Sackville and Hale and Anor

[2015] FamCA 796

FAMILY COURT OF AUSTRALIA

SACKVILLE & HALE & ANOR [2015] FamCA 796

FAMILY LAW – COURTS AND JUDGES – Disqualification – In the context of child-related proceedings conducted under Div 12A of Part VII of the Family Law Act 1975 – Principles considered and applied – Application refused.

Family Law Act 1975 (Cth) Part VII, Div 12A; ss 69ZN, 69ZP, 69ZX.

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337.
EL & ML and DM [2003] FamCA 1449.
Johnson v Johnson [2000] HCA 48; 201 CLR 488.
U v U [2002] HCA 36; 211 CLR 238.

APPLICANT: Mr Sackville

1st RESPONDENT: Ms Hale

2nd RESPONDENT:	Ms B Hale
INDEPENDENT CHILDREN’S LAWYER	Ms Lioumis

FILE NUMBER: PAC 2726 of 2012

DATE DELIVERED: 28 September 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 13, 14 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Morley

SOLICITOR FOR THE APPLICANT: Shaddicks Lawyers

SOLICITOR FOR THE 1ST RESPONDENT: In person

COUNSEL FOR THE 2ND RESPONDENT: Ms De Vere

SOLICITOR FOR THE 2ND RESPONDENT: Smythe Wozniak

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The application that I recuse myself from further hearing of the matter is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sackville & Hale and Anor 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: PAC 2726  of 2012

Mr Sackville

Applicant

And

Ms Hale
First Respondent

And

Ms B Hale 

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On the first day parenting proceedings in relation to two young boys had been listed for trial there were a number of interrelated issues that were raised by me prior to the commencement of hearing any evidence. The legal representative for one of the parties, the maternal grandmother, indicated on that day that an application may be made for me to disqualify myself on the basis of apprehended bias. This application was then made on the second day of the trial.

2. The application is based on the contention that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the competing parenting applications before me on the basis that I have prejudged the matter and showed bias towards the father’s application. This judgment is concerned only with that application.

Background

1. These are the uncontroversial facts gleaned from the respective outline of case documents unless otherwise indicated.

2. Mr Sackville, who is 26, and Ms Hale, who is 25, are the parents of the two young boys, C who is five and D who is almost four. Although it is not clear when the parents’ relationship began, they commenced living together in August 2008. Their first child, C, was born in 2009 and D was born in 2011.

3. Although there also appears to be a dispute about the date of separation of the parents, it is common ground that after separation the children continued living with their mother and maternal grandmother at the grandmother’s home. The maternal grandmother played a significant role in the care of the children.

4. According to the father’s affidavit, in December 2011 the parents reached agreement following mediation that the children would continue to live with their mother and spend one hour each Saturday at a park with him. The father says he was dissatisfied with this arrangement.

5. The father commenced proceedings in June 2012 seeking orders that the parents share parental responsibility for the children, the children live with the mother and spend time with him each alternate weekend and during holidays and special days on an interim and final basis.

6. On 6 December 2012, the parties reached agreement in relation to interim orders which provided that the parents share parental responsibility for the children, that they live with the mother and spend time with the father for some specific periods around Christmas and New Year. Other orders were made including the appointment of an Independent Children’s Lawyer (ICL).

7. According to the maternal grandmother’s affidavit, the mother and children moved to the far north coast of New South Wales in late December 2012.

8. From 9 February 2013, under the interim orders, the father’s time was to occur every third Saturday for four hours at a “dads and kids drop-in centre” in Western Sydney. The mother was to remain in the general vicinity of the children during these periods of time with the father but was to remain out of sight of the children.

9. On 25 May 2013, after the father spent time with the children at the drop-in centre the parents agreed the father could have additional time with the children at a nearby park. The father drove to the park with his grandfather and partner and the mother and children arrived separately. Immediately after arriving at the park the father was the victim of a serious attack in the presence of the various family members including the children. The assailant was unknown to the father. The father was taken to hospital and had surgery for six wounds to various parts of his body including his head.

10. A few days later in E Town the mother was charged in respect of her alleged involvement in the incident and another matter. She was refused bail and has remained in custody since that date. The current charges against the mother are two counts of conspiracy to murder the father and her criminal trial is anticipated to commence at the beginning of December 2015.

11. When the mother was arrested the children were taken into the care of Department of Family and Community Services and that Department placed them with the father’s partner as the father was at that stage still in hospital. After his discharge from hospital the children lived with the father, his partner and his partner’s father. Subsequently the father and his partner have moved to their own premises with the children.

12. On 18 June 2013, the father filed an Application in a Case seeking orders that he have sole parental responsibility for the children and that the children live with him. The orders were made in the terms sought by the father on 1 July as well as an order permitting the maternal grandmother to intervene in the proceedings.

13. On 3 September 2013 orders were made by consent in relation to the maternal grandmother spending time with the children. This time was ordered to occur in a supervised setting at a contact centre each alternate week for two hours and the maternal grandmother had liberty to relist the matter in relation to unsupervised time on an interim basis after attending at least four occasions of supervised time. As I understand it, the maternal grandmother has not ever relisted the matter for this purpose.

14. At around the same time as the September 2013 orders, according to the father’s affidavit, C started receiving some form of therapy from a clinical psychologist in respect of the trauma associated with having witnessed the violent attack upon his father. Later D also started therapy with the psychologist.

15. In March 2014 a family consultant interviewed various family members for the purposes of preparation of a Family Report. The Family Report was released in August 2014.

16. In 2014 the father and his partner had a son who is now 14 months old.

17. The maternal grandmother spent time with the children pursuant to the September 2013 orders until 1 August 2014. From that date the father did not make the children available to the maternal grandmother at the contact centre.  On 26 August 2014 the father’s solicitors advised the maternal grandmother’s solicitors that they had instructions to apply to the Court for a suspension of the contact orders and that police were investigating a complaint against the maternal grandmother.

18. In his trial affidavit the father says that he made the decision to cease making the children available to the maternal grandmother due to the content of a report he obtained from the clinical psychologist who had been engaged with the children since September 2013. However, the father had not at any time made application for the orders relating to the children’s time with their grandmother to be suspended.

19. In his trial affidavit the father’s position was that he now (in July 2015) did not oppose the children spending time with the maternal grandmother so long as the time was introduced gradually in a safe environment.

20. As at the date of the parenting hearing was due to commence the children spent time with other members of the extended maternal family such as the maternal grandfather (who is separated from the maternal grandmother) reasonably regularly. This was organised by arrangement with the father.

21. The maternal grandmother commenced contravention proceedings on 18 November 2014. She withdrew her contravention application in March 2015 when it became clear that final trial dates could be allocated in the near future. Trial directions were made for the filing of documents by all parties and the matter was listed for trial to commence on 13 July 2015.

The proceedings – context of the application

1. On 13 July 2015, the date the trial was to commence, the mother appeared in custody in person, representing herself. She had not filed a Response or any affidavit in accordance with the trial directions. Her proposal in relation to the children was unknown.

2. The father was represented by counsel. In his outline of case document the father proposed two conflicting future parenting arrangements though they are not expressed to be in the alternate. First, it was noted that the father relied upon an Amended Initiating Application filed 5 June 2013 in which he sought orders that he have sole responsibility for the children, that the children live with him and that the children spend no time with the mother. No other orders for time with any other person including the maternal grandmother were sought. Under the heading “orders sought by the applicant father” in the outline of case,  in addition to the orders sought in his Amended Initiating Application the father also sought an order that the children spend time with their maternal grandmother each alternate Sunday from 9am until 5pm and for two consecutive nights in each school holiday period.

3. The proposal of the maternal grandmother set out in her outline of case document is also contradictory.  In her Response to the father’s Initiating Application, filed on 11 September 2013, she seeks that she and the father equally share parental responsibility for the children, that the children live with her, that the children’s time with the mother be at her discretion and that the father spend designated time with the children including each alternate weekend from Friday afternoon to Sunday afternoon, for four periods of one week per year in the school holidays and on Christmas Day. In her outline of case document the grandmother’s proposal is said to be that set out in an unspecified Application in a Case with the primary proposal being in the same terms as her Response. In the alternate, if those orders were not made and the children were to live with the father, she proposes that she and the father equally share parental responsibility for the children and that she spend time with the children from after school Friday to before school Monday each alternate weekend, for four periods of seven days each year in the holidays and on special days. In this alternate proposal she seeks other ancillary orders including that she not bring the children in to contact with the mother.

4. When the matter was first called on, I understood that the parties had been engaged in negotiations. I requested that the ICL inform me of the progress of the negotiations. I also indicated that I had a number of matters that I wished to raise. The ICL said that she and the legal representatives of the father and the maternal grandmother were actively involved in trying to resolve the matter and that she was confident that if they were given further time it would be productive. The mother had not been included in the discussions at that stage.

5. When I informed the mother that the Court had not received any Response or affidavits from her and so it appeared that she was not seeking any orders, the mother said that she was not aware until that day that she could have filed a Response. She said that she supported the orders sought by the maternal grandmother (though it appeared that she did not correctly understand the maternal grandmother’s position) but said that she also wanted “to make comment on some things”. The mother claimed that she had not received any “paperwork” in the matter, even though she had filed a Notice of Address for Service at the correctional facility in which she was incarcerated, and the Court’s orders had been posted to that address.

6. I informed the parties that on the basis of their respective outline of case documents in my view there were a number of significant issues which did not appear to have been addressed in the affidavits, thought I noted that these deficiencies may be remedied by the tendering of documents produced on subpoena. I expressed concern that in the context of ongoing discussion from which consensus may be reached, I may not able to form the view that consent orders proposed would be in the best interests of the children because of the deficiencies in the evidence. In particular I raised the following matters:-

The father’s developmental disability

1. Two of the outline of case documents refer to the father’s “developmental delay” or “limited and compromised capacity” and in the Family Report the father is reported as having a “developmental delay”. The source of this information in the Family Report appears to have come from a paternal aunt reporting that the father was in an IM (mild intellectual disability) class at school. The father’s counsel said that he understood that the father’s delay was simply an assertion made by others and he would not be putting forward any evidence in relation to this asserted disability. It was then drawn to my attention that in the Child Responsive Program Memorandum it was recorded that the father himself had told the family consultant that he was in an IM class at school. In these circumstances I indicated that evidence in relation to the extent of this disability may be required.  

Evidence from children’s treating psychologist

1. As I understood it, the issue of psychological harm to the children appeared to be the basis for the father unilaterally taking steps to discontinue the maternal grandmother’s time with them. A psychological report from their treating psychologist was attached to the father’s affidavit. In addition to concerns about the form in which that evidence comes before the Court I agreed with the maternal grandmother’s position that at the very least the psychologist would be needed for cross-examination in the proceedings.

2. The father’s counsel agreed that I had accurately described the tenor of the father’s evidence. However, his counsel then said that the father was no longer relying upon allegations of harm by the maternal grandmother and would not be seeking to raise them in the proceedings. It was noted that he had not filed a Notice of Risk in relation to these allegations. In my view the question of psychological harm to the children arising from time with the mother and her relatives may nonetheless still be a live issue in the proceedings.

Family Report

1. I also had some concerns about the family consultant’s expertise in the particularly unusual circumstances in this case where significant harm is alleged to have been brought about by one parent against the other. The issue of the impact upon the children of having a relationship with the parent perpetrator and/or other extended family members was obviously a live one. It is to be remembered that the primary proposal in the maternal grandmother’s proposed orders is that “the children’s time with the respondent mother be at the discretion of the maternal grandmother” and that the mother supported this proposal.

2. Although the Family Report was at this stage untested, a number of issues had been raised by the family consultant in her report about the children’s ongoing relationship with a parent perpetrator and other members of that parent’s family.

3. At the time of his interview the father told the family consultant that he was seeking the maternal grandmother’s application be dismissed but was unsure of what he was seeking in relation to the children’s time with their mother and maternal grandmother and under what conditions such time should occur. The father told the family consultant that he had always been on good terms with the maternal grandfather [who was separated from the grandmother] and saw him regularly so the children could spend time with him. At that time the father said he was “in two minds” about whether the children should spend time with the mother in jail or when and if she was released from jail. He said that C had been affected by the assault and initially had nightmares and still “brings up the bad man”. He also said that

   [C] knows that “the bad man” is in jail but “keeps on bringing up that he wants to put on a hoodie (the assailant was wearing a hoodie at the time of his attack on [the father]) and go and stab the bad man.

   The father said that when C raised this at a GP visit the doctor was shocked and concerned and referred C to counselling. The father said that the counsellor had advised that she could work with the father on telling the children about the incident and the mother’s situation in a child focused manner when it was appropriate to do so. According to the Family Report, the father’s reticence about the children spending time with their mother related to the fact that the mother had allowed C to have been present during the assault when it was occurring.

4. So far as the children’s time with the maternal grandmother is concerned, the father told the family consultant that even if she was not seeking for the children to live with her, there would be a tension between them as they had an awkward relationship. He did however say that he would have been agreeable to an informal but supervised relationship if the grandmother approached him directly. He claimed that C told him that he did not want to spend time with the maternal grandmother unless there were other adults present.

5. In relation to other signs of psychological distress in the children, the father also reported that C appeared to be masturbating at a rate that his psychologist thought was excessive for this age.

6. The mother was interviewed by the family consultant by telephone and said that she had been charged with “solicit to murder” but did not refer to the matters for which she was charged any further. The family consultant described the mother as “preoccupied with the issue of the boys commencing time with her whilst she was on remand”. The mother was of the view that there was no risk of psychological harm to the children in doing so and that they had been prevented from doing so by the father. The mother also expressed some views as to final orders and said that if she remained incarcerated the children should live with her mother. She was also angered that she had not been consulted about where the children should be placed while she was incarcerated as well as aspects of their day-to-day care.

7. In her evaluation and recommendations in the report, the family consultant says that because the mother declined under legal advice to speak about the assault on Mr Sackville:

   [it was] difficult to make any recommendations about whether the children should spend time with [Ms Hale] while she is incarcerated. This is because, although the children did not witness [Ms Hale] assault [Ms Sackville], if she did organise for him to be assaulted or killed, she has contributed to harming them in two ways; one being that they witnessed a violent assault and secondly, that it is their mother, whom they should be able to trust, who has brought harm to their father.

   In assessing the risk of harm to the children spending time with Ms Hale, the central issue is the degree of responsibility that she takes in any participation she had in the crime and the willingness to acknowledge this to the children in a child focused manner. No assessment of this could be made because she was unwilling to discuss these issues with the family consultant; therefore it is a matter for the Court to determine.

1. When interviewed by the family consultant the maternal grandmother said she had no concerns with the mother’s day-to-day care of the children but still maintained that even if the mother were to be released from jail, the children should live with her rather than the mother. The Family Report records that the maternal grandmother said this of the offences for which the mother was incarcerated:

   [Ms B Hale] declared that all [Ms Hale] was “guilty of was talking to a man” about her concerns about [Mr Sackville]. She said that [Ms Hale] had “spoken to him and ranted and raved to him” about finding [Mr Sackville] difficult to deal with and appeared to be implying that [the assailant] had unilaterally assaulted [Mr Sackville] without encouragement of [Ms Hale].

2. At the time of the interview it is recorded that the maternal grandmother was strongly of the view

   …that [the children] should visit [Ms Hale] regularly if she remained incarcerated, stating, “to me she hasn’t done anything wrong to the boys. That’s how I look at it”. When asked if her view would change if it was found that [Ms Hale] had sought for [Mr Sackville] be (sic) killed or assaulted, [Ms B Hale] maintained that she would only be concerned if the children had witnessed the incident.

   At the time of the interview the maternal grandmother said that she had not thought of what she would tell the boys of the alleged incident or how to explain their mother’s absence but would be willing to attend counselling to find out what would be in the boys’ best interest in this regard. When asked about the impact of C witnessing the incident the maternal grandmother stated “[C] saw someone hitting [Mr Sackville] as far as I know”.

3. In relation to the relationship between the maternal grandmother and the children the family consultant said the following:

   The children appeared to have a good relationship with [Ms B Hale] and to enjoy spending time with her. [Ms B Hale] appeared surprised by the family consultant’s questions about what she would say to the boys and the impact on them of the events that have unfolded. In addition, she appeared to lack insight into what it would mean for the children to change residence again to live with her and offered no substantial reason as to why this should occur. The impression given was that, although [Ms B Hale] loved and cared for the children, she had little insight into their emotional experience into what had occurred for them.

   It did not appear that [Ms B Hale] posed any risk of psychological harm to the children. [Ms B Hale] may pose a psychological risk of harm if she was to imply to the boys anything that was untrue about [Ms Hale’s] involvement in the assault on [Mr Sackville], once the facts had been established. It is a matter for the Court to determine this, as well as if [Ms B Hale] would seek to unilaterally take the children to visit with [Ms Hale] without the consent of the Court… If the Court finds that [Ms B Hale] poses no risk of psychological harm to the children…[the family consultant suggests an appropriate regime of time]

4. Central to the Court’s determination of whether it is in the best interests of the children to spend time with their mother is whether she poses a risk of harm to the children. The degree of responsibility she takes for her participation in the crime and the willingness to acknowledge this to the children in a child focused manner are described as the central issues in assessing this risk.

5. Quite apart from the fact that the mother’s alleged involvement in the assault on the father is unknown, the Family Report does not provide any guidance as to how the Court should determine whether the maternal grandmother has or may imply to the children anything that was untrue about the mother’s involvement. Similarly the report does not provide any guidance as to how the Court can determine the central issue of the degree of responsibility the mother takes in her role in the alleged crime and her willingness to acknowledge this to the children in a child focused manner. As previously noted, the interview with the mother took place over the telephone and there were no observations of her interaction with the children. The interview of the maternal grandmother and observations of her with the children took place on a day when five family members were interviewed and two observation sessions were held.

6. Without being critical in any way of the family consultant and without making any suggestion that the report is inadequate as a Family Report, I expressed concern about whether expert evidence may be required for the resolution of these important issues. It appeared to me that further expert opinion as to this issue may potentially be available. The family consultant had also interviewed the head of Child Protection at the correctional centre in which the mother is incarcerated. This person told the family consultant that officers at the correctional centre would regard an application for children to spend time with an incarcerated mother favourably “unless a child had been harmed whether indirectly or by witnessing an incident of violence”. In my view it could be reasonably assumed that the appropriate officer who formulates such a policy or makes such decisions about children’s contact with incarcerated mothers would do so on the basis of expert advice.

7. I noted in the course of remarks about this issue that it did not appear that the family consultant (who has tertiary qualifications in social work) necessarily holds herself out as having expertise in relation to contact with a perpetrator parent or family members. I observed that there may potentially be a body of evidence in relation to this topic and on the record noted some of the extracts from the Family Report set out above. In these circumstances I was concerned about the potential for an absence of evidence from which I could satisfy myself about the issue of psychological harm to the children though I noted some of it may be answered in the material produced on subpoena. I observed that the maternal grandmother’s preferred position was that an order be made that she have the discretion about the time the mother could spend with the children. When this was raised it was incorrectly put to me by the grandmother’s counsel that the grandmother sought this order in the context of seeking a sole parental responsibility order whereas both the outline of case and her Response indicate that she was seeking this order at the same time as an order for equal shared parental responsibility with the father.

The mother’s alleged criminal conduct

1. Although each of the parties referred in their outlines to the mother’s involvement in the assault upon the father, there was no evidence in any affidavit filed concerning those allegations or (at that stage) even the details of the charges faced by the mother.

2. As outlined above, the family consultant regarded the mother and maternal grandmother’s attitude towards the mother’s conduct as critical to an assessment of the risk of harm should the children spend time with either of them.

3. In the course of my remarks prior to the hearing of evidence I raised this issue. Throughout the day some further evidence was provided concerning the offences with which the mother had been charged and the anticipated date for her criminal trial. There was no evidence however concerning the alleged involvement of the mother in harming the father.

Division 12A proceedings

1. After raising these issues, it was submitted by the maternal grandmother’s counsel that I was only able to determine the matter on the issues that the parties themselves raised. Counsel seemed to be suggesting that none of the matters of concern to me were issues raised by the parties themselves. I expressed the view that these were not new issues and that had been only identified by me, but my concern was directed to the evidence available to address these issues in the proceedings. The maternal grandmother’s counsel then conceded that I was not raising new issues. In respect of the quality and sufficiency of the evidence she submitted that this may be one of those unfortunate cases where the Court must “do the best it can on the evidence before it”.[1]

   [1]Transcript 13 July 2015 p. 13.30.

2. In response to the submission that the Court should “do the best it could on the evidence before it” I made reference to the fact that these parenting proceedings were conducted under Div 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and that appropriate evidence in relation to significant issues that had been raised by the parties may be needed to be given by a Chapter 15 expert. I referred to the section (s 69ZX) within Div 12A to the Court directing the matters to which an expert is to provide evidence. As the parties had raised the issue of the cost of such a report I then referred to the possibility of obtaining a limited form of report but noted that any report could not even be considered until the outcome of the mother’s criminal trial was known.

3. The interchange between counsel for the maternal grandmother and the bench then returned to the issue of my having raised the question of whether there was any body of research concerning the psychological impact of children having contact with a perpetrator parent or members of that parent’s extended family. Counsel questioned whether expert evidence in relation to this issue existed and then asserted that even if such expert evidence existed it was not  relevant.[2] I then indicated that I proposed asking the family consultant about whether she had any knowledge concerning such research. If she did have the appropriate knowledge and expertise then the matter could be determined on the basis of her evidence. The ICL then indicated that she had made inquiries and that the family consultant was available to assist the Court in relation to this matter.

   [2]Transcript 13 July 2015 p. 42.7.

The family consultant’s oral evidence

1. It was made clear to the family consultant that the issue to be explored at this stage only related to whether or not there was a body of research into a particular topic that is touched upon in her report.

2. The family consultant was asked about her recommendation concerning time with the maternal grandmother. She was referred to the portion of her report that related to whether the children were “at risk of harm in [the maternal grandmother’s] care”. The family consultant agreed that there are factors of potential psychological harm that may arise because of the unusual factual circumstances of this particular family. She said:

   With regard to the children spending time with the kin of a perpetrator of a very serious crime towards the other parent, the factors that need to be assessed are the likelihood that that kinship or family member will seek to influence the children to view the victim negatively and the perpetrator positively.  Really what the issue is is about the distortion of reality.  So once the facts of the situation are determined, what you would want to see in the parent – sorry, the family member spending time with the child is that they accept the findings of the criminal proceedings and that they can appropriately address that with the children, allow the children to have a positive relationship with their primary carer, if that’s where they’re living with the victim, and focus their attention on the relationship – just their own relationship with the child, playing, enjoying the time and not trying to focus it on back on the conflict that has emerged in the family because of the incident.  One factor – obviously, concrete practical factor is about the willingness to accept that they won’t be able to take the children to visit the perpetrator.

3. When asked whether there is research around the topic, the family consultant initially said that there was not much. She referred to a paper by Dr Lennings, a clinical psychologist, from 2009 but said that it was not a document to which she referred when preparing the report. When asked whether she had regard to any other research on the topic when she prepared the report the family consultant said that she had not, but referred to “just what I sort of learned from working here at the Court but not having read the research”. The family consultant said that since writing the report she had become aware of the literature review by Dr Lennings which did deal with the situation where there are competing parenting applications including by extended family members in circumstances where one parent has been charged with very serious crime against the other. She had not looked at any of the documents referred to Dr Lennings’ literature review, though she added that it was written in 2009 and there could be further research.

4. The family consultant ultimately agreed that there was a body of research around the topic and that she had not accessed it when writing the report as she felt that she had enough information to make the recommendations based on her experience, in consultation with colleagues. She said that she had only had experience in one other case herself where a parent had committed a serious crime against the other but was aware of seven or eight cases that she discussed with her colleagues.

5. The family consultant was also asked about conversations that she had with the head of Child Protection at the mother’s correctional centre concerning the way that department views applications for children to visit parents in custody. The family consultant said she gained the impression that that employee herself did not make those assessments but there was a team of psychologists to undertake such assessment.

6. The family consultant was asked whether she had turned her mind specifically to the maternal grandmother’s proposed order that if the children were to live with her, she would have the discretion to determine whether the children would have contact with their mother. The family consultant said that she did not recall talking to the maternal grandmother about that proposal.

7. The family consultant agreed that any report could be said to be lacking in that there is always possible research that could be added but she did not believe that her report was “lacking to the point where it can’t be useful for the Court as a Family Report”. When asked about a Chapter 15 report specifically around the topic of contact between, or living with, the family of the perpetrator, the family consultant said that it was difficult for her to answer without taking account what she had read from Dr Lennings’ article. The maternal grandmother’s counsel objected to the family consultant answering that question on the basis of what she had read in Dr Lennings’ report. Counsel submitted that it was not a matter for the family consultant to say whether a Chapter 15 expert would be more useful. In those circumstances I indicated to the witness that she did not need to answer the question.

8. At the completion of those questions of the family consultant, all of which had been asked by me, the maternal grandmother’s counsel that she “may need to make an application” but asked for that matter to be stood over until the next morning pending instructions. I then asked whether “anyone” had any questions that they wished to ask the family consultant. None of the counsel asked any questions of the family consultant.

Further discussions prior to the disqualification application

1. Prior to the recusal application being made I referred once again to the principles applicable in Div 12A proceedings and commented that:

   the way in which the Division applies and the principles is very much about the Court actively directing, controlling  and managing the conduct of the proceedings and the Court identifying the issues that are the issues that relate to the best interests of the child.

2. I referred to particular sections within that Division including s 69ZX. The maternal grandmother’s counsel then made the application that I recuse myself on the basis of apprehended bias.

The Law

1. In Ebner v Official Trustee in Bankruptcy[3], the plurality of the High Court (Gleeson CJ, Gummow and Hayne JJ) set out the test for disqualification:

   [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.

   [3] [2000] HCA 63; 205 CLR 337

2. In Johnson v Johnson[4], the plurality observed:

   [11] It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

   …

   [13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. 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.

   [4][2000] HCA 48; 201 CLR 488 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ

1. In EL & ML and DM[5], Guest J stated:

   [20] Indeed, it should be said clearly that the fact a party has a subjective apprehension of bias is not of itself sufficient to warrant or require disqualification of a judge. I refer to what Mason J had to say in Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at page 352. Disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment which must be “firmly established”.

   [5][2003] FamCA 1449

What is said might lead to deciding the case other than on its legal and factual merits?

1. In the course of the application it appeared that the matters from which apprehended bias could be said to arise included many of the remarks I made in the interchange with counsel. It appeared at some point in the application that all of the topics raised in those preliminary discussions (as summarised in paragraphs 30 to 62) were said to be encompassed in the application. However, it became clearer in the course of argument that the main focus of complaint was my remarks concerning the adequacy of evidence in relation to the issue of the risk of psychological harm to the children under the competing parenting proposals and questioning the family consultant.

2. It was submitted by the maternal grandmother’s counsel that my conduct of the case in raising the topic of psychological harm in the preliminary discussion, questioning the family consultant and raising my powers under Div 12A was objectionable in various ways. Counsel submitted my conduct “will have a negative impact on the conduct of these proceedings”, was “overstepping the mark”, and raised “a question in relation to the ongoing conduct of the matter”. The matters that were said to have been “improperly raised” “obviously impacted on [my] ability to continue to hear the matter” and with respect to my view of powers under Div 12A were “wrong”.

The second step – the logical connection between the matters identified and the feared deviation from deciding the case on its merits

1. It was not however articulated by counsel how conducting the case as I did and raising these matters in discussion would lead to a fair-minded lay observer fearing that I might deviate from the course of deciding the case on its merits.

2. Although at one stage it was submitted that my conduct demonstrated bias towards the father’s case this was not further developed. Rather, the central submission seemed to be that my conduct would lead to an apprehension that I may decide the matter other than in in accordance with the anticipated agreed position of the parties. In other words, it appeared to be contended that there was a subjective apprehension by the maternal grandmother that I might not make the orders the parties might agree to.  This, of course, does not satisfy the test required to be satisfied.

3. In considering the applicable test as previously outlined it is necessary to consider the nature of the particular proceedings and ordinary judicial practice in this context.

The context of the proceedings

1. Orders concerning parental responsibility and with whom a child will live and spend time are parenting orders which are determined in accordance with provisions of Pt VII of the Act. Under s 60CA of the Act, “in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”.

2. In deciding the parenting arrangements which are in the best interests of a particular child the Court is required to consider a series of identified principles, objects and considerations.

3. The principles for conducting child related proceedings, which includes applications for parenting orders, are set out in Div 12A of Pt VII. That Division includes the following:

Section 69ZN: Principles for conducting child-related proceedings

(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. (emphasis added)

Principle 3

(5)  The third principle is that the proceedings are to be conducted in a way that will safeguard:

(a)  the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; 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.

Section 69ZP: Powers under this Division may be exercised on court's own initiative

The court may exercise a power under this Division:

(a)  on the court's own initiative; or (emphasis added)

(b)  at the request of one or more of the parties to the proceedings.

Section 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 (emphasis added)

(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 (emphasis added)

(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)

.

1. In U v U[6], the High Court dealt with the role of the trial judge in parenting proceedings

   [6] [2002] HCA 36; 211 CLR 238.

2. In that case, Gummow and Callinan JJ (in the majority) observed:

   [70] No doubt there will be cases, perhaps many cases, in which a court can and should adopt, with few changes or additions, the arrangements proposed by one of the parties for the future of the child or children whose welfare is paramount, in preference to the other. As was said in AMS v AIF (citations omitted):

   "It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child. What happens in practice is that those competing for the care and custody of a child will present proposals to the Court to advance the welfare of the child. Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties." (footnote omitted)

   There will, however also be cases, and not a few of them we suspect, in which it will simply not be possible for a judge to adopt exclusively or perhaps even substantially, a proposal of either party. In such a case the final order will evolve out of the evidence as it emerges, and submissions as they are developed.

   …

   [72] The parties in cases concerning the welfare of children do not define the issues. It is Div 4 (ss 63A-63H) of Pt VII, headed "Parenting plans", which does that. For example parties may not even make or vary an enforceable parenting plan without the approval, that is to say the intervention, of the Court (ss 63B-63H).

   [73] Detailed prescription for determining the best interests of the child (the paramount consideration stipulated by s 65E with respect to parenting orders) is made by Subdiv B (ss 68E-68K) of Div 10 of Pt VII.

   …

   [74] That the Court's role may go beyond the mere choice between two or more proposals by the parties, appears expressly, for example, from the provisions of s 68L which empower the Court to make an order for separate representation of a child on the Court's own initiative

   …

   [80] But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.

3. Having regard to the nature of parenting proceedings, the Court’s role as set out in U v U (supra) and the specific provisions of Div 12A, I am not of the view that my conduct in the proceedings was “impermissible”. Further, counsel did not identify how this conduct, however described, could lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial and unprejudiced mind to determine the orders which are in the best interests of the child.

4. In my view, the fair-minded lay observer would appreciate that the parties in cases concerning the welfare of children do not define the issues and that the Court is not bound by the proposals of the parties or any agreement concerning those proposals. The fair-minded lay observer would also be aware that the Court in child-related proceedings is to actively direct, control and manage the conduct of the proceedings and may ask questions of witnesses relevant to the proceedings. The fair-minded lay observer would note that if the Court considers expert evidence is required the Court may give directions about the matters in relation to which an expert is to provide evidence.

5. In my view it would also be understood by the fair-minded lay observer that the Court was seeking to explore whether the family consultant was a suitably qualified expert to give evidence concerning a primary consideration with respect to best interests (the need to protect children from psychological harm arising from abuse (which includes serious psychological harm)) in the unusual circumstances of this particular case.

6. In other words, rather than give rise to an apprehension that I might not determine the case on its merits, it would be understood that I was seeking to determine whether sufficient evidence was available to resolve the issues. In my view, the fair-minded lay observer would not conclude that my comments or conduct tended to favour one party’s proposal over another. Rather, the fair-minded lay observer would see that I was concerned on the state of the evidence that I might be unable to find that one of the proposals was in the best interests of the children even if the parties were to reach agreement.

7. Having regard to a number of relevant matters concerning the nature of the proceedings and ordinary judicial practice I am not of the view that a fair-minded lay observer might reasonably apprehended that I might not being an impartial mind to the resolution of the competing parenting applications in this matter. Accordingly, I decline to recuse myself from further hearing.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 28 September 2015.

Legal Associate: 

Date:  28 September 2015