TALWAR & MALAK
[2020] FamCA 819
•28 September 2020
FAMILY COURT OF AUSTRALIA
| TALWAR & MALAK | [2020] FamCA 819 |
| FAMILY LAW – COURTS AND JUDGES – Disqualification – Apprehension of bias – Where the father contends that the manner in which final parenting orders proposed by consent were refused would cause a fair-minded lay observer to fear deviation from the course of determining the parties’ parenting dispute on its merits – Where father further contends awareness of compromise parties had reached also grounds feared deviation – Where father also contends prejudgment of issue of risk posed by him to the children – Application of the two-step test in disqualification applications on the ground of apprehended bias – Consideration of any actual bias – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Bulow & Bulow [2020] FamCAFC 120 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 |
| APPLICANT: | Mr Talwar |
| RESPONDENT: | Ms Malak |
| FILE NUMBER: | PAC | 2160 | of | 2018 |
| DATE DELIVERED: | 28 September 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 15 June 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | McCabe Partners Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Harb Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER : | Adams & Partners |
Orders
The father’s Application in a Case filed on 30 April 2020 seeking that I recuse myself from further hearing the matter is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Talwar & Malak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2160 of 2018
| Mr Talwar |
Applicant
And
| Ms Malak |
Respondent
REASONS FOR JUDGMENT
Introduction
In the course of proceedings concerning a property settlement and the future parenting of the parties’ two children (“the children”), an application was made by the father seeking that I recuse myself from further hearing the matter.
The father was the subject of criminal charges for the sexual assault of the mother’s daughter from a previous relationship now aged 17 and the unlawful possession of firearms and in mid 2019 was found guilty of these offences.
Prior to being sentenced for the criminal offences the parties reached agreement in relation to parenting orders for the children with which the Independent Children’s Lawyer (“ICL”) agreed and proposed orders in these terms were forwarded to the Court on 24 October 2019 and referred to my chambers for consideration. These orders proposed that the mother hold sole parental responsibility for the children and that the children live with her. Other proposed orders related to the children’s place of residence and future overseas travel.
In November 2019 I indicated that I was not prepared to make the proposed parenting orders noting amongst other things that the orders were silent as to the children’s time with the father and did not include an order restraining him from coming into contact with the children. Directions were made that if the parties wished to forward a further proposal to the Court this should be done within 28 days but no further proposal was provided.
At a case management hearing before me on 23 March 2020, an oral application was made on behalf of the father seeking that I recuse myself from further hearing the matter. In the following month the father filed an Application in a Case and supporting affidavit in relation to this application.
It is the father’s case that I am required to disqualify myself on the basis that a fair minded lay observer would apprehend that I may not bring an impartial mind to the resolution of the dispute. This hypothetical observer it is contended, may apprehend that I have prejudged the matter as revealed in the manner that I have approached the parties’ recent final parenting orders proposed by consent.
Although the mother did not formally respond to the father’s Application in a Case, in her written submissions she seeks that the father’s application be dismissed.
The Independent Children’s Lawyer (“ICL”) did not wish to be heard on this application.
The question for me to determine is whether a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the matters yet to be determined in the proceedings.
Background
The mother is 37 and was raised in a European country. The father who is of Country B descent is 49.
The parties met in the mother’s home country in 2008 and married two years later in the father’s home country. At the time of marriage the mother’s daughter from her previous relationship (“the step-daughter”) was seven years old. The parties and the step-daughter moved to Australia in late 2010 and lived with the father’s brother before moving into their own home in 2013.
Over the course of their 10 year marriage the parties had two children: a son (“the son”) now aged nine and a daughter (“the daughter”) now aged six. These children are the subject of the parenting proceedings.
Although the parties agree that the father was the main breadwinner in the family, I understand that they may be in dispute about the extent to which each of them were involved in the day-to-day care of the children.
It is mother’s case that the parties’ relationship was characterised by family violence perpetrated by the father including physical, verbal and financial abuse directed towards her and at times the children.
In early 2017 an Apprehended Violence Order (“AVO”) was made against the father for the protection of the mother after she alleged that the father physically assaulted her in the course of an altercation. The AVO did not prohibit the father from remaining in the family home and the mother and the children continued to live with him in the same household for some months.
During this period I understand that the mother contends that the father’s abusive behaviour escalated and culminated in the father threatening to kill her with a knife in September 2017 in the presence of the children. The father was charged in relation to his conduct and later pleaded guilty to the offence.
This incident brought the parties’ relationship to an end. The mother and children moved out of the family home and have since lived in various shelters for women.
The children have not seen the father since this time.
In November 2017 both the step-daughter and the daughter made disclosures of being sexually abused by the father. These disclosures were reported to the Department of Family and Community Services (as the Department was then known) (“the Department”) and were referred to the Joint Investigation and Response Team (JIRT)[1] for investigation.
[1] The Joint Investigation and Response Team was made up of officers from Community Services and police and investigated complaints of sexual abuse and serious physical abuse of children.
In January 2018 the father was charged with offences relating to sexual abuse of the step-daughter and the daughter, and the possession of a weapon he claimed to have brought back from an overseas trip.
In May 2018 the mother initiated proceedings in the Federal Circuit Court seeking orders relating to property.
The father filed a Response seeking property orders and orders that the children spend time with him one weeknight and each alternate weekend. In his Notice of Risk filed at the time, the father complained about the mother’s capacity including her alleged failure to adequately supervise the children and denied allegations of sexual abuse made against him.
The mother amended her Initiating Application in August 2018 to include orders that she hold sole parental responsibility for the children, that they live with her and that she alone be entitled to arrange for their travel both within Australia or overseas without the father’s consent. By this stage, an ICL had been appointed to the proceedings.
Criminal proceedings against the father were ongoing and it appears that at some stage the father was granted bail with strict conditions. Around this time the father amended his interim parenting application seeking orders that he spend limited supervised time with the son only.
On 15 November 2018 the matter was transferred to this Court and placed into the Magellan Program[2]. A Magellan Report was also ordered and subsequently released to parties in early 2019.
[2] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of The Department with the family.
According to the Report, the Department received five risk of significant harm reports relating to sexual abuse, physical and psychological harm, excessive discipline, and domestic violence. Most of the reports proceeded to secondary assessment and the allegations of sexual abuse of the step-daughter and the daughter against the father were substantiated by JIRT.
At a case management court event before me on 4 February 2019, the father pressed his interim application to spend supervised time with the son pending final hearing. The ICL indicated that he did not support the father’s proposal and was also opposed to the mother’s application for orders at the time that would see her being permitted to travel overseas with the children. The parties’ applications for interim orders were listed for hearing before a Senior Registrar on 3 April 2019.
On 15 February 2019 the father’s criminal charges relating to the sexual abuse of the daughter were no-billed and the proceedings were discontinued, though the proceedings in relation to the step-daughter remained on foot.
At the hearing before the Senior Registrar in April 2019 the father continued to seek orders that he spend limited supervised time with the son, have regular electronic communication with this child and that both children be placed on the Family Law Watchlist. He also sought orders that he spend time with the daughter in the event his bail conditions were varied to reflect the fact that the charges with respect to this child had been discontinued. The mother pressed an order that the father spend no time with the children. It was her contention that the father poses a significant risk of harm to them in light of his serious criminal charges and that there is a real prospect that he will face a lengthy custodial sentence. The ICL supported the mother’s position.
At the conclusion of the interim hearing orders were made with the consent of the parties providing that the children live with the mother and spend no time with the father. The children were placed on the Family Law Watchlist and the parties also agreed to interim orders relating to property.
After a criminal trial over two weeks in June 2019 the father was found guilty of indecently assaulting the step-daughter.
The parties participated in a conciliation conference in September 2019 and the property proceedings were resolved by way of orders made with their consent.
Agreement concerning final parenting arrangements for the children was also reached and proposed orders were forwarded to my chambers on 24 October 2019.
The final parenting orders proposed by the parties
The parties proposed and the ICL agreed to final parenting orders that in summary provided that:
a)The mother hold sole parental responsibility for the children;
b)The children live with the mother;
c)The mother and the children remain living in Australia; and
d)The mother provide written notice to the father of any proposed travel with the children and the arrangements for that travel.
These terms were considered by me in chambers on 1 November 2019.
On 4 November 2019 the Registrar informed that parties that I declined to make the orders proposed by consent for the following reasons:
· There was no Form of Order attached to the proposed orders;
· There was no specific order stating that the children are to spend no time with the father;
· There did not appear to be a reason for proposed orders relating to the children’s residence in Australia and their overseas travel; and
· There was no order restraining the father coming into contact with the children for the protection of the subject children.
Although the parties were given a further 28 days to submit any amended terms of settlement as to parenting they did not do so.
In late 2019 the father was sentenced to a term of three years and six months imprisonment with a non-parole period of two years and six months in relation to the criminal offences against the step-daughter. The father maintains his innocence and as I understand it has instructed his lawyer that he proposes lodging an appeal with respect to his criminal convictions.
As the orders finalising the proceedings were not made as proposed by the parties, the proceedings were next listed for a court event before me on 23 March 2020.
On 23 March 2020 the father filed an Application in a Case seeking an order that the proceedings be transferred to the Sydney Registry. Although no order was sought that I recuse myself from further hearing, it is apparent from the affidavit of the father’s solicitor that the purpose for seeking a change of venue was based on an expectation that the matter would be determined by a trial judge other than myself.
There was an interchange at the 23 March 2020 court event between myself and the father’s solicitor to the effect that her affidavit was directed to the issue of recusal (although no order to this effect was sought) and contained no evidence relating to a change of venue. The application seeking a change of venue was then withdrawn and dismissed.
An oral application was then made on behalf of the father seeking that I recuse myself from further hearing and the father was directed to file an affidavit setting out the matters upon which relies in support of this application.
In the following month the father filed an Application in a Case and supporting affidavit in relation to his recusal application which was heard on 15 June 2020 and judgment reserved.
The Application
It is the father’s main contention that when regard is had to my judicial conduct in refusing to make orders with respect to the children’s parenting as sought by both parties, there is a reasonable apprehension that I will approach the issue of alleged risks of harm posed by the parties to the children in a manner that is not impartial or unprejudiced.
As outlined in written submissions filed on the father’s behalf, the matter which is said to give rise to the reasonable apprehension of bias is the form of reasons I provided to the parties in refusing to make their proposed orders by consent. He contends that these reasons are “in a form which appear to be a prejudgment of a finding of unacceptable risk”.
It is also the father’s case that as I have sighted the parties consent orders and am aware of the compromise they had reached, I cannot bring an impartial mind to the resolution of the matters yet to be determined in the proceedings.
The mother contends in written submissions filed on her behalf that the father’s proposition of an apprehension of bias is unfounded and seeks that his application be dismissed.
Actual bias?
Although the father’s application is generally framed on the basis of an alleged reasonable apprehension of bias, in the Outline of Case and oral submissions made on his behalf it appeared that actual bias is also alleged as it is contended that I have prejudged the issue of risk posed by the father and found that he poses an unacceptable risk of harm to the children if they were to spend time with him.
In Bulow & Bulow[3] (“Bulow”), the Full Court said at [36] – [39]:
Importantly, aside from the heavy onus of proof, like a claim of apprehended bias, an accusation of actual bias must be distinctly made and firmly established.
An allegation of actual bias sometimes takes the form of an allegation of pre-judgment. In other words, where the decision-maker is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (MIMA v Jia Legeng, per Gleeson CJ and Gummow J at [72], per Kirby J at [127]).
Relevantly, this test of actual bias in the form of pre-judgment, requires an assessment of the state of mind of the judge in question (Michael Wilson and Partners Limited v Nicholls (2011) 244 CLR 427 at [33]). Again though, even this form of actual bias need not be confined to an intentional state of mind, but it must be real, and may be established by inference from the circumstances, including from the decision itself (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs (2000) FCA 668 at [37]).
(emphasis added)
[3] [2020] FamCAFC 120.
The contention made on behalf of the father that appears consistent with one of actual bias is that my suggestion the parties resubmit a proposal that includes particular orders, of itself, indicates that I have “prejudged” the matter and cannot bring an impartial mind to future proceedings.
Having regard to the test restated in Bulow it appears to be argued that the relevant state of mind can be inferred from these circumstances. The father has not however, identified any matter which suggests that I am so committed to a particular outcome (“that there be no contact between the father and the children”) that whatever further evidence and arguments may be presented I will not alter that conclusion.
Having considered the possibility that the argument advanced is one of actual rather than apprehended bias, the argument was primarily advanced on the basis of apprehended bias which will now be considered.
Apprehended bias
In Ebner v Official Trustee in Bankruptcy[4] (“Ebner”), the plurality of the High Court (Gleeson CJ, Gummow and Hayne JJ) set out the test for disqualification as follows:
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 th e tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
…
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. (emphasis added)
[4] [2000] HCA 63; 205 CLR 337.
What is said might lead to deciding the case other than on its legal and factual merits?
So far as the first question is concerned, two matters were identified in written submissions. First, there is the dismissal of the parties’ proposed orders. Second, is the fact that I am aware of the parties’ position arising from negotiations and of the compromise they had reached.
In oral argument, the father’s solicitor identified a further matter which she contends might give rise to the feared deviation, being the reasons given for declining to make the orders sought and in particular:
· That there was no specific order stating that the children are to spend no time with the father; and
· That there was no order restraining the father coming into contact with the children for the protection of the subject children.
What is the logical connection between the matters identified and the feared deviation?
The applicant father did not clearly develop in either written or oral submissions the logical connection between the matters identified and a feared deviation from determining the case on its merits. The tenor of his case appears to be encapsulated in the contention that a fair minded lay observer might reasonably apprehend that I have prejudged the issue of risk posed by him to the children and found it to be unacceptably high (if orders were made as proposed by the parties).
The dismissal of the parties’ proposed orders and observations that there was no specific order providing that the children spend no time with the father or restraining him from coming into contact with them occurred in the context of considering the proposal in chambers rather than in open court. It appears that the circumstances are analogous to recusal applications made on the basis of comments made by judges.
Comments made by judges have been the subject of a number of cases involving applications for disqualification. In Johnson v Johnson[5], Kirby J explained, albeit in relation to comments made in open court, that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. As the plurality of the High Court said in that case at [12]:
...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".
[5] (2000) 201 CLR 488.
In another High Court authority, Laws v Australian Broadcasting Tribunal[6], Gaudron and McHugh JJ said, at 100:
… A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry [citations omitted]. When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. … This Court rejected [page omitted] the notion that a fair and unprejudiced mind was "necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it”…
[6] (1990) 170 CLR 70.
Further, in Re J.R.L.; Ex parte C.J.L.[7], another High Court case dealing with disqualification for apprehended bias, Mason J expressed this caution (at page 352):
… 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" [citation omitted]. …
[7] (1986) 161 CLR 342.
The fair-minded lay observer would understand that I declined to make the orders sought by the parties at a time prior to final hearing and on the basis of the apparent undisputed facts. The dismissal of proposed orders would not necessarily be understood to indicate that my mind is so prejudiced in favour of rejecting a parenting proposal in the terms agreed to that I will not alter that view regardless of the evidence or arguments presented at a future date.
In these circumstances, I accept that a fair-minded lay observer may attach particular weight to the reasons given for declining to make orders in terms proposed by the parties, that included the absence of a specific order that the children spend no time with the father and the absence of a restraint upon the father coming into contact with the children.
The fair-minded lay observer would also appreciate the particular context of orders having been forwarded to chambers and a decision made in the absence of an open court hearing. The fictional observer would be aware that although the Court is not bound to make orders in terms of the proposals agreed to by the parties, ordinarily there would be an opportunity in open court for an interchange between the Court and legal representatives and submissions may be made as to why the proposed orders are proper and in the children’s best interests.
The father who seeks that I recuse myself does not claim that he was denied procedural fairness when I declined to make the orders sought for the reasons given, but reiterates that inherent in these reasons is prejudgment or a finding that he poses an unacceptable risk to the children.
The fair-minded lay observer may conclude that in declining to make the orders sought for the reasons given there is a reasonable apprehension that I may decide the issue of risk posed by the father adversely to him. There is, however, no basis upon which it can be “firmly established” that I may not bring an impartial mind to the resolution of that issue and others yet to be determined in the proceedings.
As indicated, the third matter which has been identified as grounding the feared deviation is that in providing orders which set out the parties’ parenting proposal which did not result in final orders I have become aware of the compromise that the parties had reached as to final resolution of their dispute.
So far as this matter is concerned, the fair-minded lay observer would be aware that in parenting proceedings it is not unusual for the parties to change their proposals over time depending upon the state of the evidence. In particular, it is not unusual for proposals made at the commencement of the proceedings to be quite different than those made when all of the evidence has been taken and tested.
The fair-minded lay observer would also be aware that parenting disputes are resolved by the making of orders that are “proper” having regard to the best interests of the child as the paramount consideration and that these proceedings are quite different in nature from financial or property proceedings. While words such as “compromise” may be appropriate for the latter, they are not apt in my view with respect to parenting proceedings. The fair-minded lay observer would understand that terms of settlement forwarded to chambers for the purposes of seeking orders amount to nothing more than a proposal at a given point in time which may or may not be considered by the Court to be proper in all of the circumstances.
For the foregoing reasons, I am satisfied that while a fair-minded lay observer may hold an apprehension that I may not make orders in accordance with the proposal of a party or even both parties, there is no basis upon which the fictional observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the parenting dispute between the parties.
Accordingly, the father’s application that I recuse myself from further hearing is dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 28 September 2020.
Associate:
Date: 28 September 2020
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