THEOPHANE & HUNT (RECUSAL) - [2014] FamCA 708

FAMILY COURT OF AUSTRALIA

THEOPHANE & HUNT (RECUSAL)

[2014] FamCA 708

FAMILY LAW – COURTS AND JUDGES – Disqualification – Where Applicant Father seeks the trial Judge recuse himself from the further hearing of trial on grounds of actual bias and apprehended bias – Whether trial Judge was actually biased or created a reasonable apprehension of bias – Where the court found no finding of actual bias or reasonable apprehension of bias – Where father’s application dismissed.

Family Law Act 1975 (Cth)

Helbig & Rowe (No.2) [2012] FamCAFC 175

APPLICANT:

Mr Theophane

RESPONDENT:

Ms Hunt

INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

FILE NUMBER:

CSC

1089

2007

DATE DELIVERED:

5 August 2014

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

5 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:	In person
COUNSEL FOR THE RESPONDENT:	Ms McMillan QC

SOLICITOR FOR THE RESPONDENT:

O’Reilly Stevens

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

IT IS NOTED that publication of this judgment by this Court under the pseudonym Theophane & Hunt (Recusal) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 1089 of 2007

Mr Theophane

Applicant

And

Ms Hunt

Respondent

EX TEMPORE

RULING

By oral application made this morning, which is the second day of a trial estimated to take five days to conclude, the father sought an order that I recuse myself from the further hearing of the trial on the grounds of actual bias and apprehended bias. That application was opposed by the mother and the Independent Children’s Lawyer.
This litigation has an extraordinary and protracted history, which I have recounted on occasions when prefacing earlier decisions that I have made in these proceedings, and it is unnecessary to again traverse that history. Suffice to say that, in 2011 Benjamin J made orders after having conducted an interim hearing with cross-examination of witnesses in anticipation that that regime of orders may run for some two or three years. However in fact, it has transpired that the events that Benjamin J was contemplating would occur within those two or three years, namely the parties’ respective criminal trials, have not concluded. Particularly the father’s criminal trial on charges of rape and grievous bodily harm of the mother has yet even to commence, much less conclude.
The relationship between the parties was short, and their interactions with each other in the years after the breakdown of the relationship have been marked by conflict and hostility.
The circumstances of the parties in the first quarter of this year were in something of a state of flux, and ultimately when the matter was before me in May of this year, in the context of their competing applications for further interim parenting orders, the parties agreed that the preferable course was no longer to await the conclusion of the father’s criminal proceedings, but rather for the final hearing of this matter to be listed for trial. There was a further mention of the matter in June, which I will refer to in greater detail in a moment, at the conclusion of which the matter was listed before a Registrar with a view to having the matter listed for trial in these sittings.
The basis upon which the father asserts that I should recuse myself from the further hearing of the trial of this matter is as follows. In about May or perhaps June of this year, I distributed to all of the parties in open court a recent decision of Benjamin J of this Court in Cannon & Acres. The father asserts, in substance, as I understand his argument, that by virtue of the distribution of that judgment to the parties, I was telegraphing my intention in due course to make orders of the kind in fact made by Benjamin J in that matter in these proceedings.
The father also appeared to have some concerns that by virtue of the provision of Cannon & Acres to the parties, a copy of that decision would have been retained on the court file, which either may have been seen by the family consultant Ms B, or alternatively may have otherwise been brought to Ms B’s attention, perhaps by the mother’s lawyer. It was then said that Ms B’s views in relation to matters may have been, it seems, perhaps coloured by her exposure to the decision of Cannon & Acres.
Next, it was said by the father that my failure to give, at the commencement of this trial, a blanket section 128 certificate to the parties in respect of any criminal conduct that may be inquired about in cross-examination was also relevant to the determination of his application that I recuse myself. Further, it was said by him that the fact that in June I had ordered a final hearing of this matter in the context of having given the parties a copy of the decision of Cannon & Acres further supported his assertion that I had prejudged the matter, and had determined to make an order of the kind ordered in Cannon & Acres. Particularly, the father was critical that I ordered the final hearing of this matter rather than dealing with the Rice & Asplund threshold argument which would otherwise have arisen for my determination in resolving the parties’ competing interim applications.
Finally, the father asserted that I had, in the course of 25 June 2014, when dealing with the interim regime of orders that should prevail between then and this trial, ignored submissions which he had emailed to the registry on 12 June 2014, and specifically that I had ignored his reference in those submissions to the High Court’s decision of M & M.
I will deal with the individual assertions made by the father and then consider the collective effect of them.
It is correct that, in the course of one of the interim proceedings before me in this matter, I distributed the recent decision of Cannon & Acres to the parties. By that time, the mother had filed an Amended Response in which she had sought that the father be declared a vexatious litigant. In Cannon & Acres, some consideration had been given to the still recent amendments to the Family Law Act which inserted section 102Q into the Act, which, rather than having the litigant under scrutiny declared vexatious, instead operates so as to prohibit, potentially, a litigant or prospective litigant, from instituting various classes of proceedings in the Court. So far as I am aware, the only decision on section 102Q as at the date that I distributed the decision of Cannon & Acres to the parties was, in fact, Cannon & Acres. It seemed to me at the time that it would be useful to the parties to consider section 102Q at an early stage, rather than a late stage, of these proceedings, and Justice Benjamin’s analysis of the provisions, and ultimate application of them, in Cannon & Acres was likely to be of some assistance to all of the parties. Therefore, whilst factually it is correct to say that there was a distribution of Cannon & Acres to the parties, it is difficult to discern how it is said that that demonstrates actual or apprehended bias.
Yesterday evening, in anticipation of this application, I distributed to the father a copy of the decision of Helbig & Rowe, a decision of a single judge of the appellate division of this Court, Coleman J. In doing so, I apprehended that the useful summary of the relevant authorities in that case may have been of assistance to the father, who appears as a litigant in person.
Although not by reference to any statement of principle contained in the case, the father said that the distribution of the decision of Cannon & Acres was in the nature of a pre-emptive or premature finding by myself, that phrasing having been selected by him from the headnote of Helbig & Rowe. I am not of the view that the distribution of a recent authority, relevant to issues raised in the proceedings, is of a character which could be seen to be pre-emptive or premature, and I reject the assertion that it was pre-emptive or premature, or that a fair minded member of the public, properly appraised of the relevant circumstances, would so conclude that it was.
I then turn to a consideration of the suggestion that the distribution of Cannon & Acres may have coloured, in some way, Ms B’s views. Firstly, there is no evidence that Cannon & Acres was brought to Ms B’s attention. It is difficult to conceive why it may have been, if in fact it were. My examination of the court file conducted in front of the parties in Court did not demonstrate that there was, in fact, a copy of Cannon & Acres physically present in the court file. Even if there were a copy of it present, it would be curious as to why Ms B would spend some considerable time reading a decision of that character.
There is no evidence that has been put before me of any conversation between Ms B and anyone else in relation to Cannon & Acres, albeit of course, the father’s cross-examination of Ms B has yet to commence. I can discern nothing in the allegation in relation to Ms B and the decision of Cannon & Acres which, even if true, would be of a character such as to require me to recuse myself, either on the grounds of actual or apprehended bias.
The next matter relied upon by the father is my failure to issue a section 128 certificate at the commencement of the trial. This was a matter which was discussed yesterday in the course of my general explanation to the parties, and the father specifically, as to the course, or likely course of these proceedings. A section 128 certificate looms as a large issue in this case, given that the father stands indicted, or at least committed to stand trial, on numerous counts of rape of the mother and one charge of grievous bodily harm to her. Plainly, that is likely to be a subject of cross-examination of the father and plainly the cross-examination, or more precisely his answers to questions in cross-examination, will stand the risk of incriminating him.
I note that it appears as though the practice employed by Benjamin J in 2011, when dealing with the interim hearing with cross-examination, was at the outset of those proceedings, to give what I might broadly describe as a blanket certificate covering any cross-examination or inquiry of the parties dealing with criminal conduct. Whilst there is, I suspect, no error of principle in making such a blanket order, that is not the practice which I have employed in the past. Further it is not a practice which particularly, with the greatest respect to his Honour, appeals to me, specifically because of the way in which section 128 is structured. Particularly the various layers of consideration which the court must give to the question thrown up by the witness’ objection to a question, before determining whether or not to require the question in dispute to be answered and, specifically, considering whether or not, even if there be an order directing the question to be answered, that there should be a certificate given, makes a blanket certificate unattractive.
Whilst I accept, in the context of this trial, it may be nigh inevitable that a section 128 certificate would be given to the father in respect of any cross-examination dealing with the issues of rape or grievous bodily harm, that is a matter which should, in my view, properly be considered when such questioning commences. It is difficult to see, with the greatest of respect to the father, that the course I adopted, or indicated I would adopt, is in some shape or form indicative of actual or apprehended bias. I do not accept the submission that it is evidence of such bias.
I then turn to the suggestion that the ordering of a final hearing of the matter, in the context of having distributed the decision of Cannon & Acres, is consistent with, or otherwise sufficient to found a finding of, actual bias or apprehended bias. The first point to note is that indeed all parties were agreed that the final hearing of this matter should come about as soon as possible, rather than continuing to await the outcome of the father’s criminal proceedings. That fact was announced by the parties in open court, noted by me and, indeed, in one of the sets of reasons which I have delivered, I agreed that that was the appropriate course.
It is therefore not strictly correct to say that I ordered the final hearing of this matter, rather than the further agitation of the parties’ interim applications. I was asked, in substance, to so order and acceded to that because it was sensible and clearly in the best interests of the child the subject of these proceedings. However, even if it be the case that I had ordered the final hearing of this without the parties’ fully informed consent, which of course is not the submission which is made to me, nonetheless, I reject that in doing so there is some actual or apprehended bias disclosed.
Litigants in this court, perhaps more than any other court, need to have their disputes resolved as quickly as the judicial resources available afford. This is a matter which the parties have been litigating now since about, I think, 2008. Although there was a trial in 2009, by 2011, the mother’s attempted murder of the father, in consequence of which she was incarcerated, necessarily re-ignited it back into litigation where it has been, in some way, shape or form, active ever since. This is plainly a case which needs to be resolved as soon as possible on a final basis.
The ordering of a matter for a prompt final hearing is, in my view, incapable of founding a conclusion of actual or apprehended bias, and so ordering does not imply some pre-emptive or premature finding.
The final matter relied upon by the father was that I had, on 25 June, ignored submissions which he had emailed to the court on 12 June and specifically had not had regard to the decision of the High Court in M & M. It is plain that on 12 June, the father did indeed email to an officer of the registry of the court in Cairns a document that runs for some pages, headed:
Matters to be considered under section 60CC of the Family Law Act primary considerations.
The court file does not, at least to my examination, disclose that that was printed and placed upon the file, it not being an affidavit, it not being a subpoena, but being rather in the nature of a submission. Perhaps the practice is not to so file documents. It appears as though, from the court’s internal email records, that the relevant officer of the registry forwarded that for the attention of the Registrar who has the responsibility for this registry. Where it went from there at the moment is unclear, if indeed it went anywhere. I note that it appears to have been copied also to my Associate. It is possible that it was forwarded to me.
I must say, I have no recollection of having read the document but I cannot exclude the possibility that I had done so by the time of the hearing on 25 June. The document was printed during the course of these proceedings and a copy of it will be placed upon the court file. The document extends in a somewhat conventional way to address the various considerations prescribed under section 60CC of the Act. On page 5 of the document, there is a reference to the decision of M & M, albeit that there is no reference to any part of the decision, other than the decision’s citation itself.
M & M is, of course, well known for its consideration and authoritative pronouncement of the role of this court in determining issues or allegations of sexual abuse and, particularly, for its statement that the role of the court ordinarily is not to make positive findings in relation to sexual abuse, but rather, to analyse the existence and magnitude of risk which a parent may pose to a child. There is nothing controversial in that, and it has been well established doctrine over the years since M & M was decided in 1988.
Although this is not a case involving sexual abuse, I accept that the father does, at least on one view of his case, assert that the mother presents an unacceptable risk of harm to the child because of her, as he would say, long history of psychological or psychiatric illness and the behaviour generated, it would seem, by that illness. That, of course, was a live matter for consideration in the hearing before me in June of this year. However, as I observed in the course of my reasons for decision in relation to the father’s application to resume the child spending time with him, in fact, the issue for my consideration there was what was the regime of orders which should prevail between the hearing of that application and the commencement of this trial, a period of about – then contemplated and as if transpired – some six weeks.
The primary issue which occupied the parties’ attention, and rightly so, was the extent to which the mother’s capacity to continue to care for the child was being eroded by the interactions which she was having with the father, most recently being the father’s withholding of the child, after she had been in his care pursuant to the orders of Benjamin J, which necessitated the mother bringing proceedings for a recovery order. That occurred in April of this year. Ms B, in her Family Report that had been only recently released to the parties by June, opined that the risk to the mother’s capacity to care for the child was so imperilled by the prospect of ongoing interaction with the father that, in her view, there should in fact be orders that the father spend no time with or communicate with the child until she turns 18 years of age.
That report had been published to the parties by May of this year, and available at the hearing in May in which I suspended the father’s time with the child until further order. During that hearing, I alerted the mother to the absence, or virtual absence, of medical, or psychological or psychiatric evidence, which would support the frailty of the mother’s mental condition as discussed by Ms B. In consequence of that, the matter came back before me when such material had been subpoenaed. That was the focus of the parties’ attention in the hearing before me on 25 June.
Ultimately, I concluded on the untested material before me – necessarily untested by virtue of the fact that the matter was proceeding by way of interim hearing without cross-examination – that the risk of the mother’s deterioration was sufficient to justify a continuation of the suspension of time for the six weeks until this trial commenced. In doing so, I concluded that the best interests of the child lay in maintaining the mother’s mental health to the best that it could be maintained until the commencement of the trial.
In doing so, there was a consideration of the other issues that were raised in the application. However, in the context of an application for interim orders lasting six weeks, there was not the extensive traverse of the section 60CC factors, which might otherwise have prevailed in an interim hearing, that would result in orders that lasted much longer. In any event, the ultimate rejection of the submissions that were made by the father is one of the inevitable potential consequences of the entertaining of interim hearings prior to trial. In conducting such hearings, the court is always mindful that the material is untested and that is therefore not able to make factual findings unless they are agreed or otherwise uncontested.
Rather, the court is necessarily acting in a protective and cautious manner with the best interests of the child firmly as the paramount consideration. There is, in my view, nothing impermissible per se in a Judge who has rejected arguments advanced by a party at an interim hearing, with the acknowledged caveat that the factual material has not been able to be tested in any way, from thereafter continuing to deal with the matter in a contested trial. In that regard, I note that Coleman J in Helbig & Rowe discussed, albeit in the context of a Federal Circuit Judge, the very question of whether or not – having dealt with contentious interim matters – if a Judge then proposed to deal further with the matter, that could or should be sufficient to found an apprehension of bias on their part.

At [28] of those reasons, his Honour said:
As is not in doubt, the focus of the applicable test is whether a fair minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of questions the Judge is required to decide. It is not in doubt, at least in the modern era, that judicial officers are not obliged to remain “sphinx like” during the course of proceedings before them (see Galea v Galea (1990) 19NSWLR 263 at 278-279, Johnson v Johnson [2000] HCA 48; (2000) 201CLR 488 (“Johnson”) and Garrett v Freeman (No 3) [2007] NSWLEC 139). This is particularly so in the context of interlocutory proceedings, and perhaps even more so in the case of subordinate courts such as the Federal Magistrates Court in which judicial officers invariably have a vast case load, which must be dispatched within the very limited time available to them for that purpose. The advent of “case management” in the 21^st century has added to the pressure on judicial officers such as Federal Magistrates. Whilst those matters do not temper what the authorities clearly reveal, they are relevant to the conclusions which a fair minded observer might reasonably reach. So are the statements made by the judicial officer during the course of proceedings, or findings, or observations recorded by him or her in judicial reasons.
I agree with his Honour’s comment that case management of proceedings brought pursuant to the Family Law Act do raise real practical issues, and I would add that in a registry such as this, which is in substance only served by one Judge, such issues loom even larger. I am not persuaded that there is any basis for me to conclude that there is actual or apprehended bias arising from the final matter relied upon by the father.
I then turn to a consideration of whether all of those matters collectively would be sufficient to found a reasonable apprehension of bias or actual bias. In my view, they are not. Most of them have not been established in any way and further, even taking them cumulatively to the extent that they have been established, in my view, they would not be sufficient to found a finding of actual bias or to establish a reasonable apprehension of bias.
For these reasons, the father’s application that I recuse myself will be dismissed.
I will reserve the costs of the father’s application.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 5 August 2014.

Associate:

Date: 5 August 2014