ROBARDS & MILLER
[2013] FamCA 852
FAMILY COURT OF AUSTRALIA
| ROBARDS & MILLER | [2013] FamCA 852 |
| FAMILY LAW – COURTS AND JUDGES – Disqualification – application that the Court disqualify itself by reason of apprehended judicial bias – consideration of the application of the test in relation to parenting proceedings under Division 12A of the Act – the requisite qualities of the “fair minded lay observer” – necessity for the answer to the test to be firmly established – application dismissed. FAMILY LAW – EVIDENCE – Expert evidence – family report – application that the family report writer be discharged – application that a new family report be requested – consideration as to the context in which the application is made – significance of the proceedings being part heard – significance of the majority of the family report writer’s evidence having been concluded – consideration as to the nature of the family report in the context of evidence before the Court – application dismissed. |
Family Law Act 1975 (Cth) Division 12A, ss. 60G(2), 62G(2), 62G(8), 69ZN, 69ZQ, 69ZR, 69ZX
Vakauta v Kelly (1989) 167 CLR 568
Johnson v Johnson (2000) 201 CLR 488
Antoun v R [2006] HCA 2
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Re JRL; Ex parte CJL [1986] HCA 39
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577
Australian Securities and Investment Commission v Reid [2005] FCA 1274
Hall (1979) 5 FamLR 411
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 9
| Hall and Hall (1979) 5 FamLR 609 Carpenter and Lunn (2008) FLC 93-377 Klein & Klein [2010] FamCAFC 150 |
| APPLICANT: | Ms Robards |
| RESPONDENT: | Mr Miller |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Temelkovska |
| FILE NUMBER: | SYC | 3337 | of | 2009 |
| DATE DELIVERED: | 22 October 2013 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 4 October 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Doosey |
| SOLICITOR FOR THE APPLICANT: | Rossi Simicic Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Humphreys |
| SOLICITOR FOR THE RESPONDENT: | Hansons Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Temelkovska |
Orders
That the Application in a Case filed by the mother on 30 August 2013 be dismissed.
That the costs of the independent children’s lawyer and the applicant father of and incidental to the said application be reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Robards & Miller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: SYC 3337 of 2009
| Ms Robards |
Applicant
And
| Mr Miller |
Respondent
REASONS FOR JUDGMENT
The Proceedings
The primary proceedings before the Court are parenting proceedings between the applicant father and the respondent mother in relation to the child M Miller-Robards, born in 2005. The child is presently eight years of age.
The present application before the Court is an application by the respondent mother that the Court disqualify itself from further hearing of the proceedings on the basis of apprehended judicial bias, that the family consultant be discharged and that a new family report be prepared.
Background
The background of this matter is that the parties were in a relationship from some time in 2003 and commenced living together in November 2004. The parties first separated in July 2005 and thereafter there had been in an off-again on-again relationship until their separation on a final basis in late October 2008.
The subject child is a child of the parties’ relationship.
The Litigation History
Following the parties’ separation and in June 2009, when the child was four, final parenting orders in relation to the child were made by consent in the then Federal Magistrates Court at Wollongong that in summary provided as follows:
a)That the mother and father have equal shared parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father alternate weekends from 2:30 pm Friday until 5:00 pm Sunday, for specified time at Christmas, for a period of seven consecutive nights in the December 2009/January 2010 period, on the Father’s Day weekend each year and upon the child commencing school for one half of the term one, two and three school holiday periods and upon the child commencing primary school from 27 December until 11 January each year;
d)That changeovers occur at the McDonald’s family restaurant at Town W;
e)That upon the child commencing school the father’s weekend time on a Friday commence at the conclusion of the school day.
On 8 February 2010 specific orders as to parenting were made in the then Federal Magistrates Court at Wollongong. Those orders in summary provided as follows:
a)That the child be known as M Miller-Robards;
b)That the parties do all things necessary to change the child’s surname accordingly; and
c)That in the absence of the father facilitating such change the mother be at liberty to approach the Registrar of Births Deaths and Marriages New South Wales to change the child’s name accordingly.
It is common ground that the mother and child have resided within the Illawarra area since separation of the parties. More recently the mother commenced to reside with her parents at Town X and the child was enrolled at the X primary school.
In the context of the primary parenting proceedings before the Court the mother proposes relocating with the child to Town Z in North Queensland and the father proposes that should the mother wished to relocate to Town Z the child should live with him in Canberra.
The present primary proceedings came before the Court by reason of an application filed by the father on 9 February 2012 in circumstances where the mother had unilaterally relocated the residence of herself and the child to Town Z in North Queensland.
On 21 February 2012 orders were made by consent in the then Federal Magistrates Court at Sydney that in summary provided as follows:
a)That the mother cause the child to return to live in either the Illawarra or Town X area by no later than 1 March 2012;
b)That the mother be restrained from causing the child to live outside of the Illawarra or Town X area in the absence of the father’s written consent or further Court order;
c)That the child be enrolled at the X Public School;
d)That upon the child’s return to live in the Illawarra or Town X region the father have specified make up time with the child and otherwise resume spending alternate weekends pursuant to orders made on 9 June 2009 from 6 April 2012 and each alternate weekend thereafter;
e)That proceedings be transferred to the Wollongong Registry of the Court.
On 23 April 2012 the matter was again before the Court. The Court noted that the parties were to attend a roundtable conference in relation to the issues before the Court and proceedings were adjourned to 13 July 2012 and the parties ordered to attend a section 11F conference with a family consultant on 21 June 2012.
The proceedings were again before the Court on 2 August 2012 and the parties were ordered to attend a child dispute conference with a family consultant on 8 October 2012. Proceedings were adjourned to 9 October 2012.
On 9 October 2012 the Court in summary made the following further orders:
a)The appointment of an independent children’s lawyer for the child;
b)For the preparation of a full family report pursuant to section 62G(2) of the Act; and
c)That proceedings be adjourned to 11 April 2013 for hearing allocating two days for trial.
On 14 December 2012 the matter was listed before the Court and trial directions were made so as to facilitate the matter being heard on 11 April 2013 before me sitting as a judge of the Federal Circuit Court of Australia at Wollongong.
The Hearing
The final hearing commenced on 11 April 2013 and continued on 12 April 2013.
By agreement between the parties and the independent children’s lawyer the family consultant Ms S was called to give evidence first, in contemplation that if required she would be recalled at the end of the parties’ evidence.
The cross-examination of the family consultant commenced on the first day of the trial with some introductory questions from the independent children’s lawyer and thereafter a short cross-examination by counsel for the father.
The cross-examination of the family consultant by counsel for the mother continued throughout the remainder of the first day of the trial. On the second day of the trial cross-examination of the family consultant by counsel for the mother concluded at about 12:00 pm followed by cross examination by the independent children’s lawyer that concluded at about 4:42 pm.
At the conclusion of the second day it was apparent that by reason of the extended cross-examination of the family reporter the matter required further hearing dates and following the tender of various documents the matter was adjourned part heard with priority for dates to be fixed
On 9 July 2013 the proceedings came before the Court as a consequence of my pending appointment as a Justice of the Family Court of Australia. With the parties’ consent proceedings were transferred to the Family Court of Australia at Parramatta to be listed before me for three days commencing Monday 28 October 2013.
The Court further ordered that the mother and father each be restrained by injunction from permitting or facilitating the child being seen by any psychologist, social worker or family therapist without the written consent of the independent children’s lawyer.
The Court otherwise noted that proceedings were transferred on a part heard basis with priority and that the parties consented to the evidence before the Federal Circuit Court being evidence in the continued proceedings in the Family Court of Australia.
The Mother’s Application in a Case
Prior to the resumed hearing dates and on 30 August 2013 the respondent mother filed an application in a case seeking the following orders:
a)That the Honourable Judge Foster be hereby disqualified from hearing all matters in these proceedings and that these proceedings be hereby listed before a judge other than Judge Foster;
b)That the Regulation 7 family consultant, Ms S, having prepared the family report dated 9 October 2012 in these proceedings, the hereby discharged;
c)That pursuant to section 60G(2) of the Family Law Act 1975 the Manager, Child Dispute Services hereby appoint a Regulation 7 family consultant other than Ms S to prepare a family report in these proceedings.
The application in a case by the mother was supported by her affidavit filed on 30 August 2013. In that affidavit she attested as to her concerns as to the outcome of the proceedings being prejudiced against her and that she had not been afforded a fair and unbiased hearing and her concerns regarding the family report interview process.
The application came before the Court on 16 September 2013 and was adjourned for hearing by way of submissions to 4 October 2013. The mother was directed to file and serve written submissions in support of the application by 27 September and the father and the independent children’s lawyer by 2 October 2013.
In relation to the disqualification application it was properly conceded by counsel for the mother that the application was to be seen through the eyes of the fair minded lay observer and not the mother.
On 4 October 2013 the Court ordered that the mother’s application in a case filed on 30 August 2013 be dismissed.
Context
The primary proceedings before the Court are parenting proceedings are being conducted under the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”).
It is important to establish the context in which the hearing has been undertaken.
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents are parenting orders which are determined in accordance with the provisions of Part VII of the Act.
The Court is required to determine arrangements having regard to the best interests of the subject children by considering a series of principles, objects and considerations identified in Part VII.
The principles for conducting child related proceedings, which includes applications for parenting orders, are identified in Div. 12A of Pt. VII. Section 69ZN, which sets out the principles, is set out below:
S 69ZN: Principles for child-related proceedings
Application of the principles:
1)The Court must give effect to the principles in this section:
a.in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
b.in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
2) Regard is to be had to the principles in interpreting this Division.
Principle 1
3)The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
4)The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
a.The child concerned against family violence, child abuse and child neglect; and
b.The parties to the proceedings against family violence.
Principle 4
6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
In s 69ZQ the general duties imposed upon a judge required to give effect to s 69ZN are identified. Section 69ZQ is set out below:
S 69ZQ: General duties
1)In giving effect to the principles in section 69ZN, the Court must:
a.decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
b.decide the order in which the issues are to be decided; and
c.give directions or make orders about the timing of steps that are to be taken in the proceedings; and
d.in deciding whether a particular step is to be taken – consider whether the likely benefits of taking the step justify the costs of taking it; and
e.make appropriate use of technology; and
f.if the Court considers it appropriate – encourage the parties to use family dispute resolution or family counselling; and
g.deal with as many aspects of the matter as it can on a single occasion; and
h.deal with the matter, where appropriate, without requiring the parties’ physical attendance at Court.
2)Subsection (1) does not limit subsection 69ZN(1).
3)A failure to comply with subsection (1) does not invalidate an order.
Section 69ZR then provides that the Court has the power to make determinations, findings and orders at any stage of the proceedings, those being child-related proceedings. In particular, subsection (1) provides as follows:
(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…
Further, subsection (3) provides as follows:
(3)To avoid doubt, a Judge, Judicial Registrar, Registrar, Federal Magistrate 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.
The Court’s general duties and powers relating to evidence are set out in section 69ZX that relevantly provides as follows:
S 69ZX: Court's general duties and powers relating to evidence
(1) In giving effect to the principles in section 69ZN, the Court may:
(a) give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b) give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c) give directions or make orders about how particular evidence is to be given; and
(d) if the Court considers that expert evidence is required--give directions or make orders about:
(i) the matters in relation to which an expert is to provide evidence; and
(ii) the number of experts who may provide evidence in relation to a matter; and
(iii) how an expert is to provide the expert's evidence; and
(e) ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings (emphasis added).
(2) Without limiting subsection (1) or section 69ZR, the Court may give directions or make orders:
(a) about the use of written submissions; or
(b) about the length of written submissions; or
(c) limiting the time for oral argument; or
(d) limiting the time for the giving of evidence; or
(e) that particular evidence is to be given orally; or
(f) that particular evidence is to be given by affidavit; or
(g) that evidence in relation to a particular matter not be presented by a party; or
(h) that evidence of a particular kind not be presented by a party; or
(i) limiting, or not allowing, cross-examination of a particular witness; or
(j) limiting the number of witnesses who are to give evidence in the proceedings.
(3) The Court may, in child-related proceedings:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the Court; or
(ii) another Court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any Court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
Note: This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.
(4) …..
The Court considers that each of these principles, powers and duties are relevant to the consideration of the mother’s application as discussed below and in the context of the preliminary comments set out below, particularly as the fair minded lay observer is deemed to be aware of the general context in which proceedings in a particular court are conducted.
Preliminary Comments
In Vakauta v Kelly (1989) 167 CLR 568 Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings spoke of:
…the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
The plurality in Johnson v Johnson (2000) 201 CLR 488; (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at [13]:
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.
Kirby J. in Johnson v Johnson (supra) said at [46.2]:
Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in Court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value…
Later His Honour said at [46.4]:
The adversary system depends on vigorous interaction not only between the parties and their representatives but also between the adjudicator and those persons. Where the parties are represented by trained lawyers, the latter can be taken to be aware of (and presumed, if necessary, to have explained to their clients) the character and purpose of tentative opinions that guide the direction of the trial and encourage its proper focus. No rule of law should be adopted in relation to disqualification for prejudgment which unreasonably undermines, or is fundamentally inconsistent with, that system.
His Honour also said in Antoun v R[2006] HCA 2;
…. it is certainly true that the trial judge’s remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless; a waste of the court’s time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.
In Laws v Australian Broadcasting Tribunal [1990] HCA 31; Gaudron and McHugh JJ said:
A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry: Reg v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 116; Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 554-555; Re Shaw; Ex parte Shaw (1980) 55 ALJR 12 at 14-15; 32 ALR 47 at 50-51 and 53.
When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. Thus, in Ex parte Angliss Group, the mere fact that the statement of reasons for a previous decision gave rise to the conclusion that members of the Conciliation and Arbitration Commission tended to favour the adoption of a principle of equal pay for both sexes as soon as it was economically and industrially practicable to do so was not a ground for disqualifying them from sitting on an application for an equalisation of rates of pay for male and female employees brought in reliance upon their reasons.
This Court rejected the notion that a fair and unprejudiced mind was "necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it".
In Re Shaw, the transcript showed that a judge of the Family Court of Australia had expressed opinions adverse to the case for the husband before his counsel had opened his case. Nevertheless, Gibbs ACJ, with whose judgment Stephen J and Wilson J agreed, said that the evidence did not justify "a conclusion that the views which the learned judge expressed, although strong, were other than provisional, or that it could reasonably be suspected that at the end of the case she would not decide with a fair and unprejudiced mind."
It is necessary to bear in mind the caution expressed by Mason J in Re JRL; Ex parte CJL [1986] HCA 39:
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.
The Test
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at 344-349:
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… or necessity…, a judge is disqualified if a fair-minded lay observer (emphasis added) 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……
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.
The fair minded lay observer
Kirby J. said in Johnson v Johnson (supra):
“The fictitious bystander and matters that lawyers know”
[46] If a court of appeal were deciding an allegation of prejudgment for itself, according to its own knowledge and standards, a number of considerations might be taken into account in a case such as the present:
1. Appellate judges realise that most adjudicators strive to be independent and impartial and to make adjustments (so far as they can) for factors of which they are aware which might impact on their decision-making. By their training and experience, most such adjudicators are conscious of the high expectations imposed upon them.
2. Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.
3. Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
4. The adversary system depends on vigorous interaction not only adjudicator and those persons. Where the parties are represented by trained lawyers, the latter can be taken to be aware of (and presumed, if necessary, to have explained to their clients) the character and purpose of tentative opinions that guide the direction of the trial and encourage its proper focus. No rule of law should be adopted in relation to disqualification for prejudgment which unreasonably undermines, or is fundamentally inconsistent with, that system. (Footnotes omitted)
In Johnson v Johnson (supra), the plurality observed that:
It must be remembered that the person being observed is a “professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”…… Whilst the fictional observer, by reference to whom the test is formulated, is it not to be assumed to have a detailed knowledge of the law, or of the character or ability of the particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.
In Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Callinan J at par 177 said:
It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried.
Lander J. in Australian Securities and Investment Commission v Reid [2005] FCA 1274 reviewed authorities concerned with the level of knowledge and characteristics imputed to the fair minded lay observer. After he completed his review Lander J at par 110 described such a person as one:
…who is reasonable and fair minded, who has a general understanding of the facts and circumstances surrounding the case, who is not a lawyer but is not wholly uninformed and uninstructed about the law in general, and who would ordinarily think that a judge will act so as to ensure both the appearance and substance of fairness and impartiality without at the same time rejecting the alternative possibility.
The Mother’s Complaints
Counsel for the mother submits:
Clearly, Division 12 A goes to the facilitation of the subject proceedings. Dispensing with rules of evidence, providing for greater informality, or less technicality, or empowering greater judicial intervention in the manner in which cases are conducted, does not have the result of dispensing with the fundamental requirements of the rules of natural justice.
Counsel for the mother further submits that in the present case, there was
…a judicial advocacy for the father’s case, and commentary, questions, rulings and interventions adverse to the mother’s to the extent that a reasonable bystander would form the apprehension that the Court was predisposed against the mother’s case and had to some extent taken up the case for the father and was engaged in at times, combating of advocacy on his behalf.
It is important to note that neither of the parties in the proceedings has as yet given evidence and that the only evidence before the court thus far is that of the family consultant.
The report and recommendations of the family consultant were the subject of cross examination by counsel for the mother, counsel for the father and the independent children’s lawyer.
At various points in the family consultant’s evidence the Court made enquiries of the family consultant in relation to aspects raised in the report or her oral evidence that were to the Court’s perception relevant to the weight to be afforded to the family consultant’s recommendations and to assist the Court in weighing each of the parties proposals.
The Specific Complaints
Advocacy by the Judge
The mother complains that the Court’s “interventions” took on the quality of advocacy for one party. The issue is that “interventions” referred to relate to either questions asked by the Court of the family consultant or matters that arose in exchanges between the Court and counsel.
Transcript11.04.13 Page 10 at 15 (T11.04.2013 10.15)
The following exchange took place between the Court and the family consultant during cross-examination of the consultant by counsel for the father:
HIS HONOUR: Do I take it, Ms [S], that the comments you make in relation to the father and the risks to that relationship apply equally strongly to the external maternal family here in Illawarra, and the other relationships the child has developed over the last couple of years, in the context of the father’s new relationship with his partner?‑‑‑Possibly not the maternal grandparents, because I wouldn’t think there would be any issues of conflict between [the mother] and her parents in terms of ensuring that [the child] has increased contact via phone or email or whatever.
But that would be a diminution of the type of relationship.....?‑‑‑Absolutely, it would be.
.....they have been effectively co-primary carers?‑‑‑They have been, yes. [The child] is a fairly resilient little girl though, and my guess is that – or my feeling is that her auntie would probably step into that role.
As a co-primary carer?‑‑‑Yes.
Yes. Sorry, Ms Humphreys.
The mother complains that the Court’s questions “seem designed to ameliorate inadequacies or concerns in relation to the father’s proposal.”
The fair minded lay observer would have heard the Court making an enquiry as to the family consultant’s view as to the prospective diminution of the extended maternal family’s relationship with the child should the mother relocate in circumstances where the family consultant in her report observed that the maternal grandparents had effectively been significant carers for the child whilst the mother resided with them.
There is no substance to the mother’s complaint. As discussed later in these reasons it was open to counsel for the mother during her cross-examination of the family consultant to take up this issue with the consultant.
T 11.04.2013 11.7
HIS HONOUR: And of course, if the mother was to relocate and the child remain here with the father, of course it would be open to her to travel down to Canberra or to Illawarra to spend weekends with the child as she can manage, would that be right?‑‑‑Yes.
The mother complains that there was no companion or converse question put to the family consultant as to the father being able to make the same trips if the child relocated with the mother.
It is submitted that the obvious suspicion is that the question is designed to elicit a response that will support the contention that the child’s relationship with the mother will not be significantly damaged if she is relocated to Canberra. A contention, it is submitted necessary to be established for the father’s proposal to succeed. This is a question, it is submitted, properly for the father’s counsel, not the presiding judge.
The exchange complained of must be considered in its context during counsel for the father’s cross-examination of the family consultant which was as follows:
MS HUMPHREYS: Ms [S], at paragraph 77 of your report, you recommend that:
Should the court order that a relocation can occur, that [the child] should spend one weekend a month from Friday morning until Sunday afternoon.
In relation to it commencing on a Friday, I understand that that would likely require [the child] missing a day of school. Are you aware that in 2012, [the child] was absent from school for 29 days? Yes, I am. I was made aware of that today.
And are you also aware from reviewing the subpoena material that [the child] is a child that has been noted that has not caught up completely to grade level? Yes.
Can I suggest that it’s not in her best interests to – well, I withdraw that. What benefits do you see to [the child] in missing further a day of school once a month? The benefits of increased time that she would have to spend with her father and his new family, and that that time be increased in quality by having the extra time that she would need to have to recover from the travelling.
HIS HONOUR: And of course, if the mother was to relocate and the child remain here with the father, of course it would be open to her to travel down to Canberra or to Illawarra to spend weekends with the child as she can manage, would that be right? Yes.
And/or school holidays down here where the child lives? Or both, up there with her as well.
Well, depending on the financial feasibility of it all?
No such “suspicion” could possibly arise in the mind of the fair minded lay observer as a consequence of the exchange set out above. It must be remembered that at this stage counsel for the mother had not as yet had the opportunity of cross-examining the family consultant and indeed neither of the parties had given evidence.
The mother’s complaint is without substance.
T 11.04.2013 11.44
HIS HONOUR: But I suppose at best, in terms of what’s in her affidavit, it’s still effectively conjecture as to what may happen. It’s all well and good to lay out plans that are matters of conjecture, but of course, at this stage, it appears that there’s lots of ifs and buts about the whole thing?
Counsel for the mother submits that:
… a fair minded observer hearing that description of the mother’s case might well be surprised to read that in her affidavit evidence the mother provide specific details as to future housing, schooling, child care and employment. In seeing that she did so they would be left with either the impression that your Honour rejected that evidence, without hearing from the mother, forgot it or ignored it.
Once again it is important to consider the extracted exchange complained of in its context. The following exchange took place between the Court and the family consultant:
His Honour: Just while Ms Humphreys is gathering her thoughts, having read the updated affidavit material, in terms of your assessment of the mother’s priorities, where do you think they lie, in terms of her prioritising her needs or the child’s needs, one against the other, and the needs of extended family?‑‑‑I think that the mother is in a pretty difficult position, given her stated depression and feelings, negative feelings about being in the [Illawarra] area and not feeling she has any prospects, and I believe that the mother does believe that an improvement for her will equally mean an improvement for [the child]. However, I also have drawn – come to the conclusion from the material I’ve read and the interviews that I’ve done that the mother does probably put herself before – her needs before [the child’s] needs.
But in saying that, what would you say in terms of the mother’s reflective capacity?‑‑‑I guess the – I was heartened, if you like, by the second affidavit, the most recent affidavit, in that it seemed that the mother was – had moved from what appeared to be a dream or a hope of how things should be and could be and would be just by the move to [Queensland], that she appears to have done a lot more research on how that move can work and be most successful in terms of setting up a job, and conversations with her sister and the grandparents’ willingness to fund the trips for [the child] to ACT if they need to. So yes, I guess that – that’s some improvement in her ability to sort of be able to look at the impacts, to some extent, but they are mainly and primarily of a – of a practical nature in terms of her move. I’m not sure that she has a depth of understanding of the possible impact it could have on [the child] to move away from both sets of grandparents, her father, her stepsisters, in particular, and of course, the unborn baby that she hasn’t even met yet.
But I suppose at best, in terms of what’s in her affidavit, it’s still effectively conjecture as to what may happen. It’s all well and good to lay out plans that are matters of conjecture, but of course, at this stage, it appears that there’s lots of ifs and buts about the whole thing?‑‑‑That was certainly my concern at the time that I wrote the report and remains my concern given the history of employment and what this will represent for [the mother], which is a major change in direction in terms of her career. However, it’s certainly also a lot more than what was available at the time that I wrote the report where there was not a job offer and there was not a affidavit from her sister offering her long term accommodation, etcetera.
Thank you...
Once again these exchanges are in the context of the evidence of the family consultant in cross examination. The evidence of the parties is not yet before the Court in that affidavit evidence had not been tested in cross-examination.
The family consultant had been called to give evidence first thing in the proceedings in contemplation of the family consultant returning at the conclusion of other evidence if indeed there was a significant dispute as to fact or other contentious issue that should be the subject of further cross examination of the family consultant in relation to her report and recommendations.
The fair minded lay observer familiar with the conduct of the parenting proceedings in this Court would be mindful of that circumstance and take nothing from the comment complained of.
T 11.04.2013 13.37
HIS HONOUR: I suppose that’s further reinforced by the mother’s unilateral relocation in 2012, I expect .....?‑‑‑
Again counsel for the mother complains as to a specific form of words yet fails to place the exchange in its proper context. The words complained of took place during the following exchange between the Court and the family consultant at the conclusion of the consultant’s cross-examination by counsel for the father:
HIS HONOUR: Ms [S], in saying that in relation to children of this age, she’s on the cusp of maybe that 8 to 12 bracket, but it’s all well and good to say: well, perhaps there’s better outcomes, but in fact, from your understanding of the research, what are the underlying indicia for those better outcomes to happen? Like it’s not as though it’s simply just the child turns 8 and moves away from everybody, there’s a better outcome?‑‑‑No.
There has got to be some fundamental indicia that would facilitate that outcome. Are you able to tell us what the primary indicia would be in your mind?‑‑‑The primary – it’s hard to say – single out one primary. I would certainly say that a child – a child’s resilience and temperament and, to that extent, I would say [the child] – I would – I would assess [the child] positively in that regard. She certainly does seem like a resilient little kid that – and a positive little kid and a – and a – and a child that elicits positive responses from people around her, so in that sense, I think she would adapt. Given that she has been in a shared care relationship in some ways for most of her life, I think that that – all of those things would be positive for her. On the negative side, however, I think that she would also need for her mother to positively reinforce contact, attitude, relationship with her father and her paternal grandparents, and I have no reason from my interviews and the material that I’ve read to think that that is going to be an easy thing for [the mother] to be able to do. So that facilitation by parents is another issue that’s really seriously important. The other thing that’s ‑ ‑ ‑
Fundamental indicia for a successful outcome at this age?‑‑‑Yes.
MS HUMPHREYS: Sorry, I missed that exchange. I apologise.
HIS HONOUR: That’s a fundamental indicia for a successful outcome at this age?‑‑‑Yes. The other thing is that there is also the issue of the psychological stability of the relocating parent, and their resilience to coping with the changes that they are making for themselves and, at the same time, be able to support the changes in [the child’s] life as well, that [the child] will be having to deal with, being the loss of her grandparents and father from her life in a more significant way.
Any other underlying factors that would determine the success or otherwise? I think to some extent they are in your report?‑‑‑Yes. I guess there is that – the issue of – it’s described in the literature as gatekeeping, I suppose, that being the mother’s ability to be able to allow the father to be a parent, and that has obviously been somewhat of a struggle between the two parents in this case with disputed – obviously they dispute the underpinnings of that, but nevertheless, it’s – it seems clear to me that it would be a struggle for [the mother] to positively reinforce [the father’s] role as a father.
Thank you. Ms Humphreys, sorry again.
MS HUMPHREYS: Thank you, your Honour.
Just touching upon your last comment, Ms [S], in relation to [the mother’s] ability to positively reinforce [the father’s] role as a father, would it concern you that [the mother], when completing an application to enrol in school, that [the mother] did not complete any details for the father?‑‑‑Yes, it would concern me.
And in answering a question on the enrolment form which requires disclosure of whether any formal legal arrangements are in place where parents are separated, that the mother ticks No?‑‑‑If there was at the time, yes. It would concern me.
Ms [S], why does it concern you that the father – in relation to the father’s name being absent to an application form?‑‑‑Well, it lends itself to my – to the observation that it does indicate the mother’s struggle to acknowledge the father as part of [the child’s] life.
HIS HONOUR: I suppose that’s further reinforced by the mother’s unilateral relocation in 2012, I expect .....?‑‑‑It would seem so, yes. Although it was stated by [the mother] that she, or alleged by [the mother], that she had had a discussion with [the father] about it and he had said it was okay.
The fair minded lay observer hearing the overall exchange between the Court and the family consultant above would have heard the Court eliciting from the consultant her views as to matters most pertinent to the Court’s determination, particularly where the parties themselves had not yet given evidence and counsel for the mother had not yet cross examined the family consultant.
In a similar vein counsel for the mother complains that on a number of occasions the Court asked leading questions that have propositions inherent in them that are not unequivocally supported by the evidence. The following exchange is complained of:
HIS HONOUR: Well, inherent in that response is your understanding that the mother has never voluntarily supplied them. Is that right? He has just asked the school?---I – well, I assume if he didn’t have them that that’s the case.
MS DOOSEY: Well, that’s not correct, is it? Weren’t you used as a conduit by the mother to get a report to the father?---At that time, yes.
Yes. And - - -?---At the time of the assessment. Didn’t the mother detail to you her unsuccessful attempts to get that report to the father earlier?
HIS HONOUR: What has happened to Australian mail, Ms Doosey?
THE WITNESS: I’m not sure.
HIS HONOUR: The post.
MS DOOSEY: That she had – don’t you recall that? That the mother was experiencing difficulties and, in the end, she gave it to you to get it to the father?---I think yes. I do recall. I can’t recall what the difficulties were but I think yes, she did.
HIS HONOUR... must have forgotten, I expect, Madam Counsellor, where the grandparents … lived, I suppose. They seemed to live close to where she works. But your understanding is that she has never provided reports to the father, voluntarily, historically. Is that correct?---Yes.
The context of the exchange complained of is as follows: (T 11.04.2013 53.33- 54.45:
MS DOOSEY: Well, isn’t one of the primary reasons that the child is living exclusively with the mother is because the father has absented himself and made himself unavailable, in any way, to assist with housing of the child?---I’m not sure that it’s as straightforward as that.
Did you ever ask the father whether he had any willingness, at any stage, to forego the enhanced earning opportunities in Canberra so that he could be closer to his daughter?---No.
Okay. The father is a [tradesman] and he’s - - -
HIS HONOUR: Well, you can ask him this. This is just conjecture now. Ask him.
MS DOOSEY: It’s about child-focusness and this witness has made assessments as to the relative parents’ degree of child-focusness.
HIS HONOUR: Well, isn’t it a matter of submission? It goes to the 60CC factors, such as attitude and so on, I would think.
MS DOOSEY: I take your Honour’s point.
HIS HONOUR: I’m certainly getting more interested in hearing the parties’ responses, Ms Doosey. (emphasis added)
MS DOOSEY: I’m .....
Now the mother has put forward a fairly unfavourable assessment of the father, in terms of his – and she says words to the effect that he has never – to you – that he has never been interested in decision-making in relation to [the child]. This is when you were speaking to her about her decision to move to Queensland?---Yes.
HIS HONOUR: What paragraph? What paragraph? Just so the witness can find it.
MS DOOSEY: Paragraph 9, I’ve got, but I don’t think that’s correct. Just excuse me.
HIS HONOUR: Paragraph 9.
MS DOOSEY: It is paragraph 9?
HIS HONOUR: You see in your report, there, in paragraph 9. I think at the end of that paragraph?---Thank you.
MS DOOSEY: All right. Did you explore with the father whether there was any validity to that assessment? So, for instance, did you ask the father whether he had ever made any decision-making or sought to be involved, in any way, in schooling, progress in education, medical decisions, religion? Whether he had done anything to involve himself in those sorts of decisions?---I did. I asked him and his response was that he – he was – that he would try and get information from [the child’s] mother and she wouldn’t give it to him. I didn’t, necessarily, believe him and I didn’t, necessarily, believe her version, either, of that.
So, for instance, it would have occurred to you that it would be a simple matter for – he has had parental responsibility shared since [the child’s] birth. So it would have been available to him to ring up the school?---Yes.
The mother couldn’t have thwarted that?---I agree.
And did you - - -
HIS HONOUR: Well, that’s a supposition.
MS DOOSEY: Well, did you ask him - - -
HIS HONOUR: It seems to me that - - -
MS DOOSEY: - - - if he had ever rung up the school?---I asked him what – had he had any contact with the school and he said he had tried to get information from the school - - -
From the school?--- - - - and that he had asked for school reports to be sent to him.
And did he say when he had done that? What years?---No. He didn’t, although I got the impression that it was – was more recently - - -
That there - - -?--- - - - that it was during 2012.
HIS HONOUR: Well, inherent in that response is your understanding that the mother has never voluntarily supplied them. Is that right? He has just asked the school?---I – well, I assume if he didn’t have them that that’s the case.
MS DOOSEY: Well, that’s not correct, is it? Weren’t you used as a conduit by the mother to get a report to the father?---At that time, yes.
Yes. And - - -?---At the time of the assessment.
It would have been readily apparent to the fair minded lay observer that the family consultant had been called firstly in the proceedings and that matters of disputed fact would await the party’s own evidence and their cross-examination later in the proceedings and that thereafter if required the family consultant would be recalled.
A similar complaint is made by counsel for the mother in relation to the following exchange between the Court and the family consultant during her cross-examination by counsel for the mother (T: 11.04.2013 67.2)
HIS HONOUR: I assume, ma’am, that as a consequence of that, they appear to you to be fairly active grandparents, do they, willing to travel to Canberra?---Well, they – I mean, I wouldn’t necessarily know how to – whether they were pro – how proactive - - -
The context of the exchange during the family consultant’s cross-examination by counsel for the mother is as follows:
MS DOOSEY: Did you ask him how often he visits his own parents since he has moved – since he has bought that house in Canberra - - -?---Yes, I did.
- - - and he is no longer reliant - - -?---I – only in the context of [the child] - - -
Yes? --- - - - and he said that he wasn’t – wasn’t seeing them as regularly as he had been since they had bought the house.
All right. So did you ascertain whether he sees them at least comparable to the monthly that he claims he will be willing to see the maternal grandparents? --- No. I didn’t ascertain that. I got the sense that it was about monthly, maybe six weekly.
Did you get that – what did you get that sense from?---Because he said that, prior to that, he had been seeing them fortnightly, and that his family would come down monthly, but since buying the house, the parents were coming up more often than he was going down.
And isn’t one reading of that is that, since he no longer needs to stay with them, he hasn’t been visiting them?
HIS HONOUR: She just gave her answer as to what he said.
THE WITNESS: I don’t know why he is not visiting - - -
HIS HONOUR: They now come up to Canberra more than he goes down. I assume, ma’am, that as a consequence of that, they appear to you to be fairly active grandparents, do they, willing to travel to Canberra?---Well, they – I mean, I wouldn’t necessarily know how to – whether they were pro – how proactive - - -
….. maintain their relationship?--- - - - but they had certainly, according to [the father], they had been visiting him and the family in Canberra, especially – I think the other thing he mentioned was that that had been occurring from when Ms [E] had been hospitalised during the pregnancy
The fair-minded lay observer would have observed the Court making further enquiry of the family consultant as a consequence of the previous questions being put and the answers given in response, no more no less.
Adverse Inferences against the Mother
Counsel for the mother complains of the Court’s tendency to make adverse inference as against the mother, hesitating to do so against the father.
T11.04.2013 70.35
HIS HONOUR: - - - those proposals are vague, uncertain and conditional, I think were the words.
MS DOOSEY: Or conditional.
HIS HONOUR: And I think you said the same about both of them, didn’t you?---…..
You had doubts as to both of them.
It is difficult to understand the nature of the complaint in relation to this exchange with counsel for the mother. The context of the exchange once again within counsel for the mother’s cross-examination of the family consultant was as follows:
Okay. And so, for instance, when the father says that what he – you have him saying that he would ensure that [the child] saw her mother if possible. Did that give you pause?---No, because he was referring to his financial situation, and I was aware of that.
Okay. So I’m not saying whether you’re critical of him, what I’m asking is, does that cause you to doubt whether that contact would take place?- --Absolutely, as it does in terms of what the mother has said about the child coming down once a month as well.
Okay. If we could, just for the purpose - - -
HIS HONOUR: Let the witness answer the question.
MS DOOSEY: Okay.
HIS HONOUR: Thank you. Go on?
---I think – I mean, I guess what I’m saying is that neither of these parents I have assessed - from my assessment, I couldn’t guarantee that either of these parents, based on the past history, would – I couldn’t say would definitely, absolutely, and for sure follow through with either of their proposals.(emphasis added)
All right. But at least in terms of what the court has before it, and if I could ask you to focus on the maintenance of the mother’s relationship - - -?---Yes.
- - - I appreciate that you are keen - - -?---Yes, go on.
- - - to talk about the father and his relationship, but you will have the opportunity to do that at a later time. Do you agree with this; that the father’s proposal is, at best, vague, and uncertain, and conditional,(emphasis added) that proposal being, she will see her mother if possible?---If - - -
Possible.
HIS HONOUR: Maybe you break it up into those spectres. Vague, uncertain, and conditional.
MS DOOSEY: Yes. All right. So the - - -
HIS HONOUR: So what is vague about it?
MS DOOSEY: - - - the conditionality is if it’s possible; do you agree with that?---I’m confused. I’m sorry. What recommendation are we talking about?
HIS HONOUR: The father’s proposal ….. - - -
MS DOOSEY: No. No. The father says to you - - -?---Yes.
HIS HONOUR: - - - in relation to - - -
MS DOOSEY: - - - I will take you to - - -
HIS HONOUR: - - - interstate contact - - -
MS DOOSEY: Well - - -
HIS HONOUR: - - - those proposals are vague, uncertain and conditional, I think were the words.
MS DOOSEY: Or conditional.
HIS HONOUR: And I think you said the same about both of them, didn’t you?---…..
You had doubts as to both of them.
MS DOOSEY: If we could just concentrate on the father’s proposal for now. Do you agree with that assessment of the father’s proposal?
HIS HONOUR: I would have thought they’re specific orders, aren’t they?
MS DOOSEY: No, he is not – I will take her to that – he is not seeking anything specific. The father’s statement to you as to his facilitation - - - ?---Basically, what the father was basically proposing was, in the event that the court – in the event that [the mother] should go to Queensland and leave the children in the care of the grandparents, then he would be proposing that the – that [the child] live with him and spend time with the grandparents, and that, in that process, an arrangement would need to be made to ensure that [the child] has time with her mother and time with the grandparents.
HIS HONOUR: Well, madam, have you seen the minute of order proposed by the father today in his outline of case document, where there are specific orders sought in relation to - - -?---No.
- - - interstate travel, air transport, and so on?---No.
Well, maybe, in fairness - - -
MS ..........: I can provide that. Your Honour, I can provide that.
HIS HONOUR: Didn’t you get a copy of their case outline?
MS DOOSEY: I did, but I didn’t – I don’t know what I’m being taken to.
HIS HONOUR: Paragraph 4 – it goes on for a few pages.
MS DOOSEY: But just in terms of your speaking – we will look at that – but in times of your speaking to the father, and the assessment that you were making at the time, I want to take you to whether you still – is that – I think I’ve been interrupted - - -?---Go on. Do you want me to answer your question or read this first?
I would prefer you answer my question first - - -?---Sorry. Yes. Go on.
- - - but if His Honour prefers you to do it that way, or - - -?---No, that’s all right.
HIS HONOUR: We haven’t finished with the vague, uncertain, or conditional yet.
MS DOOSEY: All right.
HIS HONOUR: So I think she wants to look at the orders first.
MS DOOSEY: I did – I would - - -
HIS HONOUR: Just while that’s happening, if I just may just mark into evidence the family report as exhibit A. I will mark into evidence the father’s outline of case document as exhibit B, and Ms Doosey, if I mark into evidence your outline and orders sought as one document, exhibit C, is that convenient?
MS DOOSEY: Thank you, your Honour.
The fair-minded lay observer would have perceived the Court endeavouring to clarify the particular proposals of the father as to the child’s travel interstate to spend time with the mother if the child was to live with him in circumstances where it appeared that the witness under cross-examination had not been provided with a copy of the father’s case outline that set out the father’s proposed orders.
This was appropriate in circumstances where the family consultant expressed reservations as to the ability of either party to facilitate or implement their respective proposals for the child to spend time with the other and counsel for the mother described the father’s proposals in terms as referred to above.
T 11.04.2013 16.33:
HIS HONOUR: It’s probably lucky it’s parenting, otherwise that wouldn’t be relevant.
It is only possible to understand the nature of this complaint by reference to the context in which the statement arose during cross-examination of the family consultant by counsel for the mother:
Ms [S], it’s the case that you have seen some subpoena material today?‑‑‑Sorry?
You’ve seen ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ some material as a result of subpoenas and, in particular, you’ve seen subpoenas – sorry. You’ve seen material that has been produced in responses to subpoenas on [a Hospital]. Do you recall seeing those documents?‑‑‑I do.
And there has been material that has been produced as a result of subpoenas on the Australian Federal Police?‑‑‑Yes.
And there has been subpoenas – sorry, material that has been produced as a result of subpoenas on the ACT Welfare Department?‑‑‑Yes.
The equivalent of DOCS?‑‑‑Mm.
And is it – as a summary, it’s fair to say that that – the material that has been produced relates to Ms [E’s] two daughters?‑‑‑Mm.
Do you recall that?‑‑‑Yes.
And do you agree with this: that the material that is disclosed – sorry. The information that’s disclosed in that material is information that you were seeing or becoming aware of for the first time as you read that material, is that correct?‑‑‑It was information that was alleged by [the mother] in interview.
Okay. I will take you through – perhaps rather than ask for the general, I will take you to the specific. In relation – is it the case that the – or do you recall that the material from – I will call them DOCS just for ease ‑ ‑ ‑?‑‑‑Yes, okay.‑ ‑ ‑ of recognition.
The material from DOCS discloses that there have been four notifications in relation to those two girls. Is that your recollection?‑‑‑My recollection of my reading, given how much I had to read this morning ‑ ‑ ‑
Well, we will take you through it?‑‑‑ ‑ ‑ ‑ was just of two. One related to when they were younger, and one related to sexual assault issues.
Okay. Do you recall that there was a 2006 report as to possible sexual abuse of the older girl, [T]?‑‑‑Yes.
And that that seems to have originated from the mother taking [T] for medical attention because of her concerns?‑‑‑Yes.
And [T’s] behaviour at the time was causing the mother concerns?‑‑‑Yes.And [T] was also reporting as having frequent vaginal
Infections?‑‑‑Yes.
And as of 2006, the issue that contact with her young uncle, [J], was problematic?‑‑‑Yes.
There were some very extreme behaviours attributed to that – I think he was about 10 at the time?‑‑‑Mm.
And it was noted that [T] was having fairly substantial contact with him?‑‑‑Mm.
And that similarly, the younger sister was having that level of contact. This is in 2006. Is this your recollection?‑‑‑Yes.
And that it was reported that they bed-shared when the girls went to their paternal grandparents?‑‑‑Yes.
Okay. So the spectre that at least [T] was the subject of sexual abuse was raised as of 2006 by the mother?‑‑‑Yes.
And your reading of all – certainly this is not something that the mother disclosed to you – the stepmother, Ms [E], disclosed to you?‑‑‑No.
None of that was raised, was it?‑‑‑No.
The next report is a 2007 neglect report. You recall that?‑‑‑Yes.
And you recall that there was a high level of concern with the state of Ms [E’s] house?‑‑‑Yes.
Do you recall that it’s described as unhygienic?
HIS HONOUR: Sorry, 2007?
MS DOOSEY: 2007.
HIS HONOUR: Okay.
MS DOOSEY: Unhygienic?‑‑‑Yes.
Filthy. Littered with food scraps. Do you recall all that?‑‑‑I do.
And that this is a mother that is struggling to cope?‑‑‑Yes, I do.
Do you recall that the level of squalor in the house was such that the report writer regarded it as posing a health risk to the children?‑‑‑Yes. And that if it wasn’t immediately remedied, that health risk was of such a nature that the children would need to be removed from their mother?‑‑‑Yes.
Now, that’s similarly something that was not disclosed to you by Ms [E]?‑‑‑No.
No. And then there’s the further neglect report, 2007. Do you recall this? That there’s a report that the mother leaves the children alone and goes and drinks with the neighbour?‑‑‑No, I didn’t ‑ ‑ ‑
You didn’t see that?‑‑‑No.
I will show you that document.
HIS HONOUR: So this is a notification you’re talking about?
MS DOOSEY: It’s a report.
HIS HONOUR: But the substance of the – is it a complaint from a notification, is it?
THE WITNESS: This is substantiated.
MS DOOSEY: I will put this document into evidence, your Honour. Just excuse me. It’s a – what we’ve got, your Honour, as a result of the subpoena, is a written report detailing all the incidents that I’ve just outlined.
HIS HONOUR: Yes.
MS DOOSEY: So it’s not in fact the notification itself. It’s not the raw material. It’s a report that has been compiled.
HIS HONOUR: It’s probably lucky it’s parenting, otherwise that wouldn’t be relevant.
MS DOOSEY: I beg your pardon?
HIS HONOUR: It’s probably lucky this is a parenting matter, otherwise temporally I can’t see how it’s relevant, but in any event, continue.
MS DOOSEY: Well, your Honour, if that’s a question for me ‑ ‑ ‑
HIS HONOUR: Seven years ago.
The lay observer would be mindful that the Court was making an observation as to the temporal relevance of the documents sought to be introduced in cross-examination through the family consultant in circumstances where the documents related to incidents in 2006 or 2007 and the Court was required to make a determination as to the best interests of the subject child in 2013.
It was clear that the Court was reminding counsel for the mother that it was a question of what weight would be afforded to such documents by the Court in the overall context of evidence most of which remained to be given particularly in light of the following exchange shortly thereafter:
HIS HONOUR: That at the moment is of little temporal relevance, Ms Doosey, so let’s move on to something that might assist me. These are matters, of course, you could put to Ms [E], but this witness is conjecture. I really don’t think it assists ....(emphasis added).
MS DOOSEY: All right. Well, could I just ask this: if you had known of this whilst you were interviewing Ms [E], would you have wanted to ask her, would you have seen it as at all relevant whether she had, in fact, done anything to ensure that this situation didn’t arise again? I would have. I guess my awareness of the exact skill base that she had as a parent was not present in the interview that I had with her. I was aware, however, that her mother walked out when she was quite young and that she was left in charge of, I think, three siblings of her own as the eldest, and I – when I read this this morning, I made a connection with the fact that it wasn’t surprising to me that, at the – in her early 20s, she wasn’t necessarily – the connection to me was that she probably wasn’t taught any basic living skills by her father and her mother wasn’t present. She had just done whatever she could that was in the best – that was the inference that I took from it.
Do you agree that what’s described in this report is a fairly profound failure to provide an adequate level – an adequate home environment? I’ve been working in child protection for a very long time in the inner city of Sydney, and I can tell you that I’ve been in many, many, many houses where this is an issue. I’ve also seen it remedied, and I’ve seen people get the support that they need to get to be able to remediate as well.
So you would have been in a position, if you had known about this, to assess whether there had, in fact, been adequate corrective steps taken, is that correct? Yes. But I also would have assumed, or expected, that in my interviewing of the children on the day that I interviewed them about, “What’s it like at your home?” you know, and when I talked to [the child] about what it’s like at dad’s, that if a house was in that sort of state, it would come up somewhere.
Well, it didn’t come up – I’m sorry, yes, your Honour.
So you regard it as appropriate to have the children be responsible for that reporting? Not at all. But I wouldn’t have imagined that it was relevant for her
Thereafter cross examination of the family consultant by counsel for the mother continued for some time and in detail as to matters raised historically in the DFACS file.
Much of that cross examination, as did some of the later cross-examination, called for the family consultant to express views based on conjecture and hypothesis in relation to issues that awaited the cross-examination of the parties and their witnesses.
The fair-minded lay observer would be aware that as yet in the proceedings neither the parties nor their various witnesses had given any oral evidence or been cross-examined and many of the issues put to the family consultant were more properly to be addressed to the parties and their witnesses.
The mother subject to greater scrutiny
Counsel for the mother complains that a reasonable bystander hearing the evidence would notice that aspects or attributes of the mother are the focus of questioning by the Court, yet there was no corresponding questioning of whether the father possessed these necessary attributes. The complaint is that this tended to create an impression that the mother is being subject to “greater judicial scrutiny”.
With respect to counsel for the mother that of course is not the test.
The mother complains of the following exchanges during the cross-examination of the family consultant:
HIS HONOUR: Just while Ms Humphreys is gathering her thoughts, having read the updated affidavit material, in terms of your assessment of the mother’s priorities, where do you think they lie, in terms of her prioritising her needs or the child’s needs, one against the other, and the needs of extended family? I think that the mother is in a pretty difficult position, given her stated depression and feelings, negative feelings about being in the [Illawarra] area and not feeling she has any prospects, and I believe that the mother does believe that an improvement for her will equally mean an improvement for [the child]. However, I also have drawn – come to the conclusion from the material I’ve read and the interviews that I’ve done that the mother does probably put herself before – her needs before [the child’s] needs.
But in saying that, what would you say in terms of the mother’s reflective capacity? I guess the – I was heartened, if you like, by the second affidavit, the most recent affidavit, in that it seemed that the mother was – had moved from what appeared to be a dream or a hope of how things should be and could be and would be just by the move to [Queensland], that she appears to have done a lot more research on how that move can work and be most successful in terms of setting up a job, and conversations with her sister and the grandparents’ willingness to fund the trips for [the child] to ACT if they need to. So yes, I guess that – that’s some improvement in her ability to sort of be able to look at the impacts, to some extent, but they are mainly and primarily of a – of a practical nature in terms of her move. I’m not sure that she has a depth of understanding of the possible impact it could have on [the child] to move away from both sets of grandparents, her father, her stepsisters, in particular, and of course, the unborn baby that she hasn’t even met yet. (T 11.04.2013 11.15-40)
And:
HIS HONOUR: … I assume I will be getting her employment records and tax returns into evidence at some stage that actually evidence the hours that she has been working; … (T 12.04.2013 30.30)
The first passage complained of has been referred to above. The fair-minded lay observer would have observed that the responses by the family consultant elicited evidence both favourable and otherwise to the mother and revealed opinions of the family consultant most relevant a determination of the child’s best interests.
As to the second passage counsel for the mother has extracted only a portion of the relevant exchange. The portion extracted took place in the following context:
MS DOOSEY: Ms [S], you’ve spoken about what you see is the preferable alternative if the mother, in your language, chooses to go to Queensland. I want to explore with you, as best we can, what you see as the mother’s choices if we exclude Queensland. I think you’ve agreed with me previously that her staying with her parents long term is not tenable.
HIS HONOUR: Well, Ms Doosey, isn’t this a matter for the mother’s evidence?
THE WITNESS: No, I haven’t said that.
HIS HONOUR: It’s a matter for the mother’s evidence.
MS DOOSEY: Well, I just wanted to
HIS HONOUR: She says her case is she has no alternative.
MS DOOSEY: Well, you’re saying that the child should be with the mother if the mother doesn’t go to Queensland; is that correct? That would be preferable.
All right. And where do you envisage that the mother and
HIS HONOUR: Well, I’m not going to have this witness conjecture. That’s a matter for your client in her affidavit, which is fairly comprehensive, and to deal with in cross-examination.
MS DOOSEY: All right.
HIS HONOUR: And then we will resume with the family consultant on that issue in due course. I can’t have this witness contemplate circumstances or cross-examination at this stage that’s not before the court, and it’s really just going to be conjecture by her. She knows nothing about the mother’s financial circumstances; I assume I will be getting her employment records and tax returns into evidence at some stage that actually evidence the hours that she has been working; I don’t know, I may not; but that’s all a matter for your case, I expect, to demonstrate alternatives or, in fact, I think no alternatives is the position.
MS DOOSEY: Well, so is this correct, that your willingness or your belief that it’s best for the child to stay with her mother isn’t predicated on any specific geological location, other than that she not go to Queensland, that basically she’s close to the father or relatively close to the father? That’s not quite the way I’m thinking. My assessment is that going to Queensland is going to do – is more – has a higher likelihood of causing more dislocation and more impact on the relationship that she has got with her grandparents, her parents and stepbrother. Okay. Do you agree that the mother has struggled to find affordable housing? Do you accept her evidence?
HIS HONOUR: Well, how does she know that?
MS DOOSEY: Do you accept her evidence on that?
MS HUMPHREYS: Your Honour, I object. How does it assist this court whether this witness has that opinion or not?
HIS HONOUR: It’s a matter for the mother to demonstrate that in her evidence, and I suppose that’s one of the tenants of your case, is that, well, there’s no other viable options.
MS DOOSEY: That's correct. Well, I suppose I – do you consider that there are other viable options for the mother, other than Queensland? Well, all I can say that in my experience of working with single parents, clearly affordable accommodation across Australia is difficult. There is public housing; I don’t know whether [the mother] has actually put in an application at any time for public housing that would enable her to be able to afford on her low income to have affordable accommodation; I don’t know those things; they are the sorts of options that are out there for single parents who are struggling to find affordable accommodation; community based housing programs; Department of Housing applications and assistance in that form.
It is difficult to understand the complaint by the mother in circumstances where the Court’s comment as to the availability of her financial documents could be seen as a reminder as to one of the many important aspects of the mother’s proposals to be considered by the Court.
The fair-minded lay observer having regard to the context of the exchange complained of could have formed no other view.
Misinterpreting the mother’s evidence
The mother complains that there were occasions when the Court misinterpreted the evidence in a manner that gave an inference favourable to the father’s case, or avoided an unfavourable inference.
A number of short extracts from the transcript over both days of the cross-examination of the family consultant is relied upon by the mother.
It is not necessary to deal with them individually but to note that at this stage of the proceedings the Court has only before it the evidence of the family consultant and her cross-examination and the expectation that the family consultant will return if required at the conclusion of the parties’ evidence.
The evidence of the parties and their witnesses is only before the Court by reason of their affidavit evidence and both parties and their witnesses await cross examination.
The fair-minded lay observer would be aware of this evidentiary position and no doubt be anxious to hear from the parties, particularly in cross-examination so that they’re evidence is tested as against the assertions in their affidavits.
It is a specific complaint by the mother that the court misinterpreted the mother’s evidence in relation to the parties competing proposals and the facilitation of time with the other parent. Once again this complaint is of no substance as the mother’s evidence in its entirety is not as yet before the Court.
The clarification of the parties’ respective proposals and factual assertions if misapprehended by the family consultant in cross-examination would be an expectation of the fair-minded lay observer.
Lack of restraint
Counsel for the mother complains that the Court demonstrated a level of lack of restraint, and exasperation that would cause a fair-minded observer that you were “irritated or impatient with the mother’s case and her counsel”.
With respect to counsel for the mother that is not the test. The expectations upon a judicial officer in relation to the modern conduct of proceedings are such that the Court is not to stand mute and allow the proceedings to proceed in a manner not appropriate for the proper conduct of those proceedings.
The Court made comments from time to time seeking to have counsel move on from a particular topic in cross-examination or engage the witness in an area that the Court saw as relevant. Such would be the perception of the fair minded lay observer.
This complaint is without substance.
Rejection of foreshadowed application without submissions
Counsel for the mother complains that the Court made a pre-emptive ruling on a foreshadowed application, without permitting any submissions, or even an outline of the basis of the application.
In relation to this issue the following exchange took place when the matter was listed for further directions on 9 July 2013:
T 09.07.2013 3.0
MS SIMICIC: Your Honour, I just want to foreshadow with your Honour, I’m not in a position to make an application today in respect of this issue but I foreshadow that there will be an application made by my client in relation to there possibly being an updated report or, in the alternative, an application discharging the current expert. But I just wanted to foreshadow that with your Honour and that will be done by way of application in a case.
HIS HONOUR: Who’s the current expert?
MS SIMICIC: It’s [Ms S].
HIS HONOUR: But she has given extensive evidence already.
MS SIMICIC: She has, your Honour. She has.
MS TEMELKOVSKA: Is Ms Simicic looking for a single expert, your Honour? I’m just wondering what type of expert she might be seeking and on what basis, if it is another expert?
MS SIMICIC: Well, I want to be given an opportunity just to review the transcript first.
MS TEMELKOVSKA: Right.
MS SIMICIC: But I just want to foreshadow that there will be either an application to discharge the current expert or, alternatively, at a minimum, there be an update.
HIS HONOUR: In other words, re-start the trial.
MS SIMICIC: Well, your Honour, there’s issues in relation to the state of the current expert’s evidence.
HIS HONOUR: Why? She has finished her evidence.
MS SIMICIC: She hasn’t finished her evidence. You haven’t cross-examined her yet.
MS TEMELKOVSKA: I think all sides have cross-examined her.
MS WILLIAMS: We examined her first. We examined her first.
MS SIMICIC: You did too. Sorry, I withdraw that.
HIS HONOUR: Okay. That’s right. Because she started first.
MS WILLIAMS: We examined her first.
HIS HONOUR: She is to come back into the box after the parties’ evidence is concluded, if necessary.
MS WILLIAMS: If necessary, yes.
MS SIMICIC: I just wanted to flag that with your Honour but it will be done in way of formal application in a case.
HIS HONOUR: Yes. Well, you can probably do that in the Full Court. Well, the matter has got to proceed somehow. If you say there’s some fundamental problem with the evidence, you can appeal.
MS SIMICIC: Well, there is, your Honour. And the other issue is the circumstances of the parties have changed already since the hearing has concluded. So
HIS HONOUR: Well, no doubt, I will give you leave to file updated material and that can be put to the expert in the box when she’s recalled.
MS SIMICIC: I just wanted to flag that with your Honour and I will make the appropriate application.
HIS HONOUR: Well, probably, my response will be that you can argue that in the Full Court in due course, if you want to do that. But the matter for you
MS SIMICIC: That’s all right.
HIS HONOUR: I’m not sure why you would apply for her to be discharged. Because you didn’t like her evidence?
MS SIMICIC: Well, your Honour, it goes more to that.
HIS HONOUR: Okay. Well, you obviously don’t like her evidence. What do you say, there’s some relationship?
MS SIMICIC: Well, your Honour, it’s not just a matter of not liking the evidence. Some of her evidence is just irrational, your Honour.
HIS HONOUR: Well, that might be your view or your client’s view but that’s a matter for me to determine and I haven’t finished it yet. So you will have to leave that up to me. I might make some adverse findings about her evidence. And no doubt, you will have very erudite and careful submissions about that in due course. But that’s really a matter for final submissions, as to whether I accept her evidence or not. And she hasn’t even finished yet. I think she jumped in first to give everybody a bit of chance to ask her some questions, on the basis that she comes back at the end. Is that right, Ms Temelkovska?
MS TEMELKOVSKA: Well, I don’t know. I mean, I don’t think that intention was made very clear at the time but if, certainly, that is the intention, I’m happy to relay to her that if there’s any further material and updates that she would need to be available to
HIS HONOUR: Well, the other thing, of course, there may be some concessions as to fact or other matters that are dealt with in the parties’ evidence that need to be put to her in the light of her evidence already.
MS TEMELKOVSKA: Yes.
HIS HONOUR: And that’s a fairly common practice. So anyway, but I will leave you to make whatever application you want, Ms Simicic.
MS SIMICIC: Thank you, your Honour
Putting the complaint of the mother into context the fair-minded lay observer would have perceived a possible application by the mother to discharge the family reporter, necessitating if successful the preparation of a new family report. The fair-minded lay observer would also have been aware that the family reporter’s evidence had not as yet concluded in that it was contemplated that if necessary she would be recalled at the conclusion of the parties’ evidence.
The fair-minded lay observer would have heard an exchange that reveals the Court’s view that it was for the Court to determine what weight if any should be attached to the views of the family reporter and that if it was contended by the mother that the Court gave inappropriate weight to the views of the family reporter as evidenced in the report or her oral evidence that would be a matter for the mother to consider in an appropriate way in an appeal against the Court’s findings and orders to the Full Court.
The crux of the mother’s complaint was not made clear in the exchange on 9 July but is apparent from the affidavit filed in support of the present recusal application. The mother deposes as follows:
In relation to the family consultant in these proceedings, Ms [S], I also have a number of concerns regarding the family report interview process. For example, I was not afforded the opportunity to be formally observed with [the child] by Ms [S]. At my interview I said to Ms [S] “are you going to observe me with [the child] in the same way that you observed … (the father) with [the child]?” The family consultant replied “no we don’t need to do that”
I feel that Ms [S’s] failure to afford me the same opportunity as the father has impacted on the recommendations Ms [S] has made in the family report.
There are also numerous factual errors in Ms [S’s] report with respect to the past and current care arrangements for [the child], and I find this very concerning. I also feel that I was more closely scrutinised by Ms [S] during the interview process in comparison to the father and his new partner.
After reading Ms [S’s] recommendations in the family report and after hearing Ms [S] give evidence in court, I feel that Ms [S] has relied upon those factual errors in formulating the recommendations, and this is to the detriment of my application before the court.
The family consultant’s report was admissible in the present proceedings by reason of s 62G (8) of the Act and was admitted into evidence without objection.
The general principles relating to the family reports are well settled (Hall (1979) 5 FamLR 411) and the role of the family consultants as authors of same was considered in Re JRL; Ex parte CJL (supra) at 348 where Gibbs CJ said:
In the performance of this function the court counsellor becomes a potential witness – a court-appointed witness who is perhaps in some respects and allergists to an expert witness – but is not part of the court, and has no right to communicate with the judge in relation to a pending matter except through the medium of the report if it becomes evidence and by giving evidence if the counsellor is called as a witness.
The evidence of the family consultant including both the family report itself and the family consultant’s oral evidence in cross-examination is to be weighed by the Court in the same manner as all evidence in the proceedings is to be weighed. The family consultant is able to be cross examined by the parties and if appointed the independent children’s lawyer as to matters of fact and opinion as are disclosed in the report or the family consultant’s oral evidence.
The fair-minded lay observer hearing the exchange set out above would be aware of the mother’s prospective application and the Court’s preliminary view that such application as foreshadowed went to the weight to be attached to the evidence of the family consultant and that any complaint in relation to the Court’s assessment of that evidence was more properly a matter for the Full Court.
The mention on 9 July 2013 – the making of contested orders, critical findings and comments as to the mother’s credit and parenting without evidence or submissions
This complaint by the mother arises out of the mention of the matter on 9 July 2013 in which the parties consented to the proceedings being transferred to this Court to be resumed on a part heard basis.
The following exchange took place:
T 09.07.2013 8.12 and thereafter:
MS TEMELKOVSKA: Yes, there is one issue, your Honour. While I’ve been on leave, I can see that the parties have been negotiating, it would seem, about a child psychologist for [the child] without, really, my knowledge and consent. And I appreciate the parties might come to a view that children sometimes need assistance but it has only been brought to my attention afterwards, after there has been negotiations and engagements with psychologists. I’m a little bit concerned about that and I just wonder whether there ought to be an order that, you know, without my consent, that they not engage the child in counselling. I mean, I would have thought that that’s something that should be brought to my attention if there’s concerns.
HIS HONOUR: Well, I would’ve thought so. Has the ICL been in the loop?
MS TEMELKOVSKA: But I’ve only discovered it afterwards.
HIS HONOUR: Do you know, Ms Williams, if that has been happening?
MS SIMICIC: Look, there was a change of correspondence between my friend and I and it did come to my attention that neither of us – we had overlooked ccing the ICL in on that correspondence.
HIS HONOUR: Or asking her consent.
MS SIMICIC: That issue was
MS WILLIAMS: We discovered that the mother had decided to send the child to a psychologist as a result of Ms Simicic’s correspondence to our office, advising that she had made an appointment for the child. My client objected to that, not consenting to the child attending upon a psychologist at that stage and there was correspondence going backwards and forward which was Ms Temelkovska (emphasis added)
HIS HONOUR: Who has been on leave.
MS TEMELKOVSKA: On 28 June, I received a copy of all correspondence that had been backwards and forwards but, certainly, only after the event.
HIS HONOUR: Has the child seen anybody yet?
HIS HONOUR: Ms Simicic?
MS SIMICIC: Well, the child has. My friend is aware. There was an appointment date you were advised of.
MS WILLIAMS: We
HIS HONOUR: You’ve got to do it with the consent of the ICL.
MS WILLIAMS: We responded to the correspondence
HIS HONOUR: You don’t just unilaterally go and do it when the child has got a lawyer. So has the child seen anybody yet?
MS SIMICIC: The child has. The child has had one appointment to my knowledge with
HIS HONOUR: Well, that will be stopping.
MS SIMICIC: a psychologist by the name of Ms [G].
HIS HONOUR: Well, that’s the end of that. Yes. Well, she won’t be seeing her again unless – and, no doubt, Ms Temelkovska can talk to that psychologist. Right, Ms Temelkovska?
MS TEMELKOVSKA: Yes, your Honour. I will be back from leave on 23 July. And if the parties are of the view that she needs a psychologist, a clinical psychologist, they should really raise it with me. And I don’t want to canvas the issues here but
HIS HONOUR: Well, that’s just a matter of professional
MS TEMELKOVSKA: I am asking for an order today that they not take the child for further appointments without my consent.
MS SIMICIC: Well, your Honour
MS TEMELKOVSKA: I wouldn’t normally need to do this.
HIS HONOUR: Well, I can’t see how that can be opposed.
MS SIMICIC: Your Honour, I understand that but I understand that both parties agreed that the child can see a clinical psychologist.
HIS HONOUR: But
MS SIMICIC: I appreciate there’s an ICL involved
HIS HONOUR: you have a lawyer for the child.
MS SIMICIC: Well, that’s right, your Honour. But
HIS HONOUR: And she might not.
MS SIMICIC: Ms Temelkovska wasn’t aware that there was consent from both parties. There is consent from both parties in relation to that.
HIS HONOUR: Yes, but it doesn’t mean the child is still going to go. You still need Ms Temelkovska’s consent.
MS SIMICIC: Well, that’s right but Ms Temelkovska just said that she wasn’t aware that there was consent. Making it clear to her there is consent
HIS HONOUR: Yes, but it doesn’t matter. Even if the parties agree, shopping a child around to a psychologist again
MS SIMICIC: Your Honour, it’s not shopping the child around to a psychologist.
HIS HONOUR: But she has already seen a family consultant. She has been engaged in that process here.
MS SIMICIC: Well, your Honour, this child is struggling. This issue was raised with my friend. I apologise the ICL was overlooked in the correspondence
HIS HONOUR: Well, let’s do this. Let’s simply – we will make an order – I will make the following order of the court’s own motion that:
(4) The mother and father each be restrained by injunction from permitting or facilitating the child to be seen by any psychologist, social worker or family therapist without the written consent of the independent children’s lawyer.
Now, I’m sure you can resolve that issue fairly quickly, Ms Temelkovska, in a week or so when you’re back from leave; is that right?
MS TEMELKOVSKA: Yes, I’m happy for the parties to write to me with their reasons for why the child needs to be seen by a psychologist and then I will deal with it.
HIS HONOUR: And you may – I expect Ms Simicic will tell you who it is and you can probably talk to the psychologist.
MS SIMICIC: Your Honour, it is set out in correspondence we have already supplied my friend with. So I don’t have anything more to say.
HIS HONOUR: Okay. All right. Well, let’s just get that matter out of the way. So that’s sorted. Well, I couldn’t imagine the mother would want to put that psychologist on evidence, anyway, would she? Shopping for evidence or
MS SIMICIC: Your Honour, it’s not shopping for evidence. If the child’s distressed and the child’s GP has recommended that this child had some therapy
HIS HONOUR: Remind me of the age of the child.
MS SIMICIC: I think the child’s about eight, isn’t she/
MS WILLIAMS: Yes.
HIS HONOUR: It might be best if she has another appointment to see Ms Temelkovska too.
MS SIMICIC: Your Honour, I don’t have any objections to that.
HIS HONOUR: Look, she has got the correspondence. No doubt, you will make inquiries, Ms Temelkovska. We can hopefully get over the problem.
MS TEMELKOVSKA: Yes, I will.
It is clear that the attendance by the child upon a treating psychologist at the instigation of the mother was not something that was consented to by the father.
The independent children’s lawyer made complaint that it was an issue that should have been brought to her attention if there were concerns in relation to the child necessitating therapeutic intervention particularly in the context of the independent children’s lawyer having met the child and seeking to have the child attend upon her during the period of the adjournment.
The independent children’s lawyer sought an order that during the adjournment and prior to the resumption of the trial the child not attend any further appointments without her consent.
The Court enquired of the solicitor for the mother in the following terms – “well, I can’t see how that can be opposed.” To which the solicitor for the mother replied “Your Honour, I understand that but I understand that both parties agreed that the child can see a clinical psychologist.” In reality as evidenced by the exchange set out above there was no consent by the father to the child being engaged with the psychologist appointed by the mother nor had the independent children’s lawyer been consulted in relation to the mother’s proposal.
The exchange took place not in the context of the trial itself but an administrative directions hearing to facilitate a resumption of the matter on a part heard basis before this Court.
Counsel for the mother submits that as a consequence of the exchange the Court has come to a “very dim view of the mother”. That is not the test to be applied.
The fair-minded lay observer would perceived the Court’s concern as to the prospect of the child being engaged unnecessarily with a health professional or therapist in circumstances where there was a full family report before the court and consideration of the necessity for such an engagement could be given to the issue by the independent children’s lawyer in circumstances where the parties were unable to agree.
Discussion
The principles to be followed and the duties of the Court in proceedings under Division 12A are set out above. It would be an abdication of those principles and duties to permit parties to pursue a course that undermined the integrity of properly conducted and managed parenting proceedings that consider the best interests of children.
The fair minded lay observer would be mindful of the nature of modern parenting proceedings and the general context in which they are conducted as referred to above.
As observed by Callinan J in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (supra) at [174-176]:
The Federal Court has adopted a docket system. In that system a number of cases are assigned to a particular judge who then oversees, and makes directions with respect to, all interlocutory matters before hearing a case assigned to him or her. The procedure for trials in the jurisdiction also involves the preparation, exchanging and filing of statements and documents in advance of the hearing which may, and almost always will, be read before the trial begins.
This system has its disadvantages and dangers. On the one hand, the trial judge will be well educated in many of the details of the case on each side by the time that the hearing starts. But on the other hand, it may sometimes be difficult for the trial judge, apparently fully conversant with the facts and issues, not to have formed some provisional view at least of the outcome of the case. The justifications for the provision of written statements in advance of trial have been thought to be the avoidance of surprise and the shortening of hearing time. These advantages will often be more illusory than real. The provision of written statements by one side will afford to the other an opportunity to rehearse in some detail his or her response. It is also impossible to avoid the suspicion that statements on all sides are frequently the product of much refinement and polishing in the offices and chambers of the lawyers representing the parties, rather than of the unassisted recollection and expression of them and their witnesses. This goes some way to explaining the quite stilted and artificial language in which some of the evidence is expressed in writing from time to time, as it was here. Viva voce evidence retains a spontaneity and genuineness often lacking in pre-prepared written material. It is also open to question whether written statements in advance do truly save time and expense, even of the trial itself. Instead of hearing and analysing the evidence in chief as it is given, the trial judge has to read it in advance, and then has the task of listening to the cross-examination on it, and later, of attempting to integrate the written statements, any additional evidence given orally in chief, and the evidence given in cross-examination.
I mention these matters because in sum they may well incline a trial judge towards a degree of outspokenness of a kind to which he or she would not be inclined in a conventional trial on largely oral evidence. That this is so does not provide any excuse for the manifestation of apparent bias on the part of a trial judge but it may explain why a judge finds himself or herself speaking more candidly and strongly than he or she might otherwise do, or even have been able to do, in the past or in other jurisdictions. The question nonetheless remains whether the fair-minded lay observer might reasonably have apprehended that the judge might not be bringing an impartial and unprejudiced mind to the resolution of the questions he was required to decide
These comments are particularly apposite in the context of this Court’s conduct of a Less Adversarial Trial within its judicial docket system and the exercise by the Court of its function having regard to the principles, powers and duties thrust upon it by reason of Division 12A of the Act that are referred to above. That, of course, does not diminish the test to be applied in relation to the recusal application.
The mother’s complaints are set out above. The question involves a consideration of the ‘logical connection’ between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.
The question is to be determined by the lay observer who is reasonable and fair minded, who has a general understanding of the facts and circumstances surrounding the case, who is not a lawyer but is not wholly uninformed and uninstructed about the law in general, and who would ordinarily think that a judge will act so as to ensure both the appearance and substance of fairness and impartiality without at the same time rejecting the alternative possibility.
The answer to the test must be “firmly established”. As observed by Gummow J in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 9:
[70] …But it was remarked in the joint reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson to which further reference is made below, that the hypothetical observer would be no more entitled to make snap judgments than would be the decision maker under observation. Accordingly, and as the joint reasons make clear, later statements which qualify earlier statements may be relevant. There is no logical reason why any temporal element should be brought into that general principle; it depends upon the circumstances of the particular case…
[71] To that perception of the role of the hypothetical observer must be added the consideration 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". The words are those of Mason J in Re JRL; Ex parte CJL, in a passage adopted by Callinan J in Johnson v Johnson. Mason J. also said in that passage, using words later said by the English Court of Appeal to have "great persuasive force", and adopted by the New Zealand Court of Appeal:
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.
This case is one involving lengthy parenting proceedings noting in particular that the matter has already proceeded for several days. The only evidence at present is that of the family consultant. The parties await their opportunity to give evidence in due course. It is difficult to contemplate how there can be any issue as to prejudgment in that circumstance and where the only evidence is that of family reporter.
Although the various matters referred to above are the subject of complaint by the mother, for the reasons set out above and considering those complaints individually or as a whole it cannot be said that they mean that there is a real possibility the case will be approached other than with an unprejudiced mind.
For the reasons given the application for recusal is dismissed.
The Family Reporter
The mother’s complaints in relation to the family report and the family reporter are referred to above.
The mother seeks the following orders:
a)That the Regulation 7 family consultant, Ms [S], having prepared the family report dated 9 October 2012 in these proceedings, the hereby discharged;
b)That pursuant to section 60G(2) of the Family Law Act 1975 the Manager, Child Dispute Services hereby appoint a Regulation 7 family consultant other than Ms [S] to prepare a family report in these proceedings.
The Full Court in Hall and Hall (1979) 5 FamLR 609 said at 615:
…(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation. ...In Hall (supra) the Full Court said at 609:
a)there is no magic in a family report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities,
b)family reports are meant to be, and almost invariably, are valuable and relevant material to assist a judge informing his ultimate conclusions….
c)while the counsellor’s views will normally have weight with the court because of his expertise and experience, the council does not usually have the same opportunity as the trial judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor,
d)hence, the counsellor’s assessment of the parties may often be based on facts which the counsellor has accepted but which turn out to be wrong, or favourable or unfavourable views forward by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character than that which the counsellor has accepted.
This process is amply demonstrated in Carpenter and Lunn (2008) FLC 93-377 where the family report writer misapprehended the chronology of events and the Full Court in that case held that the primary judge had erred by placing significant weight on the family report writer’s opinion when it was based on a serious misapprehension of facts and by the Full Court’s deliberations in Klein [2010] FamCAFC 150.
In Klein (supra) the Full Court said at [241]:
…we simply observe that the family consultant is ordinarily an expert witness whose task is to assist and advise the court. The function of the family consultant is not that of an adjudicator. The family consultant brings to bear an entirely different expertise and experience from that of a lawyer or perhaps investigator. The family consultant may, as an expert, express an opinion on the ultimate issue; see s 80 of the Evidence Act 1995 (Cth). However, as the Full Court made clear in Hall and Hall (1979) FLC 90-713 at p 78,819: “there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities”.
As the Full Court said in Hall (supra) at 616:
In the light of these remarks, we first turn to the ground which complains that his Honour had not heard any evidence as to the qualifications of the author of the family report. In our view, if those qualifications were to be attacked or scrutinised, it was for the legal representative of the parties to seek to cross-examine the counsellor. Similarly, as to grounds 7 and 9 which speak of the “unsupported opinions” and “value judgements” and the interpretation of words within the family report it was open to either counsel to seek to clarify these matters by the usual process. As with any other evidence before the court, a party cannot complain if he has not sought to test that evidence and a judge takes a view of the evidence which is open to him to take.
There was no objection to the admission of the family report into evidence and it is a matter for the Court to attribute to the report and the oral evidence of the family consultant such weight as is appropriate.
In these proceedings the family consultant’s evidence is subject to her being recalled at the conclusion of the parties’ evidence as to any matters that arise during the course of that evidence.
Accordingly the application to discharge the family consultant and for the preparation of a further family report by a different family consultant is misguided and should be dismissed.
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 22 October 2013.
Associate:
Date: 22 October 2013
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