Re B (Alleged Apprehension of Bias)

[2003] FamCA 1298

[2003] FamCA 1298

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal No. NA41 of 2003
File No BRF12066 of 1998

RE B (ALLEGED APPREHENSION OF BIAS)

REASONS FOR JUDGMENT

Edited for Publication

CORAM:	NICHOLSON, CJ, ELLIS and YOUNG JJ
DATE OF HEARING:	29 September 2003
DATE OF JUDGMENT:	30 September 2003

APPEARANCES:

Mr McDiarmid

of counsel

The identity of the instructing solicitors has been excluded for the preservation of anonymity

Mr Crisp

of counsel

The identity of the instructing solicitors has been excluded for the preservation of anonymity

NAME OF CASE   RE B (ALLEGED APPREHENSION OF BIAS)

NUMBER OF MATTER   BR 12066/1998

APPEAL NUMBER   NA 41/03

TRIAL JUDGE  Jordan J
DATE OF ORDERS  27 June 2003

APPEAL CORAM:  Nicholson, CJ, Ellis, Young, JJ
DATE OF APPEAL HEARING  29 September 2003
DATE OF APPEAL JUDGMENT  30 September 2003

CATCHWORDS

APPEAL - COURTS AND JUDGES - Bias – Alleged prejudgment – Trial Judge refusal to disqualify himself – No error by trial Judge – Trial Judge merely ordered a temporary arrangement which might enable him to better determine the application for no contact between Wife and children – Observations on the nature of children’s proceedings and case management.

CHILDREN – CONTACT - Previous residence hearing resulted in orders in Husband’s favour - Final hearing listed as to contact - Insufficient expert evidence - No contact between Wife and children for 14 months - Allegations against Wife of emotional abuse of children due to Wife’s insistence that the Husband had sexually abused the children and Wife’s insistence on examining children - No evidence of sexual abuse - Limited supervised contact ordered by trial Judge on an interim basis in advance of a final hearing to determine Husband’s application for no contact between children and Wife.

LEGISLATION CONSIDERED

CASES CONSIDERED

Johnson v Johnson (No. 3) (2000) FLC 93-041
In re Watson; ex parte Armstrong (1976) 136 CLR 248
Bienstein v Bienstein (2003) FLC 93-124
Rice v Asplund (1979) FLC 90-725
M v M (1988) 166 CLR 69
re P ( a child); Separate Representative (appellant) (1993) FLC 92-376
Re Lynette (1999) FLC 92-863

REPORTABLE

1. NICHOLSON CJ:  This is an appeal by the husband against the refusal by Jordan J to disqualify himself from further hearing proceedings between the parties.  The grounds of the appeal are:

   (i)That the trial Judge as a consequence of comments made during the course of hearing had prejudged the matter without hearing the totality of the evidence; and

   (ii)That the conduct of the trial Judge during the course of the hearing raised a reasonable apprehension of bias in that he may not bring an impartial or unprejudiced mind to the resolution of the issues between the parties.

2. The husband seeks that the appeal be allowed and that the hearing be remitted for re-hearing before a single Judge of the Brisbane Registry, presumably other than Jordan J although the order sought does not say so. 

3. Turning to the background of the matter the parties were married [in] 1995 and separated [in] 1998.  There are two children of the marriage, CR now eight and CL now nearly six.  The husband is 51 and the wife is 42.  She has a [teenage] daughter from a former relationship. 

4. On 10 September 1998 consent orders were made in the Magistrates Court of [the town of K] following the separation, providing that the children reside with the wife with appropriate contact to the husband.  Shortly thereafter the wife made her first of many notifications to Youth and Family Services making allegations as to inappropriate sexual behaviour by the husband in relation to the children.  The wife also attempted to leave Australia with the children at that time and had to be restrained from doing so.

5. On the 23 and 25 November 1998 she made applications for permission to remove the children from Australia without the father's consent and for suspension of contact.  On 2 December 1998 the husband filed a response seeking orders of the return of the children to the town of K and interim residence in his favour.

6. On 22 December 1998 the wife filed a Notice of Risk of Child Abuse alleging various forms of sexual and other misconduct by the husband.  On 23 December Hilton J made interim orders refusing the wife's application for suspension of contact and ordering her return to the town of K with supervised contact to the husband.

7. On 25 January 1999 the wife made further allegations to the department, and, as a result, the department commenced a full investigation.  Problems continued throughout 1999 with frequent complaints by the wife of sexual abuse, none of which were substantiated. 

8. An eight day trial was conducted in July of 1999 by Jerrard J who made final orders on 2 February 2000.  His Honour made orders that the children reside with the husband and provided for the wife to have contact with them.  The orders were detailed orders but for present purposes it suffices to say that they restrained the wife from taking the children for medical examinations or making notifications of sexual abuse to relevant authorities.  His Honour rejected the allegations that the wife had made against the husband as to sexual abuse and, indeed, expressed doubt about the value of supervised contact in this case.

9. The wife appealed against his Honour's order and the appeal was dismissed on 13 December of 2000.  The wife continued to make repeated notifications of abuse by the husband and there was an additional claim by her daughter of abuse, which led to the husband being charged with indecent dealing.  According to the certificate handed to Jordan J, that charge did not proceed as the Director of Public Prosecutions decided that an indictment would not be presented.

10. In early 2002 following a repeated pattern throughout 2001 the department made an application for a Child Protection Order and the husband made an application in this Court seeking orders that there be no further contact between the children and the wife.

11. In this regard it is of significance to note the affidavit of a departmental officer, [Ms AF] which was sworn on 14 February 2002 in the child protection proceedings and in particular par 21 of that affidavit where she said:

    "Given the current Child Protection Assessment, the reading of files and reports and documents associated with the family, these included behaviours and actions taken by the mother of CR and CL, the following child protection concerns have been identified:

    (a)The ongoing interrogation by [the wife] and her friends and their interpretation about these events are likely to leave children confused and having a damaged sense of their sexuality and personal health and wellbeing.  The most significant concern is the repeated sexual examination of the children by [the wife’s] friends.  These actions impact upon the children.  In her report [NB] raised concerns for CR being subjected to ongoing examination of his anus and felt this was a, “very unusual and a very abusive situation and professional literature is very explicit in describing the negative effects for the children subjected to such abuse”. 

    (b)Emotional abuse has occurred to the children in the form of repeated questioning.  The ongoing questioning and the insistence on continuing the questioning over the extended period of the boys’ short lives are of concern. [The wife] and her friends have repeatedly questioned the children and have formed their own opinions from the questioning without the necessary skills and expertise to perform such interviews. 

    (c)Departmental files indicate the children have been taken to various doctors by [the wife].  This has raised concerns of the impact upon the children by being repeatedly examined and their privacy violated and the risk of multiple diagnosis and medications.

    (d)The repeated contact by [the wife] with various agencies is placing the children significantly at risk of harm.  Through this process the children are subjected to interviews and intrusive examinations.

    (e)The children being subjected to repeated false allegations directly impacts upon them.  According to NB's report it states a child who is asked to “lie quite seriously, then to keep the secret” and is not given an opportunity to access any assistance.[sic]  The mother closes the avenue and the message given to the child is, if you tell, I am not a good mother.  She cites this as being “a ploy of abusive parents to powerless children”. 

    (f)[The wife] has a lack of insight into the impact of her actions upon the children.

    At that time the department had a case plan which involved supervised contact between the wife and the children. 

12. Ms AF expressed the conclusion at pars 28 and 29:

    "28. There has been extensive departmental history of unsubstantiated assessments of sexual abuse by their father over a period of approximately three years.  The children made no disclosures during the interviews conducted by the Police [in the town of K] and departmental officers.  Medical examinations of CL and CR indicate there is no evidence of sexual interference or inappropriate treatment of the anal region.  Concerns have been raised regarding the children's mother and her behaviour as this may expose the children to continual emotional harm through being exposed to unnecessary examinations by health professionals, police and departmental officers and other non-professional persons.

    29.I have formed the opinion that CR and CL are children in need of protection, and such protection is not likely to be ensured by any other less intrusive order the Court may make.  I now make application for a directive order pursuant to s 61B(2) of the Child Protection Act directing [the wife] not to have contact (direct or indirect) with CR and CL, unless a person approved by the department is present.  The order is sought for a period of six months.”

13. Supervised contact then, it would appear, took place on a weekly basis until 1 May 2002.  The department meanwhile made various attempts to assist the parties but it is apparent that the wife was unable to alter her position despite this assistance.  In this regard I refer to the affidavit of Ms AF.  It appears at page 180 of the Appeal Book where she describes home visits that she made to the wife, between 15 May and 10 July.  The affidavit recalls at par 17:

    "[The wife] was able to state that she had followed all the procedures outlined in the publications given her to read, these being, “From Trauma to Understanding” and “Understanding Children's Behaviour.” " 

14. Those documents were exhibited to the affidavit.  Paragraph 17 continues:

    "All of the behaviours outlined in these publications reaffirmed her belief that both CR and CL had been the victims of sexual abuse and were continually being abused by their father.  I had stated to [the wife] on numerous occasions that there was no physical evidence to suggest that either child had been sexually abused and that the children had not disclosed any sexual abuse.  To these statements [the wife] consistently stated that she knew the difference between what is normal sexual behaviour and what is not normal and CR's behaviour was certainly not normal.

    Then it is said in par 18:

    “18. [The wife] would become upset when she was challenged about the continual assessments of CR and CL for sexual abuse by herself and her friends and the System, designed to protect children.  (Department of Families, Medical Assessments, Police) [The wife] appears to have no insight into how her actions have impacted upon the children and she stated to me “that she would continue to have them examined to ascertain whether they had been sexually abused” if they were returned to her."

15. On 23 April of 2002 Registrar Dittman made orders which, inter alia, provided that upon the children ceasing to be under the care of the Department of Families, physical contact between the mother and children was to be suspended until further order.  The department shortly thereafter ceased its involvement and that order presently remains in force.  The children have therefore had no contact with the wife since the beginning of May of 2002. 

16. It was against this background that the matter came on for final hearing before Jordan J on 26 June 2003 for a hearing anticipated to take seven days.  His Honour had before him relevant material from the department and a report from [Professor N], a psychiatrist, dated 18 September 2002 together with a family report from [Mr. DB], a social worker, dated 22 June 2003. 

17. Professor N's report contains a detailed history of the matter to that time and he concluded:

    "1.Although there are a number of possible explanations for the allegations of sexual abuse (maternal delusion, maternal confabulation, valid allegation), the most likely explanation is that the allegations of sexual abuse against [the husband] have been fabricated, and that, by persuasion and indoctrination, [the wife] has enlisted the support of friends in furthering these allegations. 

    2.It is unlikely that allegations of sexual abuse will cease, at least in the short term. 

    3.For that reason, the Court may wish to consider suspending contact between mother and children for a period of one year, at which time a further psychiatric review could be instituted."

18. That report is of some significance.  Surprisingly it had not been updated at the time that the matter came on for hearing,  although nine months of the suggested 12 months had already passed and in those circumstances, it was perhaps not unreasonable for his Honour to have taken the view that the qualifications expressed by Professor N had been satisfied save that no further report had been obtained.

19. Mr DB was engaged by the child representative to prepare a report in June 2003.  His report was obviously prepared in some haste and involved interviews with the husband and the children but not apparently the wife.  The interviews took place on the 19 and 20 June 2003 and included a visit to the children's school and discussion with teachers.  Mr DB's conclusion was as follows at par 31 of his report:

    "It is difficult to undertake a telescoped report having been provided with minimal information, but the writer’s reaction is one of sadness that these two boys are not having some sort of relationship with their mother, particularly in light of the poignant statements of CR. Given his age CR has more memory of his mother and more attachment, and his behaviour and demeanour are the more striking.  Whilst CL has least memory and a rote acceptance of not living with Mum, he still is definite about wanting contact.  As to the extent that CR being overweight, CL having a speech impediment,  CR having significant behaviour problems at school are related to not seeing their mother, this is open to conjecture.  However under all the circumstances it is respectfully concluded that resuming contact under strictly controlled conditions, if that is what is deemed necessary, is at least worth a try."

20. Unfortunately the Appeal Book does not contain a full transcript of the events that took place before his Honour on the 26 and 27 June but rather extracts from it.  It is difficult to understand why this course was adopted, as these proceedings were not lengthy.

21. Doing the best we can, however, the extracts reveal that the matter commenced at 10.06 am on 26 June.  The first thing that took place was the announcement of appearances and counsel for the parties delivered to his Honour outlines of argument.

22. The husband's case was simply that the existing situation should continue.  That is, that there should be no contact between the mother and the children. 

23. The mother altered her position, which had been that the father's application should be dismissed or alternatively that she should have supervised contact at such times as should be determined by the Court.  Her proposed minutes of orders submitted to Jordan J were:

    “A.

    In terms of the orders of Jerrard J of 7 February 2000 save for paras 5, 11 and 14.

    Alternatively:

B.

(1)THAT the children [CR ands CL] reside with the father. 

(2)THAT the father have sole responsibility for the day-to-day care, welfare and development of the children.

I interpolate there that, importantly, what was sought continued:

(3)THAT UNTIL FURTHER ORDER the mother have contact with the two children one day each week at an agreed contact centre at such times and dates as is convenient to the contact centre. 

(4)THAT the issue of the mother's unsupervised contact with the children be reserved until such time as the mother has attended upon a psychologist for therapeutic counselling for a period of three months. 

(5)THAT the mother authorise the psychologist referred to in paragraph (4) to report to the Child Representative.

(6)That the appointment of the child representative continue for a period of six months from the date of this order.

(7)That there be liberty to apply in relation to the issue of contact.”

1. It is important also in referring to the transcript to refer to a passage that appears following counsel for the father seeking to raise a Rice v Asplund (1979) FLC 90-725 argument. His Honour interrupted:

   "Yes.  Yes, well it seemed to me in reading the material I should firstly place on record there is a great deal of material in this case and given time constraints, because of those time constraints and because of a view I was forming on the matter I’ve read all of the material submitted by the child's representative.  I've read the father's affidavits.  I've only started reading the mother's material and at this stage I’ve focused on reading her affidavits only.  Subject to what happens on these preliminary matters I will need to stand down to read the additional affidavits filed by the mother. 

   “But as I say as I was reading the matter, it occurred to me that there would be a need in some way to identify the parameters of the case, that's in the context of the submissions you’re about to make on the Rice v Asplund  issues.  I see it particularly in light of the orders sought by the mother in the proposed minutes of orders, at least theoretically I would've thought, if that is the relief being sought by the mother, it has the potential of significantly narrowing the scope of the exercise to be undertaken."

2. His Honour then expressed concerns about the prospect that he might be drawn into revisiting issues already determined by Jerrard J. 

3. Then his Honour, after saying that the scope of the exercise might be comparatively narrow, said:

   "But I'm even more interested in at this stage - I understand that people want to inspect subpoenaed documents but in light of what Mr Crisp is saying and even more so in light of the proposed orders and the report of Mr DB  - I want to raise with the parties and their legal representatives a broader issue.  That is, say to the legal representatives for the father and the child representative, in a sense: why shouldn't I make the orders sought by the mother in the proposed minutes of order given the background  that Jerrard J heard this matter for eight days and determined that there should be a change of residence but that there should be ongoing contact between the children and their mother?  Prima facie the children have a right to have a relationship with and contact with both parents.  The husband has raised concerns about the role played by the mother  the ongoing raising of issues of possible abuse and I understand how there may be a factual question in that that needs to be determined.  But, given the mother, it appears, on the face of her proposed orders, is prepared to submit to a period of contact supervised at a contact centre, with a prospect of a review in a period of some months"

4. Mr Crisp interpolated:

   "It’s three months."

5. His Honour continued:

   "Three months and given the report of Mr DB and his recommendations the apparent wish of the children was to have some ongoing relationship with their mother and, as I say, the determination of Jerrard J that there should be such contact, I pose the question why wouldn't one explore that option as a first resort rather than – [sic] and monitor and assess and then review in the context of to what extent are the children benefiting from that contact one would expect to what limited extent might they be harmed by such contact given that it would be supervised at a contact centre rather than to continue with the option of a last resort which is to deprive these children of the opportunity of having any relationship with their mother?  And whether it's a question of terms and conditions although I would've thought all safety issues are addressed at least as a temporary measure by the implementation of a regime under the strict supervision which prevails at a contact centre where there is simply no opportunity to take children to doctors or agencies or have others do it on the mother's behalf.  That's my broad concern."

1. His Honour went on to say that he had appreciated the father's perspective but also he expressed concern at the price the children might pay in the short and the long term and he referred again to Mr DB's report and to Professor N's report.  Then he continued:

   "before we embark upon yet another lengthy exercise involving no doubt difficult issues for each of the parties, I want a proper exploration of an appropriate outcome for these children and the parties to be fully explored by the legal representatives for the parties and the children and the parties themselves."

His Honour then stood the matter down to give the parties an opportunity to consider the matters that he had raised.

1. The transcript continues at 2:46 p.m. on that day, although it seems likely that something was said prior to the resumption of the transcript.  At this stage, his Honour said:

   "I must say I had in mind another course and what I think I should do is briefly outline what I had in mind and give you the opportunity to address me on the proposition that I want to pursue. 

   In broad terms, it is one that I should not proceed to hear the matter but that I should make orders largely in terms of the orders sought by the mother subject to discussion about the terms and conditions of that proposal for contact and that I should then review the matter again subject to argument in a period of about 6 or 9 months.  All of the detail - the whole proposition is open for discussion and certainly the detail is open for discussion but as I said this morning I have some significant reservations about the prospect of embarking upon a seven day or a two, three, four day trial in this matter given the issues and the background as I have perceived it in the material and given that what the mother is now seeking through her proposed orders are very limited supervised orders for contact subject to further psychological assessment, subject to ongoing involvement of the child's representative and subject to liberty to apply and it seems to me that that represents at least a viable option and one that exercised my mind as I was reading the material, as I say and I would be concerned about the prospect that given it is now the mother's limited application that I would be sitting here for two, three, four or seven days with that outcome in mind and I wouldn't be being honest to the parties if I sat here and went through the motions when I took the view that it would be simply in the interests of the children very difficult to resist that type of an outcome at least as a temporary measure even if one accepted all of the father's testimony."

2. He then said:

   "If I accepted his interpretation of everything that has happened I am concerned that, as a broad overview of the matter, whatever be the mother's sins that they are being visited upon the children when denial of a relationship between young children in particular and either of their parents should be seen as an option of last resort and even on the husband's best case I have reservations that we have reached that bleak stage that these children should never be allowed to see or know or have contact with their mother or at least until, as I believe the father suggested, until they are teenage boys."

3. His Honour then went on to say that he suspected at the end of a trial, even if he accepted everything the father said, he would be minded to:

   "put in place some temporary orders or limited - very supervised contact and then with a view of reviewing it, hopefully with some further important evidence that then would be available to the Court, and that if the mother in some way that is difficult to anticipate, mismanaged her opportunity to have contact with her children through that supervised regime, then perhaps one reaches the option of last resort and as I say, I am concerned about the prospect of not providing the mother with contact at this stage."

4. That ended that quote and the parties, it seems, then left for further discussions.  There is no transcript as to what took place on their return.  His Honour then delivered an ex tempore Judgment, which largely embodied the views that he had been expressing. 

5. He briefly summarised the history of the matter and in particular referred to the fact that the wife had no unsupervised contact for 18 months and no contact for 14 months.  He noted that counsel for the husband was opposed to any course involving further contact between the children and the wife and sought that the matter proceed as a formal hearing.

6. His Honour indicated that while he took into account the perspective of the parties, his focus must be on the best interests of the children and that the deprivation of children of the right of contact with a parent should be seen as a last resort.  He said at par 29 of his Judgment:

   "In this case, what I am shying away from is embarking upon a seven day hearing with an object of depriving these children of their relationship with their mother on the evidence as it stands.  I have in mind making orders which will, at least temporarily, restore some modest level of a relationship between these children and their mother.  I propose to do so, in part to explore that prospect in the shorter and the longer term for the relationship, but also, in no small part, to enable me to have before myself all of the most important information before one contemplates the grave decisions being sought on a final basis in this case by each of the parties."

7. His Honour continued at par 32:

   "In contemplating making the orders sought by the mother at this time as an interim order without hearing the husband's case, one would obviously need to be very confident that the orders being contemplated are appropriate.  I take account of the father's evidence as it stands.  I acknowledge that a full hearing would be likely to place further evidence before the Court and a good deal of it may enhance the concerns raised by the father.  I note he would argue that not only did the wife fabricate evidence against him up until the final hearing in 2000, and that she directly involved the children in that fabrication, but after the trial she has continued to enlist the children to pursue further false and damaging allegations against the father to the detriment of the children."

8. At par 37, his Honour said:

   "… any contact regime that I would put in place pending a final hearing would provide the mother with very little scope indeed to cause her children any harm.  The safeguards that would be put in place would be that the mother's contact would initially be supervised by Family Court counsellors and the second phase of the program would see the mother's contact supervised by the contact centre.  In addition, it is anticipated that there be this further safeguard that each of the parties and the Child Representative would have liberty to apply to bring this matter back before the Court should there be any difficulties with supervised contact."

9. His Honour commented that the recommendations of Professor N had effectively been complied with in the sense of the time that had passed and referred again to the report of Mr DB.  He continued, at pars 40 - 42:

   "40. In my view, therefore, I am satisfied that a limited period of supervised contact is likely to be safe for these children.  More importantly, hopefully it will be a positive experience, and I hope that the father, himself, would see that there is benefit for the children in having some opportunity for positive contact with their mother and that he would see that such an outcome is beneficial for his two sons and more likely to ensure that the children's progress is such as will enable them to have the benefit of input from each of their parents.  If the proposed regime works well, one can then look to, perhaps, moving to the next stage, hopefully with the long term objective of restoration of a meaningful and positive relationship between these children and each of their parents. 

   “41. I am satisfied given the safeguards I have referred to that the prospect of any harm being occasioned is very limited and that that limited risk is worth taking in the short term for the long term benefit of these children.  Further, and importantly, I am satisfied that if I take that step and if I make appropriate orders to provide the Court with evidence about how that contact is progressed, then this Court will, at the final hearing, in fact, be in a much better position, one way or another, to make the grave orders being contemplated by the competing applications in this case. 

“42. I will have direct evidence of how the mother conducts herself during this period.  I will have direct evidence of how the children interact with their mother and the effect of that contact upon the children.  As I say, if it proves to be an unhealthy experience, then one would be much more comfortable in contemplating the option of last resort.  In contemplating the appropriateness of any decision to suspend this hearing and make orders for temporary supervised contact, I have taken account of the fact that such a course is fully supported by the children's own legal representative in these proceedings and that prospect was apparently proposed by the Child Representative independently of this process, no doubt in light of the recommendations of the Court Counsellor."

1. His Honour then concluded, in what I regard as a most significant passage at par 44:

   "44. For all of those reasons I am satisfied that I should make orders for a period of supervised contact.  By way of reassurance to the father and notice to the mother, I indicate that I intend to continue to manage this matter.  I will make myself available to hear any further interlocutory applications and it is my intention that, should this matter need to proceed to a full hearing, I will continue to hear and determine the matter so that neither of the parties will face the prospect of having, as it were, to start again with another Judge nine, twelve months in the future.  In that way, the father has the reassurance that I have taken on board his concerns and declared my willingness to ultimately make the orders sought by him if it proves to be appropriate.  The mother is on notice of the remarks I have made today including those referring to the consequences of a misuse by her of restoration of this limited level of contact with the children."

2. I regard that paragraph as particularly significant because I think it gives the lie to any suggestion that his Honour had predetermined the issues in the case.  In fact, far from that, his Honour specifically contemplates the possibility that the case will have to be determined and he will have to make orders that will provide that there be no contact between the mother and the children.  It is very difficult in my view to interpret that as involving any element of pre-judgment.

3. Having delivered this Judgment, his Honour stood the matter down to consider the form of the orders.  In fact, his Honour never pronounced those orders.  Although no transcript is available, it is apparent from his Honour's Judgment given the following morning on the application that he disqualify himself, that the husband's counsel made an application that he disqualify himself and advanced argument to that effect.  His Honour rejected this application in a detailed Judgment. 

4. There then appears to have been an indication by the husband that he proposed to appeal and to seek a stay of his Honour's orders.  His Honour then directed that the husband file his notice of appeal and application for a stay of orders within 10 days, and adjourned the matter to 10 July.  On that day, the notice of appeal having been filed, his Honour directed that the matter be listed for mention before him on 8 October.  No mention of the stay that had been referred to is made in that order but, indeed, the original orders contemplated by his Honour, as I have said, were not formally made.  I presume there was an agreement, or at least an understanding that no action would be taken pending the outcome of this appeal in that regard.

5. In the course of his reasons for refusing to disqualify himself, his Honour neatly encapsulated the submissions made to him by counsel for the husband which also involved the substance of the submissions made to this Court on this appeal.  I refer to pars 10 and 11 where his Honour said this:

   "10. Bearing those matters in mind, the proposition advanced by counsel for the father essentially is that as a consequence of the orders proposed and my conduct in the proceedings yesterday, a fair minded person might be left with a reasonable fear that my mind, being the mind of the decision maker, was so fixed on a particular outcome that it may support a perception of bias.  On the facts of this case, it is to be asserted that my mind was so fixed on making orders that contact must take place in this case.  The submission is that, in the context of the mother wanting contact and the father being opposed to any contact, my orders for some level of temporary  supervised contact pending the further hearing of the matter, constituted a prejudgment of the substantive issue between the parties. 

   11.It was submitted that in conducting myself in that way, the father was deprived of the opportunity to do what he had expressly come to Court to do, and that was to present extensive evidence, over seven days if necessary, with a view of persuading the Court that it was not in the children's best interests to have any ongoing conduct with their mother.  It is submitted that, making the orders for contact anticipated, even though they were to be temporary limited orders, displayed a bias to the outcome sought by the mother and a bias against the outcome sought by the father.  It was submitted that in doing so in the circumstances outlined, I did not weigh up all of the evidence and that could give rise to a reasonable apprehension of bias."

6. His Honour, in the course of that Judgment, made repeated reference to the temporary nature of the orders proposed and their purpose.  I refer to pars 21 - 24, where his Honour said:

   "21. Related to that, I need then make observations about what was done to determine whether that could be construed as a prejudgment.  What was done was to indicate that I propose to adjourn the final hearing of the competing applications of each of the parties, and in the meantime make temporary orders for limited supervised contact.  In that sense, neither of the parties was successful in their substantive applications for either no contact on the one hand or unsupervised contact on the other.  As I observed during the course of counsel's submissions, those are the types of orders made on a daily basis in the Duty List and there has never been any suggestion in my experience that a Judge making such interim orders in the Duty List should be disqualified from the final hearing of the matter. 

   22. I appreciate that there are some fundamental distinctions in this case, as I have been assigned as the Judge to hear and determine the matter on a final basis and that I am purporting to make interim orders in the context of a final hearing.  That is a valid distinction but not one which, in my view, renders the observation about the daily practices in this Court as irrelevant. 

   23. Secondly in the context of proposing those orders, I observed that I heard a report about the impact of deprivation of contact on the children.  I had the father's evidence that deprivation of contact was having no adverse impact upon the children and that they were not missing the mother.  On the other hand, the welfare report suggested that there were some elements of sadness, some elements of suggesting the children might be missing their mother, and that they might like to see her.  I observed that that evidence was in the vacuum of any contact between the mother and the children for a period of at least 14 months.  I indicated that I thought I would be greatly assisted by further similar evidence in the context of the reality of some limited safe contact, in fact, taking place.  I expressly observed that I thought such evidence would be important and of assistance in the final hearing.  In that context, in fact, I made observations that I would likely be assisted by such evidence when contemplating the grave orders being sought in this case by each of the parties.  The orders being sought by the father, on the other hand, would result in a deprivation of the relationship between the children and their mother at least for a number of years.  Those sought by the mother, on the other hand give rise to the possible exposure of these children to ongoing emotional abuse by the mother. 

   24. It was in that context that I said that I perceived that there were benefits in the adjournment and the temporary orders for contact and capacity thereafter for the Court to obtain that evidence to assist it to make the best possible decision for these children in the circumstances."

7. His Honour went on to say that it was common practice for trial Judges to adjourn cases part heard at all stages during the process when they were contemplating applications where one of the parties seeks an order that there be no contact between the children and the parent and his Honour pointed out that the Court does so, in part, to ensure that it has the best possible evidence to ascertain how the children cope in such circumstances.

8. His Honour continued in, what again, was an important passage at par 25:

   "It is also appropriate to observe in that context and in light of the proceedings in this matter that it is often said in this Court that, in matters involving children, it is unwise to limit one's thinking to address such matters on an entirely adversarial basis.  The Family Court has a higher duty to conduct proceedings in the optimum way to ensure that it has before it the best possible evidence to make the best possible decision for the children in issue.  I believe I made it clear that that was part of the purpose of the course proposed by me.  Such conduct, in my view, far from suggesting that I had reached a concluded view, suggests that before I made such a decision, I wanted to explore options and receive the best updated relevant evidence to assist me to reach such a concluded view."

9. His Honour then went on to reject the submission in relation to bias.

10. In my view, the last passage that I quote above, is important because, in my view, it does represent the law and it really answers most, if not all, of the arguments advanced by the appellant in this case.

11. As I have said, counsel for the husband largely put to us the arguments encapsulated by his Honour in the passage referred to earlier.  In doing so, she relied upon the well known line of authorities commencing with In re: Watson ex parte Armstrong (1976) 136 CLR 248 and ending with Johnson v Johnson (No. 3)(2000) FLC 93-039 and Bienstein v Bienstein(2003) FLC 93-124. I think, for present purposes, I need do no more than refer to the remarks of the High Court of Australia majority judgment in Johnson (No. 3) where their Honours  (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at pars 11 to 14 (footnotes omitted):

    "11. … It has been established by a series of decisions in this Court that the test to be applied in Australia in determining whether a Judge is disqualified by reason of the appearance of bias (which in the present case was said to take the form of prejudgment) is whether a fair minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide.

    "12. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done.  It is based upon the need for public confidence in the administration of justice.  “If fair-minded people reasonably apprehend or suspect that the tribunal prejudged the case, they cannot have confidence in the decision.”  The 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.  At the same time, 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.  (Footnotes omitted)

    “13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.  The rules and conventions governing such practice are not frozen in time.  They develop to take account of the exigencies of modern litigation.  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.  In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.”  Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment.  Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented.  On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.  (Footnotes omitted)

    14. There was argument in this Court, prompted by Anderson J’s explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it.  Clearly, in some cases it can.  So much has been expressly acknowledged in the cases.  No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment.  On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement.  It depends upon the circumstances of the particular case.  The hypothetical observer is no more entitled to make snap judgments than the person under observation.” 

1. In my view, upon the basis of the above test, the grounds of appeal are not made out in this case.  I think that it is apparent that his Honour in no way pre-judged the issue before him.  It is true that he was not prepared to proceed with a trial upon the basis of the material before him and in light of the absence of any contact between the children and the wife for a considerable period. 

2. The husband sought to characterise this as a determination that there should be contact in circumstances where he saw the issue as one of being no contact.  While this was the order that the husband sought, I do not think it appropriate in children's matters for the parties to be able to determine the issues in this way.  As his Honour pointed out:

   "The primary focus of proceedings such as this, must be on the children and their best interests and that such proceedings are not adversarial.” 

3. It has been said many times that proceedings involving children under the Family Law Act 1975 (Cth) are not strictly adversarial, for example: M v M (1988) 166 CLR 69; re P ( a child); Separate Representative (appellant) (1993) FLC 92-376; Re Lynette (1999) FLC 92-863.

4. All that his Honour did was to foreshadow a temporary arrangement which might enable him to better determine the issue before him, that is whether there should be any contact.  Nothing his Honour said suggested that he prejudged that issue.  Indeed, he made it quite clear that he did not. 

5. Much of the argument advanced by his counsel was directed at whether his Honour should have exercised his discretion as he did.  While I can see nothing that indicates to me that his discretion miscarried, that is not the issue in this appeal.  The husband has not appealed against his Honour's exercise of discretion but rather against his refusal to disqualify himself.  In order to succeed with that proposition, he must establish bias within the meaning of the appropriate test on the part of his Honour.  In my view, he has failed to do so for the reasons stated by his Honour and the reasons I have already stated.  It follows that I consider that the appeal should be dismissed. 

6. I would add that I think it essential in children's cases that Judges should have the capacity to manage them appropriately.  In my view, this case was not ready for trial when it came before his Honour and his Honour clearly recognised that.  In such circumstances, it would have been a waste of time for his Honour to have embarked upon it.  There was no up to date report from Professor N, and Mr DB's report was prepared in haste and reflected that fact. 

7. His Honour was, in effect, being asked by the husband to make a decision of considerably gravity based upon historical material in circumstances where no exploration of contact had taken place for 14 months.  I agree with his Honour as to the potential waste of time that this would have involved.  I think that the time is long past when Judges should be expected to sit passively and determine issues defined by the parties or as, in this case, by one of them, in circumstances where the best interests of children are involved.  Courts must be able to manage the proceedings that come before them both in the interests of the parties, the children and other litigants who seek to use the Court's services.  I am unable to accept the proposition that a Judge who seeks to manage a case, as Jordan J did here, should in any way be regarded as having prejudged the eventual outcome.  I consider that the approach taken by his Honour was correct and, as I have said, for those reasons I would dismissed the appeal.

8. ELLIS J:  I also agree that the appeal should be dismissed.  I agree with the reasons of the learned Chief Justice and with his comments.  There is nothing further I wish to add.

9. YOUNG J:  I also concur with the reasons as given by the learned Chief Justice.  I conclude that his Honour, the trial Judge, was both conscientiously and properly hearing and managing the issues in these somewhat bitter and protracted proceedings.  I find his Honour's conduct vigilant, even-handed, and in the best interests of both children.  The proposed order for limited supervised contact was, and could, and should only have been seen as a temporary order with an adjournment of the proceedings part-heard before his Honour now to resume on 8 October 2003.  I can find no merit in this appeal.  There is no bias.  What the appeal has effectively done is to put on hold the proceedings and extend by three months the commencement of the proposed supervised contact between the wife and children.  I echo the words of the Chief Justice as to the propriety and the necessity for Judges to effectively manage and intervene in and conduct children's cases before them.  The appeal should be dismissed.

10. NICHOLSON CJ:  The orders of the Court will be that the appeal is dismissed.

    RECORDED  :  NOT TRANSCRIBED

11. NICHOLSON CJ:  In the circumstances, we do not propose to make any order for costs.

I certify that the preceding 60 paragraphs are a true copy of the reasons for judgment
 edited for publication, delivered by this Honourable Full Court.

Danny Sandor

Senior Legal Associate to the Chief Justice
17^th December 2003