Sealey, A.L. and Sealey, R.E.

[1986] FamCA 9

In the marriage of SEALEY, A.L. and SEALEY, R.E.

(1986) FLC ¶91-736

Other publishers' citations: (1986) 10 FamLR 1055

Full Court of the Family Court of Australia at Brisbane.

Judgment delivered 17 June 1986.

Before: Fogarty, Murray and Strauss JJ.

Fogarty J.: By notice of appeal dated 10 January 1986 A.L. Sealey (hereinafter referred to as ``the husband'') has appealed against orders which were made by Simpson J. in the Brisbane Registry of the Court on 17 December 1985. Those orders were:

``(1) That the orders in relation to access contained in para. 3 and 4 of the order of the 2nd March 1984 be discharged.

(2) That until further order the HUSBAND be restrained and an injunction is hereby granted restraining him from entering, attempting to enter or loitering in the vicinity of any premises in which the WIFE may be residing from time to time.

(3) That the HUSBAND A.L. SEALEY be imprisoned until 12.00 noon on the 27 February 1987 subject to the HUSBAND being entitled to be released from the said imprisonment at any time after 12.00 noon on the 27th September 1986 on his entering into a recognizance in an amount of $1,000.00 that he will comply with the foregoing injunction.''

The proceedings before his Honour were constituted by two applications for contempt of court pursuant to the provisions of sec. 108 of the Family Law Act, those applications being dated 1 June 1984 and 25 November 1985. They are for practical purposes identical and each alleged that the husband was guilty of contempt of court in that contrary to the order of 2 March 1984 granting to R.E. Sealey (hereinafter referred to as ``the wife'') the custody of the one child of the marriage, J, the husband on or before 6 May 1984 failed to return that child to the custody of the wife and retained the child in his possession contrary to that order until 27 November 1985.

Those proceedings came on for hearing before his Honour on 13 December 1985. The husband pleaded guilty to the allegation of contempt. The material before his Honour consisted of affidavits filed on behalf of each of the parties, including affidavits by the parties themselves, and the submissions of counsel. His Honour reserved his decision and pronounced judgment on 17 December 1985.

The background facts leading up to the proceedings before his Honour may be summarised in this way: The husband was born in 1947 and is aged approximately 39 and the wife was born in 1951 and is aged approximately 35. They commenced to live together in 1974 and married on 16 May 1981. The one child of their association, J, was born on 5 August 1978. The parties finally separated in Queensland in December 1982 although there had been previous separations.

Thereafter there were proceedings in the local magistrates' court and until February 1983 the child was with each of her parents for a short time. However, from February 1983 the wife had the interim custody of J and the child remained living with her until the custody proceedings were determined by Simpson J. on 2 March 1984. During that time the husband had access to his daughter.

On 2 March 1984 at the conclusion of what his Honour described as ``a bitterly contested custody hearing'' which occupied a number of days, his Honour granted to the wife sole guardianship and custody of J and granted to the husband access.

A notice of appeal was filed on behalf of the husband but in the meantime the husband availed himself of access to his daughter, in accordance with the terms of that order, until the weekend of 5 and 6 May 1984. At the conclusion of access on that weekend the husband failed to return the child to the wife and disappeared with the child. Thereafter the wife did not see or hear from her daughter until 27 November 1985 when the police arrested the husband in Perth and took possession of the child pursuant to orders and warrants which had been issued by this Court in the intervening period.

The events between May 1984 and November 1985 were summarised by his Honour in his judgment in the following passage:

``As might be expected there were numerous developments following the husband's abduction of the child. The wife, and those acting for her in both Queensland and Victoria, made or caused to be made extensive efforts to locate the husband and J. Warrants were issued directed to the Australian Federal Police and others to take possession of the child for the purpose of restoring her to the wife and for the arrest of the husband for the purpose of having him brought before the Court to show cause why he should not be dealt with for contempt. Also the order for access in favour of the husband was suspended until further order. There is evidence before me to the effect that the Victorian Legal Aid Commission has expended over $80,000 in the provision of legal assistance to the wife in connection with the various applications to the Court and with extensive enquiries directed to regaining the custody of J. That amount is exclusive of the expenses incurred by the wife personally and the additional public expenditure associated with the police enquiries. However, of more importance than the cost to the taxpayer and the wife in material terms is the grief, anxiety and emotional strain suffered by the wife and the risk of emotional damage to J not only by being made to live the life of a fugitive but also by the child being deprived of her right to be raised by her mother.

During the course of her efforts to locate her daughter the wife was given leave by the Court to publish some particulars of the circumstances of the abduction and of the husband and child in the hope that such publicity would result in information being made available to the wife which would assist in the search.

One result of the publicity was that the husband communicated with one Derryn Hinch who is apparently a radio personality of some notoriety in Victoria. A record of the interview between the husband and Mr Hinch is annexed to [an affidavit] filed in the Melbourne Registry on the 4 June, 1984. It appears that in the course of that interview which took place on or about the 31 May, 1984 the husband gave his version of the relevant circumstances (which was far from an accurate account thereof) and the husband recounted that he had come to the decision to abduct his daughter about 3 weeks before he did so and gave as his reason that he had — `seen my daughter changing so much and her personality being basically taken away from her and about three weeks before I did it, I decided to do so'. At a later stage of the interview the husband in reply to the question by Mr Hinch — `And so then in May, you just took your daughter' replied

`Yes I did, I couldn't take any more, my daughter was changed so much, her sexual awareness had increased you know, I just couldn't see my daughter change any more like what was happening. My wife and her de facto husband, for some reason, just didn't understand my daughter, just didn't understand what they were doing with her and I am the father and I love my daughter dearly and I couldn't just keep letting this happen to her, you know, a Judge gave this verdict but I mean he didn't really know the case, he didn't really know what it was about and when he threw out all our evidence which my wife's mother was in Court testifying against her own daughter, my wife's sister flew from Bamigill, that's North Queensland, to testify against her sister and the Judge found the vindictive and, you know, the testimonies worth nothing and to me it was a big thing that her own family went against her but that meant nothing in Court.'

It is to be noted that the husband did not raise with Mr Hinch any suggestion that his decision to abduct the child was motivated by J telling her father that her maternal grandfather had sexually interfered with her at some time after the custody hearing. It is not necessary nor desirable that I make any comment about proceedings in the Melbourne Registry in relation to the wife's endeavour to locate the husband by interrogating Mr Hinch.

In much more recent times — October 1985 — the abduction of J was featured in a television programme called `60 Minutes'. That programme included an interview with the husband. It was during that interview that the husband first raised the allegation of sexual abuse of J by the wife's father after the order for custody was made in favour of the wife.

This sorry history can be concluded by again recording that the husband and J were located in Western Australia and the husband arrested on or about the 27 November 1985. The husband has remained in custody since that date.''

In addition to the affidavit material and the submissions his Honour also had before him further material which was summarised by his Honour as follows:

``The wife was present at the hearing of the present applications that the husband be dealt with for contempt. In response to my enquiry Counsel for the wife informed me that J, who is now 7 years of age, recognised her mother when the child was reunited with the wife; that J appeared to be physically healthy and well cared for; that she asserted that her name was N rather than J; that she considered that there was no need for her to go to school and was in fact reluctant to do so; that nevertheless J seemed to the quite happy at school; that J thinks it necessary to wear a hat and dark glasses whenever she moves outside the home, and that the child often wants to communicate by using notes and sign language.''

The effect of his Honour's orders were: By order no. 1 his Honour discharged the access orders which he made on 2 March 1984. By order no. 2 the husband was restrained from ``entering, attempting to enter or loitering in the vicinity of any premises at which the wife may be residing from time to time'' and by order no. 3 the husband was imprisoned until 27 February 1987, subject to the circumstance that he was ``entitled to be released from the said imprisonment at any time after 12.00 noon on the 27th September 1986 on his entering into a recognizance in an amount of $1,000.00 that he will comply with the foregoing injunction''. The injunction referred to in para. 3 is the injunction which his Honour had granted in para. 2.

At the commencement of the appeal counsel who appeared for the appellant husband was granted leave to amend the grounds of appeal. As argued before us they raised a number of separate issues.

It is desirable to deal with the issue raised in ground 4 first as that ground attacks the validity of the whole of the orders which his Honour made.

That ground alleges that his Honour was in error in that he failed to disqualify himself from the hearing because:

(a) “In his reasons for judgment dated 2 March 1984 made at the termination of an earlier trial the learned Trial Judge had disclosed an animosity and/or adverse evaluation of the appellant;
...
(e) ``a real likelihood of bias against the appellant appears from the conduct of the proceedings.''

I have not set out para. (b) to (d). Paragraph (b) refers to the circumstance that the appellant had appealed against the orders of 2 March; para. (c) purports to summarise the law to be applied in relation to such an issue, and para. (d) refers to the circumstance that other judges were available to hear the contempt proceedings in the Brisbane Registry at the relevant time.

It is convenient to refer to the principles which apply when issues of bias of the type suggested in this case are raised.

Counsel for the husband referred us to a number of earlier cases which related to this issue including Vincent v. Curran (1909) V.L.R. 370; R. v. The Justices of Queen's County (1908) I.R. 294; Re McCrory; Ex parte Rivett (1895) 21 V.L.R. 3; and more recently R. v. Camborne Justices; Ex parte Pearce (1954) 2 All E.R. 850. However it appears to me that the principles to be applied have been clearly established in a significant line of recent cases in the High Court: Inre Watson; Ex parte Armstrong (1976) FLC ¶90-059 at pp. 75,270-75,273; (1976) 136 C.L.R. 248 at pp. 258-263; Re Judge Leckie; Ex parte Felman (1977) 52 A.L.J.R. 155 at p. 158; Re Lusink; Ex parte Shaw (1980) FLC ¶90-884; Livesey v. The New South Wales Bar Association (1983) 57 A.L.J.R. 420; Inre Simpson; Ex parte M. (1984) FLC ¶91-513. Reference might also be made to cases in the Full Court of this Court including Lonard and Lonard (1976) FLC ¶90-066; Axtell and Axtell (1982) FLC ¶91-208; and Horton and Horton (1983) FLC ¶91-368.

Those cases establish that the principle to be applied is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the solution of the question involved in it.

While each case must be determined by the application of that principle to the particular circumstances of the case, it is possible to extract from the authorities the following points of guidance:

1. If a judge considers that there is a real possibility that his prior involvement in the case might lead to a reasonable apprehension of prejudgment or bias, he should refrain from sitting.
2. The question of bias or prejudgment is not to be determined by reference of the ability of a particular court or to public confidence in the integrity of the judiciary. The issue usually is the appearance rather than the actuality of bias by reason of prejudgment.
3. However, it would be an abdication of the judicial function and an encouragement of procedural abuse for a judge to automatically disqualify himself whenever he was requested to do so on the ground of possible bias or prejudgment regardless of whether the other party desired the matter to be dealt with by him as the judge to whom the hearing had been entrusted by the ordinary procedures and practices of the particular court.
4. A fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views about

(a) a question of fact which constitutes a live and significant issue in the subsequent case, or
(b) the credit of a witness whose evidence is of significance in such a question of fact.

5. It is not uncommon, and is sometimes necessary, for a judge, during argument, to formulate 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 regarded as ``merely tentative and exploratory''. The expression of such provisional views is not ordinarily to be taken as indicative of bias.
6. An appeal court would not lightly conclude that the judge might reasonably be suspected of bias or prejudgment; it must be ``firmly established'' that such a suspicion may reasonably be engendered in the minds of a party or the public.

The allegation of bias in this case is based upon two separate matters.

The first relates to a passage in his Honour's judgment of 2 March 1984 when he granted custody of J to the wife.

In that judgment his Honour, after reviewing the background marital facts, referred to the reports and evidence of the counsellors and said that that led him to conclude that he ought to express his reasons for judgment in a somewhat different form than he had originally intended. His Honour then said:

``Although I have no expectation that the relationship between the husband and the wife will ever reach a stage where they can rationally discuss the future of their child, I retain some hope that the grandmothers, and the sisters of the wife, may reflect on the attitude they have adopted in relation to these proceedings. I did intend to say some rather harsh things about the husband, the grandmothers and the sister. However, on reflection, I have decided to try to dispose of the matter without further exacerbating a situation which should not have arisen and which would not do anything to further the interests of J.''

At the commencement of the contempt hearing counsel for the husband submitted that his Honour should, because of this, disqualify himself and arrange for another judge to hear the application. His Honour rejected that application.

The emphasis in the appellant's submissions to us was upon the words ``some rather harsh things'' in relation to the husband.

In other circumstances there may have been room for the view that that passage amounted to a finding against the husband on an issue of credibility; however, that had no relevance here because the husband had pleaded guilty and there was no relevant issue of credibility which his Honour had to determine. The applications proceeded before his Honour on the basis of a plea in relation to the penalty which ought to be imposed given the husband's admitted breach of the custody order and the circumstances of it.

The second aspect related to comments which the trial Judge made during the course of submissions. Counsel for the husband referred us to four particular passages of the transcript.

At p. 39 his Honour, during the course of discussion with counsel for the husband, was commenting upon the fact that the husband had pending the appeal abducted the child. His Honour said,

``He wanted it both ways. That is all I am saying. He wanted to have a go in the Court, he did not succeed so he then chose to deal with it in his own way.''

It is difficult to believe that this could amount to bias or prejudgment. The passage is no more than an observation during argument upon the reality of the situation.

There is nothing I think in the passage at p. 40 that calls for any comment, and at p. 41 his Honour, referring again to the conduct of the husband, said ``All his actions have done is establish that my decision was right'' and then elaborated somewhat upon that observation. Again his Honour was entitled to express that view. It could not be understood as amounting to bias or prejudgment on the issue before him, namely the question of penalty in relation to the contempt. It was no more than a passing observation during the course of submissions.

Finally at p. 43 his Honour referred to the circumstances that both parties were on legal aid and the cost to the taxpayer of that circumstance. His Honour had before him evidence of the very significant cost that the husband's conduct had imposed upon the community through legal aid and otherwise. It was, in my view, a perfectly proper observation.

There is, in my view, no substance in ground 4.

I turn then to the other grounds of appeal. Ground 3 related to order no. 1. That was an order discharging the access orders in favour of the husband which had been made on 2 March 1984. Those access orders had been suspended on 24 May 1984 and that order for suspension was still in operation.

Counsel for the husband submitted that there was no application made by the wife for such an order nor was there any evidence directed towards it, and his Honour made it clear in that he was considering the contempt proceeding separately. In addition counsel for the husband drew our attention to passage of the transcript where his Honour indicated during the course of discussion that he was not proposing during those proceedings to deal with the question of access.

Counsel who appeared for the wife conceded that no application had been made by the wife in relation to this matter and it had not been raised during the course of the proceedings.

It appears to me that his Honour may have overlooked these discussions and made the order in circumstances when it was not appropriate to do so and accordingly that it should be discharged. It should be added that the order which his Honour made for practical purposes makes no difference to the existing situation.

Ground 1 relates to order no. 2. That was an order in the following terms:

``(2) That until further order the HUSBAND be restrained and an injunction is hereby granted restraining him from entering, attempting to enter or loitering in the vicinity of any premises in which the WIFE may be residing from time to time.''

However, that has to be seen in conjunction with order no. 3. By that order the husband was imprisoned until 27 February 1987 but was entitled to release on 27 September 1986 on his entering into a recognisance in an amount of $1,000 that he would comply with the ``foregoing injunction'', that is, the injunction in order no. 2.

Counsel for the husband submitted in relation to order No. 2 that the proceedings before his Honour were proceedings for contempt under sec. 108 and his Honour was restricted to the imposition of the penalties which are set out in that section, that an application for injunction of the type contained in order no. 2 ought to have been supported by material but was not, and that the matter proceeded on the basis that the contempt proceedings were being dealt with separately and in the circumstances the husband had not had the opportunity of meeting the possibility of an order of the type contained in order no. 2. He submitted that there was no evidence to demonstrate that such an order was appropriate and it had not been the subject of discussion during the course of submissions.

Considered in isolation there may be substance in counsel for the husband's submissions, but it appears to me that order no.2 was part of the overall scheme contained in orders 2 and 3 and together they fell within his Honour's power under sec. 108(5).

That subsection gives the following powers in proceedings under sec. 108:

``The Court may make an order for —

(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.''

It appears to me that as part of the power which his Honour exercised in order no. 3 to allow for the release of the husband before the expiration of his term of imprisonment, his Honour could have imposed terms or conditions upon the circumstances of any such release and, given the background history of this matter, it would not have been inappropriate for his Honour to have imposed as a term of such release a condition in the terms of the injunction contained in order no. 2.

Order no. 2 should be read with no. 3 as part of an overall scheme by his Honour and, so read, was well within his Honour's power and must have been within the reasonable contemplation of the parties and their advisers if his Honour was moved to provide circumstances in which the husband may obtain an early release from imprisonment.

Were this not so I think there is substance in counsel for the wife's submission that we should exercise our own discretion by adding to order no. 3 a condition of the type covered by order no. 2. However, in the circumstances it is unnecessary to take that step.

In those circumstances ground no. 2 can be dealt with briefly. It asserted in relation to order no. 3 that his Honour erred in imposing that condition because no application for such a term had been made or evidence called specifically in relation to it and the appellant had not had the opportunity to be heard on the issue and, in any event, such a term was not shown to be necessary.

It appears to me that it was within his Honour's power to make orders under sec. 108 to impose that term. Although it may not have been specifically discussed during the course of submissions, a term of that type must have been in the contemplation of those acting for the husband and, given the background circumstances of this matter, was well within his Honour's discretion.

That leads me to ground no. 5 which is that the penalty imposed was ``manifestly excessive''. In particular the ground asserted that his Honour failed to take into account adequately or at all the likely effect on the child of the imprisonment of her father, the need to consider the parties' future relationship, the husband's motivation in acting as he did and the circumstances relied upon by the husband as precipitating the conduct which constituted the contempt.

However, a perusal of the material before his Honour and the submissions made by both counsel clearly in my view indicate that all of these matters were before his Honour and his Honour gave the whole matter anxious and careful consideration. In his judgment he extensively evaluated the competing issues.

In my view the penalty which his Honour imposed, particularly having regard to the power of the husband to obtain his own early release, was far from excessive but was in fact a modest penalty.

Finally it was submitted as an alternative under ground 5 that his Honour had taken into account in determining the penalty extraneous circumstances. This was a reference to comments which his Honour made towards the end of his judgment relating to what he saw as a ``general breakdown in community respect for the rule of law'' and he gave a number of then contemporary examples of what he had in mind. However, it does not appear to me that these general observations formed a part in his determination of the penalty which it was appropriate to impose upon the appellant.

Both counsel submitted that if our conclusion was that upon any of the grounds argued his Honour's discretion in relation to penalty had miscarried, this Court should exercise its own discretion in relation to the matter rather than remit it for a further hearing.

In the event it is unnecessary to consider that aspect other than to repeat what I have already said, namely that in my view the penalty imposed by his Honour was a modest one in the circumstances of this case.

Accordingly I would order as follows:

1. That order no. 1 of the orders of 17 December 1985 be discharged.
2. Otherwise the appeal is dismissed.

Murray J.: I agree with the orders which Fogarty J. proposes and his reasons for such orders.

Strauss J.: I agree with the orders which Fogarty J. proposes and his reasons for such orders.