Sheldon and Weir (No 2)
[2010] FamCA 449
•3 June 2010
FAMILY COURT OF AUSTRALIA
| SHELDON & WEIR (NO 2) | [2010] FamCA 449 |
| FAMILY LAW – COURTS AND JUDGES – Disqualification – Application for disqualification of judge on ground of apprehended bias – Where remarks complained of provided information disclosed by judge - Prudent judicial practice of disclosure of any possible interests, statements, associations, relationships discussed – Where applicant gave consent to composition of the Court – Consideration of the test in Ebner v Official Trustee in Bankruptcy - Waiver of right to object - Application for disqualification dismissed |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Australian Securities and Investment Commission v Reid [2005] FCA 1274 Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Goode and Goode (2006) FLC 93-286 Ebner v Official Trustee (2000) 205 CLR 337 In the Marriage of H (2003) 30 Fam LR 264 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 MRR v GR (2010) FLC 93-424 Smits v Roach [2006] 227 CLR 423 Strahan & Strahan (Disqualification) (2009) FLC 93-414 Vakauta v Kelly (1989) 167 CLR 568 Penfold v Penfold (1980) FLC 98-800 |
| APPLICANT: | Mr Sheldon |
| RESPONDENT: | Ms Weir |
| FILE NUMBER: | (P)NCC | 3259 | of | 2009 |
| DATE DELIVERED: | 3 June 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATE: | 15 April 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Graham |
| SOLICITOR FOR THE APPLICANT: | Slade Manwaring |
| COUNSEL FOR THE RESPONDENT: | Mr Duane |
| SOLICITOR FOR THE RESPONDENT: | Burke Elphick & Mead |
Orders
That the Application in a Case filed by the applicant on 23 March 2010 is dismissed.
That within three months the applicant pay to the respondent for reimbursement to Legal Aid New South Wales costs in the sum of EIGHT HUNDRED DOLLARS ($800) for this application.
In the event the applicant fails to fully pay the amount ordered above, interest on the amount outstanding will be due as calculated in accordance with the Family Law Rules 2004.
IT IS NOTED that publication of this judgment under the pseudonym Sheldon & Weir is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCC3259 of 2009
| MR SHELDON |
Applicant
And
| MS WEIR |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Mr Sheldon (“the applicant”) that I disqualify myself from further involvement in these proceedings. In the event that no other judge is available to determine the seven day hearing due to commence on 5 July 2010, directions are sought for a new trial.
The application is based upon an assertion that there is an apprehension of bias on my part. Specifically, the applicant contends that by reason of remarks I made during the first day of this Div 12A parenting proceedings, a fair minded lay observer might reasonably apprehend that I will not bring an impartial mind to the resolution of the issues that arise in these proceedings.
The application that I disqualify myself was filed on 23 March 2010 and listed for hearing on 15 April 2010. In support of his application the applicant relied upon an affidavit sworn by him the preceding the day, written submissions prepared by his solicitor, Mr Holmes, and oral submissions from his counsel. Ms Weir, who is the respondent (“the respondent”) in the substantive proceedings and this application, filed a Response to an Application in a Case on 14 April 2010. In short she asked that the Court dismiss the applicant’s disqualification application. The respondent relied on her affidavit filed 14 April 2010, the transcript of the 15 March 2010 hearing and submissions made by her counsel.
Before I turn to the disqualification application, it is appropriate to briefly set out some background information. At issue in the substantive proceedings are competing applications for parenting orders which relate to the parties’ two year old daughter, R. Amongst a number of complex issues the Court will be required to decide whether to grant or refuse the respondent’s proposal to take the child to live in Ireland and to have her baptised Roman Catholic.
Background facts
The respondent mother was born in 1977. She is an Irish Roman Catholic. Professionally the respondent has business and administrative experience. At present she does not have paid employment and cares for the child during periods provided for in orders.
The applicant father was born in 1979. He is an indigenous Australian. At present the applicant has part time work as a school teacher and cares for the child during periods provided for in orders.
The parties met in Australia and commenced cohabitation on 1 October 2007.
In December 2007 the parties married.
The child was born in April 2008. It is my understanding that she is the parties’ only child.
In December 2008 the parties and child travelled to Ireland.
The parties separated in Ireland on 3 January 2009.
Not long after the parties separated the applicant returned to Australia. The respondent and child remained in Ireland.
After the applicant returned to Australia he lodged an application pursuant to The Hague Convention on the Civil Aspects of International Child Abduction (“Abduction Convention”) in which he sought that Australia request Ireland to return the child to Australia. Australia then Ireland accepted his application. The Irish Central Authority commenced proceedings in High Court in Ireland pursuant to the Abduction Convention. Those proceedings were resisted by the respondent.
The applicant returned to Ireland for the purpose of the Abduction Convention litigation in June 2009 where he remained until late December 2009.
On 17 July 2009 the Irish High Court granted the application by the Irish Central Authority and, inter alia, ordered that the child be returned to Australia. Against the High Court’s orders the respondent unsuccessfully appealed. Her appeal was dismissed on 19 November 2009.
The Supreme Court of Ireland entered orders on 30 November 2009, which in summary ordered that the child be returned to Australia on 27 December 2009 with the applicant in whose care she would remain for 10 days. During this period the respondent would have access to the child as sought by her. At the expiration of 10 days the child was to be returned to the respondent. Those orders which related to the child’s care in Australia were expressed to be subject to any order made by an Australian court exercising Family Law Act jurisdiction.
In accordance with the return order made by the Supreme Court of Ireland, the applicant and child returned to Australia.
The applicant commenced proceedings for final parenting orders in this Court on 24 December 2009. The same day he filed an Application in a Case. In essence, by way of final order the applicant sought sole parental responsibility and that the child lives with him. In the event the respondent returned to Australia he proposed that she spend time with the child as determined by the Court. The interim application appeared to propose orders in accordance with the conditions for return imposed by the Supreme Court of Ireland.
The applicant’s Application in a Case came before Coleman J the day it was filed. Coleman J made the following orders:
1.That orders be made in accordance with paragraphs 2 to 14 inclusive of the interim application of the father filed 24 December 2009, herein set out as follows:
2.The child [R] born […]/04/2008 (“[R]”) live with her father [MR SHELDON] for a period of ten days upon his return to Australia from Ireland on 27/12/2009.
3.The mother [MS WEIR] spend time with the child during the period the child is living with the father in Australia as the Court thinks fit.
4.That upon the expiration of the time the child is living with the father, she shall live with her mother in terms of this order.
5.When the child is living with the mother, she shall spend time with her father every Sunday and Wednesday between 10.00am and 3.00pm. Changeover shall occur out the front of [T] Police Station in [T], subject to any other order of this Court.
6.When the child is living with the mother, the father shall make available the family home for the mother and the child; and
(a)The property be fully furnished, including a fully stocked fridge.
(b)All personal effects belonging to the father and his family, be removed prior to the mother and the child living there.
(c) All of [the child’s] toys shall remain in her bedroom.
(d)A mutual non−molestation clause shall apply, that neither party shall attend at or in any way interfere with the other party pending any further Order of this Court
7.That there will be a fully insured car for the mother’s use, including a child’s seat which will be made available to the mother for a period of four weeks. The car will be available to be collected by the mother at the airport on her arrival (the arrangement for picking up this car to be arranged between the Solicitors), such that there be no interaction between the mother and the father.
8.The father will pay by way contribution the sum of 250 pounds towards the cost of the mother’s plane ticket. This will be paid through the mother’s solicitors. This payment is to be acknowledged in writing within one day of receipt.
9.The plane ticket for [the child] is to be paid by the Australian Government. It is noted that normally such a ticket is conditional upon the child travelling with the father. However, the father has applied to have this condition lifted so that the mother and the child can travel on separate flights.
10.The sum of 1,000 Australian dollars be paid by way of maintenance for [the child] for a period of four weeks. This should be paid in advance pending any further Order made in this Court.
11.Subject to any right of the parties to make an ex-parte application, neither party shall make an application to the Family Court of Australia without notice, save for the purpose of putting in place this order.
12.The mother will fully cooperate in the obtaining of an Australian passport or visa with the details of this cooperation recorded in writing by the mother’s solicitor to the father’s solicitor. Each step which is taken will be supervised by the Solicitors in order to ensure that there is full and proper compliance with this aspect of the Order.
13.The mother shall be given three days notice as to when spending time arrangements are to commence in Australia. Pending further Order by this Court, there shall be no interaction between the parties save for the purposes of giving effect to the provisions of this Order.
14.A period of six weeks will be permitted between the date hereof for the provision of the Australian passport and any other travel documents and that all or any passports relating to the child will be retained by the mother’s solicitor and will be provided solely for the purposes of the child travelling to Australia.
2.That the father’s initiating application filed 24 December 2009 be made returnable before a Registrar on 29 January 2010.
On 4 January 2010 the applicant filed a further Application in a Case in which he sought to vary the orders made by Coleman J. The applicant had, in the meantime, changed solicitors.
Although it is not clear to me when the respondent arrived in Australia, it would appear she was here before she filed her Application in a Case on 11 January 2010.
On 13 January 2010 Stevenson J made interim parenting orders which covered the period from then until the hearing listed before Austin J on 20 January 2010. These orders are set out below:
IT IS ORDERED:
1.The mother shall surrender all of her passports to the Registry Manager of the Sydney Registry.
2.The solicitor for the mother shall advise the solicitor for the father in writing that this lodgement has occurred.
3.Noted that the mother may require her passport so as to pursue an application for permanent residence in Australia.
4.4.1 The mother shall collect the child, [R], born […] April 2008, from the father at [T] Police Station at 2:00pm today, Wednesday 13 January 2010.
4.2The child shall spend the period from 2:00pm on 13 January 2010 until 2:00pm on 17 January 2010 with the mother.
5.5.1 The father to collect the child from the mother at [T] Police Station at 2:00pm on 17 January 2010.
5.2The child shall spend the period from 2:00pm on 17 January 2010 until 4:00pm on 20 January 2010 with the father.
6. The proceedings are adjourned to 20 January 2010 before Austin J.
7.Noted these orders are intended to cover only the period from 13 until 20 January 2010.
8.The Registry Manager, Sydney is requested to forward the mother’s passport/s to the Registry Manager in Newcastle.
On 20 January 2010 the parties’ respective Applications in a Case were heard by Austin J.
On 22 January 2010 Austin J made the orders set out below:
PENDING FURTHER ORDER IT IS ORDERED THAT:
1.The Interim Parenting Orders made on 24 December 2009 and 13 January 2010 are discharged.
2.The child [R] born […] April 2008 (“the child”) shall live with the mother.
3.Each of the parties shall take all reasonable steps to ensure that the child spends time with the father as follows:
a.Each Sunday from 9:00 am to 4:00 pm, commencing on Sunday 24 January 2010; and
b.Each Wednesday from 9:00 am to 4:00 pm, commencing on Wednesday 27 January 2010.
4.For the purposes of implementing the time spent by the child with the father, the mother shall cause the delivery and the father shall cause the collection of the child at the commencement of the time to be spent with the father outside the [T] Police Station, and the father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent with the father at the same place.
5.The mother shall forthwith surrender to the Registry Manager of the Family Court of Australia at Newcastle all passports held by her.
6.The parties shall forthwith surrender to the Registry Manager of the Family Court of Australia at Newcastle all passports relating to the child.
7.Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the child to be removed from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on that watch list pending further order.
8.Each party shall forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
9.Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS FURTHER ORDERED:
10.Any and all outstanding interim applications are dismissed.
11.Proceedings in Family Court of Australia file SYC7936/2009 are consolidated with proceedings in Family Court of Australia file NCC3259/2009.
12.The matter is referred back to the Docket Registrar for further directions.
The orders sought by the respondent in the substantive parenting proceedings are set out in her Response filed 12 March 2010. In this document the respondent sets out a lengthy array of orders, the majority of which need not be recited here. In general terms, the respondent proposes that the child would live with her in Ireland. It is her proposal that until 1 January 2014 the applicant would spend time with the child in Ireland. Thereafter the child would spend time with the applicant in Australia during the June Irish school holidays and in Ireland in January during the Australian school holidays. Order 20 of the respondent’s proposed orders is that: “The parties shall do all acts and things necessary for the child to be baptised in the Roman Catholic Church.”
On 17 March 2010 the applicant filed an Amended Application. In his Amended Application the applicant proposed a large number of orders, the majority of which need not be repeated here. Relevantly, he proposed that the parties have equal shared parental responsibility for the child, that the child live with the respondent and that there be a graduating scheme for the child to spend time with him until, after about nine months she would spend six nights each fortnight during school term, half of each school holiday and other special days in his care. In addition, he proposed a suite of injunctions which included an order that would restrain both parties from permitting the child to reside outside the Central Coast of New South Wales.
The respondent filed her Parenting Questionnaire on 18 February 2010.
The applicant filed his Parenting Questionnaire on 17 March 2010.
On 15 March 2010 the parties and their lawyers appeared before me for the first day of trial. Neither the solicitor for the applicant nor counsel for the respondent considered that there would be any utility in either party being called to give evidence that day. For reasons which were not apparent, the parties had not participated in a Child Dispute Conference and I did not have a Child & Parents Issues Assessment. In the event, I made the following orders and notations:
BY CONSENT IT IS ORDERED:
1.That the parties’ competing Applications for Final Orders be listed for an expedited Hearing before a Judge of this Registry.
2.That the parties file and serve all affidavits on which they rely, apart from the experts referred to in Orders 3 and 4, by 4.00 pm Monday 31 May 2010.
3.Pursuant to s 62G(2) of the Family Law Act 1975 that the parties and the child of the relationship [R] born […] April 2008 attend upon a Family Consultant nominated by the Manager, Child Dispute Services of the Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report shall investigate and report upon the following
a) The nature of the relationship of the child with both her parents and others, including grandparents.
b) The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
c) The likely effect of any changes in the child’s relationship, including the mother’s application to relocate with the child to Ireland, including the likely effect on the child of any separation from:
(i)either of her parents;
(ii)any other child or other person with whom she has been living or has a relationship with.
d) The practical difficulty and expense of the child spending time with and communicating with a parent including the mother’s application to relocate with the child to Ireland and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents.
e) The capacity of both parents and other persons to provide for the needs of the child.
f) The background of the child and her connection with her Gaelic including her Roman Catholic background and Aboriginal background.
g) The attitude to the child and to the responsibility of parenthood demonstrated by both parents.
h) Any family violence or domestic violence orders.
i) What order would be least likely to avoid further proceedings between these parties.
j) Such other matters as the Family Consultant considers relevant.
4.That a Chapter 15 Single Expert be appointed, such costs to be borne by Legal Aid New South Wales and in the absence thereof, each party to pay one half of the costs thereof with the final apportionment to be reserved to the trial Judge, such report to include:
(i) Whether either of the parties suffers from a mental illness.
(ii) Whether either of the parties has a personality disorder.
(iii) The impact upon the mother’s psychological wellbeing and/or mental health if her application to return to Ireland with the child is refused.
(iv) If either of the parties has a mental illness and/or personality disorder, the impact of this upon their parenting capacity.
(v) If either of the parties has a mental illness and/or personality disorder, whether these are amenable to treatment.
(vi) Such other matters as the single expert considers relevant.
5.Liberty to apply on 5 days notice including any issues as to the letter of instruction to the single expert.
IT IS FURTHER ORDERED:
6.I give the parties leave to issue subpoena for the production of documents which they consider relevant to this matter.
7.The Docket Registrar is to contact the solicitor for the father in about 7 days so as to establish whether a possible expert has been identified in relation to the Darkingjung people and associated cultural issues.
8.This matter is listed for final hearing before me for 7 days commencing 10.00 am on 5 July 2010.
9.That further consideration of this matter is adjourned to 9.30 am on 8 June 2010.
10.At this stage the father does not have leave to adduce adversarial expert evidence.
NOTED:
A.That both parties are in receipt of Legal Aid.
B.That both parties have filed with the Court at List of Witnesses and it is the parties’ intention to call those witnesses.
C.That these directions are made on the basis that the proceedings will be heard in July or August 2010.
D.The parties estimate the hearing time at approximately 7 days.
E.The issues for trial are, including:
(i) The mother proposed relocation with the child to Ireland.
(ii) The child’s Aboriginality.
(iii) The attachment of the child to her parents and others.
(iv) Domestic Violence.
(v) Whether the mother relocates or not, the time that the child spends with either parent.
(vi) The child’s religion and Irish heritage.
NOTATION
F.The father asserts his Aboriginality and therefore the child’s Aboriginality. The mother does not concede these assertions.
Before me the parties identified the witnesses who would be called. Neither party sought the appointment of an Independent Children’s Lawyer.
The law in relation to the apprehension of bias principle
In his written submissions, the solicitor for the applicant stated correctly that the test by which a judge decides to disqualify himself or herself is to be found in paragraphs 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 and the apprehension of bias principle was recently the matter of consideration by the Full Court of the Family Court in Strahan & Strahan (Disqualification) (2009) FLC 93-414. In Strahan the Full Court, per May, Boland and Thackray JJ, determined that the applicable law for applications such as this to be as follows, at pp 83,688 - 83,691:
3. The law concerning disqualification on account of apprehended bias is well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) held at 344-349:
‘6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
...
The principle to be applied
19. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21. It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22. The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23. Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
24. In Webb v The Queen, a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information. It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed. However, it provides a convenient frame of reference.
4. In the earlier decision of Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492–493:
10. The disposition of this appeal depends upon the application of principles which are well established and which neither party disputed. The contention was that there had been a departure from those principles which the Full Court of the Family Court had wrongly failed to correct, thus calling for the intervention of this Court, if only to emphasise the importance of intermediate courts applying these principles. In these circumstances it is neither necessary nor appropriate to undertake any detailed analysis of the principles or their basis.
11. ... It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. [original emphasis]
12. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’.
13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case’. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”
(footnotes omitted) (emphasis added)
5. It will be noted that the plurality in Johnson considered it unnecessary to undertake a detailed analysis of the principles relating to apprehended bias, preferring to rely on the test of ‘whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.’ The plurality in Ebner articulated a two step process to be used in applying that test in individual cases. The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the ‘logical connection’ between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.
6. In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. This point was firmly made by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342. Given the importance of the proposition, and the fact that Strickland J cited it in his reasons, we propose to set out what Mason J said at 352:
‘It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.’
(footnotes omitted)
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”.
Hayne J explained that the development and application of the reasonable apprehension of bias test turned what would otherwise have been a wholly subjective inquiry into one which is objective. Hayne J said:
185.Saying that a decision maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
186.Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that [R v London County Council; re Empire Theatre (1894) 71 LT 638 at 639 per Charles J]:
… preconceived opinions – though it is unfortunate that a judge should have any – do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded [emphasis per Hayne J].
Allegations of apprehended bias through prejudgment are often dealt with similarly (see, for example Johnson v Johnson (2000) 174 ALR 655 at 658-9).
In MIMA v Jia Gleeson CJ and Gummow J at par 71 gave further consideration to the word ‘bias’. At par 71 their Honours said:
Decision makers, including judicial decision makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
Throughout MIMA v Jia one sees consideration given to the importance of the context in which the decision maker is to carry out his or her task. It was explained that rules developed in the context of judicial decision making would not automatically apply, for example, to administrative decisions. The rules, processes and legal requirements which apply to the particular decision making role are relevant. In relation to courts and judges, Hayne J explained the decision making context thus:
178.Courts in this country make decisions by procedures that are both formal and adversarial. They do so by the application of rules for decision making which, although not always defined with absolute certainty, are generally discernable before the contest is joined and are set by legislative or judicial processes which are external to the judge. The process of adjudication is generally conducted in open court. The judge must give reasons for the decision that is reached.
179.Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise. …The central task and, it may be said, the only loyalty, of the judge is to do justice according to law.
The Full Court in Strahan incorporated into its reasons para 12 of Johnson v Johnson. This is where the plurality observed that it must be remembered that ‘the person being observed is a “professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial.” This is to be undertaken in the context of ordinary judicial practice, which it was noted is a concept not fixed in time.
In Strahan the Full Court also incorporated par 13 of Johnson v Johnson into its reasons. This is where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ referred to the level of knowledge imputed to the hypothetical fair minded lay observer. This would include, as was made plain in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 per Mason CJ and Brennan J, the imputation that the fair-minded lay observer would have knowledge of the actual circumstances of the case. See also Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43. In Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Callinan J at par 177 said:
It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried.
In a similar vein Lander J in Australian Securities and Investment Commission v Reid [2005] FCA 1274 reviewed authorities concerned with the level of knowledge and characteristics imputed to the fair minded lay observer. After he completed his review Lander J at par 110 described such a person as one:
“ … who is reasonable and fair minded, who has a general understanding of the facts and circumstances surrounding the case, who is not a lawyer but is not wholly uninformed and uninstructed about the law in general, and who would ordinarily think that a judge will act so as to ensure both the appearance and substance of fairness and impartiality without at the same time rejecting the alternative possibility.
Any discussion about the apprehension of bias principle would be incomplete without reference being made to waiver and prudent disclosure. In Vakauta v Kelly (1989) 167 CLR 568 it was put beyond doubt that a litigant who was aware of circumstances which would give rise to an objection to the constitution of the court but who failed to object is taken to have waived his or her right to do so. In that judgment at page 572 Brennan, Deane and Gaudron JJ explained the rationale for the waiver principle. Relevantly, their Honours said:
…. 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.
An issue connected to the waiver principle is the circumstance in which a judge, as a matter of prudence and professional practice should disclose interests and associations which may give rise to an apprehension of bias. In Ebner Gleeson CJ, McHugh, Gummow and Hayne JJ said a judge should disclose such interests if there exists a serious possibility that they would be potentially disqualifying. While a matter of prudence their Honours said at page 360:
It is, however, neither useful nor necessary to describe this practice in terms of rights and duties. At most, any “duty” to disclose would be a duty of imperfect obligation.
And at pages 360-361 their Honours noted:
Disclosure of association may raise more difficult questions than are presented by the straight forward case of ownership of shares in a corporation. It is impossible to identify all of the kinds of association which might be thought to reveal a serious possibility of being potentially disqualifying.
In a similar vein, but not with the threshold raised as highly as stated by the plurality in the quote just referred to, in Ebner Kirby J said at page 393:
Many authorities emphasise the prudence and desirability of disclosing to the parties any facts or circumstances which could lead to a disqualification for bias. Moreover, in some circumstances, failure to disclose such an interest will not only remove the possibility of an informed waiver but will lead to a sense of disquiet, and perhaps the suggestion that the want of disclosure has an improper or sinister explanation.
Kirby J reinforced the importance of early disclosure by a judge to the litigants and legal practitioners of any possible potentially disqualifying interest or association. In Smits v Roach [2006] 227 CLR 423 Kirby J explained that such an approach:
102. … promotes transparency in the judicial process. It relieves the parties of inquiring into, or otherwise investigating, judicial interests and associations. It invites a timely and informed decision on the part of the judge, litigants and legal practitioners as to whether any disclosed interest should be waived. It removes the cause of judicial resentment or irritation when the question of disqualification is raised belatedly, as it was in this case. The practice of prior disclosure of any possible interests, statements, associations, relationships and extrinsic knowledge thus operates prophylactically. It helps to maintain respect for the integrity of judicial performance in the nation, as a model for the region and the building of the rule of law globally. This is not just a question of prudence. It is part of the governing law. [my emphasis]
The authorities discussed above and the principles derived there from comprise the law which is to be applied to applications such as that which is under consideration.
Legislative framework
Before I turn to consideration of the remarks relied upon by the applicant, it is appropriate to establish the context in which the substantive hearing would be 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). 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. Because of the matters at issue the statutory provisions which refer to Aboriginal culture and culture generally must be considered. Again, because of the identified issues, those statutory provisions which would enable the Court to consider religion will require consideration. The process is discussed in Goode and Goode (2006) FLC 93-286 and MRR v GR (2010) FLC 93-424.
The principles for conducting child related proceedings, which includes applications for parenting orders, are identified in Div 12A of Pt VII. Section 69ZN, which sets out the principles, is set out below:
Principles for child-related proceedings
Application of the principles
1) The court must give effect to the principles in this section:
a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
b)in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
2) Regard is to be had to the principles in interpreting this Division.
Principle 1
3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
a)The child concerned against family violence, child abuse and child neglect; and
b)The parties to the proceedings against family violence.
Principle 4
6)The fourth principles that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
In s 69ZQ the general duties imposed upon a judge required to give effect to s 69ZN are identified. Section 69ZQ is set out below:
General duties
1) In giving effect to the principles in section 69ZN, the court must:
a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
b)decide the order in which the issues are to be decided; and
c)give directions or make orders about the timing of steps that are to be taken in the proceedings; and
d)in deciding whether a particular step is to be taken – consider whether the likely benefits of taking the step justify the costs of taking it; and
e)make appropriate use of technology; and
f)if the court considers it appropriate – encourage the parties to use family dispute resolution or family counselling; and
g)deal with as many aspects of the matter as it can on a single occasion; and
h)deal with the mater, where appropriate, without requiring the parties’ physical attendance at court.
2) Subsection (1) does not limit subsection 69ZN(1).
3) A failure to comply with subsection (1) does not invalidate an order.
Chapter 16 of the Family Law Rules 2004 is concerned with judge managed court events. Pt 16.3 is concerned with parenting proceedings. In relation to the first day of trial r 16.08 describes the process thus:
First day of trial
(1)The first day of trial will be conducted by the Judge who will:
(a)if evidence is taken at the first day of trial – preside at the entire trial; and
(b)usually preside at the entire trial even if evidence is not taken at the first day of trial.
(2)For these Rules, the trial is taken to have started on the first day of trial, whether or not any evidence is taken or submitted at the trial.
Note Subrules (1) and (2) apply unless the court orders otherwise (see rule 1.12).
(3)The purpose of the first day of trial is:
(a)for the presiding Judge, with the assistance of the parties and their legal representatives, to discuss and identify the orders sought and issues in dispute between the parties arising from the applications before the court;
(b)in the ordinary course, to hear and determine any interlocutory issues or interim applications that are outstanding on the first day of trial, or to make appropriate arrangements for the determination of those applications;
(c)in a children’s case – to receive evidence, including from the family consultant in the case;
(d)if this rule applies because subrule 16.04(2) applies – to consider the balance sheet; and
(e)to consider and determine a plan for the remainder of the trial.
Because of the interplay of r 16.08 and r 16.04, the latter being concerned with trial management, it is appropriate to here set out r 16.04:
Trial management
(1)For rules 16.08 to 16.13, the court may make any order about the conduct of the trial, including an order:
(a)related to the issues on which the court requires evidence, including:
(i)the nature of the evidence (including expert evidence) required to decide the issues;
(ii)which witnesses a party may call on a particular issue;
(iii)how the evidence is to be adduced;
(iv)granting permission to issue subpoenas to produce documents or to attend, or both;
(v)preparation by a family consultant of a family report, or requiring the family consultant to undertake other investigations or carry out other tasks having regard to the functions of family consultants set out in section 11A of the Act;
(vi)determining any evidentiary questions that arise;
(vii) the time to be taken for evidence in chief, cross examination or re-examination of witnesses to give evidence, and submissions; or
(viii) the sequence of evidence and addresses;
(b)limiting the time for the presentation of a parties case; or
(c)Allocating a date or series of dates for the continuation of trial.
(2)If the parties have both consented to a financial case being dealt with under Division 12A of Part VII of the Act, rules 16.08, 16.09 and 16.10 apply to the financial case.
The comments made on 15 March 2010
As I said earlier, the applicant relied upon an affidavit filed by him on 23 March 2010 together with submissions. The applicant did not provide a transcript nor it would appear was one provided to him before he completed his affidavit. The evidence relied upon by the applicant is brief, and may be usefully fully set out here. In his affidavit the applicant deposed:
2.The respondent mother is seeking orders from this court to enable her to take my daughter to Ireland to live and to be raised in the Roman Catholic faith.
3.To the best of my knowledge and belief, all of the respondent’s family who will be witnesses in this case are from Ireland and are also members of the Roman Catholic faith.
4.On 15 March 2010, her Honour Justice Ryan, without any invitation, announced to the Court her personal beliefs and faith, by saying words, as best I can recall, to the effect of:
‘I have Irish heritage. I am a member of the Roman Catholic faith. A lot of judges are called upon to decide issues pertaining to religion. I am disclosing that I am a Roman Catholic. In the past, I had to decide a case where one parent wanted the children to attend a catholic school and the other parent wanted the children to attend a public school. In that case I ordered that the children attend the public school. I don’t make any direct connection to the present case but it might give the father some peace of mind. Are you happy for me to proceed with this case?’
5.I did not have time to properly consider the impact of that sudden remark. I did not want to appear to be offending the judicial officer whom I understood was to determine my daughter’s fate.
6.Her Honour then proceeded to make directions in relation to setting the matter down for trial.
7.I have now reflected on the matter and I do have an objection to her Honour conducting the hearing in this manner in light of her volunteering of the information relating to her personal faith.
8.The question of my daughter’s religion is an important issue to me.
9.I request that another judicial officer be appointed to determine these proceedings.
The respondent relied upon the authorised transcript which, her counsel submitted, was a more accurate record of the hearing. No issue was taken by counsel for the applicant that this was so. The transcript records that the hearing on 15 March 2010 commenced at 2.35 pm and concluded at 4.59 pm. During this period the parties and their lawyers were in and out of the court room. Through their lawyers, the parties agreed that I would not take evidence that day and the focus of the first day of trial would be upon the identification of issues, settling a list of witnesses, determination of areas where expert evidence would be required plus making provision for this and otherwise trial directions which would bring the proceedings on for hearing in an appropriately prompt manner. So that the parties and their legal representatives could discuss and where possible agree upon those matters the matter was stood down at 2.44 pm and resumed at 4.11 pm. When the matter resumed the Court was provided with a set of directions and notations for consideration. At 4.27 pm the transcript reveals that as required by s 69ZN, s 69ZQ, r 16.04 and r 16.08 I embarked on the process of providing the Court’s input into the list of issues. The list of issues provided to me was as follows:
E. The issues for trial are, including:
(i)The mothers proposed relocation with the child to Ireland.
(ii)The child’s Aboriginality.
(iii)The attachment of the child to her parents and others.
(iv)Domestic violence.
(v)Whether the mother relocates or not, the time that the child spends with either parent.
(vi)The child’s religion and Irish heritage.
NOTATION
F. The father asserts his Aboriginality and therefore the child’s Aboriginality. The mother does not concede these assertions.
Between pages 9 and 14 (inclusive) of the transcript there is recorded exchanges between the parties’ lawyers and me in relation to clarification of some of the issues, identification of witnesses and the type of trial directions which might be appropriate. At page 15 of the transcript the discussion and remarks under consideration commence. The transcript of these exchanges are set out below:
HER HONOUR: I see on the list of issues matters concerning the child’s religion and Irish heritage.
MR TREGILGAS: Yes, your Honour.
HER HONOUR: Now, I suppose my heritage is Irish, but a very, very long time ago, and is there an issue about whether or not this child is a Roman Catholic, or should be a Roman Catholic?
MR TREGILGAS: I think the issue, your Honour, that has been articulated by my client is my client has sought for the child to be baptised and become a member of the Roman Catholic church, and I understand that, at least at this stage, the father has been resistant to part of that, but that probably is part of the issues.
HER HONOUR: All right. Am I going to be asked to make orders to that effect, because the only reason I raise it is that I am also of the Roman Catholic faith, and think in the cultural make-up of Australia there is a pretty significant membership of the community that has that Irish-Catholic background. I, speaking for myself, don’t consider that I would have any difficulties determining issues of this type, but I thought if there are going to be issues for the parties, I would raise that now.
MR TREGILGAS: Well, we don’t see that as being a matter that we would seek your Honour to disqualify herself - - -
HER HONOUR: It is probably more an issue for - - -
MR TREGILGAS: - - - but it is for the father.
HER HONOUR: - - - Mister - - -
MR KATSIKARIS: Katsikaris, your Honour.
HER HONOUR: - - - Katsikaris. The big problem is I can’t read my own writing.
MR KATSIKARIS: Well, your Honour, of course it is a christening as opposed – because of the differences in cultural background and - - -
HER HONOUR: Yes.
MR KATSIKARIS: - - - and what the father seeks in terms of her religion, for the want of a better term. So you will be asked to determine that.
HER HONOUR: All right. Well, look, I am just trying to think, you know, I don’t want to discuss - personalise, obviously, but I delivered a judgment as a Federal Magistrate where I was asked to determine – it was a long time ago now - - -
MR TREGILGAS: This is the case involving the Lebanese people.
HER HONOUR: That’s the one.
MR TREGILGAS: Yes.
HER HONOUR: Where there was a dispute between two parents about whether a child should be reared, as the father asserted, in the Lebanese Catholic Maronite faith, or as the mother suggested either in accordance with Islam or the child left to make his own determination at an age when he had the capacity to do so, and off that hung an issue about whether the child would go to a state school or a Catholic Maronite school, and I determined that the child should be able to attend the state school which I think would, if I was driven by my own cultural and religious heritage, would have seen the child in the Catholic Maronite school, but there is a discussion there, and I perhaps think that might put your client’s mind at rest. But if it is going to be an issue then we need to know fairly promptly. I just can’t remember the citation because it is so long ago.
MR KATSIKARIS: Right. Your Honour, the father just asserts that the child should be left to make - - -
HER HONOUR: His own decision in his own time.
MR KATSIKARIS: - - - its own decision in its own time.
HER HONOUR: Or her own decision in her own time.
MR KATSIKARIS: Yes. Yes, your Honour.
HER HONOUR: All right. Well, we will just proceed.
MR TREGILGAS: Yes.
MR KATSIKARIS: Happy to, your Honour.
HER HONOUR: All right. Then we can adjourn. Thank you all.
MR TREGILGAS: Yes. Thank you for your time, your Honour.
In relation to the events of 15 March 2010, the respondent, having referred to the details of the hearing in reasonable chronological order, summarised the final remarks made by me at the foot of page 16 of the transcript. The respondent then said ‘I then recall that her Honour then said words to the effect, ‘Alright. Well, we will just proceed.’ I recall that the father’s solicitor bent down and spoke to the father briefly. I saw the father nod his head and then the father’s solicitor said: ‘Happy to, your Honour.’ In the paragraph which followed the respondent said, ‘On 15 March 2010, [the father] was legally represented and had the benefit of representation and advice. On that date, I recall that the matter was stood in the list on multiple occasions whilst myself and [the father] instructed our lawyers.’
The applicant did not challenge the evidence given by the respondent in the paragraphs of her affidavit quoted above. The inference drawn from pars 9 to 11 inclusive of the respondent’s affidavit is that after I referred to my religion and ancestry the applicant’s solicitor spoke to him and sought his instructions about whether he wished to challenge my stated intention to continue with the matter. The applicant’s solicitor relayed the applicant’s position on this matter as being happy that I do so. If perchance the applicant had formed an impression which further discussion might have clarified by the Court being afforded the opportunity to clear any perceived wrong impression neither he nor his lawyer said so. Nor did the applicant suggest that he would like further time to reflect on the matter.
Discussion and conclusion
Before turning to consider the Ebner steps it is necessary to address the submission made by the respondent that the applicant waived his entitlement to challenge the composition of the Court. This is because after I raised the matters upon which the applicant now relies in his disqualification application the applicant, through his solicitor, agreed that I continue to determine the proceedings. In Vakauta v Kelly the plurality, as I have already mentioned, referred to the importance of objection being “taken to the comments at the time”. According to the principles referred to in Vakauta v Kelly a party may not stand by once the comments to which objection is taken are made and is required to raise any objection in a timely way. The passage of one week between when my comments were made and the application that I disqualify myself, without more, would not necessarily amount to a waiver based on delay. However, as the evidence established, the applicant was legally represented on 15 March 2010. After the comments were made by me the applicant and his solicitor conferred, albeit briefly. The applicant, through his solicitor, expressly agreed that I should continue to hear the proceedings. There was no application by the applicant to adjourn the hearing, whether to have the matter stood down or to another day. I infer the applicant and his lawyer were satisfied they had sufficient time and information to give the matter due consideration. No complaint has been made by the applicant that in some fashion the legal advice provided to him that day was erroneous or incomplete. That the applicant retains those same lawyers for this application indicates his satisfaction with the advice which he received that day.
It would detract from the Court’s capacity to conduct litigation in an orderly manner if, upon early disclosure by a judge of any possibly disqualifying association, a party having given informed consent were able at a later time, to resile from it. The applicant’s explanation for his decision to resile from his consent was that he had insufficient time to properly consider the impact of my comments and did not wish to appear offensive. These are the types of considerations which one would reasonably anticipate were the subject of advice by those who represented him. The applicant also relied upon his reflections that my comments had been volunteered. As was made plain in Ebner and Smits v Roach a judge should make early disclosure “of any possible interests, statements, associations, relationships and extrinsic knowledge …” This was explained by Kirby J as being not merely a matter of prudence but “part of the governing law.”
Bakarich v Commonwealth Bank of Australia, which case was referred to in the applicant’s written list of authorities, demonstrates that minds may differ about the extent to which judicial disclosure is warranted. In Bakarich the applicant sought to re-open an appeal so as to assert that the trial judge should not have heard the case by reason of his professional association with counsel for the respondent, common shareholding in chambers and interest with counsel in a business venture. Campbell JA who was a member of the Court of Appeal which would determine the application to re-open the appeal decided to attend an early directions hearing of the appeal so as to make a statement on the record. At par 10 of his Honour’s reasons he wrote:
At the hearing on that day, I made a statement in the following terms:
The principle reason why I’m here today is that there are some things that I think in light of the particular allegations that have been made in this case I ought to disclose. These are things which I would not, in the ordinary course of things, feel any need to disclose but because of the particular allegations that have been made, I think caution suggests that I should put them on the record in the present case …
His Honour then placed on the record his professional dealings with those counsel who had appeared at trial, professional contact with the respondent and prior shareholding in counsel’s chambers. His Honour concluded his remarks with:
I think that it is, as I say, useful to have those remarks on the public record just so that people will have the opportunity of deciding whether they wish to do anything about them or not.
The judgment in Bakarich records that his Honour’s disclosure led to an unsuccessful application that he should disqualify himself. The facts recited by Campbell JA in his remarks quoted above illustrate that although his Honour did not consider his interests and associations were matters he was required to disclose, a cautious approach to the issue made disclosure appropriate. In my view prudent and early disclosure of any possible association volunteered by a judge is not by virtue that the information was volunteered of itself an appropriate basis for the applicant in this case to be permitted to resile from his earlier consent.
In the event that I am wrong in my acceptance of the submissions made by the respondent that the applicant waived his right to now object to my further hearing these proceedings, it is appropriate to consider the Ebner steps.
In relation to step one, the submissions presented by the solicitor for the applicant were as set out below:
It is said that, with respect, that the voluntary disclosure by Her Honour, as to each of her ‘Irish heritage’ and her personal religious faith (Roman catholic), coupled with her query, ‘Are you happy for me to proceed’ (see Father’s affidavit), the Father now, upon due and careful consideration of the remarks – to which, we say, with respect, he is entitled to do (and he has those objections), constitute the remarks complained of.
A difficulty which arises in relation to this first step is that the evidence relied upon by the applicant of the remarks attributed to me on 15 March 2010 and which are identified at par 4 of his affidavit are incorrect. During submissions, I enquired of counsel for the applicant whether it was important that the evidence relied upon, which were said to give rise to an apprehension of bias, needed to accurately recite the remarks made. Counsel submitted that it was sufficient that there was a perception. I do not agree. These are factual matters which must be established with reasonable certainty. I intend no criticism of the applicant by my observation that par 4 of his affidavit could be described as a précis of part of the context and discussion which took place. Given that his affidavit was completed without a transcript it is easy to understand how his evidence was incorrect. In any event the test is not what the applicant perceives had occurred on 15 March 2010 but how a fair minded lay observer considers I might approach the determination of the issues in this matter. This is a question of real (not remote) possibility. The fair minded lay observer would consider the matter in the context of the known facts and aware that the judicial oath or affirmation requires a judge to determine the matter without fear or favour, affection or ill will in accordance with the applicable law.
As I understand the applicant’s submissions they are to the effect that the fair minded lay observer would be troubled by disclosures which were “volunteered”. This, it was submitted, would cause the hypothetical observer to consider that those matters were “significant to me”. It is contended that my remarks could only be interpreted as being an “invitation to the parties to object” which would reinforce the notion that the Court might be seen as partial to an issue or issues in the case.
The hypothetical observer would consider the known facts in the context of a first day hearing before a judge. These first days take a variety of forms and are conducted with varying degrees of formality. My remarks were made in the context of settling a list of issues in which matters of Catholicism and Irish heritage were raised. Settling issues includes identifying matters which theoretically could be issues and then establishing those which are relevant to the hearing. It is a process which commonly sees matters which had been raised as potential issues after discussion are then discarded as irrelevant or uncontentious. In response to these matters I said “Now, I suppose my heritage is Irish, but a very, very long time ago...” The hypothetical observer would not interpret these words as evidence this heritage was important to me, but rather view them as intended to convey that perhaps generations ago members of my family migrated from Ireland to Australia. In the context of the issues in the case and aware that all judges ordinarily ensure justice is not only done but is also seen to be done, my disclosure would provide reassurance not apprehension.
I then sought clarification of whether there was an issue which involved Catholicism. After I was informed that there was I said: “All right. Am I going to be asked to make orders to that effect, because the only reason I raise it is that I am also of the Roman Catholic faith, and think in the cultural make-up of Australia there is a pretty significant membership of the community that has that Irish-Catholic background. I, speaking for myself, don’t consider that I would have any difficulties determining issues of this type, but I thought if there are going to be issues for the parties, I would raise that now.”
The fair minded lay observer would not interpret these remarks as evidence of partiality, possible prejudgment or evidence the Court may decide the matter other than by reference to law. There is in the remarks a specific disavowal that there is any tension for me between my faith and my judicial responsibilities. I did not, as was submitted a fair minded lay observer would conclude, here invite a party to seek that I disqualify myself. My comments would be properly interpreted as early disclosure of matters which may be of interest to the parties but in relation to which I perceived no difficulty. If, however, a party felt otherwise there was an invitation to raise the matter for discussion. Discussion could then occur and perhaps any misconception or concerns could be addressed.
There then follows discussion between the parties’ lawyers and me in relation to a case I decided some years ago in which I was required to consider issues with some similarity to those under discussion in this case. I concluded that discussion with the words “But if there is going to be an issue then we need to know fairly promptly”. In my opinion a fair minded lay observer would not interpret these words as an invitation by me to a party that I disqualify myself. Rather, that having disavowed any sense I might be distracted from my responsibilities as a judge, if nonetheless the applicant wanted to raise these matters as issues for further discussion he could. Similarly that if he considered he would seek to apply to me that I disqualify myself he needed to inform me fairly promptly. The first would be perceived as a matter of transparency and would be accepted as evidence of a commitment by the judiciary to prudent conduct and transparent practice. The later was a case management issue which would be perceived by the hypothetical observer as a helpful reminder that Ebner required that these matters be considered in a timely way.
For these reasons, I do not consider that the fair minded lay observer might reasonably interpret my remarks in the context within which they were made in the way which the applicant says they should be interpreted. The applicant has thus failed to establish the first step.
Nonetheless, in case I am wrong in that conclusion I will consider the applicant’s arguments in relation to the second step in Ebner. The written submissions presented by the solicitor for the applicant were as set out below:
Step 2.
(a)The connection is that these discrete “matters”, that is to say her Honour’s Irish Heritage and her Honour’s Roman Catholic faith, in clearest terms, go to the heart of the case and constitute the kernel of the case for the child, the very issues the Court is being asked to decide in relation to the child – that is to say, the heritage that this child will be overwhelmingly or predominantly exposed to for the remainder of her minority at the very least and the manner of her religious upbringing.
Submissions
(b)The Father is an Aboriginal man and has connections with the […] people. The Mother is both an Irish National and is Roman Catholic.
(c)At the Abbreviated Less Adversarial Trial on 15 March 2010, Her Honour Justice Ryan made, on her own volition, the disclosures as previously set out herein. The very fact that such remarks were so made, coupled with the invitation to the parties to object, give rise to the inference that this issue was clearly in the forefront of her Honour’s mind and of such significant importance that there be such a disclosure, of this nature, there can be no other reason for the remarks being made. There was no invitation to the Court, indeed by either party, for such personal information.
(d)The remarks could not be said to have been “taken out of context” by the Father. The context was clear and unambiguous.
(e)Nor, obviously, can this be said to be a situation of any form of robust exchange between Bench and bar table, as the basis to this Application.
(f)The issues of both religion and heritage are at the heart of this case. The Court is statutorily obliged to consider heritage (Section 60CC(3)(h)). Having now declared her own heritage, in this way, a fair-minded lay observer might reasonably apprehend that her Honour may not bring an impartial mind to the consideration of both heritage and religious faith.
(g)Having made a public declaration of her personal faith, it is implicit that there is a duty owed by her Honour to that Church, which now sits in conflict with her Honour’s duty to sit in judgment of this Court on the very issue of the child’s religious upbringing. The doctrine of the Church, publicly available, is that members of the Catholic faith have a duty to evangelize, as clarified by the “Doctrinal Note on Some Aspects of Evangelization”.
(h)It is submitted that the threshold test is met in the present circumstances, ie. That a fair-minded lay observer might reasonably apprehend that Her Honour might not bring an impartial mind to the resolution of the questions to be decided, is met in the present circumstances (Ebner). [footnote omitted]
Central to the submissions made in support that the second step in Ebner has been established is the fact that my comments were disclosed without a request having first been made by a party for information. The point of disclosure, amongst other things, which Kirby J explained in Smits v Roach is that: “It relieves the parties of inquiring into, or otherwise investigating, judicial interests and associations.” With respect to the submissions made on behalf of the applicant, a fair-minded lay observer would expect that by reason of the judge’s training and the obligations of office the judge would disclose “any possible potentially disqualifying interest or association.” It goes to the issue of transparency and is an area where the authorities demonstrate that a judge should be proactive not merely reactive. The contention that “the very fact that such remarks were so made, coupled with the invitation to the parties to object, give rise to the inference that this issue was clearly in the forefront of her Honour’s mind and of such significant importance that there be such a disclosure, of this nature, there can be no other reason for the remarks being made.” With respect to the submission the inference contended for is unavailable. The fair-minded lay observer aware of the actual circumstances of the case, namely the issues relating to heritage and religion, would infer that the Court did no more than act prudently and in accordance with the governing law. This view would have been reinforced by my remarks, “I, speaking for myself, don’t consider that I would have any difficulties determining issues of this type ..”. In other words the fair-minded lay observer would conclude that I did not perceive any allegiance or loyalty to either my long ago Irish heritage or religion and that I saw no difficulty, as required by my judicial oath, in ensuring my “only loyalty” as being “to do justice according to law.”
It was submitted by the solicitor for the applicant: “That members of the Catholic faith have a duty to evangelize”. That is all Catholics irrespective of their situation or beliefs. As I understood the submission it was to the effect that such loyalty as the applicant imputes I would have to evangelize would be considered by the fair-minded lay observer as evidence there was a real possibility I would prioritise that asserted duty over my oath or affirmation as a judge. There is no basis upon which a hypothetical observer could conclude that the so called duty to evangelize was a concept embraced by me. However, even if I accepted, which I do not, that the hypothetical fair minded lay observer may so conclude, such an observer would have turned his or her attention to the case to which I made reference on 15 March 2010. That is consider whether the so called “duty to evangelize” had brought me into conflict with my judicial oath. While I accept earlier cases decided by me do not illustrate how I would determine a different case the point here is that whether or not I accepted a ‘duty to evangelize” could be reasonably established or refuted by consideration of this case. In other words it formed part of the known facts.
The case to which I made reference at the foot of page 16 of the transcript was reported as In the Marriage of H (2003) 30 Fam LR 264. Butterworth’s authors described the facts in that case as relating to:
Proceedings concerning parenting orders for a child of three and a half years, the mother (M) was a Muslim Lebanese Australian. The father (F) was a Catholic Maronite Lebanese Australian. …. The parties disagreed as to the proposed faith of the child, who was born towards the end of 1999. (F) at that time threatened to leave (M) unless the child was baptised in the Catholic Maronite faith. (M) relented and the child was baptised in his father’s faith at eight weeks of age. …. The unresolved issues largely concerned the differing religious beliefs of the parties and their opinions as to how and where the child should be educated. Each party had been educating the child in their own faith when the child was in their care; however they were unable to agree as to which school the child should attend in the future, and how to divide contact time during the significant religious ceremonies such as Eid and Palm Sunday. (F), while acknowledging that the child should have some knowledge of (M’s) faith, sought an order that inter alia the child be educated in a Catholic Maronite school. (M) agreed that the child should be raised with knowledge of the religions of both parents, but argued that the child should attend a non-denominational state school. She wanted the child to be able to determine his own religious identify when mature.
Ultimately, for the reasons discussed in my judgment, I determined that the father’s desire that the child should attend a Catholic school should be rejected. Having read this judgment the fair minded lay observer would conclude that if what the submissions for the applicant referred to as the “duty to evangelize” had been a matter of concern to him or her, this judgment demonstrated in the judicial contact it was not.
It follows that prudent disclosure of matters which might be perceived by a party to have some relevance to how the Court is constituted do not amount to an assertion by the Court that the Court is concerned about these matters. In other words, by making disclosure the fair minded lay observer would not regard this as an acknowledgement by the Court that the Court considers that there may be a problem. Rather such a person would conclude that there exists a genuine desire for transparency and where concerns may unexpectedly arise afford a concerned party the opportunity to discuss and resolve these through clarification.
So that it is clear I do not accept that there is any logical connection between my personal circumstances as expressed to the parties on 15 March 2010 and the issues in this case. The matters I am required to determine relate to the parties and the child none of whom has any association to me. It follows that I do not accept that the remarks made by me would be seen as having any logical connection to the issues I must determine. My clear task is to make a decision in accordance with the law and nothing more. The applicant has failed to establish that the hypothetical observer might reasonably apprehend that I would deviate from deciding the case on its merits.
For the reasons set out above the application that I disqualify myself will be dismissed.
Costs
At the end of the hearing submissions were made in relation to costs. As I understood it both parties were in receipt of a grant of legal aid but it was only the respondent who, if the applicant failed, had a condition attached to their grant of legal aid which required them to make an application for costs. An application for costs is governed by s 117 of the Family Law Act 1975 (Cth). Section 117(1) sets out the general rule that subject to s 117(2), s 117AA and s 118, each party to proceedings shall bear his or her own costs. Neither party submitted s 117AA nor s 118 was relevant. Section 117(2) requires a finding of justifying circumstances as an essential preliminary to the making of an order for costs (Penfold v Penfold (1980) FLC 98-800).
The justifying circumstance for the making of a costs order in favour of the respondent are that on 15 March 2010 the applicant gave his informed consent that I continue to hear the proceedings. As I have earlier discussed, he has later sought to resile from his consent which, for the reasons stated earlier on the facts of this case he has not been permitted to do. The outcome of this hearing has been the same as the outcome achieved by his informed consent given on 15 March 2010. It follows, that the costs incurred in these proceedings by the respondent and indirectly legal aid, have been incurred unreasonably.
To determine, what order, if any, should as a consequence of my findings made pursuant to s 117(2) I am required to consider those matters set out in s 117(2A)(a )- (g) in so far as they are relevant.
Subsection (a) is concerned with the parties’ financial circumstances. The Court has scant evidence about these but understands that both parties have limited income. I infer that after each of the parties has met their necessary commitments there is little, if any, spare income. I have no evidence that either party has assets or liabilities of note.
Both parties are in receipt of a grant of legal aid.
There are no s 117(2A)(c) or (d) matters which require consideration.
Subsection (e) requires the Court to consider whether any party to the proceedings has been wholly unsuccessful. The applicant has been wholly unsuccessful in his Application in a Case.
Subsection (f) is concerned with offers to settle and is for the purpose of this matter irrelevant.
Subsection (g) entitles the Court to take into account such other matters as the Court considers relevant. In this regard, it is relevant that on 15 March 2010 the applicant give his informed consent to my continuing to hear the matter. As I have earlier said, I infer the applicant and his lawyer were satisfied they had sufficient time and information that day to give the matter due consideration. The applicant has made no complaint that in some fashion the legal advice provided to him that day was erroneous or incomplete. He has, however, unsuccessfully sought to resile from his informed consent and thus required the respondent to twice consider the same matter and, in relation to the second occasion, incur costs unnecessarily.
When the factors discussed above are considered and weighed each against the other, notwithstanding the nature of the application, the applicant’s limited financial circumstances, that he and the respondent are in receipt of a grant of legal aid, the fact that the applicant previously gave his informed consent to my continuing to hear the matter and in circumstances where the matters relied upon were known before he gave his consent, it is appropriate to grant the respondent’s application for costs. The amount sought is modest. So as to avoid undue hardship for the applicant it is appropriate that he have three months within which to pay the amount sought. Interest, calculated in accordance with the Family Law Rules 2004, will accrue on any balance outstanding.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan
Associate:
Date: 3 June 2010
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