VINE & VINE

[2018] FamCA 60

FAMILY COURT OF AUSTRALIA

VINE & VINE [2018] FamCA 60

FAMILY LAW – COURTS AND JUDGES – Bias – Reasonable apprehension of bias – Where the applicant requested the judge recuse himself on the ground of apprehended bias – Apprehension of bias by reason of pre-judgment – Whether the primary judge should recuse himself due to apprehended bias – Whether interlocutory judgment predetermines or prejudges any of the central issues likely to be the subject of a future trial

APPLICANT: Ms Vine

RESPONDENT: Mr Vine

FILE NUMBER: ADC 638 of 2013

DATE DELIVERED: 9 February 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 29 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the father’s Application in a Case filed 11 December 2017 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 Vine & Vine 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 ADELAIDE

FILE NUMBER: ADC 638  of 2013

Ms Vine

Applicant

And

Mr Vine

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Vine (“the mother”) and Mr Vine (“the father”) are the parents of X born in 2006 (“X”), Y born in 2008 (“Y”) and Z born in 2009 (“Z”) (collectively “the children”).

2. Final consent orders were made on 16 August 2016 that provided for the parties to have equal shared parental responsibility for the children, the father to have sole parental responsibility for the education of X and the mother to have sole parental responsibility for the education of Y and Z.

3. The orders provided for Y and Z to live with the mother and X to live with the father and, that the children would spend substantial time with the other parent.

4. The mother concedes that her relationship with X has been problematic.  Whilst there is no concession as to the reason why their relationship is fractured, the mother nonetheless accepted that the final orders in so far as they concerned X were not able to be given effect and did not represent the reality of the relationship she had with him. 

5. Whilst the primary focus has been on X, the father now seeks orders in relation to Y and Z that would significantly alter their parenting arrangements.

6. The mother filed an Application on 27 July 2017 seeking orders that would better promote her relationship with X.  The application was that the final consent orders should be suspended and her time with X should be restricted initially to some few hours in the hope that following the relationship being re-established X would more easily transition to spending more time with his mother.

7. The father does not seek to stop X spending time with the mother, but contends that the process of re-establishing the relationship must be taken slowly and generally subject to the child’s wishes.  A particular concern of the father is that the mother’s current partner Mr S presents as a risk to X due to conflict between the mother and Mr S and accordingly, he should not be present when X sees his mother.

8. Following submissions on 3 November 2017, orders were made on 10 November 2017 adjourning the proceedings to 13 December 2017 with X to spend time with the mother each Wednesday from the conclusion of school (or 3pm if not a school day) to 7.30 pm on the condition that the child spends time with the mother in the absence of her partner.

9. On 11 December 2013 the father filed an Application in a Case seeking that I recuse myself from continuing to hear the proceedings on the basis that ”His Honour’s conduct during the course of interim hearings has raised a reasonable apprehension of bias.”

10. For reasons that are not explained, the father seeks that the file be transferred for hearing in the Federal Circuit Court of Australia.

11. On 13 December 2017 the father’s application was adjourned until 29 January 2018 with X to spend time with his mother as previously ordered and in addition for such other periods as the parties may agree taking into account X’s wishes.

12. On 29 January 2018 the parties appeared before me as litigants in person.  I heard lengthy submissions from the father in support of his application which was opposed by the mother.

13. The father’s application was supported by his affidavit filed 11 December 2017.  Whilst the affidavit is not a document that deals with evidence in support of the application, it is nonetheless a useful summary of the father’s argument.

14. The father’s concerns are clearly set out under the following headings:-

    ·Interruptions;

    ·Previous findings – physical and psychological harm;

    ·Previous findings – relinquishment of X; and

    ·August 2016 orders.

INTERRUPTIONS

1. The father focusses on the hearing on 3 November 2017 and relies upon a transcript of the proceedings being Annexure “JPV1” to his affidavit.  On that occasion, the father was represented by counsel.  He argues that his counsel was interrupted on a number of occasions and “notwithstanding the fact that I was represented, however, Justice Berman created such a hostile atmosphere that it was impossible even for counsel to present my case”.

PREVIOUS FINDINGS – PHYSICAL AND PSYCHOLOGICAL HARM

1. The father refers to remarks made in a judgment delivered by me on 9 June 2016 which pre-dates the final consent order made on 16 August 2016.

PREVIOUS FINDINGS – RELINQUISHMENT OF X

1. The father considers that in my judgment of 10 November 2017 my summary of the extent of time that X had spent with the mother since September 2016 was inaccurate in that there has been full compliance with the final consent orders of 2016 and interim orders until December 2016. The father alleges that in December 2016 the mother told X he could no longer live with her. The father alleges this was the case for some eight months until the mother sought to reinstate the relationship as a consequence of her Initiating Application in August 2017.

AUGUST 2016 ORDERS

1. The father alleges that notwithstanding his representation he entered into the consent orders because he considered that “[I] would not bring an impartial and unprejudiced mind to the resolution of the questions involved in the planned August 2016 trial”.   

2. Whilst not the father’s only argument, a reasonable summary of his position is evident from paragraph 20 of his affidavit:-

   Justice Berman has favoured the mother’s position to such an extent that he has completely disregarded my evidence on [X’s] relinquishment.  [X’s] repeated relinquishment goes to the heart of my case and, having accepted the mother’s argument that [X’s] compliance is the issue, I cannot comprehend that he will bring an impartial and unprejudiced mind to the final resolution of these questions.

LEGAL PRINCIPLES

1. In Concrete Pty Ltd v Parramatta Design and Development Pty Ltd [2006] HCA 55, at paragraph 111 Kirby and Crennan JJ reiterated that:-

   …it is important to bear in mind the characteristics of modern litigation…

2. And at paragraph 175 of the judgment the following appears:-

   This system [the docket system] has its disadvantages and dangers.  On the one hand, the trial judge will be well educated in many of the details of the case on each side by the time that the hearing starts.  But on the other hand, it may sometimes be difficult for the trial judge, apparently fully conversant with the facts and issues, not to have formed some provisional view at least of the outcome of the case.

3. At paragraph 176:-

   I mention these matters because in sum they may well incline a trial judge towards a degree of outspokenness of a kind to which he or she would not be inclined in a conventional trial on largely oral evidence.  That this is so does not provide any excuse for the manifestation of apparent bias on the part of a trial judge but it may explain why a judge finds himself or herself speaking more candidly and strongly than he or she might otherwise do, or even have been able to do, in the past or in other jurisdictions.  The question nonetheless remains whether the fair-minded lay observer might reasonably have apprehended that the judge might not be bringing an impartial and unprejudiced mind to the resolution of the questions that he was required to decide.

4. In British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 , the majority comprising Heydon, Kiefel and Bell JJ set out the apprehended bias test at [139]:-

   It is fundamental to the administration of justice that the judge be neutral.  It is for this reason that the appearance of departure from neutrality is a ground for disqualification.  Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yard stick.  It is the public’s perception of neutrality with which the rule is concerned.  In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case.  It is a recognition of human nature.

5. At paragraph 37 of French CJ’s judgment in British American Tobacco Australia Services (supra) his Honour referred to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and identified that there is a two-step approach identified in Ebner:-

   …The first is “the identification of what is said might lead a judge…to decide a case other than on legal and factual merits”.

   The second is an “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”. In Ebner the instructed observer was “the fair minded lay observer” concerned only with a reasonable apprehension of bias.  The test is generally applicable to cases of apprehended bias…(footnotes omitted). 

6. In Australian National Industries Ltd v Spedley Securities (in liq) & Ors (1992) 26 NSWLR 411 Mahoney JA observed at [438]:-

   In my opinion four things emerge from the decision in Livesey and the cases which have succeeded it:-

   (a)The disqualification of a judge for apprehended pre-judgment depends on form rather than substance;

   (b)Whether there is an unacceptable appearance of pre-judgment is to be decided, not according to likelihood, but according to possibility;

   (c)It is to be judged, not according to what the court and the parties know, but according to the impression of a lay person who does not know the facts; and

   (d)There will be an unacceptable appearance of pre-judgment if the judge has previously dealt with the issue of fact or credibility which is before him in the instant case.

7. In Kwan v Kang [2003] NSWCA 336 the test in Ebner (supra)and Johnson v Johnson [2000] HCA 48as affirmed the Court considered the nature and extent to which the appearance of impartiality should be determined:-

   [77]Despite the importance of the appearance of justice being seen to be done, there is a strong need for courts to apply realistic criteria in considering whether a reasonable apprehension of bias has been established.  This is particular so when dealing with a disqualification application based on what is said to be prejudgment by a judicial officer.  This has often been stressed.

8. At [82]:-

   While the test for apprehended bias by reason of prejudgment is based on what may be regarded as a fairly low threshold of satisfaction, namely, “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind” to the issue, the element of reasonableness needs to be stressed.  In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 Gaudron and McHugh JJ pointed out:

   “A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry.”

9. The Court went further and said:-

   [86]It is not unknown for judges to make findings on an interlocutory issue and to express those findings in a way that indicates they have come to a final conclusion.  If that conclusion is as to a significant issue on which the ultimate result of the trial depends, and further evidence is still to be led and final addresses are still to be made, the likely consequence is that the judge concerned will have to disqualify himself or herself.

   [87]The reason for this is that a finding expressed in terms of finality, when made at an interlocutory stage, will usually give the impression that the judge’s mind is made up.  If the judge’s mind is made up before evidence and final addresses are complete, it will mean that a conclusion has been unfairly arrived at.  There is then likely to be an apprehension that, when the time comes to give final judgment, the judge might not be impartial or might be prejudiced against the party who was unsuccessful in the interlocutory judgment.  It will then not merely be an apprehension that the judge will decide the case adversely against the party.

10. In Dunwell v Dunwell [2011] FamCAFC 2 Finn J considered that the test is objective and not subjective. Her Honour said:-

    [51]When regard is had to the observations concerning modern judicial practice made by members of the High Court in Johnson (in the paragraph ([13]) which I earlier cited), I consider that his Honour’s questions and observations, when read in context, concerning the strength that the letter of 11 May 2009 appeared to give to the case for the restraining order against the wife’s solicitors, and the apparent reliance, at least at that stage, by the wife’s side only on her affidavit, did not exceed the bounds of legitimate questions and observations by a judge (as referred to in paragraph 13 of Johnson). In these circumstances, the fictional lay observer, whose position is to be understood in light of what is said in paragraph 13 of the High Court decision in Johnson, could not reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the case for the restraining order in relation to the wife’s solicitors. (See also the observations in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 of Gummow ACJ at [4] and Callinan J at [173] to [180]).

11. In the same decision Thackray J considered that an application for disqualification must be viewed against the pressure of litigation on a modern court faced with fiscal restraint and limited resources.   His Honour said:-

    [191]It is important to keep in mind this was an interlocutory dispute in proceedings the trial Judge property identified as having the potential to give rise to “satellite litigation”. As his Honour said, such litigation:

    “…uses a significant amount of court time.  That means other cases waiting to be heard experience longer waiting times.  In a time where the judicial resources of the Court are stretched enormously those waiting times become quite unacceptable to most litigants.”

CONCLUSION

1. I do not consider that it is permissible to consider the father’s application against the backdrop of what he says was his subjective state of mind leading up to the consent orders in August 2016.  The father was represented by experienced counsel and the order was made by consent.  There is no criticism of the Court’s involvement at the time of the making of the orders.

2. The father also acknowledges that the order in respect of X spending time with the mother was the subject of compliance until December 2016 when the father contends that the mother’s actions disrupted her relationship with X.

3. I do not propose to place weight on the father’s general remarks asserting that he had been mocked and was the subject of condescension.

4. The gravamen of the application centres upon the hearing on 3 November 2017 and the judgment delivered on 10 November 2017.

5. Each of the parties had sought to reinvigorate the ligation by orders that were fundamentally different to the consent orders.

6. Each of the parties argued that the current arrangements in respect to X were sufficient for the Court to find that there had been a material change in the child’s circumstances such that his best interests would be served by further litigation.  Orders were made giving leave to the mother and by implication the father to rely upon their filed application and response.

7. The father argues that the reasons speak of a pre-judgment of the relevant issues namely, the father’s case that X needs to be protected from psychological harm perpetrated by the mother.

8. The following appears in my judgment:-

   [24]The mother asserts that on the occasions she has had an opportunity to speak to [X] he is keen to spend time with her, but that he is not permitted to do so until and unless the mother agrees to certain terms and conditions as promoted by the father.

   [25]For his part, the father says that [X] is reluctant to see his mother because he feels at risk in the mother’s home, particularly in respect of any interaction with the mother’s partner [Mr S].

   [26]The mother denies any attendant risk.

   [27]She does however acknowledge that her relationship with [X] is fractured and needs to be reinstated.  She proposes that the operative orders be suspended and that there be orders made which provide for a gradual reintroduction between the mother and [X] with a hope of it providing a solid foundation for the child to spend future time with the mother.

9. The father acknowledges (to his credit) that it is in X’s best interests to have a relationship with his mother providing it is safe to do so.

10. The father acknowledged the importance of X’s relationship with the mother at paragraph 20 of his Affidavit filed 31 October 2017:-

    I remain supportive of [X] spending regular 1:1 time with [Ms Vine].  It is important, however, that [Ms Vine] does not expose [X] to conflict (as she did on 17 September 2017).  I also strongly believe that, due to [X’s] disabilities, overnight time with [Ms Vine] would disturb [X’s] routine and disrupt his current positive trajectory at school.

11. Consistent with the father’s application, orders were made that limited X’s time with the mother to each Wednesday from the conclusion of school (or 3pm if a non-school day) to 7.30pm and in particular that the time be taken in the absence of the mother’s partner.

12. I consider that on an objective view of the reasons delivered on 10 November 2017 they do not contain any statement that prejudge the issues but rather, identifies the reasons for X’s reluctance to spend time with the mother and the manner by which the relationship may be improved consistent with the position of each of the parties namely, that X would benefit from having a meaningful relationship with each of his parents.

13. It is difficult to see how orders that are consistent with the father’s approach thereby recognising X’s needs rather than determining the dispute between the parties, suggests that the Court’s focus is anywhere other than on orders that would best promote the child’s interests.

14. Whilst it might be said that the exchange with the father’s counsel was robust, in proceedings that have been before the Court for four years and have been reinvigorated following final orders made as recently as August 2016, a level of plain speaking is not consistent with a lay observer determining that the central issue has been the subject of prejudgment.

1. The difficulty for the parties is acknowledged by the father in that a transfer of the file to the Federal Circuit Court would likely impose a delay on the parties of between two and three years.

2. Taking into account the age of the children, and X in particular, to a very large degree the issue is not how the current situation has come to pass but rather what can be done to promote a respectful relationship between X and his mother.

3. To the father’s credit, it is his position to support X’s relationship with the mother, but he contends that to date it is the mother who has placed barriers in her relationship with X.

4. Accordingly, I consider that a fair-minded lay observer would form the view that the judgment of 10 November 2017 does not predetermine or prejudge any of the central issues likely to be the subject of a future trial.

5. Whilst the parties now remain in conflict over the future arrangements for Y and Z, none of the interim proceedings to date have focussed on them.

6. I dismiss the father’s application.

7. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 February 2018.

Associate: 

Date:  9 February 2018