Whitehill & Talaska (No 4) - [2025] FedCFamC2F 325

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whitehill & Talaska (No 4) [2025] FedCFamC2F 325

File number(s): MLC 3002 of 2024

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 18 March 2025

Catchwords: FAMILY LAW – Application for costs in a parenting case – Judge’s duty and power to control the proceedings – Two applications for recusal – Actual bias and apprehended bias alleged – Both applications dismissed and reasons reserved – Decision delivered the day after the end of the trial, Christmas Eve, with costs and reasons for dismissal of recusal applications reserved – These are those reasons.

Legislation:
Evidence Act 1995 ss 11 & 26

Family Law Act 1975 (Cth) ss 65DAAA, 69ZN, 69ZQ, 69ZX & 117

Cases cited:
Acheson & Begbie (No 2) (2024) FLC 94-176

Lennon & Sanil (2020) FLC 93-962

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48

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

Riddler & Riddler(No 2) [2024] FedCFamC2F 751

Whitehill & Talaska [2024] FedCFamC2F 768

Woodside Energy Limited v Australian workers Union [2022] FCA 1391

Division: Division 2 Family Law

Number of paragraphs: 119

Date of hearing: 22 November 2024, 20 & 23 December 2024

Place: Melbourne

Counsel for the Applicant: Ms Swann

Solicitor for the Applicant: Saunders Family & Estate Lawyers

Counsel for the Respondent: Mr Willee

Solicitor for the Respondent: M C Lawyers & Associates

Table of Corrections

1 April 2025 In paragraph 15, at the quote of paragraph 105, the word “not” has been inserted between the words “do” and “regard”.
ORDERS

MLC 3002 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WHITEHILL

Applicant

AND:
MR TALASKA

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

18 MARCH 2025

THE COURT ORDERS THAT:
1.The oral application of the Father, Mr Talaska, for costs of the proceedings up to and including the hearing on 22 November 2024 be and is dismissed.
2.The reserved reasons for the dismissal, on 24 December 2024, of two applications for recusal of the sitting Judge be and are published to the parties.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 1 April 2025
JUDGE O’SHANNESSY
Introduction & background

The final hearing in the matter of Whitehill & Talaska was a case concerning whether existing final parenting orders could be reconsidered pursuant to section 65DAAA of the Family Law Act 1975 (Cth) (‘the Act’) and the substantive proceedings of whether, and if so how, parenting orders about the parents 3-year-old child should be varied. I concluded the final hearing of the substantive proceedings when I delivered oral reasons on 24 December 2024. The final hearing had proceeded over Friday 20 December 2024, via electronic hearing, and Monday 23 December 2024 in a courtroom of the Melbourne Registry.
The settled transcript of those oral reasons was made available to the parties on 17 January 2025. The background can be ascertained from the settled reasons for the final orders made 24 December 2024 in Whitehill & Talaska (No 3) FedCFamC2F 1890.
Three major matters remain outstanding
When making those final orders on Christmas Eve and delivering reasons for those orders I reserved three major matters because of the time available. I reserved my decision and reasons regarding the application of the respondent father (‘the Father’) for his costs of these proceedings up to and including the adjourned hearing before me on 22 November 2024. I also reserved my reasons regarding the first application of the Father, made at about 10.35 am on Monday 23 December 2024, that I disqualify or recuse myself from the further hearing and vacate the trial then well underway. I heard the application, considered it and dismissed it and reserved my reasons. I also reserved my reasons regarding the second application of the Father, made at about 11.05 am on Monday 23 December 2024, that I disqualify or recuse myself from the further hearing and vacate the trial then a little more advanced. I had also dismissed that application and reserved my reasons.
THE FATHER’S APPLICATION FOR COSTS
It is convenient to deal with the outstanding costs application first in these reasons. I had ruled on 22 November 2024 when vacating the listed final hearing and adjourning all extant applications to 20 December 2024 that I would accept the oral application of the Father’s counsel for costs up to that point.[1] I did not require the application to be put in writing.
[1] Although there was no objection, I waived of the usual requirement, or common direction, of a costs application being on an application in a case supported by affidavit.
The substance of the Father’s application for costs was that, because the Father had been entirely successful, or almost entirely successful, in obtaining enforcement orders on 27 May 2024[2] (where he had been the respondent to the Mother’s application to suspend or vary the quite recent final orders) that reinstated the extant final orders that set out the time the parties’ child would spend with the Father. In early 2024, following a confrontation between the Mother’s father and the Father at a spend time changeover, the Mother had unilaterally tried to impose a Police Station changeover for all time between the Father and the child. Initially the Father complied, but then insisted on changeover as provided in the orders – a McDonald’s Restaurant changeover. The Mother did not make the child available. After the Mother issued proceedings, the Father acquiesced to the Police Station changeover for the time being. The Mother then changed her position to no time occurring until after a psychiatric examination of the Father had demonstrated he was not a danger to her or the child.
[2] The reasons for that decision are Whitehill & Talaska [2024] FedCFamC2F 768.
I heard the matter on 22 May 2024, reserved my reasons, and then delivered orders on 27 May 2024. It was common ground that the Father continued to be in receipt of a disability pension because of his mental health and the Mother alleged the events of January 2024 demonstrated a serious deterioration in the Father’s mental health that meant Mother and child were not safe under the extant final orders. I dismissed the Mother’s application to suspend the Father’s time with the child and ordered the parties abide by the extant final orders. I also ordered the Father to undergo a psychiatric examination and file and serve a report of that examination, at his expenses in the first instance. My reasons for so ordering are recited in Whitehill & Talaska [2024] FedCFamcC2F 768.[3]
[3] My observations about section 65DAAA of the Act were disapproved of by the Appellate Division of the Federal Circuit and Family Court of Australia (‘the Full Court’) on 19 December 2024, made available to Judges on 20 December 2024.
As ordered, the Father underwent a psychiatric examination and provided a report of the psychiatrist’s opinion. The report did not support the Mother’s allegation that the Father’s mental health had deteriorated so as to preclude his ordered time with the child. After receipt of the report, the Mother reasonably promptly abandoned her application to suspend the Father’s time but informally indicated that she would seek what she said were minor variations to the orders to facilitate her working full-time rather than part-time. The Father foreshadowed an application for costs.
The substance of the Father’s cost application was that the Mother had unreasonably suspended his time necessitating court intervention, with substantial legal costs he could ill afford, for him to obtain the dismissal of her claim so as to reinstate his time. Further, he said the Mother had demonstrated a motivation to interfere with his relationship and a failure to support his relationship and the application to the Court was similarly motivated. Further on the May hearing, it was asserted, the Mother had been entirely unsuccessful and the Father’s position had been entirely vindicated by the expert psychiatric report subsequently received, and then, disingenuously, the Mother sought to amend her application to facilitate her moving to the other side from where she had lived (from Melbourne to City L).
Section 117 of the Act provides:
Section 117 Costs
(1)Subject to subsection (2), …each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections   (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)       the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)       such other matters as the court considers relevant.
It is convenient to deal with each provision in turn.
Section 117(2A)(a): Parties financial circumstances
I have only a little information about the parties’ finances. The Mother will earn a before tax salary of about $122,000 per annum and the Father will get by on the disability pension and limited part time work. The Father pays about $40 per month in child support. Neither could afford this litigation. Neither is impecunious and even if either were so, impecuniosity does not bar an order for costs against a person.
Section 117(2A)(b): Legal Aid?
I have no evidence either party is in receipt of legal aid.
Section 117(2A)(c): Conduct of…the proceedings…
The thrust of the Father’s case, and I infer his case on costs, was that the Mother’s conduct of unilaterally ceasing to facilitate the court ordered time, then bringing an applicant to suspend that order, then after an (unnecessary) report psychiatric vindicating the Father, and late in the piece, the Mother had the temerity to amend her application to facilitate her relocation.
Having, for what she says was good reason, suspended the child’s time, the Mother reasonably promptly brought the dispute to court, as she should have in those circumstances. Having made allegations, in florid terms, of the effect on him of the Mother’s conduct in an application for an intervention order, the Father’s evidence on the interim hearing did not properly deal with that circumstance.
In the May urgent decision I had observed:
102.After the hearing I raised with the parties by email that if an order for psychiatric examination was to occur, whether it should be by an independent single expert and whether it should be at the parties’ joint expense. The parties accepted that if there was to be a psychiatric examination that it should be by a single expert and at the parties’ joint expense.
103.I accept the force of counsel for the Mother’s submission that a psychiatric examination will likely determine, or at least assist, the section 65DAAA application one way or the other. Such an order does not itself constitute a “reconsideration” of the final orders. Although I am not satisfied I can accept the Mother’s opinion that the Father’s mental health has deteriorated on the section 65DAAA question or in this urgent interim hearing, I do not dismiss the Mother’s opinion and anxiety about the Father’s mental health deterioration. I am satisfied that the Father’s current mental health should be considered by an independent expert at the joint expense of the parties for the purpose of the pending section 65DAAA hearing. I also take into account that for one party to unilaterally impose a drastic change to the recently made final orders would of itself likely impose considerable emotional distress on the other parent. I am satisfied it would be deeply emotionally distressing to the Mother were the Father to impose on her a drastic change to the final orders, like retention of X after a spend time visit.
104.I also take into account the opaque explanation and submissions from the Father’s counsel as to just what the Father meant or intended to convey about his emotional state by his assertion in his Intervention Order application and the opaque nature of the evidence of just what the Father attended Hospital for in early 2024, noting this was after the Mother had ceased to make the child available as provided by the orders.
105.I am satisfied I have power to do so as I do not regard such an order as being a “reconsideration” of the final orders, but a necessary procedural order to facilitate the section 65DAAA inquiry.
The Father did not adequately explain in evidence or submission what his comments in his intervention order application, or those he said he had made during his hospitalisation, meant. The evidence and submissions left a lacuna. The Mother’s concern was partly grounded in the common ground fact that the Father had previously suffered from poor mental health, at least to the extent that his condition qualified him for a social security disability pension.
The Father’s position of his mental health being adequate for his parenting role was ultimately vindicated by the psychiatric report, obtained at the considerable, but equal expense of the parties.
Section 117(2A)(d): Proceedings…necessitated by failure… to comply… with orders?
The Mother brought the proceedings but the moral, and parenting, obligation was upon her to do so when she had unilaterally ceased to facilitate the orders. She had failed to comply with the orders. The Father had to respond. He was forced into court.
Section 117(2A)(e): Any party… wholly unsuccessful?
In the May hearing the Father was largely but not wholly successful. The Mother was largely but not wholly unsuccessful. The extant final orders were re-instated and against the submissions of the Father a jointly funded psychiatric report of the Father was ordered. The report vindicated the Father’s position about his health and the Mother promptly took it into account and ceased to oppose the Father’s time with the child.
Then shortly after, in the lead up to, and at, the November hearing[4] the Father opposed the Mother being permitted to amend her application. He was unsuccessful and she was permitted to amend her application which was then, in the December trial, almost entirely successful and successful against the Father’s strong opposition over two days of hearing and a third for oral res tempore reasons.
[4]Whitehill & Talaska (No 2) [2024] FedCFamC2F 1756.
By the end of the November 2024 hearing both parties had been partly unsuccessful.
Section 117(2A)(f): Offers…to settle?
No relevant offers are in evidence.
Section 117(2A)(g): Other matters the court considers relevant?
At the time of ordering that the Father be psychiatrically examined, I ordered as follows:
The parties do all acts and things to appoint a single expert witness in accordance with the rules of the Court, for the purpose of undertaking a psychiatric assessment of the Father as soon as practical (‘the single expert’), and the parties are to each pay one half of the cost of that assessment at the time and in the manner as requested by the single expert witness.
The, no doubt expensive compared to the parties’ incomes but good value, psychiatric report has benefitted both parties generally and in this litigation. The Mother has benefitted from the greater peace of mind that the independent psychiatric report ultimately provided to her and enabled her acceptance of the benefit to the child of a relationship with her Father that in turn has saved her the substantial cost of what would have been a final hearing over more than two days had all issues in play at the May 2024 hearing remained in dispute. The Father has benefitted from the report demonstrating that his mental health was not a risk to the welfare of the child, and that his assertions consistent with a deterioration in mental health in his application for the intervention order were not material to his mental health and that, in turn, has saved him the further substantial cost of what would have been a final hearing over more than two days had all issues in play at the May 2024 hearing remained in dispute.
CONCLUSION AS TO COSTS
Both of these good parents have pursued, at different times, unsuccessful applications or responses, and at different times been largely but not entirely unsuccessful and, by litigation, put the other parent to very substantial costs. In all those circumstances I am not satisfied that the initial or starting position of each party paying their own costs should be departed from. As to the costs of the expert psychiatric examination, where each party was ordered to, and I infer has, paid one half of that examination, I am not satisfied there are sufficient reasons, on balance, to vary that starting position in the Rules.[5]
[5] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Rule 7.06.
I will otherwise dismiss the Father’s application for costs.
THE RECUSAL APPLICATIONS
On the second day of the last and final hearing there were two recusal applications where I dismissed each application and reserved my reasons. These are my reasons.
THE LEGAL PRINCIPLES
It is convenient to recite applicable principle at this time. The principles relating to actual bias or actual pre-judgment, although consistent, are not the same. It is convenient to deal with the principles of actual bias first.
Actual Bias
The test for actual bias of the decision maker is different to the well-known test of apprehended bias. That much is clearly set out in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 at [33] where the High Court said:
33.Because the test is objective it is important to keep an enquiry about apprehension of bias distinct from any enquiry about actual bias. An enquiry about actual bias in the form of pre-judgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the Judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias[6].
(emphasis in the original)
[6] This passage was recited and applied by Schonell J in Riddler & Riddler (No 2) [2024] FedCFamC2F 751.

The distinction between actual bias and apprehended bias is observed in Lennon & Sanil (2020) FLC 93-962 (‘Lennon & Sanil’) the Full Court[7] observed as follows:
17.Actual bias can only be established by proof of high probability that the judge’s conduct was inconsistent with any fair performance of judicial duty (R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116). Inferentially, the judge’s mind must have been committed to a conclusion already formed and incapable of alteration (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [101])….
[7] Of the Family Court of Australia.
In that case (and with factual observations that only pertain to only that case) the Full Court demonstrated the “requisite high standard” and how the applicant for recusal bore burden of persuasion and proof necessary for evidence to establish actual bias and the relevance of observations of demeanour during the hearing:
17.…Patently, on any objective perusal of the extracted oral comments and the written reasons, none could reasonably be said to satisfy the requisite high standard of proof of inviolable prejudgment…
…
19.The primary judge’s comments about the appellant touching her hair during cross-examination were arguably unnecessary, but no more. It placed on the record what the primary judge could observe, which would not otherwise have been recorded, and gave the appellant a chance to compose herself when the attention was drawn to her demeanour. The appellant was both a party and a witness under cross-examination whose behaviour was obvious to all. She was not an interested third party in the gallery, unseen by the parties or their lawyers, so the primary judge was not obliged to record observations of the appellant’s demeanour during the trial as a matter of procedural fairness (Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304), but there was no reason why his Honour ought not have done so.
Apprehended bias
The Full Court in Lennon & Sanil went on to recite the test relating to apprehended bias:
18. For the appellant to instead sustain her complaint about the primary judge’s apprehended bias, she had to demonstrate that a fair-minded lay observer might reasonably apprehend from the identified conduct that his Honour might not bring an impartial mind to the resolution of the dispute (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345; Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) at 492).
A recent and helpful statement of apprehended bias principle was in Woodside Energy Limited v Australian workers Union [2022] FCA 1391 where Katzmann J said at [48] - [49]:
The test for a reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not have brought an impartial and unprejudiced mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. The question is to be answered having regard to the legal, statutory and factual contexts in which the decision is made: Isbester v Knox city Council [2015] HCA 20; (2015) 255 CLR 135 at [20] (Kieffel, Bell, Keane and Nettle JJ). The hypothetical observer is taken to know the nature of the decision, the context in which it was made, and the circumstances leading to it: Isbester at [23]. A two-step process is involved. The first requires the identification of what it is said might lead the decision-maker to decide the case other than on its merits. The second requires the articulation of the logical connection between the suggested reason and the feared deviation from that course. See Ebner at [8].
And the observations of Schonell J about apprehended bias in Riddler & Riddler (No 2) [2024] FedCFamC2F 751, bear repeating. His Honour observed:
27The apprehended bias test requires the establishment of two limbs or what has been referred to as “the double might test” (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”)).
28In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369, Keifel CJ and Gageler J observed that application of the Ebner test entails the following:
38.(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
29In the context of actual bias, the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 observed:
32.As the plurality in Johnson v Johnson explained, "[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”.
33.Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias…
A finding of apprehended bias is not to be reached lightly, it must be “firmly established”. See Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342 (‘Re JRL; Ex Parte CJL’) at 352 (Mason J); at 364 (Wilson J); at 371 (Dawson J). There must be “strong grounds for inferring the existence of a reasonable suspicion”: Re JRL; Ex Parte CJL at 359-360 (Wilson J).
28.The principle of law governing this matter is not in doubt. It is that a Judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the question involved in it: In re Watson; Ex parte Armstrong (1976) FLC ¶90-059 at pp. 75,270-75,273; (1976) 136 C.L.R. 248 at pp. 258-263; Livesey v. New South Wales Bar Association (1983) 151 C.L.R. 288 at pp. 293-294. It has been recognised that in a case such as the present, where there is no allegation of actual bias, the test of reasonable suspicion may be a difficult one to apply involving questions of degree and particular circumstances which may strike different minds in different ways: Re Lusink; Ex parte Shaw (1980) FLC ¶90-884 at p. 75,586; (1980) 55 A.L.J.R. 12 at p. 16; 32 A.L.R. 47 at p. 54; Livesey at p. 294. A Court of review must be careful not to exaggerate the significance of actions or statements made by Judge in the course of a proceeding. There must be “strong grounds'” (Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 C.L.R. 100 at p. 116) for inferring the existence of a reasonable suspicion….
The well-known standards or context that must be grasped in a recusal application were addressed by Riethmuller J in Acheson & Begbie (No 2) (2024) FLC 94-176 and included the following passage:
130.The test must be applied in the context of modern litigation, taking account of the need for active case management which demands that judges no longer remain as detached as a cricket umpire or “as inscrutable as the Sphinx”, until pronouncing judgment. Exchanges between judges and counsel “are not on that account alone to be taken as indicative of prejudgment”, indeed “counsel are usually assisted by hearing those opinions”: Johnson v Johnson (2000) 201 CLR 488 at [13]. In the context of this Court, the government has placed considerable importance upon “achieving timely and efficient outcomes for litigants” by making this an “overriding principle” (s 67(1)(a) of the FCFCOA Act), and in parenting cases requiring the court “to actively direct, control and manage the conduct of the proceedings”: see s 69ZN(4) of the Act. Of course, this does not derogate from the fundamental requirements that cases be determined according to law. The basic requirement that there be a just resolution according to law remains (s 67 of the FCFCOA Act), as would be constitutionally demanded of a superior court in any event.
131.Importantly, as the High Court identified in Ebner at [8], “The apprehension of bias principle admits the possibility of human frailty. Its application is as diverse as human frailty”. The test does not require a standard of perfection from a judge and nor could it, given the difficult task of managing sharply contested hearings and trials: sometimes even Homer nods.
Those were the legal principles that applied when hearing the recusal applications.
Because the recusal applications included actual bias and also relied upon the cumulative or “in aggregation”[8] effect of a number of court events it is necessary to recite or note part of the history of the final hearing, including the following.
[8] In Lennon & Sanil at [16] the Full Court considered behaviour ‘in aggregation”.
The May 2024 Decision
Having heard the interim hearing on 22 May 2024 (at a time when the extant orders were not being complied with by the Mother), on 27 May 2027 I delivered my decision dismissing the Mother’s application for suspension of the Father’s time and ordered the time arrangements commence forthwith, as the Father sought, and reserved my reasons. But I also acceded to the Mother’s application for a psychiatric examination and report (‘Dr K’s report’) of the Father and reserved my reasons.[9] I delivered my reasons on 5 July 2024. Those reasons included the comment recited above in the costs decision as to the lacunae in the evidence and submissions as to the Father’s state of mind when attending hospital in early 2024.
[9] Whitehill & Talaska [2024] FedCFamcC2F 768.
The 22 November 2024 Decision
The matter was before me again on 22 November 2024, originally listed for a section 65DAAA hearing but, in the meantime, the Mother had received and accepted the conclusions of the report of Dr K filed on 19 August 2024, and abandoned her case for suspension of the Father’s time. But she announced (back on 1 October 2024) that she sought to vary the existing orders to facilitate her working and living in the City L area. She later served an amended application to give effect to that proposition. The Father opposed reliance on the amended application and, in the alternative, if leave to rely on it was permitted, sought an adjournment for many months to permit filing of responding material before a final hearing. I gave the Mother leave to rely on the amended application. I did so as I regarded that as necessary to deal with, or quell, the live controversy between the parents as opposed to what was previously the controversy but no longer was. I consolidated the questions of section 65DAAA and the merits of the substantive competing cases.
On the Father’s application, I adjourned the matter to permit the Father to file further material. I did not adjourn for many months as he sought, but against the clear objection of the Father’s counsel,[10] listed the hearing for about 4 weeks later, on 20 December 2024 and that was about 11 weeks since the Mother formally put the Father on notice of her intention to take up different employment and vary the final orders to accommodate her then proposed new job and accommodation.
[10] Whitehill & Talaska (No 2) [2024] FedCFamC2F 1756.
The final hearing commences
The final hearing, or trial, commenced on 20 December 2024 by electronic hearing[11] and on that Friday a number of events occurred, including the following. The matter commenced at 10.05 am and by 10.16 am, setting the tone of the electronic courtroom for the day, the Father’s counsel had thrice[12] criticised or chided the Mother’s counsel, or counsel and solicitors, on points of procedure and he had then been very mildly chided once by the Mother’s counsel.
[11] Because I had tested positive for covid and was working from home electronically.
[12] Transcript page (‘TP’) 4 lines 6 & 7, TP 4 lines 26 & 27 and TP 5 lines 3 & 4.
The first alleged slur
To deal with another matter listed that day,[13] this matter was adjourned from 10.16 am to 10.59 am. The Mother’s counsel, in opening, mere moments after the case resumed, observed: “(I will)…take your Honour through what the existing final orders say and the effect of my client’s proposed variations to those orders. Because I think it it’s important that both your Honour and the other party understands exactly what that is…”[14] This comment prompted the Father’s counsel to interrupt his opponent’s opening and complain about the “other party understands” comment and the complaint/s included:
“I don’t appreciate from a learned friend …trying to suggest the other party doesn’t understand….I ask my learned friend to retract that slur…”[15]
[13] The Court is usually double listed.
[14] TP 7 lines 8-10.
[15] TP 7 lines 18-21.
At this point in what turned out to be vain attempt to lower the temperature in the electronic courtroom, I observed:
JUDGE:Thank you, Mr Willee. You will get an opening yourself. And I must say, I didn’t understand it to be a slur, …I think (that) is important.
MR WILLEE: Well, she said it’s important that the other side understand the difference.
JUDGE: Yes. Yes.
The expression of outrage continued, while I attempted to initially deflect, and then interrupt, counsel from the course of strongly made complaints against his fellow counsel that included:
…who does (counsel) presume to think she is…How rude…(that comment) …should not receive any curial approval for that…I just ask (that you warn) her about making statements…about her opposing counsel….I’m utterly dissatisfied…I warn (counsel)….I’ve noticed her earlier attitude…[16]
[16] TP 7 & 8 lines 39-TP 8 line 26.
Counsel muted for short time
My attempts to deflect or calm counsel were entirely unsuccessful and counsel appeared to intend to continue. I attempted to deflect counsel during his complaints on about half a dozen occasions with interruptions including, “…all right, all right…”[17] and “…can I just ask…”[18]
[17] Twice, TP 8.
[18] Thrice, TP 8.
At this point I asked my Associate to mute the Father’s counsel and, when he stopped talking a few moments later, he was unmuted, and I am satisfied that the parties and both counsel were able hear all that was said. This exchange caused only passing and mild irritation, and the Court and counsel moved on to the next issue in dispute.
Rulings in Father’s favour
Against objection by the Mother’s counsel, I permitted the Father to rely on the family report (in parts critical of the Mother) obtained in the prior proceedings, notwithstanding that the report writer was not to be cross-examined, and I delivered short oral reasons for that decision in the running.[19] After the ruling, notwithstanding the ruling in his client’s favour, counsel for the Father attempted to, and did, comment on the ruling, effectively adding a further submission to the point already ruled in his favour and I asked counsel to “…stop. You won the argument”. I took into account that parties and counsel can sometimes miss the day-to-day cues of the courtroom in an electronic hearing.
[19] Transcript page (‘TP’) 9 & 10.
Against objection by the Mother’s counsel, I permitted the Father to rely on three affidavits rather than one consolidated affidavit.
I accepted an objection from the Father’s counsel that the Mother could not rely on a letter, or submissions about it, that I ruled was part of settlement negotiations and struck out the offending paragraph.[20] It was not necessary to rule on the allegation of the Father’s counsel that the reliance on the communication in outline of case was, “entirely inappropriate for a member of counsel...” The following exchange then occurred:
[20] TP 26 & 27.
JUDGE:                   What am I looking at?
MR WILLEE:             Paragraph (18).
JUDGE:                   Yes. I’m placing no weight on that.
MR WILLEE:           Well, I ask that Ms Swann withdraw it.
JUDGE:                   Yes ..... I’m not placing any weight on that because…
MR WILLEE:             I appreciate that, your Honour. But it’s on the court record.
JUDGE:                   Yes.
MR WILLEE:             I note that Ms Swann - - -
JUDGE:                   Hang on.
MR WILLEE:             - wasn’t even involved in the - -
JUDGE:                   Hang on. Stop. (Counsel stopped talking)
Ms Swann, I can’t go near settlement negotiations unless there’s an application under the Evidence Act, can I? I understand parties’ frustrations when things don’t settle how they would like them to. But I just can’t go there, can I?
MS SWANN:             No, I’m not proposing that .....
JUDGE:                   Thank you. So can I…treat paragraph (18)…
MS SWANN:             …matter of evidence obviously
MR WILLEE:             Then withdraw it.
JUDGE:                   Hang on.
MR WILLEE:             Withdraw it. Withdraw it, madam.
JUDGE:                   No, Mr Willee.
MR WILLEE:             Withdraw it.
JUDGE:Mr Willee, stop. Don’t snatch defeat from the jaws of victory. You’ve got an open door. Don’t stick your foot in it. Ms Swann, can I treat paragraph (18) as struck out?
MS SWANN:             If your Honour pleases.
JUDGE:                   Thank you. All right. Paragraph (18) is struck out…
I note that I had, back in the November 2024 hearing, ruled that I would hear the oral application by counsel for the Father, for the costs of the Father up to and including the November 2024 hearing, waiving the requirement for such an application to be in writing or on formal application.
Umbrage is taken
Following the above exchange, I then heard counsel for the Father’s objection to the Mother, her solicitor and counsel being in the same room (counsel’s chambers) for cross-examination. The complaint included only partly veiled criticism of the Mother’s solicitor and counsel for permitting that situation to arise. Almost immediately, the Mother’s counsel proposed finding another and separate room for her client to give evidence from.
In that short discussion, having courteously observed courtroom etiquette in difficult circumstances to that point, the Mother’s counsel opined that, “…I sort of take umbrage at that... ”. I then observed that I was not suggesting “equivalence” but requested both counsel to not take “umbrage,” to demonstrate a pachydermatous nature, to treat each other courteously and I asked that bar table sniping cease.
Counsel appeared to heed my request and the court adjourned while the proposal of a separate room was investigated.
Private comments overheard & apology
During that break, while the court was adjourned, I failed to press the “leave” button of the “Teams” function and the parties and counsel were able to hear laughter and my grumbling, not intended for the parties or any of the lawyers. But I am satisfied the parties heard me laugh, and in an exasperated tone utter or grumble words to the effect, intended to be a private conversation, “I share (counsel’s) umbrage… but (indistinct) don’t poke at your opponent…”
I am satisfied the overheard words could be regarded as criticism of both counsel. After a short break, the Father’s counsel was given a further ten minutes to take instructions on whether “an application” (and I understood an application for disqualification) should be made. When the matter resumed, both counsel were given an opportunity to make any “application” they saw fit. No applications were made. I apologised to counsel and my apology was accepted. The hearing resumed.

Neither party made any application for recusal or otherwise and the hearing proceeded.
Reasons for limiting cross-examination
At the start of the day counsel had estimated that cross-examination of the other party would take about 2 hours, and I ruled that, subject to later applications, only about 1 ½ hours would be permitted.
In the first proceedings (and on affidavit in the May proceedings) the Mother had alleged that she had been subject to family violence during the relationship. That was not part of her case as put in the hearing on the papers in the May 2024 hearing. It was not part of the Mother’s affidavit of evidence in chief in this trial. But, notwithstanding that, a considerable part of the cross-examination of the Mother was taken up with an attempt to demonstrate that her previous statements about being subjected to non-physical family violence were false and hence her evidence was not credit worthy. That attempt had, so far, been entirely unsuccessful and the ongoing cross-examination was, to my mind, not assisting me or advancing the Father’s case, rather was putting evidence before the court that was possibly consistent with, and tended to prove, the previous allegations of family violence. After more than an hour, and applying the second principle for conducting child-related proceedings of section 65ZN(4) of the Act, I intervened to limit the time for further cross-examination in the following discussion:
JUDGE:  … Mr Willee, what other topics have you got yet to do?[21]
[21] This was at about 1.35 pm.
MR WILLEE:             Well, we will be going back to the [Ms R] report, your Honour. Other than that, not a lot. But on this topic - - -
JUDGE:                   Thank you. I’m going - - -
MR WILLEE:             - - - I’ve got a few questions.
JUDGE:I’m satisfied that you can cover those topics within 15 minutes. We’ve been going for an hour and five minutes, so I will permit you to have another 15 minutes, which will give you until - - -
MR WILLEE:             Yes. No, I would ask…
…
MR WILLEE:             I would ask that you give me the full two hours, please, your Honour.
JUDGE: Yes. And I’m ruling against you on that. It’s - - -
MR WILLEE:             There’s no way I could complete my cross-examination of this witness in 15 minutes.
JUDGE: All right. I can live with 20 minutes, Mr Willee.
MR WILLEE:             No, I requested that I be – I indicated to you at the outset, your Honour, that it would take two hours.
JUDGE: Yes. You thought you could compress - - -
MR WILLEE:             I think two hours is reasonable - - -
JUDGE: - - - it to one and a half, and - - -
MR WILLEE:             I said I could truncate it to that.
JUDGE: Yes.
MR WILLEE:             But I would - - -
JUDGE: Mr Willee, I’m giving you until 1.55. You can use that time with relevant cross-examination as you choose.
MR WILLEE:             Yes. I regard that as unfair. I seek to stand the matter down and take instructions from my client, your Honour.
JUDGE: No, you can do that when you’re finished at 1.55.
MR WILLEE:             I regard that as inherently unfair. I’ve suggested to the court that I need more time.
JUDGE: Thank you. Yes, I understand that, but I’m ruling against you.
MR WILLEE:             These are important - - -
JUDGE: You need formal reasons for that?
MR WILLEE:             Okay.
JUDGE: You need reasons for that?
MR WILLEE:             Not necessarily, but I’m suggesting to you that you should give me more time.
JUDGE: Yes, I appreciate your application. I’m grasping it, that you need further time, and I have accepted that in a small way. I reserve my reasons on this ruling and they will be included at the time I deliver the final decision[22]. Yes. Next question…
[22] Those reasons are as stated above and as follows.
Cross-examination continued and concluded as follows:
MR WILLEE:            Yes. So why wouldn’t you – in circumstances where you’ve essentially been permitted by the court to do that, why wouldn’t you give a little and say, “You know what, I will bear the extra burden of the driving that I’ve created so that I can relocate and agree to deliver [X] to [Suburb E]”, which is halfway between [Suburb Q] and [Suburb W]?---
[MS WHITEHILL]:     It’s slightly further than halfway. But the only reason I have asked for [Suburb D] instead of that is – it’s – it’s to allow me to get to work on time. And I am being .....
MR WILLEE:            Well, [Suburb D] or [Suburb E] is not that far away. The traffic on [the freeway] is always hopeless, both ways. But the traffic on the [freeway] from [City L] into the city – I live close to [Suburb Q]. You don’t need to worry if I ever coincidentally bump into you. I will turn around and walk the other way. So you don’t need to be concerned. But I do live close to [Suburb Q]. And so I know that route. And the traffic doesn’t really mount up until you get to [Suburb S]. Sometimes on an awful day it might come back as far as [Suburb N]. But [Suburb E] is just after [Suburb S]. It’s not as if you’ve got to go all the way into the city. You could exit at [Suburb E] and deliver [X] there and then easily make it back in time, couldn’t you?---
[MS WHITEHILL]:     It depends on the handover time in the morning. And we have proposed [Suburb N], the [M Service Station] in [Suburb N], as being slightly easier for me to get to work. But, yes, if the time was right I could.
MR WILLEE:            Why is it all about what’s slightly easier for you? You made it very - - -
JUDGE: Mr Willee, you’re revisiting themes that have been well cooked through.
MR WILLEE:             Sorry, your Honour. Can you say that again?
JUDGE:                   Well cooked; well done; thoroughly done.
MR WILLEE:             What you’re saying to me is you’re not going to allow me to ask any more questions, are you?
JUDGE:Well, no. You’re using the time to revisit a theme that has been well done. Now, I accept your question about the [Suburb E], [Suburb D] point, something that wasn’t covered. So yes. Next question, or have you finished?
MR WILLEE:             No, your Honour. That is the conclusion of the truncated cross-examination.
JUDGE: Thank you. Thank you. I appreciate you being able to do that. Thank you. Ms Swann, any…
MR WILLEE:            Your Honour, you don’t have to thank to me – thank me, your Honour. My first obligation is to you - - -
JUDGE:                   Thank you.
MR WILLEE:             - - - this court, constituted by you. So there’s no need for you to thank me or beg me or anything like that, your Honour. I am obligated to you.
JUDGE:                   Thank you. Ms Swann, any re-examination?
Rather than conclude at 1.55 pm, I had permitted the Father’s cross-examination to continue until 2.10 or thereabouts, that is a total of about 1 hour 35 minutes of cross-examination.
Section 69ZN of the Act is as follows:
Section 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.
(emphasis added)
The obligations of section 69ZN(2) can be read with section 69ZX which bears repeating in this context:
Section 69ZX Court’s general duties and powers relating to evidence
…
(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.
Section 69ZQ(1) is as follows:
General duties
(1) In giving effect to the principles in section 69ZN, the court must:
(aa)      ask each party to the proceedings:
(i)whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and
(ii)whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence; and
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b)      decide the order in which the issues are to be decided; and
(c)give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d)in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it; and
(e)      make appropriate use of technology; and
(f)if the court considers it appropriate--encourage the parties to use family dispute resolution or family counselling; and
(g)deal with as many aspects of the matter as it can on a single occasion; and
(h)deal with the matter, where appropriate, without requiring the parties' physical attendance at court.
…
(emphasis added)
My reason for limiting the cross-examination of the Mother by the Father to a total of about 1 ½ hours was because the Father’s case had been adequately and robustly put to the Mother and also counsel had chosen to take up time introducing prior allegations, not retracted, but not put as part of the opposing case, and I was satisfied it was necessary to actively direct, control and manage the conduct of the proceedings in the interests of justice and the parties and the child. Part of the time had been taken up with putting a long stream of propositions to the witness, who by and large answered responsively.
I was satisfied that that the obligation imposed by section 69ZN(4)[23] and the power enlivened by section 69ZX(2)(i)[24] not only permitted me to restrict cross-examination (provided it is done with procedural fairness and fairly), but in the circumstances of the case and the loquacious nature of the cross-examination and the limited extent that I perceived further cross-examination would assist me, I was compelled to attempt to limit cross-examination in the interests of justice and in attempting to keep some proportionality between the factual issues in dispute and the length and cost of the trial.
[23] That the court is to actively direct, control and manage the conduct of the proceedings.
[24]That the court may give directions or make orders … limiting, or not allowing, cross-examination of a particular witness.
Hearing not concluded and adjourned to following Monday 23 December 2025
Shortly before 5.00 pm, and usual court hours being until 4.15 or 4.30 pm, and being satisfied one of the parents needed to leave the electronic court (in the city) by 5.30 to collect the child from child care, I then discussed adjourning the matter to the following Monday for a hearing in the court room, so that the parent (the Mother) with the obligation to collect the child from child care could do so. Counsel for the Mother sought that the hearing continue electronically and counsel for the Father opposed the listing on Monday on the basis that he was “unavailable”. He sought the hearing conclude that evening, and if necessary, in the absence of the Mother (who, he said, could leave counsel’s chambers in the city and collect the child from child care). I was satisfied counsel was not part heard on the following Monday, 23 December 2024 and, despite objection, adjourned the matter to Monday 23 December 2024, and anticipating there would no longer be a risk of infection to others of covid, to the court room. I was and am conscious of the burden such an arrangement would likely put on counsel’s personal lives. I took that into account, but I was satisfied that the interests of justice strongly contended for the current proceeding, which included a section 65DAAA question, and which had begun the prior March of 2024, needed to be resolved before the Christmas or seasonal holidays and adjourned the further hearing to the following Monday, 23 December 2024.
The cross-examination of the Father had not concluded and so he remained under cross-examination over the weekend.
Hearing resumes on the following Monday 23 December 2024
The hearing resumed on Monday morning. Consistent with his duty to the court and despite the personal inconvenience to him, counsel for the Father appeared. The Father’s counsel raised the issue that, after the court had adjourned, he had emailed my associates, seeking permission to speak to his client and had not received a reply and so had not spoken to his client at all. I inferred he wished to speak to his client about matters other than the evidence he had given or would give. I adjourned for a few minutes so he could confer with his client on matters other than the evidence he was giving.
Application to recall Mother for further cross-examination.
The Father’s case commenced and the Father was called to the witness box for cross-examination. Late on the afternoon of Monday 23 December 2024, counsel for the Father objected to the Mother’s counsel cross-examining the Father on the issue of travel time by motor car between various points. He again objected on the basis that he had not cross-examined the Mother about those matters. I was satisfied he could have, and that issue was squarely raised in the Mother’s case and evidence. The Mother’s affidavit had asserted various travel times and the Father had not responded to those allegations. The following exchange and ruling occurred[25].
[25] TP 146 on 23 December 2024.
MR WILLEE:            I object to that, your Honour. I don’t think this is very fair. In fact, I think this is inherently unfair. Your Honour is now talking about all these other aspects like going to the car; how long is it going to take her from there. All those …matters, I haven’t crossed-examined [Ms Whitehill] on. And my application is for [Ms Whitehill] to be recalled about these matters. If my learned friend wants to put them to my client, I should be permitted to put them to her.
All these things that your Honour is assuming may be unfair. Who knows how long it takes. There’s all kinds of matters that my client is expected to answer; hasn’t had – but his counsel hasn’t been permitted an opportunity to find out what the scenario is at first instance. He hasn’t heard the applicant’s evidence, your Honour. How can he be expected, in fairness to him, to answer those questions when they haven’t been asked of [Ms Whitehill]?
JUDGE: Thank you. I dismiss that application. I’m satisfied that there was more than enough time made available in cross-examination, notwithstanding it was by electronic means, to pursue these matters had counsel been interested in them at the time. And I need to apply subdivision (c) of division 12(a), that is – sorry, subdivision B of Division 12A, also known as section 69ZN and principle 5, which is section 69ZN(7)[26]…
[26] Of the Act.
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.
However, the primary reason for rejecting the application is that I’m satisfied that there was ample opportunity to explore such matters in cross-examination.
MR WILLEE:            Okay. So if your Honour is submitting to me, your Honour, that there was ample - - -
JUDGE:   I’m not submitting anything. I’m ruling.
MR WILLEE:             Well, if - -
JUDGE:   Sit down, please, Mr Willee.
(emphasis added)
Other objections
In further cross-examination, after the Father was asked a question, he commenced to answer and then explained why he had given that answer.[27] I interrupted the witness and reminded him to answer the question asked, as he had heard me ask and remind the Mother in her cross-examination. The Father’s counsel objected to my direction to the witness and ended the objection with a criticism of the Mother’s counsel, that the witness was not being permitted, by opposing counsel, to answer the question in full. I then asked the witness to continue to answer the question as it appeared he wished to do and that he had grasped the gist of the question. His counsel then objected to him doing so on the basis that as counsel did not understand the question, he inferred the witness could not. I ruled that, as the witness appeared to understand what he was being asked and appeared keen to explain his position, I would permit him to do so. The Father, in articulate fashion, explained his position on the point.
[27] TP 103.
The Father was asked about fake, or play, $1,000 bills that he had delivered with or enclosed in the child’s birthday present in 2024 with self-evidently offensive comments or swearing printed on them and his counsel objected to the question on the ground that this evidence had been dealt with in the previous hearing and made a further criticism of the Mother’s current solicitor. I allowed the question.
At a further point, after a series of arguably multifaceted questions, the Father’s counsel objected as follows:
MR WILLEE: Your Honour, I object to the question. It’s improper to put a question about co-parenting in the context of the way in which [Ms Whitehill] sought to exclude my client from any sort of relationship with his daughter, withheld the child for five months and then demanded that he drop her off at a police station when it wasn’t warranted. Then, when she lost her application, brought a new application. How could anyone co-parent with [the Mother] when she is completely manipulating the system to suit her own purposes? The question is improper. Your Honour should disallow it.
I dismissed the objection on the basis it was put, but ruled the question could not be put because of the multifaceted or “rolled up” nature of the question.
It is unnecessary to recite all objections and rulings. Rulings were made in favour of, and against, both counsel.
The first recusal application
When the matter resumed the Father’s counsel told me that over the weekend he had been emailed a bundle of documents proposed to be cross-examined upon and explained (in substance):
·there were no orders for tender bundles; and
·he had not had those documents available to cross-examine the Mother on; and
·that process was inherently unfair; and
·commented on, but did not apply for, the Mother to be recalled to cross-examine her about the documents in the delivered over the weekend bundle; and
·that re-examination by opposing counsel of the Mother had included matters not raised in cross-examination.

I indicated in discussion that there being no orders about tender bundles did not mean documents could not be used in cross-examination. I observed the convenience of paginated bundles of documents and commented that the provision of documents proposed to be cross-examined upon to opposing counsel was courteous. The discussion with counsel continued and I pressed the Father’s counsel as to what application, if any, he was making. A long submission about the unsatisfactory nature of the previous day’s electronic hearing followed that included the assertion of “a level of unfairness in regards to the way in which we’re now here before you in person”. But no application was made and the submissions concluded with, “I will leave it at that, your Honour. But I’ve made those submissions”. I thanked counsel and then the cross-examination continued. And objections to questions continued.
In a cross-examination about travel time from home to work and online maps showing motor car travel time, I raised the matter that arriving in a motor car at a work car park was not the same as being in the required workplace ready to work. The following exchange occurred:
MR WILLEE:             Yes, your Honour. I have another application to make.
JUDGE:                   Yes.
MR WILLEE:             I seek to stand the matter down at first instance so that I can speak to - - -
JUDGE:                   No. Make your application, please - - -
MR WILLEE:             Well, your Honour - - -
JUDGE:                   - - - or not.
MR WILLEE:             Well, I will make it, shall I?
JUDGE:                   I don’t know.
MR WILLEE:             Firstly, this court failed to mute itself and certain things were said about counsel, both counsel. That was unfortunate. But there was an apprehension there with what was said. But that wasn’t pushed.[28] Then there was the truncation of my cross-examination, the applicant, in relation to her case. And that was – I had to stick to the time limits, to the letter. Then Ms Swann was permitted to – she gave you an estimate of an hour. She got a lot longer than an hour.[29] Then it was submitted to you that it was unfair to [Mr Talaska] that the matter be called back without him having an opportunity to speak to his counsel. And you made those comments about, you didn’t mind if – I won’t use the words “care.” I will use the words “mind.”[30] It’s a difficult application to make, you see, your Honour, this application. This application that I’m making now. And it’s very difficult to make this kind of an application to a member of the judiciary such as – or a person who constitutes this court such as you, who’s known to be an excellent judge who’s meticulous, who’s utterly fair.
[28] For convenience referred to as the unmuted comments ground and I treated this as the first ground of the apprehended bias recusal application.
[29] For convenience referred to as different length of cross-examination ground and I treated this as the second ground of the apprehended bias recusal application.
[30] For convenience referred to as the don’t mind if unrepresented ground I treated this as the third ground of the apprehended bias recusal application.
But I suggest to you that in this case, you have done everything in your power to suggest to [Mr Talaska] and his counsel that [Ms Whitehill] is going to be permitted to relocate. And that this case is going to occur before Christmas no matter what.[31] We were adjourned until the 20th so that [Mr Talaska] could finally file his materials. Then we were adjourned until the 23rd, today, when I suggested to you that I wasn’t available on the 20th. But I made myself available. It’s not about counsel. I suggested that I wasn’t available on the 23rd. “I don’t care if you” – “I don’t mind if you’re not here, Mr Willee. I don’t mind if [Mr Talaska] has to proceed without you.” That was unfair.
[31] For convenience referred to as the no matter what ground and I treated this as the first ground of the actual bias recusal application.
So it’s a combination of factors now,[32] your Honour. This is what the application is based on. Now, it has been submitted to you by [Mr Talaska]’s counsel - - -
[32]For convenience referred to as the cumulative affect ground and I treated this as a further (2nd) ground of both actual bias and a further (4^th) ground of the apprehended bias recusal application.
JUDGE:                   Sorry - - -
MR WILLEE:             - - - that it’s unfair - - -
JUDGE:                   - - - can I just interrupt you for a second.
MR WILLEE:             Certainly, your Honour.
JUDGE:                   The application is what, Mr Willee?
MR WILLEE:             The application is that a fair-minded lay observer seated in the back room of the court would apprehend the fear of bias in circumstances where you will not – when you have said you would not recall [Ms Whitehill] on these matters so that I could cross-examine her about these things.[33] And instead, you have allowed Ms Swann to simply cross-examine my - - -
[33] For convenience referred to as the failure to permit recall for further cross-examination ground and I treated this as a further (3rd) ground of both actual bias and a further (5th) ground of the apprehended bias recusal application.
JUDGE:                   Mr Willee, if that’s your submission, your application is what?
MR WILLEE:             My application is that you should recuse yourself on the basis that you haven’t afforded my client the same fairness that you’ve afforded Ms Swann and her client. That’s the application.
JUDGE:                   Thank you.
MR WILLEE:             The application is based on those matters, that – you know, I don’t dispute what you say about section – what was it – 69ZN, all those types of things. I don’t dispute that you control, inherently, the processes of this court. But it’s got to be fair, sir. You’ve got to do justice to both parties. It is not fair. In fact, it’s inherently unfair for my client to be cross-examined on these matters when they haven’t even been put to the applicant.
These are matters relating to drop off and pick up. And I say that if you won’t allow me to recall her, then that is the straw that broke the camel’s back. And that is why the application is made today. And I ask that you consider whether or not that’s fair because it’s a difficult application to make. It’s a difficult position for you to be in, sir. It’s very hard for you to assess, was I fair about that; was I – you know, could I have done that a little differently. All those types of things. So it’s hard for counsel to make the application. It’s hard for you to assess it objectively. But in my respectful submission to this court, constituted by you, normally you would have been a lot fairer about that. And you have always held an excellent reputation as someone that does give both parties an opportunity to present their case.
[Mr Talaska]’s case is diminished if his counsel isn’t afforded the opportunity to cross-examine on these documents that are presented on the last day at the last minute. It is clear that your Honour is minded to grant this relocation. That is what is being suggested by this constant diminishment of [Mr Talaska]’s opportunity to put his case.[34]
And, in my submission to you, that’s unfair. And your Honour should reconsider whether you should continue in this matter.
(emphasis added)
[34]For convenience referred to as the minded to grant relocation ground and I treated this as a further (4th) ground of both actual bias and a further (6th) ground of the apprehended bias recusal application.
I considered the submissions as they were made and for a short time after submissions ceased and then, dismissed the application and reserved my reasons.
Although not patently clear in submissions, I regarded the application as being based on both apprehended bias and actual bias.
I understood the basis of the actual bias submission to be that I had pre-determined that the Mother’s application to reconsider the final orders would be successful and that, when permitted to do so, had pre-determined that her application would be granted. The case was not a “relocation” case. No order was, or had been, sought that I either restrain the Mother from moving or compel her to move back to where she had lived. The parameters of the parties’ dispute was:
·Whether I could, and should, reconsider the 2023 final orders at all; and
·If so, what changes should be made, in the best interest of the child, to existing spend time arrangements now that the Mother proposed to, and had arranged to, move to live in a different place and work in different employment.
However, I understood the use of the word “relocate” to be shorthand for the Father’s case, to:
(1)Resist the existing spend time and changeover locations orders being reconsidered at all; and
(2)If the existing spend time and changeover locations orders were to be reconsidered to order different times to that sought by the Mother.
In substance, the application was founded on the different rulings I had made against the submissions of the Father’s counsel and my listing of the matter for expeditious hearing. The basis of the predetermination was that I had made rulings on points against the Father’s submissions and applications and objections by his counsel and this demonstrated that I had already determined the orders to be made (actual bias) and that those matters were such that the fair-minded lay observer might reasonably apprehend that the decision-maker might not have brought an impartial and unprejudiced mind to the resolution of the question to be decided.
Grounds of alleged bias
The “unmuted comments” ground: apprehended bias
The unmuted comments, after time for counsel and client to consider whether to make the application, or not to, did not then cause an application to be made. That the private comments critical of counsel (not of either party’s case or evidence) were overheard was and is unfortunate. But they did cause an application at the time soon after the comments were made, and an apology was made to counsel and accepted.
The hypothetical observer is taken to have known the circumstances of the later complained of comment. I am satisfied that the hypothetical observer would have understood the difficulty and irritation for the judicial officer in trying to get the trial moving in an efficient manner and a manner that dealt with the substance of the underlying issues.
I was and am satisfied that the unfortunate, intended to be private, comments do not indicate a prejudgment of the respective parties’ cases. I was and am not satisfied that this comment indicates that a fair-minded observer might reasonably apprehend from this conduct that I might not bring an impartial resolution to the substance of the dispute.
The “different lengths of cross-examination” ground: apprehended bias
I accept that in a contested final hearing it is difficult for counsel to indicate with precision the length of cross-examination. In a hearing that was expected to take one day and ultimately took two days, there is additional pressure on counsel to efficiently cross-examine and to use the time in a manner that advances their case. No two parties take the same time to answer questions or answer with the same degree of responsiveness to the questions asked and the matters put to them. Different counsel prepare for cross-examination differently. All of those matters combine to mean the time taken in cross-examination is not necessarily the same, nor can it be. The hypothetical observer is taken to know the context of the decisions that resulted in the allegation that resulted in different time of cross-examination. The hypothetical observer, although not a lawyer, would be able to readily observe whether the points made in cross-examination were relevant or helpful or advancing a party’s case. The nature and manner of the cross-examination is relevant, and the hypothetical observer is taken to know that in knowing the context of which the decision was made.
In this case, just what it was regarding different lengths of cross-examination that might lead the decision maker to decide the case other than on its merits was only vaguely identified, and there was only a vague articulation of the connection between the suggested reasons and the alleged potential deviation from determining the case on its merits. The context to the complained of comments would be known to, taken into account a part of the context of the fair-minded observer (although the fair minded observer is not a lawyer) is the context that would include the necessary and sensible concepts within Subdivisions B, C & D of Division 12A of Part VII of the Act.
The “don’t mind if unrepresented” ground: apprehended bias
In the face of the emphatic complaint of counsel that he was not available on the following Monday (23 December 2024), notwithstanding that he was not part heard in another case, and notwithstanding counsel’s obligation to the court and his/her client, the substance of the comment was to the effect that I did not require counsel to appear on the following Monday if counsel was unable to and/or the necessary financial arrangements were unable to be made.
I was and am conscious of the expense of a second day of a final hearing and I did not intend to compulsorily impose that upon the Father. That was also in circumstances where the Mother had been cross-examined by counsel and the substance of his case robustly put to the Mother. Further, it was not identified how the event of adjourning the matter to the following Monday and the comment to the effect of counsel not being required to appear and hearing the Father as a litigant in person, if that was to happen, might lead me to decide the case other than on its merits and the logical connection between this complaint and the circumstance of the matter not being heard on its merits was not articulated.
The “no matter what” ground: actual bias
I did not and do not find that the manner of listing the matter and permitting the Father to file further material in response to the Mother’s amended (and very different) application inferred that my mind had been committed to a conclusion already formed and incapable of alteration against the Father’s case.
In all of the circumstances of the case, including that the matter had been listed for a section 65DAAA hearing in the preceding November, and my acceptance of the Father’s application for an adjournment, I am not satisfied that this conduct indicates at all that I already committed to a conclusion and my mind was incapable of alteration. If I am wrong about that, I am not satisfied that these events demonstrate or prove a high probability that my conduct was inconsistent of a fair performance of my judicial duty.
Further, I did not understand this to be a ground of apprehended bias, but in the event I am wrong about that and it was intended to be so, I am not satisfied that a fair-minded observer, by reason of these events, might have reasonably apprehended that I might not have brought an impartial and unprejudiced mind to the question to be decided. Further, if this was intended as a ground of apprehended bias as well as actual bias, the articulation of the logical connection between the ground of apprehended bias and my deciding the matter other than on its merits was not articulated.
The “failure to permit recall for further cross-examination” ground: actual bias and apprehended bias
This complaint overlaps with the earlier “different lengths of cross-examination” complaint, but is different to it. The fair-minded lay observer can be taken to know the context of the judicial process involved in this case. That is, that the judicial officer, myself, has a duty and obligation under the Family Law Act 1975 (Cth) under section 69ZN to actively direct, control and manage the conduct of the proceedings. This includes the length of cross-examination. Further, the principle of proportionality means that the length of the cross-examination must be balanced against the likely benefit of the possible exposition of underlying facts and attitudes. For the reasons explained when recounting this event in these reasons, I was not satisfied I was going to be assisted by further cross-examination of the Mother by counsel for the Father. The expense of further elongation of the proceedings involved in further cross-examination about a matter that was squarely raised on the Mother’s case but not cross-examined upon by the Father’s counsel (when, I am satisfied, there was time to do so) must also be taken into account under 67ZN(4).
I also refer to and repeat the obligations and powers contained in sections 69ZN(4), 69ZN(7), 69ZQ(1)(a) and 69ZX(2)(i).
I placed some weight on the circumstance that the Father’s counsel had chosen, consistent with his case theory, to cross-examine the Mother about allegations that she had not made in the current proceedings but had previously made and the attempt by those means to discredit the Mother and advance the Father’s case, was to me quite unsuccessful. That much would have been readily apparent to the fair-minded lay observer who is taken to know the context in which the decision was made and the circumstances leading to it, including the concepts in the sections of the Act referred to in the preceding paragraph.
Further, save for the general complaint that it was unfair, how this might lead me as the decision maker to decide the case other than on its merits was not identified, and the logical connection between the ground of complaint and the fear that the case might be decided other than on its merits was not articulated.
The “minded to grant relocation” ground: actual bias and apprehended bias
I regarded this as being an allegation that I had already determined that the orders the Mother sought would be granted and hence, actual bias. I did so notwithstanding that the case was not a “relocation” case, to the extent such a thing exists. This complaint, taken at its highest as a ground of actual bias, was pressed on the basis that it was self-evident that my mind was already committed to a conclusion already formed and incapable of alteration. That this was not so is self-evident by my decision not to accept the Mother’s primary case that the changeovers should be at the Suburb D McDonald’s. I am not satisfied that this complaint of actual bias is made out.
I was, and am, not satisfied that the unarticulated basis of the complaint demonstrates that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind when determining the issues of the case.
Also, save for the general complaint that I was minded to grant the “relocation”, how this had, or might, lead me as the decision maker to decide the case other than on its merits was not identified, and the logical connection between the ground of complaint and the fear that the case might be decided other than on its merits was not articulated.
The “cumulative effect” ground: actual bias and apprehended bias
I understood that all of the matters individually complained of were also said to have the cumulative effect, taken together, to demonstrate actual bias. That is, that I had already decided the matter and there was apprehended bias in that, as a result of the cumulative effect of all of the events complained of, a fair-minded lay observer may reasonably apprehend that I might not bring an impartial and an unprejudiced mind to the determination of the controversy.
It is unnecessary that I repeat and recite the individual complaints, but I refer to and repeat the observations above. I am not satisfied that when considered individually or cumulatively, that the events complained of demonstrate actual bias or apprehended bias.
As I understood the submission, it was the cumulative effect of these events that was said might lead me to decide the case other than on its merits in the mind of the fair-minded lay observer. When taken in context, what it was about those individual events, or cumulatively taken into account as being the logical connection between the complaints and the fear that the fair-minded lay observer might apprehend that I might not bring an impartial mind was not articulated, other than by the statement of the ground.
Second “move the lectern” recusal application

The second recusal application occurred at approximately 11.05 am in what I called the “move the lectern” disqualification application. This was something in the order of half an hour after I had dismissed the first recusal application. I ruled:
JUDGE:Thank you. All right. In what I will call the roughly 11.05 “move the lectern” disqualification application, I dismiss the application. And I reserve my reasons.
The context was that I had observed the Father’s counsel, although standing at the lectern in the middle of the bar table, often turn to his opponent and step towards her, and to her instructing solicitor sitting opposite her counsel (in the Victorian or Republic of Ireland custom) and to the Mother sitting behind the “bar” but immediately behind her counsel and hence quite close to where the Father’s counsel was addressing me, but facing to those three (counsel, her instructing solicitor and her client). Counsel not only faced his opponent, her instructing solicitor and at times, her client, but he also spoke forcefully and gesticulated with his arms towards his opponent while addressing me. Although I am not satisfied counsel intended his demeanour and manner of address to be intimidatory towards anyone, I observed the overall effect of what he said, where he stood, where he faced, and his manner to be discourteous and, to my mind, aggressive. I accept that counsel understood he was only passionately advocating his client’s case. I accept that more robust souls than me may not have found the behaviour aggressive, merely discourteous.
I refer to and repeat section 65ZN(5) recited above. I did not, and do not, make a finding that counsel was exposing anyone in the courtroom to family violence, but my obligation was to safeguard those in the proceedings from family violence, and in advance, not to wait for hurt or offence to be taken, regardless of intention.
I am satisfied I had not only the power, but the obligation, to act to so safeguard.
Further to the obligations and powers pursuant to the Act, the Evidence Act 1995 (Cth) (‘the Evidence Act’) also provides for a Judge to control the courtroom. Sections 11(1) and 26 of the Evidence Act provide as follows:
Section 11 General powers of a court
(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.
…
Section 26 Court's control over questioning of witnesses
The court may make such orders as it considers just in relation to:
(a) the way in which witnesses are to be questioned; and
(b)the production and use of documents and things in connection with the questioning of witnesses; and
(c) the order in which parties may question a witness; and
(d)the presence and behaviour of any person in connection with the questioning of witnesses.
The following discussion occurred prior to the “move the lectern” recusal application and my ruling:
MS SWANN:             Now, there are various options for changeover venues. And in the letter – this is attached to [Ms Whitehill]’s affidavit. It’s an annexure [MSW]1. There’s a letter from Saunders Family Law to your solicitors dated 1 October 2024. Do you remember reading that?
[MR TALASKA]:       No.
JUDGE:                   What page, please?
MS SWANN:             My client’s affidavit, your Honour. It’s - - -
JUDGE:                   [MSW]8?
MS SWANN:             - - - page 18 of 67.
JUDGE:                   Thank you.
MS SWANN:             What I’m referring to is on page 19. It says:
For the purposes of changeover –
JUDGE:                   Hold on. Okay. Yes.
MS SWANN:             It says:
For the purpose of - - -
MR WILLEE:             No, your Honour. I object.
JUDGE:                   Yes.
MR WILLEE:             This is not the way it’s done. If Ms Swann wishes to cross-examine this witness on a document, the correct way to do it, in my respectful submission to this court, is to present the document to the witness - - -
JUDGE: Can I ask you, keep over to your side. See that lectern you’ve got in front of you – unfortunately, it’s come with this. Your body language is so aggressive at the bar table. Can you pick that lectern up if you need to - - -
MR WILLEE:             Okay.
JUDGE: - - - address it.
MR WILLEE:             Sorry? What would you like me to do?
JUDGE: If you need to use the lectern that’s in the middle of the court, you will - - -
MR WILLEE:             No. You’ve made a comment. My body language is so aggressive. That was the first - - -
JUDGE: Yes, it is.
MR WILLEE:             Did you want - - -
JUDGE: It is.
MR WILLEE:             - - - anything else about that, sir?
JUDGE: If you will stop talking, I will tell you.
MR WILLEE:             I’ve stopped. I’m - - -
JUDGE: Your - - -
MR WILLEE:            - - - actively listening.
JUDGE: - - - body language that I’ve observed - - -
MR WILLEE:             Yes, your Honour.
JUDGE: - - - is so aggressive that - - -
MR WILLEE:             Is that fair?
JUDGE: It’s my ruling - - -
MR WILLEE:             Is that fair?
JUDGE: - - - Mr Willee, that I’m directing you to stay on your side of the bar table, please. You wave your arms around, pointing. You face towards counsel, standing close to her, point[ing] - - -
MR WILLEE:             I’m standing - - -
JUDGE: - - - to her and address - - -
MR WILLEE:             - - - here. That’s unfair.
JUDGE:                   Okay.
MR WILLEE:             I’m not standing - - -
JUDGE:                   You’re allowed to disagree with me.
MR WILLEE:             Yes.
JUDGE:                   But I’ve made my ruling.
Counsel then made another recusal application:
MR WILLEE:             Not only do I disagree with you, I renew my application - - -
JUDGE:                   Thank you.
MR WILLEE:             for you to recuse yourself - - -
JUDGE:                   Thank you.
MR WILLEE:              - with even more vigour -
JUDGE:                   Thank you.
MR WILLEE:             - - than when the application was made.
JUDGE:                   Thank you.
MR WILLEE:             For your Honour to suggest that somehow I’m not allowed to look in this direction or make a gesture about the correct way to do it and to provide the witness with a document suggests to me that not only were you not listening to the application in relation to the objection, you weren’t even listening to that, about the correct way that it should be done, that a document should be presented to [Mr Talaska]. But rather, the court was more interested in suggesting to counsel that he behaved aggressively. That is unfair. That, again, would demonstrate to a fair-minded, lay observer – sorry to gesture, your Honour. I’m gesturing to the back of the court. A fair-minded lay observer, seated in the back of the courtroom, might reasonably apprehend the fear of bias in those circumstances[35], your Honour. I have simply objected to the way in which counsel is cross-examining this witness.
[35] I regarded this as a recusal application based on apprehended bias.
Your Honour has dressed counsel down on the basis that somehow he was aggressive, or that he was using gestures that were inappropriate. That’s not fair. This is a courtroom. Sure. Your Honour might not like my style. But you do know that counsel still works in the jurisdiction. And there’s no fettering of counsel gesturing to a witness or gesturing to the jury or gesturing to the accused in the dock. All those kinds of things are permissible. If your Honour had said to me at the beginning, I don’t want you standing anywhere beyond that line – not that I concede that I went across that line, your Honour. I stood here. You said that I stood close to Ms Swann. This would be close to Ms Swann. I was here.
Your suggestion to me that I’ve been overly aggressive is unfair. And for the transcript, I say that I stood behind the lectern, and that I looked over at the witness in that direction. I ask you to reconsider that suggestion that counsel is being aggressive, your Honour. And I ask you to consider how a fair-minded, reasonable lay observer might view the interaction that has just occurred between your Honour and I about those matters, fairly, what they might think. Because I suggest to you that there was nothing wrong or improper with me objecting in a voice that was perhaps louder than normal, suggesting that there was a proper way that the witness should be cross-examined. What was really wrong with that? You didn’t hear my objection. You simply said, “Don’t stand in the middle.”
JUDGE:                   You see, Mr Willee, I was about to rule in your favour. And -
MR WILLEE:             I thought you might - - -
JUDGE:                    - - I still will.
MR WILLEE:            I thought you mind have been. Yes but - -
JUDGE:                   I still will. But - - -
MR WILLEE:             .... think about if we know you’re fair, your Honour.
JUDGE:- - Mr Willie, your insistence on going on and on and on of addressing not me, but your opponent and her instructing solicitor is discourteous. And when it’s done repeatedly, I’m troubled by it in a courtroom where one of the matters, Mr Willee, I’m to protect people from is from family violence. That’s another one of the principles that the proceedings are to be conducted upon.
And whilst not family violence, it’s unnecessarily aggressive in your body language, the tone of your voice and the style of your standing so close to your opponent where [the Mother] is seated immediately behind her. Now, I hear your renewed application. Is there anything more you want to say about that?
MR WILLEE:             Well, your Honour, you’ve made irrelevant suggestions about family violence. I’m not in a family relationship with anyone here. This is the adversarial system. I am permitted to gesture in a manner – of course, I’m not allowed to be overly aggressive. I hear what you say about that. I’m not allowed to be overly aggressive to Ms Swann’s client. But I am allowed to object when there’s an unfairness. And the unfairness is – and this is the thing, you said that you were going grant my – that you agree with me, that you will grant my - - -
JUDGE:  If you will stop talking so we can get on with the trial.
MR WILLEE:             No, your Honour. My application is for you to recuse yourself.
JUDGE:                   Thank you. Good.
MR WILLEE:             I renew the application - - -
JUDGE:                   Thank you. Now - - -
MR WILLEE: - - with increased vigour. We’re not receiving a fair hearing now, your Honour - - -
JUDGE:                   Thank you. Now - - -
MR WILLEE:            - - because you’re now saying things like, “Don’t stand so close to Ms Swann”, when I’m standing right here. That’s not fair, your Honour.
JUDGE: Now, I’ve made two rulings. Okay? Sorry, I made one ruling. And that is – it should only be a request. But in your case, you’ve come to the point it has to be a direction. Okay?
MR WILLEE:             Well, there’s another - - -
JUDGE:                   Either - - -
MR WILLEE:             - - that goes to - - -
JUDGE:                   Either - -
MR WILLEE:             - - - the apprehension of bias application, just for the transcript, your Honour. That will go to it.
JUDGE:                   Please don’t - -
MR WILLEE:             But - -
JUDGE:                   Please stop interrupting me.
MR WILLEE:             - what do you mean by, in my case, it needs to be a direction?
JUDGE:                   Please stop interrupting me.
MR WILLEE:             Yes. Certainly, your Honour.
JUDGE: Now, either don’t use that lectern that just coincidentally happens to be situated in the middle of the bar table, or move it down your end of the bar table where you’re welcome to use it. But you are to address me from that side of the bar table: full stop. And if you won’t, I will have to reconsider what I do, don’t I? It’s unfortunate because you’re representing [Mr Talaska].
MR WILLEE:            I - -
JUDGE:But I’m not going to have discourteous, repeated discourteous, aggressive behaviour at the bar table.
MR WILLEE:             Well, I reject the assertion - - -
JUDGE:                   I know you do.
MR WILLEE:             - from the court that there has been any level of aggression or any level of discourtesy, your Honour. Of course these are difficult applications to make. Of course your Honour is antagonised by them. But to suggest - - -
JUDGE:                   I’m not - - -
MR WILLEE:             - - that I’ve overstepped the mark - - -
JUDGE:                   Mr Willee - - -
MR WILLEE:             - - - or that I should move a lectern that I didn’t place here – it has always been in the middle – so that I can - - -
JUDGE:No, it’s unfortunate. I should have turned my mind to it and moved it - - -
MR WILLEE:             But it - - -
JUDGE:  - before the court - - -
MR WILLEE:             But it - - -
JUDGE:   - resumed.
MR WILLEE:             Your Honour - - -
JUDGE:                   Now - - -
MR WILLEE:            - it has always been the case.
JUDGE:                   But it appears to me, you’re not going to follow my direction
MR WILLEE:             No.
JUDGE:   - - or you are?
MR WILLEE:             I will always follow your direction.
JUDGE:                   Right. Could you start - - -
MR WILLEE:             I’m obligated to you. That’s my first - - -
JUDGE:                   Could you - - -
MR WILLEE:            - - obligation.
JUDGE:   - - start now, please.
MR WILLEE:             But it’s unorthodox that you would make me do it.
JUDGE:                   It is.
MR WILLEE:             And it goes to my application about the unfairness, that you haven’t brought an impartial mind to this hearing[36]. That all along, all you’ve wanted to do is allow the mother to relocate without hearing the evidence first. You’ve prejudged the issue. Now you want counsel to move a lectern – I’m not even using it as a prop, your Honour. It’s heavy – over here – I didn’t place it there – in a place that’s inappropriate. Where would you like it, your Honour? Here? On the edge there? And I’m to address you like this from here? Normally, I will address you from the centre. In any court, that’s where one addresses a judge from. So your directions, really, only bolster the application that you’re not bringing – that you should recuse yourself, that you’re not bringing an impartial fair mind to this hearing.
[36] I treated this as an allegation of actual bias.
JUDGE:  Thank you.
MR WILLEE:             Is there anything else that you would like me to move, your Honour, so that I’ve complied with my first obligation, which is to you?
JUDGE: Thank you. All right. In what I will call the roughly 11.05 “move the lectern” disqualification application, I dismiss the application. And I reserve my reasons. Yes, Ms Swann.
MS SWANN:             Thank you, your Honour.
JUDGE: The substance of what started off this position - - -
MS SWANN:             Off the documented - - -
JUDGE: - - - is that – I think, Mr Willee’s objection to say that, as a matter of fairness, the witness should have the document rather than be expected to remember it is well made. Thank you. You have a copy there for him?
MS SWANN:             Yes, I do.
JUDGE: Yes. Thank you.
I refer, and repeat, to the discussion of the legal principles relating to recusal in the preceding paragraphs when dealing with the first recusal application.
The direction to counsel to move the lectern and remain at his end of the bar table related to counsel’s advocacy (that is, his manner) in this case of including in objections a criticism of counsel. In this case, the objection was well and appropriately made but the manner of it was discourteous. I am satisfied counsel merely intended to be assertive and forthright in advocating his client’s case, but I was concerned, from my observations in the court room, that the parties and lay persons in the court room would experience counsel’s passion and robustness as aggression. Such robustness and passion, even if experienced as discourtesy, may well have been “water off a duck’s back” to opposing counsel who did not seem to bat an eyelid during the passionate submissions and objections. But I was troubled at the overly combative atmosphere within the courtroom contributed to by the very assertive manner of counsel.
In the end, there was no reason to make an order as, consistent with his duty to the court, counsel accepted my direction and did not insist on an order.
Actual bias?
I have recounted this incident in detail as an allegation of actual bias requires an analysis of what the Judge has said and done. I was not satisfied that my comments and directions to counsel indicated that I had predetermined the decisions in the case. I had not, but that is to be determined by an analysis of what has been said and done, not by my opinion of what I have said and done. But it is clear enough that my criticism of one aspect of counsel’s advocacy, and the manner of it, not the substance, was not a criticism of the case of counsel’s client.
Counsel’s pique at being criticised in the running of a hard-fought case is not an indication of predetermination of the substance of the case.
Further, this is also so when the “move the lectern” direction is taken in aggregation with the other events and comments that preceded the earlier disqualification application.
Apprehended bias?
The fair-minded lay observer should be taken to have observed the context to the “move the lectern” direction – that is, all of the events that preceded it. This would include counsel‘s advocacy and unhappiness at the various rulings against counsel as well as those in his favour. The fair-minded lay observer would have observed that the substance of the Father’s case was not criticised, nor was his evidence. The fair-minded lay observer would have observed that the objection initially made, that set off the events, was, despite the kerfuffle, ruled in favour of the Father’s counsel.
In all of the circumstances over the two days of the trial, I am not satisfied the fair-minded lay observer, from the conduct and comments of the Judge, might have reasonably apprehended (from the judicial conduct complained of) that I might not bring an impartial mind to the resolution of the case.
Those are my reasons for my dismissal of the two recusal applications.

I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 18 March 2025

File number(s):	MLC 3002 of 2024
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	18 March 2025
Catchwords:	FAMILY LAW – Application for costs in a parenting case – Judge’s duty and power to control the proceedings – Two applications for recusal – Actual bias and apprehended bias alleged – Both applications dismissed and reasons reserved – Decision delivered the day after the end of the trial, Christmas Eve, with costs and reasons for dismissal of recusal applications reserved – These are those reasons.
Legislation:	Evidence Act 1995 ss 11 & 26 Family Law Act 1975 (Cth) ss 65DAAA, 69ZN, 69ZQ, 69ZX & 117
Cases cited:	Acheson & Begbie (No 2) (2024) FLC 94-176 Lennon & Sanil (2020) FLC 93-962 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342 Riddler & Riddler(No 2) [2024] FedCFamC2F 751 Whitehill & Talaska [2024] FedCFamC2F 768 Woodside Energy Limited v Australian workers Union [2022] FCA 1391
Division:	Division 2 Family Law
Number of paragraphs:	119
Date of hearing:	22 November 2024, 20 & 23 December 2024
Place:	Melbourne
Counsel for the Applicant:	Ms Swann
Solicitor for the Applicant:	Saunders Family & Estate Lawyers
Counsel for the Respondent:	Mr Willee
Solicitor for the Respondent:	M C Lawyers & Associates

Table of Corrections
1 April 2025	In paragraph 15, at the quote of paragraph 105, the word “not” has been inserted between the words “do” and “regard”.

MLC 3002 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS WHITEHILL Applicant
AND:	MR TALASKA Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	18 MARCH 2025