Spargo & Spargo
[2025] FedCFamC2F 133
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Spargo & Spargo [2025] FedCFamC2F 133
File number(s): BRC 14042 of 2023 Judgment of: JUDGE BERTONE Date of judgment: 27 February 2025 Catchwords: FAMILY LAW – Parenting – Recusal application by the Father – Where proceedings are part-heard – Where the Mother and Father have both been cross-examined in the first tranche of the proceedings – Where the trial was adjourned part-heard to enable a psychiatric assessment and new family report – Where the Father delayed bringing recusal application by more than 3 months – Where Father claims excessive judicial intervention and lack of procedural fairness – Application dismissed Legislation: Family Law Act 1975 (Cth) div 12A
Evidence Act 1995 (Cth) ss 26, 41, 135 & 136
Australian Solicitors Conduct Rules r 17
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55
Cusack & Cusack(No 3) [2024] FedCFamC1A 93
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63
Edinger & Duy [2023] FedCFamC1A 194
Gin v Hing (No 4) [2024] FedCFamC1A 247
Huda & Huda & Latham [2018] FamCAFC 85
Johnson v Johnson [2000] HCA 48
Re JRL; Ex parte CJL [1986] HCA 39
Vakauta v Kelly [1989] HCA 44
Whisprun Pty Ltd & Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 187 Date of last submission/s: 7 February 2025 Date of hearing: 7 February 2025 Place: Brisbane Counsel for the Applicant: Mr S Casey Solicitor for the Applicant: Beck Law Counsel for the Respondent: Mr S Cooper Solicitor for the Respondent: Farrawell Family Law Solicitor for the Independent Children's Lawyer: Mr J Parker - Parker Family Law ORDERS
BRC 14042 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SPARGO
Applicant
AND: MS SPARGO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS:
1.The Father’s Application in a Proceeding filed 29 January 2025 is dismissed.
2.The costs of the Mother and the Independent Children’s Lawyer are reserved to the final hearing.
3.The matter remains listed for final hearing on 13 and 14 March 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BERTONE
Before me is an Application in a Proceeding filed by the Father on 29 January 2025 for me to recuse myself from further hearing this matter.
The Father’s application is made in the following context:
(a)These are parenting proceedings in respect of the two children X born in 2016 and Y born in 2019 which were commenced on 27 October 2023;
(b)The proceedings before me are part-heard;
(c)The first tranche of the final hearing before me took place on 2 October 2024, 3 October 2024 and 16 October 2024; and
(d)The matter is scheduled to resume before me for a further two days commencing on 13 March 2025.
By his application, the orders the Father seeks are that:
(1)The part-heard final hearing of the proceedings before me be discontinued;
(2)The matter be listed for a final hearing for four days before a different Judge in the Federal Circuit and Family Court of Australia (Division 2);
(3)The matter be listed for an urgent case management hearing before a Judge other than Judge Bertone for the purposes of listing the matter for a new trial;
(4)The parties be provided the audio transcript of the part heard final hearing on 2, 3 and 16 October 2024;
(5)The Court’s copy of the transcript of the evidence given on 2, 3 and 16 October be placed in a sealed envelope with such envelope to be marked ‘not to be provided to any person/party without further Order of the Court’;
(6)The parties and or their Solicitors destroy the electronic copy of the transcript of the proceedings; and
(7)The Applicant, Respondent and Independent Children’s Lawyer be granted a costs certificate pursuant to section 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) for the hearing of the matter on 2, 3 and 16 October 2024 and the rehearing of the matter.
The Father filed an Affidavit in support of his application on 29 January 2025.
I listed the recusal application before me on 7 February 2025 and at that hearing, the Father was represented by Mr Casey, of Counsel, the Mother was represented by Mr Cooper, of Counsel and the Independent Children’s Lawyer was represented by Ms Ferguson, of Counsel.
Each party had the opportunity to file written submissions and to make oral submissions before me on 7 February 2025.
FATHER’S POSITION
The Father’s written submissions, filed on 3 February 2025, set out the grounds upon which he seeks my recusal, namely, that I:
(1)departed from the role of a Judge presiding over an adversarial trial such that the ability to objectively evaluate the evidence from a detached distance has been unduly compromised (‘ground 1’);
(2)cross-examined the Father excessively and at length (‘ground 2’);
(3)entered the arena and remained for extended periods of time (‘ground 3’);
(4)assumed the role of the Mother’s advocate in cross-examination of the Father which was conducted on a manner whereby tone and expression were unduly aggressive and intimidatory (‘ground 4’);
(5)excessively interrupted the questioning of the Father under cross-examination (‘ground 5’);
(6)made pejorative comments towards the Father (‘ground 6’); and
(7)made a particular comment to the Mother whilst giving evidence alluding to a mutual association of allegiance and secrecy (‘ground 7’).
MOTHER’S POSITION
The Mother did not file a response to the Father’s Application in a Proceeding.
However, the Mother filed written submissions on 5 February 2025.
The written submissions are unclear. They do not respond to the Father’s submissions in any meaningful way. In fact, they seem to add further complaints.
The written submissions purport to assert the position of the “fair minded lay observer”. As I told Mr Cooper, that is not his role as Counsel for the Mother. As I commenced the hearing, I was unclear as to whether or not the Mother supports or opposes my recusal.
After I heard oral submissions, Mr Cooper confirmed that the Mother sought to leave the decision of my recusal up to me.
INDEPENDENT CHILDREN’S LAWYER’S POSITION
The Independent Children's Lawyer filed written submissions on 6 February 2025.
The Independent Children’s Lawyer’s position is that:
(1)The Independent Children's Lawyer does not want to take any formal position given his role as representative for the children;
(2)The matters raised on behalf of the Father are for her Honour and the Court to determine;
(3)Should the Father’s Application be successful, the Independent Children’s Lawyer submits consideration be given to transfer this matter to Division 1 due to complexity and the need to expedite the re-hearing; and
(4)Otherwise, the Independent Children’s Lawyer makes no further submission.
THE MATERIAL READ AND RELIED UPON BY THE PARTIES
I have read and considered the material relied upon by each party which includes:
(1)The Father’s Application in a Proceeding filed 29 January 2025;
(2)The Father’s Affidavit filed 29 January 2025;
(3)The Father’s written submissions filed 3 February 2025;
(4)The Mother’s written submissions filed 5 February 2025; and
(5)The Independent Children’s Lawyer’s written submissions filed 6 February 2025.
I have considered the evidence and submissions made on behalf of the parties. I am not required to mention every fact or argument put forward by a party, and I do not propose to address every submission made. [1]
[1] Whisprun Pty Ltd & Dixon [2003] HCA 48; Baghti & Baghti and Ors [2015] FamCAFC 71.
Where in the reasons that follow I make statements of fact, these should be regarded as findings of fact.
LEGAL PRINCIPLES IN RESPECT OF THE CONDUCT OF CHILD-RELATED PROCEEDINGS
In circumstances where the Father asserts that I have overstepped my role as a Judge to such a degree that I must recuse myself, I consider it is appropriate to set out the bases of power I have when hearing and determining child-related proceedings under the Family Law Act.
Division 12A of the Act sets out the principles I am required to follow when hearing child-related proceedings such as these.
The sections particularly relevant to the Father’s current application are as follows:
Section 69ZN – Principles for conducting child -related proceedings
……
(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.
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings
Section 69ZP Powers under this division may be exercised on court’s own initiative
The court may exercise a power under this Division:
(a)on the court’s own initiative; or
(b)at the request of one or more of the parties to the proceedings.
Section 69ZQ General duties
In giving effect to the particular principles in section 69ZN, [the sub-sections relevant to this application] 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.
……
Section 69ZR Power to make determinations, findings and orders at any stage of proceedings
(1)If, at any time after the commencement of child– related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a)make a finding of fact in relation to the proceedings;
(b)determine a matter arising out of the proceedings;
(c)make an order in relation to an issue arising out of the proceedings.
Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2)Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3)To avoid doubt, a person who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
Section 69ZX Court’s general duties and powers relating to evidence
(1)In giving effect to the principles in section 69ZN, the court may:
(a)give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b)give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c)give directions or make orders about how particular evidence is to be given; and
(d)if the court considers that expert evidence is required – give directions or make orders about:
(i)the matters in relation to which an expert is to provide evidence; and
(ii)the number of experts who may provide evidence in relation to a matter; and
(iii)how an expert is to provide the expert’s evidence; and
(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
(2)Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:
(a)about the use of written submissions; or
(b)about the length of written submissions; or
(c)limiting the time for oral argument; or
(d)limiting the time for the giving of evidence; or
(e)that particular evidence is to be given orally; or
(f)that particular evidence is to be given by affidavit; or
(g)that evidence in relation to a particular matter not be presented by a party; or
(h)that evidence of a particular kind not be presented by a party; or
(i)limiting, or not allowing, cross-examination of a particular witness; or
(j)limiting the number of witnesses who are to give evidence in the proceedings.
(3)The court may, in child – related proceedings:
(a)receive into evidence the transcript of evidence in any other proceedings before:
(i)the court; or
(ii)another court; or
(iii)a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (ii).
…..
In hearing a parenting matter, I must also have regard to the provisions of the Evidence Act 1995 (Cth) (‘Evidence Act’).
Section 69ZT provides that certain provisions of the Evidence Act do not to apply to child-related proceedings unless the Court decides.
Sub-section (1)(a) sets out the particular sections of the Evidence Act that do not apply. It explicitly provides that sections 26, 30, 36 and 41 of the Evidence Act do apply to child-related proceedings.
Sections 26 and 41 of the Evidence Act are particularly relevant to these parenting proceedings and to the Father’s current application. I also refer to sections 135 and 136 as being relevant to the Father’s application.
Section 26 Court’s control over questioning of witnesses
The court may make such orders as it considers just in relation to:
(a)the way in which witnesses are to be questioned; and
(b)the production and use of documents and things in connection with the questioning of witnesses; and
(c)the order in which parties may question a witness; and
(d)the presence and behaviour of any person in connection with the questioning of witnesses.
Section 41 Improper questions
(1)The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question):
(a)is misleading or confusing; or
(b)is unduly annoying, harassing, intimidating, offensive; oppressive, humiliating or repetitive; or
(c)is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or
(d)has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability.
……
Section 135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing; or
(c)cause or result in undue waste of time.
Section 136 General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing.
LEGAL PRINCIPLES IN RESPECT OF RECUSAL
I understand there are two limbs to the Father’s application for my recusal:
(1)Apprehended bias; and
(2)Lack of procedural fairness.
In Gin v Hing[2], the Appellate division of the Federal Circuit and Family Court of Australia defined actual bias and apprehension of bias as follows[3]:
[24]Actual bias focuses on the subjective state of mind of the decision-maker. It exists where the decision-maker has a closed mind which is not open to persuasion; it may be shown where the decision-maker has acted with a sufficient degree of partisanship or hostility towards one party (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [36], [72]–[73], [111], [185]–[187]).
[25]An apprehension of bias moves the focus from the subjective state of mind of the decision-maker to the putative objective perception of a reasonably informed lay observer. The principles are well-known. The complainant must identify what it is said that might lead a judge to decide a case other than on its legal and factual merits; and articulate the logical connection between the matter and the feared deviation from the course of deciding the case on its merits (Johnson v Johnson (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [8]).
[2] Gin v Hing (No 4) [2024] FedCFamC1A 247.
[3] Ibid.
In Ebner v The Official Trustee in Bankruptcy[4], the High Court applied a two-step test to determine apprehension of bias:
“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] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, paragraph 8.
In Johnson v Johnson[5] at paragraph 13, their Honours discuss the test further and what is required:
“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.”
[5] Johnson v Johnson [2000] HCA 48.
In managing cross examination, the High Court said in Concrete Pty Limited v Parramatta Design & Developments Pty Ltd:[6]
“Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.”
[6] Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55.
In Cusack & Cusack[7], the Full Court discussed the interventions of the primary Judge and the appropriateness of clarifying evidence:
[44]“The flavour of the husband’s complaint is that the primary judge intervened excessively when he was making submissions, but the tranches of transcript the husband recited only show the primary judge debating the husband about the merit of his application and the sufficiency of the supporting evidence. As a general observation, his Honour interjected during submissions for clarification, to answer direct enquiries, and to identify deficiencies in both the evidence and the proposed orders, as is common and permissible (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd at [111]–[112]; Antoun v The Queen (2006) 224 ALR 51 at [27]; Johnson v Johnson (2000) 201 CLR 488 at 493 and 504–505). The husband was not importuned. Occasional instances of mild exasperation aside, the transcript shows the interventions were reasonable and proportionate.”
[7] Cusack & Cusack (No 3) [2024] FedCFamC1A 93.
THE FATHER’S APPLICATION
I turn now to the Father’s grounds for my recusal.
The Father’s written submissions contain a table which sets out 22 examples of the behaviour claimed to support the application for my recusal.
That table does not number the examples, but I will refer to them each by ascribing them a number from 1 – 22 for ease of reference, such as example 1 and example 2, etcetera.
At the hearing before me on 7 February 2025, Mr Casey withdrew example 15.
GROUND 1
Departed from the role of a Judge presiding over an adversarial trial such that your Honour’s ability to objectively evaluate the evidence from a detached distance has been unduly compromised
There is no specific example contained in the schedule for this ground. I take this ground to be a complaint that, on the whole, my ability to objectively evaluate the evidence from a detached distance has been unduly compromised.
This matter is part-heard. I heard cross-examination of the parties on 2 and 3 October 2024. The cross-examination of the Family Report Writer could not take place on 3 October 2024 so I had no alternative but to adjourn the matter part-heard to 16 October 2024 whereupon the Family Report Writer, Mr B, would be cross-examined and I would hear the parties’ final submissions.
I made no other order on 3 October 2024 apart from the order for the adjournment.
When the parties attended before me on 16 October 2024, I was asked to hear the matter in the absence of the Mother and Father so that only Counsel would be heard. I was told that recent events had occurred in the time since the last day of trial and discussions had taken place with the parties that would lead them to ask me to:
(1)Adjourn the matter part-heard for a further two days;
(2)Appoint a Single Expert to conduct a psychiatric assessment of both the Mother and the Father;
(3)Appoint a new Family Report Writer to prepare a new Family Report; and
(4)Make some interim orders for time between the children and their Father.
At the hearing on 16 October 2024, in the absence of the parties, I did not make any findings. I did not give any preliminary views, even though I had already heard the cross-examination of the Mother and the Father.
I made an order for the transcript of the proceedings to be tendered and provided to all the parties due to the fact that I was going to adjourn the matter part-heard. The parties agreed to this course.
The only orders I made were with the consent of all the parties.
There is no complaint advanced by the Father about anything I did or said on 16 October 2024.
The two-step test set out by the High Court in Ebner is clear. 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.”
I have not evaluated the evidence. I have made no findings. I have not proffered a preliminary view. I have not issued any interim judgment.
There is no basis for this ground and I reject it.
GROUND 2
Cross-examined the Father excessively and at length
This complaint would fall into the category of a denial of procedural fairness.
In the table contained in the Father’s written submissions, it seems that examples 5, 6, 7, and 14 are examples the Father relies upon to assert that I cross-examined the Father excessively and at length.
As the authorities tell me, whether there has been excessive judicial intervention will depend upon the number, length, terms and circumstances of the intervention.[8] Interruptions early in a witness’ evidence may be less readily excused than one later, and the judge must ensure the appearance of an impartial and unprejudiced mind.[9] I am entitled to ask clarifying questions.[10]
[8] Huda & Huda & Latham [2018] FamCAFC 85.
[9] Edinger & Duy [2023] FedCFamC1A 194 citing with approval Kirby A-CJ Galea v Galea (1990) 19 NSWLR 263.
[10] Cusack & Cusack(No 3) [2024] FedCFamC1A 93
On 7 February 2025, Mr Casey confirmed that there was no submission made that any of the questions I asked were either irrelevant or improper.
Asking the Father questions about which he felt uncomfortable, or the answer to which shows the Father in a bad light, is not the test for excessive judicial intervention.
Many of the questions I asked were to clarify the evidence being given, which I am entitled to do.
As to example 5, the Father was not responsive. I am required to control the proceedings. Counsel for the Mother then asked the question again and it was answered.
As to example 6, the Father was being cross-examined by Counsel for the Mother about the Mother’s drinking, and about a photograph the Father took of the Mother drinking from a beer bottle whilst breastfeeding their oldest child in 2016.
I asked the Father questions to clarify his evidence.
Again, in example 7, I asked two questions of the Father to clarify his evidence.
As to example 14, the complaint is that I engaged in “vigorous cross-examination of the Father.”
Due to the Father’s use of the adjective “vigorous” I consider it is important to set out the complaint in the context of the Father’s entire cross-examination in the trial.
The Father’s cross-examination by Mr Coe, Counsel for the Mother, commenced at 4.59pm on 2 October 2024 until 5.35pm the same day, being 36 minutes.
The Father’s cross-examination resumed on 3 October 2024 at 10.42am until 12.46pm, being 2 hours and 4 minutes.
It was resumed at 2.11pm and concluded at 4.29pm when Ms Ferguson, Counsel for the Independent Children’s Lawyer, commenced her cross-examination, being 2 hours and 18 minutes.
The Father’s cross-examination concluded at 5.56pm, minus an 8-minute comfort break, being a further 1 hour and 19 minutes.
The total cross-examination for 3 October 2024 was 5 hours and 41 minutes.
This means the Father was cross-examined for a total of 377 minutes, or 6 hours and 17 minutes.
The transcript shows the number of pages of the total cross-examination, being 14 pages on 2 October 2024[11] and 121 pages on 3 October 2024 [12], being a total of 135 pages.
[11] Transcript of proceedings 2 October 2024 pages 106 - 120
[12] Transcript of proceedings 3 October 2024 pages 133 – 173, and 182 – 263.
Example 14 references two pages of the transcript being 209 and 210. Mr Coe had been cross-examining the Father about an incident that occurred at the Mother’s house.
If the questions I asked were all relevant and proper, as was conceded by Mr Casey, then it cannot be said that my questions were intimidatory.
Just because I asked the Father questions, does not mean that I was engaging in cross-examination.
There was no objection to, nor a complaint made about, any of my questions during the first tranche of the trial by any of the three Counsel appearing before me on any of the trial dates.
I do not accept that the fair-minded lay observer would consider that my questions of the Father in this example was “vigorous”. Nor do I accept that I was “intimidatory” towards the Father.
Ground 2 is baseless and I reject it.
GROUND 3
Entered the arena and remained for extended periods of time
There is some overlap between this ground and ground 2.
In the table contained in the Father’s written submissions are many entries that have the words “entering the arena”. I note these seem to be examples 4, 11, 13, 16, 20 – 22 inclusive and I will therefore address these.
The Full Court in Huda & Huda & Latham[13] in respect of a Judge’s questioning said this:
“We are also conscious that some parts of the transcript reveal questioning by his Honour which sought to clarify evidence or sought to have each witness concentrate on the questions being asked and to limit dissembling. Each of those interventions are, of course, a proper part of a judge’s role; they seek to elicit the orderly flow of the evidence and seek to engender an environment by which the evidence given and the demeanour with which it is given can provide the best possible guide to assessing the reliability and credibility of that evidence.”
[13] Huda & Huda & Latham [2018] FamCAFC 85 at paragraph 63
In example 4, complaint is made that I engaged in extensive questioning of the Mother and thus entered the arena.
To ascertain whether or not I engaged in extensive questioning of the Mother, it is important to identify the total amount of time the Mother was under cross-examination.
Mr Casey commenced his cross-examination of the Mother on 2 October 2024 at 11.49am until 12.57pm, being 1 hour and 8 minutes.
We took the luncheon adjournment from 1.01pm to 2.06pm, and so Mr Casey resumed his cross-examination of the Mother from 2.06pm until 2.42pm, being 36 minutes.
The cross-examination resumed at 2.44pm and concluded at 2.58pm, being 14 minutes.
Ms Ferguson then commenced her cross-examination of the Mother at 3.05pm and the Mother withdrew at 4.58pm. This totals 1 hour and 53 minutes.
This means the Mother was cross-examined on 2 October 2024 for a total of 3 hours and 51 minutes.
The transcript shows the number of pages of the total cross-examination of the Mother was 84 pages.[14]
[14] Transcript of proceedings 2 October 2024 page 122 – commences at page 17 – 45 (28 pages); page 47 – 63 (16 pages); page 64 - 104 (40 pages)
There are four and a bit pages of transcript of my questions of the Mother about which the Father complains.
Pursuant to section 69ZX(1)(e) of the Act, I am entitled to ask questions of the parties and other witnesses.
I asked these questions after Mr Casey, for the Father, and Ms Ferguson, for the Independent Children’s Lawyer, had each concluded their cross-examinations.
After concluding my questions, I asked each Counsel if they had any questions arising from my questions, starting with Mr Casey, who said he did not.[15]
[15] Ibid page 103 line 46
The nature of the questions is not impugned. It is clear from my questions that I am clarifying the Mother’s evidence and her proposals.
I did not engage in extensive questioning of the Mother.
In example 11, the transcript shows I asked questions spanning less than one page of transcript. The context of the questions is that the Father’s Counsel had sought, and I had granted, the Father a certificate under s128 of the Evidence Act.
The transcript pages referenced by the Father clearly show that the questions I am asking the Father are in relation to the topic covered by the s128 certificate. I am asking my questions after Mr Coe and Ms Ferguson had asked their questions.
I am not entering the arena. I am asking the Father questions to better understand his evidence. I am entitled to do so.
In example 13, it is clear that I am asking the Father clarifying questions about his evidence. True it is that I am not interested in what other persons have to say, but I am interested in what the Father had to say.
In example 16, it is clear from my questions of the Father that I do not understand his evidence.
I will address the complaints contained in examples 20, 21 and 22 together because they refer to the last few pages of the transcript towards the end of the Father’s cross-examination by Ms Ferguson.
Again, given there is no complaint as to the relevance or propriety of my questions, the context in which I ask the questions is most important.
I am asking these questions of the Father to clarify his evidence. The greatest number of questions I asked of the Father occurred after Ms Ferguson had concluded her cross-examination.
I am entitled to ask the parties questions. They each had the opportunity to answer. Their Counsel, and Counsel for the Independent Children’s Lawyer, also had the opportunity to ask any further questions after I had finished asking my questions.
Ground 3 has no substance and I reject it.
GROUND 4
Assumed the role of the Mother’s advocate in your Honour’s cross examination of the Father, which was conducted in a manner whereby your Honour’s tone and expression were unduly aggressive and intimidatory
There is significant overlap between this ground and Grounds 2 and 3. Nevertheless, I turn now to deal with the examples contained in the Father’s written submissions that seem to be in support of this ground being examples 1, 8, 10 and 12.
As to example 1, the complaint is that I gave a suggestive path of cross-examination to the Mother’s Counsel. The transcript reference shows that all I said was “Right. Quite sure [Mr Spargo]’s going to be asked some questions about this”, Mr Casey replies “Absolutely”.
Division 12A requires me to actively direct, control and manage the conduct of proceedings.
I will deal with examples 8, 9 and 10 together as they relate to the same time in the trial where the Father was under cross-examination but I excused him from the Court room while the exchange took place.
Mr Coe was cross-examining the Father about paragraph 171 of his Affidavit filed 9 September 2024.
Upon hearing the nature of the question, I asked the Father to leave the Court room.
I then engaged in a discussion with Mr Casey about the inappropriate nature of the evidence and the necessity for Solicitors to remember Rule 17 of the Australian Solicitors Conduct Rules.
The entire exchange was conducted in the absence of the Father, because he was a witness at that time under cross-examination.
I did express my outrage with the Solicitor and Counsel and in that one instance I did raise my voice. But it was outrage aimed squarely at the Father’s legal representatives.
I made it clear for the transcript that I was raising my voice only because I was outraged and then I lowered my voice back to an appropriate level.
I did not strike out the paragraph. I did not curtail the cross-examination.
As can be clearly seen from the transcript, when the Father was recalled after the luncheon adjournment, Mr Coe continued his cross-examination about paragraph 171.[16]
[16] Transcript of proceedings 3 October 2024 page 182 line 36
In fact, I made a point of telling Mr Coe that I was not stopping him in any way from asking any question he considered relevant.[17]
[17] Ibid page 180 lines 18 - 27
Towards the end of the exchange, and just before we broke for the luncheon adjournment I made a comment about the photograph the Father annexed to his Affidavit depicting the Mother holding a bottle of beer whilst breastfeeding X.
Example 9 complains about my comment in relation to this photo that “the baby is breastfeeding. The mother is having a drink. Whoop-de-do”.
This comment was made in the absence of the Father. I had already heard cross-examination on this point prior to making my comment. I am allowed to make comments about the evidence once it has fallen.
At the hearing of this application on 7 February 2025, much was made by both Mr Casey and Mr Cooper about the fact that I allowed the Mother to remain in the courtroom during this exchange.
It was appropriate to exclude the Father because he was under cross-examination and the exchange I had with Counsel could not properly occur in front of him when the questions he was being asked about the topic had not concluded.
As I explained to Counsel, if there was a different witness under cross-examination at that time, then I would have excluded that witness during the exchange with Counsel and then both the Mother and Father would have remained in the courtroom.
On 3 October 2024, Mr Casey did not ask for the Mother to be excused and I reject his submission that I ought to have inferred that he was asking for her to be excused.
Notwithstanding, as I explained to both Counsel, it is up to me as the presiding Judge to determine how the proceedings are conducted. Had he asked me to excuse the Mother, I would have refused. The sole purpose of excluding the Father was because he was under cross-examination.
As to example 12, the complaint is that I engaged in “rapid questioning as an advocate of the Mother.” Looking at the transcript, I do not know what makes this questioning “rapid”.
As can clearly be seen from the transcript reference, I am asking questions about the Father’s evidence. I am entitled to do so.
Ground 4 is baseless and I reject it.
GROUND 5
Excessively interrupted the questioning of the Father under cross-examination
It seems to me that the examples to support this ground are contained in examples 3, 17, 18 and 19.
In example 3, the transcript reveals that I used the word “interrupt”. What follows on though is that I clearly say to Ms Ferguson to proceed as she wishes.[18]
[18] Transcript of proceedings 2 October 2024 page 95 line 39
In example 17, I am redirecting Counsel to ask a foundational question first. This is clear from the context in which the complaint “interruption” occurs. [19] That is not an impermissible interruption – that is part of my duty.
[19] Transcript of proceedings 3 October 2024 page 239 lines 23 - 45
In example 18, it is clear that I am asking the Father to clarify an answer he gave in respect of his medication.
In example 19, it is clear that I am asking the Father to narrow down the dates in which he started, and finished, using a dash cam in his car to record the children. I am entitled to ask clarifying questions.
I am not required to sit mutely during the court process.
As previously outlined, in Johnson v Johnson[20] at paragraph 13, the High Court says:
“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.”
[20] Johnson v Johnson [2000] HCA 48.
There is no substance to Ground 5 and I reject it.
GROUND 6
Made pejorative comments towards the Father
The Father alleges I made pejorative comments. I could find no such thing.
At the hearing before me on 7 February 2025, I asked Mr Casey to point to any such pejorative comment. He could not do so.
Mr Casey subsequently withdrew ground 6.[21]
[21] Transcript of proceedings, 7 February 2025, page 6, line 26.
GROUND 7
Made a particular comment to the Mother whilst giving evidence alluding to a mutual association of allegiance and secrecy
The one example in the written submissions that is said to support this complaint is in example 2.
Example 2 refers to a comment I made towards the end of the Mother’s cross-examination.
The Mother was being cross-examined by Ms Ferguson, which means that the Father’s Counsel had already concluded his cross-examination.
Ms Ferguson was asking the Mother questions about her intake of drugs and alcohol.[22] Ms Ferguson was putting to the Mother the Father’s allegations.
[22] Transcript of proceedings, 2 October 2024, page 92, lines 22 – 33.
Ms Ferguson asked the Mother how much alcohol she would drink per week approximately. The Mother answered saying “I wouldn’t drink weekly. I would probably say maybe once every month to six weeks, I go out with my mum’s group and we probably have five cocktails.”
I then said “Ma’am, what happens at mother’s group stays in mother’s group.”
Ms Ferguson said “Absolutely, your Honour”.
I then told Ms Ferguson that I had the CDT test for the Mother and also her hair follicle drug test. These were annexed to the Mother’s trial affidavit [23] and showed that the Mother’s alcohol use was 0.6% (no indication of recent or ongoing excessive alcohol use) and the hair follicle drug test was negative for any illicit substances.
[23] Annexure MSS-13 was Hair follicle drug test, Annexure MSS-14 was the CDT test.
The comment I made must be seen in the context of the evidence that the Mother had already given in her Affidavit and also in answer to the questions posed by Ms Ferguson.
The Father contends my comment is unduly personal towards the Mother and alluding to an association of allegiance and secrecy.
I do not know the Mother other than as a litigant in proceedings before me.
The Mother gave her answer to Ms Ferguson’s questions, so there can be no secrecy. The evidence was given.
Mr Casey said in oral submissions that “what it portrays is a perception that there is an understanding between yourself and the Mother of something that the Father would not have an understanding of.”[24]
[24] Transcript of proceedings, 7 February 2025, page 10, lines 15 – 17.
As I said to Mr Casey, the test is an objective one, not a subjective one. How the Father perceives the interaction is not to the point.
It is the fair-minded lay observer who has the context of the whole proceeding up to that point, not just that one comment.
I asked Mr Casey to consider whether the fair-minded lay observer would consider the comment I made as a joke. He said no.
In an exchange between myself and Mr Casey, it became clear to me that the reason the comment I made was not acceptable was because I am female. Mr Casey agreed that was so.[25]
[25] Transcript of proceedings, 7 February 2025, page 11, lines 1 – 15.
That is an innate quality that no one has control over. The innate quality of a judicial officer cannot be the reason (or one of the reasons) that a Judge ought to be disqualified from hearing a matter.
Litigants do not get to choose their Judges. They certainly cannot seek to disqualify the Judge assigned to their matter on the basis of sex.
Mr Cooper submitted that the comment I made was a “sisterhood comment” and was “potentially familial”.[26]
[26] Transcript of proceedings, 7 February 2025, page 50 lines 25 – 30.
Mr Casey and Mr Cooper argue that the comment I made could be construed to show familiarity, or secrecy, or solidarity with the Mother, or sisterhood or secrecy.
But, apparently, the fair-minded lay observer would not consider it was a joke.
The High Court says that I am not required to sit mute or like a sphinx.
There is no substance to Ground 6 and I reject it.
TWO-STEP TEST TO DETERMINE APPREHENSION OF BIAS
As mentioned earlier in these Reasons, the Father’s Application is two-fold. The first being apprehended bias. I will deal with this first.
In an exchange with Mr Casey, I pointed out that he had not made reference to Ebner v The Official Trustee in Bankruptcy[27] in his written submissions.
[27] [2000] HCA 63.
The High Court makes clear that proving apprehension of bias is a two-step test. The test is outlined earlier in these Reasons.
The first step “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”.[28]
[28] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, paragraph 8.
The first step has been outlined through examples 1-22 in the Father’s submissions which I have dealt with above.
The examples proffered on behalf of the Father (and indeed also set out in Mr Cooper’s submissions) seem to ignore the powers I have as a Judge to hear this matter and control the proceedings.
I therefore reject examples 1-22 as any indication of apprehended bias.
In dealing with step two of the test, the High Court says:
“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 Father, in making this application, cannot just make complaints. He cannot merely pick a sentence or paragraph from the transcript that would support his application. This is not the test. He must show that the behaviour about which he complains shows that I have prejudged the matter against him. He does not do so.
I raised with both Counsel for the Father and the Mother that neither of them had referred me to Ebner or the second step in the test.[29]
[29] Transcript of proceedings, 7 February 2025, page 26, lines 31-32.
There was no evidence Mr Casey could point me to that showed I had prejudged the matter against the Father or made any decision in the matter.
The test is an objective one, not a subjective one and must be applied in the eyes of a fair-minded lay observer.
PROCEDURAL FAIRNESS
Within the Father’s application for recusal is the assertion that he has been denied procedural fairness.
The Father’s assertions of my entry into the fray, which I have already considered earlier in these reasons, are complaints as to procedural fairness.
The Father was afforded the opportunity to give evidence by way of affidavit. The Father was cross-examined. He was given the opportunity for re-examination.
The Father, through his Counsel, was given the opportunity to test the Mother’s evidence.
As the trial is part-heard, not all the evidence has fallen. Final submissions have not been made.
There was nothing Mr Casey could point me to that showed the conduct of the matter was procedurally unfair to the Father.
FATHER’S DELAY IN BRINGING HIS APPLICATION FOR RECUSAL
The Father made this Application on 29 January 2025 in circumstances where he had been legally represented in the lead up to, and in the conduct of, the first tranche of the trial on 2 October, 3 October and 16 October 2024.
Nowhere in his Affidavit filed 29 January 2025 does the Father explain his delay in bringing the recusal application.
As I said to Mr Casey, now that the Father has made his application, the submission is that the fair-minded lay observer at the time would have said this is all very troublesome, and yet it did not occur to any of the three Counsel appearing at the trial at the time.[30]
[30] Transcript of proceedings 7 February 2025 page 28 lines 31 - 36
The appropriate time to make the application for recusal was either on 3 October 2024 or at the very least 16 October 2024 when the matter came back before me.
There is no explanation for the delay in bringing the application so close to when the trial is due to recommence in a few weeks’ time.
In Vakauta v Kelly, the High Court said:[31]
“Where such comments which are likely to convey to a reasonable and intelligent lay observer the impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been such a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing…”
[31] Vakauta v Kelly [1989] HCA 44 at paragraph 5
In Gin & Hing (No 4), the Full Court recently discussed the issue of a delay:[32]
[27]“The appropriate time to raise objections of bias is at the hearing itself, at the time of the impugned conduct of the judge, especially where a party has legal representation, rather than wait until the contents of the judgment are known (Vakauta at 572–574). A failure to complain of bias at the time of hearing, or shortly thereafter, and a failure to explain a delay in doing so, waives a complainant’s right to raise grounds of bias or to claim a revival of allegedly biased conduct within the reasons for judgment (Shipton at [61]–[62], [67]–[68] per the Full Court).”
[32] Gin & Hing (No 4) [2024] FedCFamC1A 247.
CONCLUSION
As the High Court said in Re JRL; Ex parte CJL[33]
“...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.
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”
[33] Re JRL; Ex parte CJL [1986] HCA 39 per Mason J at paragraph 5
I have not made any decisions in the substantive parenting proceedings. The Father cannot point to any decision I have made that would lead the fair-minded lay observer to conclude that I had prejudged the matter.
The Father has not been prevented from running his case. The Father has not been denied procedural fairness.
There is no merit to any of the Father’s complaints and I dismiss his application.
I intend to reserve the costs of both the Mother and the Independent Children’s Lawyer to the final hearing, where submissions can be made and then the question can be determined.
The parenting matter remains listed for final hearing before me on 13 and 14 March 2025.
I certify that the preceding one hundred and eighty seven (187) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bertone. Associate:
Dated: 27 February 2025
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