”.  The transcript reveals then the fate of photographs sought to be relied upon by the father, and the trial Judge’s robust dealing with him in relation to them.

69. It is plain beyond doubt that the trial Judge made clear that, given the absence of dispute as to the payment of child support on a regular basis in accordance with assessments issued, absent evidence that the father had “misstated” his income, nothing of relevance arose in that regard. As counsel for the mother clearly recognised at the time those exchanges occurred, if and when counsel obtained such evidence, he could then seek to tender the evidence. Nothing then said by the trial Judge revealed any absence of an unbiased and impartial mind. Indeed it is apparent that the trial Judge was keeping a totally open mind, but was not prepared to allow the trial to explore matters which were not controversial and thus not relevant within the provisions of s 68F(2) of the Act.

70.  The complaint in relation to the interruption of submissions and adjournment to another day is difficult to understand given what the transcript reveals in that regard.  It is apparent that the matter was adjourned by the trial Judge to a time convenient to counsel for such submissions to be completed.  In what way anything then said by the trial Judge indicated an absence of an impartial or unprejudiced mind is not apparent to us.

71.  It was submitted on behalf of the mother that the trial Judge’s rejection of objections to “those parts of Dr W’s’ Report based upon Dr W’s reliance on the Respondent’s video tape” (Appellant’s Summary of Argument, page 12) indicated an absence of an unbiased or unprejudiced mind.  In our view it was open to the trial Judge to adopt the course he did with respect to the video tape.  Dr W had seen the video tape.  Counsel for the mother, prior to cross-examining Dr W, or concluding his cross-examination of the father, would have had the opportunity to also view the video tape. 

72.  To the extent that the tape was erroneous, and Dr W relied upon it, the basis of his opinion evidence, or the weight likely to be given to it, would be likely to have been adversely impacted (see Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705). As the trial Judge had earlier noted when the question of the video tape first arose (AB 180), what weight Dr W placed upon the video tape was not known, but was able to be explored when Dr W was cross-examined.

73.  The course adopted by counsel for the mother in relation to Dr W’s evidence is not entirely clear but seems to have been on the basis that as the video tape, to which Dr W’s referred at a number of points in his report, was not evidence before the trial Judge, there was no “basis” for Dr W’s’ expert opinion evidence and, as such, that opinion evidence was inadmissible.

74. With respect to counsel for the mother, we do not perceive that to have been an approach which the trial Judge was obliged to take in relation to Dr W’s evidence having regard to the terms of s 79 of the Evidence Act 1995 (Cth) and the authorities in relation to it.

75.  In Makita, Heydon JA (as he then was) said at 731:

The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are "sufficiently like" the matters established "to render the opinion of the expert of any value", even though they may not correspond "with complete precision", the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd (at 846; 87). One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.

76.  In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 Branson J held that:

To be admissible the evidence [of expert opinion] must … be relevant.  It is the requirement of relevance … that … most immediately makes proof of the facts on which the opinion is based necessary.  If those facts are not … proved, or substantially proved, … it is unlikely that the evidence, if accepted, could rationally affect the assessment of the probability of the existence of the fact in issue in proceeding to which the evidence is directed.

That approach was followed by Sackville J in Jango v Northern Territory (No 4) (2004) 214 ALR 608.

77.  It may be that, when all of the evidence in relation to Dr W’s report has been received, the foundation for the report may be so lacking, or so tenuous, as to render the opinions expressed in it inadmissible.  Alternatively, though not inadmissible, the opinions expressed by Dr W’s may, in the light of all the evidence, particularly with respect to factual underpinning of the report, be entitled to “little”, “considerable” or “overwhelming” weight.  These were all matters which remained to be determined by the trial Judge in the light of the further course of evidence.

78.   Nothing to which we have been referred provides any foundation for suggesting that the trial Judge had any predisposition, so far as the admissibility of Dr W’s opinion evidence or weight appropriate to be given to it if it was admissible were concerned.  Nor has it been established that his Honour had in any way formed a less than unbiased or unprejudiced mind in relation to those issues.  We thus find this ground to lack substance.

GROUND 9

79.  Ground 9 provided:

9.   His Honour erred in that He ought to have disqualified himself after having indicated that he was personally affronted by the Application for disqualification.

80.  Reliance was placed upon comments made by the trial Judge to counsel for the mother during the course of his disqualification application.  A number of parts of the transcript were particularly relied upon (see Appellant’s Summary of Argument, pages 13-14).

81.  It was submitted by reference to the decision of the Full Court in F, AG and S, LL (Apprehension of bias) (2005) FLC ¶93-210 that “once it appears that a judge might be personally affronted by the conduct of a party, he should disqualify himself” and that “[l]ogically this would extend to Counsel acting on a client’s instructions which personally offends the judge” (Appellant’s Summary of Argument, page 14). The decision relied upon by counsel for the mother, as a reading of it makes clear, related to a very different situation to that which arose in this case. It is clear from reading the transcript before the trial Judge in this case that his Honour thought, as his words clearly suggest and his reasons for judgment confirm, that counsel for the mother, notwithstanding his instructions, ought not in the circumstances of this case have made an application for disqualification.

82.  It is clear, and the trial Judge said so, that he considered the application for disqualification “weak”.  It does not in our view follow of necessity, and no authority to which we have been referred establishes, that simply because a judge is affronted by counsel’s conduct, any absence of an impartial or unprejudiced mind in relation to counsel’s client’s case can be inferred.  It is clear in this case that the trial Judge questioned counsel’s instructions to make the application that counsel assured his Honour that he had such instructions and that matters progressed from that point.

83.  With all due respect to counsel for the mother, when one reads the transcript of the proceedings in its entirety, the disqualification application was “weak” and misconceived.  As counsel for the mother largely conceded during the course of his submissions in relation to the disqualification application, the thrust of much of the complaint was “the process rather than the decision”, counsel making clear that he was “not quibbling with the decision” (Transcript of 14 December 2005, page 97). 

84.  Earlier, counsel had made the point that “we sought to make submissions and it didn’t seem that it mattered whether we made those” (Transcript of 14 December 2005, page 97).  With hindsight, as counsel for the mother’s submissions suggest, had the trial Judge permitted counsel to make his submissions before indicating the rulings he made, the application may have been avoided given the concessions made by counsel for the mother to the trial Judge and to this Court.

85.  As the authorities make clear, the question of whether or not disqualification was warranted must be looked at in the light of all of the circumstances in which such application is made.  It is clear from reading the transcript that the trial Judge adopted a robust, interventionist approach with respect to the conduct of each party’s case.  With hindsight, it would have been preferable for the trial Judge to have listened to submissions before making rulings, particularly as the rulings are not seriously suggested to have been erroneous.  On the other hand, it is to be remembered that the mother was represented by counsel of experience and competence whilst the father, whose first language is not English, laboured under the very considerable disadvantages of representing himself, having adverse expressions of wishes by children of an age where their wishes were likely to be given significant weight, and the absence of any meaningful relationship with those children for more than four years.  In those circumstances, providing a “level playing field” for the father, who could not be expected to secure one for himself, was an obligation not easily discharged by the trial Judge.

86.  As a reading of the transcript makes clear, the trial Judge’s interventions to define relevant issues cannot be seen to have been inappropriate or erroneous.   Perhaps most tellingly, counsel for the mother has not been able to point this Court to anything to indicate an absence of an unbiased or unprejudiced mind on the part of the trial Judge in relation to any issue before the Court.

87.  To submit that a fair minded lay observer could not have:

… confidence that her [the mother’s] Counsel would be able to continue to properly conduct the Appellant’s case were it to resume part-heard after such a strong personal criticism had been made of the barrister conducting her case. (Appellant’s Summary of Argument, page 15)

is to fail to recognise both the absence of evidence of an unbiased or unprejudiced mind on the part of the trial Judge in relation to the issues with which he was concerned, and the nature of the professional training and oath of office of a judge (see Vakauta v Kelly (1989) 167 CLR 568).

88.  As the authorities and experience clearly indicate, it by no means follows that a less than unprejudiced or unbiased mind will be brought to bear by a trial Judge as a result of robust and at times terse or even heated exchanges between bench and bar during the course of proceedings.  Indeed, as the authorities make clear, the articulation of matters of concern to a trial Judge or tentative opinions in relation to them provide counsel with the opportunity to address such matters in ways not open to them if the Judge remains “Sphinx like” throughout proceedings.

89.  We do not accept that the trial Judge made “a strong personal criticism” of counsel for the mother, although it is clear that his Honour did not consider that counsel should have made a disqualification application in the circumstances in which it was made.  That however falls short of establishing that counsel’s client would have been “punished” in the determination of the proceedings by the trial Judge.

GROUNDS 1 & 2

90.  Grounds 1 and 2 provided:

1.   His Honour erred in that He failed to give adequate reasons for his decision.

2.   His Honour erred in that He did not specifically address each of the grounds of the application.

91.  Although this issue was not pursued beyond the written Summary of Argument (pages 15-16), we record that the ground has not been established.  The trial Judge gave reasons which were adequate.  The issue is whether the reasons were supported by the evidence before the trial Judge. 

92.  In his Summary of Argument, counsel for the mother has in detail agitated the grounds upon which it was submitted that the reasons given by the trial Judge were not supported by the evidence.

93.  The reasoning process of the trial Judge is evident from his reasons, and the trial Judge concluded that none of the grounds for disqualification relied upon had been made out.  Reading his reasons for judgment leaves no room for doubt as to why the trial Judge rejected the disqualification application.

94.  The focus of the appeal is whether, on the evidence before him, that rejecting those grounds was reasonably open to his Honour.  The brevity of his Honour’s reasons does not impact upon that determination (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24). This ground lacks substance.

GROUND 3

95.  Ground 3 provided:

3.   His Honour erred in that He failed to have any regard to the authorities relied upon by the Appellant Mother.

96.  It was submitted that the trial Judge “ought to have read and considered” (Appellant’s Summary of Argument, page 17) the authorities with which he was provided by counsel for the mother and that the trial Judge’s failure to do so before delivering judgment further evidenced the absence of an unbiased or unprejudiced mind.

97.  A number of observations are relevant to this challenge, the first being that the trial Judge can be presumed to know the law governing applications for disqualification.  A reading of the transcript makes clear that the trial Judge was well aware of the relevant test.  It is significant that, despite the matters raised in support of this ground, it has not been suggested on behalf of the mother that the trial Judge applied the wrong test or in any relevant sense erred in law in determining the disqualification application in the way in which he did, but rather than the decision reached by his Honour was not reasonably open to him on a proper application of the law to the evidence.

98.  Whilst it would have been preferable for the trial Judge to have looked at the authorities before ruling on the disqualification application, and by not doing so denied himself the opportunity to be informed of any decision which was at variance with his Honour’s understanding of the relevant law, the absence of any challenge to the trial Judge’s formulation of the relevant legal principles denies this ground substance.

GROUND 4

99.  Ground 4 provided:

4.   His Honour erred in that He sought to characterise the grounds of the application for disqualification as grounds only for an appeal.

1. It is unnecessary to refer to this ground in detail.  Objectively, either the evidence obliged the trial Judge to disqualify himself, as counsel for the mother contends, or it did not.  If it did not, then whether or not any ground of appeal was thereby potentially enlivened was of no relevance.  If the submission of counsel for the mother is that the trial Judge erred by regarding as a ground of appeal what was properly a ground for disqualification, it has not been demonstrated that the trial Judge laboured under such misapprehension.  This ground does not advance the mother’s appeal.  No other ground having been successful in that regard, no more needs to be said about this challenge.

CONCLUSION

1. No ground of appeal having been made out, the mother’s appeal has been dismissed.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court.

Associate:  

Date: