Tothill and Crowther (No 2)
[2019] FamCA 276
•3 May 2019
FAMILY COURT OF AUSTRALIA
| TOTHILL & CROWTHER (NO. 2) | [2019] FamCA 276 |
| FAMILY LAW – COURTS AND JUDGES – Recusal application – Disqualification – Apprehension of Bias – Application of the two-step test in disqualification applications on the ground of apprehended bias – Interim parenting decision – Application dismissed. |
| Family Law Act 1975 (Cth) s 60CC(2) and (3) |
| Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Johnson v Johnson [2001] CLR 488; 201 CLR 488 Strahan & Strahan (Disqualification) [2009] FamCAFC 204 SS & AH [2010] FamCAFC 13 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342. |
| APPLICANT: | Mr Tothill |
| RESPONDENT: | Ms Crowther |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 4457 | of | 2013 |
| DATE DELIVERED: | 3 May 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta/Adelaide |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 16 April 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Bartel & Hall |
| COUNSEL FOR THE RESPONDENT: | Mr Bowler |
| SOLICITOR FOR THE RESPONDENT: | Clelands Lawyers Adelaide Pty Ltd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
The mother’s application that I recuse myself from further hearing in the matter is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tothill & Crowther 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: ADC 4457 of 2013
| Mr Tothill |
Applicant
And
| Ms Crowther |
Respondent
REASONS FOR JUDGMENT
Introduction
In the course of a protracted and fragmented hearing in relation to the interim parenting arrangements for the parties’ only child an application is made by the mother that I recuse myself from further hearing. The father seeks that this application be dismissed and the Independent Children’s Lawyer (“ICL”) does not take a position in relation to it.
Background
Parenting proceedings between the parties which have been ongoing for many years relate to their only child, a little girl who is now eight (“the child”).
In short the parties had a brief relationship from about January 2010 but had separated later that year around two months before the child was born.
The father commenced parenting proceedings in November 2013 in the Federal Circuit Court initially seeking orders that he spend time with the child who was then two as it had been problematic for arrangements to be made for that to occur until this time.
In June 2015 the proceedings were transferred from the Federal Circuit Court to this court. The final parenting hearing commenced on 4 October 2016 with further hearing in March 2017 (“the parenting proceedings”).
The final parenting orders which were made in June 2017 brought about a significant change in the child’s life. Until that time the child had lived with her mother and spent limited time with her father but as a result of those orders the child began living with the father, who was to hold sole parental responsibility for her and spend defined substantial and significant time with the mother.
Extensive extracts from my Reasons for Judgment delivered on 30 June 2017[1] (“the Final Parenting Judgment”) are set out in a further judgment delivered on 28 March 2019[2] (“the March 2019 Judgment”) related to the application under consideration.
[1]Tothill & Crowther [2017] FamCA 460
[2]Tothill & Crowther [2019] FamCA 191
Within a very short time after the final parenting orders were made the mother began making allegations in relation to the father’s conduct with respect to the child which were very similar to allegations she had made in the parenting proceedings. These allegations were ongoing until February 2019. The March 2019 Judgment which should be read with this judgment sets out details of those allegations.
It suffices to say at this stage that the mother’s allegations culminated on 8 February 2019 when she attended a police station and made complaints about the father’s conduct that she said had been made to her the previous day by the child. Police interviewed the child later that day and subsequently sought and obtained an interim Intervention Order for the protection of the child against the father. That interim Intervention Order which was subsequently replaced by a further such order has since been revoked.
On 8 February 2019 the mother also unilaterally retained the child in her care and informed the father through her solicitors that she would not be returning the child to him as a result of the child’s complaints and advice apparently given by police.
The father was interviewed by police on 13 February 2019 and denied all allegations of assaulting the child or acting in an abusive manner towards her at any time.
The father was subsequently charged with assaulting the child on two occasions but an application has been made by the prosecution for those charges to be withdrawn.
On 14 February 2019 the father commenced proceedings seeking a recovery order, suspension of the orders relating to the mother’s time with the child and other associated orders (“the renewed proceedings”).
The mother sought in her Response that the final parenting orders be discharged, and that she have sole parental responsibility for the child, that the child live with her and spend no time with the father.
The ICL who had represented the child’s interests in the parenting proceedings was reappointed in the renewed proceedings and supports the position of the father.
On 26 and 27 March 2019 I heard the respective applications in the renewed proceedings. On neither occasion was an application made that I recuse myself even though it is apparent that the parties were aware in advance that it had been arranged for me to hear the applications via video link from my home Registry in another state due to my familiarity with the proceedings.
On 28 March 2019 I delivered Reasons for Judgment in relation to orders returning the child to the care of the father, suspending the mother’s time with the child and for the changeover and restraining the mother from contacting or approaching the child. As it had been indicated in the proceedings through the mother’s legal representative that it would be unnecessary to issue a Recovery Order in the event I determined the child was to live with the father and as the child had been delivered to Child Dispute Services on 27 March 2019, directions were made for the father to collect the child from Child Dispute Services at the completion of the proceedings on that day.
In the course of the March 2019 Judgment I indicated that the mother’s time with the child was suspended only on a short term interim basis as the parties were not in a position to press their respective applications for orders in relation to this matter on 27 March. This part of the respective parent’s interim applications was adjourned to date to be fixed by arrangement with my chambers. It was subsequently arranged that this outstanding matter, (being the mother’s time with the child), was fixed for hearing on 16 April 2019.
Each of the parties and the ICL filed an Outline of Case with respect to the orders in relation to the mother’s time with the child for the purposes of the hearing on 16 April 2019.
In summary the father and the ICL contended that there was insufficient evidence for me to determine what orders with respect to the child’s time with the mother are now in the child’s best interest on an interim basis and sought that the proceedings be adjourned for the purposes of obtaining a report from a family consultant in this regard. Alternatively it was the position of the father that the child spend supervised time with the mother at a contact centre.
The mother sought that the previous orders with respect to the child’s time with her (being defined substantial and significant time) be reinstated as interim orders. In addition, in the mother’s Outline of Case, three paragraphs were concerned with the application that I recuse myself from further hearing the matter with which this Judgment is concerned.
On 16 April 2019 I had some concern that the recusal application may consume most of the hearing time that had been set aside for consideration of the balance of the competing interim parenting applications. Further, as any recusal application must be considered prior to proceeding any further (and in circumstances where the child’s time with the mother was suspended) there was an interchange between myself and the mother’s counsel to ensure that the mother wished to proceed with her recusal application on that day. Another factor to be considered was that it was well known by the parties that due to the exigencies of the judicial calendar it was likely there would be no available time for me to hear the interim application in relation to the mother’s time for some months if the court event on 16 April was subsumed by the recusal application. It appeared from the mother’s Outline of Case that she also took the view that no steps at all could be taken in relation to the application with respect to her time with the child until the recusal application had been determined. It was clearly stated on behalf of the mother that notwithstanding all of these matters she did press for the recusal application to proceed on the basis of matters identified in the Outline of Case and some additional matters that counsel wished to agitate in oral submission on 16 April 2019.
The Application
The mother’s application is based upon the contention that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the interim application in relation to the mother’s time with the child on the basis that my adverse findings about her in the final parenting Judgment and the March 2019 Judgment have so coloured my mind that I am not able to be persuaded otherwise than in accordance with this adverse view.
According to the written Outline of Case and oral submissions the adverse findings against the mother are expressed in such clear and strong terms in the final parenting decision and incorporated to such a degree in the March 2019 decision that my assessment of the mother is ‘coloured’ to the extent that my mind is no longer open to persuasion.
The mother relies on a number of particular paragraphs within the final parenting Judgment[3] and a number of paragraphs from the March 2019 Judgment[4] which are said to ground the reasonable apprehension of bias.
[3] [112], [114], [115], [116], [119], [180], [187], [190], [193], [293] and [294]
[4] [72], [74], [75], [89] and [93]
The law and discussion
In Ebner v Official Trustee in Bankruptcy[5] (“Ebner”), the plurality of the High Court (Gleeson CJ, Gummow and Hayne JJ) set out the test for disqualification:
[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. (emphasis added).
[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.
[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[5] [2000] HCA 63; 205 CLR 337
In Johnson v Johnson[6] (“Johnson”), the plurality observed:
[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 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.
…
[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.
[6] [2000] HCA 48; 201 CLR 488 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
In Strahan & Strahan (Disqualification)[7](“Strahan”), the Full Court stated (at [5]-[6]):
In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. This point was firmly made by Mason J in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342. Given the importance of the proposition, and the fact that Strickland J cited it in his reasons, we propose to set out what Mason J said at 352:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
[7] [2009] FamCAFC 204
What is said might lead to me deciding the case other than on its legal and factual merits?
It is contended by the mother that the matters which are adverse to her in the identified paragraphs in the final parenting judgment and the March 2019 judgment may cause a fair minded lay observer to reasonably apprehend that I may not bring an impartial mind to the interim application which had been listed for 16 April 2019 with respect in particular to her interim application to spend time with the child.
The final parenting judgment
The mother first refers to a number of paragraphs within the final parenting Judgment in which it is identified that I have made findings that are “adverse in every respect to the mother’s evidence”. These paragraphs are concerned with a rejection of the mother’s allegations of physical abuse said to have been perpetrated by the father in the parenting proceedings and with the question of her ability to promote the child having a relationship with the father. The paragraphs in question are as follows:
[112] Ultimately, the mother’s allegations depend entirely upon the acceptance of her account. I have some significant reservations about the mother’s truthfulness generally for the following reasons. Overall in giving her evidence the mother frequently was evasive, obfuscated and constantly had to be directed to answer the question asked of her. Generally the mother was extremely reluctant to make appropriate concessions and only did so when there was clear evidence to contradict her case. For example, the mother initially insisted that she had not sworn in the course of a particular conversation and challenged the accuracy of the father’s account. She did not make concessions about what she had said in that conversation until she was informed that it had been recorded and the recording was played. The recording when played was consistent with the father’s account of the conversation. The mother denied having formed a good relationship and discussing intimate matters with her general practitioner until shown the doctors records and denied the amicable nature of her communications with the father following separation until confronted with the text message history.
…
[114] I also accept the submission of the ICL that the mother’s asserted interpretations of her obligations under court orders are so perverse that they should be regarded as unbelievable. For example, orders made on 2 November 2016 were completely clear and unambiguous, stating that the child’s overnight time with the father was to commence on 7 January 2017 but the mother maintained that she understood the overnight time was not to commence until February 2017. The orders of 2 November 2016 also required that the mother obtain a medical certificate for the child if she were too unwell to attend school but the mother interpreted this as meaning that if the child did not attend school for any reason she would be excused so long as a medical certificate was obtained.
[115] In my view the mother also showed a persistent disconnect from the reality of the proceedings. For example, it is a current theme throughout her evidence that she and the father ought to be able to make parenting arrangements for the child without court intervention and that the father should in some way be criticised for having sought court orders. She also persistently maintained that she and the father would be able to co-operatively make long term decisions for the child but struggled to give an example of having done so in the past. Most significant of all is the, complete incongruence between the mother maintaining the allegations against the father while ultimately proposing orders providing for him to have extensive time the child including overnight time and the mother’s persistent failure to acknowledge this inconsistency.
[116] Each of the foregoing matters give rise to concern about the truthfulness and accuracy of the mother’s evidence. The father in my view, generally gave evidence in a straightforward manner and there are no features of his account or demeanour in giving evidence that give rise to concerns about his credit. So far as the serious allegations about his conduct are concerned, he denied all of the matters in his affidavit and many of them were not put to him under cross-examination. For all of the foregoing reasons, where there is a difference between the mother and father’s version of events I accept the version of the father.
…
[119] The entire evidence that gives rise to any alleged risk of harm depends on the allegations made by the mother. The problems with the mother’s version including the complete lack of corroboration, the timing of the allegations, the internal inconsistency with the mother’s position in the proceedings, the inconsistency with other undisputed facts and the failure to complain to appropriate authorities when that may be expected can equally be considered when assessing the risk of harm posed by the father. When the adverse findings about the mother’s credit also form the basis of my assessment about the likelihood of these harmful events occurring in the future I cannot be satisfied that there is any unacceptable risk of harm to the child posed by the father on these bases.
…
[180] I am satisfied that the actions of the mother from the time that the proceedings were commenced until the final hearing commenced in October 2016 demonstrate her persistent and ongoing efforts to prevent the child and father forming a meaningful relationship. This is evident in my view from the first step she took shortly after the father initiated the proceedings in enrolling the child in a school in City M, and continued over the ensuing years.
…
[187] I also find that the mother was not satisfied with the process and in particular with her limited ability to control the process. I find that the mother took steps in an effort to reassert her control over the child’s reintroduction to the father and in particular attempted to oust the therapist from further involvement. Ultimately it was not disputed that on 2 March 2015 the mother sent an email to the therapist informing her that “I will not be requiring your further time and assistance in our matter”. I am also satisfied that the suggestion in that email that this was an agreed position between the parties was incorrect and that the father had not consented to the therapist not being involved in the future.
…
[190] In my view the mother’s actions thereafter demonstrate her inability or unwillingness to accept that the child’s relationship with the father was progressing, that the child could safely spend time with him and that there was no need for the mother to control the circumstances in which the child spent time with the father and the development of a relationship with him. In particular in this regard I attach weight to the mother’s refusal to make the child available at the next session facilitated by the therapist on 1 May 2015 and her refusal thereafter to allow the child to spend time with the father other than on her terms for up to two hours on each occasion and supervised by her.
…
[193] In my view the unilateral relocation of the mother to City M at a time when orders provided for the father to spend unsupervised time with the child in D Town each alternate Sunday is a particularly weighty matter. I am satisfied that the mother is disingenuous in suggesting that she did not believe there was anything preventing her from relocating to city M at this time. This belief is inconsistent with other positions the mother adopted in her evidence including that the father had at some previous time agreed to the relocation and in keeping him uninformed of the move. The mother also failed to correct the father when his text message communication about the child’s first day of school clearly indicated he believed she had begun school in D Town.
…
[293] In my view, this is one of the most salient considerations in these proceedings and for this reason is given significant weight in determining the proper parenting arrangement for this child. The orders proposed by the ICL will bring about a significant change in the child’s circumstances as she will move from the primary care of the mother to the father. The father’s orders also propose a six week period of no communication between the mother and the child and for 12 weeks there is to be no physical contact which is then introduced in a slow manner potentially in the presence of the father.
[294] Both the therapist and the expert when cross-examined by counsel for the mother and ICL expressed concern about the father’s proposal which included a lengthy period of complete separation between the child and her mother and a gradual and limited increase in that time. The therapist described an absence of this duration as one which could be “really really distressing” [for the child] and said “that if there was to be a change in primary care giver it would helpful for the child to have regular contact or time with the [non-residential] parent as long as that time doesn’t undermine the other parent”. She ultimately expressed the following view:
So the level of co-operation is important but if you understand attachment theory it is even more important not to remove a main care giver upon whom a child has trust, respect, loyalty. Remove the completely, the child is devastated.
I agree with the characterisation that most of these paragraphs contain findings adverse to the mother in relation to her truthfulness, persistent disconnect from the reality of the proceedings, the accuracy of her evidence and the weakness of her allegations with respect to the risk of harm said by her to be posed by the father to the child. I also agree that in some of these paragraphs I am expressing a clear and unambiguous view that the mother engaged in persistent and ongoing efforts to prevent the child and the father forming a meaningful relationship and took every opportunity to control and limit the circumstances of the father’s time with the child to the extent to which she was capable. I found that the mother demonstrated in actions over many years an inability or unwillingness to accept that the child’s relationship with the father was progressing, that the child could safely spend time with him and that there was no need for her to control that situation and the development of the relationship.
In the last two extracted paragraphs however I am considering a weakness in the father’s case, particularly his proposal that the child have a 12 week period of no time with the mother which was at odds with the expert’s concern about the adverse impact of such an arrangement upon the child. These paragraphs are adverse to the father and contain no matters adverse to the mother.
The March 2019 Judgment
As is apparent from the March 2019 Judgment in seeking a recovery order and an interim suspension of the orders relating to the mother’s time, the father contended that there is an unacceptable risk that the child will be harmed as a result of psychological abuse in the mother’s care. It was the mother’s position in the March 2019 hearing in seeking that the final parenting orders be discharged, that she be given sole parental responsibility for the child and that the child live with her and spend no time with the father and that there is an unacceptable risk that the child may be harmed as result of physical abuse by the father.
To place the party’s respective contentions in the March 2019 hearing in context I also extracted parts of the final parenting judgment at some length in the March 2019 Judgment. However, none of the paragraphs which in this application are identified as particularly egregious and demonstrating my alleged “coloured” view of the mother from the final parenting judgment were repeated in the March 2019 Judgment.
When considering the particular passages which are said to demonstrate apprehended bias in the March 2019 Judgment, the application then under consideration also must be placed in context.
In considering the competing applications in the March 2019 Judgment I made it clear[8] that as the orders under consideration were interim orders, I could not make findings of fact but would have some regard to matters in dispute in particular where those matters related to allegations of risk to the child. I indicated that as the Full Court said at [100] in SS & AH[9] I had little alternative than to “weigh the probabilities of the competing claims and the likely impact on [the child] in the event that a controversial assertion is acted upon or rejected”. I then noted that the allegation made by the mother that the father posed a risk of physical harm and the allegation made by the father that the mother posed a risk of psychological harm were both matters that go to the heart of the child’s wellbeing.
[8]Tothill & Crowther [2019] FamCA 191 at [39]
[9] [2010] FamCAFC 13
In this context I then turned to consider the likelihood of each of the domains of harm alleged by each parent.
In assessing the likelihood that the child was assaulted by the father as alleged by the mother it is clear that I was concerned with the likely accuracy of the child’s account. In making this assessment I once again considered the context of the child’s complaint being the ongoing dispute between her parents about her parenting arrangements for most of the child’s life. It was my view that the lengthy and ongoing history of dispute between the parties and the way in which the child manages to negotiate this dispute is “absolutely central to understanding the child’s complaints to the mother and disclosures to the police upon which the allegations of abuse entirely rest”.[10]
[10]Tothill & Crowther [2019] FamCA 191 at [50]
I also made it clear in the March 2019 Judgment that I attached significant weight to the opinion of the expert in the parenting proceedings (which I considered of particular relevance to the application then under consideration) that both parents were responsible for “managing to find ways of creating and maintaining confusion, tension and distress for the child”. This had led to the difficulties for the child in managing the parents’ dispute which included the need to lie or monitor what she says to others. I expressed the view in summary that the child had developed maladapted responses to the situation of conflict between her parents including unhealthy strategies to manage having a relationship with her father while living in the mother’s household. This finding depended almost entirely on the opinion of the experts on the basis on the child’s presentation.
Another important matter in the March 2019 judgment to which I attached weight in assessing the likely truthfulness of the child’s account was the opinion of the family consultant who had interviewed the child on the morning of the 27 March 2019. The family consultant noted that when interviewed, the child had adopted an entirely negative narrative about the father and his household when she spoke to the family consultant, told demonstrative lies about some matters and gave other accounts of the father’s conduct which had a bizarre and fantastic quality. In my view this presentation indicated the child’s continued attempts to adapt to or manage the ongoing parental dispute which were consistent with her maladapted responses evident to the expert in the final parenting proceedings. For all of the foregoing reasons I approached the accuracy of the child’s account of the father’s alleged assaults upon her with great caution.
In addition to considering the likely unreliability of the child’s account I also considered a number of other matters from which I drew inferences in respect to the mother’s complaints. These matters all related to undisputed facts such as the time when the harmful events were said to have occurred compared to the undisputed events occurring in the child’s life, the mother’s complaints at various times to police, and the presence or absence of evidence in relation to the child’s alleged injuries. Only one of those matters was clearly adverse to the mother in the sense that I expressed concerns about the timing of her allegation (the fact of which is not in dispute).
In summary when I concluded at paragraph 70 of the March 2019 judgment that I was of the view that the likelihood of the father having assaulted the child is low and that he does not pose an unacceptable risk of harm to the child on this basis none of the matters that I considered related to the mother’s truthfulness. That assessment was made entirely on the basis of the likely accuracy of the child’s account and inferences that could be drawn from the undisputed facts in relation to the circumstances surrounding child’s recent allegation.
Further when considering the mother’s allegations about the risk of harm said to be posed by the father in the March 2019 hearing I did not weigh the probabilities of the mother’s account as against the father’s account. For the reasons explained the allegations of harm were based to a very large extent on the child’s account and also on inferences that could be drawn from the undisputed facts. As observed earlier none of the adverse findings about the reliability of the mother’s account from the final parenting judgment were repeated in the March 2019 Judgment.
The specific paragraphs in the March 2019 Judgment which ground the application for recusal are contained within my consideration of the father’s contention that the mother poses an unacceptable risk of psychological harm to the child. They are as follows:
[72] The question of whether the mother had undermined and failed to promote the child’s relationship with the father was a matter of central and critical importance in the final parenting proceedings. I formed the view that the child had greater prospects of having a meaningful relationship with both parents if she were to live primarily with the father and spend substantial and significant time with the mother. Although I did find that the child had developed a meaningful relationship with the father by the time the parenting hearing was complete, this had occurred despite the mother’s unwillingness to support that relationship. I rejected the mother’s position that the relationship between the child and father had developed in part in response to her attitude towards the relationship and promotion of it. I accepted the expert’s opinion that the development of the child’s relationship had been achieved because of the more effective structure that had been put in place through interim orders, rather than a change in the mother’s attitude. At paragraph [254], I recorded the expert’s firm opinion that he had not seen any fundamental change in the mother’s attitude or the climate the parents had created and I was satisfied that the mother had at no time encouraged the development of the child-father relationship.
…
[74] In my view, particularly in light of the child’s presentation to the family consultant yesterday, the impact of the child returning to live with her mother runs the risk of having, again, a high emotional cost for the child. I am concerned that there is a real risk that if the child were to continue to live with the mother – and particularly if she was to spend no time with the father, as the mother proposes – that the cost for the child will be a destruction of her relationship with the father. Similarly, if she were to return to the father’s care and continue to spend time with her mother in accordance with the final parenting orders, there is a risk that she will develop further maladaptive responses, including the complete rejection of her father in order to maintain her relationship with her mother.
[75] When the hearing was complete in March 2017, although the child had developed maladaptive responses and the emotional toll upon her had been high in circumstances where she was living with the mother, it was hoped that through a change of residence, the situation may resolve for the child and she could enjoy a normal and healthy relationship with both parents. However, there are signs that the child has developed more serious maladaptive responses in the rejection of her father which is now evident. In these circumstances, I am of the view that there is an unacceptable risk that she will suffer further emotional harm through these circumstances if she either lives with her mother and spends no time with her father or continues to spend substantial and significant time with her mother pursuant to the final parenting orders.
When considering the matters in the paragraphs extracted above from the March 2019 Judgment I relied to a significant extent upon the concerns about the child’s presentation on the previous day identified by the family consultant which she considered could be consistent with the child becoming alienated from the father.
When considering these matters in the March 2019 Judgment I did make reference to the centrality and critical importance in the final parenting proceedings to the question of whether the mother had undermined and failed to promote the child’s relationship with the father. In this regard I referred again extensively to the expert’s opinion that the development of the child’s relationship with the father had been achieved as a result of the more effective structure that had been put in place through interim orders and to “the expert’s firm opinion that he had not seen any fundamental change in the mother’s attitude or the climate the parents had created and I was satisfied that the mother had at no time encouraged the development of the child/father relationship”. (emphasis added)
The last two paragraphs from the March 2019 Judgment which form the basis of the recusal application relate to my application of the best interest considerations in section 60CC (2) and (3) of the Family Law Act 1975 (“the Act”). The particular two paragraphs upon which the application is made are as follows:
[89] The most salient of the additional matters I am required to consider is the likely effect of any change in the child’s circumstances. In my view the most serious change of circumstances that this child has experienced in the last few months, has arisen through the unilateral acts of the mother. The child has been returned to live in the mother’s household on a full-time basis and has had no contact at all with the father, who has been her primary carer – who had been her primary carer for the previous 18 months, following the final proceedings.
…
[93] At this stage I am giving reasons with respect to the recovery order and ancillary and related orders only, and the mother’s time with the child has only been suspended on an interim basis – a short-term interim basis. So the issue of the impact upon the child of separation from her mother is not immediately under consideration, and will be explored at length when the issue of the mother’s time is considered in due course.
Paragraph 89 contains my view as to the weight to be attached to a particular consideration which is based entirely upon an undisputed fact that the mother’s unilateral act caused the child to be returned to live in her household on a full time basis and a cessation of the child’s contact with the father who had been her primary carer for 18 months.
Paragraph 93 is also simply a statement about the matters related to the application then under consideration being the recovery orders and the short term suspension of the orders with respect to the mother’s time.
The second step-the logical connection between the matters identified and the feared deviation from deciding the case on its merits
The second step involves an “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”[11]. In other words there needs to be a nexus between the identified matters and the contention that I will not be open to persuasion in relation to the matters yet to be determined.
[11] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8]
The matters that were to be determined by me when the recusal application was made comprise the completion of the interim parenting application (in particular in relation to the mother’s interim time with the child) and then later the renewed parenting proceedings. The tenor of the recusal application is that I recuse myself from completing the interim parenting hearing.
In considering whether the matters identified in the final parenting Judgment and the March 2019 Judgment have a logical connection with the feared deviation from deciding the balance of the interim parenting application on its merits I first attach weight to the circumstances in which the application for recusal was made. As touched upon earlier no application was brought prior to or in the course of either of the days in which the most recent application was heard, that is 26 or 27 March 2019. At that stage the numerous paragraphs in the final parenting Judgment which are said to evidence bias had been well and truly known to the mother and her legal team for 20 months.
Further, although it is argued that the adverse findings against the mother in the parenting proceedings have been extensively incorporated in the renewed proceedings in fact none of these passages which were said to give rise to a reasonable apprehension of bias were repeated in the March 2019 Judgment.
Although it is correct that the final parenting Judgment is generally more critical of the mother’s conduct than the father’s and more adverse findings were made against her than the father, the father did not completely escape adverse criticism in the parenting proceedings. In particular in paragraphs [293] and [294] in which the mother curiously contends I have made findings adverse to her I express concern about the father’s proposal at the time that there be a six week period of no communication between the mother and the child and a 12 week period of no physical contact which was completely inconsistent with the recommendations that had been made by the expert. In the March 2019 Judgment I also considered the opinion of the expert in the parenting proceedings that both parents were responsible for managing to create and maintain confusion, tension and stress for the child which had led to the child’s maladaptive responses including lying or monitoring what she says to others. This matter in my view continued to be relevant to the March 2019 application.
It may be reasonable for the mother or a fair minded lay observer to apprehend on the basis of previously expressed views that I may decide the remainder of the interim parenting application adversely to the mother. However, as observed by Mason J in Re JRL; Ex parte CJL[12] cited by Strickland J in Strahan (as set out in paragraph [27] of these Reasons) this does not mean that I will approach the issues otherwise than with an impartial and unprejudiced mind or that my previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that I will approach the issues in this way. As Mason J went on to say as quoted in Strahan, “disqualification is only made out by showing that there is a reasonable apprehension of bias by reasons of prejudgment and this must be firmly established”.[13]
[12][1986] HCA 39; (1986) 161 CLR 342.
[13]Strahan & Strahan (Disqualification) [2009] FamCAFC 204 at [6]
In considering the nexus between the matters identified and the feared deviation from determining the case on its merits I also attach weight to the observations in Johnson that the suggested apprehension of bias in the minds of a fictional lay observer must be considered in the context of ordinary judicial practice. In child related proceedings and interim disputes in particular where no findings can be made but the best interests of the child are paramount immediate steps must sometimes be taken to safeguard any identified risks to the child’s wellbeing such as in this case suspending the mother’s time on a short term interim basis. This should not be considered as indicating that this will be my concluded decision in relation to the child’s time with the mother in the interim hearing which is yet to be finalised.
Taking all of the foregoing matters into consideration I am of the view that the mother has not established a logical connection between the matters identified in the final parenting judgment and March 2019 Judgment with the possibility of departure from impartial decision making in the interim parenting application. For this reason the mother’s application that I recuse myself is dismissed.
I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 3 May 2019.
Associate:
Date: 3 May 2019
0
6
1