ROWE & HELBIG
[2012] FMCAfam 607
•23 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROWE & HELBIG | [2012] FMCAfam 607 |
| FAMILY LAW – Application for disqualification – apprehended bias – discussion of general principles – application dismissed. |
| Family Law Act 1975, ss.69ZN, 69ZQ, 69ZR, 61DB, Div 12A, Part VII Federal Proceedings (Costs) Act 1981, s.10 |
| Vakauta v Kelly (1989) 167 CLR 568 Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041 Antoun v R [2006] HCA 2 Dunwell & Dunwell [2011] FamCAFC 2 Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 Reg v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 Re Shaw; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47 Re JRL; Ex parte CJL[1986] HCA 39 Horleck [2012] FamCA 120 British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 SS & AH [2010] FamCAFC 13 R v Watson; Ex parte Armstrong Re JRL; ex parte CJL (1986) 161 CLR 342 Southern Equities Corporation Ltd v. Bond (2000) 78 SASR 339 Strahan & Strahan (Disqualification) (2009) FLC 93-414 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Re JRL; Ex parte CJL (1986) 161 CLR 342 Sheldon & Weir (No 2) [2010] FamCA 449 Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Smits v Roach (2005) HCA 36 Brown & Brown [2007] FamCA 493 |
| Applicant: | MR ROWE |
| Respondent: | MS HELBIG |
| File Number: | PAC 5421 of 2010 |
| Judgment of: | Foster FM |
| Hearing date: | 23 May 2012 |
| Date of Last Submission: | 23 May 2012 |
| Delivered at: | Newcastle |
| Delivered on: | 23 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levy |
| Solicitors for the Applicant: | Wallbanks |
| Counsel for the Respondent: | Ms Druitt |
| Solicitors for the Respondent: | Pryor Tzannes & Wallis |
ORDERS
The Application filed by the Respondent mother on 16 May 2012 is dismissed.
The court will publish its reasons for judgment concurrently with final reasons in this matter.
The costs of the Father in relation to the present application are reserved to final trial for submissions.
IT IS NOTED that publication of this judgment under the pseudonym Rowe & Helbig is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
PAC 5421 of 2010
| MR ROWE |
Applicant
And
| MS HELBIG |
Respondent
REASONS FOR JUDGMENT
Proceedings
The Court made orders in respect of the present application on 23rd of May 2012 and advised the parties that reasons would be delivered concurrently with reasons at final hearing.
Subsequently a request was received for the Court to deliver reasons and those reasons are set out herein after.
The present application was commenced by application in a case filed on the 16th of May 2012 by the Mother who is the Respondent in the primary proceedings.
The application seeks the following orders:
a)That His Honour Federal Magistrate Foster be disqualified from further hearing of these proceedings;
b)That the orders made 29th of November 2011 be and are hereby discharged;
c)That a Costs Certificate issue to the parties pursuant to section 10 of the Federal Proceedings (Costs) Act 1981 in respect of the costs thrown away relating to the two days in November 2011,
d)That the proceedings be listed for mention before another Federal Magistrate for the purpose of the allocation of hearing dates estimated to be four days.
In support of the application the Mother relied upon her affidavit filed on the 16th of May 2012 that affidavit asserting apprehended bias on the part of the Court.
The Primary Proceedings
The primary proceedings before the Court are proceedings in relation to parenting arrangements for two children, [X] born [in] 2005 and [Y] born [in] 2008.
The hearing of the primary proceedings commenced on the 21st of November 2011. At the commencement of the hearing it became readily apparent that the hearing of the matter would not to be completed in the time allocated by the Court and that the matter would need to be adjourned on a part heard basis for further hearing to dates in May 2012.
It was agreed by the parties are that the hearing would proceed but that on the day two, the 22nd of November 2011, there would be short submissions as to what if any further orders should be made in relation to the parenting arrangements for the subject children having regard to the lengthy period of the adjournment.
The Court's judgement was delivered on the 29th of November 2011 ([2011] FMCAfam 1532).
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; (2000) FLC 93-041, (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.
In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case’.
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…
and later His Honour said at [46.4]:
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.
His Honour also observed in Antoun v R[2006] HCA 2;
So far as the first point is concerned, 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.
The Full Court of the Family Court observed in Dunwell & Dunwell [2011] FamCAFC 2:
In R v Watson, Barwick CJ, Gibbs, Stephen and Mason JJ distinguished the nature of remarks made during preliminary proceedings to those made during a final hearing:
The remarks on which the wife’s submission was founded were made during argument in an interlocutory proceeding. One must be careful not to exaggerate the importance of remarks of that kind. During the course of argument a judge will often follow the common, and sometimes necessary, course of formulating propositions for the purpose of enabling their correctness to be tested, and as a general rule anything that a judge says in the course of argument will be merely tentative and exploration.
In Laws v Australian Broadcasting Tribunal[1990] HCA 31; (1990) 170 CLR 70 Gaudron and McHugh JJ said at 100:
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 following complaints by the Mother should be considered in the context of the above observations.
Indeed as was observed by Bell J. in Horleck [2012] FamCA 120:
The isolated comments and uncontextualised statements reiterated from the Wife’s submissions in these Reasons go some way toward indicating the minutiae of detail that appears to fascinate the Wife. That a Judge should preside over matters, and complex matters such as these, completely devoid of expressing any comment which could be construed as less than neutral is ludicrous.
The Mother’s Complaints
The Mother’s affidavit asserts her perceptions as to the Court's apprehended bias. Quite properly at the commencement of submissions the Mother’s counsel conceded that it was not a matter of the Mother's perception, but a question of the “reasonable lay observer” test, to be referred to below.
The Mother’s complaints are as follows:
a)At T2.26-31 where, in response to the submission by the Father's counsel that "there is a burning issue in relation to the Mother’s assertion, it seems, that there is an unacceptable risk to the children in being in their Father's care, albeit that assertion is not supported by the expert evidence of Dr R", His Honour says
"Dr R. Yes, I understand that"This exchange between counsel for the Father and the Court took place at the very commencement of the proceedings in the context of a lengthy exchange between counsel for the Father and the Court as it were fleshing out the issues for consideration and outlining the Father’s position. That exchange, in which the Mother’s counsel joined, continued for an extended period of time. This preliminary exchange between both counsel and the Court is recorded over the first 27 pages of transcript and included exchanges as to proposed interlocutory orders to be made during an extended adjournment of the proceedings for further hearing.
It is important to consider the Mother’s complaints in these contexts.
b)At T5.25-32 where the following exchange between His Honour and the Father's counsel occurs: “His Honour: and then now that he's back, if that's his case, then it is suggested that there be an engagement by the Consultant to see how that develops, how are the children react, probably observing the children again with him ----. Mr Levy: Yes. His Honour: ----- with a view to seeing what can be done on a more proper basis.”
Once again this exchange was in the context of the lengthy preliminary exchange between the both counsel and the Court. Prior to this exchange the Court had discussed with counsel for the Mother the father's relocation to live much closer to the children, he previously having been resident in Western Australia, the recommendations of the Single Expert as to supervised time outside a Supervised Contact Centre and a review of that arrangement after a period.
c)At T6.13-14 where His Honour concludes: “ the Court was one of the things that needs to be sorted out in years -- for the Mother to engender a sufficient confidence to perhaps loosen her grip on these children which has been, it seems to me, are a little bit to a vice like the vast far,”
The Court's observation was made once again in the context of the extended preliminary exchange between the Court and both counsel. Previously there was a contention by counsel for the Father for the commencement of overnight time (T5.40) and the submission by counsel for the Father that such a position reflected the recommendations made by the Single Expert. (T6.5).
The Court responded:
Well, she certainly doesn't recommend at this stage, a circumstance where the children are removed from this area to Sydney on a full weekend basis. Her position is that that's something that needs to be contemplated once these preliminary hoops are jumped through and all of that works reasonably well. Because one of the things that needs to be sorted out is to -- for the Mother to agenda a sufficient confidence to perhaps loosen her grip on these children which has been, it seems to me, a little bit too vice-like thus far.
To which counsel for the Mother responded:
Vice-like it is probably a description I would use.
The Court then commented:
Well, it may or may not be justified but we then have to consider her position. I would have thought, gentlemen, that it might be worthwhile having a look at that threshold issue of what Dr R says about commencing it. If he plans to have some time with the children either at his parent's home or [Z]’s home, in accordance with her recommendations, it is suggested that start on a daily basis -- -- --
d) At T6.19-25 where the following is said by His Honour: “I would have thought, gentlemen that it might be worthwhile having a look at that threshold issue of what Dr R says about commencing it. If he plans to have some time with the children either at his parent's home or [Z]’s home, in accordance with her recommendations, it is suggested that start on a daily basis -- -- --.” Mr Levy: “yes.” His Honour: “---- the true and get the children back into this re-engagement on a proper way with their father and then gradually moved out to perhaps and overnight from Saturday to Sunday on alternate weekends or whatever.”
Again this exchange is in the course of the extended preliminary discussion between the bench and the bar table as to issues thrown up by the proceedings.
The Court continued on to say:
--- and then it might be that if you can contemplate that happening for a period and allow everybody to have some confidence in that arrangement, it might be worthwhile then seeing whether in fact after a period we then ask for a family report to see how things are going. The course there are some -- I know there are a lot of underlying issues in this, Mr Levy, that are very regrettable in terms of the interpersonal relationship -- -- and some behavioural issues during the marriage.
This comment reflected the Mother’s concern as to the Father’s alleged conduct in the presence of the children and the need to proceed cautiously.
e)At T8.25-30 we are the following exchange takes place between His Honour and the Father's counsel: “Mr Levy: I say that though, your Honour, with some caution in relation to the behaviour that has been portrayed by the Mother in relation to the control over my clients relationship with the children. His Honour: I wouldn't be envisaging any orders to give her any control of other than her compliance with the orders that are either agreed upon or I make.”
Once again this exchange takes place during the course of the extended discussion between the bench and the bar table as to the issues thrown up by the proceedings. The Court asserts its authority to frame orders and its expectation that they will be complied with.
f)At T8.45 where His Honour then concludes: “It’s really, effectively a controlled restoration of a proper relationship now that he is back here.”
Again these words form a small part of the lengthy exchange between the bench and bar table prior to the commencement of evidence. It is of note that preceding the words complained of is the following exchange:
Mr Levy: it's certainly a case where it, Your Honour, I can see the justification for taking some small steps initially.”
His Honour: Yes
Mr Levy: I'd say that though, Your Honour, with some caution in relation to the behaviour that has been portrayed by the Mother in relation to her control over my clients relationship with the children.
His Honour: I wouldn't it be envisaging any orders to give her any control other than her compliance with the orders that are either agreed upon or I make. If the order is that he spends some time for a period of time on a day basis supervised by his parents or [Z], that's what's going to happen and the Mother has no control about that. I noticed there was an issue about the Mother requiring the Father to have supervised time with Dial an Angel at one stage. That appeared to be quite inappropriate and those -- that type of import is not -- it's counter-productive, it doesn't help the children and creates a very artificial circumstances -- -- -- But we do need to tread carefully and I think Mr Tregilgas accepts that view and I think you accept that view.
Mr Levy: I accept it----
The words complained of are simply an observation flowing from the previous exchange between the bench and the bar table.
g)At T9.7 where His Honour then concludes: “but there is a lot of underlying speed humps that had been in this relationship between the parties, I think, that we need to smooth out so that these -- hopefully they will disappear. Look, I'm sure that the Mother has had regard to what the report is and the recommendations, and she would have to be aware but once we are satisfied that your client has some permanent circumstances, either in Sydney or on the Central Coast, that I would expect that these children will move slowly but certainly not tardily towards a normal type of relationship with him."
This comment by the Court follows the exchange referred to in f) above and the following comment by counsel for the Father:
Mr Levy: Your Honour, I accept it to a point but I also say that there -- that the Court is able to craft a set of orders which will go beyond the initial short steps, particularly in circumstances where my client has complied with the initial recommendations of Dr R, even before he walks through the door of the Court. So, Your Honour has a sign of commitment and good faith from him in relation to the acceptance of Dr R's recommendations.
Following the words complained of above the Court then observed:
His Honour: ----And if he passes all the – and there’s no speed humps when that happens, hopefully by the time that we have that happening there might be a prospect of him having the children at a remote place like Sydney, if he is living in Sydney, on weekends and school holidays.
h)At T11.37 where His Honour advises my then counsel: His Honour: Because I think, Mr Tregilgas, one of the issues – and I think, as Mr Levy quite rightly acknowledged, that there has been a bit of a vice-like grip from your client in terms of the children, but in her mind that has been warranted, and I think that Dr R’s recommendations appears that if it’s a controlled arrangement that gradually transitions the children to a more sensible relationship with their Father particularly he is here and that engenders some confidence in your client, then we could get to the next step of perhaps after a period of time having them engage with a Family Consultant for the purposes of an update report as to his present circumstances, observations with the children, have a discussion with mum.
It is appropriate to provide the proper context for the comment by the Court referred to above. Prior thereto the following exchange had taken place with the Mother’s counsel:
Mr Tregilgas: Your Honour, there are only two matters I was going to raise with your Honour. I hear what Your Honour has said in relation to how this matter may proceed today. If the matter proceeded to a – I will call it an ordinary defended hearing, Your Honour – that is that the parties and their respective witnesses gave evidence, the matter would take longer than the allocated two days. If – I think if the Mother and the Father were cross-examined in detail in relation to the all the matters that are currently on the table, their cross-examination would take at least a day each, I would have thought.
Secondly, Your Honour, I'm told by my instructing solicitor today, as I understand this communication, that Dr R is only available today. That wouldn’t be appropriate on our side. I'm not sure about the Father’s side, but we would have wanted to have tested the Father in – subject to what to what Your Honour has already said about the case, we would have wanted to have tested the Father in cross-examination about some matters that we say need to go before Dr R following that testing in cross-examination. So whether some other arrangements can be made we can do that during a period of grace that Your Honour gives us to see what else we can do in relation to the proceedings.
His Honour: Yes. I would certainly be interested in seeing whether in fact you can reach an agreement, that perhaps this matter probably needs to be treated a little bit more cautiously than perhaps the Applicant Father’s case suggests in that there should be a period where these recommendations of Dr R are given some time to settle in and to be put in place.
Mr Tregilgas: Yes.”
Then following the exchange relied on by the Mother the following exchange with the Mother’s counsel:
Mr Tregilgas: Yes.
His Honour: And I would be happy to, in fact, if you wanted to make some orders that did that today, to in fact make an order for the report today but that it ...the commencement of the engagement of that not commence for some months hereafter.
Mr Tregilgas: Yes.
His Honour: And then the matter come back or the matter then – you know, you have a look at the report and see whether you can sort something out.
Mr Tregilgas: Yes.
His Honour: One of the difficulties, I suppose, is that whether he’s going to live on the Central Coast or lives in Sydney, but of course, there’s also now no other person in his household, I understand, if he’s in Sydney, that can assist in terms of being present at relevant times.
Mr Tregilgas: Yes.
His Honour: So it appears that his daughter [Z] who seems to have had some significant relationship at least with [X] ‑ ‑ ‑
Mr Tregilgas: Yes.
His Honour: ‑ ‑ ‑ because she was part of the household until shortly before separation – or the Paternal Grandparents might be just the presence that your client would see appropriate for a period of time.
Mr Tregilgas: Yes.”
i)At T12.13 where His Honour again advises my then counsel: His Honour: But once the children are able to have time with the Father absent this unusual and artificial supervised contact period so that they then start to develop a more normal relationship, your client is going to be able to gauge a lot better how she perceives the children are going ‑ ‑ ‑.
Again it must be noted that this forms part of the discussion as between the bench and the bar table as to what prospective arrangements might be made in relation to the children's time with their Father during the period of the adjournment contemplated by the parties.
The following exchange then took place:
Mr Tregilgas: Yes, Your Honour.
His Honour: ‑ ‑ ‑ to communicate that to the Consultant. So I'm happy to give a little bit of time. I understand that we have – if it does run to the full extent, although bearing in mind there is significant evidence that’s in dispute between the parties ‑ ‑ ‑
Mr Tregilgas: Yes.
His Honour: ‑ ‑ ‑ as to the background, I would be more mindful to look at where we’re at now bearing in mind that seems to be a lot of that has been distilled and weighed by Dr R and moved forward.
Mr Tregilgas: Yes.
His Honour: But I would really like to see something move forward with these children to get them in a much more normal situation as quickly as possible, but, as I said, cautiously.
Mr Tregilgas: Yes, I hear what Your Honour says. Your Honour, I think in terms of that, Your Honour, I think we would need an hour to do anything productive. I think both of these parties have – the material would be that this has been a complex and quite long separation since January of 2009 ‑ ‑ ‑
His Honour: Yes, there’s no doubt.
Mr Tregilgas: ‑ ‑ ‑ where there has been, as you would see from the material, substantial issues between the parties, whether they're relevant or not probably doesn’t matter in terms of the parties.
His Honour: Well, I think the remoteness of the Father over the last couple of years has been a significant issue, unfortunately, for whatever reason he went to WA but I suppose he’s back, hopefully on a permanent basis because we couldn’t have him come in and out of the children’s lives again, and provided there’s some certainty from your client that it’s going to be an arrangement where he will be able to fulfil the obligations in relation to this cautious development then you might have something to build on.
Mr Tregilgas: Yes. Yes.
j)At T13.46 where His Honour comments to the Father's counsel: It has something probably to do with the vice-like grip, I would think, Mr Levy ‑ ‑ ‑.
Regrettably the Mother does not continue to include the remainder of the court's remarks which were interrupted by the Father's counsel. The court continued on to say:
His Honour: ‑ ‑ ‑ and the relaxation of that with a realisation of confidence and knowledge as to that the children are in good circumstances when in the Father’s presence, and I think that’s my – my view of looking at the material is that’s a very significant factor in the background, and if it can be done very gently and cautiously and productively, other than simply using a sledgehammer and simply saying, well, the kids are off to Sydney every weekend for three nights, I think it’s a better approach.
and the following exchange then ensued:
Mr Levy: That’s not what my minute – that’s why I hasten to add it’s not what the minute of order says.
His Honour: I understand that. Yes, I understand that. You’ve got a three-month period in your minutes, but ‑ ‑ ‑
Mr Levy: I do.
His Honour: ‑ ‑ ‑ but it might be a little bit – you know, I would like to see some daytime happen and regularly over a period of couple of months. It might be that the parties agree that it be on each weekend, one day each weekend, and then when the overnights start, you might have one day on a weekend and then an overnight on the other weekend for a month or so to see how that goes, and if that works well then I would think the Mother would have some justification in feeling confident that perhaps things are back on the right track.
Mr Levy: Is Your Honour thinking a review by a Family Consultant or a review by Dr R?
His Honour: Well, it’s a matter for the parties. I suppose the difficulty is Dr R costs them some money.
Mr Levy: She does.
His Honour: Although she certainly, I would think – I would think she would probably be the more appropriate reviewer provided – and if it’s an update – a short update then it wouldn’t probably wouldn’t be as expensive as a full report. If the parties have the wherewithal for that then – and of course I think both of them are in employment. I'm not sure whether you count your client’s present circumstances now but no doubt I will hear evidence about that if necessary.”
k)At T17.1 where His Honour, in referring to the recommendations of Dr R's report, concludes that: Well, I think that’s inherit in the recommendations that she has made, that there would be a start of overnight time.
Prior there to the following exchange took place after the proceedings had been stood down to facilitate discussions between the parties as to interim arrangements to be implemented during the extended adjournment:
Mr Levy: Your Honour, unfortunately, there is no agreement in relation to any interim arrangement as Your Honour foreshadowed. Can I say this though, from my client’s point of view, he would be more than happy for Your Honour to make an interim determination today and he takes Your Honour’s point in relation to the recommendations made by Dr R and the implicit value of having Dr R prepare an updated report reflecting the current arrangement. With this proviso, in my submission, for Dr R’s updated report to be meaningful there would need to be an implementation of some overnight time for my client prior to the parties and the children undertaking the further interviews with Dr R, because if that didn’t happen all that really would be occurring would be, albeit with greater frequency, a continuation of the existing arrangement under the current interim orders which only provide for daytime time for my client with the children.”
and thereafter the following exchange ensued:
Mr Levy: But I thought I should just say that ‑ ‑ ‑
His Honour: Yes.
Mr Levy: ‑ ‑ ‑ out loud, your Honour, so that – because I think it has – it’s important if we’re going to go down that track that what we get from Dr R is a quite full and meaningful report which addresses that question of the continuation and, we would say, extension of my client’s overnight time with the children. The risk if it’s daytime only is that Dr R still won't be in a position to do that and so the whole exercise becomes nebulous.
His Honour: Well, it was in my contemplation there would not be a commencement of overnight time.
Mr Levy: No, I just thought I should put my position on the record, Your Honour.
His Honour: Yes. Well, that can either be an agreement between the parties that we deal with it, essentially, as an interim application today, or you can grind away for today and tomorrow and then make some short submissions about interim orders at the end of a day and half. Probably at that stage it would be none the wiser.
Mr Levy: And that’s why we – that’s why I'm instructed to adopt the course that I've foreshadowed because we anticipate that Your Honour may be in no better position ‑ ‑ ‑
His Honour: But, Mr Levy ‑ ‑ ‑
Mr Levy: ‑ ‑ ‑ at the end of tomorrow than you are now.
His Honour: But, Mr Levy, it would be my – at least in my present contemplation, not having heard any of the evidence, that if there was to be type of interim arrangement that overnight time would still be spent at the Paternal Grandparents’ home or in the presence of [Z].
Mr Levy: And that would be consented to.
His Honour: Yes, because I just wanted – my view is that probably those protective measures need to be in place to address the Mother’s concern.
Mr Levy: Yes.
His Honour: And so that to some extent other parties are available also that Dr R can speak to in terms of what has happened over, say, the next four or five months before the matter comes back.
Again this discussion is between the bench and the bar table at a preliminary stage of the proceedings and before the commencement of evidence in circumstances where the parties were endeavouring, albeit ultimately unsuccessfully to reach an agreement about interim arrangements for the children.
l) At T19.7 where His Honour comments to the Father's counsel about the actual operation and anticipated results of the interim orders His Honour is contemplating: But I would see that going for a period before there was some overnight night, but as I said, that would be still under the protective, sort of, umbrella I suppose. I suppose using “protective” is a bit of a harsh word, but just under that supervised arrangement foreshadowed by
Dr R until such time as they go back to have a chat to her about how things are developing.This observation by the Court follows a lengthy exchange with counsel for the mother as follows:
Mr Tregilgas: Well, Your Honour, unfortunately our position is that we would prefer to commence a defended hearing. The difficulty of course with that, Your Honour, is that we probably won't finish within the time.
His Honour: And then I will making interim orders at the end of the part-heard.
Mr Tregilgas: Sorry, Your Honour?
His Honour: I would propose to make interim orders.
Mr Tregilgas: Yes.
His Honour: Look, I can't see why this matter should effectively remain in a state of hiatus ‑ ‑ ‑
Mr Tregilgas: Yes.
His Honour: ‑ ‑ ‑ for another four or five months, when quite clearly at least – the threshold course I don't think is in much dispute between the parties. It’s where we ultimately end up, I think, is the big issue, and I would hate to see that – this unsatisfactory situation of the current orders continuing until, say, April, if the matter resumes at that stage ‑ ‑ ‑
Mr Tregilgas: Yes.
His Honour: ‑ ‑ ‑ when we’ve got a lot of time now available with the Father living in fairly close proximity.
Mr Tregilgas: Yes.
His Honour: And, of course, we’ve got the Christmas holidays coming up ‑ ‑ ‑
Mr Tregilgas: We understand that, Your Honour.
His Honour: ‑ ‑ ‑ where he can spend – the eldest child’s on school holidays starting late December.
Mr Tregilgas: Yes.
His Honour: And there’s plenty of time. If he’s not working, then he’s available.
Mr Tregilgas: Yes.
His Honour: But he can certainly have some significant dates on contact with the kids.
Mr Tregilgas: Yes.
The Interlocutory Judgment
The Mother also makes complaints as to matters set out in the Court’s reasons for judgement delivered on the 29th of November 2011.
It is of note that the Mother has not sought to appeal that judgement within time and that her complaints in relation to same only come to light some six months thereafter.
It is the Court’s view that if the Mother had significant complaint in relation to be reasons for judgement and the orders made, it was open to her to appeal that decision and in the context of that appeal raise the various concerns that she relies upon in the context of the present application as to the Court’s reasons for judgment for the appellate Court’s consideration.
As the High Court observed in British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 (9 February 2011):
A claim of apprehended bias succeeded where a judge in interlocutory proceedings in the Family Court said that he would not accept the evidence of either the Husband or the Wife unless it were corroborated. In that case, R v Watson; Ex parte Armstrong, Angliss was quoted by Barwick CJ, Gibbs, Stephen and Mason JJ. Their Honours essayed a "fair-minded person" test:
It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.
The judge's statement in Watson precluded the possibility of his acceptance of the uncorroborated evidence of either party on its merits. That situation differs materially from a case such as the present in which a judge makes an interlocutory finding expressly acknowledging the possibility that there might be a different outcome on different evidence or after a full trial.
As this Court observed in its interlocutory reasons for judgment:
In SS & AH[2010] FamCAFC 13 the Full Court of the Family Court said as follows:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed, at paragraph [88] of their reasons, the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.… The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In considering the Mother’s complaints as to the impugned reasons for judgment they fall within circumstance acknowledged by the Court in Watson (supra): “in which a judge makes an interlocutory finding expressly acknowledging the possibility that there might be a different outcome on different evidence or after a full trial”.
This Court’s reasons were delivered in the context of prior discussion between the Court and both counsel as to the parties position in relation to further interim orders before the commencement of evidence and thereafter detailed submissions at the conclusion of day two of the hearing.
As is noted later in these reasons In Re JRL; ex parte CJL (1986) 161 CLR 342 at 371, Dawson J considered that “… the whole of the circumstances must be considered and such a conclusion must be firmly established and should not be reached lightly”. His Honour went on (at 372) to say:
Moreover, the whole of the circumstances are not confined to the conduct said to afford reasonable grounds for suspecting a lack of impartiality. They include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias.
It is important to note the context within which the interlocutory judgment was delivered and indeed the orders actually made. Orders made provided for continuing supervised time for the children with the Father and during the extended adjournment the provision of a further Single Expert’s Report.
In Southern Equities Corporation Ltd v. Bond (2000) 78 SASR 339 the Full Court dealt with findings made by a trial judge on an interlocutory application judgment. By majority the Full Court held that the judge’s findings were expressed in such a conclusive way as to give rise to a reasonable apprehension that following a trial those views would not change.
In this matter the reasonable lay observer could not reasonably come to such a conclusion.
The Law: Apprehended Bias
The apprehension of bias principle was recently the matter of consideration by the Full Court of the Family Court in Strahan & Strahan (Disqualification) (2009) FLC 93-414.
In Strahan the Full Court, per May, Boland and Thackray JJ, determined that the applicable law for applications such as this to be as follows, at pp.83,688 - 83,691:
3. The law concerning disqualification on account of apprehended bias is well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) held 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 (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
...
The principle to be applied
19. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21. It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22. The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23. Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
24. In Webb v The Queen, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference.
4. In the earlier decision of Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492–493:
10. The disposition of this appeal depends upon the application of principles which are well established and which neither party disputed. The contention was that there had been a departure from those principles which the Full Court of the Family Court had wrongly failed to correct, thus calling for the intervention of this Court, if only to emphasise the importance of intermediate Courts applying these principles. In these circumstances it is neither necessary nor appropriate to undertake any detailed analysis of the principles or their basis.
11. ... It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. [original emphasis]
12. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’.
13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case’. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”
(footnotes omitted) (emphasis added)
5. It will be noted that the plurality in Johnson considered it unnecessary to undertake a detailed analysis of the principles relating to apprehended bias, preferring to rely on the test of ‘whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.’ The plurality in Ebner articulated a two step process to be used in applying that test in individual cases. The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires 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.
6. In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. This point was firmly made by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342. Given the importance of the proposition, and the fact that Strickland J cited it in his reasons, we propose to set out what Mason J said at 352:
‘It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw
Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.’
More recently this issue was discussed by Ryan J. in Sheldon & Weir (No 2) [2010] FamCA 449 commencing at [23]:
23.In Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 the High Court determined a series of appeals which concerned allegations of bias by the then Minister for Immigration & Multicultural Affairs. In the course of their deliberations their Honours described what is meant by bias in the judicial and administrative setting. Hayne J, with whom Gleeson CJ and Gummow J agreed, said at par 183:
… It is necessary to consider more closely what is meant by “bias” and “apprehension of bias”. “Bias” is used to indicate some preponderating disposition or tendency, a “propensity; predisposition towards; predilection; prejudice”. It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is “anything which turns a man to a particular course, or gives the direction to his measure.
24.Hayne J explained that the development and application of the reasonable apprehension of bias test turned what would otherwise have been a wholly subjective inquiry into one which is objective. Hayne J said:
185.Saying that a decision maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
186.Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that [R v London County Council; re Empire Theatre (1894) 71 LT 638 at 639 per Charles J]:
… preconceived opinions – though it is unfortunate that a judge should have any – do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded [emphasis per Hayne J].
Allegations of apprehended bias through prejudgment are often dealt with similarly (see, for example Johnson v Johnson (2000) 174 ALR 655 at 658-9)”
25.In MIMA v Jia Gleeson CJ and Gummow J at par 71 gave further consideration to the word ‘bias’. At par 71 their Honours said:
Decision makers, including judicial decision makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
26.Throughout MIMA v Jia one sees consideration given to the importance of the context in which the decision maker is to carry out his or her task. It was explained that rules developed in the context of judicial decision making would not automatically apply, for example, to administrative decisions. The rules, processes and legal requirements which apply to the particular decision making role are relevant. In relation to courts and judges, Hayne J explained the decision making context thus:
178.Courts in this country make decisions by procedures that are both formal and adversarial. They do so by the application of rules for decision making which, although not always defined with absolute certainty, are generally discernable before the contest is joined and are set by legislative or judicial processes which are external to the judge. The process of adjudication is generally conducted in open court. The judge must give reasons for the decision that is reached.
179.Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise. …The central task and, it may be said, the only loyalty, of the judge is to do justice according to law.
27.The Full Court in Strahan incorporated into its reasons para 12 of Johnson v Johnson. This is where 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”. This is to be undertaken in the context of ordinary judicial practice, which it was noted is a concept not fixed in time.
28.In Strahan the Full Court also incorporated para 13 of Johnson v Johnson into its reasons. This is where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ referred to the level of knowledge imputed to the hypothetical fair minded lay observer. This would include, as was made plain in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 per Mason CJ and Brennan J, the imputation that the fair-minded lay observer would have knowledge of the actual circumstances of the case. See also Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43. 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.
29.In a similar vein 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.
Waiver
In Vakauta v Kelly (1989) 167 CLR 568 it was put beyond doubt that a litigant who was aware of circumstances which would give rise to an objection to the constitution of the Court but who failed to object is taken to have waived his or her right to do so. In that judgment at page 572 Brennan, Deane and Gaudron JJ explained the rationale for the waiver principle. Relevantly, their Honours said:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias, which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
As was observed by the High Court in Smits v. Roach (2005) HCA 36 at [46 ] – [48]:
The adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel, and that counsel has a wide discretion as to the manner in which proceedings are conducted. The width of that discretion is reinforced by the role of the barrister as an officer of the Court, by the barrister's paramount duty to the Court, and by the public interest in the efficiency and finality of the judicial processes. This was civil litigation. If Mr Lindsay had failed to object to inadmissible evidence in the course of the trial, the appellants would have been bound by the consequences, and there would have been no enquiry by an appellate court as to whether that had occurred for a good reason, or with the approval of the clients. Indeed, such an enquiry would normally be impossible. Similarly, if Mr Lindsay had decided not to pursue a certain line of argument, or press a possible point of law, the appellants could not have complained to an appellate court that he had failed to consult them about the matter. The respondents were not at risk of having a favourable decision set aside on the ground that, in some aspect (perhaps some very important aspect) of the conduct of the case, Mr Lindsay was acting without express instructions from his clients. That was because, in conducting the case on behalf of his clients, Mr Lindsay was exercising wide and independent discretion. If it were otherwise, any judgment in a civil case would be at risk of being set aside on the ground that counsel had acted in excess of authority, and the appellate process would be one of endless re-litigation of contested issues…
…It cannot make a difference, as far as the legal consequences for the respondents are concerned, that the case is one of omission by Mr Lindsay. In the course of the litigation, Mr Lindsay's conduct included what he did not do as much as what he did. Failure to object to evidence or to pursue a particular line of argument, may, from one point of view, be an omission, but it is part of the conduct of the case. Nor is it possible to distinguish between the failure to object considered in Vakauta v Kelly, where the potentially disqualifying conduct occurred in Court, and the failure to object in the present case, where there was a potentially disqualifying circumstance known to counsel. Indeed, the case illustrates the futility of endeavouring to assign an omission by counsel to either a particular time or a particular place.”
At all times the Mother was represented by experienced counsel. No objection was made on her behalf. Many months elapsed until this application was made. That in itself reflects upon the substance of the Mother’s objections in so far as any logical connection in terms of the test could have been made on the day of hearing in the mind at that time of the “lay observer” possessing the requisite qualities.
Discussion
The substance of the Mother's complaints are set out above. The question is whether 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 test of 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.
[72] The references in JRL to the phrase "firmly established" in the joint reasons of all seven Justices of this Court in Angliss and to the subsequent authorities is important. BATAS presented its argument to Judge Curtis and to this Court on the false footing that "the threshold of apprehended bias is very low". For that proposition BATAS relied upon a remark by Spigelman CJ in McGovern v Ku-Ring-Gai Council. However, the expression "low threshold" was immediately qualified by the statement that "an issue of some specificity" is presented in the identification of that which is said to constitute lack of "impartiality" or "prejudice". Nevertheless, references to thresholds in this context are apt to distract attention from the force of what was said by Mason J in JRL and should not be made.” (Footnotes omitted)
The Context of the Proceedings
As Ryan J. observed in Sheldon & Weir (No.2) [2010] FamCA 449: it is important to establish the context in which the hearing was 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 Family Law Act 1975. 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 Parts 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:
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 principles 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:
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 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.
Note: For example, the Court may choose to use this power if the Court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
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 considers that each of these matters is relevant to the consideration of the Mother’s application and supports its dismissal.
As Kirby J. said in Johnson v Johnson (2000) 201 CLR 488:
“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)
This case is one involving lengthy parenting proceedings where there are allegations of misconduct as against the Father; and, although the various matters referred to above are the subject of complaint by the Mother, it cannot be said that they mean the case will be approached other than with an unprejudiced mind, noting in particular that the matter has already proceeded for several days.
In Re JRL; ex parte CJL (1986) 161 CLR 342 at 371, Dawson J considered that “… the whole of the circumstances must be considered and such a conclusion must be firmly established and should not be reached lightly”.
His Honour went on (at 372) to say:
Moreover, the whole of the circumstances are not confined to the conduct said to afford reasonable grounds for suspecting a lack of impartiality. They include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias.
O’Ryan J in Brown & Brown [2007] FamCA 493 considered aspects of the decision of the High Court of Australia in Ebner v Official Trustee in Bankruptcy (supra)and said at [206]:
Whilst a concurrent situation has not arisen in this case, this passage serves to highlight that public interest considerations, which in this case involve things such as the time and money which would be incurred by another judge familiarising him/herself with the matter (especially in light of its complication and length), the implications for the administration of justice as a result of potential perceptions of ‘judge shopping’ (especially as I have already made final orders adverse to one party) and so on, are significantly relevant to the determination of apprehension of bias problems.
In the context of a hearing under Part VII of the Act and in considering the full context of the robust discourse between the bench and both counsel prior to the commencement of evidence and over an extended time period particularly as to interlocutory orders, where after submissions interim orders were made continuing the Father’s time with the children under supervision, the Court is not satisfied that the fair minded lay observer possessing the requisite qualities and observing a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial could conclude there to be a “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 application for recusal is dismissed.
Notwithstanding the above the Court is of the view that in circumstances where at the time of initial hearing the Mother was represented by competent counsel and that a period of almost 6 months had elapsed before the present application was brought before the Court that the court otherwise would have dismissed the present application on the ground of waiver.
The Mother has adduced no evidence to support the order sought by her for a discharge of the orders made on an interlocutory basis. She has, as observed above, failed to exercise her right to appeal.
In the context of her present application there is no room for her to make complaint about the reasons for interlocutory judgement or the orders made.
Accordingly her application to discharge those orders must also be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Foster FM
Date: 20 June 2012
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