Randolph and Rankin
[2012] FMCAfam 989
•6 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANDOLPH & RANKIN | [2012] FMCAfam 989 |
| FAMILY LAW – Disqualification application – relevant tests – utility of ‘preliminary view’ offered by the Court – application doomed to fail but still pressed – distinction between procedural orders and orders in relation to substantive issues between the parties – proper appreciation of limited court resources in relation to allocation of dates for hearing and access to family consultants and reports. |
| Antoun v The Queen (2006) 224 ALR 51 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Re JRL; Ex parte CJL (1986) 161 CLR 342 Marsden v Winch (2010) 42 Fam LR 1 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Nadkarni & Nadkarni [2011] FamCAFC 160 Vakauta v Kelly (1989) 167 CLR 56 Vasser v Taylor-Black (2008) 37 Fam LR 256 |
| Applicant: | MR RANDOLPH |
| Respondent: | MS RANKIN |
| File Number: | CAC 276 of 2012 |
| Judgment of: | Neville FM |
| Hearing date: | 6 September 2012 |
| Date of Last Submission: | 6 September 2012 |
| Delivered at: | Canberra |
| Delivered on: | 6 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stenhouse |
| Solicitors for the Applicant: | Armstrong Legal |
| Counsel for the Respondent: | Self represented |
ORDERS
The oral Application for disqualification made on 4 September 2012 be dismissed.
The matter be transferred to the docket of Federal Magistrate Brewster.
The matter be adjourned for directions before Federal Magistrate Brewster on 9 October 2012 at 10:00am.
IT IS NOTED that publication of this judgment under the pseudonym Randolph & Rankin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 276 of 2012
| MR RANDOLPH |
Applicant
And
| MS RANKIN |
Respondent
REASONS FOR JUDGMENT
Introduction
By definition, family law proceedings – and especially those involving children – are tragic. Ultimately, it becomes a question of degree, as well as the limitations of language, to assess properly and describe accurately, the nature and extent of the tragedy – real or perceived, substantive or procedural.
Indeed, the lament – usually and necessarily unspoken – that attends family law litigation can be heightened, or sometimes lessened, by how a particular case is conducted. Having proper regard to the limited resources of a busy court as to available hearing dates and access to family consultants (to name just two), an efficiently run case will usually get parties out of the legal system sooner.
In making judgments about the case-management of a case, courts of course cannot, and usually do not, know how much the conduct of a case is dependent on specific instructions from the client, especially one who refuses steadfastly to heed the advice of legal advisers, or whether there have been choices (for better or for worse) made by those legal advisers, to which the client simply accedes.
In this case, while the issue in dispute is very discrete – namely, to determine which school the two children of the relationship (12 year old X, and almost 11 year old Y) should attend in 2013 – respectfully, the conduct of it has not helped its resolution. Indeed, in my view, two applications by the Father – the first, an appeal that was doomed to fail (and was properly withdrawn), and the second, an oral application for disqualification (which according to any reading of relevant authority should have confirmed that it too was doomed to fail) – have militated against, rather than expedited, the resolution of the matter.
Respectfully, in my view, neither application should have been filed. Apart from what it has cost the Father in legal fees and time, as well as what it must have cost the Respondent (self-represented) Mother in time and attendant anxiety, (a) given that there is no issue as to how well the children are cared for in either household, or that they are well-loved by both parents, and (b) noting that it has been agreed that from 2013 the children will move from the full-time care of their Mother (with regular ‘spend-time with’ arrangements with the Father) to the full-time care of their Father (with regular ‘spend-time with’ arrangements with the Mother), the epithet of “tragedy” in this case necessarily applies to the manner of its conduct – as the following reasons demonstrate.
Moreover, having reviewed the papers filed, together with the recent, detailed note from the Family Consultant, I had formed a preliminary view regarding the final disposition of the matter. At the outset of the hearing, I offered to share it with the parties with a view to seeing whether the matter might be able to be finalised. Preliminary views are, of course, just that: they are preliminary, and not binding on anyone. As I note below, they are recognised by the High Court as common-place. Alas, Counsel for the Father said that (a) he pressed the disqualification application and sought an immediate ruling in relation to it, and (b) he confirmed that if I did not accede to that application, which he had made orally earlier in the week in the duty list, the ruling would be appealed. Such was the intransigence of the Father’s position, and the in terrorem submission of his Counsel. Respectfully, neither position assisted the Court. And certainly, lest it not be painfully clear, an in terrorem submission, I suggest, is hardly calculated to advance any client’s case. The Father (and or his Counsel) were clearly unmoved by the reality which I explained that an appeal would necessarily delay further the resolution of the matter.
Counsel also curiously, if not with some disquiet and resistance, inquired how a preliminary view could be formed without the Court having had the benefit of submissions from the parties. Respectfully, leaving aside the obvious retort that papers are [usually] read (and obviously were read in this instance) before coming on to the Bench, such a disposition might be taken to suggest that Counsel was not altogether experienced in family law matters, where ‘preliminary views’ are very commonly proffered (as indeed they are in other kinds of litigation). Indeed, as the High Court said, now quite some time ago, in Vakauta v Kelly:[1]
[A] trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.
[1] Vakauta v Kelly (1989) 167 CLR 568 at p.571 (Brennan, Deane & Gaudron JJ).
Similarly, and more recently, Kirby J said in Antoun v The Queen, at [32] (internal citations omitted):[2]
In this, the approach of this Court has now travelled beyond the apparent approbation of judicial silence expressed in R v Watson; Ex parte Armstrong. In the United States of America, such silence has been held, on occasion, to constitute a denial of due process. It deprives the party who will ultimately be affected by judicial conclusions of the "opportunity, before judgment, to be heard to correct and to persuade". Just as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views.
[2] Antoun v The Queen (2006) 224 ALR 51.
Similar views to those expressed by Kirby J in Antoun were also expressed in the plurality judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson.[3]
[3] Johnson v Johnson (2000) 201 CLR 488 at [13].
In that same case of Johnson, itself a piece of family law litigation, Kirby J noted in particular, at [46] (internal citations omitted),
Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.
Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
Respectfully, even a modest familiarity with such jurisprudence should have alerted the Father (or he should have been relevantly so advised) that, given such an early stage in the proceedings, any remark about the ‘odious task’ of adjudicating between schools (a comment made on the first return date on 2nd April), or likewise the offer from the Bench to give a ‘preliminary view’ was (a) common-place, (b) not binding on anyone, or (c) not indicative of any unyielding disposition regarding the result, or any relevant disposition for or against any party. The clear objective of preliminary views is as outlined by the High Court in the standard authorities to which I have referred.
In any event, these reasons revise and amplify those that were delivered ex tempore on 6th September following which I made orders to dismiss the application.[4] At that time, I also ordered that the matter be transferred to the docket of his Honour, Federal Magistrate Brewster. Because of the significant attempts thus far, so to speak, ‘to jump at shadows’, I ordered the transfer to ensure that there could not be even a passing, gossamer tendril in the mind of the Father, or those advising him, that there could be any adverse disposition of the Court towards him (or them). Unfortunately, with the transfer, there can be no guarantee that the matter will be able to be finalised prior to the school year next year.
[4] In the course of delivering the reasons, I indicated to the parties that I reserved the right to revise and amplify them, particularly in relation to relevant judicial references to which I had made only passing reference, as well as to relevant facts in and related to the chronology, to which I also referred summarily.
I might also observe that, having made the orders to dismiss the application and to transfer the matter but before leaving the Bench, I indicated that my preliminary view was that I was disposed to make the orders as sought by the Father, essentially because he will be, by agreement with the Mother, the primary carer of the children from 2013 and beyond, and that he will pay the costs of the children’s education. Of course, such a view is in no way binding on his Honour, Federal Magistrate Brewster, nor is it binding on anyone else.
Chronology with Commentary
The primary application before the Court, now in a number of different guises, as I have already stated, relates to the selection of schools for the two children. The Applicant also sought, not unreasonably, to have the Court expedite the hearing.
The first Initiating Application was filed by the Father on 23rd February 2012. The interim orders sought related only to choice of schools. The Wife filed a Response on 16th March. Among other things, she sought a family report.
The Father’s application, which contained 40 pages of annexures, listed four schools from which the Court was required to choose, while the Mother’s response, which contained 78 pages of annexures, listed six schools – with some overlap with those listed by the Father.
The Father filed an Amended initiating application on 30th March, and the matter first came before the Court on 2nd April.
On the first court date a short form report was ordered, specifically to see whether the children had any particular views in relation to which school to attend, and scheduled for 21st August. The matter was adjourned for further directions to 4th September.
A Notice of Appeal was filed on 30th April. According to Counsel’s written submissions, the matter came before his Honour, Coleman J, for mention on 1st June, at which time, according to Counsel’s account of the event, his Honour indicated that the appeal was certain to fail, and by consent it was withdrawn.
On 11th July, the Father filed an Application in a Case. The orders sought in that application were for the appointment of an [unspecified] expert to report on the following matters: (a) the Mother’s ability to distinguish between her own needs and the needs of the children; (b) the Mother’s emotional stability and the Mother’s alleged insistence upon the children’s emotional dependence on her; (c) the children’s vulnerabilities (if any); (d) the children’s particular needs, if any, in the context of relocating to Canberra for the purposes of attending high school; (e) which school would be most appropriate to meet the respective needs of the children [in] the context of their family situation in Canberra and (f) with whom the children should live, and the amount of time the children should spend with the other parent.
Leaving to one side that the appointment of an expert was sought pursuant to the Family Law Rules rather than the Rules of this Court, I pause here to observe that the majority of the matters the Father sought to have addressed by this Application were, to some degree, likely to be addressed by the report that was already scheduled for 21st August. Leaving aside issues of cost, the duplication of process is self-evident.
The Application filed on 11th July also sought the appointment of an independent children’s lawyer (“ICL”). Respectfully, I suggest that except in highly unusual cases, most practitioners would not seek such an order for a choice of schools case.
Also on 11th July, the Father filed a Further Amended Initiating Application in which he no longer sought any interim orders, and none in relation to the Court making orders that the children attend a specific school. Rather, he sought only final parenting orders which included that the parents have equal shared parental responsibility, save that the Father have sole parental responsibility in relation to the children’s education. As a so-called machinery order, the Father also sought that the Court order the parties to complete all relevant documents to ensure the children’s enrolment in the schools chosen by the Father.
In support of both applications, the Father filed a further affidavit. It is useful to note the following matters from that affidavit and its annexures.[5]
[5] On 27th August, the Mother filed separate Responses to both applications, together with a further affidavit, which was a detailed commentary on the Father’s 11th July affidavit.
First, the Father deposed to a conversation with the Mother in late March to the effect that the Mother acknowledged that the only issue for determination remained the children’s schools.
Secondly, the Father referred to a report, privately commissioned, from Ms C. A copy of that report is annexure C to the Father’s 11th July affidavit. I will come back to that report presently.
Thirdly, the Father further deposed to correspondence from his solicitors to my Chambers by which an expedited hearing was [again] sought. The Father’s solicitors were advised that the Court would not consider the matter without the benefit of a report, which was already scheduled.
Fourthly, the Father confirmed that the parties attended a settlement conference on 30th May. Paragraph 13 reads: “Ms Rankin and I attended a lengthy settlement conference in Canberra with my Counsel, Mr Stenhouse, on 30 May 2012. We spent approximately 3 hours in conference. The matter was unable to be resolved ….” I assume that the Father’s reference to Counsel’s attendance was on the basis of Counsel attending on the Father’s behalf. As the paragraph reads, it could, however unlikely, be taken to suggest that Mr Stenhouse acted as convenor of the conference.
The Father continued in his affidavit to confirm that the matter had moved, in his view, from one solely concerning school(s) to one involving parenting. Among other things, the Father expressed concern that there was a risk that the Mother would not honour the agreement between them about the children moving to Canberra to live with him. He also expressed concern at the Mother’s involvement in “the (omitted) school philosophy”.
The Father also provided, at pp.9 – 11 of his affidavit, a detailed critique of Ms C’s report under the heading “What’s wrong with the family consultant’s report.” Put shortly, he did not agree with Ms C’s recommendations, or with a number of her comments and observations, which he said were inconsistent with other evidence.
The Father again detailed the problems he saw with the (omitted) School sought by the Mother, and the benefits of the Father’s choice of schools for the children (both (omitted) schools in Canberra)). The Father confirmed that he would pay all relevant fees for the children’s school, and that he had previously confirmed this with the Mother.
I interpose here to note that, following Ms C’s report, and in the light of the Father’s application for a psychiatric assessment, the Court inquired of Ms C whether, in her [expert] opinion, such an assessment was necessary. On 19th July, Ms C issued an “Addendum” to her earlier report commissioned by the Father. That Addendum was released to the parties on 20th July.
In the Addendum, and in response to two questions posed by the Court, Ms C said:
In your view, whether a single expert psychiatrist is appropriate and/or necessary for this matter?
No mental health issues were raised by either party in this matter which comes down to parental preferences for the children to attend one school or another. I cannot see what an expert psychiatrist would add to such a narrow dispute. A rigid adherence to a particular school preference is not diagnostic of a mental illness, but rather reflects the parents’ values and disparate personalities.
If so, whether the children should be included in such an assessment?
I can see no reason for either child to be included in such an assessment which fundamentally reflects a difference in opinion, an evidently an on-going inability to compromise, between the parents. Both children established a good rapport with me and spoke freely about their wishes.
Also on 20th July, Chambers wrote to the parties, not only to release Ms C's Addendum, but also to advise that, in the light of her opinion, the matter would not be re-listed prior to the scheduled date in early September following the conclusion of the appointment (and report) with the family consultant in late August. That correspondence also expressed concern at the escalation of matters which appeared to be taking the matter from one of very narrow compass to one of much wider provenance. In the Court’s view, this was a rather needless escalation in the circumstances. This concern of the Court was also expressed in the correspondence.
On 20th August, Ms P released to the parties a detailed Memorandum. It is as well to note the following from that Memorandum, including that the only issue directly addressed and unresolved related to the on-going school matter.
Ms P stated that:
· Parents have worked together well in the parenting of their children since separating.
· Parents communicate well in regard to the children and their needs.
· Children have not been exposed to any conflict between their parents.
In relation to the children, Ms P stated:
· Both children appear to be very bright, well adjusted children with a mature insight.
· Both children speak highly of both parents and are able to accept that their parents have different opinions about their schooling.
· Y is strongly interested in computer programming. He has formed the opinion (since an Open Day talk at (omitted) school) that (omitted school) may provide him with better opportunities to pursue interests in computing, but he also stated that, as programming is [a] personal hobby, he will still pursue his interest independently of the school environment.
· X has a keen interest in music (she plays the (omitted)) and is confident that she will pursue this interest regardless of the school of choice.
On 27th August, the Mother filed a Response to an Application in a Case, in which she only sought orders that the matter be listed for an expedited hearing.
On 31st August, by consent, orders were made in Chambers which narrowed (and listed) the number of schools from which the Court would be required to choose, and provided for the parties to facilitate the participation in the selection processes for the four schools listed. The consent orders also provided for the Father to pay all relevant costs associated with these processes.
On 4th September, the Mother filed an Amended Response to the Further Amended Initiating Application.
Disqualification Application
In the course of the duty list on 4th September, the scheduled re-listing date following Ms P's Memorandum, Counsel for the Father made an oral application that I disqualify myself from the current proceeding. Counsel provided written submissions in support of the application.
I indicated at the time that (a) notwithstanding Counsel’s submission that such applications were commonly done by oral application and by implication dealt with almost summarily, it was not appropriate to deal with it in the course of a duty list, as well as ensuring that the Court (and the self-represented Mother) had an opportunity to read and consider the written submissions rather than ‘doing it on the run’, and in such circumstances the Court would find other time and the parties notified of it, and (b) following a short perusal of the written submissions, noting that there was no reference to or consideration of the High Court’s most recent discussion of apprehended bias in Michael Wilson & Partners Ltd v Nicholls, I referred both parties to that decision.[6]
[6] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427.
The matter was re-listed for 6th September.
On that occasion, the Mother provided brief written submissions in response to those provided by Counsel for the Father. As I apprehend them, the Mother essentially left the decision of the disqualification application up to the Court, and indicated in her comments in Court that her concerns were (understandably) to have the issue of the children’s school (the substantive issue) decided as soon as possible as well as to deal with other, related parenting matters.
The Father’s written submissions may be summarised as follows. As I comprehend them, they are threefold.
First, on 2nd April, the first return date of the matter, I commented words to the effect that it was an “odious exercise” to seek to compare schools. In his written submissions, Counsel said that these comments “gave little confidence to the father that you would to apply [sic] the legislative pathway.” Concern was also expressed at my refusal to grant expedition to any hearing in the absence of a relevant report.
It was submitted that “by words and conduct [I have] shown a marked disinclination to progress the matter quickly and in time for next year’s schooling. This is despite repeated requests by the parties to do so. This is in the context of Your Honour telling the parties you were not going to compare schools and that that exercise was “odious.””
Secondly, it was submitted that by virtue of correspondence from Chambers (a) asking the expert retained by the Father a specific question in relation to the very point raised by the Father concerning the necessity of a [further] expert psychiatric report, and (b) concern being expressed regarding the apparent and needless escalation of the matters being ventilated, apprehended bias was manifest.
Thirdly, it was contended that by contacting the expert retained by the Father, the parties had been denied procedural fairness by the Court, and further that the Court had made direct contact with a witness, who by this stage, the Father had determined was of no utility or advantage to his cause.
For more abundant caution I note Counsel’s summary of complaint from paragraph 24 of his written submissions:
a. Your Honour’s comments at the mention on 2 April 2012
b. Your Honour being told on 2 April 2012 that one of the schools in contention would as matter [sic] then stood be available [sic] after September 2012
c. Your Honour’s marked disinclination to progress the matter before 4 September 2012 despite being told that one school would not be available after September 2012
d. Your Honour’s refusal to relist for directions before 4 September 2012 on the request of the Father (and consented to by the Mother) dated 25 June 2012 and sent to Your Honour on 6 June.
Paragraphs 25 – 30 outline further the Father’s complaints. Again for more abundant caution, I set out in full paragraph 30 of Counsel’s submissions, thus:
The logical connection is that your Honour is prejudiced against the Father and his position and will not decide the case on its merits. Your Honour has:
a. Formed a view against the father on the material filed, without submission, and in doing so denied the parties procedural fairness.
b. Acted on that view and contacted a witness in the case in the absence of the parties.
c. Sought answers to questions posed by Your Honour without submission by the parties and without providing to the family report writer the father’s material filed 12 July 2012
d. Acted on those submissions to the prejudice of the Father.
Consideration & Resolution
The first observation to make is that, (a) in so far as the Father seeks to rely on comments made by me in a duty list on the first return date, (b) an appeal was thereupon lodged, (c) in the light of Coleman J’s observation that the appeal was doomed to fail and the appeal subsequently withdrawn, it might be suggested that, strictly speaking, the Father cannot now continue to rely upon matters that have already been ventilated in an appeal, notwithstanding that the appeal was ultimately withdrawn.
However, because Counsel was disinclined to engage in discussion, other than to rely solely on his written submission, I do not take this possible avenue further.
Secondly, in addition to the High Court authorities already cited earlier in these reasons, which confirm that comments (passing or otherwise) from the Bench, and even preliminary views, are not, of themselves, grounds for apprehended bias, I note the following further observations from standard High Court authorities which, if properly considered, in my view would have (and should have) rendered the current application unnecessary.
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, Kirby and Crennan JJ said, at [112] (internal citations omitted):[7]
Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.
[7] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577.
His Honour, Gummow A-CJ, concurred, at [4].
In the same case, in a detailed examination (at [171] – [180]) of what does and what does not constitute apprehended bias, Callinan J said, at [177] that “the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer.” And again at [180], his Honour said: “Taken cumulatively, his Honour’s interventions and reasons for judgment do not give rise to an apprehension of bias. Critical, strong and candid they may have been, but excessively so they were not. To some extent they may be taken to be expressions of exasperation, unfortunately so perhaps, but as a matter of degree, still falling short of apparent bias.”
Again, I note that Gummow A-CJ concurred with his Honour’s comments.
In Johnson v Johnson, Kirby J outlined the expected ‘characteristics’ of the “reasonable bystander” (accepting that his Honour referred to a character known as “the fictitious bystander”). At [53], Kirby J said (internal citations omitted):[8]
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
[8] Johnson v Johnson (2000) 201 CLR 488. Kirby J’s comments, at [53] in Johnson to which I have referred about “the bystander”, were cited in full by the Full Court in Marsden v Winch (2010) 42 Fam LR 1 at [34].
Respectfully, few of these characteristics have been a point of reference in relation to the current application, and likewise in relation to the basic facts of this matter. Had they been, the application would not (and should not) have been made.
Respectfully, too, it would appear that the Father has not been apprised of any of the relevant High Court authority to which I have referred.[9]
[9] In his written submissions, Counsel referred to Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337, and the Full Court decision in Nadkarni & Nadkarni [2011] FamCAFC 160.
Further, I note that the cases thus far mentioned, and those noted below, all concern comments made by judges in the course a trial. In the current matter, there has been no comment on or adjudication of any substantive issue between the parties. Such orders that have been made are, by definition and by common practice, procedural only. Indeed, to order a family report is more than common-place. Respectfully, in the light of the authorities mentioned, there must be some (indeed proper) distinction between and consideration of comments and orders made that are procedural in nature, and those which relate directly to substantive issues in dispute that are to be determined at a final hearing. No such appreciation or distinction is manifest in the submissions made in relation to, or the conduct of, this case.
By way of formal finding, I note the following.
The Father’s contention that comments made on 2nd April about the odious nature of comparing schools constitute apprehended bias must be rejected.
I assume that the Father does not regularly attend duty days in this or similar courts. The Court may take notice of the fact that his solicitor appears in such lists on a reasonably regular basis. I have no knowledge of the Father’s Counsel’s experience.
Suffice to say that it is a quite common submission from experienced counsel and solicitors in similar applications to comment that it is either impossible and or odious (or similar epithet) to compare schools. Such a submission is usually based on the common-sense appreciation that for a Court to say that one school is better than another in one case can result in a wider and more pervasive negative opinion becoming entrenched about a particular school, when the reasons for choosing one school over another in a particular case, will usually be based on other factors and considerations. In short, the risk of significant reputational damage to a school warrants a court to proceed cautiously and to seek appropriate evidence. Such basic understanding and appreciation of practice in this jurisdiction, coupled with the demands on the Court and its inability to secure reports very quickly, have been sadly, and all too regularly, lacking in the current matter. This is all the more puzzling, and a cause of significant disquiet and regret, given that the Father’s solicitor appears reasonably regularly in this Court.
The next contention relates to the Court’s alleged failure to expedite the hearing of the matter. Or, as submitted by Counsel, the “marked disinclination to progress the matter before 4 September ….” Inclination, disposition or otherwise has nothing to do with the matter. Respectfully, such a submission shows astonishing ignorance about (a) the difficulty in obtaining reports, (b) the usual practices of, and (c) the volume of matters dealt with by, the Court. The mere insistence on an expedited hearing does not immediately commend itself to good case-management. If that were the principal criterion, surely the loudest or strongest complaint will secure an early trial date. The Court would dearly love to consider and resolve every matter immediately - and repeats this aspiration often in open court - so that parties can get on with their lives free of litigation. However, the sheer logistics of dealing with such large numbers of cases renders immediate justice (if such a thing ever existed) impossible.
Again, it is important to stress – although it should be unnecessary to do so – that Courts must, if at all possible, proceed on the best evidence available. It is all too common to have matters with little more than competing claims by the parties. That would be the case here in the absence of an independent report.
Respectfully, the submission that expedition of the hearing was impeded by my “marked disinclination” to do so borders on the offensive, and certainly indicates a complete lack of appreciation of standard case management. Leaving to one side that Counsel was not present on any of the previous, and few, mentions of the matter, presumably Counsel is relying upon either (or both) the ‘impressions’ of the Father or his instructor for the proposition that I somehow displayed some “marked disinclination” to progress the matter. Respectfully, this is a not insignificant slight to a judicial officer, as if some dilettante-like fancy or caprice is the lodestar for case management in this extremely busy court.
Further, it is not immediately clear how the Father (or his legal advisers) make the logical connection between, on the one hand, a comment about the difficulty in choosing between schools (an ‘odious task’) and, on the other hand, a submission that the Father had little confidence that ‘I would not apply the legislative pathway.’ Respectfully, this is a conclusion of significant, albeit significantly dubious, proportions. It implies that, as a matter of course, I choose deliberately not to follow precedent or relevant legislation. If that be the implication, it too is offensive. If the Father makes this submission on his instructions he is seriously mis-informed. If he makes it based on advice received, it is mis-guided in the extreme and gravely awry. It is also seriously illogical and mis-conceived to base such a conclusion on such a remark. Moreover, compared to the litany of examples – many of them extremely blunt statements or comments made in the course of trials - set out in the High Court authority to which I have referred, the passing comment of this Court on the first return of the matter in a busy duty list borders on the innocuous.
As a hopefully self-evident proposition, proper, independent evidence is a standard feature in and for the conduct of contested matters. The obtaining of such evidence, unfortunately but necessarily, takes time. Not to await independent reports risks, among other things, prejudicing one or other party because the Court would then be relying [solely] upon the evidence marshalled by each party, which is obviously intended to support one side and undermine the arguments and evidence of the other.
Indeed, in the well-known authority of Vasser v Taylor-Black, the Full Court made plain the importance of ensuring that the Court have the best evidence available to it, which necessarily included the course, as appropriate, of obtaining a report.[10]
[10] Vasser v Taylor-Black (2008) 37 Fam LR 256.
The same comments apply in relation to the refusal to re-list the matter until after the family report/memorandum was available. The submission made on behalf of the Father is tantamount to suggesting that case management of this matter (and presumably the other three hundred or so matters in the docket) is predicated upon the whim or [ill-] humour of the Bench on any single occasion. Not to re-list a matter until a report is available is an every-day case-management practice. To suggest otherwise is, at least, ignorant; I will not complete the range of other possible descriptions.
As for the other contentions of the Father, I say as follows.
In relation to the Court making an inquiry of Ms C about the utility of ordering a psychiatric report, the question might be asked – I hope not unreasonably – what qualifications do either of the parties, but especially the Father, have in relation to psychiatry or psychology? Absent any view from an expert (in this case Ms C) the Court would again be faced only with the competing contentions of the parties. Moreover, to make such an inquiry was more likely than not to expedite matters; thus to inquire of an expert rather than to wait until the next mention date to seek advice about such matters.
Ms C, as the Father’s solicitor would well know, is a long-time and highly experienced family consultant. She is a clinical psychologist. As noted, the Court asked two discrete questions of her expert opinion, having interviewed the parties and the children. There was, nor has there been, any ruling that forecloses (a) any examination of Ms C, (b) putting any material before her, or (c) any submission made in relation to her report. These are all standard matters that can and must await a final hearing.
Indeed, given that no suggestion for a psychiatric assessment came from Ms P in her more recent report/memorandum, it might suggest that the Father’s seeking of same is either unnecessary, or maybe now not even pressed. Further, Ms P confirmed in her recent Memorandum that the only issue to be determined remained the schools the children should attend in 2013.
It remains to consider the High Court’s most recent discussion of apprehended bias in Michael Wilson. Having mentioned it to the parties during the duty list, when the matter came back before me later in the same week, Counsel for the Father was dismissive of it, saying that it was of no relevance to the current application. Respectfully, I strongly disagree, for the following reasons.
As stated by the High Court in Michael Wilson & Partners Limited v Nicholls, at [31] – [33] (internal references omitted), the relevant test is:[11]
[31] … 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.
[32] As the plurality in Johnson v Johnson explained, "[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues."
[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
[11] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.
Further, as the High Court has emphasised, the application of the ‘apprehended bias’ test is an objective one. The Court also cautioned about the need to be precise and not to conflate consideration of actual bias and apprehended bias. Thus, again in Michael Wilson (244 CLR at [67]) dealing with both of these aspects, the Court said (internal citations omitted; emphasis in original):
… an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
Further, the High Court commented in terms that, in my view, are relevant to the current proceeding. At [69] – [70], the Court said (internal citations omitted):[12]
[69] Here, however, it was said that "the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern". That concern was identified as the possibility "in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure" (emphasis added). But the existence of a "concern" described as the possibility of placing the evidence led at trial into a "pre-existing mental structure" does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
[70] The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. It may well be that the directions not to disclose material should not have been left in force for as long as they were. Perhaps they should not have been made at all. But if their making or the failure to limit their duration was wrong, that did not found a reasonable apprehension of bias.
[12] See also Heydon J’s comments, at [117], to the effect that, even on the facts of that case, “prolonged familiarity” was insufficient to establish any relevant apprehended bias.
I should also recall the following comment by Kirby J in Antoun v The Queen, where his Honour repeated the earlier (and regularly repeated) caution by Mason J in Re JRL; Ex parte CJL.[13] At [34], Kirby J said (internal citations omitted):
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this court has “loudly and clearly” expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose among the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases.
[13] Antoun v The Queen (2006) ALJR 497; Re JRL; Ex parte CJL (1986) 161 CLR 342 at p.352.
A particular reason for highlighting the decision in Michael Wilson was its significantly complex factual and procedural matrix. In that case, the High Court found that there was no apprehended bias in circumstances where the trial judge had heard and made decisions in several interlocutory applications, all on an ex parte basis, and without any notice to the respondents.
On a comparative basis only, I simply observe that if the High Court found no ground to sustain an allegation of apprehended bias in Michael Wilson, the facts and circumstances in this case, where there has been no ruling on any substantive issue, suggest that the disqualification application of the Father was seriously misconceived.
I endeavour not to suggest or recommend to Counsel a particular High Court case, as I did here, for educative purposes only. Usually, it is for a particular purpose. To treat the latest High Court case on the subject at hand so dismissively, as Counsel unfortunately did here as having no relevance, respectfully, was not appropriate. As an exercise in either advocacy or ‘court-craft’ it was equally, and unfortunately, mis-conceived. Respectfully, so too was Counsel’s disengagement or refusal to consider the option of further discussion and insistence that a ruling be made on the disqualification application. Perhaps Counsel was acting on instructions to refuse any overtures from the Bench to see if the matter might be able to be resolved, and on a final basis. If that were so, that too was deeply unfortunate.
The regrettable reality here, so it seems to me, is that there has been decidedly (a) insufficient attention to the standard and wide range of High Court authority which should have made patently clear the nature and degree of misconception in the current disqualification application; (b) insufficient attention to the basic facts of the matter, and their consideration in the light of that authority; and (c) either insufficient knowledge, or appreciation, of the standard conduct and case management of, as well as the limited resources available to, matters in this jurisdiction.
The parties understandably want and need a decision from the Court in relation to the children’s schools. All litigants need decisions as quickly as courts can reasonably provide them in the light of the incessant demands on resources. Every case is important to each litigant. Unlike the overwhelming majority of parenting cases where there is some combination of domestic violence, alcohol and or drug abuse, actual or serious risk of abuse of some kind directed toward the children, fortunately here, the choices available to the Court are all good. This is to say that (a) there is no ‘bad’ school, (b) all the schools listed by the parents are good schools, and (c) the impasse between the parents is essentially a function of differing parental philosophical disposition or preference about different educational approaches used in the schools listed, and how, in the opinion of each parent, one school better (not “best’) suits the child/children in question.
As a public resource, courts are intensely mindful of the onerous burden that litigation places on litigants – represented and self-represented. At the same time courts are required to be as vigilant as possible in the management of its ever-dwindling and otherwise scarce resources. The High Court has made such matters very clear.[14]
[14] AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
In my view, a proper consideration of the authorities to which I have referred should have confirmed that the disqualification application had no factual basis, and even less legal basis, that there was a reasonable prospect of success.
For the above reasons, the orders to dismiss the application, and to transfer it to the docket of Federal Magistrate Brewster, were made on 6th September.
In the usual course, the dismissal of such an application would result in an award of costs against the unsuccessful party. However, given that no such application was made (perhaps understandably by the self-represented Mother) there was no order for costs.
It is to be regretted that a Court considers it necessary to be critical of the conduct of a matter. However, making every allowance for the earnest, or even zealous, prosecution of one’s case, it is more surely to be regretted that the ill-conceived conduct of a case could have been avoided by (a) proper consideration of relevant and readily available authority, and (b) a more temperate assessment of the facts in the light of that authority.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 14 September 2012
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