Reema and Baboor & Ors
[2020] FamCA 432
•29 May 2020
FAMILY COURT OF AUSTRALIA
| REEMA & BABOOR AND ORS | [2020] FamCA 432 |
| FAMILY LAW – COURTS AND JUDGES – Disqualification – Apprehension of bias – Where father contends prejudgment of issues in parenting dispute based on observations and findings made in various interim parenting judgments, and other judicial conduct in the context of parenting proceedings – Application for disqualification dismissed. |
| Family Law Rules 2004 (Cth) r 12.10A |
| Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Strahan & Strahan (Disqualification)[2009] FamCAFC 204 |
| APPLICANT: | Mr Reema |
| FIRST RESPONDENT: | Ms Baboor |
| SECOND RESPONDENT: | Ms Reema Snr |
| THIRD RESPONDENT: | Mr Reema Snr |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid |
| FILE NUMBER: | PAC | 1995 | of | 2018 |
| DATE DELIVERED: | 29 May 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 19 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr O'Ryan SC |
| SOLICITOR FOR THE APPLICANT: | Broun Abrahams Burreket |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr R Schonell SC |
| SOLICITOR FOR THE 1ST RESPONDENT: | Walter & Elliott Family Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Edwards |
| SOLICITOR FOR THE 2ND RESPONDENT: | Watts McCray |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Edwards |
| SOLICITOR FOR THE 3RD RESPONDENT: | Watts McCray |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The father’s application filed 15 November 2019 seeking that I recuse myself from further hearing the matter is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Reema & Baboor and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 1995 of 2018
| Mr Reema |
Applicant
And
| Ms Baboor |
First Respondent
And
| Ms Reema and Mr Reema Snr |
Second and Third Respondents
REASONS FOR JUDGMENT
Introduction
Since May 2018 the parties have been involved in a dispute concerning a property settlement and the future parenting of their only child, a daughter now aged four (“the child”), following the breakdown of their nine year relationship. The paternal grandparents with whom the family had lived prior to separation were subsequently joined to the proceedings and seek orders for time with the child.
In November 2018 interim parenting orders were made providing for the child to live with the mother and spend no time with the father or paternal grandparents and for the mother to hold sole parental responsibility for the child pending final hearing.
On 15 November 2019, almost two months after I determined an application made by the mother in which she sought permission to travel overseas with the child, the father filed an Application in a Case seeking that I recuse myself from further hearing the matter.
At a case management court event before me on 9 December 2019 the parties agreed that the father’s recusal application could be dealt with by filing written submissions which would be supplemented by short oral submissions at a hearing subsequently listed on 19 February 2020.
It is the father’s case that I am required to disqualify myself on the basis that a fair minded lay observer would apprehend that I may not bring an impartial mind to the resolution of the dispute as I have prejudged the matter as revealed in the manner that I have approached the proceedings to date.
The mother in response seeks that the father’s application be dismissed.
The paternal grandparents have also filed a Response supporting the father’s position but did not wish to be heard on the application.
The question for me to determine is whether a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the matters yet to be determined in the proceedings.
Background
In order to understand the contentions upon which the father relies in support of his application, I set out the following background to the proceedings and events.
The parents who share the same ethnicity and heritage were born in two different overseas countries. They began living together in Australia in about 2009 and married in 2011.
In the course of their marriage the parties had one child, a daughter who is now four.
The mother contends that throughout their relationship the father engaged in increasingly controlling and coercive behaviour which, over time, escalated to severe physical abuse and sexual abuse. Throughout their marriage the mother, and then later the father, lived with the paternal grandparents in their home. It is the mother’s case that the paternal grandparents were aware of the father’s violent and coercive conduct, and turned a blind eye to it, and to some extent, also engaged in coercive conduct towards her.
The mother specifically contends that she was the subject of a particularly brutal sexual assault a few weeks after the child was born, resulting in ongoing physical harm. The father denies all contentions in relation to this assault and contends that the physical harm related to child birth.
The mother alleges that since the birth of the child the father behaved in an inappropriate manner towards the child such as sleeping nude with herself and the child, refusing to purchase a cot, and forcing the mother to have sexual intercourse with him while the child was with them in the bed. This is also denied by the father.
The mother contends that there was a further serious assault ongoing for two days in December 2017. She deposes that the father was physically assaulted her including by choking her, engaged in sexual abuse and particularly degrading sexual conduct towards her and that she experienced a physical injury as a result of these assaults. The mother also alleges that she was crying and screaming at times during the events so the paternal grandparents must have been aware of the assault. She says that the paternal grandmother removed the child from the parents at one stage to allow the assault to continue. The father denies any of the violence alleged by the mother.
The parties separated in May 2018 when the mother took the opportunity to leave the home with the child in the middle of the night when the father was absent for work and immediately attended upon police to outline her allegations and seek protection.
Following the parties’ separation in May 2018, the father commenced proceedings in the Federal Circuit Court seeking parenting orders in relation to the child. In response, the mother also sought property settlement orders.
Throughout the proceedings the mother has contended that there is an unacceptable risk that the child may be harmed as a result of exposure to family violence or sexual abuse in the father’s care. She also contends there are significant impairments to his parenting capacity.
At one stage, the father faced charges in relation to the alleged assault of the mother in December 2017, but these charges were ultimately dismissed following hearing in a Local Court in December 2018. An Apprehended Domestic Violence Order (“ADVO”) was made against the father for the mother’s protection for two years at the time the charges were dismissed. This order was made with the father’s consent, without him making any admissions as to his conduct.
The father denies all of the mother’s allegations and continues to assert that he poses no risk of harm to the child.
Since separation the child has not spent any time with the father.
In late May 2018 the proceedings were transferred to this Court and the family soon after met with a family consultant in the course of the Child Responsive Program. At the time of the assessment the child remained in the mother’s primary care and had no contact with the father.
In her Memorandum to Court dated 15 August 2018, the family consultant noted that the child was observed to have engaged positively with the mother but that she was confused by, and disengaged with the father. It was the family consultant’s recommendation that the least detrimental alternative for the child in the interim is that the father be restrained from contact with her given the serious allegations of family violence made against him. The family consultant also recommended that the proceedings be expedited.
On 6 September 2018 the paternal grandparents joined the proceedings seeking orders for time with the child as they had played a significant role in the child’s care during the parties’ relationship and had also not seen the child since separation.
At the defended hearing as to interim parenting arrangements on 17 September 2018 (“the September 2018 hearing”), the father’s proposal (which had changed on a number of occasions since initiating proceedings) was that he spend supervised time with the child at a contact centre for two hours each Saturday. The ICL took the position that the least detrimental parenting arrangement for the child would be in the terms of the orders proposed by the mother that the child spend no time with the father or paternal grandparents.
For reasons given in my Judgment dated 1 November 2018[1] (“the 2018 Judgment”) I assessed the probability at the final hearing of the father being found to pose an unacceptable risk of harm to the child, and was of the view that limited time with him in the supervised setting of a contact centre would not mitigate this risk. I also held real concerns about the risk posed by the paternal grandparents and indicated that such risk outweighed the possibility that the relationships of the father and paternal grandparents with the child may be harmed in the event there was no interim contact. Accordingly, interim orders were made that the child spend no time with the father or the paternal grandparents and that the mother hold sole parental responsibility for the child who was to live with her pending further order.
[1]Reema & Baboor and Ors [2018] FamCA 886
In April 2019 the mother made an interim application for overseas travel with the child and the father also sought orders for supervised time with the child on an interim basis and for the proceedings to be bifurcated.
There was a court event on 15 April 2019 (“the April 2019 court event”) where some of the parties’ outstanding applications were considered. At that court event an expert was appointed and parties were ordered to attend upon him for the preparation of a report. I also made an order on this occasion dismissing the father’s application to bifurcate the proceedings for which short reasons were given (“the April 2019 Judgment”). So far as the father’s application to revisit the interim parenting orders is concerned, I noted that in accordance with the principles in Rice v Asplund[2], consideration must be given (at a future hearing) to whether there had been a sufficient change in circumstances such that it was in the child’s best interests for that to occur. Subsequently in August 2019, the father withdrew his interim application for time with the child.
[2] [1978] FamCA 84; (1979) FLC 90-725.
The expert report was released on 9 August 2019. Subsequently the expert was asked a series of questions pursuant to Rule 15.65 of the Family Law Rules 2004 (“the Rules”) by the father’s then solicitor.
In his report the expert expressed the view that sole parental responsibility for the child should continue to rest solely with the mother and that if the Court is to find that the mother’s allegations made against the father have veracity then the Court should consider ordering the “indefinite continuation of the arrangement currently in place”.
On 20 August 2019 the parties attended a Conciliation Conference in relation to property proceedings but did not reach agreement. Trial directions were then made in September 2019 with which only the mother has complied.
The mother’s application for orders permitting her to travel overseas with the child was heard on 16 September 2019 (“the September 2019 hearing”).
On 30 September 2019 I made orders largely in terms sought by the mother permitting her to travel overseas with the child and on the same occasion published my Reasons for Judgment[3] (“the September 2019 Judgment”). The mother also sought costs against the father in relation to this application and such costs were ordered as sought in a judgment delivered in April 2020[4].
[3]Baboor & Reema [2019] FamCA 698.
[4]Baboor & Reema and Ors [2020] FamCA 227.
On 19 February 2020 after hearing the competing oral submissions of both parties I reserved judgment.
The application
The father’s application is based upon the contention that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the matters that are to be determined in the proceedings. It is his main contention that when regard is had to my judicial conduct in the parenting dispute to date, there is a reasonable apprehension that I will approach the issue of alleged risks of harm posed by the parties to the child in a manner that is not impartial or unprejudiced.
As outlined in the written submissions filed on the father’s behalf and developed in oral submissions, the father’s relies on 10 contentions in support of his application. These contentions which are said to give rise to the reasonable apprehension of bias arise from three court events being the September 2018 interim hearing, the 15 April 2019 court event and the September 2019 hearing.
The mother contends in written submissions filed on her behalf that none of the father’s contentions, whether considered individually or cumulatively, give rise to any foundation for a proposition of an apprehension of bias. She seeks orders that the father’s application be dismissed.
Although the paternal grandparents did not file evidence, in their Response to an Application in a Case filed 6 December 2019 they indicated support for the father’s application.
The ICL did not wish to be heard on this application.
The Law & Discussion
In Ebner v Official Trustee in Bankruptcy[5] (“Ebner”), the plurality of the High Court (Gleeson CJ, Gummow and Hayne JJ) set out the test for disqualification as follows:
6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[5] [2000] HCA 63; 205 CLR 337.
What is said might lead to deciding the case other than on its legal and factual merits?
The first of the steps to be taken in the application under consideration is the identification of what is said might lead me to decide the case other than on its legal and factual merits.
The September 2018 Hearing
The father identifies three matters from the September 2018 hearing which he says give rise to the feared deviation from the course of deciding the case on its merits. These are:
·A conflation of the alleged behaviour of the father towards the mother with that directed towards the child;
·The making of a “finding” that the effect on the child of spending no time with the father could be ameliorated by family therapy without any evidence; and
·The failure to consider properly the likelihood of the alleged harmful events occurring.
So far as the first contention is concerned, it is the father’s case that there are no allegations in any of the evidence filed in the proceedings that he ever physically or sexually assaulted the child. I note in passing that I do not accept that this is correct.
The father contends that an examination of the transcript of the September 2018 hearing reveals that I conflated the allegations of violence towards the mother and violence directed towards the child. The father contends that this conflation “must” have directly informed my decision to make interim orders for sole parental responsibility to the mother and that the father spend no time with the child.
In written submissions and in oral argument, the alleged “conflation” complained of was not identified in either the transcript of the proceedings on that day, or in the 2018 judgment. Attention was brought only to an interchange between the ICL and bench as follows:
[ICL]: …I don’t suggest for a second that the father would physically harm the child in a supervised time setting.
[HER HONOUR]: No.
[ICL]: My concern about harm is the impact on the mother’s parenting capacity if she is required to bring the child into the presence of the father.
[HER HONOUR]: I think there’s also the issue of the role of – there are orders made requiring the child to be brought into contact with a person who, if they’re found to be the perpetrator of great harm – I think there is the submission made that the child will cope with it.
[ICL]: I’m not ---
[HER HONOUR]: But why – should a child cope if – quite apart from the impact on the mother’s – the fact that the powers of the state are requiring a child to come into contact with a person, if it is found to be the perpetrator of most egregious harm to that child in exposing the child – quite apart from the issue of the impact on the mother.
[ICL]: Yes. Indeed. Yes. Yes. On the mother. And a child of three should not be required to cope with anything.
In my view, it is clear from this interchange that the potential harm to the child identified by me at this point in the proceedings, if the mother’s evidence were accepted, is the harm that arises from being exposed to serious family violence. This is not a conflation of the allegations of physical harm perpetrated by the father against the mother and such acts perpetrated against the child.
Further, the only part of the transcript from the 17 September 2018 proceedings in which the father’s counsel identifies the alleged “conflation” is at Line 45, where the speaker of the words is the ICL, rather than myself.
In the course of oral submissions when pressed about this issue, the father’s case shifted. Although it appeared to be recognised that I was not the person who had conflated the allegations at that particular point in the transcript, it was contended on behalf of the father that the alleged “conflation” was evident in the “finding” of unacceptable risk of harm to the child in the 2018 judgment. Thereafter the oral submissions made on behalf of the father in relation to each of the “contentions” arising from the September 2018 hearing became subsumed in a single submission. This submission is that I made a “finding” that the father posed an unacceptable risk of harm to the child and this matter might lead me to decide the case other than on its legal or factual merits.
In support of the argument that I made a finding about unacceptable risk, the father’s counsel took me to various paragraphs in the judgment, culminating in the following:
81. In these circumstances I assess the risk posed by the father as too high to justify making the orders that he seeks. I am of the view that even the limited proposal that such time be of limited duration and occur in the supervised setting of a contact centre does not mitigate this risk.
82. I also assess the risk posed by the paternal grandparents to be of such a magnitude that it is not in the child’s interest to spend interim time with them for the following reasons.
In my view a fair reading of the 2018 Judgment does not support the contention that I made a “finding” that the father posed an unacceptable risk of harm, but that I “weigh[ed] the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected”[6] as required where issues of alleged risk are raised at an interim hearing.
[6]SS & AH [2010] FamCAFC 13 at 100.
It may be seen that the structure of the 2018 Judgment is that there is first an introduction and background containing the uncontested facts and then under the heading “The contested facts” I set out the following:
29. Although when considering interim orders, the court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the court may and in some circumstances must have some regard to the matters in dispute. In SS & AH , their Honours said at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
30. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George, a decision of the Full Court citing Deiter & Deiter).
31. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an alleged risk and where it was said at [61]:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
I then outline the mother’s contention that the father poses an unacceptable risk of harm on various bases and that there is no benefit to the child in having a relationship to him as a result of these unacceptable risks which she contends cannot be mitigated.
In the ensuing paragraphs each of the domains of alleged harm said to be posed by the father are identified as well as the evidence said to support each of these matters. The risks alleged by the mother include the likelihood that the child will be exposed to family violence perpetrated by the father towards any future intimate partner, the potential abuse of the child in light of the father’s expressed attitude towards females and female children, risks arising from inappropriate conduct of a sexual nature, as well as allegations of physical abuse towards the child.
Under the next heading “Discussion and assessment of risk of harm” I summarise the mother’s contentions in relation to the alleged risks as well as her contentions that the risk of harm cannot be mitigated by supervision and that there is no benefit to the child in having a meaningful relationship with the father. In this context, I said the following:
68. It is contended on behalf of the mother that although the court cannot make findings in an interim hearing the alleged risk posed by the father must still be assessed at this interim stage. She contends that weighing the probabilities of her allegation that the father sexually abused her in 2015, committed a serious and ongoing assault in December 2017 and January 2018 against the father’s denials of his conduct and the likely impact on the child in the event that these allegations were found to be true that the court would have real concerns about the risk posed by the father to the child.
69. Further, in relation to the risk that the father may perpetrate violence towards another intimate partner in the future to which the child may be exposed the mother relies upon the allegations made by the father’s former wife. I understand the mother’s contention to be that in the event that the father is found to have behaved in a similar fashion and displayed similar attitudes to intimate partners in two consecutive relationships the likelihood of him behaving in a similar fashion in the future to which the child may be exposed is increased.
70. In considering both the likelihood that the father will perpetrate family violence in a future personal relationship to which the child may be exposed, the likelihood that he may physically abuse and behave in a sexually inappropriate manner towards the child and the severity of the impact caused by such events if they were to occur the mother’s counsel attached particular weight to the mother’s contentions about the father’s attitude towards her and his former wife, women in general and female children.
I then consider the father’s evidence which largely consists of a denial of the mother’s allegations, though I observe that “his response in relation to her allegations about highly concerning remarks made by him about young women including family members is unknown”.
I then consider the evidence of the father’s previous wife and go on to say:
73. I accept the submission of the mother’s counsel that this evidence if accepted demonstrates that over a long period of time, going back to 2002, the father has held an attitude towards women of entitlement and control evidenced in physical assaults, sexual assaults, subjecting the victims to degradation, emotional and verbal abuse and exercising control over them.
74. Further, of particular concern and a matter to which I will return, is that if this evidence is accepted the paternal grandparents with whom both the mother and the father’s previous wife resided were aware of the father’s attitude and conduct, colluded with him in reinforcing that it was acceptable and failed to protect the previous wife, the mother, and the child from his violent conduct and appalling attitudes towards women.
75. I take into account the nature and extent of the allegations made by the mother concerning the father, the likely impact on the child from being exposed to the father’s conduct had it occurred and the impact on the mother in the event that she is required to comply with orders that would bring the child into contact with the father. In my view any contact between the father and child in these circumstances may cause serious and lasting harm to her. As opined by the Family Consultant:
If [the mother’s] claims have veracity, her reported high level of fear of [the father] would be understandable and she may experience significant psychological distress if she comes into contact with [the father] and or about [the child] spending time with [the father]. This may significantly negatively impact [the child] and it is possible that spending time with [the father] would be deleterious to [the child].
As can be seen from the foregoing extracts from the judgment, I make it clear that I am weighing the probabilities of the mother’s claim about the risks posed by the father and the likely impact on the child in the event that these assertions are either accepted or rejected. When considering the allegations, all of the assessment of risk is undertaken on the basis that events may be found proved, not that I do find them proved. This is clear in language such as “the likely impact on the child in the event that these allegations were found to be true”, “in the event that the father is found to have behaved in a similar fashion and displayed similar attitudes to intimate partners in two consecutive relationships”, “the severity of the impact caused by such events if they were to occur”, “this evidence if accepted demonstrates…”, “the likely impact on the child from being exposed to the father’s conduct had it occurred”. (emphasis added)
I then consider the opinion of the family consultant in her Memorandum in Court which is couched in similar terms such as that, “if the mother’s allegations are found by the Court to have no basis” and her opinion about “the least detrimental alternative for the child in the interim” being that “the father be restrained from coming into contact with [the child] until the Court has determined the veracity of the mother’s allegations”.
I then say the following in the two paragraphs preceding the paragraph in which it is claimed that I make a “finding” that the father poses an unacceptable risk of harm to the child:
79. I accept that the relationship between the child and her father may very well be damaged if there were to be a lengthy period in which she spent no time with him and it was noted by the family consultant that the child’s relationship with the father already appeared disengaged. However, in the event that a court finds that the father does not pose an unacceptable risk of harm to the child and orders are made that she spend time with him any damage or attenuation in the relationship may be addressed through therapeutic intervention.
80. While it would be unfortunate if the relationship between the father and child were damaged in these circumstances the likelihood of trauma to the child and adverse psychological impact upon the mother if the father were found to pose an unacceptable risk is of great weight when balancing these alternatives. There is in my view a real risk that if the child were traumatised by contact with the father and the mother’s psychological functioning were so seriously adversely affected these harms may not be capable of being successfully and appropriately remedied.
I then set out my reasons for also assessing the risk posed by the paternal grandparents to be of such a magnitude that it is not in the child’s best interests to spend interim time with them. This is approached in a similar manner by setting out the mother’s contentions and the evidence in support of them being that the paternal grandparents were aware of the father’s physical violence towards her and failed to protect the child from being exposed to it. In particular the mother relies on the extended assault upon her in December 2017 when she alleges the paternal grandmother entered the room where the assault was taking place and the child had been present for about half an hour before being removed, a matter which is not addressed in the paternal grandmother’s affidavit. The mother also alleges that the paternal grandparents were well aware of the control exercised by the father over many aspects of her life and also behaved in a controlling a coercive manner themselves towards her. She also deposes to the views and attitudes held by the paternal grandparents concerning women in general, as well as their lack of insight into the impact upon her “if she were found to be victimized by the father” and the psychological distress she would experience if she were to come into contact with him or them. In this regard I noted the paternal grandparents’ proposal which is not a matter in dispute. Once again I assessed the risks on the basis of considering how a court at a future time may view the evidence. In summary I say:
88. I assess the relative risks associated with the child coming into contact with the paternal grandparents if it were found that they were aware of the father’s violent controlling and abusive conduct towards the mother (and to the father’s previous wife) outweigh the risk that their relationship with the child may be harmed in the event there is no interim contact for the same reasons given when considering contact with the father.
89. For these reasons I am of the view that the risks associated with the child spending time with the paternal grandparents are unacceptably high.
In all of the foregoing circumstances, I do not accept that I made a finding that the father poses an unacceptable risk of harm to the child. In this sense, the first step required in the application under consideration in relation to the September 2018 hearing, has not been established. That is, the father has failed to identify the matter which is said might lead me to determine the case other than on its merits.
In my view, the father has also not identified the matters he contends might lead me to decide the case other than on its legal and factual merits as alternatively expressed in his written submissions. The father’s counsel was unable to point to the “conflation of the alleged behavior of the father towards the mother with that directed towards the child” as the only alleged “conflation” identified was not made by me.
The contended “finding” that the effect of the child spending no time with the father could be ameliorated by family therapy, was not further addressed in oral submissions. According to the written submissions it was said to have been contained in the following paragraphs in the 2018 judgment:
121. Although there are some risks to the child in not spending time with the father and paternal grandparents those risks are likely to be satisfactorily addressed through therapeutic intervention in the event that it is found at a final hearing that the father and/or paternal grandparents do not pose an unacceptable risk.
In my view, a fair reading of the paragraph in question does not demonstrate that I made a concluded finding to this effect. Rather, it is a recognition that there are some risks to the child in not spending time with the father and paternal grandparents which I consider likely to be addressed in a particular manner. It forms part of my conclusion following an assessment of the relevant risks in the event that the contentions of the parties were ultimately found to be true, and a consideration of the way in which those risks could be addressed.
The third matter identified in the 2018 judgment is described in the written submissions as a failure to give any real consideration to the likelihood of the events alleged by the mother occurring. This appears to be a complaint about the inadequacy of reasons which may have, had he chosen to do so, grounded an appeal by the father.
In the course of the hearing however, the focus as to this matter seemed to shift. Rather than maintain the contention that I did not give proper consideration to the likelihood of the alleged events occurring, the focus of the submission was that I made a finding as to this matter which goes to the heart of alleged prejudgment. No other submissions were made concerning this matter.
It is contended on behalf of the mother that the father’s application so far as it relates to the September 2018 hearing (and 2018 judgment) is waived. In this regard it is observed that the judgment was delivered on 1 November 2018 and that when the proceedings were next before me on 4 February 2019 no application for recusal was made nor was such an application made on the next occasion, 15 April 2019. At each of these court events the father and paternal grandparents were represented. No application for recusal was made at the 16 September 2019 hearing in relation to the mother’s application for overseas travel which was also a date on which I made directions for the preparation of the matter for trial.
It is argued on behalf of the mother that I need not to consider whether the matters identified in the September 2018 interim hearing and 2018 judgment, give rise to an apprehension of bias as the father knew of the circumstances that give rise to the disqualification but “acquiesces in the proceedings by not taking objection”[7].
[7] See Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 cited in Michael Wilson & Partners Limited v Nicholls [2011] HCA 48.
The question of waiver may usually be decided prior to a consideration of the first of the two steps in Ebner and there may be merit in this contention. However, as I have already determined, for the reasons given, that the matters said to give rise to the apprehension of bias have not been, in my view, correctly identified, I need not give further consideration to this contention.
April 2019 Court event
The father’s counsel then identified four matters in relation to the Court event on 15 April 2019 which he contends might lead me to decide the case other than on its merits.
The Court event on 15 April 2019 came about as the ICL, pursuant to leave given to her, had relisted the proceedings due to an impasse between the parties in relation to the appointment of an expert, and in particular the identity of the expert.
On the same date as that Court event, the father filed an Application in a Case seeking that the interim parenting arrangements be revisited, that the parenting proceedings be bifurcated from the property proceedings, that the hearing of the parenting proceedings be expedited and orders in relation to the appointment of an expert.
The transcript of this Court event indicates that after an interchange between the legal representatives and the bench concerning the appointment of an expert and various submissions made by the lawyers with respect to the terms of and other matters related to that appointment, I then observed that the father had filed an Application in a Case seeking the orders just referred to. Although this application was not listed before me on that day, I did make some observations in relation to it including the following interchange:
[HER HONOUR]: Is he filing an Application in a Case to change the interim arrangements?
[FATHER’S COUNSEL]: Yes, your Honour.
[HER HONOUR]: He’s going to be able to bring a Rice & Asplund application, is he?
[FATHER’S COUNSEL]: Yes, your Honour.
[HER HONOUR]: Well, I’m not – that will be dealt with in – I’m not expediting that in any way. It’s not before me today.
[FATHER’S COUNSEL]: Yes.
I also made reference to the order seeking bifurcation of the proceedings and said the following:
Now, as far as Order two is concerned, I don’t propose bifurcating the proceedings because it becomes a very costly procedure not only for the parties but in terms of court resources. There is also nothing about this matter that would justify expedition, especially since we don’t even have the expert’s report yet. Expedition would put these proceedings ahead of any other matters in this registry, including a number of parenting matters that we have in this registry that involve serious issues of risk to children, including the largest Magellan list in Australia. So there would be no purpose in bifurcating them. It wouldn’t get expedition as opposed to any other parenting matter.
It seems that in the property matter, I don’t know why, there has been some delay. There seems to be no reason why everything that needs to be done in relation to preparing the property matter for final hearing can’t be done. Having a look at court resources and the relative need for expedition between this matter and any others, that there would be nothing that would justify it.
I also went on to observe and make a notation to the effect that some of the orders sought in the father’s Application in a Case filed on 15 April 2019 had been dealt with in the course of the day’s Court event as they related to the appointment of an expert.
The relevant matters in relation to the recusal application arising from this Court event are identified as:
· The dismissal of the father’s application to expedite the hearing of the parenting proceedings notwithstanding the recommendation of the family consultant that the matter be expedited;
· Refusing to expedite the hearing of the parenting proceedings without hearing from the lawyers;
· Refusing the expedition of the parenting proceedings without consideration of the matters in Rule 12.10A of the Rules; and
· Precluding the possibility of a reconsideration of the interim arrangements by “purported reliance upon Rice and Asplund” which approach was said to be in error.
I will deal with the last of these matters first, that is the contention relating to my comments concerning the principles in Rice and Asplund. It was explained by the father’s counsel in the course of the recusal application that the statement that Rice and Asplund necessarily applies (which the father’s counsel contends to be incorrect as a matter of law), amounts to “a road block that your Honour had indicated the father would have to confront in seeking interim orders”, and on this basis is a matter which gives rise to an apprehension of bias.
The difficulty in dealing with this contention is that subsequent to this court event, the father withdrew and discontinued his application to revisit the interim parenting orders. Further, although it was contended that my statements were incorrect as a matter of law, that issue was not developed in the application. It appears to be an entirely academic argument as to how a statement of legal principle, even if incorrect, could amount to any impediment to a person seeking interim orders when that application for interim orders was not pursued. It was not otherwise explained how this matter could found an apprehension of bias.
The September 2019 hearing
The last three contentions, or matters said to give rise to the apprehension of bias, arise from the hearing in September 2019 and related judgment in respect of the mother’s application to travel overseas with the child. They are:
·The making of findings that the father’s opposition to the overseas travel could be seen as an attempt to exert control over the mother and that he may not hold genuine fears as to non-return which is said to be contrary to the evidence;
·The making of an incorrect finding that there was no objective evidence of the mother wanting to relocate to her home country; and
·Taking into account the ADVO made against the father for the protection of the mother, notwithstanding that the ADVO was made with the father’s consent, without making any admissions.
So far as the first matter is concerned, it is said that the identified findings are made in the following paragraphs in the September 2019 judgment:
55. Family violence looms large in these proceedings. As previously noted the mother makes serious allegations of physical violence perpetrated by the father against her to which the child was exposed and contends that he behaved in a controlling manner towards her throughout the marriage. In these circumstances I attach some weight to the contention that the father may be seen as attempting to exert control over the mother in refusing to consent to her taking the child to her home country especially if he may not hold genuine concerns about the child’s non return.
56. In my view, there is some support for the contention that the father does not hold such genuine concerns and opposes the travel for other reasons. For example, he deposes to opposing the travel in part on the basis that the child has missed some opportunities to participate in paternal family weddings due to the mother’s actions in taking the child from him and refusing all contact when the parties first separated. In this regard, it may be seen that the father is denying the child having similar opportunities with her maternal family in response to the mother’s actions rather than due to genuine concern that she will retain the child overseas.
In this paragraph in the judgment I do not accept that I made findings as contended, but merely observed that there is some support in the evidence for the mother’s contentions in this regard.
It is next identified by the father that I made an incorrect finding “that there was no objective evidence of the mother wanting to relocate to [her home country]” as the father had adduced evidence of this matter.
The relevant paragraph is as follows:
42. The father also contends that the mother had wanted to relocate to her home country for about two years prior to separation but this is also a matter strongly disputed by the mother, and is also unsupported by any objective evidence.
It is contended on the father’s behalf that I disregarded evidence contained in the father’s affidavit in relation to the application then under consideration, which is said to support the proposition that the mother had wanted to relocate to her country about two years prior to separation.
The evidence in question is a text message interchange between the mother and a work colleague including a message in which she said “I wish I can go back to [her home country]”. This does not in my view amount to objective evidence to support the father’s contention that the mother wanted to relocate to her home country for about two years prior to separation.
It also to be noted that even if it were objective evidence of the matter this is not the way the September 2019 hearing was conducted. The father’s counsel on that occasion did not then identify the evidence which the father claims was ignored as evidence that the mother wanted to relocate to her home country.
The final matter identified for this court event and judgment is that I had “taken into account the ADVO that the husband entered into (sic) on 18 December 2018 notwithstanding it was given without admissions”.
In written submissions filed on behalf of the father, reliance is placed on statements to this effect in the father’s affidavit but the matter was not further developed in oral submissions.
In the September 2019 Judgment, the following paragraph relates to the way in which the ADVO made against the father for the protection of the mother was treated:
38. An assessment of the risk posed by the father, albeit on an interim basis without final findings, has been made by a court to date resulting in interim orders giving the mother sole parental responsibility for the child and providing for no contact with the father. Further, although the father consented to an ADVO on a final basis without making admissions such an order is in place for the protection of the mother. It is also the case that the inaction of welfare authorities to respond to complaints made about the father’s conduct do not amount to a rejection of those complaints but is based on an assessment that the child is safe in the mother’s care. These matters in my view are more likely to reassure the mother about the capacity for the Australian judicial system to protect the child and herself from the alleged risks of harm posed by the father.
It is clear from this extract that I was aware that the ADVO made against the father for the protection of the mother was made with his consent, but that consent was given without him making any admissions as to his conduct.
Other matters identified by the father
In addition to the matters identified at the three court events, which are individually said to give rise to the apprehension of bias it was argued on the father’s behalf that the cumulative effect of those matters might also lead me to decide the case other than on its merits. However, having made that submission in summary the mother’s counsel returned to what he described as his main contention being that I made “a major finding” that the father posed an unacceptable risk of harm to the child and that as this is the ultimate issue in the proceedings, a fair minded reasonable observer may think that I may not bring an impartial mind to the resolution of the dispute.
As can be seen from the foregoing discussion, the matters said to be identified from the September 2018 interim hearing and related judgment were not made out. That is, although it was asserted that I had conflated two issues and made findings, including that the father posed an unacceptable risk of harm to the child, an examination of the transcript does not reveal that this occurred.
So far as the April 2019 hearing is concerned, the matters identified are a dismissal of the father’s application to expedite the parenting proceedings without reference to the view of the family consultant, hearing from the lawyers or considering the matters in rule 12.10A of the Family Law Rules.
So far as the September 2019 hearing is concerned, I do not accept that I made the findings complained of or that the matters relied upon were incorrect as asserted. It is clear however that I did take into account the ADVO made against the father, notwithstanding that he did not make any admissions about his conduct when consenting to such an order.
What is the logical connection between the matters identified and the feared deviation from the course of deciding the case on its merits?
The second of the two steps in Ebner was not developed in the written or oral submissions made on behalf of the father beyond submitting that his entire case was ultimately encapsulated in the contention that I had made a finding that the father posed an unacceptable risk of harm to the child in the 2018 judgment and that as this is the central matter in dispute, such a finding must give rise to the feared deviation from the course of deciding the case on its merits.
For the reasons given, I do not accept that I made the finding in the 2018 Judgment as identified.
So far as the balance of the matters identified are concerned, the asserted connection with the possibility of departure from impartial decision-making remains unclear. The matters raised, in my view, amount to no more than decisions with which the father was dissatisfied and may in some cases have grounded an appeal but that course was not followed. Ultimately, most of those decisions were made at the April 2019 hearing and related to my dismissal of the father’s application to expedite the hearing of the parenting application.
In Johnson v Johnson[8], the plurality observed:
[11] It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
…
[13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation.
[8] [2000] HCA 48; 201 CLR 488 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
In Strahan & Strahan (Disqualification)[9], the Full Court stated (at [5]-[6]):
In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. This point was firmly made by Mason J in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342. Given the importance of the proposition, and the fact that Strickland J cited it in his reasons, we propose to set out what Mason J said at 352:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
[9] [2009] FamCAFC 204
In my view the fair-minded reasonable observer would be aware of the following matters in relation to the April 2019 hearing.
First, the father has correctly identified that I dismissed his application to expedite the parenting proceedings without reference to the family consultant’s recommendation, without hearing from the lawyers and without reference to Rule 12.10A of the Rules.
A recommendation of a family consultant concerning expedition amounts to no more than an expression of her view that final hearing of the parenting proceedings has some urgency in circumstances where she was also recommending that the most protective approach for the child pending a final assessment of risk may be that the child spend no time with the persons said to pose that risk. The fictional observer would also recall that the family consultant had made this recommendation eight months prior to the application to expedite the proceedings, but the parties in the intervening period had been unable to agree about the appointment of an expert.
The most significant issue in relation to the question of expedition was that it was premature. In particular, the fictional observer would be aware that the expert had only just been appointed the same day, and it was unknown when his report would be to hand. This was noted in my short reasons given on the day.
While it is correct that I did not hear first from the lawyers in relation to the issue of expedition, the fair-minded reasonable observer would be assumed to know that neither party could alter the undisputed facts about the expert’s report. Finally, the balancing of the Court’s resources and prioritising these proceedings over others are not matters upon which the lawyers are able to express a view.
Rule 12.10A which the father seems to suggest I was required to consider sets out the procedure for expedition. The rule, however, is not expressed in mandatory terms but sets out matters that a Court may take into account in respect of such an application, and if satisfied of these matters may set an early first day before the judge and make procedural orders for the further conduct of the case.
The fair minded reasonable observer would be aware that although I only gave short reasons for the dismissal of the father’s application that the parenting proceedings be expedited, that decision attached weight to the most significant undisputed fact that the application was premature as it was not known when the expert’s report would be available and this was a critical piece of evidence. The fair minded reasonable lay observer would also be aware that either party could at any time thereafter bring a further application for expedition. Finally, the fair minded reasonable observer would be aware that the Court alone must make the assessment about the fair distribution of resources and prioritisation of matters.
The only remaining matter to be considered relates to the fact that I took into account the ADVO made against the father in circumstances where his consent to such an order did not include any admissions as to his conduct.
An examination of the transcript and judgment indicates that the father had contended at the time of that application that an incentive for the mother to flee from Australia may arise from the fact that her complaints about the father’s conduct had been rejected by the authorities. In this context, I referred to the ADVO made for her protection as one of the matters I considered more likely to reassure the mother about the capacity for the Australian judicial system to provide protection to her and her child.
The connection between referring to the ADVO in this context, even though no admissions were made by the father, and a fear that I may not decide the parenting dispute on its merits, was not articulated in either written or oral submissions. The authorities make clear that disqualification is only made out by showing there is a reasonable apprehension of bias by reason of “firmly established” prejudgment. In circumstances where it is clear from the judgment that I was aware that the father’s consent to the ADVO had been made without admissions, and no other relevant matters have been articulated I am not satisfied that any reasonable apprehension of bias is established.
Conclusion
Having regard to each of the contentions individually and taken cumulatively, I am not satisfied that any of the matters properly identified give rise to a reasonable apprehension in a fair-minded observer that I may not determine the case on its merits. Accordingly, the application is dismissed.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 29 May 2020.
Associate:
Date: 29 May 2020
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