Wenlack & Cimorelli (No 2) - [2022] FedCFamC1F 696

Federal Circuit and Family Court of Australia
(DIVISION 1)
Wenlack & Cimorelli (No 2) [2022] FedCFamC1F 696

File number(s): SYC 2881 of 2013

Judgment of: HANNAM J

Date of judgment: 14 September 2022

Catchwords: FAMILY LAW - DISQUALIFICATION – Apprehension of bias – Where maternal grandparents contend curtailments of cross-examination and attitudes displayed cause them to feel the Court is not well disposed to maternal family – No submissions framed in terms of the “first” or “second” test in disqualification applications on the basis of apprehended bias – Application of the relevant two-step test – Application dismissed

Legislation: Family Law Act 1975 (Cth) ss 69ZN, 69ZX

Cases cited:
Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2

Charisteas v Charisteas 393 ALR 389; [2021] HCA 29

Ebner v Official Trustee in Bankruptcy 205 CLR 337; [2000] HCA 63

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Livesey v New South Wales Bar Association [1983] HCA 17

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Strahan & Strahan [2009] FamCAFC 204

Division: Division 1 First Instance

Number of paragraphs: 133

Date of hearing: 31 May 2022

Place: Parramatta

Counsel for the Applicants: Ms Reid

Solicitor for the Applicants: Litigant in person

Counsel for the First Respondent: Ms Tabbernor

Solicitor for the First Respondent: Litigant in person

Counsel for the Second Respondent: Mr Givney

Solicitor for the Second Respondent: Apex Legal

Counsel for the Third Respondent: Mr Cook

Solicitor for the Third Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Ms Shea

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 2881 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR C CIMORELLI

First Applicant

MS D CIMORELLI

Second Applicant

AND:
MR WENLACK

First Respondent

MS CIMORELLI

Second Respondent

MS N CIMORELLI

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

31 May 2022

THE COURT ORDERS THAT:
1.The application that I recuse myself is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wenlack & Cimorelli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
Introduction

On the seventh day of protracted parenting proceedings in relation to three children, counsel for one of the parties, the maternal grandparents, sought that I recuse myself from further hearing on the basis of apprehended bias.
The father and the Independent Children’s Lawyer (“ICL”) opposed the maternal grandparents’ application and sought that it be dismissed. The mother and maternal aunt did not wish to be heard in relation to the matter.
I dismissed the application on the day it was made (31 May 2022) on the basis that a fair-minded lay person could not reasonably apprehend that I might not bring an impartial mind to the resolution of the parenting dispute.
At the time I dismissed the application I indicated that I would subsequently publish my reasons for doing so. These are those Reasons.
Background
The application under consideration arose in the course of parenting proceedings between the parents (“the father” and “the mother”, or collectively, “the parents”) of three children now aged 13, 12 and nine (“the children”). The parties on whose behalf the application for recusal was made are the second and third respondents being the children’s maternal grandparents (“the maternal grandparents”). They seek orders for the children to spend time with them separate from the orders sought by the mother and for this reason were joined to the proceedings.
The dispute between the parents concerning the future parenting arrangements for the children is longstanding with proceedings having been first commenced by the father in 2013 (“the earlier proceedings”). In the earlier proceedings the mother had raised concerns about matters which appeared to her to indicate that the parties’ eldest child, a daughter then aged five, may be at risk of sexual abuse by the father. This allegation was ongoing for some time throughout the course of the earlier proceedings, together with other allegations of physical harm to the children said to have been perpetrated by the father.
Another feature of the earlier proceedings which had particular relevance for the arrangements for the children was the significant role the mother’s sister (“the maternal aunt”) had played in the children’s lives especially following the parents’ separation.
Ultimately, the earlier proceedings were resolved by orders made with the parties’ consent in the course of a final hearing in August 2015 (“the August 2015 orders”). Notations to the August 2015 orders included that the mother accepts that there is no unacceptable risk to the children posed by the father on the available evidence and that the parents acknowledge that the children have a strong and loving relationship with each parent. Pursuant to those orders the children were to spend an increasing amount of time with the father until it reached an endpoint of an equal shared care arrangement between the parents in late 2017.
The parenting arrangements for the children proceeded for some years in accordance with the final orders without apparent difficulties known to the father at the time. It subsequently came to light that the mother had various concerns about the father’s care of the children commencing from a time soon after August 2015.
Documents produced on subpoena by the Department now known as Communities and Justice (“the Department”) record that from late 2015 notifications about risks associated with the father’s care of the children began to be received by the Department as had occurred in the earlier proceedings.
The mother also expressed concern in different settings about the other matters associated with the father’s care of the children and in late 2018 enrolled the children in a program run by a service which provides therapy for children who have experienced trauma and for the purposes of increasing the children’s resilience. The father was not aware of the nature of the service or the enrolment of the children in the program at the time.
During the period in which various complaints were made about the father’s treatment of the children following the August 2015 orders, the maternal aunt continued to play a significant role in the children’s lives.
Although investigations by the Department resulting from notifications about the father’s alleged conduct did not result in any substantiation of the allegations, the Department did assess that the risk of psychological harm (apparently posed by the father) in the early months of 2019 was “high”. In the meantime, the children had also exhibited difficulties and in the case of the older two children, apparent distress, at the prospect of living with the father in the parenting arrangement which had by that stage progressed to equal shared care (with changeovers occurring every few days). The father agreed to the suggestions of case workers from the Department at the time that he have a much more limited role in the children’s lives than would be the case if they were to live with him in an equal shared care arrangement pursuant to the prevailing court orders.
At this time, April 2019, the father sought to revisit the orders in relation to the children’s parenting and in his new application sought orders that he hold sole parental responsibility for the children and that they live with him and spend supervised time with the mother. In response, the mother sought that the equal shared care arrangement continue and the father’s Initiating Application be dismissed.
The final parenting hearing in which the recusal application was made and dismissed relates to these proceedings initiated by the father in April 2019.
Since initiation of the proceedings, there has been a significant change in the children’s circumstances beginning with the commencement of a completely new interim parenting arrangement from 5 October 2019. On that day the children were recovered from the mother and pursuant to orders made on the previous day, moved to live with the father. Since that time, the children have continued to live with the father and have spent defined supervised time only with the mother and subsequently also with the maternal grandparents.
On 1 November 2019 the maternal grandparents were joined as parties to the proceedings. They seek orders for the children to spend defined time with them if orders are made that the children are to live with the father. If orders are made as then sought by the mother, restoring an equal shared care arrangement, they do not seek any positive orders in relation to the children as they would be free to spend time with the children when the children are in the mother’s care. Otherwise, their position and contentions in the proceedings are completely aligned with the mother’s case.
The mother’s contentions and position in the proceedings have also changed significantly over time. Although as noted previously she sought in her Response that the father’s application to change the equal shared care arrangement be dismissed and that an arrangement of shared care along very similar lines to the August 2015 orders be reinstated, it is apparent from various documents admitted in the proceedings that her evidence has been significantly at odds with this stated position at some stages in the proceedings.
For example, the mother continued to suggest for some time after October 2019 that the Department have an ongoing role with the family even after orders had been made for the children to live with the father and the Department had not intervened in these proceedings. The mother continued to remain in contact with the local branch of the Department and a particular caseworker, and to suggest in various contexts that the father posed some sort of risk to the children or rely upon allegations that others made about risks posed by him while maintaining that she was not responsible for reporting these matters or raising this concern initially herself.
Concerns raised about the children in the care of the father led to ongoing involvement of the Department in response to notifications and the involvement of police from time to time.
At one stage in the proceedings (June 2020) the mother filed an affidavit and Notice of Risk in which she alleged that the father had caused significant harm to the children and made allegations that he had threatened to kill her and the maternal family, threatened to kill the children’s pets or stated that he had done this in the past and had perpetrated physical, emotional and psychological abuse against the children. In that affidavit she also deposed to the father having perpetrated significant domestic violence against her during the marriage and upon separation.
Two months later, in August 2020 an expert was appointed to provide a report on his assessment of the family for the purposes of the proceedings. Over two days in October 2020 the parties participated in interviews with the expert and his report dated 21 January 2021 was released to the parties later that month.
Despite having made renewed allegations about the risks posed by the father and of the harm he had occasioned to herself and the children, when interviewed by the expert four months later the mother’s proposal was a return to the shared care arrangement between the parents (albeit on a changed “week about basis”). The mother asserted to the expert that shared care between the parents had been a success and said that she considered it really important for the children to have a relationship with both parents. She again proposed that the current proceedings be dismissed to enable the parties to sort things out together.
In summary, the expert was extremely critical of the mother and extended maternal family (including the maternal grandparents) who he held directly responsible for repeatedly undermining the father’s capacity to maintain a relationship with the children which was to the children’s detriment. The expert considered the mother’s longstanding focus on the father’s misdemeanours as pathological and opined that this focus had undermined the children’s relationships with their father and fuelled their hostility and resentment towards him which had a profound impact upon the children’s emotional security.
The expert considered that the sudden change of the proposal of the mother (and the maternal grandparents’ whose position has always been closely aligned to the mother’s) from alleging a range of risks posed by the father to seeking a restoration of shared care was “strategic and unreliable”. He considered that the mother’s assertion that she totally respected the father and his role and that she would always encourage a close and continuing relationship between he and the children could be viewed as disingenuous.
Despite the significant role that the maternal aunt had played in the children’s lives and the expert’s wish to interview her in the course of his assessment, the maternal aunt declined to be interviewed by the expert.
In his report, the expert opined that should the mother’s proposal for shared care be implemented, it is probable that the cycle of alignment with her and alienation from the father would be reinvigorated which would not be in the children’s best interests. There was no indication to the expert that the mother and extended maternal family had taken responsibility for their actions and the impact of those actions on the children and given this, he considered it was likely that such patterns of behaviour would continue if orders are made as sought by them.
The hearing
The final hearing was fixed for five days and commenced on 14 February 2022. At the commencement of the hearing each party’s Outline of Case was marked as an exhibit in the proceedings.
The case of each party
In his Outline of Case, the father confirmed that he sought orders that he hold sole parental responsibility for the children, that the children live with him and spend supervised time with the mother for five hours per fortnight and spend supervised time in the community with the maternal grandparents for a period of eight hours once per calendar month. The father also sought various injunctions against the mother and maternal grandparents restraining them from attending the children’s time with other adults or otherwise contacting the children outside of the time provided for in the orders. It may be gleaned from the father’s case outline that he contends if orders are made as sought by the mother, then the cycle of unwarranted reports to various authorities would cause the children psychological harm and would ultimately cause the children to lose their relationships with him.
The mother in her Outline of Case sought a return to the equal shared parenting arrangement provided for in the 2015 final orders (albeit on a slightly changed “week about” basis) and sought an injunction restraining her from contacting any child welfare authority in relation to the children, or causing or encouraging any third party to do so without leave of the Court or consent of the father. In support of the parenting arrangement she promoted, the mother submitted that it is the children’s clear wish to spend more time with her in a “normal” home life and that the Court should take comfort that the cycle of the children being involved in enquiries with child welfare authorities would not recommence as she would be restrained by order of the Court from making or causing notifications of this nature to be made.
The orders sought by the maternal grandparents are not contained in their Outline of Case. However, the grandparents’ counsel on their behalf indicated that they sought orders as contained in their Amended Response to Final Orders filed 8 July 2021. Those proposed orders provide that the children spend time with the maternal grandparents for two nights each alternate weekend, defined time in school holidays and defined time to attend certain cultural festivals. Counsel for the maternal grandparents made clear that they did not seek any positive orders if the mother were successful in her application and equal shared care resumed as the grandparents would then be free to spend time with the children whenever they are in the mother’s care. It was submitted on the maternal grandparents’ behalf that the children have a close and loving relationship with them and that they are sensible people who are able to assist the children’s emotional and intellectual wellbeing.
The evidence at hearing
At final hearing the father relied upon affidavits filed by himself and his sister (“the paternal aunt”), both of whom were cross-examined.
The father was cross-examined by counsel for the mother for a period of approximately three and a half hours over the first two days of the hearing. Under cross-examination the father maintained that in the period following the earlier proceedings he tried hard to prevent and manage conflict with the mother and was concerned that the mother was attempting to undermine his relationship with the children, including through notifications being made to the Department.
Counsel for the maternal grandparents cross-examined the father for approximately one hour on the second day of the hearing. Throughout her cross-examination, counsel for the grandparents frequently put propositions to the father in which she attempted to establish that the grandparents were “sensible” people. Counsel was reminded by the Court on multiple occasions that the question of whether the grandparents are sensible people is not a central issue in the proceedings, rather it is whether it is in the best interests of the children to spend time with them. Counsel for the maternal grandparents was also prevented from putting numerous questions to the father due to the form of the questions. In this regard it was indicated to counsel that cross-examination is not an opportunity to have a general discussion with a witness about a certain topic which she appeared to be attempting from the form of those questions. Further, when counsel attempted to ask questions of the father about matters which were not within his knowledge counsel was advised that she was not permitted to put questions to the father which cause him to speculate on the actions of other people. Other questions were not permitted on the basis that they were matters for submission rather than cross-examination.
At the commencement of day three of the hearing counsel on behalf of the maternal grandparents made application to re-open her cross-examination of the father. Counsel submitted that cross-examination should not have been limited to issues relating to the best interests of the children and that her role also includes demonstrating to the Court that her clients are sensible people. This application was dismissed on the basis that the area of cross-examination proposed was not assisting the Court in determining the issues in the proceedings and that the time allowed for cross-examination in order to complete the proceedings within the allocated time was an issue which had been covered at the commencement of the hearing and revisited over the previous days.

The father was cross-examined by counsel for the ICL for a period of approximately one hour and 20 minutes across the second and third day of the hearing. The ICL’s counsel cross-examined the father on issues relating to his proposal, including potential difficulties with the children spending time with the mother and maternal grandparents on a long-term supervised basis. While conceding difficulties with long-term supervision the father maintained his belief that this was in the best interests of the children as it offered them protection from psychological harm.
The paternal aunt was cross-examined on the third day of the hearing by the mother’s counsel for approximately 30 minutes and counsel for the maternal grandparents for approximately five minutes. Following the paternal aunt’s cross-examination the father was recalled and cross-examined by the ICL for a further 10 minutes in relation to supervision reports which had been admitted in the proceedings. The father informed the Court that he was aware that the maternal aunt had in the past been and continued to be present at the children’s time with the maternal grandparents and that he consented to her being present on the basis that such time was supervised.
At final hearing the mother relied upon affidavits filed by herself and her treating psychologist who was not cross-examined. No affidavit was filed by the maternal aunt in the proceedings.
The mother was cross-examined on the third and fourth day of the hearing. She was cross-examined by the father’s counsel for approximately six hours and throughout cross-examination maintained that since the making of the 2015 orders she and the father had a successful co-parenting relationship including in the joint exercise of parental responsibility. She firmly maintained that the father does not, and did not at any time, pose an unacceptable risk of harm to the children.
Despite the consistent theme in the mother’s evidence, counsel for the father put a number of documents to the mother that indicated she had approached various agencies in 2015 such as the Department and Police and to whom she reported that the August 2015 orders were not working and sought advice on how to change the orders. Despite accepting the documents indicate that she had taken those actions, the mother did not concede that this was inconsistent with her stated position.
The mother agreed under cross-examination that from 2015 onwards she did approach various agencies and made reports of bizarre allegations said to have been made by the children about risks of harm to them in the father’s care. The mother contended that she made these reports as she was concerned that the children continued to make those allegations. The mother steadfastly held that she did not believe the content of the children’s complaints and did not have any fears for the children’s physical safety or believe that the father had behaved inappropriately in a sexual way but conceded that she had not told any of the agencies she approached about her lack of concern. The mother was taken to numerous documents such as clinical notes and referral forms of agencies to whom she had reported the allegations of harm. These records were inconsistent with her evidence that at that time she was not concerned that the children were at risk of harm in the father’s care. The mother maintained her position stating that each of these documents inaccurately recorded conversations between herself and the other party or agency concerned.
The mother was cross-examined by counsel for the ICL for one hour and 45 minutes. This cross-examination focussed on testing the mother’s claim that she was not concerned by the content of allegations made by the children, and that her concern arose only from the fact that the allegations were made. The mother was shown documents such as a Victims Services application and the referral form to the agency which provided the resilience support to the children (referred to at [11]) which contained information given by her at odds with her evidence. The mother maintained her position and contended that she and the father have capacity to have a good working relationship as there is mutual trust and respect between them.
The maternal grandfather was cross-examined by counsel for the father for 50 minutes and counsel for the ICL for 25 minutes on the fourth day of the hearing. Under-cross examination the maternal grandfather steadfastly contended that he and the maternal grandmother would abide by any orders made by the court restraining them from having the maternal aunt and mother present during the children’s time with them. Despite this position, the maternal grandfather accepted that previously he and the maternal grandmother had not been prepared to sign an undertaking restraining them from allowing the maternal aunt to be present at the children’s time with them and further conceded that he did not understand why such a restraint was being sought by any party in the proceedings. The maternal grandfather deposed that he did not believe a restraint was necessary as he had not seen any problem with the maternal aunt being present at the children’s time with the maternal family.
The expert was cross-examined by each of the legal representatives on the fifth day of the hearing. The expert was cross-examined first by counsel for the ICL for a period of one hour, then by the father’s counsel for 55 minutes, followed by counsel for the mother for one hour and 10 minutes and finally by counsel for the maternal grandparents for 30 minutes.
When cross-examined by the ICL the expert was steadfast in his recommendation that the children’s time with the mother be professionally supervised, explaining that if the time is unsupervised the mother will likely support and amplify any experiences that the children report to her. It was the expert’s view that wittingly or unwittingly, the mother has reinforced the children’s complaints about the father resulting in ongoing disturbance for the children emotionally and behaviourally which has been to their detriment. The expert opined that if the Court were to find that there have been occasions in the past where the mother has repeated the children’s allegations to services and third parties and not informed those third parties that she did believe the allegations were untrue, such action would not only reinforce the children’s beliefs but would go further and amount to recruiting others to propagate such concerns.
The expert accepted that it is possible that the risk posed by the mother to the children has diminished over the time the children have been in the father’s care and opined this may be signified by an acknowledgment (by the mother) of past mistakes and by her having the capacity if the children made further allegations to ignore them, move on and not repeat those statements.
When cross-examined by counsel for the father, the expert opined that the maternal grandparents showed no insight into the risks posed to the children or any understanding of the damage that had been occasioned to the children by the recurrent notifications to the Department. The expert repeated that it was his opinion that the maternal grandparents were either very naive or disingenuous in terms of how they addressed the issues before the Court. The expert maintained the recommendation in his report that the children should have monthly unsupervised time with the maternal grandparents without the mother or maternal aunt being present and if they maternal grandparents were unable to adhere to this requirement, the children’s time with them should cease.
The expert opined that he did not get any impression in his interview with the mother that she understood the negative impacts or psychological harm that the children were subjected to in being taken to therapeutic interventions to explore allegations that were not true. Further, he opined that the mother had no insight into the psychological harm to the children in being repeatedly interviewed by police and Departmental officers about allegations that were not true and the potential harm to the children and to the father in not disavowing people who may have cause to believe the allegations to be true. The expert opined that he did not believe the mother’s lack of insight was an issue that he expected to be addressed in therapy as it is not a matter on the mother’s radar to address.
Under cross-examination by counsel for the mother, the expert did not agree with the proposition that if the mother complies with an order that she not report or encourage other people to make reports to the Department for a period of six months that it would be in the children’s interests to then commence spending unsupervised time with her. The expert opined that he would not be confident that adherence to such an order for this period of time would reflect how things would proceed beyond that period. The expert reiterated that if it were accepted by the Court that the mother had insight into her behaviour, had changed her perception and approach to the children’s experience together with their father, there was no indication that she would support any further undermining of the importance of maintaining the children’s relationships with him and there was an atmosphere of respect moving into the future, that he would then support a transition from supervised to unsupervised time.
When cross-examined by counsel for the maternal grandparents, the expert accepted that with counselling it would be possible for the children to adjust to a regime of spending one weekend a month with the maternal grandparents, and if there was a restraint on the maternal aunt being present, it could be a very positive experience for the children.
Counsel for the maternal grandparents put certain scenarios to the expert seeking his attitude towards the maternal grandparent’s likelihood to comply with court orders, but was informed this was an evaluation to be made by the Court, informed by all the evidence.
Counsel for the maternal grandparents pursued a line of questioning in relation to the risk posed to the children by the maternal aunt’s presence at the children’s time with the grandparents and specifically enquired whether the expert was comforted by the fact that the current supervisor has not made any adverse reports in relation to the maternal aunt’s presence. The Court advised counsel that in the absence of evidence regarding the supervisor’s capacity to identify the sorts of risks identified by the expert that may be posed by the maternal aunt, the fact that no report has been made does not assist the Court.
Finally, the expert opined that there would be less harm posed to the children if time with the maternal grandparents were to be maintained in a manner which was regular, safe, contained and supported by the father. The expert expressed concern that if the children’s time with the grandparents were extending to the regime sought by them, that there would be potential for further problems. However, if there was no indication of further problems and the father was supportive of the extension of the children’s time with the maternal grandparents then the expert would strongly support that.
At the conclusion of evidence on the fifth day of the hearing, counsel for the father made application under s 69ZW(6)(b) of the Family Law Act 1975 (Cth) (“the Act”) that the Department produce an unredacted version of exhibit 25, being a helpline report dated 12 June 2020. In order to afford procedural fairness to the Department, the Department was notified of the application and the proceedings were subsequently fixed for hearing via video link on 11 March 2022 in relation to that application. No other party wished to be heard in relation to that application and orders were made for the parties to each file written submissions in relation to the substantive proceedings after the father’s application under s 69ZW(6)(b) had been determined.
Events leading to the reopening
On 11 March 2022, prior to the commencement of the court event in relation to his s69ZW(6)(b) application, the father filed an urgent Application in a Proceeding seeking a recovery order for the eldest child.
In his affidavit filed in support of that application, the father deposed that in early 2022 the eldest child did not return home from school. The father further deposes that this child was expected home at approximately 3.30pm and from 4.10pm he called her mobile phone and sent her text messages but was unable to contact her. The father contacted this child’s school and parents of this child’s friends but was unable to gain any information about her whereabouts. At 6.15pm the father was contacted by his counsel who advised him that she had been informed that the child was with the maternal aunt (who resides with the maternal grandparents) and that the child was safe but his counsel had no further information.
Following this call the father attended upon local police who attempted to contact the mother and maternal aunt. Police informed the father that a welfare check could be conducted at the maternal grandparent’s home but could not advise when the welfare check would occur.
The father deposes that at 7pm he sent a text message to the mother and maternal aunt requesting that they call him immediately. The father deposes that a few minutes later he received the following message from the mother:
“Hi [the father], [the eldest child] has run away to [the maternal aunt] and she is safe. I have not and will not approach her. The ICL has been informed too. Regards.”
The father replied to the mother’s text message, enquiring where the child and maternal aunt were and requesting that the maternal aunt call him. The father did not receive a response to this message. At approximately 8pm the father sent a text message to the paternal grandfather requesting that the maternal aunt telephone him but similarly did not receive a response to this text message.
At approximately 2am the next day the father received a telephone call from police notifying him that they had conducted a welfare check at the maternal grandparent’s home and had observed that the child was present and asleep, and that the maternal grandparents and maternal aunt were also present at the home. At the time of filing his affidavit, prior to the commencement of court on 11 March, the father was still unable to reach the eldest child and he deposes that her mobile phone appeared to be switched off.
At the commencement of the court event on 11 March (which was conducted by video link) the father sought a direction that the eldest child be delivered to Court Children’s Services at the relevant registry to ensure so far as possible that police did not need to become unnecessarily involved in the recovery of the child, particularly in light of a previous experience when a recovery order issued for all children. An order was made requiring that the parties do all things required of them for the eldest child to be delivered to the Court at 11.30am and in the event the child was not delivered by that time, the father’s application for a recovery order would be listed and heard at 12pm.
The father’s application pursuant to s 69ZW(6)(b) was subsequently heard and judgment was reserved in relation to that application.
At 12 noon the Court resumed and was informed that the eldest child had been delivered to the Court by the maternal aunt but this child was said to be resistant to passing into the care of the father. In those circumstances the father sought a recovery order which was supported by the ICL and opposed by the mother. Counsel for the maternal grandparents was unable to obtain instructions from her clients at this time and consequently their position in relation to the recovery order was unknown.
Prior to commencement of submissions in relation to the recovery order, the maternal aunt was joined to the proceedings as a necessary party pursuant to Rule 3.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. It was considered at that time and for the previous 24 hours that the maternal aunt was a person with whom the child was living and who was responsible for the care and welfare of the child. In relation to this issue the ICL tendered an email sent by the maternal aunt to the ICL the previous day in which the maternal aunt made it clear that the eldest child was then currently in her care. No submissions were made by any other party in relation to this issue. After the maternal aunt was joined as a party she was notified by email by the Court that this had occurred. The maternal aunt was also sent a link to enable her to join the court event which was being conducted by video-link.
During the course of submissions in relation to the recovery order, the Court was informed that the child had passed into the care of the father at Court Children’s Services and the application was subsequently withdrawn. The father then pressed for a change in the interim arrangements and for additional orders including injunctions restraining the maternal aunt from being present at the children’s time with the mother or maternal grandparents. He also sought an injunction requiring the mother, maternal grandparents and maternal aunt to return the children or any one of them to him in the event that they were to come into the care of any one of them in the future. The parties were put on notice that the Court was also considering the possibility that the children’s time with the maternal grandparents take place at a supervised contact centre and that the orders be varied so they no longer allowed for further time to take place by agreement with the father. The proceedings were then stood down prior to submissions concerning the application to vary the interim arrangements.
When court resumed following a short adjournment, the maternal aunt had joined the court event. Prior to hearing submissions in relation to the father’s application to vary the interim arrangements, the Court expressed the view that particular care must be taken in relation to varying the children’s interim arrangements and more information was required in relation to the events of early 2022 as the only evidence available at that time was an untested affidavit filed by the father. The Court proposed that the children’s time with the maternal family be suspended until the evidence in respect of the events of early 2022 including further cross-examination of the expert was complete and at that time the interim arrangements could be revisited in light of all the evidence. The Court expressed concern that if this path were not followed, the interim arrangements for the children may continue to be varied at each court event and this constant disruption to their lives could not be seen to be in their best interests.
Counsel for the ICL and counsel for the mother expressed particular concern about any suggestion that the children’s time with the mother be suspended. The ICL’s counsel shared the Court’s view that the children were currently in a very precarious position and submitted that if the Court were to suspend the children’s time with the mother, there would be a risk that the children may view this change as a punishment which may further exacerbate their desire to spend time with the maternal family which may cause them to take matters into their own hands.
Counsel for the mother adopted the ICL’s submissions and added further that suspending the children’s time with the mother would be particularly devastating for the eldest child, who may blame herself for the suspension and similarly may place pressure on the sibling relationship, as the other children may also blame this child for the suspension. It was also submitted on behalf of the mother that it is not in dispute that the children enjoy spending time with her and if such time were not to occur, it may make the father’s parenting more difficult.

Counsel for the father shared the concerns of the other parties in relation to a suspension of the children’s time with the mother and contended that it would be more appropriate to suspend the children’s time with the maternal grandparents.
To assist in making submissions in relation to the possibility of suspending the children’s time with the maternal family, the parties were informed that the proceedings would be fixed for further hearing for two days on 21 and 22 March 2022. The Court was then informed that under the current orders, the children were not due to spend time with the maternal grandparents until after these dates. In circumstances where there would be no practical effect to the suspension of the children’s time with the maternal grandparents, while not consenting to the suspension, counsel for the maternal grandparents did not oppose the suspension of the children’s time with her clients.
Orders were then made suspending the children’s time with the maternal grandparents on an interim basis as such an order was not opposed. Moreover, it appeared that the maternal grandparents may have contravened the orders in respect of the children’s time with them as the eldest child had stayed in their home during the events of early 2022. This time was not supervised as required and outside the time stipulated in the orders, and those orders also restrained the grandparents from spending any such additional time with the children.
The proceedings were then reopened in relation to the events of the previous 48 hours and listed for a further two days hearing on 21 and 22 March 2022. Orders were made providing the parties an opportunity to file affidavits (should they wish to adduce any further evidence concerning the relevant events) and for any such affidavits to be provided to the expert who had been arranged to attend the reopened proceedings on 22 March.
The Court then heard submissions from counsel for the father in support of the injunctions sought by him. The father submitted that an injunction should be made restraining the mother from bringing the children into contact with the maternal aunt to mitigate the risk of the children becoming dysregulated and to prevent the children’s negative views in respect of the father being triggered and causing them to reject him. The father submitted that while the events of early 2022 were at that stage somewhat unclear, there was no doubt that the eldest child had found her way to the maternal aunt when she left the father’s care and that the maternal aunt appears to be the person that the children (or at least the eldest child) chooses to engage with to reject the father and agitate a return to the mother.
The father sought an injunction restraining the maternal aunt attending the children’s time with the mother and from approaching or contacting the children in any way, including restraining her from attending at or within 200 metres of the children’s residence, schools or any place at which the children may attend or be at from time to time. The father submitted that such injunctions were appropriate in circumstances where the maternal aunt had elected not to make herself available as a witness in the proceedings or to be assessed by the expert and was particularly appropriate in circumstances where it is unclear how the eldest child came to be in her care.
In support of the positive injunction requiring the mother, maternal grandparents and maternal aunt to return the children to him in the future, it was submitted that such injunction is directed to mitigating the risk and distress to the children if any one of them engaged in the behaviour that the eldest child had engaged in, in the previous 24 hours. Counsel for the father submitted that in circumstances where the maternal family contend that the children are not at risk in the father’s care, it is in the children’s best interests that the maternal family take steps to show the children they support them living with the father.
The ICL supported the foregoing injunctions sought by the father. In support of the positive injunction requiring the maternal family to return the children to the father’s care, the ICL adopted the father’s submissions. This counsel further submitted that in circumstances where the mother’s own application is for the children to live in a week about arrangement with each parent and there is no application to vary the interim arrangement before the Court, it was important for there to be a mechanism for the children’s care if events similar to those which had occurred in the previous 48 hours were to be repeated. Counsel for the ICL submitted that the expert did not support the children being able to choose their own arrangements and it was important that the children not be given the message that they can take matters into their own hands.
The injunctions restraining the maternal aunt being present at the children’s time with the mother and from contacting or approaching the children were opposed by the mother and maternal grandparents. The mother’s main objection to such order was that the children would have no understanding of why the maternal aunt was no longer spending time with them and most likely would blame the father, which may affect their relationship with him. Alternately, counsel submitted, the children may blame the eldest child which would be devastating for that child and would put strain on the sibling relationship.
Counsel for the mother submitted that a positive injunction requiring the maternal family to return the children to the father’s care should not be made until the conclusion of proceedings on 22 March as a person can have reasonable excuse to break a court order if they are concerned about the psychological wellbeing of a child, and the Court had not yet heard evidence about whether there was such a reasonable excuse in relation to the recent events.
Counsel for the maternal grandparents adopted the submissions of the mother and asked that the Court make any orders it considered appropriate pending 4pm on 22 March or decline making any order until the completion of the proceedings on 22 March after all parties had an opportunity to present evidence before the Court.
No submissions were made by the maternal aunt as she had by that time left the court event.
For reasons given at the time, I accepted that it was appropriate to make the injunctions sought by the father restraining the mother from bringing the children into contact with the maternal aunt and restraining the maternal aunt from attending the children’s time with the mother or approaching or contacting the children.
I also accepted the submissions of counsel for the father and ICL that in the circumstances of this case it was important the children do not become empowered to determine their own arrangements, especially where significant issues of risk are raised. Taking the foregoing matters into account a positive injunction was made in the terms sought requiring that the mother, maternal grandparents and maternal aunt return the children or any one of them to the father if such a child or children were to come into the care of those maternal family members in the future.
21 March adjournment application
At the commencement of the reopened hearing on 21 March 2022 in relation to the events of early 2022, it was noted that there was no appearance by or on behalf of the maternal aunt nor had she filed any affidavit as directed. Counsel for the mother made application that the proceedings be adjourned to allow the maternal aunt a further opportunity to adduce evidence and to ensure procedural fairness if it were the case that the father was seeking orders against the maternal aunt on a final basis. The mother’s adjournment application was not opposed by any party and consequently the proceedings were adjourned until 31 May.
The injunctions and the order suspending the children’s time with the maternal grandparents made on 11 March were made pending further order and as the Court was no better informed about the events of early 2022, the Court was not in a position to reconsider those orders.
When the proceedings resumed for the final day of hearing on 31 May 2022 the recusal application under considered was made by the maternal grandparents.
The application
The application is based upon the contention that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to determining the parenting dispute on its merits. It appears from the affidavit of the maternal grandfather filed in support of the recusal application that he raises a range of matters from which the feared deviation from determining the case on its merits could be based. However, the maternal grandparents’ application for recusal and the grounds upon which it was made were somewhat clarified by counsel in submissions. Ultimately, the following matters only were identified by counsel as grounding the application:
(1)The perception of the maternal grandparents who had been present throughout the proceedings that I had made up my mind about the outcome of the proceedings before even hearing cross-examination;
(2)My curtailment of cross-examination conducted by counsel for the maternal grandparents and mother;
(3)The attitudes said to have been displayed by myself towards the maternal grandparents and mother that have caused the maternal grandparents to feel that I am not well disposed to the maternal family and that the maternal grandparents are not being heard generally and particularly in relation to the events which caused the proceedings to be reopened;
(4)The making of the orders on 11 March 2022 which had the effect of severing all contact between the children and the maternal grandparents even though there had been no findings made of wrongdoing on the grandparents’ part and their belief that these orders were unjust and made for no reason.
The last mentioned matter was not pressed as a matter grounding the application after counsel conceded that the paternal grandparents did not oppose the orders made on 11 March 2022 and that she did not make any submissions on their behalf when given an opportunity to do so.
After the maternal grandparents’ counsel had completed her submissions in relation to the remaining three matters I drew counsel’s attention to other matters raised in the maternal grandfather’s affidavit which also appeared to have been identified as giving rise to the apprehension of bias. Counsel was asked whether such additional matters were pressed. Counsel confirmed that no other matters raised in the affidavit or additional to those just outlined (1-3 above) were pressed as forming the basis of the application for recusal.
The father through his counsel opposed the application for recusal on the basis that none of the matters identified met the test for recusal as set out in the relevant authorities such as Ebner v Official Trustee in Bankruptcy (“Ebner”)[1] and Charisteas v Charisteas(“Charisteas”)[2]. In particular it was submitted that the subjective view of a litigant forms no part of the jurisprudence in relation to the relevant test for recusal.
[1] 205 CLR 337; [2000] HCA 63
[2] Charisteas v Charisteas 393 ALR 389; [2021] HCA 29
Further, it was submitted on the father’s behalf that it would be improper to allow the maternal grandparents to raise bias on the basis of the first of the matters (identified in (1) above - that they apprehended bias prior to the final hearing even commencing), as they must be taken to have waived their rights in that regard. Finally, it was submitted on behalf of the father that the authorities such as Antoun v The Queen (“Antoun”)[3] make clear that judges are entitled to express tentative views as a result of the evidence heard which can be a helpful and procedurally fair way for litigants to meet the opposing case and make submissions in relation to the relevant issues. In summary, on the basis of each of these matters the father submitted that the maternal grandparents’ application must fail.
[3] Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2
The ICL’s counsel also opposed the application and adopted the submissions made on behalf of the father. In addition, the ICL submitted that the principles for child related proceedings set out in s 69NZ are relevant, and in particular s 69NZ(4) which provides that the Court is to actively direct, control and manage the conduct of the proceedings. The ICL’s counsel also drew particular attention to the powers of the Court set out in s 69ZX(2) including the power to limit cross-examination.
The ICL’s counsel reiterated that the test for recusal is objective and the subjective views of a litigant are not relevant. Counsel drew the Court’s attention in particular to the observations of Kirby J in Johnson v Johnson[4] (“Johnson”) at [53] and to the clear statements of Mason J in Re JRL; Ex parte CJL (“JRL”)[5] and particularly at [5].
[4] (2000) 201 CLR 488; [2000] HCA 48 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
[5] Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Counsel for both the mother and maternal aunt who had also been joined by that stage of the proceedings declined to make any submissions in relation to the recusal application. Having heard the submissions I dismissed the application that I recuse myself from further hearing in the proceedings.
The Law & Discussion
In 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.
[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.
In the recent case of Charistias, the Full Court of the High Court confirmed that the two limb test articulated in Ebner remains the relevant authority in the context of family law disputes and again confirmed at [21]:
…… The hypothetical observer is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system. The hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. It would defy logic and render nugatory the principle to imbue the hypothetical observer with professional self-appreciation of this kind.
In 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.
In Strahan & Strahan (Disqualification)[6], 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. (emphasis added)
[6] [2009] FamCAFC 204

It is clear that “each case must be determined by reference to its particular circumstances”.[7] The background to the proceedings has been set out in significant detail so that the particular circumstances in which the application was made and dismissed are understood. Further, the more general context of the proceedings, being child related proceedings must also be understood.
[7] Livesey v New South Wales Bar Association [1983] HCA 17 at [18].
The context of the proceedings
As noted by the ICL’s counsel in submissions, this application is made in the particular context of child related proceedings. Orders concerning parental responsibility and with whom a child will live and spend time are parenting orders which are determined in accordance with provisions of Pt VII of the Act. Under s 60CA of the Act, “in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”. In deciding the parenting arrangements which are in the best interests of a particular child the Court is required to consider a series of identified principles, objects and considerations.
The principles for conducting child related proceedings, which includes applications for parenting orders, are set out in Div 12A of Pt VII. Relevantly, that Division includes the following:
69ZN Principles for conducting child-related proceedings
Application of the principles
(1)The court must give effect to the principles in this section:
(a) In performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b) In making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) The child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) The parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
69ZX Court’s general duties and powers relating to evidence
(1)In giving effect to the principles in section 69ZN, the court may:
(a) give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b) give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c) give directions or make orders about how particular evidence is to be given; and
(d) if the court considers that expert evidence is required – give directions or make orders about:
(i) the matters in relation to which an expert is to provide evidence; and
(ii) the number of experts who may provide evidence in relation to a matter; and
(iii) how an expert is to provide the expert’s evidence; and
(e) ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
(2) Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:
(a) about the use of written submissions; or
(b) about the length of written submissions; or
(c) limiting the time for oral argument; or
(d) limiting the time for the giving of evidence; or
(e) that particular evidence is to be given orally; or
(f) that particular evidence is to be given by affidavit; or
(g) that evidence in relation to a particular matter not be presented by a party; or
(h) that evidence of a particular kind not be presented by a party; or
(i) limiting, or not allowing, cross-examination of a particular witness; or
(j) limiting the number of witnesses who are to give evidence in the proceedings.
(3) The court may, in child-related proceedings:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal:
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
Note: This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.
(4) In proceedings under this part in which the court is required to regard the best interests of the child as the paramount consideration:
(a) subsection 126K(1) of the Evidence Act 1995 does not apply in relation to information that would:
(i) reveal the identity of a journalist’s source; or
(ii) enable that identity to be discovered;
if the court considers that it is in the best interests of the child for the information to be disclosed; and
(b) the court must not direct, under a law of a State or Territory relating to professional confidential relationship privilege specified in the regulations, that evidence not be adduced if the court considers that adducing the evidence would be in the best interests of the child.
What is said might lead to deciding the case other than on its legal and factual merits?
As set out in paragraph [86] above, although there were potentially a number of matters which it appeared may have been identified as matters which may lead to me deciding the case other than on its legal and factual merits, only four of those matters were identified as such by the maternal grandparents’ counsel and only three were ultimately pressed.
In my view, only two of the three matters upon which this application is based (being (2) and (3) identified in paragraph [86] above) require further consideration.
The first of the matters which is said might lead to a perception that I may decide the case other than on its merits is identified as the perception of the maternal grandparents that I had made up my mind about the outcome of the proceedings before even hearing cross-examination. This matter does not warrant further consideration for two reasons. First, the matter identified relates to the subjective perception of the maternal grandparents. As clearly set out in the authorities considered by the Full Court in Strahan (see [97] above) a parties’ subjective belief is not the relevant test for apprehended bias.
Further, even if the maternal grandparents’ perception could be a matter that might cause a fair minded lay observer to reasonably apprehend that I may not bring an impartial and unprejudiced mind to the determination of the parenting dispute, any perception of the maternal grandparents that was formed some time ago must be considered to have been waived. It is well established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias, if that party (or their legal representative) knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection.[8]
[8] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427.
Although the maternal grandparents do not identify exactly when they formed these perceptions or impressions, it is clear that the perception that I had prejudged the dispute was formed prior to the commencement of cross-examination, that is, sometime prior to 14 February 2022. There were six hearing dates, (being a five day trial and a further day’s hearing on 21 March) as well as court events on 11 March and 17 May all of which occurred after the maternal grandparents formed the perception that is said to give rise to the recusal application. As the recusal application was not made until 31 May and the maternal grandparents were represented by counsel at all times, they must be taken to have acquiesced in the proceedings by not taking objection based on this identified matter that arose some months earlier.
It is also clearly argued that the maternal grandparent’s perception of prejudgment was reinforced by orders made on 11 March suspending the children’s time with them. It is to be noted in this regard that there were two further courts events on 21 March and 17 May prior to the recusal application on 31 May and on neither occasion was an application for recusal made on the relevant ground being the suspension of the children’s time with the grandparents. Once again the failure to raise such an objection until 31 May must be taken as the maternal grandparents’ acquiescence to the proceedings.
Curtailment of cross-examination
The second matter that the maternal grandparents identify as one that might lead to deciding the case other than on its legal and factual merits is my curtailment of cross-examination conducted by counsel for the maternal grandparents and mother. This is a curious matter given that the mother herself through her counsel did not join the maternal grandparents in this application or wish to be heard in relation to it.
The period of time in which counsel for each of the parties cross-examined the various witnesses is set out in paragraphs [33] [34] [36] [37] [39] [42] [43] and [44]. In paragraphs [34] and [35] I also outline matters which were not permitted to be explored by counsel under cross-examination.
In an affidavit filed in support of his application, the maternal grandfather deposes that the time limitations placed on counsel for the mother and himself, “frequent interruptions, constant corrections of how to address the court and how to phrase cross examination questions (sic)” and speaking to counsel for the maternal grandparents and mother “like they were children, rather than learned members of the bar” are the matters that give rise to an apprehension of bias. Each of the maternal grandfather’s examples identified in this regard are of the nature discussed in paragraphs [34] and [35] of these Reasons.
The maternal grandfather also deposes that his counsel was refused permission to further cross-examine the father on day three of the hearing. As discussed at [35], further cross-examination was not permitted at this time on the basis that the matters to be explored under cross-examination would not assist the Court in determining the issues in the proceedings and as allocation of time for cross-examination had been covered at the commencement of the hearing and revisited over the previous days.
As noted, the mother did not join the application for recusal and as such it is not clear whether she is of the view that her counsel’s cross-examination of any witness was “curtailed”. It may be observed that the mother’s counsel cross-examined the father for three and a half hours which is considerably less than cross-examination of the mother by the father’s counsel (which took place over six hours). It does not necessarily follow however that cross-examination that took place over a shorter period was necessarily “curtailed”. Both the mother and maternal grandparents had far fewer issues to be explored with the father, given the mother’s proposal that she and the father equally share care of the children and as she did not contend that he poses an unacceptable of risk of harm to them.
As indicated in the relevant paragraphs, counsel for the maternal grandparents cross-examined the father for one hour, being ten minutes more than cross-examination by the father’s counsel of her client.
The “attitudes” said to have been “displayed” by me towards the maternal grandparents and mother which have affected the maternal grandparents’ feelings
The second of the remaining matters identified as founding a feared deviation of deciding the case other than on its legal and factual merits is described as the “attitudes” said to have been “displayed” by me towards the maternal grandparents and mother generally and particularly in relation to the events of early 2022 (when the eldest child left the father’s care and found her way to the maternal aunt who, when living with the maternal grandparents took this child into her care).
The maternal grandfather deposes to feeling “shocked, deflated, confused and disappointed” that orders were made on 11 March 2022 suspending the children’s time with he and the maternal grandmother and further deposes that such orders were made without reason or legal basis as “no finding of risk of harm” or of any “contravention” had been made.
The maternal grandfather further identifies that it can be inferred from the decision to suspend the children’s time on 11 March until the relevant events could be further explored 10 days later, I had decided the maternal grandparents had “done something wrong”. The maternal grandfather identifies this finding as a matter that may cause me to deviate from determining the dispute on its merits.
In her oral submissions, counsel for the maternal grandparents did not identify any extract from the transcript in which the alleged “attitudes” complained of are “displayed”, which are said to lead to the maternal grandparents feeling I am not well-disposed to the maternal family in general and that they are not being heard. In these circumstances I am unaware of the matter which is said to ground the feared deviation from determining the case on its merits.
In summary, the matters identified as those that might lead to deciding the case other than on its legal and factual merits are my curtailment of cross-examination conducted by counsel for the maternal grandparents (and it is argued the mother - though the mother herself does not submit that I curtailed her counsel’s cross-examination) and my implied finding that the maternal grandparents had “done something wrong” when the eldest child left the father’s care and was cared for by the maternal aunt in the maternal grandparent’s home, which led to a suspension of the children’s time with the maternal grandparents.
The second step – the logical connection between the matters identified and the feared deviation from deciding the case on its merits
Identification of the matters that might lead to deciding the case other than on its legal and factual merits is not the only matter to be considered in a recusal application. In order to succeed in such an application, the applicant for recusal must satisfy the court that there is a logical connection between the matters identified and the feared deviation from deciding the case on its merits.
In this case, the second step requires that the maternal grandparents articulate the logical connection between the two matters identified and the feared deviation.
Counsel for the maternal grandparents made no submissions in relation to the applicable law, nor did she frame her submissions in terms of the first and second step. Rather she made broad statements to the effect that as a result of the matters identified the maternal grandparents “fear” that I have prejudged the outcome, and that these matters “caused [them] to feel that your Honour just isn’t well-disposed towards the [maternal family] in general ” (emphasis added).
This broad submission about the maternal grandparents’ subjective feelings arising from my curtailment of their counsel’s cross-examination and decision to suspend the children’s time with them at the court event on 11 March 2022, falls well short of identifying a logical connection between those matters and the feared deviation from determining the case on its merits.
As set out clearly in the extracted authorities, the test for disqualification is a reasonable apprehension that I may not decide the case impartially or without prejudice, rather than that I will decide it adversely to the maternal grandparents or maternal family. The apprehension that is said to be held by the maternal grandparents appears to be that I will not decide the case in favour of themselves or the mother.
Further, the test for disqualification is formulated by reference to the fictional observer who has the qualities of being fair-minded and a lay person, or member of the public.
The fictional observer of these proceedings, while not assumed to have a detailed knowledge of the law, would be aware of the context of the proceedings and in particular that they are child-related proceedings governed by principles set out in Division 12A of Part VII of the Act. Particularly relevant provisions are those extracted at [100] of these Reasons, including that the Court is to actively direct, control and manage the conduct of the proceedings and may give directions or orders limiting or not allowing cross-examination of a particular witness.
The fictional observer would also be aware that five days had been allocated for the final hearing of these protracted parenting proceedings and that an appropriate time had been given to each counsel for cross-examination of witnesses. This time was allocated having regard to each witness’ evidence and the matters identified as in dispute and having regard to the nature of the orders sought by each of the parties in accordance with each party’s Outline of Case. The fictional observer would also be aware that this allocation of time was reconsidered at various points in the proceedings and adjusted as the issues in the proceedings changed and the evidence emerged.
Having regard to the principles for the conduct of child-related proceedings and practice in this jurisdiction generally, and having regard to the Court’s task (to make orders which are proper and in the best interests of the children) the fair-minded lay observer would understand that it is in accordance with ordinary practice for cross-examination by counsel for the maternal grandparents of the father to be “curtailed” as set out in [34] and [35] of these Reasons.
Although counsel for the maternal grandparents appeared to consider that it was important to establish that the grandparents were “sensible people”, this matter had little bearing on the best interests the children. Counsel for the maternal grandparents even appeared to recognise this herself when at the commencement of the third day she sought to re-open her cross-examination of the father and submitted that cross-examination should not have been limited to issues relating to the best interests of the children and that her role also included demonstrating to the Court that her clients were “sensible people”.
Although the fictional observer is not a qualified lawyer, the observer would understand that cross-examination is not an opportunity to have a general discussion with a witness about a particular topic, and that a witness should not be asked questions which were not within his knowledge or which caused him to speculate on the actions of other people. The fictional observer would also understand the difference between cross-examination by way of questions and matters to be put in submission. Accordingly, it would be understood by the fictional observer that the matters identified by the maternal grandparents as curtailment of their counsel’s cross-examination have no logical connection with me determining this parenting dispute other than on its factual and legal merits.
So far as alleged curtailment of cross-examination conducted by the mother’s counsel is concerned, it has not been established by the maternal grandparents that this occurred. Even if it could be identified that I managed cross-examination by the mother’s counsel in a similar manner to my approach with the maternal grandparents’ counsel, the mother’s counsel does not contend that this might give rise to an apprehension in the fair-minded lay observer that I will determine the case other than on its merits.

As previously discussed, the maternal grandparents’ counsel did not identify any extract from the transcript in which I was said to have “displayed” “attitudes” which are said to ground the feared deviation other than when I made orders on 11 March 2022 suspending the children’s time with the maternal grandparents which they contend contained the inference of an adverse finding against them.
So far as the last-mentioned matter is concerned, it is trite to say that the Court cannot make findings at an interim hearing and as such the substantive proceedings were reopened to allow the events of early 2022 to be further explored. Further, it is to be remembered that while counsel for the maternal grandparents did not consent to the orders of 11 March suspending the children’s time with them, such proposed orders were also not “actively oppose[d]” and no submissions were made about why such orders should not be made, despite counsel being given an opportunity to do so.
Finally, as explained earlier when considering the question of whether the maternal grandparents had acquiesced in the proceedings, I am of the view that they had waived any objection to my disqualification on the basis of the orders made on 11 March 2022. There were two further court events including a further day of hearing after this date and prior to the recusal application being made. Moreover, once again, the only matters raised by the maternal grandparents through submissions made on their behalf relate to their subjective perception arising from the 11 March court event that I was not favourably disposed to the maternal family in general.
In summary, the entire recusal application is based on the subjective perception of the applicants for recusal, as opposed to a reasonable apprehension held by a fair-minded lay observer. The applicants for recusal have not established any logical connection between the matters identified and a feared deviation from determining the parenting dispute on its merits. Having failed to make this logical connection, the application for recusal must fail and accordingly on 31 May 2022 it was dismissed.

I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 14 September 2022

File number(s):	SYC 2881 of 2013
Judgment of:	HANNAM J
Date of judgment:	14 September 2022
Catchwords:	FAMILY LAW - DISQUALIFICATION – Apprehension of bias – Where maternal grandparents contend curtailments of cross-examination and attitudes displayed cause them to feel the Court is not well disposed to maternal family – No submissions framed in terms of the “first” or “second” test in disqualification applications on the basis of apprehended bias – Application of the relevant two-step test – Application dismissed
Legislation:	Family Law Act 1975 (Cth) ss 69ZN, 69ZX
Cases cited:	Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2 Charisteas v Charisteas 393 ALR 389; [2021] HCA 29 Ebner v Official Trustee in Bankruptcy 205 CLR 337; [2000] HCA 63 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Livesey v New South Wales Bar Association [1983] HCA 17 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Strahan & Strahan [2009] FamCAFC 204
Division:	Division 1 First Instance
Number of paragraphs:	133
Date of hearing:	31 May 2022
Place:	Parramatta
Counsel for the Applicants:	Ms Reid
Solicitor for the Applicants:	Litigant in person
Counsel for the First Respondent:	Ms Tabbernor
Solicitor for the First Respondent:	Litigant in person
Counsel for the Second Respondent:	Mr Givney
Solicitor for the Second Respondent:	Apex Legal
Counsel for the Third Respondent:	Mr Cook
Solicitor for the Third Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Ms Shea
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 2881 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR C CIMORELLI First Applicant MS D CIMORELLI Second Applicant
AND:	MR WENLACK First Respondent MS CIMORELLI Second Respondent MS N CIMORELLI Third Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HANNAM J
DATE OF ORDER:	31 May 2022