Tong and Niem
[2019] FamCA 551
•15 August 2019
FAMILY COURT OF AUSTRALIA
| TONG & NIEM | [2019] FamCA 551 |
| FAMILY LAW – PRACTICE AND PROCEDURE – DISQUALIFICATION – Where application for disqualification on the basis of apprehended bias – Where discussion of applicable principles – Where basis for application not made out – Where application dismissed |
| Family Law Act 1975 (Cth) ss 69ZN, 69ZQ, 69ZR Family Law Rules 2004 (Cth) r 1.04, 11.01 |
| Australian Securities and Investment Commission v Reid [2005] FCA 1274 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Isbester v Knox City Council (2015) 89 ALJR 609 Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041 Niem & Tong [2016] FamCA 1089 Niem & Tong [2017] FamCA 134 Niem & Tong [2018] FamCA 1072 Sellers & Burns [2019] FamCAFC 111 Smits and Another v Roach and Others (2006) 228 ALR 262 Strahan and Strahan (disqualification) (2009) FLC 93-414 Vakauta v Kelly [1989] HCA 44 |
| APPLICANT: | Mr Tong |
| RESPONDENT: | Ms Niem |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Truong |
| FILE NUMBER: | PAC | 3572 | of | 2014 |
| DATE DELIVERED: | 15 August 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 16 July 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Spain |
| SOLICITOR FOR THE APPLICANT: | Steven Stefanou & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Givney |
| SOLICITOR FOR THE RESPONDENT: | Maclarens Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That the Application for Disqualification be dismissed.
That any application for costs be by way of written submissions filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days.
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 Tong & Niem 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 3572 of 2014
| Mr Tong |
Applicant
And
| Ms Niem |
Respondent
REASONS FOR JUDGMENT
The present application for determination arises in the context of long running parenting and property proceedings between the applicant mother and respondent father.
On 17 May 2019 the father filed an Application in a Case seeking the following orders:
a)that Justice Foster be disqualified from further hearing the proceedings which bears (sic) the file number PAC 3572/2014; and
b)that pending the relief sought the proceedings be stayed.
The history of the proceedings as at early 2017 was set out in an earlier judgment where the father sought that the Court be disqualified: Niem & Tong [2017] FamCA 134:
1.In these proceedings commenced in August 2014 that relate to both parenting and property, the Court delivered an interim judgment on 19 December 2016. (Niem & Tong [2016] FamCA 1089).
2.The interim determination related to the issues of interim parenting arrangements for the subject children of the parties’ marriage and interim property orders.
3. Orders were made on 19 December 2016 as follows:
Parenting
(1)That the mother and father have equal shared parental responsibility for the children [B] born … 2001, [C] born … 2005 and [D] born …2010.
(2)That the child [B] live with the father and spend time with the mother in accordance with his wishes.
(3) That the child [C] live with the father.
(4)That the child [C] spend time with the mother as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the first weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following Tuesday.
(5) That the child [D] live with the mother.
(6)That the child [D] spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the second weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following Tuesday.
(7)That the mother and father be and are hereby restrained from physically disciplining the children.
(8)That the mother and father are at liberty to attend on occasions significant to the welfare of the children and each of them in relation to the children’s schooling, religious education, extracurricular activities, and such other occasions significant to the welfare of the children where the attendance of either or both parents is to be reasonably expected.
(9)That the mother and father keep each other informed at all times of their respective mobile telephone numbers and landline telephone numbers, if applicable, and notify the other in the event of any change within 24 hours of any such change occurring.
(10)That the mother and father keep each other informed at all times of any general practitioner or other health practitioner on which any of the children attend and do all necessary things so as to authorise the other to be provided with any reasonably requested information in relation to the attendance on such practitioners.
(11)That for the purposes of changeovers where not at school the father as necessary shall deliver the child [C] to the mother’s residence or any other venue agreed to and reasonably nominated by the mother for the commencement of the mother’s time with the child and the mother shall deliver the child D to the father’s residence or any other venue agreed to and reasonably nominated by the father for the commencement of the father’s time with the child and that at the conclusion of each parent’s time with [C] or with [D], as applicable, the parent with whom the child has been spending time shall return the child to the other parent’s residence or any other venue agreed to and reasonably nominated by that other parent.
Property and Injunctions
(12)That within 14 days from this date the husband as Appointor of the [E] Trust shall appoint [Mr F], Solicitor as Trustee of the Trust for the purposes of selling by public auction the real estate properties [1 and 2 G Street, Suburb H] for the best price reasonably obtainable and upon sale disburse the proceeds of sale in the following order and priority:
(a)in payment of auction and advertising expenses and agents commission on the sale;
(b)in payment of legal expenses of and incidental to the sale;
(c)in payment of the Trustee’s reasonable fees and expenses of and incidental to the sale of the said properties;
(d)in discharge of the mortgage encumbrances secured thereon including any arrears payable at the time of sale;
(e)in payment of the then remaining balance of proceeds of sale to an interest-bearing controlled monies account in the names of the solicitor for the husband and the solicitor for the wife jointly with such account to be held on trust for E Pty Ltd as trustee of the E Trust pending further order.
(13)That forthwith upon final settlement of the sale of the real estate properties as provided for in the previous order, the husband shall do all things necessary as Appointor of the [E] Trust to reappoint [E] Pty Ltd as trustee of the [E] Trust.
(14)That within seven days from this date the husband do all necessary things and sign all necessary documents and authorities so as to authorise and permit the wife to contact and negotiate with [I] Pty Ltd being the plaintiff in proceedings 2016/… in the District Court of New South Wales so as to procure, if possible, a compromise and final settlement of the claims made in those proceedings.
(15)That within seven days from this date the husband do all necessary things and sign all necessary documents and authorities to authorise and direct Stephen Stefanou and Co, Solicitors to pay $50,000.00 of the trust monies presently held by him on behalf of the husband to the wife as she may direct the solicitor in writing and thereafter the husband be at liberty to direct the application of the balance then remaining.
(16)That within seven days from this date the husband do all necessary things and sign all necessary documents and authorities to authorise and direct [Mr J], Solicitor to account for the trust monies presently held by him on behalf of the husband in the following manner and priority:
(a)as to the sum of $50,000.00 provided for in orders made 13 October 2016 if not already paid, to be paid to the wife as she may direct the solicitor in writing;
(b)as to the balance of funds then remaining in trust (estimated to be about $142,000.00) to the wife’s solicitors to be held in trust by those solicitors for the parties jointly and only to be disbursed in payment of all or part of any settlement reached in relation to the [I] Pty Ltd proceedings.
(17)That the wife is hereby authorised and permitted to apply funds presently held in the parties’ ANZ Joint Account as necessary in payment of any settlement reached in relation to the [I] Pty Ltd proceedings after payment of funds as provided for in the previous order.
(18)That otherwise the husband and wife are restrained from dealing with in any way or permitting the withdrawal or diminution of the balance of funds thereafter remaining in their ANZ Joint Account pending further order.
(19)That the wife, having sole use and occupation of the former matrimonial home at [K Street, Suburb L] to the exclusion of the husband by reason of orders made 13 October 2016, shall pay as they fall due and payable outgoings in relation to that property including but not limited to Council rates, water rates and property and contents insurances.
(20)That the husband be and is hereby restrained from selling, mortgaging, leasing, encumbering or otherwise dealing with the property at [K Street, Suburb L] pending further order.
(21)That otherwise all interim applications before the Court are dismissed.
(22)That proceedings be adjourned for further judicial case management to 9.30 am on Friday, 10 February 2017 and it is noted that such listing is to facilitate the appearance of the Independent Children’s Lawyer appointed by order on 14 November 2016 and to give consideration to the appointment of an appropriate Chapter 15 expert as to parenting issues and an appropriate Chapter 15 expert for the purpose of corporate valuations.
The reasons delivered as to the interim property orders was set out in Niem & Tong [2016] FamCA 1089 and included the following:
Funds retained or received by the husband
41. The husband has had access in the last 18 months to funds as follows:
$ 50,000.00 from joint ANZ account October 2015
$ 30,624.00 motor vehicle insurance payout June 2015
$ 195,000.00 funds from Country T March 2015
$304,958.00 refinance of the husband’s Country T properties November 2015
$150,000.00 legal fees debited to solicitors trust account from property funds
$212,290.00 funds paid to the husband CBA a/c from sale of Suburb N property
$142,240.00 funds paid to the husband CBA a/c from sale of Suburb S
$1,085,112.00
42.From these funds the husband has expended significant sums on his own legal fees and, it appears, the ongoing conduct of his business interests, in particular, the renovation and improvement of the properties owned by V Trust in respect to which in May 2014 V entered into an asset Finance agreement with Y Pty Ltd (now I Pty Ltd) guaranteed by the husband to purchase equipment and fit out for the husband’s business.
43.Many of the invoices provided by him relate to the period pre separation and provided little or no explanation for his asserted expenditure of the above funds more recently available to him.
44.His business, it appears, remained open until July 2016. He fails to account for any income that may have been derived from the business in respect to which he expended significant funds including payment of wages and continues to rent the property as a business: “Company AA”. He complains that he cannot complete the refurbishment without further funds.
45.The husband’s “Schedules” of expenditure reveal little regard as to his obligations to his creditors but more an abandonment of any responsibility. Indeed, the funds sourced from Country T could all but have liquidated the liabilities in respect to which he now seeks to apply other matrimonial assets to the detriment of the remaining asset pool such as it is known.
There has been no appeal in relation to either judgment or the orders made.
On 10 February 2017 the father made application for this Court to be disqualified on the basis of apprehended bias arising from certain portions of the reasons for judgment delivered 19 December 2016.
On 10 March 2017 reasons for judgment were delivered and the father’s application as to disqualification was dismissed. There has been no appeal from that order.
On 4 April 2017 Dr HH was appointed as a single expert for the purposes of preparing a report in the context of the ongoing parenting proceedings. It is instructive to set out the matters that Dr HH was requested to consider. They are as follows :
(a)whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
(b)the effect on the children of any family violence to which they may have been exposed;
(c)any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
(d)the nature of the parents’ relationship with each other and the impact of this relationship on the children;
(e)the relationship between the children and each of their parents and any other relevant person;
(f)the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;
(g)the capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs;
(h)the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (or any other relevant person);
(i)the effect on the children if spending equal time, or substantial and significant time, with each parent having regard to parent’s current and future capacity to:
•implement such an arrangement, and
•communicate with each other and resolve difficulties that might arise;
(j)the mental health of the parents in so far as it relates to parenting issues, including but not limited to:
2.j.1psychiatric history;
2.j.bany diagnosis;
2.j.cdetails of the history of any current or past psychiatric treatment, including but not limited to, whether or not either of the parents may have current psychiatric disorders;
2.j.dthe prognosis and an assessment of the risk, if any, that s/he may present to the safety of him/herself and others;
2.j.ewhat insight s/he has into any psychiatric illness or disorder s/he may have, if any;
2.j.fwhether or not s/he will require ongoing treatment, therapy and medication, if any.
(k)the mental health/special needs of the children and any recommendation for therapeutic counselling if appropriate for the children;
(l)any substance misuse by the father.
(m)any other matter the Expert considers relevant.
On 22 June 2017 the single expert report from Dr HH, Children Family and Adult Psychiatrist dated 5 June 2017 was released.
Subsequently, proceedings have continued with trial directions as to parenting being made on 24 July 2017 which were anticipated to facilitate the matter being heard in early 2018.
On 24 July 2017 further orders touching upon financial issues were made by consent in the following terms:
(16)That Order 19 made 19 December 2016 be varied so that the parties do all such things and sign all such documents that may be necessary to cause Mr OO to be paid costs for the preparation of the documents identified in Order 2 below from the ANZ joint account of the husband and the wife, Account number: …42.
(17)That within forty-two (42) days from the date of these orders, the husband shall do all things as are necessary to instruct Mr OO to prepare the following:
17.1As to Tong Family Superannuation fund:
17.1.1Annual statement for year ended 30 June 2016 and 30 June 2017;
17.1.2Audited financial statement for the years ended 30 June 2016 and 30 June 2017;
17.2As to X Pty Limited:
17.2.1Annual return for year ended 30 June 2016 and 30 June 2017;
17.2.2Financial statements for the years ended 30 June 2014 to 30 June 2016 and 30 June 2017;
17.3As to X Trust:
17.3.1Annual return for the year ended 30 June 2016 and 30 June 2017;
17.3.2Financial statements for the years ended 30 June 2015, 30 June 2016 and 30 June 2017;
17.4As to V Trust:
17.4.1Annual return for the year ended 30 June 2016 and 30 June 2017;
17.4.2Financial statements for years ended 30 June 2015, 30 June 2016 and 30 June 2017;
17.4.3Taxation returns for the years ended 30 June 2015 and 30 June 2016 and 30 June 2017;
17.5As to E Trust:
17.5.1Annual returns for the year ended 30 June 2015, 30 June 2016 and 30 June 2017;
17.5.2Financial statements for the years ended 30 June 2015, 30 June 2016 and 30 June 2017;
17.5.3Taxation returns for the years ended 30 June 2015, 30 June 2016 and 30 June 2017;
17.6As to Q Pty Limited:
17.6.1Annual return for the year ended 30 June 2016 and 30 June 2017;
17.6.2Financial statements for the years ended 30 June 2015, 30 June 2016 and 30 June 2017;
17.6.3Taxation returns for the years ended 30 June 2015, 30 June 2016 and 30 June 2017;
17.7Husband’s taxation returns for the year ended 30 June 2016 and 30 June 2017;
(18)That within thirty-five (35) days from the date of these orders, the wife serve upon the husband the following:
18.1The financial statements for the year ended 30 June 2016 and 30 June 2017 for Q2 Pty Limited;
18.2The loan account ledger for Q2 Pty Limited for the years ended 30 June 2016 and 30 June 2017;
(19)That Mr PP be appointed as the single forensic accounting expert for the purposes of providing an opinion as to the following:
(i)The value of the interest of the parties in:
1.The E Trust;
2.The V Trust;
3.Q Pty Limited;
4.The X Trust;
5.Q2 Pty Limited;
6.The member entitlements of each of the parties in the Tong Family Superannuation fund;
(ii)The taxation impost (if any) to be incurred by any of the corporate entities and/or the parties by way of the realisation of the real properties at shops 1 and 2, G Street, Suburb H pursuant to the Orders made 19 December 2016;
(iii)The taxation impost (if any) to be incurred by way of the declaration of a dividend or the distribution of income by any corporation or trust so as to extinguish any debit loan account payable by the parties or either of them to any corporation or trust
(iv)that the instructions for Mr PP to commence his opinion not be provided until the documents identified above have been prepared by Mr OO;
(v)that such opinion be as to value at 30 June 2017
(20)That Order 19 made on 19 December 2016 be varied so that the costs of Mr PP as the single forensic accounting expert equally paid by the parties by way of drawing on the funds held to their credit in the ANZ joint account, Account number: …42.
(21)That the solicitors for the wife provide to the solicitors for the husband within 28 days a draft letter of instruction be directed to the single expert, Mr PP.
(22)That the applicant wife serve upon the solicitors for the husband within twenty-one (21) days an updated balance sheet containing each item of property, liability and superannuation as she contends, with a value ascribed to each item and a notation recording the foundations for each such contention, and the husband within fourteen (14) days after receipt of the document from the wife, enter his inputs as to the same matters to that document, and thereafter that updated joint balance sheet is to be filed with the Court as a working document.
Subsequently, on 27 February 2018, trial directions were made as to the property proceedings with anticipated hearing dates being in late 2018.
Proceedings as to parenting were listed for hearing commencing 23 April 2018 with four days allocated for trial. On 27 April 2018 oral evidence, including evidence from Dr HH, concluded and directions were made for the filing and service of written submissions in relation to parenting orders and that upon completion of written submissions judgment would be reserved to a date to be fixed. Final written submissions were received on or about 4 June 2018 and on that day judgment as to parenting issues was reserved.
Subsequently, the mother made application to reopen parenting proceedings and on 24 August 2018 orders were made as follows:
(1)By consent the mother have leave to reopen her evidence in chief in part heard proceedings as to parenting.
(2)Upon noting the present circumstance of the husband further directions as to the filing of affidavit material will be deferred for consideration to 16 November 2018.
(3)The wife’s application in a case filed 21 August 2081 as to interim parenting and the husband’s application in a case filed 13 June 2018 seeking interim property and/or costs and an amendment to procedural directions both be adjourned for judicial case management to 2.15pm on 16 November 2018.
(4)Leave is granted to the parties to issue such further subpoena as they consider relevant to the issues for determination such subpoena returnable by no later than Friday 9 November 2018.
(5)The husband and wife file and serve a primary affidavit in support of the orders sought by each of them in their interim applications and in response to the application of the other party by no later than 2 November 2018.
(6)Leave is granted to the Independent Children’s Lawyer to relist the matter on short notice in appropriate circumstances by application to the Court in chambers.
The mother’s application to reopen the proceedings was made in circumstances where on 28 June 2018 there had been a significant fire at the residence occupied by the father occasioning him significant burn injuries to 48 per cent of his body. As a consequence, during his hospitalisation all three children of the parties’ relationship resided with the mother. There have been no charges laid in relation to that fire.
Subsequent to the father’s discharge from hospital there were further proceedings in relation to interim parenting and on 14 December 2018 reasons for judgment were delivered (Niem & Tong [2018] FamCA 1072) and orders were made as follows:
(1)That parenting orders 1 to 6 inclusive and 11 made on 19 December 2016 be discharged.
THAT PENDING FURTHER ORDER:
(2)That the mother have sole parental responsibility for the children C born … 2005 and D born … 2010.
(3) That the children C and D live with the mother.
(4)That the child C spend time with the father in accordance with her wishes.
(5)That the child D spend time with the father as agreed between the mother and father in writing, such writing to include SMS or email communication and in default of agreement the father shall spend supervised time with the child D at the DD Contact Service or such other community based contact service agreed to by the Independent Children’s Lawyer on each alternate Saturday for three hours commencing on the first Saturday after these orders with the cost of any such service to be paid for equally by the father and mother and provided that:
(a)In the event that the contact centre or service offers supervised time only at times which are less regular than specified then contact shall occur at the times that are offered by the contact centre or service.
(b)The mother must deliver the child D to and collect the child D from the contact centre or service at the times specified by the contact centre or service and on each occasion promptly leave the vicinity.
(c)If the contact centre or service during the currency of these orders declines or is unable to continue to provide its services, or the director of the contact centre or service recommends in writing to the parties a variation of these orders, then either party (or the Independent Children’s Lawyer) may on seven days written notice to the other party and the Court restore the matter to the list.
There has been no appeal in respect to this further interim determination.
The reasons for judgment delivered 14 December 2018 significantly record the following:
17.Subsequent to moving into the mother’s care, the child B exhibited aberrant behaviour including suicidal ideation. In early July 2018 the mother met with the child B’s school principal and school counsellor in the context of the child threatening to kill the mother and the child C. The child B was taken by ambulance to hospital where he was seen by a psychiatrist, not admitted and later permitted to return home with the mother. The child B was subsequently absent from school for about two months
18.Subsequently, the mother has observed a significant change in the behaviours of both the children B and C towards her when compared with their behaviour and attitudes when living with the father. The mother has observed that her daughter is now progressing better at school and appears to be happy and content living in the mother’s household…
22.On 20 September 2018 the mother received a text message from the father informing her that he would be discharged from hospital soon and he wished previous arrangements in relation to the children to be resumed. Subsequently, the mother received a communication from the father indicating that his residential address would be at the II Hotel at Suburb JJ.
23.The father was discharged from hospital on 20 September 2018 on which date the mother was informed by the father’s solicitor “my client will reassess his position where the children are concerned. Suffice to say, I will provide you with prior written notice of those intentions and I confirm that my client will not take any unilateral actions with the children without first providing you with written notice”. It turns out such was an empty assurance.
24.On 29 September the mother returned home to find the father’s car out the front of her property. She returned a short while later to find the car gone but observed that the father’s belongings that were packed at the back of her house had been removed together with the children’s pet cat and dog. This was distressing to the two younger children who were with the mother.
25.On 30 September 2018 the child B told the mother “I’m going to live with dad”. With that she observed the father at the front of the premises and waiting for the child and his belongings. They both then left the property. Subsequently, the mother has had no contact with the child.
…
35.The father asserts that since the older child B commenced living with him he has been attending school as required and his behavioural issues “have decreased”. The father asserts he has a physical capacity to perform normal household tasks for himself and the child B. Yet the father provides no updating medical evidence as to his physical health generally and as to his mental health subsequent to the traumatic events of the fire.
36.The father acknowledges that he has been interviewed by New South Wales Police in relation to circumstances of the fire. It is his understanding that the police have finalised their investigation and it is now closed.
The objective documents
37.Documents produced on subpoena by CC School attended by the child C reveal that in 2018 whilst in the care of the father until the date of the fire on 28 June 2018 the child C missed 42 mostly whole or partial days of school. Such an attendance record is appalling. After coming into the mother’s care the child has missed one day of school and six partial days.
38.Documents produced by the Department of Family and Community Services reveal the engagement of that Department subsequent to the fire. It is readily apparent that some notifications to the Department have been precipitated by the mother, it appears, out of her concern that it was the father who set the fire. That circumstance no longer appears to be the case.…
43.The Single Expert Report of Dr HH dated 5 June 2017 (Exh “C”) is significantly critical of the father, see at [144], [149], [153] in particular the following:
The father was identified to have a significant psychiatric history. Underpinning this, was his narcissistic personality disorder. This had impacted upon his family relationships, intimate relationships, approach to parenting, work performance and state of mind. He had previously abused prescription medication resulting in his [suspension as a health professional] …
He will remain vulnerable to narcissistic insults given it is evident personality vulnerabilities. ... He lacked insight into his underlying personality vulnerabilities and its impact on his general functioning and approach to parenting.
44.There are significant concerns in circumstances where the child B had settled reasonably well into the mother’s household but subsequent to ongoing contact with the father, the father manufactured a circumstance with the child B where he without notice to the mother in effect secreted the child B back into his full-time care. Subsequently, the child B has had no contact with the mother. It is readily apparent that the father has again facilitated the child becoming aligned with him.
Subsequently, an updated report was procured from the single expert Dr HH. That report dated 11 December 2018 was released to the parties on 19 December 2018.
Proceedings were again before the Court on 1 February 2019 in circumstances where the father was then overseas in Country T “allegedly sourcing appropriate disclosure and discovery documents for the purposes of property proceedings”. On that date proceedings were adjourned for further judicial case management to 4 March 2019 on which date the father failed to appear although he was represented. Proceedings were adjourned to the following day on which date the father appeared in person with his solicitor.
On 5 March 2018 orders and directions were made as follows:
(1)The proceedings as to parenting and property be adjourned for judicial case management to 10.00am on Monday, 20 May 2019.
(2)Both parties be in attendance on the adjourned date notwithstanding they may be legally represented.
(3)Both parties provide to the Court on the adjourned date a costs disclosure statement containing particulars of legal costs and disbursements incurred to date, payments in relation to legal costs and disbursements to date and particulars as to the source of funds funding payments of legal expenses to date with such cost disclosure notice to be filed and served by each party by no later than Friday, 17 May 2019.
THE COURT NOTES THAT
(4)The wife makes complaint today as to the husband’s lack of financial disclosure in relation to issues that are identified in the document initialled by me and marked with the letter “A” dated today and attached to the Court file.
(5)It is the proposal of the Court that on the adjourned date proceedings are to be listed as to both parenting and property with a view to making trial directions on both issues subject to the single expert valuation report being finalised.
(6)There is an outstanding Application in a Case relating to interim property distribution and/or interim costs filed by the husband and the husband is at liberty to seek to relist that application on not less than 14 days’ notice to the other party by application to the Court in chambers.
Subsequently, the Court was provided with updated costs statements from each of the parties. The husband’s costs statement evidenced payment by him of legal costs as at 2 May 2019 of approximately $475,000. It was ordered on 20 May 2019:
(1)The husband file and serve an updated cost statement setting out with particularity the source of funds used by him to pay legal fees to date of approximately $475,000.00 as evidenced in the cost statement dated 17 May 2019 with such particulars to include dates of such payments, details of bank accounts from which such funds were withdrawn and dates of payment to the solicitors and that such updated statement be filed and served by no later than Friday, 14 June 2019.
The Current Application
The husband relies upon his affidavit filed 16 May 2019 in support of the orders sought as to disqualification and written submissions of his Counsel (Exh “A”).
In Sellers & Burns [2019] FamCAFC 111 the Full Court succinctly said as follows:
3.To found a recusal it must be established that a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” to be decided.
4.To satisfy that test, the applicant must first identify the matter that it is said might lead the judge to not bring an impartial mind to the resolution of the issue and, secondly the applicant must demonstrate a logical connection between the identified matter and the possibility that the judge might depart from impartial decision making.
The husband seeks to rely on:
a)Reasons for judgment delivered 19 December 2016 as to the then interim parenting and financial issues;
b)Transcript of 16 November 2018;
c)Paragraph [44] of the reasons for judgment 14 December 2018 as to interim parenting;
d)Transcript 1 February 2019;
e)Transcript 4 March 2019;
f)Transcript 5 March 2019; and
g)Transcript 20 May 2019.
Reasons for Judgment 19 December 2016
It is contended that certain aspects of those reasons, “whilst not attempting to retry” the determination refusing disqualification in reasons delivered 10 March 2017, evidence a groundswell of matters identified in later transcripts.
At paragraph [45] of the reasons of 19 December 2016 the Court said:
The husband’s “Schedules” of expenditure reveal little regard as to his obligations to his creditors but more an abandonment of any responsibility. Indeed, the funds sourced from Country T could all but have liquidated the liabilities in respect to which he now seeks to apply other matrimonial assets to the detriment of the remaining asset pool such as it is known.
Yet this is preceded by the following:
The I Pty Ltd proceedings
37.In May 2016 the husband surrendered the two German motor vehicles to the financier I Pty Ltd and the vehicles were subsequently sold at auction with a shortfall. In August 2016 the 4WD motor vehicle was repossessed by the financier I Pty Ltd and also sold at auction.
38.As primary borrower or guarantor the husband has now received demands from I Pty Ltd and recovery proceedings have now been commenced by I Pty Ltd in the District Court of New South Wales (2016/…) against E, V and the husband in relation to two car finance agreements and in relation to his guarantee of the other corporate borrowings. The total liability is about $360,000.00 (See: Notice of Motion for Judgment).
More recent payments
39.The wife complains that in the period from May 2015 to June 2016 various debits have been made to their joint ANZ account … payable to “Z Australia” being mortgage payments for the Trust properties and funds drawn, the husband asserts to meet Suburb P mortgage payments until the property was sold. Those debits totalled about $81,000.00. The wife asserts that the Z debits were paid in relation to borrowings by the husband post separation for his business “X”.
40.On 13 October 2016 it was ordered by consent that the wife have sole use and occupation of the former matrimonial home at Suburb L and that the husband be restrained from attending at those premises without her consent. Otherwise, it was ordered by consent that the husband and wife do all things necessary to authorise the payment of $50,000.00 from funds held in trust by Mr J and solicitor to the wife or as she may otherwise direct in writing.
Funds retained or received by the husband
41.The husband has had access in the last 18 months to funds as follows:
$50,000.00 from joint ANZ account October 2015
$30,624.00 motor vehicle insurance payout June 2015
$195,000.00 funds from Country T March 2015
$304,958.00 refinance of the husband’s Country T properties November 2015
$150,000.00 legal fees debited to solicitors trust account from property funds
$212,290.00 funds paid to the husband CBA a/c from sale of Suburb N property
$142,240.00 funds paid to the husband CBA a/c from sale of Suburb S
$1,085,112.00
42.From these funds the husband has expended significant sums on his own legal fees and, it appears, the ongoing conduct of his business interests, in particular, the renovation and improvement of the properties owned by V Trust in respect to which in May 2014 V entered into an asset Finance agreement with Y (now I Pty Ltd) guaranteed by the husband to purchase equipment and fit out for the husband’s business.
43.Many of the invoices provided by him relate to the period pre separation and provided little or no explanation for his asserted expenditure of the above funds more recently available to him.
44.His business, it appears, remained open until July 2016. He fails to account for any income that may have been derived from the business in respect to which he expended significant funds including payment of wages and continues to rent the property as a business: “Company AA”. He complains that he cannot complete the refurbishment without further funds.
Such a conclusion at paragraph [44] is readily apparent to be available when the husband defaults on significant finance obligations having otherwise had access to funds of over $1 million.
At paragraph [66] of the reasons 19 December 2016:
Regrettably, the asset pool is far from settled and there are significant issues as to the receipt and application of most significant funds by the husband since separation. The financial circumstances of the parties have been adversely affected by the husband’s professional misconduct in relation to the abuse of drugs leading to his suspension from practice. His inability to practice by reason of his personal misconduct and its effect on the available asset pool is a matter for final hearing.
Relevantly at paragraph [11] of 19 December 2016 reasons:
The father is a suspended health professional who was suspended from practice in August 2014 for abuse of prescription medication. He asserts he is presently not engaged in any form of employment.
The ramifications of the husband’s suspension are set out in detail in the said reasons. Clearly his circumstances have had such effect. The conclusion was readily available.
At paragraph [69] of the reasons of 19 December 2016:
Otherwise, the husband has had significant funds with which to pay legal fees. He will need to find further funds from his own resources other than funds presently held by his solicitors. His asserted prospective liability for funds held drawn against corporate loan accounts has not been the subject of any demand or assessment and as such is merely putative with the prospect other accounting methods being available to minimise any such liability.
Further at [23]:
As at 30 June 2014 Q Pty Ltd has retained profits of $2.984 million. Available company funds were advanced by way of loans to the husband $1.152 million), the V Trust ($445,000.00) and W Pty Ltd $1.265 million) totalling $2.862 million. In 2014 Q Pty Ltd made a trading loss of $49,188.00 but from unappropriated profit paid dividends of $349,000.00.
These funds from entities are presently the subject of Single Expert valuation. His contention as to any liability for such loans must surely, at that stage of proceedings, be “putative” in terms of being an assertion or contention subject to evidence in due course.
The husband’s contention as to apprehended bias is rejected.
Again, it is noted that there was no appeal from the findings or orders made.
Waiver
The primary authority as to waiver is the High Court decision of Vakauta v Kelly [1989] HCA 44. The majority (Brennan, Deane and Gaudron JJ) said at 572:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an 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 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. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her. Dawson J said at 577:
There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice. In the case of a criminal prosecution where the public is directly interested in the outcome, it may be different, but even in such a case, Isaacs J, in Dickason v Edwards, was clearly of the view that a party may waive the objection.
...
There is abundant authority which establishes, at all events in civil cases, that a party may waive his right to object on the ground of bias.
...
In my view, where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it.” (Emphasis added, footnotes omitted)
At 587, Toohey J said:
“There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case.
...
In the result, when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased. It was suggested during argument that this situation may be one, not of waiver, but of estoppel. The distinction between waiver and estoppel was drawn by Isaacs J in Craine v Colonial Mutual Fire Insurance Co Ltd, in a passage which has been referred to on many occasions. See also Spencer, Bower and Turner, Estoppel by Representation, 3rd ed (1977), pp 317-320. Notwithstanding the difficulties that do arise from time to time in distinguishing between waiver and estoppel, the situation here is more akin to the former than to the latter. Waiver involves a decision by the party against whose case bias is shown to raise no objection. It is this conduct which is in question rather than the conduct of the other party. The other party does not alter his position in reliance on that decision, although it is true that, had objection been taken at the time, the trial judge may have disqualified himself and the action could have been heard before another judge without serious loss of time. The situation is one in which the law prevents a party to litigation from taking up two inconsistent positions; he is held to his election. While, of course, the community has an interest in knowing that cases are decided impartially, that interest is not affected adversely by a doctrine which refuses a party to litigation the opportunity to resile from a position he has taken.”
The question of waiver was later considered by the High Court in Smits and Another v Roach and Others (2006) 228 ALR 262, where the majority (Gleeson CJ, Heydon and Crennan JJ) affirmed the decision of Vakauta v Kelly and said at 274:
It has been held in this Court, on a number of occasions, that an objection to the constitution of a court or tribunal on the ground of apprehended bias may be waived, and that, if a litigant who is aware of the circumstances constituting a ground for such objection fails to object, then waiver will result. …
Kirby J said at 296:
However, it is now settled law in this court that where a litigant, aware of circumstances providing a ground for objection on the basis of disqualification, fails to object promptly, that litigant will be taken to have waived the objection and cannot later rely on it. Obviously, this conclusion represents a practical approach, even if at the cost of some doctrinal purity...
It is clear that any objection to a judge’s participation in a trial on the ground of disqualification for association must be made promptly, once the affected party becomes aware of the suggested cause of the disqualification.
To make such contentions, such as the present, three years after the event and in the circumstance of an intervening judgment as to disqualification where the matters complained of were not put to the Court at that time and, indeed, the judicial officer without demur proceeded to case manage the matter, complete the evidence of a four day final parenting hearing, reserve judgment and then deliver a further interlocutory judgment as to interim parenting, it is not open to the husband by reason of waiver.
The Transcript 16 November 2018 Complaints
The husband makes two complaints arising out of the transcript of this day:
a)At page 11, line 19 where the Court said “I think I recall in my previous judgment he had access to quite a lot of money he hasn’t accounted for”; and
b)At pages 36 to 39, from line 30 where the husband asserts that the passage is “reflective of the pre-judgment as against the husband with evident antipathy – Justice Foster reverses the onus of proof as important factual matters accepting, without qualification or caveat, speculation contended in the wife’s case – so that the husband bears an onus to prove two negatives – that he did not deliberately start the fire, and that he was not effected by illicit substances at the time of the fire”.
The relevant transcript evidences that the proceedings were before the Court on this day in relation to various issues including an objection to subpoena, an interim application by the husband for interim property and/or costs provision and, importantly, interim parenting proceedings by reason of the significant change in circumstances of the children referred to above.
The interlocutory issue as to objection to subpoena was resolved by consent.
Transcript Complaint of Page 11, Line 19
Senior Counsel for the husband informed the Court that the interim financial applications could not be prosecuted on that day acknowledging that there was very little evidence to support the applications.
Subsequently, a discussion ensued as to ongoing case management and the then present circumstances as to anticipated single expert accounting evidence and other financial issues.
Senior counsel for the husband contended that “my client has no money at all. Part of our interim financial application relates to money to pay – he’s got a pile outstanding in legal fees, and that’s going to be the subject of opposition”.
The Court then responded with the comment impugned above: “I think I recall in my previous judgment he had access to quite a lot of money he hasn’t accounted for”. The reference was to that portion of the interlocutory judgment of 19 December 2016 reproduced above. Senior counsel for the husband responded “Yes”.
Thereafter, the following exchange took place with senior counsel for the husband:
HIS HONOUR: So I expect if he brings an application in proper form that he will explain what happened to all of that money
MR CAMPTON: That’s right.
HIS HONOUR: chapter and verse.
MR CAMPTON: That’s right. But you wouldn’t have predetermined it either.
HIS HONOUR: No, no, no.
MR CAMPTON: No, no, no. Of course not.
HIS HONOUR: But I’m just referring to my reasons for judgment.
MR CAMPTON: Well, no. Yes, your reasons are clear.
HIS HONOUR: But I think it was like – that was, like, 2016.
MR CAMPTON: No. December ’16.
HIS HONOUR: Yes.
MR CAMPTON: Yes. And they’re pretty clear about what you wanted to be informed about.
Transcript Complaint of Page 36, Lines 30-39
After dealing with the objection to subpoena issue and the circumstances relating to the husband’s interim application for financial provision the Court moved to consider the interim application for parenting orders that was listed before it that day for hearing.
In the context of that interim hearing an order was made by consent to facilitate an updated single expert report from Dr HH, Child Family and Adult Psychiatrist, as a consequence of the significant change of circumstances, his initial report having been considered together with his oral evidence in the context of the previously completed four day final parenting hearing.
This exchange was between the Court and the Independent Children’s Lawyer (“ICL”):
HIS HONOUR: Well, there has certainly been a significant change of circumstances to what enured at the time of the trial.
MR SPERLING: There certainly has been. There certainly has been a significant change in circumstances, firstly, with B, who – who, at first stage, went – actually went to his mother. And then, has now relocated back to his father and is no – no longer spending any time with his mother. There has been a difference in relation to C’s position. C’s position is deposed by the mother. In her affidavit, it says that, effectively, the – C is saying she doesn’t want to spend time or see her father. The independent children’s lawyer has met with C. I don’t cavil with that – that part about it, but it’s a matter that needs to be explored in full.
The Court was mindful of the younger children’s lack of contact with the father and their older brother in the following exchange:
HIS HONOUR: unless somebody agrees that there should be a resumption of time, but on a supervised basis, so there’s something happening between Dad and the kids, pending Dr HH seeing them. Because otherwise, they’re going to see Dr HH in a few weeks’ time having had no contact with the father since September.
MR CAMPTON: Well, since
MR GIVNEY: No, no, no. Since June, your Honour.
MR CAMPTON: Since June.
MR GIVNEY: Seen – he has the care of B, but he hasn’t seen the younger two since June.
Senior counsel for the husband expressed his concerns as to keep indications that may have passed between the mother and the children as to the circumstances of the fire in the following terms:
MR CAMPTON: … one of the things that I – one of the things that I foreshadowed in my outline was that I wanted to put to the mother, on her oath, whether she has conveyed certain things to any or all of the children concerning this fire event. Because if she has, in accordance with what I propose to put at the bottom of page 3 of my outline
…
MR CAMPTON: So, again, I’m seeking your leave to put the propositions to the – to the mother, so she can say or no about those things because they’re fundamentally important.
HIS HONOUR: Well, how do I know that what she is alleged to have said isn’t true?
MR CAMPTON: Sorry?
HIS HONOUR: How – how is that going to help me?
MR CAMPTON: How is it going to help you? If it’s true
HIS HONOUR: Well, I don’t know if it’s true because we have to wait for a trial for that to happen, to work out what happened
This exchange then was had with counsel for the mother:
MR GIVNEY …On 20 September, the husband left hospital, and he had previously forwarded a text message to my client, saying:
Thank you for looking after the children. I want the orders reinstated.
We were accused of cherry-picking text messages to suggest to the court, in our affidavit sworn 20 September 2018, that the whole story wasn’t before the court, and that the husband had no intention of approaching my client or going to the house. That’s 20 September. And then there’s two text messages, your Honour will read, from my friend’s solicitor, saying:
My client has no intention of going near the house. And if we do, any actions we take we will give you written notice of.
Whilst my client was out, on 29 September, the husband removed the children’s pets and his belongings, notwithstanding my client wasn’t in the house, and there’s an exclusive occupation order. On 30 September, he turned up without notice, and B went into his care. So I’ve emphasised both in my submissions, that behaviour of the husband. So this is a – and I say in the – my last affidavit – my client’s last affidavit says:
Both the younger children were distressed by the fact that their pets had been removed. (Emphasis added)
The circumstances of the fire at the father’s home were referred to by counsel for the wife and the following exchange took place:
MR GIVNEY: Your Honour, there’s no evidence about – from the husband – about this fire. The two children were in – in the house when the fire was there. All he says is, “I was cooking, and had a heart attack.” We say that that evidence is patently untrue, because
HIS HONOUR: Well, nobody has tendered the hospital records.
MR GIVNEY: I’m sorry, your Honour?
HIS HONOUR: Where’s the hospital records? It’s his case; he hasn’t tendered them.
MR GIVNEY: Yes, your Honour.
MR CAMPTON: No, that’s not right.
HIS HONOUR: You haven’t tendered the hospital records.
MR CAMPTON: No, but that’s not right it’s our case; it’s the wife’s case.
HIS HONOUR: No, no.
MR CAMPTON: To suspend that.
HIS HONOUR: It’s his case that it was a completely innocent event, and he wasn’t affected by drugs at the time.
MR CAMPTON: That’s right.
HIS HONOUR: So where’s the hospital records?
MR CAMPTON: Well, if you want them, then you can have them; I don’t – not sure you will be able to read them. But that’s – that’s just – you’ve just entirely reversed the onus. The wife says that he was affected by some drugs at the time. Source of knowledge?
HIS HONOUR: Probably history.
MR CAMPTON: Well, no, that can’t be.
HIS HONOUR: Oh, really?
MR CAMPTON: No, but it can’t be. How could she possibly say that?
HIS HONOUR: Well, look, maybe she just has a suspicion; who knows. But, in any event, if he says, “Look, it was a completely innocent event. There’s no issue about what I was under the influence of. The hospital records are here. This is my explanation to the police. And there’s no police records.”
MR CAMPTON: Well, two things about that. First of all, he says he has spoken to the police, and he has told them what was in his affidavit. Secondly, we’ve subpoenaed the police, and nothing has come. Thirdly, if you want the admission and the discharge records – because there seems to be some reversal of onus here – then I will tender them now.
HIS HONOUR: Well, it’s part of his case that it was
MR CAMPTON: No.
HIS HONOUR: all a completely innocent accident.
MR CAMPTON: No, his case is, as best as he can remember, he was cooking.
HIS HONOUR: Yes.
MR CAMPTON: He has been told – he has been – he certainly suffered a heart attack, and he has been told that that occurred at or about that time. And that’s the best that he remembers. And what else would you expect him to remember from
HIS HONOUR: No, that’s fine.
MR CAMPTON: what is the ultimate traumatic event.
HIS HONOUR: But when they did the tox screens at the hospital, and all the usual things
MR CAMPTON: Yes.
HIS HONOUR: they do, that would be in the hospital records.
MR CAMPTON: Yes.
HIS HONOUR: Anyway – and we don’t have them.
MR GIVNEY: We haven’t raised drugs; we just don’t know what happened.
HIS HONOUR: Yes, I – but – I understand. But, look, it
MR GIVNEY: Yes.
HIS HONOUR: has happened. What has happened has happened, and it’s regrettable. I’m more concerned about what’s going to happen with the middle child
The above exchange was clearly directed to the absence of objective evidence as to the circumstances immediately following the fire. Both parties have an obligation in support of their respective contentions to endeavour to put before the Court objective evidence that would support their position. Such was not done and as was said earlier in the transcript and referred to above a determination as to the circumstances relating to the fire would have to wait final trial. Surprisingly, following the exchange above, senior counsel for the husband produced to the Court the husband’s hospital discharge summary and it was marked into evidence as an exhibit in the interim proceedings.
The interim parenting proceedings then continued with submissions from both parties and the ICL with judgment then being reserved.
No issue was raised by senior counsel for the husband at the interim hearing as a consequence of the exchanges now impugned by the husband. Reasons for judgment were subsequently delivered on 14 December 2018 with interim orders as to parenting being made in the following terms:
THAT PENDING FURTHER ORDER:
2.That the mother have sole parental responsibility for the children C born … 2005 and D born … 2010.
3. That the children C and D live with the mother.
4.That the child C spend time with the father in accordance with her wishes.
5.That the child D spend time with the father as agreed between the mother and father in writing, such writing to include SMS or email communication and in default of agreement the father shall spend supervised time with the child D at the DD Contact Service or such other community based contact service agreed to by the Independent Children’s Lawyer on each alternate Saturday for three hours commencing on the first Saturday after these orders with the cost of any such service to be paid for equally by the father and mother and provided that:
(a)In the event that the contact centre or service offers supervised time only at times which are less regular than specified then contact shall occur at the times that are offered by the contact centre or service.
(b)The mother must deliver the child D to and collect the child D from the contact centre or service at the times specified by the contact centre or service and on each occasion promptly leave the vicinity.
(c)If the contact centre or service during the currency of these orders declines or is unable to continue to provide its services, or the director of the contact centre or service recommends in writing to the parties a variation of these orders, then either party (or the Independent Children’s Lawyer) may on seven days written notice to the other party and the Court restore the matter to the list.
There was no appeal from that interlocutory judgment.
Reasons for Judgment 14 December 2018 at [44] Complaint
The reasons for judgment include the following:
14.On that day the father was seriously injured in a fire that occurred at his residence. The father was admitted to hospital suffering third degree burns. Subsequent to his admission to hospital, the father suffered a heart attack.
15.The mother had some reservations as to the father’s mental health prior to the fire and more particularly after the fire.
16.Consequently, the older two children moved to reside with the mother and joined the child D in her home.
17.Subsequent to moving into the mother’s care, the child B exhibited aberrant behaviour including suicidal ideation. In early July 2018 the mother met with the child B’s school principal and school counsellor in the context of the child threatening to kill the mother and the child C. The child B was taken by ambulance to hospital where he was seen by a psychiatrist, not admitted and later permitted to return home with the mother. The child B was subsequently absent from school for about two months
18.Subsequently, the mother has observed a significant change in the behaviours of both the children B and C towards her when compared with their behaviour and attitudes when living with the father. The mother has observed that her daughter is now progressing better at school and appears to be happy and content living in the mother’s household.
19.To the mother’s observation the child B has adopted much of his father’s behavioural traits in being bullying and aggressive towards the mother and his sister.
20.As at 20 August 2018 the child B had not been permitted to return to school although he appears to have had settled into the mother’s household.
21.On 21 August 2018 the child C told the mother that “daddy said he was going to hang himself in front of the house if I don’t live with him”.
22.On 20 September 2018 the mother received a text message from the father informing her that he would be discharged from hospital soon and he wished previous arrangements in relation to the children to be resumed. Subsequently, the mother received a communication from the father indicating that his residential address would be at the II Hotel at Suburb JJ.
23.The father was discharged from hospital on 20 September 2018 on which date the mother was informed by the father’s solicitor “my client will reassess his position where the children are concerned. Suffice to say, I will provide you with prior written notice of those intentions and I confirm that my client will not take any unilateral actions with the children without first providing you with written notice”. It turns out such was an empty assurance.
24.On 29 September the mother returned home to find the father’s car out the front of her property. She returned a short while later to find the car gone but observed that the father’s belongings that were packed at the back of her house had been removed together with the children’s pet cat and dog. This was distressing to the two younger children who were with the mother.
25.On 30 September 2018 the child B told the mother “I’m going to live with dad”. With that she observed the father at the front of the premises and waiting for the child and his belongings. They both then left the property. Subsequently, the mother has had no contact with the child B.
In the reasons for judgment under the heading “The Independent Children’s Lawyer and Submissions” is the following”
39.The Independent Children’s Lawyer was of the view that in relation to the youngest child D that the father should have supervised time. The Independent Children’s Lawyer informed the Court that the child B was now attending FF Group for therapeutic intervention.
40.There are significant historical allegations as to both parents seeking to alienate the children one against the other. Such seems to be the case in relation to the eldest child subsequent to the father’s release from hospital.
41.The Independent Children’s Lawyer considered it somewhat problematic in relation to the child C now 13 years of age who does not wish to have contact with the father. It appears that the child has settled well into the mother’s household and is now appropriately attending school.
42.Counsel for the mother relied upon the mother’s evidence as to the wishes of the child C and sought that no order be made in relation to her time with the father. Otherwise, the mother remains concerned as to the father’s physical and mental health following the traumatic circumstances of the fire and his hospitalisation. That concern overshadows her view as to the child D spending unsupervised time with the father.
43.The Single Expert Report of Dr HH dated 5 June 2017 (Exh “C”) is significantly critical of the father, see at [144], [149], [153] in particular the following:
The father was identified to have a significant psychiatric history. Underpinning this, was his narcissistic personality disorder. This had impacted upon his family relationships, intimate relationships, approach to parenting, work performance and state of mind. He had previously abused prescription medication resulting in his [suspension as a health professional] …
He will remain vulnerable to narcissistic insults given it is evident personality vulnerabilities. ... He lacked insight into his underlying personality vulnerabilities and its impact on his general functioning and approach to parenting.
44.There are significant concerns in circumstances where the child B had settled reasonably well into the mother’s household but subsequent to ongoing contact with the father, the father manufactured a circumstance with the child B where he without notice to the mother in effect secreted the child B back into his full-time care. Subsequently, the child B has had no contact with the mother. It is readily apparent that the father has again facilitated the child becoming aligned with him.
45.Counsel for the father refers to the mother’s evidence at trial where she did not oppose an order that the child D have regular time with the father. Such a circumstance was, of course, prior to the traumatic events of late June 2018.
46.It was, otherwise, conceded by counsel for the father that the express wishes of the child C were a real impasse in relation to making an order in respect of that child C for time with the father.
The impugned passage italicised above derives from firstly the evidence before the Court in the context of the interim hearing and in effect the concession by both counsel as to the eldest child’s alignment with the father that is evidenced in the following exchange:
HIS HONOUR: Well, in reality, this only involves one child, because the interim orders provided for D to live with the mother anyway
MR GIVNEY: Yes, your Honour.
HIS HONOUR: and the oldest child to live with dad, because that’s where he was aligned, and have time with his mother as per his wishes. And even then, he was 15 or 16.
MR GIVNEY: Yes, your Honour.
HIS HONOUR: So this is all about the middle child.
MR CAMPTON: The little boy, yes.
HS HONOUR: Sorry?
MR CAMPTON: I agree with
The evidence at interim hearing was unequivocal that the husband had manufactured, facilitated, arranged or promoted the return of the eldest child to live with him without the knowledge of the mother in whose full-time care the child had been residing. The evidence is clear that the eldest child was aligned with the father to the extent that subsequent to returning to the father’s care he had spent no time with the mother or his siblings. The complaint asserted by the husband is in such circumstances illusory.
Transcript 1 February 2019 Complaint
Subsequent to delivery of the above reasons for judgment the updated report of the Single Expert Dr HH was released by the Court in chambers on 19 December 2018.
Thereafter, when proceedings were again before the Court on 1 February 2019, the husband was represented by his solicitor Mr Nguyen. The matter was relisted following the release of the updated Single Expert Report for a Day Two Less Adversarial Trial hearing at which the parties and legal representatives are expected to attend. The father was absent as he was overseas as noted below.
Orders and notations on that day were made as follows:
(1)The proceedings are adjourned for further judicial case management to 9.30am on Monday, 4 March 2019.
(2)The mother’s personal attendance is excused on the adjourned date.
(3)Leave is granted to the Independent Children’s Lawyer to provide copy of updated single expert report to the father’s treating psychiatrist Dr NN provided always that such report remain in the possession of that treating practitioner and not be, otherwise, copied or disseminated by him.
THE COURT NOTES THAT
(4)The father is presently overseas in Country T allegedly sourcing appropriate disclosure and discovery documents for the purposes of property proceedings.
(5)The father’s supervise time pursuant to recent interim orders has not yet commenced noting that the Court has reminded the father’s solicitor that father is able should he wish to engage in community base supervision forthwith subject to his financial circumstances.
Transcript Page 2, Line 34
Relevantly, the following exchange took place:
MR GIVNEY: The father hasn’t yet exercised any supervised time with the child. I’m informed by my learned friend today that the father is in Country T trying to assist
HIS HONOUR: He hasn’t got any money.
MR GIVNEY: the – yes, your Honour – the mother and the court apparently
HIS HONOUR: He says.
MR GIVNEY: with producing documents that we’ve been chasing for about three years. So your Honour might
HIS HONOUR: Well, at the moment I assume the position is that your client is comfortable with the interim orders I made.
The husband complains of the words italicised, asserting that same was “a sarcastic reply with a dismissive disbelief”. It is difficult to understand how such an assertion can be made when the comment clearly refers to senior counsel’s comments made on behalf of the husband in the context of earlier exchanges (see discussion from paragraph [50] above) as to the husband’s lack of funds necessitating a prospective application for interim property/costs.
Transcript Page 5, Line 27 and Page 6, Line 1
Relevantly, the following exchange took place:
MR [NGUYEN]: Yes, if I can just explain that. Now, firstly, I apologise on his behalf that he can’t be here today. Now, your Honour is aware that he has an interim application for release of funds for legal funding. Now, he has – he had to go to Country T to source documents in person for disclosure because they won’t send it to him. So in going to Country T, he’s trying to move along that matter. In respect to the supervised contact, he – what I can advise the court is that he has contacted the centre. They said to him that the first available date for an intake assessment they can give him is 21 March 2019.
HIS HONOUR: So it’s about seven weeks away.
MR [NGUYEN]: Yes, and also that there’s actually a waiting list of six to eight months for that contact to commence. That’s what they told – that’s
HIS HONOUR: Well, I think it also provides that if he wants to organise some supervision in the community – is that – I think that’s the order – ten
MS TRUONG: Your Honour
HIS HONOUR: he can. Like, we’ve got all sorts of organisations that will accompany him and the child out in the community for supervised time.
MR [NGUYEN]: There’s no doubt he does want contact with this child. I can assure the court that.
HIS HONOUR: Well, it’s up to him.
MR [NGUYEN]: Yes.
HIS HONOUR: Like, he’s the one that has had access to hundreds of thousands of dollars in the history of this matter.
MR GIVNEY: Only a million, your Honour.
HIS HONOUR: So we don’t know what he did with the money.
MR [NGUYEN]: Yes, I’m getting disclosure to provide that information to the court.
HIS HONOUR: So if he wants to have time immediately, we have community-based organisations that Ms Truong is well aware of. They can facilitate some supervised time straightaway. He just needs to have the wherewithal to decide to pay
MR [NGUYEN]: The issue of funding is also
HIS HONOUR: or, indeed, get some of the funds
MR [NGUYEN]: Yes.
HIS HONOUR: that he’s remitted overseas back
MR [NGUYEN]: There is an issue with funding, your Honour.
HIS HONOUR: bearing in mind I’ve made findings about that in my interim judgment as to property. There’s no answer to any application for release of funds at the moment, is there, Mr Givney?
MR GIVNEY: Yes, my friend’s side
MR [NGUYEN]: There is, your Honour.
HIS HONOUR: When was that filed?
MR [NGUYEN]: That was filed, I believe, in June or July of last year.
HIS HONOUR: We got short-circuited by the fire, I think, did it?
MR [NGUYEN]: That’s right, your Honour.
HIS HONOUR: Okay.
MR [NGUYEN]: So, hopefully, the information
HIS HONOUR: So you need to get some instructions about that.
MR [NGUYEN]: Yes, so the information that he’s obtaining from Country T – hopefully, that will address whether that application is viable or not. So I will know within a week or two. He’s due to return on the 8th of this month, your Honour.
The husband complains of the words italicised. He asserts that they evince a pre- determination in the case other than by way of legal and factual merit.
There is no such predetermination. It was common ground that the husband had received or had access to funds set out in the earlier financial judgment, that some funds had been remitted by him overseas and he was obligated to explain the use of funds by him. Such was conceded by his senior counsel on a previous occasion. His solicitor was conscious of same in the context of the pending interim financial application:
“the information that he’s obtaining from Country T – hopefully, that will address whether that application is viable or not. So I will know within a week or two”.
Transcript Page 9, Line 22
In the context of the discussion as to the husband’s capacity to make payment for a supervised contact centre or community-based supervision of his time with the youngest child, the following exchange took place with the solicitor for the husband:
MS TRUONG: waiting period for full payment which is $160 on a weekend.
MR [NGUYEN]: Your Honour, I should also
HIS HONOUR: Why can’t he do this during the week?
MR [NGUYEN]: I think he’s back at uni – he may be back at university.
HIS HONOUR: It’s just a question of priorities, of course.
MR [NGUYEN]: Your Honour, could I also advise
HIS HONOUR: He’s not back at uni. He’s in Country T.
MR [NGUYEN]: Yes. Your Honour, he also applied for Centrelink for a disability support pension but was knocked back because of the assets that
HIS HONOUR: Yes.
MR [NGUYEN]: Yes. So he can’t get
HIS HONOUR: He needs
MR [NGUYEN]: money from Centrelink.
HIS HONOUR: to get some of the money back he sent overseas.
MR [NGUYEN]: We will certainly address
HIS HONOUR: Hundreds and hundreds
MR [NGUYEN]: the court on that issue
HIS HONOUR: of thousands
MR [NGUYEN]: in due course.
HIS HONOUR: of dollars. Like, there’s already
MR [NGUYEN]: Yes.
HIS HONOUR: That’s your difficulty with further interim release of funds, and there’s already an interim judgment as to that. You’re just having another go in circumstances where he simply has failed to disclose what he did with all this money, but you will deal with that in an updated affidavit.
MR [NGUYEN]: We will address the court in due course, yes.
The words complained of are italicised above. The discussion that took place earlier in the transcript as set out above is patently relevant. Again, he asserts that the words evidence a predetermination in the case other than by way of legal and factual merit.
Again, there is no such predetermination. It was common ground that the husband had received or had access to funds set out in the earlier financial judgment, that some funds had been remitted by him overseas and he was obligated to explain the use of funds by him. Again, such is conceded by the solicitor for the husband in the final exchange set out at [75] above.
On this date there was no challenge to the Court continuing to case manage and hear the matter. The matter was adjourned to 4 March 2019.
Transcript 4 March 2019
The matter was again before the Court on 4 March 2019. The husband was again represented by his solicitor Mr Nguyen. The husband was not in attendance, having chosen to attend a medical appointment instead. The wife’s attendance had previously been excused. Orders were made as follows:
(1)The proceedings are adjourned for further judicial case management to 9.30am on Tuesday, 5 March 2019.
(2)The husband be in attendance in Court in person notwithstanding that he may be legally represented.
(3)Costs of wife and the Independent Children’s Lawyer are reserved thrown away by reason of this adjournment necessitated by husband’s non-appearance.
(4)Leave is granted to the Independent Children’s Lawyer to appear by telephone if unavailable to attend in person.
The updated single expert report had previously been considered by the Court and released to the parties in December 2018. It was well known to the parties that the Court had given consideration to the report prior to its release. Relevantly, the Single Expert reported:
103.B [the eldest child] expressed the strong view that he wished to remain in his father’s residence. His statements were reflective of his strong alignment with his father. His attitude towards his mother and sister was contemptuous. The mother’s concerns regarding his role in his father’s household and the father’s validation of B’s pathological behaviour were confirmed by this assessment…. This was reflective of B’s emerging personality vulnerabilities which were modelled on his father and a response to chronic exposure to parental conflict. B felt responsible for his father given the catastrophic burns sustained by him. This had further solidified the nature of his views.
104.C [the middle child] had shifted significantly in her views. She now was aligned with her mother. In her communication with C she had focussed on her dire financial circumstances. Nonetheless, it was evident that C’s primary concerns related to her experience in the father’s household. This allegedly related to his recurrent suicidal threats and the catastrophic house fire…
…
109.B was strongly aligned with his father and contemptuous his interactions with his mother and sister. The mother described a significant shift in B’s attitude during the father’s hospitalisation; however, on discharge the pre-existing family dynamics re-emerged. C had shifted alliances from her father to her mother…
…
113.… The father’s response to the children’s emotional development remain problematic. He had consistently undermined the children’s relationship with their mother…
…
119.… It was evident that the father’s parenting capacity continues to be impaired by his Narcissistic Personality Disorder. The report writer’s view regarding this remains unchanged. His physical handicap secondary to the burns was a further impediment. His account remain incomplete, omitting key pieces of information such as the impact of his mother’s death on his mood immediately prior to the catastrophic house fire. It was likely that this had impacted on his mental state, leaving him vulnerable to a re-emergence of acute depressive symptoms, suicidality and possible substance use…
120.…Given the complexity of his presentation, only an experienced businessman who had seen him over an extended period and had been provided with an extensive background information, including the previous Expert report, would have the capacity to provide adequate intervention…
…
128.This assessment confirms the precarious nature of the Niem Tong family dynamics. The physical impairment and psychological distress suffered by the father further impaired his parenting capacity. B’s reaction was further evidence of his evolving psychopathology. Although the report writer has concerns for his future development and well-being in his father’s household, he was identified to be of an age to determine his place of residence. It is probable that he will be require ongoing psychiatric intervention in the context of his escalating emotional and behavioural problems.
Transcript Page 4, Line 15
The following exchange took place directed back to the outstanding parenting proceedings:
HIS HONOUR: Just so we don’t lose them; that’s all. Seems this case just has no end date. What’s the current parenting arrangements at this stage?
MR GIVNEY: The father has supervised time, but I don’t know
MR KRISTAKI: At DD Contact Service, my understanding is. That’s
MR GIVNEY: Is he going?
HIS HONOUR: Is he actually doing that?
MR KRISTAKI: That has been happening.
HIS HONOUR: Good.
MR KRISTAKI: So the orders are being complied with; that’s my understanding.
It is difficult to understand the father’s complaint that such a query “resonates plain disbelief”. The ICL informed the Court that it was his understanding that supervised time was occurring. The circumstances in previous case management hearings was that there was difficulty in implementing supervised time as referred to above. The solicitor for the wife, prior to the Court’s comment, asked of the ICL “is he going?”. The Court’s query was simply resonant of that enquiry that was quickly resolved by the ICL.
Transcript Page 6, Line 30
Following directions made as to the further conduct of the husband’s disqualification application, the husband’s solicitor made complaint about disclosure and discovery in the proceedings, presumably seeking they do something about the issue.
The following exchange took place:
MR [NGUYEN]: Your Honour, there is another matter that I would like to raise with your – with you. You will recall that, on the previous two occasions when we were before your Honour, that there were issues of disclosure by both parties, that they raise against each other. I’ve got some things that I would like to hand up, some correspondence from January, that I’ve requested the wife provide disclosure, that she has failed to do so.
HIS HONOUR: Well, I suppose what’s going to happen about all of that is, it will just be a matter for cross-examination at trial, because I’m – if I stay in the matter, I’m not going to pander to issues of nondisclosure. Let’s get them in the witness box and cross-examine them, and if there is no disclosure, then Black & Kellner will solve the problem.
MR [NGUYEN]: All right. This is a – I just want to make it clear that it’s not only my client that hasn’t been disclosing; it’s the wife as well. And since your – since the last occasion, my client has provided
HIS HONOUR: Well, at this stage, bearing in mind there’s a current application for disqualification, I’m not going to really engage too much in the proceedings at all.
MR [NGUYEN]: Just for the record, my client has provided further disclose to the – to the wife, being the – the two wills from his parents and bank account statements. So
HIS HONOUR: Okay. Well, I would expect that to happen as a matter of course in any event, having regard to the parties’ ongoing obligations for disclosure.
The husband makes complaint as to the words italicised above. The comment was clearly made in response to the husband’s legal representative’s complaint as to disclosure by both parties. The Court’s comment reinforced that such asserted nondisclosure would be a matter for cross-examination at trial and as to the Court’s powers in resolving such nondisclosure. The husband’s legal representative reinforced his opening statement as to nondisclosure by both parties in response to the Court’s comment.
Curiously, the husband complains that “this statement illustrates a willingness on the part of his Honour not to engage in any enquiry as to the foundation for a proper management request made on behalf of the father for the Court’s assistance in obtaining disclosure. It reflects an absence of even-handedness and a loss of objectivity”.
This complaint completely ignores the Court’s response in circumstances where there was an unresolved disqualification application, namely:
HIS HONOUR: Well, at this stage, bearing in mind there’s a current application for disqualification, I’m not going to really engage too much in the proceedings at all. (Emphasis added)
It is difficult to reconcile the complaint as to the Court’s unwillingness to further engage in case management of the proceedings and issues at large between the parties when it is the husband himself that seeks to have the Court disqualified.
There is no substance to the complaints by the husband as to 20 May 2019.
Discussion
There was a curious silence as to the absence of any complaint in the then intervening two and a half months before the application for disqualification was filed or, indeed, any complaint made on the earlier days referred to above. The husband was variously represented by his senior counsel or his solicitor.
Clearly, the issue of implied waiver arises in the context of these more recent complaints. No explanation has been proffered as to the delay in making any application for disqualification in the light of complaints emanating from the husband back to November 2018.
As Kirby J said in Smits and Another v Roach and Others (supra):
However, it is now settled law in this court that where a litigant, aware of circumstances providing a ground for objection on the basis of disqualification, fails to object promptly, that litigant will be taken to have waived the objection and cannot later rely on it. Obviously, this conclusion represents a practical approach, even if at the cost of some doctrinal purity...
It is clear that any objection to a judge’s participation in a trial on the ground of disqualification for association must be made promptly, once the affected party becomes aware of the suggested cause of the disqualification.
The husband proffers no explanation for his failure to raise the issue of bias promptly. It is well settled that an objection must be raised at the time that a party is in a position to do so, and if no steps are taken and the case is allowed to continue then that is the prime example of a waiver of the right to object.
With respect to comments made by a judge, the requirement that a party object at the time the issue arises is justified because it provides the judge with an opportunity to correct any wrong impression of bias or decline to further hear the matter. Public interest considerations also arise, in that a party should not be able to wait until final judgment is known before objecting, effectively allowing them to choose whether to accept the judgment or not: Vakauta v Kelly (supra) at 572.
It is considered that the husband’s delay in making the subject application in a timely and proper manner is a waiver of any right to do so. His application should be dismissed.
If such a conclusion is incorrect, then consideration should be given to the general underlying principles.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 the plurality said:
6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7.The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
…
The principle to be applied
19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20.This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
In Strahan and Strahan (disqualification) (2009) FLC 93-414, the Full Court of the Family Court of Australia adopted the above test enunciated in Ebner.
In Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492–493:
10.The disposition of this appeal depends upon the application of principles which are well established and which neither party disputed. The contention was that there had been a departure from those principles which the Full Court of the Family Court had wrongly failed to correct, thus calling for the intervention of this Court, if only to emphasise the importance of intermediate courts applying these principles. In these circumstances it is neither necessary nor appropriate to undertake any detailed analysis of the principles or their basis.
11.... It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer (emphasis added) might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. [original emphasis]
12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’.
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case’. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”
In Isbester v Knox City Council (2015) 89 ALJR 609, Kiefel, Bell, Keane and Nettle JJ said at [20]:
The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.
The proceedings before the Court are both parenting and property proceedings with the parenting proceedings part heard over four days. It is proposed that, if possible, final property also be determined on the resumption of the part heard proceedings.
In Strahan (supra) the Full Court referred to Johnson (supra) at [13] where reference was made to the level of knowledge imputed to the hypothetical fair minded lay observer. This would include that the fair-minded lay observer would have knowledge of the actual circumstances of the case.
In Australian Securities and Investment Commission v Reid [2005] FCA 1274 Lander J reviewed authorities concerned with the level of knowledge and characteristics imputed to the fair minded lay observer and said:
“… who is reasonable and fair minded, who has a general understanding of the facts and circumstances surrounding the case, who is not a lawyer but is not wholly uninformed and uninstructed about the law in general, and who would ordinarily think that a judge will act so as to ensure both the appearance and substance of fairness and impartiality without at the same time rejecting the alternative possibility.
The observer would be mindful of the statutory framework within which the Court is required to operate. In particular, the Court is exhorted to be active in directing, managing and controlling the proceedings.
The principles for conducting child related proceedings, which includes applications for parenting orders, are identified in Div 12A of Pt VII of the Act. Section 69ZN, which sets out the principles, is set out below:
Principles for child-related proceedings
Application of the principles
(1)The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)The child concerned against family violence, child abuse and child neglect; and
(b)The parties to the proceedings against family violence.
Principle 4
(6)The fourth principles that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
In s 69ZQ of the Act the general duties imposed upon a judge required to give effect to s 69ZN are identified. Section 69ZQ is set out below:
General duties
(1) In giving effect to the principles in section 69ZN, the court must:
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b)decide the order in which the issues are to be decided; and
(c)give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d)in deciding whether a particular step is to be taken – consider whether the likely benefits of taking the step justify the costs of taking it; and
(e)make appropriate use of technology; and
(f)if the court considers it appropriate – encourage the parties to use family dispute resolution or family counselling; and
(g)deal with as many aspects of the matter as it can on a single occasion; and
(h)deal with the mater, where appropriate, without requiring the parties’ physical attendance at court.
(2) Subsection (1) does not limit subsection 69ZN(1).
(3) A failure to comply with subsection (1) does not invalidate an order.
Otherwise, the Family Law Rules 2004 (Cth) (“the Rules”) provide for the case management responsibilities of a judicial officer:
Rule 11.01 General Powers
The Court may exercise any of the powers mentioned in Table 11.1 to manage a case to achieve the main purpose of these Rules (see rule 1.04).
Table 11.1 Court's powers
Item Subject Power 1 Attendance (a) order a party to attend:
(ii) a procedural hearing;
(iii) a family consultant;
(iv) family counselling or family dispute resolution;
(v) a conference or other court event; or
(vi) a post-separation parenting program;
(b) require a party, a party's lawyer or an independent children's lawyer to attend court2 Case development (a) consolidate cases;
(b) order that part of a case be dealt with separately;
(c) decide the sequence in which issues are to be tried;
(d) specify the facts that are in dispute, state the issues and make procedural orders about how and when the case will be heard or tried;
(e) finalise the balance sheet setting out all assets, liabilities and financial resources that either party asserts are relevant to the determination of the case;
(f) with the consent of the parties, order that a case or part of a case be submitted to arbitration;
(g) order a party to provide particulars, or further and better particulars, of the orders sought by that party and the basis on which the orders are sought;
(h) order a party to produce any relevant document in a financial case to the court or to any other party for the purpose of developing and finalising the balance sheet3 Conduct of case (a) hold a court event and receive submissions and evidence by electronic communication;
(b) postpone, bring forward or cancel a court event;
(c) adjourn a court event;
(d) stay a case or part of a case;
(e) make orders in the absence of a party;
(f) deal with an application without an oral hearing;
(g) deal with an application with written or oral evidence or, if the issue is a question of law, without evidence;
(h) allow an application to be made orally;(i) determine an application without requiring notice to be given;
(j) order that a case lose listing priority;
(k) make a self-executing order;
(l) make an order granting permission for a party to perform an action if a provision of the Rules requires a party to obtain that permission;
(m) for a fee that is required by law to be paid--order that the fee must be paid by a specified date
Rule 1.04 provides:
Main purpose of Rules
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
In Johnson (supra) at [13] the plurality referred to exchanges between the bench and bar “which is so helpful in the identification of real issues and real problems in a particular case”.
The Full Court said in Sellers & Burns [2019] FamCAFC 111 at [73]:
What is required to be “firmly established” is as described by French CJ in British American Tobacco Services Ltd v Laurie (2011) 242 CLR 283 (“British American Tobacco”) at [45] citing Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100:
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.
(Emphasis added)
French CJ continued in British American Tobacco at [45]:
The requirement that an apprehension of bias, based on judicial conduct, be “firmly established” is consistent with the most recent decisions of this Court and gives content to the requirement that an apprehension of bias, in that class of case, be reasonable.
Clearly, the Court has obligations to engage with the parties and their representatives as to issues raised in the proceedings before it, seeking to define the parameters of the matter for judicial resolution and the factual issues that need to be addressed. Such was the nature of the exchanges complained of.
There is nothing in the complaints made considered independently or as a whole that would lead to the conclusion that the fair-minded lay observer might reasonably apprehend that the Court might not bring an impartial and unprejudiced mind to the resolution of the questions that remain for determination in this protracted and convoluted dispute.
The application will be dismissed.
I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 15 August 2019.
Associate:
Date: 15 August 2019
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