Seaward & MacDuff (No 3)

[2012] FamCA 731

­­­FAMILY COURT OF AUSTRALIA

SEAWARD & MACDUFF (NO. 3) [2012] FamCA 731

FAMILY LAW – COURTS AND JUDGES – Disqualification - Application for disqualification of judge on ground of apprehended bias – Consideration of actual bias – Consideration of Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 - Consideration Ebner v Official Trustee (2000) 205 CLR 337 – Child related proceedings - Section 69ZN of the Family Law Act 1975 (Cth) enables a trial judge to ask questions and impose time limits - Waiver of right to object - Fair-minded lay observer - Application for disqualification dismissed.

Family Law Act 1975 (Cth)

Australian Securities and Investment Commission v Reid [2005] FCA 1274
Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577
Ebner v Official Trustee (2000) 205 CLR 337
Galea v Galea (1990) 19 NSWLR 263
Johnson v Johnson (2000) 201 CLR 488;
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421
Re JRL; Ex parte CJL (1986) 161 CLR 342
Strahan & Strahan (Disqualification) (2009) FLC 93-414
Vakauta v Kelly (1989) 167 CLR 568

APPLICANT: Mr Seaward

RESPONDENT: Ms MacDuff

INDEPENDENT CHILDREN’S LAWYER: Mr Samuel

FILE NUMBER: SYC 2177 of 2011

DATE DELIVERED: 27 August 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 13 August 2012

REPRESENTATION

ADVOCATE FOR THE APPLICANT: Mr Seaward appeared on his own behalf

COUNSEL FOR THE RESPONDENT: Ms Messner

SOLICITOR FOR THE RESPONDENT: Abrams Turner Whelan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

Orders

1. That the application for Orders 2, 3 and 11 in the Application in a Case filed by Mr Seaward (“the applicant”) on 3 August 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Seaward & MacDuff (No 3) 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 SYDNEY

FILE NUMBER: SYC 2177 of 2011

Mr Seaward

Applicant

And

Ms MacDuff

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Seaward (“the applicant”) that I disqualify myself from further involvement in these proceedings.  The gravamen of the application is that the completed final hearing of the parties’ parenting applications would be aborted and a new hearing conducted before another judge (Orders 2, 3 and 11). 

2. The application is based upon an assertion that there is an apprehension of bias or perhaps actual bias.  The various concerns raised by the applicant are set out in some detail later.  At this stage it is sufficient to mention that these relate to remarks attributed to me in a pre-trial interlocutory hearing on 22 March 2012 and during the now completed final hearing.  Concern was also raised by the applicant about my or my Associate’s failure to respond, to emails sent by him following completion of the hearing. 

Legislative framework

1. Before I turn to consideration of the remarks relied upon by the applicant, it is appropriate to establish the context in which the hearings were 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 provisions of Pt VII of the Family Law Act 1975 (Cth) (“the Act”). In deciding the arrangements which will promote the best interests of a particular child the Court is required to consider a series of principles, objects and considerations there identified. The process is discussed in Goode and Goode (2006) FLC 93-286 and MRR v GR (2010) FLC 93-424.

2. The principles for conducting child related proceedings, which includes applications for parenting orders, are identified in Div 12A of Pt VII. Section 69ZN makes it plain that the Court is to actively direct and manage the conduct of the proceedings. The salient points being that a trial judge is entitled to ask questions about relevant matters, impose reasonable time limits and to explore matters which may assist in order to determine the significance or lack thereof of particular evidence.

The law in relation to the apprehension of bias and actual bias

1. The test by which a judge decides to disqualify himself or herself is to be found in par 6 and part of par 8 in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee (2000) 205 CLR 337. Ebner was adopted 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.

   ...

   4. In the earlier decision of Johnson v Johnson (2000) 201 CLR 488; , the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492–493:

   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)  

   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)          

2. 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”.

3. 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:

   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. 

4. In MIMA v Jia Gleeson CJ and Gummow J gave further consideration to the word ‘bias’ in the context of an assertion of actual bias.  At [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.

5. And at [72] their Honours continued:

   The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. (footnotes omitted)

6. In Strahan the Full Court incorporated par 13 of 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.

7. In Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Callinan J at [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.

8. Any discussion about the apprehension of bias principle would be incomplete without reference to 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 [572] Brennan, Deane and Gaudron JJ explained the rationale for the waiver principle. Relevantly, their Honours said:

   …. 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.

9. Although aspects of the applicant’s affidavit in support of disqualification were not the subject of further comment, because of their nature it is useful to mention authorities which touch on his various contentions.  Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at [352] said:

   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.

10. In relation to interruptions and questions by a trial judge Kirby ACJ (as he then was) in Galea v Galea (1990) 19 NSWLR 263 said [281]:

    It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion.

Discussion

1. Turning firstly to those matters which relate to an interlocutory hearing on 22 March 2012. 

2. By way of background, for some time, orders have been in place which limit the applicant’s time with the parties’ children, the effect of which culminated with orders made by Rees J on 2 February 2012 for the children, J and Z to continue supervised time.  B, who is the elder of the three children, by Order 4 of that date “may spend time and communicate with the father as per the terms of paragraph 3 of the orders contained herein if she chooses to do so”.  B had not participated in supervised time.

3. The 2 February 2012 orders imposed a series of conditions upon the applicant which, if breached, by virtue of Order 6 his time would be suspended.  In circumstances where the supervisor (P Contact Agency) provided a report which indicated the applicant had breached the condition imposed by Order 5(c) contact between the applicant and the two younger (thus all) children had ceased. 

4. The matter was relisted and came before me on 22 March 2012.  In the meantime, without notice to his solicitor, the applicant filed a contravention application on 16 March 2012.  That application contained 30 plus allegations of contravention of parenting orders against the respondent; predominately in relation to telephone contact.  A number of matters, therefore, required consideration.  Firstly, if the applicant sought to press his contravention application, whether this could be completed before the commencement of the final hearing on 21 May 2012.  So that it is clear, on 20 December 2011, the applicant sought and was granted expedition.  Secondly, notwithstanding the effect of the self-executing order, whether time should be reinstated prior to the final hearing. 

5. Because of the seriousness of the applicant’s claims about what occurred on 22 March 2012, he was directed to provide a transcript.  The hearing lasted about one hour and thus the cost to him would be modest.  A transcript has not been provided.

6. It is the applicant’s contention that on 22 March 2012:

   … her Honour inferred I was lying in regard to children playing Sunday sport in NSW.  My research now verifies her Honour has no idea about Sunday sport for children.  Children do play Sunday sport all over the State as do my children.  Her Honour stated children do not play sport Sundays and suggested I was misleading the Court.  This has grossly prejudiced my case and my character.  It was never corrected.

   I further say in that regard that I was blackmailed by her Honour pre trial.  I was forced into dropping contraventions against the mother after being given an ultimatum.  I had to choose to drop the contraventions or if I did not she would stop me seeing my children indefinitely.  This is nothing short of blackmail by someone with extreme unsupervised power.

1. At this hearing I raised for discussion with the applicant’s solicitor and those appearing how the applicant’s contravention application could be heard and determined without jeopardising the final hearing dates.  Discussion took place about the likely amount of time required to determine the contravention application.  Eventually, it was accepted that two days was a reasonable estimate.  The next two days available dates were those allocated to the final hearing in two month’s time.  In circumstances where four days were allocated to the final hearing, a reduction by two for the contravention application to proceed meant there would be insufficient time within which to hear the final hearing.  It followed that prosecution of the contravention application would almost certainly mean the final hearing would be delayed.  Submissions were made by the Independent Children’s Lawyer (“ICL”) in favour of the final hearing being able to proceed as listed with the applicant afforded an opportunity to explore the facts relied upon in the contravention application in the context of those proceedings and that the contravention application be withdrawn.   

2. At the applicant’s solicitor’s request the matter was stood down so that the advantages and disadvantages of the various options could be discussed with the applicant.  Before the matter was stood down there was discussion about re-establishment of time with the younger two children.  This issue was contentious.  I observed that I would be more comfortable re-establishing time if a full hearing was only a short time away.  In other words, if the totality of the children’s circumstances (which included the matters referred to in the P Contact Agency reports) could be examined in the scheduled May hearing. 

3. I do not find that a fair-minded lay observer would view these matters as an ultimatum or blackmail.

4. During oral addresses, the applicant expanded upon his recollection of what was said on 22 March 2012 in relation to the children’s sport.  According to him I said words to the effect that “[d]o you really expect me to believe [the applicant] the children will be playing sport on a Sunday”. 

5. It is not accepted that this is an accurate statement of the exchange.  At issue, was whether the boys played competition rugby league on Saturday.  It was contended for the mother that the orders made by Rees J, if reinstated, would mean that the boys would miss out on Saturday competition rugby league games.  The applicant opposed a shift from alternate Saturdays to alternate Sundays, and commented that the boys could play sport on Sundays.  However, the point was not whether they could play any sport, but whether they would be able to continue competition rugby league.  It was within that context that I indicated to the applicant that I was unaware of Sunday sport and asked whether he knew to the contrary.  I am not persuaded that the imputation referred to above would not be made by a fair-minded lay observer.

6. Even if there was a basis for an application for disqualification in relation to 22 March 2012, it was incumbent upon the applicant to bring that application promptly.  He is not entitled to sit back and wait until the final hearing is completed to raise the issue.  Throughout the period he had legal representation and the application of the waiver principle would see his application, even if based on reasonable grounds, dismissed.

7. The next issue relates to the applicant’s correspondence with the Court.  It is appropriate to record that following a four day hearing, which occurred on     21-24 May 2012 inclusive, the following orders were made:

   1.BY CONSENT that Order 7(e) made in this Court on 2 February 2012 is discharged.

   2.Pending further order, that the parties are restrained from using any form of physical discipline on [the children] or permitting any other person to do so.

   3.That the parties shall provide to the Independent Children’s Lawyer a copy of the Court outcome/order made in relation to the ADVO hearing listed for 1 June 2012.

   4.The Independent Children’s Lawyer shall provide a copy of that order to the Court by email to the Associate to Ryan J ([email protected]) which is to be copied to the parties and admitted into evidence.

   5.Judgment is reserved.

8. For that hearing, and indeed on each occasion the proceedings hitherto have come before me, the applicant has been represented by a solicitor and, for the hearing, by counsel.  The only exception is that immediately before the commencement of his counsel’s closing address the applicant withdrew his counsel’s retainer who, with the Court’s leave, departed.  As sought by the applicant he delivered his own closing addresses.

9. By Order 3 dated 24 May 2012 provision was made for the Court to receive “a copy of the Court outcome/order” in relation to an apprehended domestic violence hearing listed the following week.  After the final hearing was completed the applicant’s solicitor forwarded a copy of the minutes of order sought by the applicant at trial and a letter was received from the ICL which advised the outcome of the ADVO proceedings, namely, that they had been adjourned until 24 July 2012. 

10. Copies of correspondence between the applicant and the Court were tendered in this disqualification application.  Excluding salutations, this shows that on 19 June 2012 the applicant wrote to my Associate in the following terms:

    I am seeking leave from Her Honour to complete my final submissions that I was unable to complete during the last day of my recent Family Court trial.  On the final day, with adjournments and the like I was prevented from being able to complete what were crucial submissions in my case.  I am presently reducing those submissions to writing and require Her Honour’s leave to lodge these.  I believe I would be grossly prejudiced if both the respondent and the ICL were able to complete submissions and I was not. 

    Can you please advise

11. That email was not copied to the other parties.

12. This was followed by a response from my Associate as follows:

    Dear Sir,

    I acknowledge receipt of your two recent emails and note Justice Ryan is currently on leave.  The matter will be brought to Her Honour’s attention on her return to chambers.

    Yours faithfully,

    SN

    (Associate to the Hon. Justice Ryan)

13. As with all of emails sent by my Associate to the applicant, this email concluded with the following:

    Legal practitioners and parties are reminded that:

    ·they should only respond to the matters raised in this email by the judge;

    ·the judge’s associate cannot take notice of, or draw the judge’s attention to, any other matter raised;

    ·any such material will be deleted unread; and

    ·the chambers mailbox will only be attended to by the associate after 4 pm each week day.   

    For enquiries relating to a file contact the case coordinator or for general family law enquiries contact [number] or email [email address]

14. The applicant wrote to my Associate on 6 July 2012 (again without copying in the other parties) in the following terms:

    Is her Honour back from leave now? If so is there a reply on either of my queries before I lodge a new application in these matters?

    
    

    Thanks

15. As I understand it, the other matter relates to an email the applicant sent on 4 June 2012 about the ADVO proceedings which is not in evidence, albeit it was marked for identification. 

16. The applicant’s correspondence was referred to the Docket Registrar who on 9 July 2012, wrote to the applicant’s solicitors, they being still on the record.  Excluding formal parts relevantly the Docket Registrar wrote:

    On 4 June 2012 your client wrote to her Honour’s associate seeking to provide a letter to her Honour about ADVO proceedings. His email stated that he had sent this letter to the ICL who refused to send it to her Honour. Orders 3 and 4 made 24 May 2012 are clear. The ICL was to provide her Honour with a copy of the Court outcome or orders made in relation to the ADVO hearing.  It is not open to your client to write a letter about the proceedings to be provided to her Honour.

    On 19 June 2012 your client again wrote to her Honour’s associate requiring leave to lodge written submissions which he says he was unable to complete on the final day of the trial. I note that her Honour reserved judgment and did not make any directions in relation to further submissions, written or oral. 

    Could you please advise your client that, as he is represented, it is inappropriate to write to the Court himself and that any communication should come from you.  Further, there is no direction that allows him to bring a letter about the ADVO proceedings or further submissions to her Honour’s attention.  If your client seeks to rely on any further material other than the outcome/order made in relation to the ADVO proceedings you will need to formally seek leave on his behalf.

17. Four days later the applicant’s solicitor filed a Notice of Ceasing to Act.  According to the applicant he was unaware of the letter forwarded by the Docket Registrar to his solicitor and that he was unable to communicate with my Associate in the manner he had been.  This correspondence occurred against a backdrop of specific directions made after discussion about a proper process for the Court to receive material after the hearing was completed and limits having earlier been placed on the applicant’s attempts to address the Court when he was legally represented.  The point being the significance of a solicitor being on the record qua communication with the Court had already been explored.  In any event, when self represented it was made clear that the only communication could be in relation to the ADVO and by the ICL.  In short, it was made clear, relevantly that the applicant could not engage in this type of communication with my Associate or possibly me.  In short, it is not accepted that the applicant was uninformed about this issue.

18. When arguing the disqualification application, I understood that the applicant withdrew his contention that my or my Associate’s failure to correspond directly with him constituted a ground for disqualification.  If I have misunderstood the applicant’s position, when regard is had to the applicable law this matter cannot found a basis for recusal.

19. The next matters relate to the final hearing.

20. Although the applicant referred to a number of matters in his affidavit, during addresses he focussed on particular instances.  Relevantly, the applicant contends:

    …

    8.I say I have made repeated applications to Justice Ryan through her [Associate] to complete my final submissions in the case.  I say I was prevented from completing final submissions in the final hearing on 24 May 2012.  I say that both the ICL and the [respondent] were allowed to complete their submissions and that due to adjournments and an eagerness to finish this matter I was prevented from crucial submissions.

    …

    14.I say her Honour deliberately misled at least one witness, the family psychiatrist who was crucial to the case against the [applicant].  The [applicant] has been prejudiced by this.

    15.I say her Honour appeared to search throughout the trial for something to use against the [applicant] but refused to apply the same process to the [respondent].

    16.I say that evidence was misused by her Honour in relation to the [respondent’s] education.  I say this was misused without any right of reply.  I say that her Honour stated to the family psychiatrist that I was a liar when this was untested evidence that I say her Honour had no right to state.  At the same time her Honour stated that the [respondent] had never lied despite irrefutable transcript evidence showing she had.  I say her Honour made every attempt to cover for the [respondent] in these proceedings.

    …

    20.I say I was “persuaded” into giving concessions on the final day of the trial and was then screwed over.  I say those concessions have put my children at risk of harm.  I say those concessions involve allowing [the stepfather], to be allowed alone with the children who he is alleged to have assaulted.  As I can no longer see the children they have no one to report any harm to as they do not trust [the respondent].

    21.I say evidence given by 2 of my witnesses was misused and more importantly allowed to be misused by her Honour.  This evidence was manipulated to suggest I had lied.  These witnesses are furious that their evidence was misused in such a manner.

21. I will deal with these sequentially.

22. The applicant withdrew instructions from his counsel immediately prior to the commencement of counsel’s closing addresses which were then made by the applicant.  It is the applicant’s contention that his addresses were curtailed and that I could not be bothered with completing the case.  Submissions were made by the ICL from 11.37 am to 12.24 pm and by counsel for the respondent from 12.31 pm until 12.58 pm.  The applicant’s submissions commenced at 2.06 pm and continued until 3.32 pm.  They resumed at 3.46 pm and continued until 4.39 pm.

23. Early in his submissions, the applicant indicated he required about 20 minutes to address the Court.  It can be seen he had about two and a quarter hours.  He is correct that during submissions I raised a number of matters with him, which included whether he would agree that an injunction which prevented the children’s stepfather (with whom they reside) from being alone with them could be discharged.  The point being, issues were raised by the Court with the applicant that consumed a portion of the two and a quarter hours.  Even so, it is not accepted that by limiting the applicant to something like one and three quarters to two hours for closing addresses following a four day hearing, demonstrates “an eagerness to finish this matter” or that somehow directions which imposed reasonable time limits would trouble the fair-minded lay observer. 

24. The applicant complains about questions I asked the single expert.  In broad terms, these relate to the applicant’s decision (when armed with the single expert’s report) to call upon a subpoena at the commencement of the final hearing to have the parties 13 year old daughter give evidence.  Although the applicant did not rely on the transcript I infer his complaint is directed to the exchange set out below:

    [Counsel for the applicant]:  Well, I suppose to get right to it, what I’m getting at, Dr [R], is that animosity between parties and adults in the households of respective parties is not infrequent in family law proceedings.  You would agree with that?‑‑‑Yes, it’s the norm, yes.

    And children to a greater or lesser extent are aware of that in almost all cases ­ ­ ­?‑‑‑Yes.

    ­ ­ ­ unless, of course, they’re very, very young, that they’re not aware of anything that’s going around them?‑‑‑Correct.  Yes.

    They perceive these things.  But the reality also is that in a great number of such cases, that’s not a good reason to prevent children from spending time with their parents other than on a supervised basis, is it?‑‑‑Well, if you can protect the children from the animosity and the acrimony between the parents and that there are other channels to deal with those differences, I would agree with you.  But it would appear to me that that hasn’t been the case here, unless it’s clear that there has been a change of position and a change of heart that would indicate to her Honour that this would not occur again.

    But by the [applicant] saying – giving evidence that he is prepared to, sort of, keep fighting for what is best for his children or, you recall that, for justice for himself, if he can do that, he’s entitled to pursue legal avenues if the children aren’t directly involved in that.  Again, what’s the difficulty with him spending time with the children without supervision?

    HER HONOUR:   Well, I’m not sure I understand that question.  Do you?

    [Counsel for the applicant]:   Well, I suppose – what I would like to know, Dr [R], is what is it that you say, or why is it, if this is what you’re saying, an inevitable consequence that if the [applicant] wants to pursue what he perceives as being in the best interests of these children – and you call that justice for himself.  If he does that without directly exposing the children to doing that, what’s the issue?‑‑‑Well, he has directly exposed the children to it, and he would need to demonstrate that if he’s going to persist with legal action that he has a way of doing that without involving the children.

    All right.  But the way ­ ­ ­

    HER HONOUR:   It’s only two days ago that your client asked me to issue a subpoena for [B] to come to this court and give evidence.

    [Counsel for the applicant]:   Yes, your Honour.

    HER HONOUR:   It’s a pretty powerful statement, isn’t it, by him of how he proposes to conduct litigation.

    [Counsel for the applicant]:   But apart from that, what we have is a couple of occasions when he has discussed with the children what happened to them in the August incident, and a few remarks here and there about, you know, “Is that what your mother does” or “Is that what [Mr MacDuff] does”, and some messages which are inappropriate, although there have been inappropriate messages from both sides.  In suppose in a nutshell what I’m saying to you, Dr [R], is there isn’t so much here that would warrant these children missing out on having a meaningful relationship with their father.  The risk of harm to them, or the evidence of risk of harm to them, is not so great that it warrants these children – and at this stage, it’s going to be the boys;  some work has to be done about [B] – missing out on an opportunity to have a significant relationship with their father?‑‑‑Well, I think the dilemma for the father is for him to have a substantial relationship with the children, I believe he would need to put the litigation to the side to then allow an opportunity to reconnect with his daughter, and to allow a more natural relationship with his sons to develop.  If he wishes to persist with litigation, I think, inevitably, that’s going to contaminate his relationship.  So you seem to – you are suggesting that you can keep the two aspects separate, the relationship and the litigation, whereas I think that there’s very strong evidence from literature and also from personal experience that persisting with litigation does contaminate relationships.  (Transcript, 23 May 2012, pp 284-285)

25. The applicant’s contention is that it was important for the single expert to know his reasons for seeking that the parties’ teenage daughter gave evidence. In the course of argument on the disqualification application, he said he has written a letter that explained why he wanted his daughter to give evidence.  The letter is not in evidence.  Following my questions to the single expert, all counsel were given the opportunity to question the single expert about the matters I raised.  If this was an issue of concern to the applicant the opportunity existed to raise it with the single expert.

26. The applicant asserts that he has other evidence which would show that his affidavit evidence to the effect that the respondent did not finish Year 10 was correct and not something to be raised with the single expert.  Whatever this other evidence is, it was not presented in the final hearing.

27. There is no doubt the applicant’s evidence about the respondent’s education was raised by me with the single expert.  However, not in the manner claimed.

28. I infer that the applicant’s concerns relate to the following exchange which occurred after counsel had completed cross-examination.

    HER HONOUR:   Dr [R], I have a couple of questions.  You said in your report, at page 25 – I’m in the paragraph, in the middle of the page where you discuss [B] – you point out that, “In order to cope with the situation” – like, two-thirds of the way down – “[B] has found it necessary to withdraw from the [the applicant].”  You also say, in the final sentence following the text, “She felt extremely rejected, and this has contributed to her decision to not see him for fear of further rejection and recrimination.”  And then we have you continuing on to the end of that sentence.  Do you have a view about whether [the applicant] has the intellect and emotional capacity to understand the gravamen of what you were saying there, about [B]’s situation?‑‑‑Well, from reading his last affidavit I didn’t see any indication of that, your Honour.

    And that wouldn’t be a matter of intellect, do you agree?‑‑‑No, it’s not intellect I don’t believe.  I believe he has the intellect but I think it’s an emotional capacity.  It’s ability to let down some of his defences to be able to perceive that he does have a role to play in [B]’s response.

    Because it would be inconsistent with him being able to view the difficulties of her situation from her perspective, having read that, for him to issue a subpoena for her to come to court, wouldn’t it?‑‑‑It would, your Honour, yes.

    And would you agree or disagree with the notion that it’s rather difficult to perceive a more extreme rejection by him of the matters referred to in that paragraph in taking the step that he did, that is, seek the court issue a subpoena to have her brought here?‑‑‑Well, it confirms, in my view, that he is more concerned with proving his case and trying to win a legal battle, rather than be concerned about the welfare, or what might be happening emotionally, to the children.

    Has [the applicant] lost connection with the subject matter of the proceedings, namely, the children, and become consumed by the proceedings and the desire to win?‑‑‑Well, I think there’s a theme across his whole life over the past few years, and it would seem that the battle that he’s fighting in the family court seems to be running parallel to other legal battles, and other battles that he’s having in his life.  And the family court and children, I think, should be seen quite differently from other battles, and, I don’t know – it would appear to me that the father hasn’t been able to make that quantum leap and distinguish that they’re totally different territories.

    Because it’s one thing to have a battle with the liquidator, and quite another thing to – bringing an early teen daughter to court?‑‑‑It is, yes.

1. The next exchange raised by the applicant also occurred after counsel had completed cross-examination.  This relates to my questions about the applicant’s evidence in relation to the respondent having left school at Year 10.

   The only other matter I wanted to raise with you is, this is in [the applicant’s] affidavit, paragraph 216 – that and a couple of other paragraphs following.  And it’s where he’s saying that, “There are no good schools in [Town U] or nearby.”  He says, at 216, “I know [the respondent] left school at Year 10.”  He says he “understands [the respondent’s husband] is not well-educated, and I believe my children will suffer for life if not allowed to be educated with me involved.”  And on he goes.  Elsewhere in the affidavit – paragraph 390 is but one example, where [the applicant] says – in 390 he says, “She is prepared to lie in sworn affidavits to this court.”  And there’s constant reference to lies.  If it’s the case that [the respondent] completed her Higher School Certificate, then completed a university degree whilst living with [the applicant] and so the facts of her tertiary education must be known to him.  Other than in a forensic sense, for me, is there any significance on the constant focus in [the applicant’s] affidavit on her lying, and yet here we have a simple example of what might be seen as a bald-faced lie by him.  Any significance in that?‑‑‑I probably wouldn’t read too much into it, except that it’s trying to portray him as – portray himself as, you know, the superior and more competent of the two parents, and that – and you should respond to his superiority.

   Is there in that – and I think [counsel for the respondent] alluded to this – an element of grandiosity in [the applicant’s] thinking?‑‑‑Well, I think probably some characteristics that certainly come through that maybe I hadn’t highlighted more clearly.  I think I noted the obsessional qualities to his personality, but there’s certainly a flavour of narcissism and paranoia that has come through.  Whether – I’m a little cautious to – on, you know, a single assessment – to make a firm personality assessment, but I was confident to make comments about his obsessional qualities.  I know that he rejects that.  But there is certainly a flavour where, you know, there’s a lot of self-aggrandisement and self-promotion that may be seen to an exaggerated extent, suggesting that there are strong narcissistic qualities to his personality style.  And this normally is a way of protecting against a severe feeling of insecurity deep down, so – but I do worry that he’s so defended, that there is intense insecurity inside, that he’s worried that if he doesn’t remain very defended, will result in perhaps an overwhelming depression or a catastrophic internal event.

   Is that something that sits in the subconscious or is that conscious?‑‑‑I think it’s more subconscious.

   All right.  I don’t have any further questions for Dr [R].  Are there any questions arising from my questions?  (Transcript, 23 May 2012, pp 289 – 290, pp 292 – 293)

2. As was mentioned earlier counsel did not avail themselves of the opportunity to ask the single expert further questions.  In addition to counsel being afforded the opportunity to ask further questions of the single expert, no case in reply was presented by the applicant. 

3. The applicant did not provide details of the matters referred to his affidavit in support of disqualification.  The absence of detail makes it impossible to search the transcript of the final guided by material he would want me to consider.  Doing the best that I can with the balance of the applicant’s evidence there is nothing which would require that I disqualify myself.  

Conclusion

1. Whether considered individually or in combination, it is not accepted that a fair-minded lay observer would interpret my remarks in the way in which the applicant says they should be interpreted. 

2. In relation to the Ebner test, the applicant has failed to establish that I should recuse myself.  Nor has he established actual bias. 

3. For the reasons set out above, the application that I disqualify myself will be dismissed.

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 27 August 2012.

Associate:     

Date:              27 August 2012