Tong & Niem
[2020] FamCAFC 27
•12 February 2020
FAMILY COURT OF AUSTRALIA
| TONG & NIEM | [2020] FamCAFC 27 |
| FAMILY LAW – APPEAL – DISQUALIFICATION – APPREHENDED BIAS – Cumulative effect of remarks – Comments considered in the context of the overall tone of the proceedings – Adequacy of reasons – Waiver of right to object – More than two months passed before application made – Hypothetical observer – Appeal dismissed. FAMILY LAW – COSTS – Appellant wholly unsuccessful – Where the appellant expended significant sums on legal fees – Any discomfort occasioned by a costs order is a circumstance of the appellant’s own making – Costs order made. |
| Family Law Act 1975 (Cth) s 69ZR and s 97(3) |
| Anderson v National Australia Bank [2007] VSCA 172 Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2 Black & Kellner (1992) FLC 92-287; [1992] FamCA 2 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 R v Watson; Ex Parte Armstrong (1976) 136 CLR 248; [1976] HCA 39 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 |
| APPELLANT: | Mr Tong |
| RESPONDENT: | Ms Niem |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 3572 | of | 2014 |
| APPEAL NUMBER: | EA | 88 | of | 2019 |
| DATE DELIVERED: | 12 February 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge & Watts JJ |
| HEARING DATE: | 11 November 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 August 2019 |
| LOWER COURT MNC: | [2019] FamCA 551 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sansom SC |
| SOLICITOR FOR THE APPELLANT: | Steven Stefanou & Co Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Givney |
| SOLICITOR FOR THE RESPONDENT: | Maclarens Lawyers |
Orders
The appeal be dismissed.
The husband pay the wife’s costs in the amount of $8,030 within one month.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 88 of 2019
File Number: PAC 3572 of 2014
| Mr Tong |
Appellant
And
| Ms Niem |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Tong (“the husband”) and Ms Niem (“the wife”) have been engaged in proceedings in the Family Court of Australia with respect to property settlement and parenting matters for some years. The Court operates a docket system of case management and the primary judge has presided over a number of hearings, including a final hearing of the parenting proceedings. However, before judgment on that issue was given, the final hearing was reopened. Thus, the proceedings again came before the primary judge, following which the husband filed an application that the judge recuse himself for apprehended bias in the nature of prejudgment. The conduct complained of being the cumulative effect of comments made by the primary judge over a prolonged period in various hearings and interlocutory decisions.
The recusal application was dismissed (Order 1 of the orders dated 15 August 2019). By a Notice of Appeal filed 12 September 2019, the husband appeals against that decision. The wife seeks to uphold the order. An Independent Children’s Lawyer (“ICL”) has been appointed to represent the parties’ children. The ICL filed a Submitting Notice and did not participate in the appeal.
Background
So as to provide context to the appeal, some brief background facts are required.
After some 18 years of marriage, the husband and the wife separated in July 2014. They have three children, B who was born in 2001, C who was born in 2005 and D who was born in 2010. The parties both qualified as medical practitioners and during their marriage they acquired real estate in Australia and Country T. Using a reasonably complex array of corporate and trust structures, businesses were established, most of which continued to trade when the parties separated.
The wife commenced proceedings in August 2014.
Following a hearing on 19 December 2016, the primary judge made interim parenting and financial orders. As to the children, it was ordered that the parties have equal shared parental responsibility, that the two elder children live with the husband and the youngest child live with the wife. Provision was made for the children to spend time with the parent with whom the child did not live. The wife, who had earlier been given exclusive occupation of the family home was required to meet its outgoings, two other properties were to be sold and monies were made available to settle a claim brought by the Bank of Queensland against the husband and related entities. Funds were released to the wife and asset preservation orders were made.
On 10 February 2017, the husband made an application that the primary judge recuse himself on the basis of apprehended bias through prejudgment. According to the husband, certain passages of the judgment delivered on 19 December 2016, demonstrated a concluded view as to husband’s use of funds in the lead up to separation and thereafter. This was said to be one of the significant issues to be decided in the final hearing. The application was dismissed on 10 March 2017. There was no appeal from that order.
The parenting and property proceedings were bifurcated, and commencing 23 April 2018, the primary judge heard the applications for parenting orders. After four hearing days, directions were made for written submissions and judgment was reserved.
Final written submissions were received from the parties on 4 June 2018.
On 28 June 2018, there was a house fire at the husband’s home, in which he suffered extensive third degree burns. The husband was hospitalised and the two children who lived with him came into the wife’s care.
On 24 August 2018, orders were made by consent giving the wife leave to reopen the parenting hearing.
The husband was discharged from hospital on 20 September 2018. The following week, without the consent of the wife, the husband collected the eldest child from her home and resumed his care.
Following a further interim hearing on 16 November 2018, on 14 December 2018, the primary judge discharged the interim orders made on 19 December 2016. Further, interim orders were made which provided that the wife have sole parental responsibility for the two younger children and for those children to live with her. Provision was made for the parties’ daughter to spend time with the husband in accordance with her wishes and for the youngest child to see him at a contact centre.
The court appointed expert, who is a child, adolescent and family psychiatrist, had been engaged to report on the family. He provided a report and gave evidence at the April 2018 hearing. By an order dated 16 November 2018, an updated report was ordered. That report was released to the parties on 19 December 2018.
The proceedings were again before his Honour on 1 February 2019. However, the husband was overseas and the case was adjourned to 4 March 2019. Again, the husband failed to appear and the proceedings were adjourned to the following day. The husband attended on 5 March 2019 when directions were made and the proceedings were adjourned to 20 May 2019.
On 16 May 2019, the husband filed the recusal application which came before the primary judge on 20 May 2019 and was duly listed for hearing.
As was mentioned earlier, the apprehended bias is said to have arisen from an array of remarks. Some comments are findings and others are statements made during exchanges with counsel. None resulted in a contemporaneous recusal application albeit, in some instances, objection was taken to the remarks. By reference to Vakauta v Kelly (1989) 167 CLR 568, the primary judge found that the delay in making the application “in a timely and proper manner is a waiver of any right to do so” [120].
Nonetheless, the primary judge went on to consider the principles that emerge from Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), which it is agreed apply to the determination of an application for recusal grounded on apprehended bias through prejudgment. On the basis of these principles, the primary judge determined that the conduct complained of, whether considered individually or as a whole, would not cause a fair‑minded lay observer to reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the proceedings [137].
Grounds of appeal
As the primary judge understood, to found a recusal based on suspected prejudgment, it must be “firmly established” (British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [45]) 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 (Ebner [6]). To satisfy that test, the applicant must identify the matter that it is said might lead the judge to not bring an impartial mind to the resolution of the issue (Ebner [8]) and demonstrate a logical connection between the identified matter and the possibility that the judge might depart from impartial decision making (Ebner [8]).
As to the characteristics of the hypothetical observer, in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232] the New South Wales Court of Appeal said:
… [T]he hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.
The hypothesised observer is not “unaware of the way in which cases are brought to trial and tried” (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [177]). Further, before forming a view about the existence of apprehended bias, the hypothesised observer would take the trouble to inform him or herself (but without the level of knowledge of a lawyer) of at least the basic considerations needed to come to a fair assessment (Johnson [53]).
Such a person would understand that modern case management techniques can see a judge actively involved in the conduct of cases long before the case comes to judgment (Johnson [124]). And, that “[j]ust as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views” (Antoun v The Queen (2006) 224 ALR 51 (“Antoun”) at [32]). Where these views are “[c]ouched appropriately, at the proper time and in due sequence”, no reasonable apprehension of bias will arise (Antoun [27]). Even when the views are expressed using strong and forthright language; preferably where parties are legally represented and counsel are able to respond in similar fashion (as is the situation here), the judge may continue to hear the case. However, “[a] line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment” (Antoun [29]).
At the commencement of the appeal, senior counsel for the husband distilled the 10 grounds of appeal to four propositions. Namely, that the primary judge erred:
·By failing to find that a fair-minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the determination of the proceedings (Grounds 1, 3, 4, 6 and 7);
·In failing to consider the comments cumulatively (Grounds 2, 8 and 10);
·In determining that by reason of delay, the husband waived his right to object to the constitution of the Court (Ground 5); and
·In determining that the comments were protected by s 69ZR of the Family Law Act 1975 (Cth) (“the Act”) (Ground 9).
Failure to find that a fair-minded lay observer would apprehend bias
Although the challenge to his Honour’s determination that the husband waived his right to object to the judge continuing to hear the case will not succeed and for this reason alone the appeal must fail, it is convenient to identity the impugned remarks and in so doing, to deal with these general grounds first.
It is useful to note at this juncture that the husband does not now suggest that any single comment made prior to 4 March 2019 would reasonably give rise to an apprehension of bias. The relevance of the remarks made before that date is said to be that they show a pattern of unfair commentary concerning the husband which tipped over into disqualifying conduct by the comments made on 4 and 5 March 2019. That none of the comments prompted a contemporaneous application for recusal suggests that none of the decisions made prior to 4 March 2019 are tainted by prejudgment and that none of the comments were made in relation to a point of importance in the ongoing proceedings. Nor is it suggested that his Honour’s many decisions made over these long and complex proceedings favour the wife. Or, indeed, that they favour anyone. There is no suggestion that any of the multitude of decisions were legally deficient and it is telling that none have provoked an appeal or application for leave to appeal.
The cumulative effect of the comments was said to be that the primary judge had:
a)Confirmed a strong and unwarranted increasing willingness to jump to conclusions adverse to the [husband] and his interests; and
b)Assumed that allegations and contentions made as against the [husband] were proved (this in itself being impermissible)‑prior to the testing of the relevant evidence; and
c)Used strong and pointed language, directed at both [the husband] and the presentation of his case, absent proper foundation.
(Husband’s Outline of Submissions filed 17 June 2019, p.2) (As per the original)
In essence, the effect of the comments was said to be that the hypothetical observer would consider that the primary judge was antithetical to the husband, had predetermined matters concerning his use of certain funds and that his evidence lacked credibility.
In order to make sense of the impugned remarks it needs to be understood that it is uncontroversial that the parties’ financial affairs are reasonably complicated. The husband had, to the exclusion of the wife, control of significant matrimonial assets which included monies he sent to Country T. In the 18 months preceding December 2016, he had access to approximately $1.085 million which included $195,000 returned from Country T at his instruction. Issues as to the husband’s financial disclosure were fraught and as at the date of hearing the recusal application (more than two years after the proceedings commenced), it was conceded that he still had not given the requisite disclosure of his financial circumstances.
The husband, who was a medical practitioner, had been deregistered from medical practice by reason of his abuse of prescription medication. The husband had been diagnosed as having a narcissistic personality disorder and the wife was concerned that the fire had been a further suicide attempt by him which he denied. As to the children, when the elder children lived with him they refused to have contact with the wife but settled with her during the husband’s hospitalisation. After the eldest child returned to live with the husband, he again refused to have contact with the wife. The youngest child had always lived with the wife and wished to continue to do so. This outcome was supported by the court appointed expert. As at the date of the recusal hearing, the solicitor for the husband was unable to say whether the husband still sought an order for this child to live with him.
The first set of remarks which, it is said, set the scene for the developing pattern, form part of his Honour’s reasons for judgment delivered on 19 December 2016. The impugned comments concern the interim financial application. His Honour commented that the husband’s schedules of expenditure suggested “more an abandonment of any responsibility” towards his creditors [45], that the husband’s then suspension from medical practice by reason of his misuse of drugs had adversely affected the parties’ financial circumstances [66] and, that his personal indebtedness to related corporate entities was “merely putative” [69]. However, as those reasons for judgment demonstrate, the “abandonment of responsibility” towards creditors remarks, indicate his Honour’s concern about the husband’s decision to prioritise other expenditure, for example, on his own legal fees [42]. The adverse effect of his suspension from practice is consistent with the husband’s evidence that he was now unemployed [11]. As to the use of the term “putative” in relation to the husband’s debit loan accounts, as the primary judge explained in the same sentence where those words were used, the existence of various accounting techniques to minimise any such liability had yet to be considered. We agree with the primary judge that in and of themselves, there is nothing in these exchanges indicative of prejudgment or antipathy.
The next set of remarks were made in the course of a case management/interim hearing some two years later, on 16 November 2018. In R v Watson; Ex Parte Armstrong (1976) 136 CLR 248 (“Watson”) at 264, the plurality explained that it is important not to exaggerate the significance of remarks made by a judge in interlocutory proceedings. And that as a general rule, in that setting, “anything that a judge says in the course of argument will be merely tentative and exploratory”. The qualification should not be overlooked and as the facts in Watson make clear, there will be cases where such statements indicate a settled view.
By 16 November 2018, the parenting proceedings had proceeded to trial, about which there is no complaint. Again, the remarks concern financial matters and the husband’s application for access to funds. In the course of exchanges, the primary judge said “I think I recall in my previous judgment [the husband] had access to quite a lot of money he hasn’t accounted for” (Transcript 16 November 2018, p.11 lines 19-20). Senior counsel who appeared for the husband confirmed that his Honour’s recollection was correct. Exchanges from page 36 (of the transcript of this event) to page 39, are said to evidence his Honour’s antipathy for the husband. Those exchanges concern how the house fire was started. As between the husband and the wife, this was contentious and the husband was concerned about what the wife may have told the children. For her part, the wife said the husband’s evidence concerning causation was “patently untrue” (Transcript 16 November 2018, p.36 line 28). In the course of exploring what further evidence might be called for the reopened parenting proceedings, his Honour observed that “nobody has tendered the hospital records” (Transcript 16 November 2018, p.36 line 30). His Honour plainly expected senior counsel for the husband to tender the husband’s hospital records on the basis that they were probably in his possession and they might assist him to determine whether the wife’s suspicion had some foundation or lend support to the husband’s version of events. For the husband, it is contended that his Honour wrongly “reversed the onus” which is further evidence of antipathy towards him. His Honour was correct to reject this contention.
The next comments are contained in his Honour’s reasons for judgment delivered on 14 December 2018, particularly in relation to the arrangements for the children subsequent to the fire and the husband’s discharge from hospital. It is common ground, that on 20 September 2018, the husband’s solicitor informed the wife that the husband was considering his position concerning the children but no steps would be taken in relation to them without written notice to her ([62], referring to [23] of reasons for judgment delivered 14 December 2018). However, without notice to the wife, on 30 September 2018, the husband came to her home and left with the eldest child and his belongings. There had been no contact between that child and the wife thereafter.
At [44] of those reasons, his Honour said:
There are significant concerns in circumstances where the child B had settled reasonably well into the [wife’s] household but subsequent to ongoing contact with the [husband], the [husband] manufactured a circumstance with the child B where he without notice to the [wife] in effect secreted the child B back into his full-time care. Subsequently, the child B has had no contact with the [wife]. It is readily apparent that the [husband] has again facilitated the child becoming aligned with him.
(Emphasis removed)
As his Honour’s reasons demonstrate ([63], referring to [40] of reasons for judgment delivered 14 December 2018), counsel for the ICL reminded his Honour that each of the parties had given evidence concerning alienating conduct by the other party. Counsel for the ICL submitted that “[s]uch seems to be the case in relation to the eldest child subsequent to the [husband’s] release from hospital” ([63], referring to [40] of reasons for judgment delivered 14 December 2018). His Honour needed to address this submission. Otherwise, contrary to the assertion raised by Ground 4, the facts recorded in [44] of the reasons for judgment delivered 14 December 2018 are uncontentious, particularly that without notice to the wife the husband arranged to take their son. This is sufficient to dispose of Ground 4. As to the final sentence, it was uncontentious that the eldest child had previously aligned himself with the husband, which in part influenced his Honour’s decision to make orders for that child as sought by the husband. The degree of alignment was such that there was no ongoing issue in relation to that child. It was not explained to his Honour or in the appeal, what the “highly controversial factual matters going to this subject matter” (Husband’s Outline of Submissions filed 17 June 2019, p.5 paragraph 3) are, that were seemingly foreclosed by these remarks. The submission that the word “manufactured” would be interpreted as a condemning conclusion about the husband’s honesty (Ground 3) was properly rejected.
Multiple complaints were made arising out of the case management hearing of 1 February 2019, in particular, in relation to the husband’s financial circumstances. It was contended that upon the husband’s solicitor informing his Honour that the husband had no funds, the primary judge “sarcastically replie[d] with a dismissive disbelief” using the words “he says” (Husband’s Outline of Submissions filed 17 June 2019, p.5 paragraph 4(a)). His Honour went on to say “like, he’s the one that has had access to hundreds of thousands of dollars in the history of this matter… that he’s remitted overseas back” (Transcript 1 February 2019, p.5 lines 27-28 and p.6 line 1). Later in the exchange, his Honour said “[the husband] needs… to get some of the money back he sent overseas” (Transcript 1 February 2019, p.9 lines 18-22). These remarks were a shorthand reference to findings made in the 19 December 2016 judgment and the ongoing failure by the husband to give full and frank disclosure of his financial circumstances.
His Honour’s language is very informal and in one instance, sarcastic. However, it is appropriate to point out that any complaint directed to the manner in which the primary judge’s remarks were expressed must be considered in the context of the overall tone of the proceedings. In a case such as this, it is not unheard of that a judge might become exasperated and at times the exchanges might be unprepossessing, by the judge and counsel alike. As to the latter, the following exchange of 16 November 2018 establishes the point:
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 16 November 2018, p.11 line 32 to p.12 line 8)
Senior counsel for the husband’s remarks on that occasion exemplify the combative tone of the case and that his Honour was not alone in making robust and at times sarcastic remarks. In Anderson v National Australia Bank [2007] VSCA 172 at [95], Nettle JA (as his Honour then was) said “a trial judge like any judge should strive to avoid truculence and discourtesy. But in the scheme of things, it is almost inevitable that there will be some of it in any hard fought cause”. The hypothetical observer would recognise that this is such a case and evaluate the remarks with this reality in mind. The hypothetical observer would be unsurprised that the persistent disclosure difficulties had become a source of frustration to the judge and that, although regrettable, this resulted in sarcasm. The ongoing reference to funds and property abroad is directly referrable to the outstanding disclosure issues and is not suggestive of predetermination of a contentious issue.
The next tranche of remarks concern a case management hearing which commenced on 4 March 2019 and carried to 5 March 2019. The updated report prepared by the court expert had been released and the proceedings were listed before his Honour on 4 March 2019 in effect, to establish whether the updated report had enabled the parties to narrow or resolve the parenting issues and consider what further steps needed to be taken to bring any remaining parenting issues and the financial proceedings to trial. Early in the proceedings, from which the husband was absent, there was discussion concerning the husband’s application to spend time with the parties’ youngest child. In the course of that discussion, the primary judge said “the [husband] just needs to be able to control himself” (Transcript 4 March 2019, p.4 line 1). His Honour went on to observe that the husband “has already destroyed the [wife’s] relationship with the eldest child comprehensively… in accordance with my reasons for judgment and his daughter’s – his relationship with his own daughter has been destroyed by his behaviour” (Transcript 4 March 2019, p.4 lines 5-12). The exchanges continued and upon counsel for the wife indicating that an issue had been raised by the husband concerning the payment of a valuer, the primary judge said “[j]ust the good doctor has had quite a lot of money that seems to have spirited away, so he can spirit it back again” (Transcript 4 March 2019, p.5 lines 14-15).
Shortly thereafter, discussion ensued concerning residency of the youngest child. In the course of that discussion, his Honour canvassed the possibility that such an application “might raise the spectre of indemnity costs against him” (Transcript 4 March 2019, p.6 line 7). The exchange continued and his Honour sought, unsuccessfully, to establish whether the husband sought residence of the child:
HIS HONOUR: Yes. If he does, it might – that might raise the spectre of indemnity costs against him, but it’s up to him or his lawyer, one or the other.
…
HIS HONOUR: And one wouldn’t imagine he would be given that advice in the context of the single expert’s report and the history of this matter. Well, we had better get him here. So when do you think he’s able to attend at his convenience?
(Transcript 4 March 2019, p.6 lines 7-14)
The submission that there is no evidence that the husband had sent money abroad or had funds remitted to him is wrong. Otherwise, the submission that his Honour’s reference to indemnity costs was tantamount to a threat to the husband and those appearing for him should be rejected. The hypothetical observer, equipped with some understanding of the facts, would easily recognise that an application by the husband for residency of the youngest child, faced significant hurdles. Or, as senior counsel for the husband who appeared in the appeal properly conceded, the prospects of success were remote. The hypothetical observer would view his Honour’s remarks as fair warning of the potential costs consequences if the obvious hurdles were not cleared. His Honour’s remarks are expressly qualified and do not raise the spectre of prejudgment or a feared deviation from the task reposed in the Court. As to the comments concerning the husband’s role in the breakdown of the older children’s relationships with one or the other of their parents, these remarks reflect the expert’s opinion and were made with the benefit of the parties having been cross-examined. Furthermore, as the outstanding parenting issues now concerned the younger child, it is not clear to us how these remarks may have been relevant to any outstanding issues. Perhaps, the hypothetical observer might consider that they had some nexus to his Honour’s remarks concerning the need for the husband to control himself. If that be the case, the same observer would read the entire exchange on the topic and appreciate that the overall tenor of his Honour’s remarks were favourable to the husband. This is evident from his Honour’s observations that an order that the husband have long-term supervision with the youngest child, did not appear warranted (which was the husband’s position), that an order that the child not spend time with the husband did not seem justified (again supportive of the husband’s position) and, that a good report from supervised contact would plainly work in the husband’s favour qua unsupervised time.
It is accepted that by this time, there had been ongoing reference to the husband having removed money from Australia. However, those remarks have to be seen in the context of his Honour’s persistent attempt to achieve full disclosure from the husband and, indeed, it is noteworthy that the husband’s explanation for his failure to appear on another occasion was because he had returned to Country T to obtain source documents in relation to these transactions. His Honour’s persistence in wanting to have the source documents demonstrates that he was open to persuasion concerning the movement of those monies and sought to receive documentary evidence on the point. We agree with the primary judge that the hypothetical observer would consider the remarks in their proper context and would not consider they were indicative of prejudgment or antipathy.
The remarks of 5 March 2019 relate to parenting issues. In the context of observations by counsel for the wife, that while the husband had been recently overseas, the eldest child had only attended school on six days in six weeks, the primary judge said to the husband’s solicitor:
HIS HONOUR: All right. Okay. Well, he will take – you take that on board and have a chat to him about that, but it’s only early in the school year at the moment. It’s only about week six or something, is it? So he has done six days out of six weeks. So one wonders what he’s doing the rest of the time.
(Transcript 5 March 2019, p.8 lines 13-16)
The discussion turned again to the husband’s application concerning the youngest child, and in particular whether he sought residency, during which the primary judge said:
HIS HONOUR: …[I]n the event that your client runs a residence case in relation to the youngest child, there’s a prospect that the court might even simply see that as an ongoing manifestation of his narcissism. So he needs to understand that, you know, one has to look at his ability to have some reflective capacity as to the protective needs for this child and the child’s relationship with his primary carer, the [wife]…
(Transcript 5 March 2019, p.13 line 47 to p.14 line 4)
The first set of remarks have no bearing on any outstanding issue. The hypothetical observer would give them no attention. The second set of remarks are appropriately qualified. The hypothetical observer would appreciate that the primary judge had a good command of the evidence, including the expert’s opinion that the husband has a narcissistic personality disorder. The observer would also note that his Honour’s remarks were expressed tentatively, and would not contemplate that his Honour’s mind was closed to persuasion on the issue.
The final set of impugned comments were made by the primary judge after the application that he recuse himself had been filed and was being listed for hearing. Notwithstanding that application, the solicitor for the husband invited his Honour to deal with an outstanding issue. His Honour properly declined and in the course of making directions for written submissions on the recusal application, the following exchange took place:
HIS HONOUR: …This isn’t a judge-shopping exercise, as you understand...
MR LE NGUYEN: Yes, your Honour.
HIS HONOUR: And, of course, in the context of parenting proceedings, notwithstanding any previous orders I’ve made or any view I’ve formed as to credit, under the Act, I’m not required to disqualify myself, pursuant to the provisions of one of the subsections of 69. So you will have to get over that hurdle as well. How long will it take you to file written submissions?
(Transcript 20 May 2019, p.3 lines 4-12)
Although his Honour’s remarks were unfortunately acerbic, the observer would simply view them as guidance for the matters that needed to be addressed in the recusal application. Again, they are qualified and contrary to the submission by the husband, they do not suggest that his Honour had formed a view about either parties’ credit. The exchanges then turned to the youngest child’s contact with the husband and whether the child was spending time with him at a contact centre. His Honour questioned “[i]s he actually doing that?” (Transcript 20 May 2019, p.4 line 15). The husband contended that the question “resonates plain disbelief” (Husband’s Outline of Submissions filed 17 June 2019, p.8 paragraph 7(b)). The hypothetical observer would understand that the husband had opposed supervised time and there had been significant difficulties with the contact centre in securing a place for it. After a number of appearances, this was the first indication that supervised time had commenced. His Honour’s remark is not indicative of disbelief and is no more than a surprised acknowledgment that supervised time was underway.
The final remarks concern the vexed and ongoing disclosure issue. His Honour said:
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.
(Transcript 20 May 2019, p.6 lines 30-34)
The first matter to be noticed is his Honour’s reference to “them”. The point being that he was alive to the fact that each of the parties accused the other of inadequate disclosure. The remark is indicative of understandable frustration at the parties’ lack of readiness for a trial and raised the notion that the point had probably been reached where it was in the interests of justice that the trial proceed without further delay (see s 97(3) of the Act). As it transpired, his Honour was persuaded that the proceedings should not be listed for trial just yet. Reference to Black & Kellner (1992) FLC 92-287 is to a well‑known authority which deals with the principles in cases of non‑disclosure. The hypothetical observer would consider that his Honour’s remarks did no more than demonstrate an abiding interest in whether or not disclosure had been given and, if it was not, that the consequences that flowed would accord with the proper application of principle.
It follows that we are not persuaded that the primary judge erred in failing to find that a fair‑minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the question of the matters to be decided before him (Ground 1).
Although Grounds 6 and 7 were not abandoned, nothing more was said over and above the written submissions. In essence, these grounds challenge his Honour’s asserted failure to consider the logical connection between the impugned remarks and the feared deviation. The point being that his Honour conflated the effects of the comments on the hypothetical observer with the need to consider the logical connection. We do not think this is a fair criticism of his Honour’s reasons. In some instances, the comments were properly found not to give rise to any reasonable concern. Others were evaluated with specific reference to the feared deviation and by reference, for example, to prejudgment of an issue and similarly found not to establish a basis for the asserted feared deviation.
However, given that we have found that the primary judge did not err in finding that none of the impugned comments would occasion relevant disquiet in the hypothetical observer, these challenges as to his Honour’s methodology could not establish appealable error.
The cumulative effect of the primary judge’s comments
Grounds 2 and 8 were argued together. The gravamen of Ground 2 is that his Honour failed to consider the cumulative effect of his comments and by Ground 8 it is contended that his Honour failed to find “the logical connection between his remarks when considered as a whole” and the feared deviation (Husband’s Notice of Appeal filed 12 September 2019, p.3).
The proposition that the primary judge failed to find the cumulative effect of his remarks misstates his Honour’s reasons. At [137], the primary judge expressly referenced the cumulative effect of his remarks and rejected the argument that the fair-minded lay observer might reasonably apprehend bias. For the husband, it is submitted that these remarks are no more than “a throwaway line” (Appeal Transcript 11 November 2019, p.7 line 40). This description is inapt. His Honour’s judgment contains a careful analysis of each and every contentious remark. The submissions made in respect of each of them were considered and, quite properly, none demonstrated a reasonable basis for feared deviation from the judicial task. That being so, his Honour did not need to provide detailed analysis as to why it was that those same matters did not establish a pattern of conduct which warranted recusal. In this case, it is accepted that as he said he would, his Honour did look at the matters as a whole. Even considered in that light, a pattern of prejudgment or antipathy did not emerge and his Honour was correct in so finding.
Grounds 2 and 8 have not been established.
By Ground 10 it is argued that the reasons in relation to the cumulative effect of the impugned remarks are inadequate and amount to a constructive failure to engage with the husband’s case. As we have already explained, it is possible to discern his Honour’s process of reasoning and this challenge is rejected.
Waiver
In its terms, Ground 5 asserts that the primary judge erred “when considering the issue of waiver, that the conduct complained of ought to be considered both individually and as a broadly advanced accumulating whole” (Husband’s Notice of Appeal filed 12 September 2019, p.3). The gravamen of the ground is that the question of waiver should only have been considered from the time when the pattern of the remarks emerged. The proposition is inconsistent with the manner in which the case was prosecuted at first instance. Before the primary judge, it was said that a number of his Honour’s remarks made prior to March 2019 evidenced prejudgement and justified recusal. Although that proposition was not pursued on appeal, it was necessary for his Honour to deal with that issue.
Turning then to the issues of delay in presenting the recusal application once the asserted pattern emerged, having completed his analysis of the impugned remarks at [114], at [115] his Honour commenced his discussion as to waiver. His Honour said:
115.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.
116.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.
117.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.
118.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.
In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, the High Court (Gummow ACJ, Crennan and Bell JJ) said at [76]:
It is well established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias. (It may well be that the principle extends to criminal proceedings but that issue need not be considered.) If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection.
(Footnotes omitted)
Invariably, the question of waiver involves a fact‑based inquiry. Here, the waiver is said to have arisen because the husband waited too long to raise his objection to his Honour’s remarks and to the constitution of the Court. As his Honour indicated, the delay was in excess of two months. On any view, the period was substantial and the question to be answered was whether the application was nonetheless made as soon as reasonably practicable. His Honour considered that it was not. We agree. It was not necessary for those appearing for the husband to be in a position to present detailed argument on the topic, but, once the pattern was said to have become apparent, those appearing for the husband should have raised it. In a complex and continuing case, his Honour was right to determine that by waiting from 5 March 2019 until 16 May 2019 to make the recusal application, the husband waived his right to object.
Application of s 69ZR
By Ground 9, it is argued that the primary judge erred in determining that his comments were protected by s 69ZR of the Act ,which provision is set out below:
Power to make determinations, findings and orders at any stage of proceedings
(1)If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c)make an order in relation to an issue arising out of the proceedings.
Note:For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2)Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3)To avoid doubt, a judge, Judicial Registrar, Registrar or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
His Honour’s reference to s 69ZR arose during exchanges on 20 May 2019 which have already been recorded. Then, in his reasons for judgment at [105], the primary judge set out the provision. Nothing further was said in relation to it. The primary judge did not make the finding under challenge and thus, the ground cannot succeed.
Costs
The husband has failed to establish error and the appeal will be dismissed. In the event that the appeal was dismissed, the wife sought her costs in the amount of $8,030. The husband did not cavil with the quantum albeit, he did not concede that an order for costs would be appropriate. For his part, the husband incurred costs in the amount of $47,307.77 of which some $28,000 had been paid. To date, he has expended in excess of $400,000 in legal fees and, as recently as 4 March 2019, received $100,000 transmitted to him from Country T. Although we are unable to make findings concerning the parties’ financial circumstances, it is apparent that the husband has been able to access significant amounts of money for his own legal fees. It should be inferred that he understood that in the event his appeal was unsuccessful, he was at risk as to costs. The husband chose to run that risk and, if an order for costs might occasion him some financial discomfort, this is a circumstance of his own making.
The husband’s lack of success in the appeal justifies an order for costs in favour of the wife. She has been put to unnecessary expense and it is appropriate for an order to be made in the amount sought. The husband will be given one month within which to pay that amount.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Watts JJ) delivered on 12 February 2020.
Associate:
Date: 12 February 2020
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