Reema & Baboor
[2021] FedCFamC1A 19
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Reema & Baboor [2021] FedCFamC1A 19
Appeal from: Reema & Baboor [2020] FamCA 432 Appeal number(s): EAA 88 of 2020 File number(s): PAC 1995 of 2018 Judgment of: STRICKLAND, WATTS & TREE JJ Date of judgment: 24 September 2021 Catchwords: FAMILY LAW – APPEAL – REFUSAL TO RECUSE – Where the primary judge had the power pursuant to s 69ZR(1) of the Family Law Act 1975 (Cth) to make any findings of fact, determine any issues arising in the proceedings, and make the orders she did – Where by exercising that power pursuant to s 69ZR(3) her Honour was not then required to disqualify herself from further hearing the proceedings – Where apprehended bias is not demonstrated – Where none of the grounds of appeal have merit – Appeal dismissed.
COSTS – Where the respondent sought her costs on a party/party basis – Where that application was not opposed – Costs ordered in the sum as sought by the respondent.
Legislation: Family Law Act 1975 (Cth) s 69ZR Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
AGF and LLS (Apprehension of bias) (2005) FLC 93-210; [2005] FamCA 13
Hillier & Wootton (2013) FLC 93-526; [2013] FamCAFC 11
Jess & Jess [2021] FamCAFC 159
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs: 69 Date of hearing: 13 April 2021 Place: Sydney Counsel for the Appellant: Mr Dickson QC Solicitor for the Appellant: York Law Counsel for the First Respondent: Ms Cantrall Solicitor for the First Respondent: Walter & Elliot Family Lawyers Solicitor for the Second and Third Respondents: Did not participate in the appeal Solicitor for the Independent Children's Lawyer: Did not participate in the appeal ORDERS
EAA 88 of 2020
PAC 1995 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTIONBETWEEN: MR REEMA
Appellant
AND: MS BABOOR
First Respondent
MS REEMA SNR
Second RespondentMR REEMA SNR
Third RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRICKLAND, WATTS & TREE JJ
DATE OF ORDER:
24 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant father pay the costs of the respondent mother of and incidental to the appeal fixed in the sum of $9,480.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b)) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Reema & Baboor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, WATTS & TREE JJ:
INTRODUCTION
By Amended Notice of Appeal filed on 9 November 2020, Mr Rema (“the father”) appeals from an order made by a judge of the Family Court of Australia on 29 May 2020, dismissing the father’s application filed on 15 November 2019 seeking that her Honour recuse herself from further hearing the parenting and property settlement proceedings between the father and Ms Baboor (“the mother”).
The appeal is opposed by the mother. The second and third respondents, the paternal grandparents, and the Independent Children’s Lawyer (“ICL”) filed Submitting Notices on 24 August 2020 and 20 August 2020 respectively, and took no part in the appeal.
The appeal was brought as of right, and leave to appeal was not sought. However, the Full Court has recently determined that leave to appeal is required from a dismissal of a disqualification application (Jess & Jess [2021] FamCAFC 159 at [424]–[428]. Understandably, this issue was not raised in this appeal, and thus no argument was provided by counsel or sought by this Court, noting that the prevailing view at the time was that leave to appeal was not required (for example see AGF and LLS (Apprehension of bias) (2005) FLC 93-210 and Hillier & Wootton (2013) FLC 93-526).
As it happens though, it is unnecessary to address this issue because we have found no merit in the appeal, and leave to appeal would not have been granted. In these circumstances we simply propose to dismiss the appeal, for the following reasons.
BACKGROUND
The father is currently 44 years of age, and the mother is currently 36 years of age.
The parents began cohabiting in Australia in about 2009 and were married in January 2011. The only child of their relationship, their daughter X (“the child”), was born in 2015 in Australia.
The parents lived in the home of the paternal grandparents in Sydney from about 2015 onwards. The paternal grandparents played a significant role in caring for the child during this time.
The mother contends in the parenting proceedings that throughout the relationship the father perpetrated family violence against her, which violence escalated to severe physical and sexual abuse. She further contends that the paternal grandparents turned a blind eye to the father’s behaviour, and to some extent engaged in coercive conduct towards the mother while they lived together.
The mother also alleges that subsequent to 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.
Specifically the mother alleges that there was a serious assault over two days in December 2017 in the paternal grandparents’ home. She deposes that the father 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 and the paternal grandparents must have been aware of the assault. Indeed, 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 and contends that he poses no risk of harm to the child.
The parents separated in early May 2018 when the mother left the paternal grandparents’ home with the child and attended a police station. The mother reported to police that she had been the victim of significant family violence allegedly perpetrated by the father. A provisional Apprehended Domestic Violence Order (“ADVO”) in favour of the mother against the father was made on the same day.
The father and paternal grandparents have spent no time with the child since the parents separated.
On 8 May 2018, the father commenced proceedings in the Federal Circuit Court of Australia seeking interim and final parenting orders in relation to the child. The mother filed a Response seeking parenting and property settlement orders.
The mother sought interim parenting orders that she have sole parental responsibility for the child, that the child live with her and spend no time with the father or the paternal grandparents. The father sought interim parenting orders that he spend supervised time with the child at a contact centre for two hours each Saturday.
On 21 May 2018, the proceedings were transferred to the Family Court of Australia and an ICL was appointed.
The primary judge recorded:
23. 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 was 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.
In September 2018, the paternal grandparents intervened in the parenting proceedings, seeking interim and final parenting orders that the child spend time with them.
The primary judge heard the parties’ respective applications for interim parenting orders on 17 September 2018, and delivered reasons for judgment and made interim parenting orders on 1 November 2018.
The interim parenting orders provided for the mother to have sole parental responsibility for the child, for the child to live with the mother and spend no time with the father or paternal grandparents. The ICL supported the making of those orders.
In short, in light of the mother’s allegations against the father, her Honour assessed the risk posed to the child as too high to justify making the interim orders sought by the father, and that even the proposal that such time be of limited duration under supervision in a contact centre did not mitigate that risk. In relation to the paternal grandparents, her Honour also assessed that the risk posed was such that it was not in the child’s best interests to spend time in the interim with them.
The father faced criminal charges in relation to the alleged assault of the mother in December 2017, which charges were ultimately dismissed following a hearing in the Local Court in December 2018. A final ADVO was made though against the father for the mother’s protection for two years. The order was made with the father’s consent, without him making any admissions as to his conduct.
The parenting proceedings continued and on 15 April 2019 the primary judge heard a number of the parties’ then outstanding interim applications. In the course of the hearing, her Honour responded to the father’s application filed that day to revisit the interim parenting orders by referring to the principle from Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”). Her Honour also made an order dismissing an application made by the father to bifurcate and expedite the parenting proceedings from the property proceedings.
In August 2019, the father withdrew his application to revisit the interim parenting orders.
On 16 September 2019, the primary judge heard the mother’s application for an interim order permitting her to travel with the child overseas. On 30 September 2019, her Honour delivered her reasons for judgment (“the travel judgment”) and made an interim order permitting the mother to travel overseas for five weeks with the child for the purpose of visiting relatives and attending family events.
On 15 November 2019, the father filed an Application in a Case and supporting affidavit seeking that the primary judge disqualify herself by reason of apprehended bias, which application was supported by the paternal grandparents. The mother opposed the father’s application and the ICL took no position in relation to it.
In his written submissions filed in support of his disqualification application, the father referred to 10 contentions said to lead to an apprehension of bias arising from:
(a)findings that her Honour was alleged to have made in the November 2018 judgment concerning risk posed by the father towards the child, and the effectiveness of therapeutic intervention in the event the child was separated from the father in the interim;
(b)her Honour’s Rice & Asplund comments made during the 15 April 2019 hearing, and further, from her Honour’s dismissal of the father’s application to bifurcate and expedite the parenting proceedings in circumstances where the Family Consultant had recommended that the parenting proceedings be ‘expedited’; and
(c)statements made by her Honour in the travel judgment.
On 29 May 2020, the primary judge delivered her reasons for judgment and made the order dismissing the father’s application.
THE APPEAL
The grounds of appeal are as follows:
1.That Her Honour erred in failing to apply the proper principles to a determination of the application, including by engaging in a search for indicia of actual bias, thereby failing to have proper regard to the contentions advanced by the [father] in support of the application.
2.That Her Honour erred in failing to accede to the application for disqualification having:
2.1engaged in an assessment as to the probability of the occurrence of the conduct alleged of the [father] in November 2018;
2.2which assessment and conclusion permeated the determination of November 2018 and the subsequent conduct of and determinations made in the proceedings, such that there is a reasonable apprehension of bias.
3. That Her Honour erred in considering that no findings had been made that:
3.1the [father] posed an unacceptable risk of harm to the child;
3.2the effect of no time between the [father] and child could be addressed by family therapy; and
3.3the [father] may be seen as attempting to exert control over the [mother] by refusing consent to travel.
However, given the concession by the father’s Queen’s Counsel, which we refer to shortly in respect of the Rice & Asplund comments, this appeal can be readily disposed of by reference to s 69ZR of the Family Law Act 1975 (Cth) (“the Act”). That section provides as follows:
69ZR Power to make determinations, findings and orders at any stage of proceedings
(1)If, at any time after the commencement of child related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a)make a finding of fact in relation to the proceedings;
(b)determine a matter arising out of the proceedings;
(c)make an order in relation to an issue arising out of the proceedings.
Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2)Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3)To avoid doubt, a judge, Judicial Registrar, Registrar or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
Thus, pursuant to s 69ZR(1) her Honour had the power to make any findings of fact in relation to the proceedings, to determine all matters arising in the proceedings, and to make the orders she did on 1 November 2018, 15 April 2019 and 30 September 2019.
Specifically, her Honour was able to make findings for the purpose of determining the interim application, observing that the effect of no time between the father and the child could be addressed by family therapy, and that the father may be seen as attempting to exert control over the mother by refusing consent to travel.
Pausing there, her Honour indicated in the primary judgment that she made no “finding that the father poses an unacceptable risk of harm to the child” (at [61]), and the contention in the third ground of appeal is that her Honour erred “in considering” that she did not make such a finding. As her Honour described it in [26], she “assessed the probability at the final hearing of the father being found to pose an unacceptable risk of harm to the child”, not a finding that the father did pose an unacceptable risk, and on that basis made the interim orders that she did on 1 November 2018. Her Honour certainly had power pursuant to s 69ZR to make those assessments without the risk of disqualifying herself.
Further, it was within power for her Honour to refuse to determine at the hearing of 15 April 2019, the father’s application filed that same day seeking to revisit the interim parenting orders made on 1 November 2018, and to indicate that that application would have to be heard in the usual course. And, as conceded by the father’s Queen’s Counsel at the hearing of the appeal, her Honour indicating that the principle emanating from Rice and Asplund applied, and that the father would need to demonstrate a sufficient change of circumstances “was an accurate statement of the law” (Transcript of the appeal hearing, 13 April 2021 p.7 lines 26–28).
Having established that her Honour had the power to make any findings of fact, determine any issues arising, and make orders, the attention turns to s 69ZR(3).
Pursuant to the subsection, her Honour, by exercising that power is not, merely because of doing that, required to disqualify herself from further hearing the proceedings.
Plainly, that subsection is fatal to this appeal to the extent that it complains that her Honour in making findings of fact, determining issues and making orders, should disqualify herself from any further hearing.
The father’s Queen’s Counsel though submitted that “the mere fact that a [judge] made a determination does not disqualify her but it’s the manner in which the determination is made and the language in which it is expressed that has to be examined when a disqualification application is brought” (Transcript of the appeal hearing, 13 April 2021 p.3 lines 6–9).
However, that does not assist because we were not taken to anything relating to the manner in which the determinations or observations were made, or the language in which they were expressed, that demonstrated apprehended bias in the form of prejudgment as alleged by the father.
It is suggested that her Honour’s findings, or determinations or observations as her Honour preferred to describe them, foreclosed the issues and prevented any different findings (or determinations) at the final hearing.
However, in the manner in which the findings (or determinations) were made, and in the language used, her Honour made it clear that she was not expressing a concluded view. For example, her Honour said this in the primary judgment:
57.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 in original)
It is also suggested that in dismissing the application for bifurcation and expedition, her Honour has foreclosed that issue. However, that is not what her Honour did; her Honour said this in [1] of her reasons for judgment delivered on 15 April 2019 in relation to that application:
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.
We are not persuaded that demonstrates any prejudgment. These are matters of procedure and case management, and nothing more. Indeed, the father’s Queen’s Counsel appeared to concede that per se that did not demonstrate apprehended bias, but he suggested that it added to the cumulative effect of all of the findings (or determinations) made by her Honour, and which then demonstrated prejudgment.
Plainly that was the only argument left for the father, because looked at individually, none of the findings, determinations, or the orders made, take what her Honour did out of the purview of s 69ZR(3).
That said, we are also not persuaded of any cumulative effect of the findings, determinations or orders that reveals an apprehension of bias.
As submitted by the mother’s Queen’s Counsel at the hearing before this Court, at the interim hearing in 2018, her Honour was invited to make “a risk assessment, bearing in mind an acknowledgement of the gravity of the allegations [and] an acknowledgment … that the Court would err on the side of caution in doing so” (Transcript of appeal hearing, 13 April 2021 p.19 lines 32–35).
What occurred was her Honour weighed the risks on the basis of the evidence and arrived at a position where there should be no order for the child to spend time with the father (or the paternal grandparents) pending trial; entirely unremarkable and not suggestive of any apprehended bias.
Then there is the procedural hearing on 15 April 2019 when the father’s application for bifurcation and expedition was listed, and when on that very day the father filed an application seeking to revisit the interim parenting orders. As discussed already, the application was dealt with appropriately in the circumstances, given what it was, namely, an application relating to case management. Further, and also as discussed above, her Honour’s handling of the other application in not dealing with it that day and requiring it to be dealt with in the usual course, was entirely appropriate, as was her Honour’s reference to the principle emanating from Rice & Asplund. Again, no apprehension of bias is revealed, even with the background of the orders made on 1 November 2018.
Importantly, as identified by the mother’s Queen’s Counsel, there were other applications dealt with by her Honour on that day, including one recently filed by the mother, but which was given the same treatment by her Honour as the father’s application, namely left to be dealt with at a later date in the usual course. Indeed, that was the mother’s application to be able to take the child overseas.
The determination of that application by her Honour in September 2019 is the next and final event in respect of which the father complains.
The application was opposed by the father, and in the course of considering the parties’ cases her Honour said this in the travel 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.
(Emphasis added)
To be clear, we do not accept the contention of the father that her Honour therein makes a finding that the father’s opposition could be seen as an attempt to exert control over the mother, and that he may not hold genuine fears as to non-return. It is an observation made on the basis of the evidence before her Honour. However, we again emphasise that for the purposes of s 69ZR, it does not matter if it was a finding; it is still within power, and that exercise of power does not require her Honour to disqualify herself.
In looking at the language that her Honour used, that does not assist the father either. The words “may be seen” can be read as “may or may not be seen”, and as such, as was conceded by the father’s Queen’s Counsel, does not reveal any prejudgment.
Considered in that way, not only is there no individual finding, determination or order, that in the manner in which it is made, or the language used, demonstrates apprehended bias, but also, a case cannot be made out that looked at cumulatively, it is any different.
That effectively addresses Grounds 2 and 3, and neither have any merit.
In relation to Ground 1, it seems to be contended that her Honour did not address the correct issue, rather engaging in a search for a demonstration of actual bias.
The father, in his Summary of Argument filed on 11 November 2020, said this:
16.…Having determined that no finding had been made in November 2018 that the [father] posed an unacceptable risk to the child [J:61] (ground 3), Her Honour concluded that there was nothing here properly identified for consideration pursuant to the ‘first step’. It is submitted that in so doing Her Honour erred as to that identified for consideration and did not address the correct issue, it appearing that her Honour rather engaged in a search for a demonstration of actual bias (ground 1). It is submitted that Her Honour ought to have:
16.1accepted that a determination was made in November 2018 as to the probability of the occurrence of the alleged conduct [J:26] or, at least, as to whether the [father] represented an unacceptable risk to the child [AB:51(81), 56(120)] such that no time ought occur even on an interim and professionally supervised basis (ground 3); and
16.2then considered whether such matters, having been found in November 2018 and whether alone or in conjunction with the other matters raised, gave rise to a basis for the required apprehension.
And further:
17.In short, the [father] submits that Her Honour had in fact made a determination as to the probability of the allegations having occurred which determination has permeated not only the determination of November 2018 but that which has occurred thereafter, and it is this matter which is identified as leading to the ‘feared deviation’ (ground 2).
The first point to make is that this Court is not persuaded that her Honour engaged “in a search for indicia of actual bias”.
At [35] her Honour described the father’s application as “based upon the contention that a fair minded lay observer might reasonably apprehend that [she] might not bring an impartial mind to the matters that are to be determined in the proceedings”.
At [40] her Honour referred to and quoted from the decision of the plurality of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, a [6]–[8] where the test for disqualification for apprehended bias appears.
Commencing at [41] her Honour applied the test by considering the first step, namely the identification of what it is said might “lead a judge to decide a case other than on its legal and factual merits”.
At [61] her Honour found that the father had failed to satisfy that first step of the test, and thus the application could not succeed.
Secondly, that also addresses the complaint seemingly made in this ground that her Honour failed “to apply the proper principles to a determination of the application”.
Thirdly, as to the submission as to what her Honour ought to have done, that overlooks s 69ZR. Her Honour had the power to make the determinations, and indeed findings if they were such, and the exercise of that power did not require her to disqualify herself. Individually those determinations did not require disqualification, and nor could viewing them cumulatively.
Further, the determinations made in November 2018 as to the probability of the allegations having occurred, did not require her Honour to disqualify herself, and thus whether that determination permeated the determinations made thereafter, and which of themselves could not require disqualification, cannot alter the outcome.
In the circumstances Ground 1 also has no merit.
CONCLUSION
Having found no merit in any of the grounds the appeal must be dismissed.
COSTS
In the event that the appeal was dismissed, the mother sought an order for costs in the amount of $9,480 on a party/party basis.
The father’s Queen’s Counsel indicated that he could not oppose that, and accordingly there will be an order for costs as sought by the mother.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Watts & Tree. Associate:
Dated: 24 September 2021
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