Re F: Litigants in person guidelines

[2001] FamCA 348

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT MELBOURNE Appeal No. SA 1 of 2000
File No. ML 10368 of 1994

IN THE MATTER OF:

Re F : Litigants in Person Guidelines

_____________________________________________________________

EDITED
REASONS FOR JUDGMENT OF THE FULL COURT

_____________________________________________________________

Coram:  NICHOLSON CJ, COLEMAN AND O'RYAN JJ
Date of Hearing:                4 SEPTEMBER 2000
Date of Judgment:            4 JUNE 2001

Appearances:

The husband appeared in person.

Mr Skerlj of Counsel instructed by
Peter Falconer and Associates
5B Lt. Ryrie Street, Geelong, VIC, 3220
appeared for the respondent wife.

Catchwords: Family Law - Children - Parenting Orders - Residence - Contact.
Family Law - Practice and Procedure - Hearing - Whether trial Judge afforded procedural fairness - Compliance with the guidelines set out in Johnson and Johnson (1997) FLC ¶92-764 - Consideration and revision of the guidelines set out in Johnson and Johnson (1997) FLC ¶92-764.

Family Law - Court and Judges - Whether bias or apprehension of bias by trial Judge - whether trial Judge should have disqualified himself.

This was an appeal from Guest J in proceedings between husband and wife concerning residence of and contact with the child of their marriage, [T] aged 6 years. The parties had been continuously engaged in litigation, both with regards to [T] and also in the context of financial matters, since May 1996. The wife had retained solicitors throughout. Having availed himself of legal representation in the past, the husband had more latterly conducted the litigation in person and represented himself before the trial Judge. On the fourth day of the trial the husband made an application to his Honour that he should disqualify himself. His Honour rejected this application.

In the result, his Honour concluded that that [T] should reside with the wife and she should have sole responsibility for her long term and day to day care, welfare and development. This was also the recommendation of the child representative. He noted that, notwithstanding the husband’s stated devotion to [T], his antipathy to the wife obfuscated his proper attention to the child’s best interests. His Honour ordered that a counsellor supervise contact to assist the parties in relation to compliance.

Nine grounds were relied upon by the husband in his amended Notice of Appeal filed 21 August 2000:

In displaying clear prejudice against the husband during proceedings thereby causing a miscarriage and / or denial of justice.
In displaying clear bias towards the wife during proceedings thereby causing a miscarriage and / or a denial of justice.
In conducting proceedings so as to raise the reasonable apprehension of bias and the reasonable belief that he may not have brought an impartial mind to the issues before him.
In predetermining the applications before him without having heard the evidence in its totality, as evidenced by the comments made by his Honour early in proceedings.
By failing to afford the husband procedural fairness.
In making findings of fact, which were not open to him to make on the basis of the evidence available at the hearing and which were contrary to the same.
By interfering in the husband’s presentation of his case at trial.
In refusing to allow the husband to place reliance upon affidavit material referred to in the husband’s Outline of Case document.
By contrast, in allowing the wife’s counsel to refer to affidavit material not made available to husband.

At trial the husband sought and obtained leave to add a further eight grounds as follows:-

That the trial judge failed to disqualify himself on 29 November for bias, having made remarks indicating that he was prejudiced against the husband.
That the trial judge erred in accepting the evidence of the witness [Ms B].
That the trial judge erred in relation to a matter of fact in that he misunderstood the recommendations made by the psychologist…
That the trial judge erred in accepting the evidence of the counsellor … in that her evidence was contradictory and she simply followed suggestions put to her by the mother's counsel.
The trial judge erred in not finding that the mother had abused the child.
That the trial judge erred in finding that child was more closely bonded to the mother in the absence of evidence to that effect.
1. That the trial judge erred in making orders that were likely to lead to further litigation.
2. That the trial judge failed to hear the whole of the husband's case before forming a concluded opinion about the matter.

The Full Court was also required to deal with husband's assertion that his Honour contravened the guidelines in respect of litigants in person set out by the Full Court in Johnson and Johnson (1997) FLC ¶92-764 largely because he suggested that his Honour had failed to provide a level playing field. Specifically, the husband submitted that the trial Judge had:

Failed to suggest or require the father to tender the transcript of the counselling interview with a Counsellor
Failed to ask the husband if he wished to tender photographs indicative of what he said was the bad condition of the premises in which the wife was living with the child;
Failed to advise the husband as to which parts of his affidavit were inadmissible; and
Permitted the interposing of witnesses without explaining to the father the potential detrimental effects upon his case of doing so.

Held: (per curiam)

A. Determination of the Appeal

Having regard to the evidence before the trial Judge and his Honour's entitlement to form the views that he did, his Honour's discretion in making findings did not miscarry: S v R (1999) FLC ¶92-834 referred to in respect of the mother's evidence of what the mother told the counsellor.

The Full Court rejected the claim that the trial Judge had interfered with the husband's presentation of his case. It similarly did not accept that the trial Judge displayed prejudice against the husband or presided in a manner that was biased or gave rise to a reasonable apprehension of bias: Johnson v Johnson (2000) FLC ¶ 93-041 applied.

The trial Judge was correct to not accede to the husband's application that he disqualify himself: Marra and Empson and The Child Representative Full Court, unreported, 6 December 1996 per Barblett, Fogarty and Lindenmayer JJ; Rasanayakam and Wallooppillai and Thillainadesan (1996) FLC ¶ 92-696; Su and Chang (1999) FLC ¶92-859; Stiffle and Stiffle (1988) FLC¶ 91-977; and Davis and Davis Full Court, unreported 14 June 1995 per Baker, Lindenmayer & Burton JJ cited.

His Honour was very conscious of Johnson and Johnson (1997) FLC ¶92-764 case and went to considerable trouble to comply with it. The Full Court observed:

"The husband’s submission raises the issue of the extent of the trial judge’s obligation to advise a litigant in person as to issues of admissibility concerning his/her evidence. We do not think that the judge’s obligation can or should extend this far. We think it sufficient for judges to do what his Honour in fact did and advise the litigant in person generally as to the sort of evidence that would not normally be admitted."

In any event, the Court said that it did not think that, had his Honour ruled in detail on the admissibility of the husband’s affidavit, the outcome of the trial would have been any different.

On the facts of the case, the Full Court did not consider there had been a departure from the rules of natural justice and did not see any possible prejudice to the husband from the interpolation of witnesses. Insofar as it was applicable, it was therefore not necessary for the trial Judge to have complied with the fourth of the Johnson and Johnson (1997) FLC ¶92-764 guidelines, namely:-

"If a change in the normal procedure is requested by the other parties, such as the calling of witnesses out of turn, to explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course."

B.The Guidelines in Johnson and Johnson (1997) FLC ¶92-764

The Full Court considered it was necessary to revisit the Guidelines: Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, Secretary, Department of Health and Human Services v JWB and SMB (1992) 175 CLR 218 referred to. It noted that internal tensions within the Johnson guidelines are mirrored by tensions between the guidelines and other legislative provisions / rules of court, such as the obligation of judges to ensure that proceedings are not unduly protracted (s97(3) Family Law Act) and to have regard to the need to provide a prompt and inexpensive resolution to matters in dispute between parties (Order 4 rule 4 Family Law Rules).

Noting the admonition in the Guidelines against the giving of legal advice, the Full Court observed:-

"We think that guidelines must not risk compromising the neutrality of the court, or the perception of the Court’s neutrality. Such neutrality is a key feature of the adversarial system. Judicial assistance cannot make up for lack of representation without an unacceptable cost to matters of neutrality. However, in our view, the obligation to provide a fair trial has principal significance for a court of law and it must take some steps to assist a litigant in person in order to do justice between the parties with an eye to the reality of the prevalence and diversity of litigants in person in this jurisdiction.
…
We do not disagree with the formulation of the Full Court in Johnson as to the reasons why it is usually undesirable for the judge to give legal advice, particularly, when it is of a strategic nature. We do however think that there can be circumstances where the requirement to conduct a fair trial requires a judge to give assistance of a legal nature to a litigant in person even though such assistance may risk compromising the appearance of impartiality and neutrality from the perspective of the other side.
As with the law that has developed in respect of the appearance of bias, we think it is necessary to appreciate that the imperative to do substantive justice as between the parties requires the conduct of the presiding judge to be assessed by a standard which is properly informed. The informed nature of that standard must, in our view, take account of the responsibility of the Court seized of the family law matter to properly understand the litigant in person’s position within the litigation.
…
"We have noticed that a number of litigants in person are endeavouring to use the alleged breach of the guidelines as a ground of appeal in itself. We do not think it is appropriate for the guidelines to be used in this way as there may well be good reason in particular cases to depart from some of the guidelines but always remembering the Court’s obligation to provide procedural fairness and a fair trial. Thus, if in the circumstances of a particular case, a trial judge does not follow the guidelines, it does not follow that there has not been procedural fairness and a fair trial.

The Full Court determined to revise what were guidelines 4,5, and 7 in Johnson and Johnson (1997) FLC ¶92-764 and to add a further guideline which should be the first guideline. The revised Guidelines are as follows:-

A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
A judge should explain to the litigant in person any procedures relevant to the litigation;

A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;

If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;

A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;

If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);

Where the interests of justice and the circumstances of the case require it, a judge may:

draw attention to the law applied by the Court in determining issues before it;
question witnesses;
identify applications or submissions which ought to be put to the Court;
suggest procedural steps that may be taken by a party;
clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.

Reportable

This is an appeal from the decision of Guest J given in proceedings between husband and wife concerning the child of their marriage, [T], … now aged 6 years. The proceedings were contested proceedings for residence and contact, which his Honour determined in favour of the wife after a five-day hearing in November 1999. His Honour delivered an ex tempore judgment on 3 December 1999.

THE PARTIES

The husband [Mr F]… is now aged 43 years and the wife [Ms F]… is now aged 41 years. … The parties commenced cohabitation early in 1987 and married [in] May 1988.

BACKGROUND FACTS

The marriage was one characterised by periods of unhappiness. The parties underwent two periods of trial separation between October 1989 and May 1990 and thereafter between September 1994 and March 1995 – reconciling on this occasion at the time of [T]’s birth… .. Their unhappiness continued.

According to the wife the parties ultimately separated under one roof in December 1995. The husband disputes this but nothing turns upon it.

The parties have been continuously engaged in litigation, both with regards to residence of / contact with [T] and further in the context of financial matters, since May 1996. The wife has retained solicitors throughout.

Having availed himself of legal representation in the past, the husband has more latterly conducted the litigation in person.

LITIGATION HISTORY

The history of proceedings can be summarised as follows.

The wife filed a Form 7 application for Final Orders seeking residence of [T] on 16 May 1996. The wife’s application was amended by a further Form 7 filed on 26 August 1997.

On 22 May 1996, following contested proceedings, Nikakis JR ordered that the husband vacate the former matrimonial home …. On this date, Nikakis JR further ordered, inter alia, that the wife have sole custody of [T], that the husband have access to the child on Wednesdays from 1.30pm until 5.30pm and on Saturdays from 10.00am until 4.00pm and that both parties attend a counselling appointment. A child representative was also appointed.

10. On 10 December 1996, following contested proceedings before Hase J, orders were made that the husband was to have increased contact with [T] each Wednesday from 1.00pm until 6.00pm and each Saturday from 9.00am until 6.00pm. Both parties were also restrained from removing [T] from Victoria without the written consent of the other or leave of the court. The parties were ordered to attend upon a psychologist appointed by the child representative.

11. In the event, both parties attended appointments with Jill Brewin, Psychologist, who prepared a report dated 20 February 1997. The report was admitted into evidence at the hearing before Guest J and no party requested the attendance of Ms. Brewin for the purposes of cross-examination.

12. On 5 February 1997 the husband filed a Notice of Child Abuse alleging that [T] had sustained severe facial bruising, consistent with having been the victim of physical assault, whilst in the care of the wife. The husband contended that the explanation for the injuries given by the wife was inconsistent with the injuries sustained.

13. On 26 March 1997, following a contested hearing, Hase J made orders, inter alia, for certain additional contact between [T] and the husband and, on the application of the wife and the child representative, restraining the husband from having the child examined by a medical practitioner, or paediatrician. The husband’s application to remove Mr. Cahill as the child representative was dismissed on 11 April 1997 by Morgan J.

14. The husband filed a Form 8 application for interim residence of [T] on 24 April 1997. Proceedings before Hase J on 9, 10, 13 and 15 May 1997 resulted in his application being dismissed.

15. The husband sought a stay of this order and filed a Notice of Appeal on 14 July 1997. Both applications were subsequently dismissed.

16. On 9 December 1997, following a contested hearing before Smithers J, the husband’s contact with [T] was suspended until further order and a report by a Family Court Counsellor was ordered. The wife had sought the suspension of contact due to the distressing scenes and ‘tugs of war’ occurring between the parties at the time of [T]’s hand back from contact visits to her Father.

17. Both parties filed affidavit evidence and there was some common ground as to the emotionally and physically charged scenes to which [T] was exposed at hand over, particularly on 3 and 6 December 1997. The Court also heard evidence from [a] Senior Constable Meehan … in relation to this matter. The husband made a tape recording of what occurred in the presence of the Senior Constable and a transcript of it was admitted in evidence before Guest J, with the husband’s consent. This however forms the focus of some of the husband’s grounds of appeal

18. The husband’s application to stay the orders of Smithers J pending appeal was dismissed by Judicial Registrar Nikakis and his application to review this decision was also dismissed with costs by Kay J on 24 February 1998.

19. On 15 May 1998 a limited family report was completed by Ann MacVean, Family Court Counsellor.

20. At a hearing before Morgan J on 19 October 1998 all previous orders for contact were discharged and an order made for the husband to have contact with [T] on each alternate weekend and on other significant occasions, until further order. A further family report was ordered.

21. The husband continued to enjoy alternate weekend contact with [T] until the hearing before Guest J. He was also granted additional block periods of contact with [T] in the summer of 1999, pursuant to the orders of Registrar Harold made on 25 June 1999 and Frederico J on 20 August 1999.

22. Another Court counsellor Ms Susan Shaab completed a further family report addressing the issues of [T]’s residence and contact on 12 October 1999.

23. During the course of protracted litigation, the husband issued some 13 applications and 5 responses. He sought to review decisions of the court on 3 occasions and to appeal various orders prior to the final hearing before Guest J in November 1999.

THE TRIAL JUDGMENT

24. Guest J commenced his reasons for judgment by stating that the litigation between the parties had been ‘characterised by an intensity on the part of the husband to secure the residence of [T] at all costs'. His Honour summarised the manner in which the parties had conducted proceedings before him. His Honour found that the respective cases had been presented from two entirely different perspectives. He found the wife to be conciliatory and to recognise the importance of the husband to [T]. He found the husband to have been determined upon a course of denigrating the wife. His Honour said these findings were evident not only on the basis of affidavit material filed by and on behalf of the parties, but also based upon an assessment of their demeanour in court.

25. In the introduction to his reasons, the learned trial Judge referred to the responsibilities of a trial judge to a litigant in person as outlined in Johnson and Johnson (1997) FLC ¶92-764. His Honour stated that he had directed the husband to address his attention to those matters relevant to the inquiry before him and commented that this had not been an easy task in this case. His Honour indicated that he was satisfied that the husband had been afforded every opportunity to adequately present his case to the court.

The Wife.

26. His Honour found the wife was an excellent witness and stated that he was quite satisfied that, where her evidence was in conflict with the husband’s, he had no hesitation in preferring that of the wife. He approved the wife's proposals for [T]’s future accommodation, schooling and childcare.

27. His Honour concluded that the recreational activities in which the wife had involved [T] were appropriate and observed that the husband made no criticism of the same nor her proposals for [T]’s day to day and long term development.

28. He accepted the wife’s evidence in relation to a number of past incidents, which had given her cause to be concerned about the husband’s attitude toward [T].

29. His Honour reviewed the wife’s past working and childcare arrangements and found that she had worked extremely hard in the past and rejected the husband’s criticism of the wife having placed [T] in day care as ‘extravagant and intemperate’. His Honour stated that the husband’s failure to recognise his own non-contribution to child support was ‘breathtaking in its audacity’.

30. Notwithstanding the husband’s animosity and criticism of the wife, Guest J accepted that she had sought to preserve a relationship between [T] and her father and had not sought to frustrate contact. His Honour found the wife’s attitude to be conciliatory whereas he found that of the husband to be oppositional and stated that much of the litigation could have been avoided had he displayed common sense and a more objective attitude towards the best interests of [T].

31. His Honour found that the husband withheld [T] overnight without prior permission, involved [T] in his endeavours to dissuade her from returning to the wife at changeovers and was aggressive to the wife on occasion in [T]’s presence. His Honour concluded that the wife presented as a compelling and trustworthy witness upon whom he could rely.

The Husband.

32. His Honour noted that he found the extreme and negative position taken by the husband, with regard to the wife’s character and capabilities as a parent, quite disturbing. His Honour set out examples of the negative view held by the husband of the wife. His Honour indicated that he had explained to the husband the burden of proof and, given the seriousness of some of his allegations, that any failure to succeed in proving the same might have serious ramifications for his application. His Honour also pointed out that the wife’s application might be similarly detrimentally affected if the husband did succeed in proving his allegations.

33. Guest J accepted that the husband’s childcare proposals were basically satisfactory. His Honour found that the husband had a continuing hostility to the wife and found it hard to think of anything positive to say about her. He said the husband displayed ‘a planetary lack of compassion toward her’.

34. With regard to an incident on 6 December 1997 involving Senior Constable Meehan, Guest J set out parts of the transcript of a tape recording made by the husband in relation to this incident and found that [T] was within earshot of the adults and heard certain statements made by the husband, which his Honour described as grossly inappropriate and which his Honour considered could only disaffect [T] from her mother. His Honour found the wife to be appropriately restrained on this occasion.

35. With regard to the husband’s allegation that the wife was responsible for the injuries sustained by [T] on 6 January 1997, his Honour concluded that the husband’s conduct in relation to this incident was deserving of the ‘strongest censure’. Following a detailed review of the evidence relating to this incident he was satisfied that the wife had not physically abused [T] as alleged by the husband or at all, nor was there any risk of her so doing. His Honour rejected the husband’s contention that [T] was in fear of the wife and stated that this did not sit well with the evidence of various childcare professionals.

36. His Honour observed that there was no medical evidence of non-accidental injuries. To the contrary, there was evidence to substantiate innocent injury given by childcare professionals, the wife and Constable Knight.

37. His Honour further rejected the husband’s assertion that the wife had not adequately provided for [T]’s needs in the past. To the contrary, His Honour found that she adequately and safely cared for [T].

38. As to the husband’s contention that Jill Brewin demonstrated some bias in her evidence, that Senior Constable Meehan was biased, that Anne MacVean also displayed some bias toward the wife and that Susan Shaab was biased against him as well, his Honour stated that he was quite satisfied that there was no demonstration of bias whatsoever as alleged by the husband on the part of any of the witnesses and that this was another example of the husband making broad sweeping allegations without substance.

39. In all of the circumstances, his Honour said that he had no hesitation in finding that the husband was not a witness of truth. His Honour rejected the husband’s allegation that the wife had a propensity to lie about matters concerning their relationship, separation or [T] and found the contrary to be the case.

The Witnesses.

40. His Honour reviewed in detail the evidence given by each witness called on behalf of the parties and by the court counsellors. He found Ms. Pearce, Director of Bay City Child Care called on behalf of the wife, to be an impressive witness. Her affidavit and report annexed thereto were relied upon by His Honour. He accepted her evidence that [T] had sustained injury at the centre on 6 January 1997 and had assured the husband of this. His Honour found that the husband ‘stubbornly maintained a quite untenable position’ that the wife was responsible for this injury.

41. His Honour also accepted the evidence of [Ms B], an acquaintance called on behalf of the wife, that the wife dealt appropriately with [T] and that [T] would be verbally abusive of the wife following contact visits.

42. He found the evidence of [Ms M], a subpoenaed witness, called by the husband, to be unhelpful. His Honour concluded as a result of her demeanour in the witness box and the manner in which she answered questions that she demonstrated a bias towards the husband and ‘it was quite apparent she was part of his team’. His Honour considered that her answers were part of a planned script and concluded that the suggestion that she had been unwilling to attend court voluntarily was nonsense.

43. As to the evidence of Timothy Watson-Munro, Consultant Forensic Psychologist, called on behalf of the husband, his Honour found it extremely hard, on the basis of the evidence that he had heard, to accept the evidence of this witness that the husband seemed to understand the need to work with the wife for the sake of [T].

44. His Honour reviewed the evidence of further day care workers called on behalf of the husband, namely Ms Eliss Stafford, Director of Camelot Child Care Centre, and Ms. Selena Halton, a carer at First Steps Child Care Centre. His Honour accepted the evidence of Ms. Stafford that the husband showed an interest in the centre and that upon her return [T] was sometimes sad to see her father go. He further accepted her evidence that [T] showed a similar reaction to both parents and was very closely bonded to her mother. His Honour also accepted Ms. Halton’s evidence that [T] was happy to see her father and was a healthy, happy child who had a close relationship with her mother.

45. In considering the counselling evidence his Honour noted that the husband did not seek to cross-examine Ms Brewin or Ms Macvean although he did cross-examine Ms Shaab.

46. As we have said, his Honour rejected the husband’s submission that each of the counsellors was biased against him as having no factual basis. His Honour concluded that any witness disagreeing with the husband or failing to support his contentions were seen as biased by him. In this regard, his Honour also referred to his extempore judgment of 29 November, by which he declined to disqualify himself from continuing to hear the matter in response to the application to that effect by the husband.

47. His Honour found Ms. Shaab to be a competent and professional witness and accepted her evidence and in particular her concern that the husband would not promote [T]’s relationship with the wife if he had her primary care and that [T] would be quite insecure if removed to live with her father. His Honour accepted her evidence that [T] was more strongly bonded to her mother and her view that there would be a high likelihood that [T]’s relationship with her mother would be destroyed, if placed in her father’s care, whereas the wife would preserve [T]’s relationship with her father.

Section 68(F) factors.

48. His Honour did not place any weight upon the wishes of the child given her age and maturity. He was satisfied that [T] had a loving relationship with both her parents, but, on the evidence, was more closely bonded to the wife.

49. His Honour was further satisfied that it would be anathema to [T]’s best interests to remove her from her present living arrangements. He commented that [T] had lived in the wife’s sole care for 3 ½ years and not only would there be upset and distress, but, on the evidence of the court counsellor, there would be a risk of [T] being alienated from her mother if she was to reside with the father.

50. His Honour stated that the wife was the parent best suited to provide for the emotional, intellectual and physical needs of [T]. Whilst his Honour found that the husband had the capacity to provide for [T]’s emotional and intellectual needs, he thought that this was to a lesser extent than the wife and his Honour found that the husband had little capacity to separate his own needs from the welfare of [T] when in conflict. He stated that if placed in the husband's care, there was a ‘high likelihood that the relationship between the mother and child would be destroyed.’

51. As we have said his Honour made a positive finding that the wife had not abused the child. However, he was satisfied that [T] had been emotionally abused by her father, relying upon the transcript of the incident on 6 December 1997, in particular, as evidence in support of this finding.

52. In the light of the history of this litigation, his Honour expressed little confidence that any order he made would reduce the incidence of further proceedings, but hoped that his lengthy judgment would bring to an end the conflict around [T].

The Trial Judge’s Conclusion.

53. His Honour concluded that he was fortified in his decision that [T] should reside with the wife and she should have sole responsibility for her long term and day to day care, welfare and development, in that this was the recommendation of the child representative. He noted that, notwithstanding the husband’s stated devotion to [T], his antipathy to the wife obfuscated his proper attention to the child’s best interests. His Honour ordered that a counsellor supervise contact to assist the parties in relation to compliance.

Costs.

54. His Honour went on to determine a costs application made on behalf of the wife and the child representative and made orders in favour of the wife against the husband.

55. His Honour accepted the submission of Counsel for the wife that he had found against the husband on issues of credit and that the husband’s primary case, alleging the wife abused [T], had demonstrably failed. His Honour outlined the test for the making of a costs order as provided for in Section 117(2) and indicated that he had regard to the various matters set out in Section 117(2A) in reaching his decision.

56. His Honour took the view that the wife had been wholly successful and the husband wholly unsuccessful in the proceedings; having maintained an untenable position over the 5 day hearing. His Honour was satisfied, on balance, that the circumstances justified making an order for costs in favour of the wife against the husband and indicated that he proposed to stay payment of such costs for a period of 90 days.

57. Given the financial circumstances of the parties, His Honour concluded that the costs of the child representative should be borne by Victoria Legal Aid.

HIS HONOUR'S JUDGMENT OF 29 NOVEMBER

58. On the fourth day of the trial the husband made an application to his Honour that he should disqualify himself. His Honour rejected this application. His reasons for doing so are set out later in this judgment.

GROUNDS OF APPEAL

59. Nine grounds were relied upon by the husband in an amended Notice of Appeal filed 21 August 2000 which were as follows:-

In displaying clear prejudice against the husband during proceedings thereby causing a miscarriage and / or denial of justice.
In displaying clear bias towards the wife during proceedings thereby causing a miscarriage and / or a denial of justice.
In conducting proceedings so as to raise the reasonable apprehension of bias and the reasonable belief that he may not have brought an impartial mind to the issues before him.
In predetermining the applications before him without having heard the evidence in its totality, as evidenced by the comments made by his Honour early in proceedings.
By failing to afford the husband procedural fairness.
In making findings of fact, which were not open to him to make on the basis of the evidence available at the hearing and which were contrary to the same.
By interfering in the husband’s presentation of his case at trial.
In refusing to allow the husband to place reliance upon affidavit material referred to in the husband’s Outline of Case document.
By contrast, in allowing the wife’s counsel to refer to affidavit material not made available to husband.

60. At trial the husband sought and obtained leave to add a further eight grounds as follows:-

That the trial judge failed to disqualify himself on 29 November for bias, having made remarks indicating that he was prejudiced against the husband.
That the trial judge erred in accepting the evidence of the witness [Ms B].
That the trial judge erred in relation to a matter of fact in that he misunderstood the recommendations made by the psychologist, Jill Brewin.
That the trial judge erred in accepting the evidence of the counsellor Susan Shaab in that her evidence was contradictory and she simply followed suggestions put to her by the mother's counsel.
The trial judge erred in not finding that the mother had abused the child.
That the trial judge erred in finding that child was more closely bonded to the mother in the absence of evidence to that effect.
That the trial judge erred in making orders that were likely to lead to further litigation.
That the trial judge failed to hear the whole of the husband's case before forming a concluded opinion about the matter.

ORDERS SOUGHT

61. The Notice of Appeal sought that all matters be remitted for retrial.

THE ISSUES

62. Before turning to the husband’s arguments in this matter we think it useful to set out the events associated with the husband’s application to his Honour to disqualify himself and his Honour's judgment on that application. We do so because that decision is the subject of the first of the husband's additional grounds of appeal and because it encompasses many of the matters raised by the husband in his various grounds of appeal.

63. The transcript reveals that the application to his Honour to disqualify himself came at the end of the husband’s case on the fourth day and was made in the circumstances set out in the following paragraphs.

64. In this regard, it is useful to reproduce the relevant section of the transcript in this regard found at Appeal Book : Volume 6 pages 65-86:

“HIS HONOUR: Next Witness.

MR [F]: I don’t believe I have any.

HIS HONOUR: Is that your case?

MR [F]: I do wish to ask some questions of the counsellor, sir. I am not sure whose witness he is.

HIS HONOUR: That is going to be part of the child representative’s case.

MR [F]: Yes sir.

HIS HONOUR: That is your case. You formally close your case? As Mr Wood formally closed the case for the applicant, you as respondent now announce to me that is the evidence upon which you seek to rely.

MR [F]: I have been allowed to present it, yes, sir (sic).

HIS HONOUR: Now, Mr [F], what do you mean by that? Let me tell you this: if you think that in some way you have been treated unfairly, then you should make an application that I be disqualified, because if you truly hold that belief – that you have been from adequately and properly presenting your case, and you don’t make such an application, then to make such a submission to the Court of Appeal, if you lost, I don’t know what the position will be. You would be visited very shortly and swiftly by the Judges of the Court of Appeal.

You have indicated to me, directly, that you have not been given an opportunity to present your case. Is that right?

MR [F]: I have said that, sir, yes.

HIS HONOUR: Yes. Do you have an application to make. Just yes or no. It is simple. You are an intelligent man. You choose your words very carefully. Do you have an application to make?

MR [F]: Under the circumstances, sir, I would ask that, given what – particularly what you said last week ---

HIS HONOUR: Do you have an application to make?

MR [F]: --- and what you have said today, I would ask you to disqualify yourself.

HIS HONOUR: Now you have made your application. Yes. What is your application?

MR [F]: Well, I would ask that you disqualify yourself. I would state the reasons. Some of the comments you were making last Monday gave me the impression ---

HIS HONOUR: Yes?

MR [F]: --- gave the impression that what you were doing was actually threatening me and my contact with my daughter.

HIS HONOUR: Yes?

MR [F]: When I was presenting, or began to present my case, you repeatedly interrupted my – when I was talking, you repeatedly interrupted ---

HIS HONOUR: Yes.

MR [F]: You repeatedly interrupted my questions when I had the chance to ask questions of the mother and whilst I admit that you used the words “allow me” to ask anything else, the manner that you asked, the tone of voice that you used, the way you looked towards me, conveyed the opposite message. The message that I was getting from you ---

HIS HONOUR: Yes? The message you got was what?
MR [F]: That you did not want me to ask the questions that I was asking, that you did not wish me to present the case as I thought it should be presented and to be as quick as I could. I don’t believe that you allowed me to ask the sort and the number of questions ---

HIS HONOUR: Wait a minute. I did not allow you to what?

MR [F]: To ask the sort and the number of questions of the mother.

HIS HONOUR: Of who?

MR [F]: Of the mother, when she was in the witness box.

HIS HONOUR: Is there anything else?

MR [F]: To draw out, in her own words, which would help to substantiate the claim and allegations that I made in my application and affidavit. Also, when I was ---

HIS HONOUR: Yes?

MR [F]: --- when I was in the witness box, you did not allow me to answer the questions that were put to me properly. Even today, you stopped me from asking certain questions in certain ways because you said they were leading questions yet immediately after that the witness asked a leading question directly and even your comments just then, sir, you could take to be ---

HIS HONOUR: Mr – one gets a trifle annoyed, really, at times when a submission of that nature is asked. It shows a fundamental lack of understanding of presentation of cases and the purpose of cross-examination and examination by Mr [F] your complaint as I understand it is that when you were in the witness box I didn’t allow you to properly answer the questions put to you and secondly to that proposition I made a contrast with the way Mr Wood was permitted to ask her in cross-examination.

MR [F]: Yes. Leading questions ---

HIS HONOUR: In cross-examination?

MR [F]: Yes.

HIS HONOUR: Anything else?

MR [F]: Just the general attitude that you seem to display towards me, sir, over the last week or so. I can only repeat that even though you used certain words which ---

HIS HONOUR: You think that I was misleading the transcript, do you? Or saying things to load the transcript up with self-serving statements. Is that you (sic) submission?

MR [F]: I wouldn’t frame it like that, sir.

HIS HONOUR: Well I should hope not, but that is the imputation that I am gaining from that submission.
MR [F]: What I was saying, sir, is that the words that were used, the sense of the words implied by the tone of voice and the stare at me …..

HIS HONOUR: All right. Anything else?

MR [F]: No, sir.”

65. After hearing submissions from Counsel, His Honour delivered the following judgment:-

On the fourth day of the trial in this matter, an application has been made by [Mr F] that I be disqualified from continuing to hear the competing residence and contact applications before me. I will be short in my ex tempore judgment for in my view the application is entirely without any merit. It was Mr [F]'s submission that by reason of some of the comments I made in discussion at the commencement of these proceedings on 22 November 1999 he had the impression that I was "threatening" him, particularly in relation to the issue of his contact with the child, [T].

There was a discussion on general issues involved in this matter on that day in the course of which I made it perfectly clear to all parties and that included the Child Representative that the proceedings involved the exercise of my discretion on the issue of residence and contact. I explained that to Mr [F] in order that he as a litigant in person would understand that I was not bound by any submission of the Child Representative and that upon the completion of all the evidence I would make my decision. I rather suspect that behind the submission of Mr [F], and without it having being expressed as such, he may have some concern that I was interventionist in the course of the proceedings. It should be made clear that in proceedings under the FAMILY LAW ACT 1975 (as amended) I am obliged to proceed without undue formality and ensure that the proceedings are not protracted. See s.97(3) of the Act. Furthermore, Order 4(4) of the FAMILY LAW RULES provides that a court exercising jurisdiction under the rules shall have regard to the need to provide a prompt and inexpensive resolution of the matters in issue between the parties.

Mr [F] chose to appear for himself and does not bear the burden of considerable financial expense. The State is funding the Child Representative. [The Wife] is legally aided, but responsible in the result to repay that financial assistance. In Rasanayakam & Wallooppillai v Thillaindesan (1996) FLC 92-696 the Full Court of this court at p. 83-325 had this to say:

"We wish to make it clear however that trial Judges have the obligation to endeavour to limit the length of trials by adopting a robust approach to prolix and irrelevant advocacy particularly if the outcome becomes increasingly obvious as the trial progresses. However, judges must exercise caution in what is said in court so as to not give the impression that a final conclusion has been reached."

[Later]

"While trial judges must become involved in trial management, nevertheless a clear balance should at all times be struck between expressing a clear view as to the outcome of the proceedings on the one hand and indicating in an impartial and tentative way the direction which the trial judge perceives the trial to be taking at a particular time."

On a number of occasions in the course of discussion with Mr [F] I made it clear to him that one could take a particular view on the documents or the evidence as it then stood, but that it was by no means a concluded view. He understood and accepted that as a proposition.

Mr [F] further submitted that when he presented his case I repeatedly interrupted him. That is not the impression that I gained. He failed to give particulars and in any event it was the submission of both Mr Wood and Mr Hutchins that this submission had no force. It is correct to say however that from time to time I gave firm and reasonable directions to Mr [F] in the management of his case.

Mr [F] further submitted that the manner in which I put matters to him, the tone of my voice and the way I looked at him conveyed the impression that I was biased, alternatively gave an apprehension of bias. Such was not the case. I have made sure that Mr [F] had every opportunity to fairly and adequately present his case. Indeed, at one stage early in the proceedings I was obliged to bring to his attention that it served him no good purpose at all to adopt a theatrical pose and endeavour to intimidate a witness. He took that advice and thereafter conducted himself with courtesy to the witnesses

Mr [F] further submitted that the "message" he got was I did not want him to ask various of the questions that he put, and that I sought to prevent him from conducting the case he considered he should present to the Court. He should understand that I am in control of these proceedings, and that it is part of my obligation to ensure that rules of practice and procedure are properly carried out, that the competing applications proceed expeditiously and at the same time accords to all parties a fair trial. The transcript will reveal that such is and has been the case. As is often the case with litigants in person, Mr [F] had little understanding of the issue of relevance and as a result I was obliged to direct his attention to those pertinent matters from time to time. In my view Mr [F] had every opportunity to ask relevant questions, and I often enquired of him whether he had anything else to say. He was cross examined by Mr Wood and by Mr Hutchins and had every opportunity to fairly give his evidence. I have heard what he has had to say and I shall weigh it up when I come to my decision in this matter.

Mr [F] further submitted that when he was in the witness box I did not permit him to fully answer the questions put to him and he contrasted that with the way in which Mr Wood was permitted to ask "leading questions in cross examination". As Mr Wood submitted, Mr [F] has simply misunderstood the trial process and the difference between examination and cross examination. I am satisfied that on the whole he was provided with an adequate opportunity to say everything that he had to say. I have regard to his Order 30 Affidavit, his evidence and that adduced in cross examination. I might add that Mr Wood submitted that Mr [F] in any event failed to provide any particulars of questions he claims to have been denied asking any of the witnesses. The application is not supported by either Mr Wood or Mr Hutchins. As Mr Hutchins said, the husband made no mention in his submissions particularising any comments that were made that may suggest bias or give rise to an apprehension of bias.

The basis upon which an application such as this is made has been clearly stated in re Watson ex parte Armstrong (1976) FLC 90-059. The High Court comprising Barwick CJ and Gibbs, Stephen, Mason and Jacobs JJ expressed the relevant principles as follows:

"The view that a Judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial, and that if a Judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct in principle."

Later on in the course of their judgment it was said:

It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision to repeat (sic) To repeat the words of Lord Denning, MR, which have already been cited, “Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking ‘the Judge is biased’.” [Page 75,272-73].

10.I also have regard to what the High Court had to say in Livesey v The New South Wales Bar Association (1983) 151 CLR 288 and in particular page 293. Those decisions to which I have referred have been well and truly embodied in other judgments of this Court, for example Kennedy v Cahill (1995) FLC 92-605, where the Full Court of this Court considered the law as it stood in relation to reasonable apprehension of bias and pre-judgment. It referred to re Watson ex parte Armstrong and to Liversey v The New South Wales Bar Association. At page 82-035 the Full Court had this to say:

"A gravamen of the decision of the courts in all of the above cases is that a reasonable apprehension of bias exists if, in all the circumstances, the party or the public might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question before him or her."

11.See also Rasanayakam & Wallooppillai v Thillaindesan (supra) summarising those cases and to which I have already referred. It is clear that Judges have an obligation to hear all of the evidence before them and at the end of the proceedings arrive at a decision based on the facts and the application of relevant principles of law. In an application such as this, Mr [F] must demonstrate that I have made up my mind before the evidence and submissions had concluded or that I had failed to accord to him procedural fairness. In my view the application of Mr [F] is entirely misconceived. He has, in my view been accorded fair limits and more in relation to his presentation before me. I understand his case very well indeed. It is set out in his Order 30 affidavit filed in October 1999 and which in substance repeats the matters that were deposed to by him in an affidavit some two years earlier.

12.In the circumstances I have no hesitation at all in dismissing his application. In my view a Judge of this Court has an obligation to control proceedings and to provide parties and counsel with an indication of the way a case is going at a particular time and as the evidence then stood but at the same time making it perfectly clear that any view is by no means a concluded one. It is gainsaid that was the position I took, and I repeat for the benefit of Mr [F] that it is when the evidence is wholly completed that I shall consider my judgment. I am aware of my responsibilities as set out in Johnson v Johnson (1997) FLC 92-764.

13.In the circumstances I dismiss the application.”

THE APPELLANT'S ARGUMENTS

66. The Husband's arguments and our findings in relation to them are as follows.

67. He first submitted that bias is not only demonstrated by the actual words used but also by the tone of voice used and by non verbal communications and he said that his Honour had exhibited bias towards him in this way as well as by the words used.

68. While it is possible that bias could be indicated in the way described by the husband, there is nothing before us, other than his assertion that would enable us to make such a finding and in the circumstances, we decline to do so. If the husband wishes to demonstrate bias on the part of his Honour, we consider that he must do so from the record. In fact his Honour dealt with this submission by the husband in his judgment of 29 November and we think that his remarks dispose of this issue.

69. As to Ground 2,3 and 4 of the Amended Notice of Appeal filed 21 August 2000, which assert that his Honour predetermined the issue and which appear to have been restated in Ground 8 of his additional grounds, the husband relied upon statements appearing in his Honour’s judgment critical of him which the husband attempted to relate back to stages of the hearing when these matters were dealt with.

70. However there is a fundamental flaw in this reasoning that overlooks the fact that his Honour, when delivering judgment, was in a position to take an overview of all of the material before him and reach appropriate conclusions. Indeed this is the function of a judge (and in the discussion which follows we use the term to refer to all judicial decision-makers) and the fact that those conclusions are unfavourable to a litigant is part of the function of a judicial officer in carrying out his/her duties. They are not indicative of any bias against the litigant simply because they are critical of him / her.

71. The husband also pointed to remarks made by his Honour in the course of his reasons for judgment critical of the husband for not calling witnesses.

72. The first of these appears in paragraph 70 of his Honour’s judgment when his Honour was dealing with the husband’s proposals for the care of the child if he were to gain residence. These involved him receiving support from his parents and sister, whom his Honour noted, were not called as witnesses. At the end of this passage his Honour said that the husband’s proposals were basically satisfactory but there were other issues to be considered.

73. The husband claimed that his Honour’s approach on this issue was inconsistent with his Honour’s approach to the case of the wife. In this regard the husband said that his Honour had not criticised the wife for failing to call a [Ms D], who the wife had said in evidence would help her with schooling arrangements for the child.

74. It is apparent however that his Honour was not criticising either party for not calling witnesses on this issue.

75. The second matter relating to the non-calling of witnesses of which the husband complained related to a portion of his Honour’s judgment where he was dealing with the husband’s credit.

76. His Honour referred to the fact that in earlier proceedings before Kay J concerning a child support issue, Kay J had commented that in oral evidence the husband had said that he was unable to remember the sources of some $50,000 in funds and in an affidavit had said that it represented gifts from family and friends.

77. His Honour noted that when cross-examined by counsel for the wife in these proceedings, the husband said that he did not propose to call any of his family or friends who could assist in explaining these cash transactions.

78. Again we think that it is part of the function of a trial judge to consider whether the failure to call witnesses on a particular evidentiary issue is critical or otherwise and we are unable to see any error on the part of his Honour in this regard. His Honour obviously considered that the failure of the husband to call evidence on these matters related to a critical issue.

79. The husband, in further support of these grounds sought to rely upon a passage of the transcript appearing at Vol. 4 p 69 of Thursday 25 November where Counsel for the child representative was cross-examining the wife as to the options open in the proceedings. The passage is as follows :-

"HIS HONOUR:        There is a third option.
MR HUTCHINS:       Or [T] live with him?
HIS HONOUR:         Well that is not what I had in mind. The third option is to continue as it is.
MR HUTCHINS:       Yes
HIS HONOUR:         Would [T] be happier if, one, not seeing the father as much as present; two, not at all or; three, contact remains the same. Do you follow that? –Mmm"

80. The husband suggests that this passage indicates that his Honour was clearly not entertaining the prospect of a residence order in the Husband’s favour at this stage. We are unable to accept this proposition. It is normal for a trial judge to explore various options and the issue of residence was squarely before his Honour.

81. The case for the wife conceded the desirability of a continuation of contact but was firmly opposed to a residence order being made in favour of the husband. It would obviously have been a waste of time to canvass this option with the wife in evidence. It is reading far too much into his Honour’s comments to suggest that he had clearly eliminated this option at this stage.

82. The husband next submitted that his Honour made threats that the husband perceived as threatening his contact with the child.

83. He referred to a statement made by his Honour at Vol. 3 of the transcript of Monday 22 November 1999 :-

HIS HONOUR: If I find it to be correct, then it will weigh heavily against the wife, but the other side of the ledger is that if I find it to be inappropriate, untrue, or indeed extravagant, let alone intemperate, then it will weigh very heavily against the maker. That of course ultimately may have ramifications on contact, despite what any other expert witness may say. But I'll wait and see what happens in the fullness of time.

84. Again at Vol 3 p 94 he referred to the following statement:-

HIS HONOUR: You will have every opportunity but, Mr [F], over tonight and tomorrow when you are thinking about this case, I would like you to think also about the discussion that I invited you to enjoin with the child representative and Mr Wood to come to a court - to come to a private resolution favoured in the shadow of the law and not a court imposed order, which the way this case is going will bring with it very serious consequences, one way or the other. Do you follow me?

MR [F]: I do, sir, and with respect I take that as a threat.

HIS HONOUR: You may. I am putting it to you as a fact. In what way do you see it as a threat, Mr [F]?

85. Finally he referred to the following passage at p 96 :-

MR [F]: Yes, sir. But the way I took that was that you could make orders which would further restrict contact that I have with my child.

HIS HONOUR: Of course I can. I need not act on what counsel for the wife may be consider to be appropriate.

MR [F]: I do not dispute ‑ ‑ ‑

HIS HONOUR: Nor counsel for the child representative.

MR [F]: I do not dispute that you have the power to do so.

HIS HONOUR: I have an absolute discretion to make orders in what I consider to be in the best interests of [T].

MR [F]: I do not dispute that you have the power to do so, your Honour, except for the way I took it - read it was that you were basically saying if you do not behave yourself you are going to get your access cut out.

86. The discussion continued and his Honour commented that he had an absolute discretion to make orders in what he considered to be in the best interests of [T]. The passage concluded as follows (at page 96):-

HIS HONOUR: Not at all. I have made it clear on any of the comments I have made - I have always been - preamble that anything that is said is not a concluded view by any measure. You remember that, Mr [F]. It is open for you to prove your case and I have been conscious of the fact that you are a litigant in person. I am conscious of my duties and responsibilities to you as a litigant in person. I have assisted you in explaining to you the burden of proof. I have assisted you in directing your attention to those relevant matters in the Family Law Act that can be of assistance to your case. If you have any other queries feel free to ask me."

.

87. When read in context it is apparent that the husband’s complaints in this regard have no substance. His Honour was simply pointing out to the husband that he had a wide discretion in the matter.

88. He was also giving the husband an opportunity to consider a negotiated resolution of the dispute and at the end of the discussion was offering assistance to the husband. The fact that the husband perceived that his Honour was threatening him does not of itself establish that he was doing so and in our view the contrary was the case.

89. The husband next complained that his Honour made inappropriate statements to Counsel involved in other cases, who were making inquiries about the possible length of the case. No transcript is available in relation to this but the husband asserts that his Honour said that the matter of [F] “Will be going till doomsday, whenever doomsday is”.

90. If his Honour did say this, and the only material in support of this is the assertion of the husband, we do not regard it as having any significance. At worst it was nothing more than an indication of exasperation on the part of his Honour at the time that the case was taking and was not necessarily directed at the husband in any event.

91. Finally on these grounds the husband complained that during an interlude where inquiries were being made as to the length of the case, his Honour made a favourable comment concerning a higher court and gestured towards the microphones.

92. The husband suggests that this was an example of his Honour wishing the transcript to indicate that he was discharging his duties correctly when he was in fact showing bias against the husband. We are unable to accept this proposition.

93. If is Honour did what the husband says, and again we have only the husband’s assertion in this regard, we are unable to read any significance into it from the point of view of the argument advanced by the husband.

94. The husband next complained that he was not permitted to rely upon his affidavits as set out in his outline of case document. This complaint is also the subject of the 8th additional ground of appeal to the effect that the trial Judge refused to allow the husband to rely upon affidavit material specified in his “outline of case” document.

95. In fact it appears that the husband specified eight previous affidavits upon which he proposed to rely.

96. His Honour took the view that the husband should be confined to the affidavit of evidence in chief sworn pursuant to Order 30 Rule 2 of the Family Law Rules.

97. We are of the view that his Honour was clearly entitled to exercise his discretion in this way. The purpose of Order 30 Rule 2 is to avoid the previous practice of litigants relying upon a multitude of affidavits sworn at various stages in the proceedings. The Rule states:-

"2(1)    Unless the Court otherwise orders, evidence in chief must be given by affidavit at the hearing of an application.
2(2)Not later than 28 days before the date fixed for the hearing of an application, or within another period directed by the Registrar, each party must file and serve on each other party who has filed an address for service in the proceedings;
(a)       one affidavit setting out the party’s evidence in chief;
(b)       for each witness whom the party intends to call at the hearing
(i)one affidavit of the witness setting out the witnesses evidence in chief; or
(ii)if the witness refuses to make an affidavit – a notice to that effect setting out the name of the witness."

98. It is to be noted that the Rule requires parties to produce one affidavit that sets out their evidence in chief. While judges have a discretion as to whether they wish to permit additional affidavits to be relied upon, they are by no means bound to do so. It is simply not sufficient for a person to seek, as the husband did, to outline a plethora of affidavits in his or her outline of case and expect them to be received. We consider that the approach adopted by his Honour was well within the proper exercise of his discretion.

99. The husband’s next argument related to ground 5 of the amended Notice of Appeal relating to procedural fairness.

One matter of which the husband complains is that it appears that he had transcribed an interview between himself and the reporting counsellor, Ms Anne Macvean. This was never tendered in evidence and the husband asserts that his Honour was under a duty to inform him and/or suggest to him that he should tender the transcript of this interview.

The matter was first discussed during the course of the husband’s cross-examination of the wife. It was raised by the husband, who explained to his Honour that he had asked the counsellor if he could tape the session. He said that the counsellor agreed, subject to the consent of the wife and that this consent was given.

Counsel for the wife then said that if the husband wished to rely upon the contents of this tape and a tape of the interview with Senior Constable Meehan, then he should make transcripts available. His Honour directed the husband to do this by 5pm on the next day (being a day upon which his Honour was not sitting). The husband then said that he had the MacVean transcript and that he had the transcript of the Meehan interview on his computer. His Honour told him to provide copies to counsel for the other parties that afternoon.

The husband did not in fact tender the transcript of the tape of the MacVean interview and he did not seek to cross-examine Ms MacVean.

Later on in the trial during the course of the husband’s final submissions, his Honour pointed out to the husband that the MacVean transcript had not been tendered. The husband did not seek to tender it at that stage but he says that his Honour should have invited him to do so.

In the course of his judgment, his Honour said that the husband did not complain of the perceived bias of Ms MacVean. The husband says that he did complain of bias in the transcript of the interview with Ms MacVean and that the transcript would have revealed that fact.

We think that in view of the fact that the husband did not seek to cross-examine Ms MacVean, his Honour was under no duty to advise the husband to tender of transcript of the interview. The fact that the husband did not seek to cross-examine her, entitled his Honour to reach the conclusion that he did on this issue.

The husband’s next complaint related to the Meehan transcript. This was a transcript of a tape recording made by the husband of an incident where Senior Constable Meehan was called because of difficulties that had arisen between the husband and wife in the course of a hand over of the child on 6 November 1997.

During the course of his opening on 22 November 1999, Counsel for the wife had indicated that he wished to rely upon the evidence of Senior Constable Meehan given before Smithers J on 9 December 1997 as to this incident, the transcript of which was annexed to the wife’s Order 30 affidavit.

He said that he presumed that the husband would wish to cross-examine Senior Constable Meehan further. His Honour asked whether the husband had any objection to this evidence going in and he replied that he did not and looked forward to cross-examining Senior Constable Meehan.

At the commencement of the hearing on 25 November, during the course of the husband’s cross-examination of the wife, Counsel for the wife inquired of his Honour as to whether he could interpose Senior Constable Meehan as a witness at 2pm as it would otherwise be difficult for him to attend.

Counsel for the child representative then queried why the husband wished to cross-examine the police witness in light of the tape being available. The husband said that he wished to rely upon the tape to establish inconsistencies between what Senior Constable Meehan had said in evidence in earlier proceedings before Smithers J and the tape recording, which he said would reveal what actually happened.

His Honour then indicated that he did not want the trial to involve an investigation of past issues that had already been litigated. After discussing this and other matters at some length he commented that in seeking to rely upon the transcript of the Meehan interview the husband was raising matters that had occurred in 1997. His Honour asked the husband what was the real relevance of evidence given two years before that had been the subject of a judicial decision. The transcript reveals that the husband said that he had not been given an opportunity to contradict statements made by the police officer in the proceedings before Smithers J and that he wished to do so.

His Honour then said “He was your witness”. Some discussion ensued as to whether this was correct. Counsel for the wife then said that he regarded the transcript as highly relevant in any event. He also said that if the object of the husband in cross-examining Senior Constable Meehan was to establish the accuracy of the transcript then he was prepared to concede it. His Honour proceeded to explain the proposition to the husband, who agreed to the introduction of the transcript as the evidence of Senior Constable Meehan, as did Counsel for the other parties. The husband agreed that upon this basis, he did not wish to cross-examine the police officer.

It is difficult to understand the precise nature of the husband’s complaint about his Honour in this regard. In substance, he appears to be complaining about the discussion that took place between his Honour, counsel for the wife and the husband concerning the issue as to whether Senior Constable Meehan, should be called in these proceedings.

The gravamen of the husband’s complaint appears to be that his Honour questioned him as to the relevance of the evidence of Senior Constable Meehan and as to whether he was his witness. He says that the police officer was not his witness and the questions should not have been directed to him. However the point was that the husband wished him to attend for cross-examination and the whole purpose of the discussion was to determine whether this was really necessary. In the event all concerned, including the husband, concede that it was unnecessary if the transcript was accepted into evidence as an accurate account of what had taken place.

We have difficulty in understanding how this caused any procedural unfairness to the husband, who in fact made it clear that he wished the transcript to go into evidence and that this was the relevance of calling the police officer. All that his Honour was doing was ensuring that the trial proceeded as expeditiously as possible and he achieved this in this instance.

The next matter raised by the husband was the fact that his Honour had relied upon an affidavit of one Peter Falconer filed 21 April 1999, which he said was not in evidence before his Honour.

However, Counsel for the wife specifically referred to and relied upon this affidavit without objection from the husband – see the Transcript at Volume 5 p 81 of the Appeal Books.

Further, as Mr Skerlj for the wife pointed out, his Honour’s decision in the matter was in no way dependent upon Mr Falconer’s affidavit. In fact, as his Honour found, the husband, when represented by Counsel on 23 April 1999, consented to an order that he would do all things necessary to transfer all funds deposited in the National Bank of Australia account in his name as trustee for [T] … to an interest bearing account held in trust by Messrs Bell Falconer.

Before his Honour, the husband agreed that he had not complied with paragraph 2 of this order that he file and serve an affidavit of disclosure. Mr Falconer’s affidavit takes the matter no further than to state these facts.

The husband’s next complaint that he was not permitted by his Honour to fully answer questions is largely dealt with in his Honour’s judgment of 29 November.

An example given by the husband appearing at vol5 p55 of the transcript of what he complained of suggests the contrary. This was during the cross-examination of the husband by counsel for the wife. During a pause, his Honour asked some questions, which the husband answered. Before the cross examination resumed, his Honour said :-

"Yes, thank you. Mr [F], again, please direct yourself to the questions. At the end of the cross-examination. you will have an opportunity to undertake a process called re-examination. At the end of all cross-examination, I will be asking you is there anything that has been asked of you, by either Mr Wood or Mr Hutchins, resulting in an answer given that you wish to clarify. Matters such as that. So, you might care to make a note as we go along, all right? ---Yes sir."

At the end of the husband’s cross-examination his Honour said:-

"Now Mr [F], just take your time. Is there any matters arising in the cross-examination of you by Mr Wood or Mr Hutchins that you wish to clarify?"

His Honour went on to explain the nature of re-examination and again asked the husband if he wished to clarify any matters. The husband accepted the offer and proceeded to do so.

At the end of the husband’s evidence in re-examination his Honour again asked him:-

"Thank you. Is there anything else you wish to say? I want to make sure that I undertake my duties in accordance with the directions given in a celebrated case of Johnson v Johnson (1997) Family Law Cases. Is there anything that you have not understood thus far in these proceedings? ----No sir."

His Honour then asked the husband if he had any criticisms of the way in which the proceedings were conducted and he said that he did. The husband said that he had not been given a proper opportunity to present his own case. The substance of his complaint at that time appeared to be that he had been cross-examined for two days and had only had a limited time to cross examine the mother. He was certainly not complaining that he had not had a proper opportunity to answer the questions put to him.

We accordingly consider that there is no substance in his complaint that he was not permitted to answer questions. The transcript reveals that his Honour was extraordinarily patient with the husband and gave him innumerable opportunities to express his answers and put his case in the way that he wished.

The husband’s next complaint relates to what he says were unreasonable interruptions by his Honour of his cross-examination of the mother. At the outset of his cross-examination his Honour made it clear to the husband as to what he saw to be the relevant issues. His Honour also indicated that he did not intend to permit open-ended cross-examination ranging over matters that were unhelpful or time wasting. His Honour sought an indication from the husband as to the probable length of his cross-examination.

The husband was initially unwilling to give it and indicated that he had not expected to be called upon to cross-examine on that day. This was at a time immediately after the luncheon adjournment. There was no reason for the husband’s belief that he would not have to cross-examine the wife that day and he appeared to be unable to explain why he was under this impression.

Counsel for the wife then sought to interpose the witness [Ms B], who was only available on that day. He was permitted to do so without objection by the husband. This is the subject of a separate complaint on his part that we deal with subsequently.

The husband’s cross-examination of the wife commenced at 2.55pm on 22 November 1999 and continued on that day until about 4.30pm. Immediately prior to the adjournment his Honour inquired as to how long the husband expected the cross-examination to continue. The husband, after some equivocation, indicated that it would take between half a day and a day.

His Honour then said :-

"Well, I want you to think carefully over your cross-examination, or about your cross examination tomorrow and unless you can persuade me otherwise, I am more likely to direct it finish by lunchtime tomorrow and I will impose limits on all parties. You must direct yourselves to the relevant matters. By lunchtime we will reassess the position to see how it is going. I do not want you to feel disadvantaged. I want you to leave the Court with the knowledge that you have asked matters, but I will not permit nor would any other judge of this court a wide ranging cross examination that may not be helpful in the result. Do you follow me?

MR [F]: Yes Sir.
HIS HONOUR: Now think carefully about your cross-examination and a goal, and I do invite you to read very carefully yet again section 68F (1) of the Act."

When the hearing resumed on 25 November, two further witnesses were interposed, one at the request of counsel for the wife and one at the request of the husband. His cross-examination of the wife resumed at 11.45am and occupies a further 19 pages of transcript. It concluded with the husband saying “That will be sufficient your Honour”.

We have carefully read the transcript of the husband’s cross-examination of the wife and we can see no basis for the husband’s complaint that he was not allowed to present his case.

There were occasions when his Honour did interrupt the cross-examination but the circumstances in which he did so were entirely proper. It is very much part of the duty of a trial judge to ensure that cross-examination is properly directed at relevant issues and is not simply left at large. This is particularly so when irrelevant and prolix questions are asked. The husband clearly exhibited a tendency to do so. We think that his Honour did no more than perform this function and indeed judges are expected to do so in the management of trials.

While it is true that in Johnson's case the Full Court said that a judge has a duty to so far as possible provide a “level playing field” for litigants in person , he/she also has a duty to other litigants and to witnesses to ensure that trials are not unduly protracted, and that cross examinations are not prolix and irrelevant. We think that his Honour went out of his way to assist the husband while, at the same time, performing this function. We also refer to our subsequent comments in relation to this guideline.

We turn now to ground 6 of the amended grounds of appeal, which is to the effect that the trial Judge’s discretion miscarried and his findings of fact were against the evidence and the weight of the evidence. It is always difficult to successfully challenge findings of fact at an appellate level unless obvious error can be demonstrated.

The husband in this case sought to challenge a number of his Honour's findings as to fact, as to credit of the witnesses including himself but we are not satisfied that he made out any error on the part of the trial Judge.

The first specific issue raised by the husband under this ground was his Honour’s positive finding that the child had not been the subject of abuse by the mother. The husband submitted that there was a considerable amount of material, which showed that the mother had abused the child and in particular that she had admitted striking the child with sufficient force to sustain a bruise herself.

This issue was exhaustively canvassed during the hearing. His Honour had the opportunity of hearing and assessing all of the witnesses and in particular the wife on this issue. In the event he accepted her as a witness of truth. There was an abundance of evidence to support his conclusion. Such a finding is one peculiarly within the province of the trial Judge and the husband has not shown any reason why this finding was not open to his Honour.

The husband next submitted that the trial Judge had erred when he found that the witness Susan Shaab had stated :

“someone who uses information of that nature is – drawing a long bow and intent upon bringing up any issue that would support his case.”.

This related to an issue raised by the husband that the wife had, many years before their relationship commenced, in the past given up a child for adoption.

As to the issue of interposing witnesses, the husband suggested that his Honour had failed to comply with the fourth of the Johnson guidelines which is as follows :-

"If a change in the normal procedure is requested by the other parties, such as the calling of witnesses out of turn, to explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course."

The interposed witnesses of which the husband now complains were [Ms B] and Ms Pearce. [Ms B] was interposed prior to the husband commencing cross-examination of the wife and Ms Pearce was interposed at the commencement of the following day, prior to the resumption of the husband’s cross-examination of the wife. The husband also sought and obtained leave to interpose one of his witnesses, [Ms M], at this time.

The circumstances in which [Ms B] came to be interposed were that it appeared that she was only available on 22 November. Discussion ensued between his Honour and counsel for the wife as to this immediately after the luncheon adjournment on that day, during which his Honour indicated that he thought it best to call her forthwith. The transcript reveals the following :-

"HIS HONOUR:  Yes, so do you mind if that witness is interposed?
MR [F]:  Not at all.
HIS HONOUR:  I don’t normally interpose witnesses, I want to make that clear, but if she’s only available today, and not for the balance of this week, it appears to be good common sense to do it this way. It’s not an unfortunate imposition in the sense that [the wife] has not yet really given – has not yet – you haven’t yet commenced your cross-examination.
MR [F]:  No I haven’t
HIS HONOUR:  Okay. All right then, we’ll interpose the witness."

As we have mentioned, [Ms B] was an acquaintance of the wife, who gave evidence as to her observations following contact visits

The circumstances in which Ms Pearce came to be interposed on the morning of 25 November were that counsel for the wife informed his Honour that her ability to attend court was somewhat limited and that she was at court.

The husband had previously indicated a desire to call [Ms M] on that day, as she was not available on the following day. His Honour said in relation to Ms Pearce, “Well, if she is here at 10.00, subject to what Mr [F] says, we might interpose her too. I am loath to interpose any witnesses. It causes the proceedings to look like a used bingo board in the end, but sometimes it cannot be helped and you have got to look to the conveniences of the witnesses as well. And that includes, of course, [Ms M]. All right.”

After a short adjournment, his Honour then went on to discuss the transcript of the Meehan interview with the husband. The husband raised no objection to the witness being interposed and the matter was not discussed further before she was called.

Ms Pearce is a director of Bayside ChildCare, which the child had been attending during 1996-7. In her report she said that the child had suffered an injury to her face on 6 January 1997. She also said that the child had suffered some half a dozen accidents at the Centre over a year She produced her accident report and the records in relation to the child held by the Centre.

It was one of the husband’s allegations that the wife had intentionally inflicted the injuries of 6 January and other incidents of bruising on the child. Ms Pearce’s evidence was thus of some significance. However the husband’s-cross examination of her was confined to some questions as to how the child came to be injured on 6 January, whether he had caused any problems at the Centre when he came to collect the child on Wednesdays, and the frequency with which he inspected the Centre’s records.

She also gave positive evidence as to the mother’s relationship with the child, which he did not question.

We are unable to see any possible prejudice to the husband from the interpolation of these witnesses. We think that some sense of proportion must be brought to bear upon the need for trial judges to comply with this guideline.

In Johnson’s case, the interposed witness, a Dr Ward, a child adolescent and general psychiatrist, was a crucial witness for the wife. He was interposed to give expert evidence on the second day of what turned out to be a 17-day trial. At the time of his giving evidence the issue in the case was as to contact.

On the seventh day of the trial the husband sought and was refused leave to amend his application to include a claim for residence.

During the tenth day of the trial, the husband sought that Dr Ward and another psychiatric witness be recalled so that the husband could cross-examine them about Parent Alienation Syndrome, of which he said that he had only recently become aware. The trial judge refused to permit Dr Ward to be recalled, despite the fact that the child representative supported his recall.

The Full Court held that the trial judge was wrong in refusing to permit the recall of the witness and in refusing the amendment. They went on to say at 84,421 para 123:-

"In our opinion, the trial judge failed to afford the husband procedural fairness in relation to the interposition of Dr Ward before the wife’s evidence had been given. In particular: -
1.By failing to explain to him the consequences of and possible undesirability, of Dr Ward’s being called before the conclusion of the evidence from both the husband and wife and
2.By failing to advise him that he had a right to object to the early interposition of Dr Ward’s evidence, and of the possible consequences of his failure so to object."

While we do not disagree with the views of the Full Court in that particular case we have some concerns about the general applicability of the particular guideline laid down by the Full Court in this regard. We appreciate that their Honours referred to the remarks of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-6 to the effect that :-

"An appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.”

The first question in this case is whether the failure of the trial judge to comply with the fourth guideline in Johnson was a departure from the rules of natural justice. The second is whether if the answer to the first question is in the affirmative, did it make any difference to the outcome.

We are of the view that the answer to the first question is in the negative. While the primary object of the trial judge is to ensure that there is a fair trial of the issues, the ordinary exigencies of the availability of witnesses and their convenience as well as that of the parties, must be taken into account, as his Honour did in this case.

In the circumstances seen in Johnson’s case or similar, the guideline may be apt. However in the vast majority of cases it is not. This case is a good example. As we have said, we are unable to see any possible prejudice that arose to the husband by the interposition of these witnesses and we consider that it would have been quite unnecessary for his Honour to have complied with the relevant guideline in this case.

The same would apply in most other cases. The smooth running of the court frequently requires the interposition of witnesses. Often expert witnesses are busy professionals who have great difficulty fitting their timetable to that of the court. Others have obligations to children and others that limit their availability. Cases take longer than expected and litigants in person in particular have difficulty in forecasting their length. In our view there must be give and take on both sides and we think that the imposition of this requirement as a guideline places an unreasonable burden on trial judges and in fact places litigants in person in a more advantaged position than others.
It would be a rare case where any prejudice to a party could not be overcome by recalling such a witness. Indeed, in Johnson's case itself, we would doubt whether the Full Court could have found there was a breach of natural justice if Dr Ward had been recalled.

CONCLUSION

For the foregoing reasons, the appeal is dismissed.

REVISITING THE JOHNSON GUIDELINES

It is we think, necessary to revisit the Johnson guidelines in any event. It was highly desirable for the Full Court to endeavour to give assistance to trial judges as to the best way to afford a fair trial to litigants in person and we think that they have been of great assistance: see also Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438. However guidelines are exactly what they are and they are neither immutable nor incapable of revision. In this regard we would draw attention to Secretary, Department of Health and Human Services v JWB and SMB (1992) 175 CLR 218 wherein a majority of the High Court referred approvingly to the judges of the Family Court developing guidelines "to give further content to the phrase "best interests of the child" in responding to the situations with which they will have to deal." (at 260)

The Full Court in Johnson's case made reference to previous judicial guidance as to litigants in person. In particular, the Full Court referred to the prior unreported decision of the Full Court of the Family Court of Australia in C and O delivered on 18 March 1997 in which it was observed:

'Clearly a trial judge would be obliged to inform a litigant in person of the manner in which the trial is to proceed, the order of calling of witnesses and the right which he or she has to cross examine witnesses. … A trial judge should explain to a litigant in person any matters of procedure relevant to the litigation and generally assist him or her by taking basic information from witnesses called, such as name, address, occupation and then indicating to him or her as the trial proceeds when he or she may ask questions, whether in chief or cross examination and when final submissions are to be made. Trial judges … should not give litigants in person legal advice essentially for the following reasons:

(a)It would be unfair to the other litigants in the proceedings, and;
(b)Such advice may be given without full knowledge of the facts and therefore be of dubious assistance or perhaps even plainly wrong.'

The Full Court in Johnson was also referred to the New South Wales Court of Appeal case of Rajski v Scitec Corporation Pty Ltd, unreported, 16 June 1986, in which the following observations were made by Samuels JA,

'In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent.'

Mahoney JA observed in the same case,

'When a party appears in person he will ordinarily be at a disadvantage, that does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of a lack of legal skill, failed to claim rights or put forward arguments which otherwise he might have done.'

The above remarks were endorsed by McLelland CJ in the Equity Division of the Supreme Court of New South Wales in the matter of Studer v Konig, unreported, 4 June 1993, in which the Chief Judge stated,

'There can be little doubt that a litigant in person who has little or no legal training or experience is subject to a serious disadvantage in the effective conduct of legal proceedings, and in recognition of this fact, the court takes such steps as are reasonably available to it to assist such a litigant to overcome or diminish that disadvantage. But there are limits to how far the Court can properly go in providing such assistance and the limits are reached when to go any further would either (a) compromise either the impartiality or the appearance of impartiality of the court, or (b) result in procedural or substantive injustice to the other party.'

The Full Court in Johnson was mindful of the fact that the principles espoused by the aforementioned authorities arise for the large part out of the general law. They took the view that special circumstances surround litigation under Part VII of the Family Law Act 1975 (Cth), in particular, having regard to the Court's obligation to: make parenting orders in the best interests of the child; conduct as full and complete an enquiry as possible into all relevant issues prior to determination; and avoid unnecessary restrictive procedures.

The guidelines enunciated in Johnson were expressed by the Full Court as “the obligations which we consider trial judges have when hearing cases involving unrepresented litigants” (at para 121). The guidelines were as follows:

'1.To inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
2.To explain to the litigant in person any procedures relevant to the litigation;
3.To generally assist him or her by taking basic information from witnesses called, such as name, address and occupation;
4.If a change in the normal procedure is requested by the other parties, such as the calling of witnesses out of turn, to explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
5.If evidence is sought to be tendered which is or may be inadmissible, to advise him or her of the right to object to inadmissible material, and to enquire whether he or she so objects;
6.If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
7.To ensure as far as possible that a level playing field is maintained at all times;
8.To attempt to clarify the substance of the submissions of unrepresented parties, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150).'

The Full Court attempted to preserve the distinction between affording a litigant in person procedural guidance so as to avoid unfairness as opposed to legal advice by stating:

'It is undesirable for legal advice to be given to a litigant in person, essentially for the following reasons:

(a)It may be unfair or have an appearance of unfairness to the other parties; and,
(b)The advice may not be with full knowledge of the facts;'

The intention of the Full Court in Johnson was to assist parties and the judiciary in meeting the needs of litigants in person without compromising the impartiality of the court. However, as Dewar, Smith and Banks note at page 2 of the recent study 'Litigants in Person in the Family Court of Australia - Research Report No. 20' (2000), Family Court of Australia:

The distinction between information and advice, a cornerstone of appellate judicial guidance in relation to litigants in person, is seen by many judicial officers and Court staff as logically and practically unworkable.
The Full Court guidelines in Johnson v Johnson were often seen as involving a conflict, or at best being hard to fit into the realities of the court.

In this regard, Johnson guidelines 4 and 5 would appear to be inconsistent with the admonition on proffering legal advice rather than procedural guidance.

Internal tensions within the Johnson guidelines are mirrored by tensions between the guidelines and other legislative provisions / rules of court, such as the obligation of judges to ensure that proceedings are not unduly protracted (s97(3) Family Law Act) and to have regard to the need to provide a prompt and inexpensive resolution to matters in dispute between parties (Order 4 rule 4 Family Law Rules).

The decision in Johnson affords implicit recognition to the problematic position of this Court operating under an adversarial system, in dealing with litigants in person. Whilst the Court has in some respects moved away from a traditional adversarial model, for example through its emphasis upon case management and primary dispute resolution, it is nevertheless a superior court of record, often concerned with complex procedures requiring specific drafting and advocacy skills and an understanding of the rules of evidence : see Family Law Council (2000) Litigants in Person : A Report to the Attorney-General prepared by the Family Law Council at paragraph 1.48). The parties retain the primary responsibility for defining the issues in the case and presenting / advancing the relevant legal argument.

We think that guidelines must not risk compromising the neutrality of the court, or the perception of the Court’s neutrality. Such neutrality is a key feature of the adversarial system. Judicial assistance cannot make up for lack of representation without an unacceptable cost to matters of neutrality. However, in our view, the obligation to provide a fair trial has principal significance for a court of law and it must take some steps to assist a litigant in person in order to do justice between the parties with an eye to the reality of the prevalence and diversity of litigants in person in this jurisdiction.

Doing so through guidelines is not without its difficulties and as the Family Law Council has pointed out:

'However, the judge must also ensure that proceedings are conducted fairly and, in certain instances, may feel compelled to assist unrepresented litigants by making sure all the evidence is before the court. This intervention can give represented parties the impression that unrepresented litigants are at an advantage and treated leniently. It may also lead to the perception of bias. The ALRC has found that represented parties perceive unfairness if the court gives procedural leeway or allows an unrepresented litigant to argue irrelevant issues.' (Litigants in Person : A Report to the Attorney-General prepared by the Family Law Council at paragraph 2.55).

It is also apposite to note the following remarks of the Full Court of the Federal Court of Australia in Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446:
‘A trial Judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 (NSW CA), at 397, per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, 15 September 1997, Supreme Court Vic, Smith J), at 6.’

We do not disagree with the formulation of the Full Court in Johnsonas to the reasons why it is usually undesirable for the judge to give legal advice, particularly, when it is of a strategic nature. We do however think that there can be circumstances where the requirement to conduct a fair trial requires a judge to give assistance of a legal nature to a litigant in person even though such assistance may risk compromising the appearance of impartiality and neutrality from the perspective of the other side.

As with the law that has developed in respect of the appearance of bias, we think it is necessary to appreciate that the imperative to do substantive justice as between the parties requires the conduct of the presiding judge to be assessed by a standard which is properly informed. The informed nature of that standard must, in our view, take account of the responsibility of the Court seized of the family law matter to properly understand the litigant in person’s position within the litigation.

When the litigant in person’s basal position is understood, there may well have to be interventions from the bench to explore whether that understanding is correct or remains consistent with the position that party has previously adopted. Frequently, such interventions will be in the form of questions, either to the litigant in person or, based on the understanding of the self-represented party’s case, questions to a witness or the other party – represented or not.

On occasions, the interchange may lead to a statement or suggestion from the bench which, seen in an informed light, is in truth, unobjectionable. Even though they might appear to be a departure from the ideal of impartiality and neutrality, such interventions may be an aid to what we consider the ultimate function of the Court in family law matters – doing justice as between the parties in the dispute at hand on the best evidence that may be adduced within the circumstances of the case. However, the recent decision of the High Court in Re Refugee Review Tribunal & Anor; ex parte H & Anor [2001] HCA 28 (24 May 2001) is an important reminder that interventions, particularly in respect of matters of witness credibility, can give rise to an apprehension of bias that vitiates the integrity of the proceedings and the judgment.

The knowledge and skill base of litigants in person can vary widely. As pointed out in the recent publication of the Australian Institute of Judicial Administration (2001) Litigants in Person Management Plans: Issues for Courts and Tribunals, Carlton:

“Where a litigant appears in person they will ordinarily be at a disadvantage because of their lack of legal skill. The court has an obligation to diminish this disadvantage so as to ensure a fair and just trial. However this obligation is subject to the need for the court to maintain its position of neutrality in the proceedings. The court must not confer an advantage on the litigant in person over the represented party.

The extent of the obligation on the court to assist litigants in person is contextual and may depend on the litigant, the nature of the case and the litigant’s intelligence and understanding of the case. The court may also have regard to the position of the other party or parties concerned and the efficient conduct of the proceedings.” (at page 6, footnotes omitted).

With these matters in mind, we think that the giving of such assistance should lie in the discretion of the trial judge and should not be required by mandatory guidelines nor should the nature of the interventions from the bench be rigidly proscribed or prescribed. The exercise of such discretion serves the goal of achieving a fair trial so that the interests of justice can be served. Therefore, the application of the guidelines must depend on the circumstances of the particular case.

We have noticed that a number of litigants in person are endeavouring to use the alleged breach of the guidelines as a ground of appeal in itself. We do not think it is appropriate for the guidelines to be used in this way as there may well be good reason in particular cases to depart from some of the guidelines but always remembering the Court’s obligation to provide procedural fairness and a fair trial. Thus, if in the circumstances of a particular case, a trial judge does not follow the guidelines, it does not follow that there has not been procedural fairness and a fair trial.

We would however offer the following specific observations.

We certainly see no objection to a judge in his/her discretion drawing a litigant in person’s attention to the principles applied by the Court in determining issues before it.

Secondly, we see no objection to judges drawing the attention of litigants in person to the principles governing the admissibility of evidence as Guest J did in the present case.

Thirdly, we consider it proper for the bench to ask questions of a witness in financial as well as children’s proceedings where the material on the record warrants investigation to achieve the goal of doing justice as between the parties, and in the case of a child, the making of orders that fulfil the paramountcy principle expressed in s65E Family Law Act (see the discussion of children’s matters in In re P(a child); Separate Representative (1993) FLC ¶92-376).

Fourthly, the judge may take the view that he or she should assist in the reformulation of applications which may be made by the litigant in person, including but not confined to matters such as procedural steps. Subject to the other party sustaining no injustice, we see no objection to a judge reframing the material to properly reflect what the applicant intended. The alternative may be a costly adjournment followed by yet another application.

Similarly, it may be the judge considers it necessary to clarify the particulars of the orders sought by a litigant in person, or the bases for such orders.

We see the giving of this sort of assistance as fundamentally different from, for example, proffering advice as to a litigant in person’s chances of success in a particular case or advising as to the type of witness that would best advance a party’s case. Matters such as these appear to us to be too dependent upon an intimate knowledge of the party’s case which goes beyond the material on the record and is thus a function of advocacy rather than assistance or information.

We have already expressed our concerns about the effect of guideline 4 and we propose to modify it as hereafter appears.
Guideline 5 as presently formulated in effect might be thought to require a judge to take evidentiary objections for a litigant in person that might have been taken if the litigant was represented by counsel. All that the guideline intended to say was that in general and again, depending upon the circumstances of a particular case, a trial Judge ought to advise a litigant in person that he/she had a right to object to inadmissible evidence being admitted. The guideline was never intended to require a trial Judge to advise a litigant in person of his/her right to object to a particular question or to the admission of a particular document.

As far as guideline 6 is concerned, it does no more than remind judges of the statutory requirement of s132 of the Evidence Act 1995 (Cth).

We think that guideline 7 should be also be reformulated. All that was intended to be conveyed by the guideline was that there was an obligation on a trial judge to ensure a fair trial. We regard it in its present form as possibly leading to the creation of expectations that cannot be achieved. It is always the duty of a judge to ensure that proceedings are conducted fairly and impartially - that the parties are entitled to a fair trial.

It should be recognised that persons who represent themselves are almost always at a disadvantage in legal proceedings. Advocacy is a professional skill that has almost always been performed by highly trained lawyers in our legal system. They not only bring those skills to bear but also professional objectivity that a litigant in person lacks, particularly in family law proceedings. It is simply not possible to create a level playing field where one party is represented by a professional and the other is not. Thus, to provide a guideline to judges of this type, if applied literally, not only sets the judge an impossible task but is likely to create unreal expectations on the part of the litigant in person and at the same time give a false impression of lack of impartiality by the judge to the party who is represented.

Litigants may be self-represented by choice or increasingly, as a result of being unable to afford representation while at the same time failing to qualify for legal aid. The Court is moving to deal with this situation in a number of ways but it cannot by the use of guidelines affect its obligation to conduct trials according to law.

In the High Court decision of Ebner v The Official Trustee in Bankruptcy (2000) 176 ALR 644, Gaudron J said at para 80:

“In a number of cases I have expressed the view that the term ‘judicial power’ in Ch III of the Constitution does not simply refer to the power to settle justiciable controversies, but to the power to settle controversies of that kind in accordance with judicial process. Impartiality and the appearance of impartiality are so fundamental to the judicial process that they are defining features of judicial power. And because the only power that can be conferred by Ch III of the Constitution is the judicial power of the Commonwealth, that Chapter operates to guarantee that matters in federal jurisdiction are determined by a judge who is impartial and who appears to be impartial."

For the reasons already stated we think that this guideline in its present form may upon a literal interpretation, give rise to arguments that operate detrimentally to such a principle.

We would re-formulate the Johnsonguidelines as follows.

We would retain what are currently guidelines 1,2,3,6 and 8 in their present form, save for minor grammatical additions that do not affect their substance.

We would reformulate what is currently guideline 4 to read:

“If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;”

We would reformulate what is currently guideline 5 to read:

“A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;”

What currently appears as guideline 7 should be replaced by the following, and should be the first guideline of the set:

" A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial; ".

We would add a further guideline in the following terms:-

“Where the interests of justice and the circumstances of the case require it, a judge may:
·     draw attention to the law applied by the Court in determining issues before it;
·     question witnesses;
·     identify applications or submissions which ought to be put to the Court;
·     suggest procedural steps that may be taken by a party;
·     clarify the particulars of the orders sought by a litigant in person, or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias. ”

Before leaving this matter, we would note that in our consideration of the how a judge may assist a litigant in person, we see that comparable considerations may also arise in circumstances where a judge is concerned that a party is being represented by an incompetent lawyer: see Ipp J (1995) “Judicial Intervention in the Trial Process” Vol. 69 The Australian Law Journal 365. We are also conscious that the role that a judge may play in assisting litigants is part of a broader expectation of managerial judging for the attainment of a fair trial and the interests of justice. To those ends, we appreciate that situations arise which require varying degrees of judicial intervention to control the conduct of proceedings, for example, by curtailing proceedings: see Rogers J (1993) “The Managerial or Interventionist Judge” Vol. 3 Journal of Judicial Administration, 96. We leave these issues for consideration by the Full Court on an appropriate occasion.

Finally, we think it useful to list the set of guidelines as altered by our consideration of them above.

10.A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
11.A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;

12.A judge should explain to the litigant in person any procedures relevant to the litigation;

13.A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
14.If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
15.A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
16.If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
17.A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);
18.Where the interests of justice and the circumstances of the case require it, a judge may:
·     draw attention to the law applied by the Court in determining issues before it;
·     question witnesses;
·     identify applications or submissions which ought to be put to the Court;
·     suggest procedural steps that may be taken by a party;
·     clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.

ORDERS

The orders of the Court will be:
1.That the appeal is dismissed.
2.That:
(a)Either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal within 21 days of the date hereof.
(b)The other party have a further 14 days in which to make written submissions in answer thereto.
(c)The first mentioned party have a further seven (7) days in which to make any written submissions in reply thereto.
(d)Each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

I certify that the previous 254 numbered paragraphs are a true copy of
the edited reasons for judgment delivered by this Honourable Full Court.

Danny Sandor

Senior Legal Associate to the Chief Justice

[2001] FamCA 348

4 June 2001