Vale and Vale (No 6)

[2016] FamCA 990

FAMILY COURT OF AUSTRALIA

VALE & VALE (NO 6) [2016] FamCA 990

FAMILY LAW – PRACTICE AND PROCEDURE – where the Respondent seeks the recusal of the trial Judge on the basis of actual or apprehended bias – application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Michael Wilson & Partners Limited v Nicholls & Ors (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re F: Litigants in PersonGuidelines (2001) FLC 93-072

APPLICANT: Mr Vale

RESPONDENT: Ms Vale

INTERVENOR: Secretary, New South Wales Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

FILE NUMBER: SYC 7455 of 2012

DATE DELIVERED: 15 November 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 14 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Ulbrick, G & D Lawyers

THE RESPONDENT: Appeared in person by videolink from the Newcastle Registry of the Court on 14 November 2016;
No appearance on 15 November 2016

COUNSEL FOR THE INTERVENOR: Mr Moore

SOLICITOR FOR THE INTERVENOR: New South Wales Crown Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

Orders

IT IS ORDERED THAT

1. The application by the Respondent that the trial Judge recuse herself from further conduct of the trial is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vale & Vale (No 6) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 7455 of 2012

Mr Vale

Applicant

And

Ms Vale

Respondent

And

New South Wales Department of Family and Community Services

Intervenor

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. Ms Vale applies for an order or determination that I recuse myself from further conduct of the trial on the bases of either actual bias or apprehended bias. 

2. It is, perhaps, trite to observe that a number of general principles are involved in the determination of such applications.  The first may be said to be that justice must not only be done but it must be seen to be done.  The second may be said to be that judicial officers should discharge their duty to sit and should 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 some other Judge.

3. As noted by the High Court in Michael Wilson & Partners Limited v Nicholls & Ors (2011) 244 CLR 427, given that the tests to be applied in determining the separate bases contained within Ms Vale’s applications are themselves distinct - one requiring a subjective assessment of the state of mind of the Judge in question and the other requiring an objective assessment - it is important to keep inquiry about apprehension of bias distinct from any inquiry about actual bias. In determining these applications, this clear admonition is, of course, at the forefront of my mind.

4. In considering the application based on the assertion of actual bias, it has been said that, in order to make out a complaint of actual bias, a complainant must establish, on the evidence relied upon, the subjective motives, attitudes, predilections or purpose of the decision-maker.  As was said by Gleeson CJ and Gummow J at page 532 of Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, the test is that the decision-maker’s mind is:

   So committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

5. Underpinning Ms Vale’s particulars and submissions is, in essence, the suggestion that I have prejudged the competing parenting applications in a manner that is adverse to her. 

6. So that there is no error by me by way of failure to consider all matters raised by Ms Vale, I intend to consider (and do) in these reasons those matters particularised by Ms Vale orally during the course of her submissions yesterday and those referred to in the Notice of Appeal filed by her on 2 September 2016.

7. Ms Vale submits, in summary, that earlier decisions that I have made:

   a)to list the matter for trial in Brisbane commencing yesterday; and

   b)in making orders I have previously made on 5 August 2016 for the Reasons delivered that day; and, arguably, on her submissions,

   c)to fail, on 2 November 2016, allegedly, to deal with her application for an order staying the operation of a recovery order made by Tree J earlier,

   are all manifestations of an actual bias against her.

8. In addition, she submits - again, in essence - that I have failed to have regard to her assertions about certain matters and have preferred the untested evidence of the father to these and that comments by me that I would determine whether there had been family violence both constitute either actions or comments which demonstrate that I am so committed to a conclusion – presumably, that it is in the children’s best interests to live with their father – that I am incapable of altering such asserted position, whatever the evidence or arguments may be presented to me: that is, in essence, Ms Vale’s submissions are to the effect that, in embarking upon the trial which commenced yesterday, I would do so with a closed mind and one that is not open to persuasion and, further (as I interpret her submissions) that I would arrive at predetermined determinations of fact irrespective of the evidence presented to me.

9. Insofar as Ms Vale’s application for recusal on the basis of apprehended bias is concerned, the decisions of the High Court as referred to by that Court in Michael Wilson & Partners Limited v Nicholls & Ors establish that the test to be applied in determining whether a Judge is disqualified by reason of the appearance of bias (here, as I have already said, in a form which includes 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.

10. As was said in Johnson v Johnson at 493:

    The hypothetical reasonable observer of the Judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.  At the same time, two things need to be remembered:  the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".

11. Here, the question, in a sense, that I am required to decide is those orders which are in the best interests of the two children of these parents.  Necessarily, the resolution of this question requires that findings of fact about relevant disputed matters are made.  It is within this context that any application for disqualification on the basis of either an assertion of actual bias or an assertion of apprehended bias falls to be considered and determined.

12. In Ebner v The Official Trustee in Bankruptcy, the plurality outlined at 345 that:

    [The application of the “apprehension of bias” principle] requires two steps.  First, it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits.

    And second:

    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.

13. In particular, it is relevant, also, to note the further comments of the Court at 63 in Michael Wilson & Partners Limited v Nicholls & Ors where, after discussion of the above, the following was said:

    …the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.

14. Reframing the question thus: would what the mother, Ms Vale, particularised orally yesterday and in the Notice of Appeal filed on 2 September 2016, reasonably cause a fair-minded lay observer to apprehend that I might not bring an impartial mind to the resolution of a question for decision at the trial? 

15. As already commented upon, the questions, of course, include what orders are in the best interests of the children - having regard to those statutory conditions and matters to which regard must, as a matter of law, be had - and, arguably, as part of this overarching process, other questions such as: whether there was, in fact, family violence or not; the impact on the children historically if such family violence is found to exist; the impact on the children into the future if such family violence is found to have existed in the past;  arguably, the impact on parental capacity; and, if found to exist, what, if anything does it say about parental attitude and attitude towards the responsibilities of parenthood?

16. These are, of course, but examples of the type of questions which would - and do - arise for consideration and determination in this case and in many cases in this jurisdiction. 

17. Because Ms Vale’s submissions and the contents of the Notice of Appeal to which I have already referred contain criticisms of the trial process, it is proper, in my view, that reference is made to the transcripts of previous appearances before me.

18. It can only be, in my view, in that way that I am able to form any opinion as to the circumstances which would confront the objective observer postulated in the test for an assertion of apprehended bias and, also by reference to comments and events as captured within those transcripts, that those matters relevant to the test applicable to an assertion of actual bias can be considered.

19. Ms Vale’s application, coming as it did on the first day of the trial, clearly encompasses those pre-trial appearances, if they might be termed in that manner. Given that Ms Vale’s application and submissions also encompassed an assertion that allegations made by or on behalf of the children’s father had been accepted in preference to her case and that her allegations of domestic or family violence had been dismissed or ignored, it is also, in my view, both necessary and proper, in determining her application for recusal, that specific reference to aspects of transcripts of previous appearances is made.

20. In doing so, I should not be seen as limiting my reliance to only those matters and extracts to which I will, in a moment, make specific reference.  Of course, the entirety of the transcript - recording, as it does, the entirety of previous appearances - is relevant to a determination of Ms Vale’s applications for recusal. 

21. However, it is, I think, relevant, specifically, to record the following.

22. From page 9 of the transcript of the appearance on 2 November 2016 (commencing at about line 4), I said the following:

    …but the point is, is it not, that, at the trial, all parties will have the opportunity to advance their cases for final parenting orders because the registrar’s decisions could only have been interim orders and it’s at this – at a trial which is – I think, from recollection, one of the reasons when I had the matter before me and allocated it, the dates commencing on 14 November was because I recognised the imperative in this case of affording to the parties the opportunity to advance their evidence, to engage in cross-examination, to put forward all of the matters that each party relied upon as the basis for the findings that each party sought so that instead of being caught in a series of interim or interlocutory decisions, this matter could be brought to a trial position so that all of these competing contentions could be heard and determined with the benefit of cross-examination and the benefit of affording to parties the opportunity to engage in that trial process as soon as I could accommodate.

    So I must say, I don’t necessarily understand how an appeal process, as opposed to a trial process, at which you can put forward and call witnesses and cross-examine and rely on the contents of whatever documents people seek to rely upon and having findings made doesn’t advance that position.  You’re perfectly entitled to challenge whatever – including findings that may have been made on an interim basis without the benefit of cross-examination…

23. Further, following a comment from Ms Vale (at line 44 of page 9, going over to about line 8 of page 10 of the transcript) in which she made submissions in further support of her position that the trial should await the determination of the appeal for the reasons outlined by her (as captured in that transcript) which included her assertion that there had been information provided to the Court, including to Tree J, that had been accepted as fact but needed to be challenged and her assertion that that information needed to be dealt with prior to a trial, I made the following comments (commencing at about line 9 of that page):

    But, again, I return to my point.  You are perfectly entitled at trial to put forward the evidence and to say, for example, having presented it, say to me, “Your Honour will note this material was not raised before Tree J.  He did not refer to it in his reasons.  He made ­ and any other interlocutory or interim decisions were made on the basis of the material that was then before the court at each of those distinct periods of time.”  The court then did not have the benefit, as all courts making interim decisions recognise, as authority makes clear, it is a process that is inhibited by the fact that parties are not permitted cross-examination which is why the imperative of the court and the rules and the goal of any court is to attempt to afford to all parties in all hearings an opportunity to get to trial as soon as possible.

    So that the court hearing the matter can have the benefit of all of the evidence, all of the cross-examination, all of the documents and have the time to consider those matters over, in this case, five days as opposed to the matter – as opposed to the consideration that’s possible for an interim hearing which, under the rules, is limited to two hours, generally, and, under the rules, is limited to occurring in the absence of cross-examination save for exceptional circumstances.  So it seems to me, I must say, that a trial affords you the best opportunity to put forward all of the evidence and to challenge any of those matters that you say have been previously put before the Court.  Because on an appeal, the judges of appeal are restricted to determining whether there’s an error of law as opposed to making findings of fact.  It is at trial that findings of fact are made.

24. And I said further (commencing at line 34 on that page):

    And I say these things because you are a litigant in person in an attempt to assist you to appreciate that again one of the reasons I afforded this matter significant priority and allocated the trial dates that I did was because it is only at trial that these contentions where parties are in dispute about matters of fact can properly be considered and resolved.  So it’s not that the trial prevents you from raising and taking issue with any matters of fact that have previously been raised by parties and been previously considered by – and in the process of determination of interim applications.  In fact, the trial is the time at which these matters can be challenged. 

    So I’m afraid I don’t accept the submissions in relation to the necessity for the issues relating to the review to be determined before the trial because they are not, in my view, mutually exclusive in any way.  You are perfectly entitled to challenge – and, no doubt will, I imagine, through your own evidence – the evidence of any witnesses you wish to call and through any cross-examination you wish to engage in of any of the witnesses called by other parties, those factual matters advanced by them as bases for decisions that they seek be made by the court and determinations they seek be made.  So I’m attempting to afford this matter the very opportunity to have these issues aired and litigated and disputed so that everyone can properly be heard and all evidence that each party seeks to put forward can properly be considered.

25. At page 14 of the transcript of the appearance that day, following upon submissions by Ms Vale (from about line 13 to about line 18) which outlined that her difficulties in complying with earlier directions for the filing of affidavit material in her case arose out of the fact that her focus had moved to be able to manage the recent events involving her daughter B and that, considering the danger and risks that had been identified by FACS, she said that it was:

    ... fair to say that that would be where your energies would lie, considering the safety of my daughter is at risk.

26. I pause to note and record that the reference to “your energies” can only have been a reference to the Court. 

27. Those comments by Ms Vale were responded to by me in the following way (as is apparent from a consideration of the transcript, line 20 to line 36, on page 14):

    Well, [Ms Vale], that’s my point.  That’s why I keep saying I intend to retain this matter in the trial list before me on the 14th because it’s only through the receipt of that material and the ability to see witnesses cross-examined that I will be able to properly hear and determine evidence, including of course, the evidence that you clearly will rely upon as providing the foundation for your submission to me that [B] is at risk.  That heightens my concerns and strengthens my position in relation to maintaining this matter in a trial list.  If it goes away from a trial list, I am very concerned that no party will properly have the opportunity to advance the material they rely upon in circumstances where, if the contents of whatever documents or whatever affidavits are relied upon are the subject of challenge by another party, there won’t be the opportunity to advance that challenge so – and that’s my point.

    I intend to afford you the opportunity to put forward the evidence and the information you’re being told by FACS in affidavit form so that I can have it properly before me so that I can properly take it into account.  That’s exactly the point.

28. Further, the transcript of the proceedings before me on 2 November 2016 - from about line 39 on page 15 to about line 43 on page 16 - records the manner in which I responded, at that time, to Ms Vale’s submissions about the impact upon her case and her involvement in this process of the orders that were made by the Principal Registrar in February 2016. 

29. Reference to page 16 of the transcript, in particular (which I do not intend to read into the record in its entirety) makes it clear that Ms Vale, then, outlined her concerns in relation to those orders;  the conduct of the Principal Registrar in making the orders; whether procedural fairness had been accorded to her;  whether there was an error of law and an error of jurisdiction in relation to that conduct; and her assertion that it was that conduct that:

    ... drove me to protect my children and then try and get help from the Attorney-General in regarding the conduct of this Court.

30. In responding, I made the following comments (commencing at line 15):

    Well, again, I come back to – perhaps for the third time, to reiterate my view that it’s at a trial that those very matters can be raised by you.  That’s the purpose for which I made – why I brought this matter on, why I made directions a number of months ago for the filing of affidavit material.  In affidavit material, you are perfectly entitled, it seems to me, in setting out a chronology of events, if you choose to do your affidavit in this way, to set out your contentions in that regard and to give evidence in relation to your actions

    …

    And to seek and make submissions before me that I should conclude, for whatever reason, that your actions were justified, they were reasonable, you acted in a justified and reasonable way, and that any of your actions should be seen in light of whatever particular circumstances you say are established on the evidence.  That’s exactly the point, again I come back to, as to why, in my view, giving everyone the opportunity to air these matters, lead their evidence, engage in cross-examination, challenge the contentions of each other is so important in this matter.  Because the very thing that it seems is underpinning your submissions to me, namely, that there wasn’t afforded to you, properly, an opportunity to be heard or that decisions were made absent an opportunity to take into account all of the information and/or to resolve factual disputes is the very thing that can be properly addressed at trial.

    And it is only at trial that one – that any judicial system can resolve disputes of fact and make those types of determinations that are contained within your submissions.  So I hear your submissions.  No doubt you hear my responses to them.  So, again, I suppose, I simply reiterate that I intend to leave the matter listed before for trial because it seems to me it’s through that process these issues can properly be ventilated and the parties can properly be afforded an opportunity to be heard.

1. I turn, now, to address, in particular, the submissions made by Ms Vale and the particulars, as it were, of the matters she relies upon as providing the foundation for her application for a determination that I recuse myself from the further conduct of this matter.

2. The first are her submissions which assert a failure to hear her application for review either at all or appropriately.  Regard should, in my view, properly be had to page 38 of the transcript of the appearance before me on 18 July 2016 - between lines 33 and 43 - wherein it is clear that, during a discussion with Ms Vale in which I attempted to obtain clarity from her in relation to those outstanding interim matters with which I was dealing that day, I commented that it was unnecessary for her to seek leave in relation to a review and that, as she had filed an application for a review, the proceedings proceeded de novo: to which she responded “sure”.  In addition, reference to the Reasons for Judgment published by me in August of this year specifically refer to and outline (at clauses 19 and 20) the basis on which I proceeded to hear and determine Ms Vale’s application for review of existing orders.

3. Insofar as the assertion of bias and/or unfairness in the trial preparatory process – which is the manner in which I have chosen to summarise others of Ms Vale’s submissions – is concerned, it is, I think, appropriate to note that, at page 28 of the transcript of proceedings on 18 July 2016, comments were made by me to the parties of my intention to maintain the directions hearing that was listed before a Registrar in August 2016 and that, in effect, between that (July) date and the directions hearing date, the parties would have an opportunity to consider the evidence they wished to lead at the trial.

4. As the notation of the order made by me records (and as the transcript clearly reflects), the parties were certainly informed of the necessity to start to work on their trial material from that day and not to wait for a directions hearing.  Further - as is shown by reference to page 29 of the transcript - I, in essence, flagged with the parties that I would not look favourably upon any application to vacate the trial dates through non-compliance given the effort that had been made to bring this matter on for final hearing to accommodate and provide opportunity for contentious issues – including the allegations of family violence – to be properly and fully litigated.

5. Insofar as Ms Vale’s submission and/or assertion that orders which have been made have denied her access to the children and thereby denied her access to “probative evidence” – perhaps a reference, obliquely, to direct communication by either child of their stated wishes and/or, perhaps, to evidence of their interaction with her – it is clear on the material before me that the children’s wishes have been expressed to a number of persons who include: the psychologist upon whom they have attended, the father, the author of the Family Reports  and (in the case of B) via a letter written to an organisation known as L Group and by discussion with officers of FACS and the Independent Children’s Lawyer in the presence of hospital personnel.

6. Insofar as Ms Vale’s submissions asserted that her opportunity to participate in the proceedings has been inappropriately restricted or hindered as a consequence of her receipt of what she termed “new material” is concerned, it is clear (and will be from a perusal of the transcript of yesterday’s appearance) that those documents which collectively comprise Exhibit A have been taken from subpoenaed documents made available to the parties for inspection in both Sydney and - in the case of Ms Vale - at the Newcastle Registries of this Court earlier; obviously, arrangements have been made for Ms Vale’s personal attendance at this trial via video link from the Newcastle Registry.

7. Insofar as the latter is concerned, I note the existence of s 69ZQ(1)(e) of the Family Law Act 1975 (Cth) which requires that, in giving effect to the principles in s 69ZN of the Act – namely, the principles for conducting child –related proceedings – the Court must make appropriate use of technology.

8. Insofar as Ms Vale’s submissions and/or assertion that the issue of disclosure between the parties - or the manner in which I have previously determined the issue of disclosure between the parties - has, in some way adversely impacted her ability to participate in the proceedings is concerned, I do not accept that the manner that issue was dealt with by me (as outlined at paragraphs 96 to 101 of the Reasons for Judgment delivered in August) is capable of demonstrating actual bias or is capable of providing or does provide a basis for the satisfaction of the test required for an apprehension of bias.

9. I turn to deal now with Ms Vale’s assertions that the trial and the proceedings have been conducted by me so as to favour the father and that this asserted behaviour demonstrates actual bias as defined or satisfies the test required to be satisfied to establish an apprehension of bias. 

10. In particular, I make reference to page 16 of the transcript of proceedings of 18 July 2016 which records Ms Vale’s position when it was proposed by me that the trial take place before me in November of this year - her response was that that sounded “fine” for the trial to be listed before me in November.

11. Further, page 29 of the transcript of that appearance contains an emphasis of the position that the reason the trial was listed was to provide an opportunity for the parties to properly and fully litigate those contentious issues - which included the allegation of domestic violence. 

12. In addition, the order made by me on 5 August 2016 permitted Ms Vale to supply a copy of the Family Reports prepared in this matter to a psychiatrist she nominated for the purpose of assisting her in her preparations for cross-examining the author of the same.

13. In addition, in order to finalise all of the outstanding interim applications for relief filed by Ms Vale before 18 July 2016, I proceeded (as the record establishes) to deal with those applications despite Ms Vale’s non-compliance with an earlier order made by Forrest J to regulate the hearing of the outstanding applications.  And - when I was unable, on 18 July 2016, to finalise all of those applications - they were adjourned for a further hearing to 9.00 am on 21 July 2016 before me so as to cause as little inconvenience to everyone but to permit me to finalise the outstanding interim applications in a timely way.

14. In addition, reference to the transcript of the appearance on 22 July 2016 records comments that I made in an endeavour to assist Ms Vale to understand the process and the importance of affidavit material and the importance of obtaining evidence for use in the proceedings: see, in particular, (for example only) pages 13 and 14 of that transcript wherein reference is made to the issue of evidence, the importance of obtaining the same, and a discussion about the inherent limitations of interim proceedings and the importance of getting the matter on for final hearing as soon as possible.

15. Further, reference to the transcript of the appearance on 22 July 2016 (particularly at page 20) records that, in responding to Ms Vale’s stated concern that previous decisions of a Registrar had infected this process and have either caused or led or allowed adverse inferences to be drawn - or inferences adverse to her to be drawn - and after she made particular reference to an entry contained within the chronology appended to the Reasons for Judgment delivered by the Principal Registrar which she asserted was factually incorrect, I said the following (from line 26 to about line 31):

    Okay,  but that – even – and even if that were the case, at the trial you can say to me, “Look, here you are” – “Here’s my correspondence with the court.”  I mean, I will be the one looking at the evidence and making the findings of fact having heard from all of you and having seen the cross-examination of everyone.  I will deliver my own reasons, and I will reach my own conclusions about chronology, and who did what when…

16. In returning to a further particular relied upon by Ms Vale – namely, that the trial and proceedings have been conducted so as to favour the father – I refer particularly to lines 27 to 45 at page 22 of the transcript of 22 July 2016 wherein I declined to make orders (sought by the father’s solicitor on his behalf) which sought to prevent the mother from being able to bring any further applications between trial and final hearing.

17. Insofar, as Ms Vale submitted and asserted that, in listing the trial here before me to commence in November, I failed to have regard to her economic situation and by so doing demonstrated either actual bias or acted in a manner such that the objective test applicable to an assertion of apprehended bias is established, I make reference – again – to my comments as outlined earlier in the course of dealing with this application, being:

    a)comments made by me to the parties at earlier appearances which emphasised the imperative of affording to this matter a speedy trial and of providing parties the forum within which a full consideration of allegations could be made - including the mother’s allegations of serious domestic and family violence; 

    b)that arrangements have been made to accommodate the mother and to make available to her the subpoenaed documents;

    c)that the file and subpoenaed documents were made available for inspection in Sydney between about 2 or 3 September 2016 and 7 October 2016 and the subpoenaed documents  - via transmission to the Newcastle Registry - from Thursday, 3 November to Thursday, 10 November 2016; 

    d)that Ms Vale’s appearance by video link was to accommodate the financial difficulties to which she has referred during the course of her submissions.

18. Ms Vale also made submissions about the existence of orders made by me that said, in effect, if parties did not appear at trial, then the Court may proceed - on the application of another party - to make orders in default (namely, that which is contained in the order I made on 18 July 2016 ). The questions to be posed in the determination of Ms Vale’s application may be stated as follows: does the making of the order in such terms establish that my mind is so committed to a conclusion about which parenting order is in these children’s best interests as to render me incapable of altering that view (whatever arguments or evidence has been or will be presented) or, alternatively, was the making of the order such that the hypothetical fair-minded lay observer may reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions to be decided and the issues to be determined – that is, the orders which are in these children’s best interests?

19. When regard is had to:

    a)the reason for setting the matter for trial – namely, an assessment that it needed to be accorded significant priority in these children’s best interests; and

    b)that, despite an order for the attendance of the parties in person, a subsequent order has facilitated Ms Vale’s appearance yesterday by video link from the Newcastle Registry; and

    c)that the order in relation to the undefended process reflects the contents of Rule 11.02(c) of the Family Law Rules; and

    d)the fact and reality that, as outlined by the Principal Registrar at paragraph 5 in the Reasons for Judgment she delivered on 11 February 2016: “The determination of matters in dispute is not amenable to the truncated determination of an interim hearing where the evidence can’t be tested by cross-examination”; and

    e)the matters outlined between lines 38 on page 15 and the entirety of page 16 of the transcript of proceedings on 18 July 2016,

    I am not persuaded that the making of such order establishes either of the bases for recusal advanced by Ms Vale.

20. I turn now to deal with Ms Vale’s submissions that the issue and/or allegations of family violence have been ignored, that the allegations in relation to the same have been ignored by me and that such asserted failure to have regard to the allegations of family violence demonstrates actual bias as defined or satisfies the test required to be satisfied to establish an apprehension of bias.

21. I make reference to the appearance before me on 18 July 2016, as recorded in particular at page 26 of the transcript of the same. Following Ms Vale’s assertion (as recorded at line 26) in these terms:

    … And I do believe that the domestic violence side of things in relation to this case has not been well-heard…

    I responded:

    Well, that’s exactly why I’ve given you very expedited hearing dates, Ms Vale.  That’s … As I think I had made clear in the oral reasons I’ve just delivered in refusing your application, one of the things I’ve taken into account are your allegations, so that they can be properly heard … to deal with your concerns, I think, that they have not been well-heard so far.  Well, in November I will be in a position to hear them.

22. Further, at page 29 of the transcript of that appearance, reference was made (as I have already adverted to) by me to the likely attitude I would take to any application to vacate the dates given the efforts that had been made to bring the matter on for final hearing to accommodate and provide an opportunity for:

    … those contentious issues, including those allegations of domestic violence to be properly and fully litigated.

23. Further, (at page 88 of the transcript of proceedings of that date) where Ms Vale (commencing at about line 3) made the following submissions:

    Anyway, the issues around – if they’re going to cast aspersions on my character, the domestic violence issues, I think, are significant, your Honour, and they haven’t –

    I interjected:

    I know.

    Ms Vale:

    - even been looked at.

24. My response (from line 11 to line 19) was as follows:

    Well – and that’s why I’m bringing the trial on, Ms Vale.  I keep saying that – to accommodate the hearing of the allegations.  I have made this matter leapfrog over about – at least 100 matters in this registry that are awaiting allocation to a judge for allocation for trial dates.  I have skipped you over all of them.  So I am fully hearing your submissions about the importance of a trial date.  No one at the bar table has tried to dissuade me.  In fact, they all joined in opposing your application that I transfer the proceedings to Sydney predominantly because I – from my recollection of their submissions, one of the big factors is I can give it a trial date.

25. In those circumstances, I am not persuaded by the submission that the allegations and assertions of family violence have either been ignored or that I have failed to take them into account or have regard to them in the decisions I have made in relation to the conduct of the matter; or that the actions in bringing the matter on for trial are capable of constituting a basis for a finding of either actual bias or an apprehension of bias.

26. I turn now to deal with Ms Vale’s assertions that I failed to adopt a finding made by the Principal Registrar in relation to the issue of family violence - instead asserting that I would determine whether family violence had occurred or not - and that, in making such comment (as she submitted was made), I demonstrated either actual bias (as defined) toward her or acted in a manner that would satisfy the test required to be satisfied to establish a case of apprehension of bias.

27. Given Ms Vale’s submissions, regard obviously needs to be had to the Reasons for Judgment delivered by the Principal Registrar on 11 February 2016.  Contained within those Reasons is her identification - at paragraph 4 of the same - of a central issue in the dispute: being the allegation raised by Ms Vale of serious family violence allegedly perpetrated by the father on her.

28. At paragraph 22, the Principal Registrar noted that the determination of the mother’s allegations about family violence had not been addressed either in the proceedings concluded in 2013 by consent orders or in current proceedings.  At paragraph 23, she recorded that key issues remain whether the children have been exposed to family violence and whether there is a risk of future family violence or emotional abuse.

29. At paragraph 25 of her Reasons - having referred to the first Family Report and references contained within it - the Principal Registrar says:

    However, at separation there was family violence and it appears consistent with some details reported by the children.

30. Despite this, paragraph 26 of the Reasons refers to the mother’s allegation that she and the children remain at risk of family violence, noting that whilst the evidence has not been tested, it is submitted that these issues remain in contention and require to be determined at a final hearing. Paragraph 27 of the Principal Registrar’s Reasons are that she accepted the submission that the issue of family violence at and prior to separation is a matter for determination at the final hearing, noting that, if the mother has further evidence, that information needs to be placed in evidence.

31. Reference to the transcript of the appearance before me on 18 July 2016 (at page 26 to about line 42 on page 27) contains my response to Ms Vale’s submissions that she believed the domestic violence side of things - to use her phraseology – had not been well-heard.  I do not intend to repeat that aspect of the transcript. 

32. However, there was further reference to that issue on 22 July 2016 - particularly at pages 14 and 15 of the transcript (commencing from line 45 on page 14 to about line 23 on page 15).

33. To understand, properly, the context of Ms Vale’s submission made orally that I informed the parties that I would determine whether family violence had occurred or not requires that particular regard is had to the contents of that transcript. 

34. After Ms Vale made submissions and specifically referred to paragraph 25 of the Principal Registrar’s Reasons for Judgment and referred to it as a finding of fact, I made the following comments (from line 11 on page 15):

    Well, again, I reiterate ultimately I will make a decision whether it was, in fact, a – there was, in fact, family violence or not once I’ve had the opportunity to see everyone in cross-examination.  It may be that I conclude that people have formed their own views, and that they hold those beliefs honestly but I don’t agree with them or I don’t think they’re made out on the evidence, but I note your submission.  Again, I can’t necessarily decline to make findings of fact that, perhaps, Mr Ulbrick urges I make on an interim basis, and make findings of fact that you say I make.  The same rules apply.  I might struggle for the same reasons I’ve outlined now twice, to make any particular findings of fact.  That is why the Full Court has been clear in continually emphasising the importance of attempting to isolate matters that are not in dispute, and to – for trial judges making interim parenting orders to do their best noting the difficulties where there are disputes as to primary facts.  That’s just the reality of our system.

35. After a perusal of the transcripts of the appearances before me on 18 and 22 July and 2 November of this year, I do not accept Ms Vale’s submission that anything that I have said to the parties could, objectively viewed, have conveyed to Ms Vale that her allegations of domestic violence would be disbelieved or that she would be in any way prevented from prosecuting the same by filing affidavit material and leading evidence at the trial of this matter.  I do not accept that anything contained within the transcripts of those appearances provides a basis for a conclusion that I had acted, or have at any time acted, with actual bias toward her or her case.

36. I turn now to deal with Ms Vale’s assertion and submissions that, as the interim orders made for three visits between herself and the children in Brisbane, supervised by the Family Report Writer, were manifestly impossible for her, in making such an order, I demonstrated actual bias against her or acted in a manner that would establish and satisfy the test required to be satisfied to establish an apprehension of bias.

1. In considering those submissions it is, I think, relevant to note that the context within which the orders were made included the existence of  Family Reports, the absence of specific detailed evidence from Ms Vale regarding her current financial circumstances (other than reference to bank account statements for a defined period), that the father had offered to pay the costs of the children’s attendance so that Ms Vale’s costs would be limited to her getting to Brisbane from wherever she lived in New South Wales and the fact that - as is recorded on the face of orders made by the Court, whether by Registrars or other Justices of this Court, - Ms Vale had travelled to appear here on 1 March 2016, 17 March 2016 and 29 April 2016.

2. I do not accept Ms Vale’s submissions that the form of the order made establishes, or is capable of establishing, that I had acted with actual bias toward her or that it satisfies the test that is required to be established for an allegation of apprehended bias to succeed.

3. I turn now to deal with Ms Vale’s submissions and assertions that, in declining to make interim orders for the children’s time and communication with their maternal grandparents, I demonstrated actual bias or acted in such a manner as would satisfy the test for the establishment of the allegation of apprehended bias. 

4. It is relevant to record - as is apparent from the transcripts of the appearances on 18 July and 22 July, in particular - that Ms Vale’s application for communication between the children and their maternal grandparents changed somewhat during the course of the appearance on 22 July 2016.

5. Further reference should be made to paragraph 59 of the Reasons for Judgment I delivered in August which record that I did not accept the father’s submissions about the point sought to be made about the issue discussed within that paragraph.  Further, the Reasons I delivered contained no findings at all in relation to the allegation made by the children’s father that the maternal grandfather somehow assisted or was involved in the mother’s attempt to remove the children from Australia.  Again, reference properly should also be made to page 15 of the transcript of proceedings on 22 July 2016 (to which I have already made specific reference).

6. I deal next with Ms Vale’s submission and assertion that I acted to disbelieve her in relation to her submissions about the maternal grandmother suffering a stroke and/or did not permit her to lead evidence about that issue. I do not accept, having regard to the transcript of the appearance on 22 July 2016, (particularly from page 5, line 9 to page 9), that there is a proper basis for such a submission.  In fact, recourse to the transcript will reveal my informing Ms Vale that, as she had previously informed me on 18 July 2016 without objection that her mother had suffered a stroke, I could - and was prepared to - act on the basis of that information despite the absence of evidence about that issue.  It follows, therefore, that I do not accept Ms Vale’s submissions in relation to that assertion.

7. I turn now to deal with Ms Vale’s submissions and assertion that I failed to have regard to out-of-court communication - being an email said to have been sent to my Associate prior to delivery of the Reasons for Judgment on 5 August 2016 - and that, in doing so, I have either acted with actual bias toward her or acted in a manner that would persuade the objective bystander to conclude of the matters necessary to establish the allegation of an apprehension of bias.  

8. Reference to page 13 of the transcript of the appearance before me on 18 July 2016 establishes that the parties were clearly told that I do not conduct litigation by email, that I do not read email, that my Associate is told not to bring to my attention the existence of email and that communication between parties in cases that I hear occurs in open Court. 

9. That issue was adverted to again on 22 July 2016 (at page 4 of the transcript) in the course of Ms Vale’s attempt to table, as an exhibit, information she informed the Court she had sent via a case coordinator. Reference to the transcript will make clear that I reiterated that I did not receive any communications in Chambers.  Further, reference should be made to additional comments recorded in the transcript of proceedings on 22 July 2016 during which I outlined:

   a)the appropriate processes; and

   b)my reasons for believing them to be appropriate; and

   c)the importance of preparing and filing evidence via affidavit; and

   d)what I consider to be the vital obligation of a Court in this jurisdiction:  to ensure transparency by ensuring communication is in open Court and in the presence of parties.

10. Referral was made to Ms Vale to the case of Re F:  Litigants in PersonGuidelines (2001) FLC 93-072, so as further to assist her.

11. I am not persuaded in the circumstances that any action asserted or described to be a failure to have regard to out-of-court communications is capable of providing a basis for the findings sought by Ms Vale in her application.

12. I turn now to deal with Ms Vale’s submissions and assertions that I failed to deal with her application for an order staying the operation of the Recovery Order made by Tree J when the matter was before me on 2 November 2016, and that my actions in doing so demonstrated either actual bias (as defined) or are capable of satisfying the test required to be satisfied to establish an apprehension of bias. 

13. Reference to the transcript of the appearance on 2 November 2016 (commencing about line 42 on page 24 to page 27 of the transcript) clearly, in my view, establishes that, in fact, Ms Vale’s application for a stay of the operation of the Recovery Order was aired before me - submissions were made by the parties in relation to it and, given the listing of this matter for final hearing before me (commencing yesterday) and my comment that, in the event urgency required it, any urgent interim application could be listed and would be brought to my attention, I declined to make the order she sought.

14. In conclusion, nothing in the transcripts of the aspects of this matter in which I have been involved or the manner in which the trial has been prioritised by me toward a final hearing - for the purpose of providing the parties with the opportunity of advancing their competing contentions and seeking that findings of fact are made in the manner that each advances - is, in my view, capable of establishing actual bias on my part. 

15. The transcript, in my view, does not reveal - nor do the orders that I have made, nor the manner in which I have conducted this proceeding - anything to establish, or which is capable of establishing, that, in prioritising the final hearing, I have done so with the intention of making Ms Vale’s court preparation and/or attendance impossible.  As already noted, arrangements have been made for her to participate in this proceeding by video link.  Exhibit A documents were scanned and provided to her during the course of yesterday and she was able (as the transcript of yesterday’s proceedings reveals) to refer to them in the course of her submissions.  The file and the subpoenaed documents have previously been sent to Sydney (in the case of the file and subpoenaed documents) and to Newcastle (in the case of subpoenaed documents).

16. There is nothing in the interactions recorded in the transcript of proceedings prior to yesterday to provide a basis for any conclusion that the Court has refused to accept any evidence from Ms Vale.  Rather, it is clear from a perusal of the Orders made to attempt to facilitate the final hearing of this matter that direction after direction has been made - by either Judge (including Forrest J) or Registrar - to require and permit Ms Vale to file affidavit material. She has, in my view, been afforded every opportunity to file material and to give evidence by affidavit in response to any allegations or evidence contained within any other parties’ case and to advance - of course, most importantly - the evidence that she says is relevant and necessary to establish and provide a basis for the findings of fact that she seeks: including the finding she seeks in relation to the allegations of serious family and domestic violence.

17. I consider that there is nothing in the conduct of the trial process to date (as recorded in the transcripts) or the orders and the directions that have been made for the preparation of the trial that are capable of establishing that Ms Vale’s “fundamental legal rights” have, in any way, been violated.  Rather, in my view - despite her repeated failure to comply with numerous orders of the Court and directions which have required the filing of material - the matter has been prosecuted and the parties have, as has the Court, focused upon the imperative of bringing to a conclusion, via the trial process, the litigation between the parents in this matter.

18. For the reasons outlined, I am not persuaded that Ms Vale has established those matters necessary to establish either the assertion of actual bias or the assertion of a reasonable apprehension of bias on my part in the conduct of the proceedings to date.

19. Accordingly, I decline to accede to her application that I recuse myself from further conduct of the trial.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 November 2016.

Associate:                  

Date:    21 November 2016