Tomkins & Ward & Ors - [2007] FMCAfam 858

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TOMKINS & WARD & ORS

[2007] FMCAfam 858

FAMILY LAW – Application for disqualification of trial judge (federal magistrate) – apprehended bias – application of test: whether … “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” – court should not lightly entertain such an application – test not satisfied – application dismissed.

Family Law Act 1975 (Cth)

AGF v LLS (2005) 34FLR 161
B Alleged Apprehension of Bias (2003) 32FLR 1
Johnson v Johnson (2000) HCA 48
JRL ex parte CJL (1986) 10FLR 917
Vakauta v Kelly [(1998) 167 CLR 568]
Armstrong (1976) 1 Fam LR 11,297
Johnson (2000) 26 Fam LR
Bienstein (2003) 30 Fam LR 488
CJL (1986) 10 Fam LR 917

First Applicant:

MS TOMKINS

Second Applicant:

MR WARD

First Respondent:

MS WARD

Second Respondent:

MR RICHARDS

File number:

PAM 2877 of 2006

Judgment of:

Walters FM

Hearing date:

3 October 2007

Date of last submission:

3 October 2007

Delivered at:

Brisbane

Delivered on:

3 October 2007

REPRESENTATION

Counsel for the First Applicant:

Ms McDiarmid

Solicitors for First Applicant:

Watson Stafford

Counsel for Second Applicant:

Mr Ward appears in person

Counsel for the First Respondent:

Ms Kirkman-Scroope

Solicitors for the Respondent:

Allan Dick Solicitors

Counsel for the Se
cond Respondent:

Mr Richards appears in person

Counsel for the Independent Children's Lawyer:

Ms Gillies

ORDERS

The application for disqualification of trial judge (Federal Magistrate) be dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Walters delivered this day will for all publication and reporting purposes be referred to as Tomkins & Ward & Ors.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

PAM 2877 of 2006

MS TOMKINS & MR WARD

Applicants

And

MS WARD & MR RICHARDS

Respondents

REASONS FOR JUDGMENT

(Ex tempore)

Ms Ward (through her counsel, Ms Kirkman-Scroope) has sought that I disqualify myself from further hearing this case – on the ground of apprehended bias.
In AGF v LLS (2005) 34 Fam LR 161, the Full Court said[1]:
The test of whether a judge is disqualified by reason of the appearance of bias is whether ... “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”[2].
[1] at para 21
[2] see Johnson v Johnson [2000] HCA 48 at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
I accept that that is an accurate statement of the test that I must apply.
The “question that the Judge is required to decide” in this case is how best to promote the welfare or best interests of these two very young children. In other words this is a parenting case. Issues relating to the credibility of the parties, or indeed their character and personality, do not comprise the ultimate question that I am required to decide, although findings about such issues are likely to be necessary in order to determine the ultimate issue at trial (being, in this case, with whom the children should live on a permanent basis).
The real question for me today is no more and no less than whether the matters raised by Ms Kirkman-Scroope satisfy the test to which I have referred in paragraph 2 above.
A longer statement of the law in relation to this subject appears in Re B (Alleged Apprehension of Bias) (2003) 32 Fam LR 1, and particularly at paragraph 49. There, the Full Court refers to the usual authorities cited in questions of this nature, including Re Watson; Ex parte Armstrong (1976) 1 Fam LR 11,297, Johnson (2000) 26 Fam LR 627 and Bienstein (2003) 30 Fam LR 488. The Full Court then quotes with approval the following paragraphs from Johnson:
[11] … It has been established by a series of decisions in this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which in the present case was said to take the form of prejudgment) is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
[12] That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal prejudged the case, they cannot have confidence in the decision.” The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
[13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly [(1998) 167 CLR 568] 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.
[14] .... No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation. [Footnotes omitted]
Bienstein and Re JRL; Ex parte CJL (1986) 10 Fam LR 917 (to which Ms Kirkman-Scroope made reference) also emphasise that the Court should not lightly entertain an application for disqualification. It must be clearly demonstrated that disqualification is warranted. The cost to the public purse of a Judge disqualifying himself on day 9 or 10 of a trial such as this is immense. The inconvenience to the parties, and the potential injustices which may result from an adjournment of the trial, are obvious to all concerned.
It follows that I must be persuaded that the requirements of the test to which I have referred have indeed been met. The first matter referred to by Ms Kirkman-Scroope comprises what is perceived as my attempt to limit the amount of time that she could cross‑examine a witness. There is no suggestion that the additional time that might have been given would have changed the effectiveness of the cross‑examination, or the outcome of the case, in any way. I am not told what other areas would have been covered if additional time had been given. When regard is had to the disjointed manner in which the case has had to be conducted (due to the lengthy gaps between hearings), and the fact that the Court was initially told that it would be a two day case – which then expanded to a seven day case, and has now expanded to an 11 or 12 day case – it is obvious that firm and direct management and guidance are required on the part of the Court. Quite frankly, without such management and guidance the case is never likely to end.
I bear in mind that there have been changes in personnel at the Bar table, but the fact of the matter is that there is no reason why the Court should not limit evidence-in-chief or cross-examination with a view to ensuring that the trial is completed in the time available to it. In my opinion, no reasonable person could form a view that I have pre-judged anything, or that I might have demonstrated some form of bias against one party or the other in the manner in which the case has been managed.
The other complaints raised by Ms Kirkman-Scroope have to do with comments made by me as the trial judge (as it were) during the course of the mother's evidence and, in particular, during the course of the mother's evidence yesterday. In order to deal with these complaints in the context of the disqualification application, there is a need to refocus on the question that I am ultimately required to decide (and to the resolution of which I must bring an impartial and unprejudiced mind).
The High Court has made it abundantly clear that I am entitled to make appropriate comments about witnesses and their evidence during the course of the trial. Such an approach gives counsel an opportunity to realistically assess the state of the evidence from his or her client’s point of view, and to take such steps as might be considered expedient to deal with any relevant shortcomings – including, perhaps, to change course or to lead other evidence to meet the expressed or perceived concerns.
In any event, there is nothing wrong with a judge expressing a view that tends towards a more formed or final view, provided that the view is and is expressed to be on the basis of the evidence then before the court, and subject to the normal discretionary and weighing up processes inherent within the task of determining the major issues in the proceedings in due course. I am confident that the transcript will reveal that, when I have made comments regarding the mother, or regarding other witnesses, I have also added that my views are preliminary or tentative, and that, at the end of the day, they may make no difference to the final outcome.
Having said that, I do not resile from the comments that I made regarding the mother's attitude and some of her behaviours. At the end of the day, though, those comments do not meet the test (as set out above) of whether a judge is disqualified by reason of the appearance of bias. A reasonable, objective observer, having sat and listened to the mother’s evidence, and having fairly taken into account her state of health and the disabilities that she has, would, in my view, have formed exactly the same opinions as I expressed. I would add that the mother’s attitude and approach to the evidence that she gave – which attitude and approach led to the comments that I made – have nothing to do with any physical disability that the mother might experience, but they have everything to do with her overall outlook and attitude, and the performance of her role as a parent and as a witness.
The record will reveal that I also made comments to the effect that I completely understand how strongly Ms Ward feels, and how passionately she desires to have her children returned to her. I have made such comments from the very beginning of this case. But it is obvious to anybody who has sat and listened to Ms Ward's evidence that she is simply not capable of seeing things through anyone’s eyes apart from her own. The evidence also reveals that she has indeed behaved, at times, like a spoilt child (I did not say that she had behaved like a "spoilt brat")[3]. If examples of such behaviour are required, then I refer to the mother’s evidence regarding the recent contact period (where she confirmed that she made the comment that she would see the children on the following day "if she is allowed"), and regarding the arrangements for the children’s proposed Christening.
[3] see transcript p.145, lines 5 to 20
Irrespective of my views regarding the mother as a witness, or regarding some of the attitudes that she has expressed, this case is not going to turn on whether the mother has behaved like a spoilt child on some occasions. It is not going to turn on whether she is capable of seeing things through somebody else's eyes. It is not going to turn on the question of whether or not she is prepared to give credit to Ms Tomkins. Those matters are relevant to various factors that the Court must consider, but even if they are lumped together, they are unlikely (in themselves) to be determinative. Of far more importance to the best interests of the children are (among other considerations) the nature of the parties’ relationship with the children, the likely effect of changes in the children’s circumstances, the capacity of the parties to meet the children’s needs, care arrangements that each of the parties can put in place for the benefit of these children – in essence, their safety and security, and, of course, their stability – and the parties’ attitude to the children and to the responsibilities of parenthood. And I have not overlooked the importance of Ms Tomkins’ attitudes and behaviour in relation to, for example, ensuring that the children have a close, meaningful and continuing relationship with their mother, and facilitating relevant spend time arrangements.[4]
[4] see the following transcript references (for example) in relation to the issues raised in this paragraph: p.125 (lines 6 – 35); pp.135 (line 25) to 137 (line 29); p.143 (lines 5 – 44); p.146 (lines1 – 37); p.148 (lines 43 – 50)
There are many other factors that the court must consider, but I do not need to expand upon them at this time. Suffice it to say that, at the end of the day, I would be doing all parties a disservice, and creating an injustice, if I were to accede to the mother’s application for me to disqualify myself. The question of whether one party perceives that he or she is likely to be successful in the case is not relevant to such an application. A party may well think that he or she is unlikely to win the case, but that perception (in itself) has nothing to do with the question of apprehended bias. The question that I must ask myself is that which I posed earlier.
As Mason J said in Re JRL; Ex parte CJL[5]:
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” .... 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.
[5] at p.923
In my view, the relevant test has not (and clearly has not) been met. Accordingly, the application to the effect that I disqualify myself will be dismissed, and the case will now proceed to completion.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate: Suzette De La Motte

Date: 7 November 2007