Apprehended bias not established

Apprehended bias not established

Nunes & Nunes

REASONS FOR JUDGMENT

1. The Applicant mother filed an Application in a Case on 10 October 2016 seeking an order that I disqualify myself from the proceedings.
2. The mother relies upon the affidavit of Yanwen Gao, solicitor, filed 10 October 2016, together with a transcript of the proceedings before the court on 29 September 2016 (Exhibit A).
3. The parties made oral submissions in relation to the above application on 19 October 2016, with the mother filing and serving a short written summary of her oral submissions a short time later.
4. The mother submits that I should disqualify myself for apprehended bias arising out of the directions that the Court made on 29 September 2016. Those directions were as follows:
   1. Within 7 days, the mother shall file and serve a short written submission (no longer than 2 pages) setting out her reasons why Dr T’s psychologist report should not be admitted into evidence at the interim hearing.
   2. Within 7 days, each party shall file and serve an alternative interim parenting proposal providing for a graduated regime of the children spending time with the father.
   100. Within 7 days, the father shall cause to be filed an affidavit by the paternal grandmother indicating her willingness to oversee the children’s time spent with the father. Such affidavit should contain relevant undertakings by the paternal grandmother and, inter-alia, should indicate that the paternal grandmother has read, before swearing the affidavit, the mother’s and sister’s affidavit evidence and the expert evidence or expert reports in the proceedings.
   4. Within a further 7 days, the mother shall file and serve a short written submission, in relation to the above affidavit of the paternal grandmother and setting out relevant submissions in relation to any objection to the paternal grandmother overseeing any time spent by the children with the father.

Background

5. On 24 August 2015, the Court appointed an interim hearing for 11 December 2015 to determine the issue of whether or not the father’s time spent with the children should be supervised, and if so the nature of such supervision, and otherwise time spent with the father.
6. On 11 December 2015, the parties reached consent interim parenting orders providing that the father spend time with the children supervised by (omitted), (omitted) or such other supervising agency nominated by the father. The parties also agreed that a psychiatrist, Dr J, be jointly instructed to report upon the father’s alleged reactive depression and voyeurism and whether or not the father posed an unacceptable risk to the children should the father’s time spent with the children not be supervised.
7. On 12 February 2016 and on 31 May 2016, the expert reports of the above psychiatrist were released to the parties.
8. On 4 March 2016, the father filed an Application in a Case seeking interim orders that the children spend time with him unsupervised.
9. On 28 July 2016, the Court proceeded to hear the father’s Application in a Case filed 4 March 2016, which was opposed by the mother. At the hearing, the father sought to tender a two (2) page report from his treating psychologist, Dr T, dated 12 April 2016. The Court upheld the objection by the mother to the tender of that report and it was marked MFI 1. The Court reserved its decision, having heard oral submissions and having directed written submissions.
10. On 12 August 2016, the father’s solicitors sent an email to the Court (copy to the mother’s solicitors) attaching the father’s written submissions in reply, and stating:
    In the course of the hearing a report of the father’s treating psychologist, Dr T, was marked for identification by His Honour. Accordingly, I now enclose a completed and updated treatment report by Dr T, dated 8 August 2016, to be tendered in the father’s case.
11. It is noted that in the father’s written submissions in reply dated 12 August 2016, reference is made to the above report of Dr T dated 8 August 2016, in paragraphs 7, 10, 11, 16, and 18 of those submissions.
12. The mother’s Counsel then sent an email to the Court dated 18 August 2016 (copy to the father’s solicitors) stating:
    In an email of 13 August 2016, the mother’s solicitor has annexed a report by Dr T dated 8 August 2016. It is the wife’s respectful position that no order was made granting leave to the father’s solicitor to file a document, and certainly not after the close of submissions. In any event, no consent is given for that to occur.
13. In the above circumstances, the Court, of its own motion, had the matter relisted on 29 September 2016 to deal with, providing procedural fairness to the mother, what appeared to be an application by the father to reopen his case on the interim hearing and tender the report of Dr T.
14. Further, the Court wished to hear submissions from the parties in relation to the father’s mother potentially taking on a supervisory role in relation to the children spending time with the father, as the Court was considering such an issue. In this latter context, the Court further wished the parties to make submissions, in the event that the Court were to make an interim order that the children spend time with the father supervised by his mother, as to what alternative interim parenting proposals, such as providing for a graduated regime of the children spending time with the father, each party would propose. (The Court notes that such a proposal from the mother would in effect amount to a backup proposal from her, noting that her primary proposal was for the children to spend time with the father supervised at a contact centre).
15. On 29 September 2016, initially Ms Pordelli, solicitor, appeared for the mother, and a short time later Mr Bui, solicitor, appeared for her. Having only heard very brief submissions from each party, the Court proceeded to make directions, affording procedural fairness to each party, in relation to the issues that the Court had wanted ventilated at the mention on 29 September 2016, and as discussed above; the transcript of the proceedings on that day bear out these matters.

The Law Relating to Apprehended Bias

16. In Hillier & Wootton [2013] FamCAFC 11, the Full Court of the Family Court of Australia stated:
    [54]. The legal principles applicable to reasonable apprehension of bias are well known and have been recently reaffirmed by the High Court in Michael Wilson & Partners Limited v Nicholls [2011] HCA 48;(2011) 244 CLR 427. The husband did not cavil with the Federal Magistrate’s identification of the legal principles, but rather his Honour’s application of those principles to the circumstances in this case.

[55]. As there was no issue about the correct principles to be applied I regard it unnecessary to refer at any length to the relevant decisions of the High Court, other than the well known excerpts from the following decisions demonstrating the development of the law in this respect.

[56]. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, their Honours Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ summarised the test to be applied in cases in Australian courts where apprehension of bias is claimed (at page 492):

[11] …It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide [eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41].

[57]. The specific two-step inquiry to be applied upon such claim being made was explained by Gleeson CJ, McHugh, Gummow and Hayne JJ in the subsequent case of Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group Ltd [2000] HCA 63; (2000) 205 CLR 337 (at page 345):

[8] …First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits….

[58]. The rationale for the description of the fair-minded lay observer and explanation for the test was explained by their Honours in Johnson (at pages 492-493):

[12] …It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial” .

[13]. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

(footnotes omitted)

Summary

17. In the above circumstances, the contentions of the mother that the Court’s directions of 20 September 2016, either singularly or in combination, indicate that a case of apprehended bias has been established, is without foundation.
18. The first direction of the Court made on 29 September 2016, does not seek to impose any primary onus upon the mother in relation to the report of Dr T; as a matter of procedural fairness, the Court simply wished for the mother to have an opportunity to make relevant submissions in relation to what appeared to be an application by the father to reopen his case at the interim hearing and tender the report of Dr T. Contrary to the submission by the mother, the Court has not yet determined whether the father should be granted leave to reopen his case at the interim hearing and tender the report of Dr T. That matter will be dealt with in due course.
19. The remaining directions of the Court of 29 September 2016, again with the court seeking to afford the parties’ procedural fairness, merely related to the Court being in a position to properly consider a matter that it was “considering” in relation to the competing proposals at the interim hearing, namely the possibility of the father’s mother acting as a supervisor of the children’s time with the father. A proper reading of the transcript of the proceedings of 29 September 2016 (Exhibit A) again bears out this fact.
20. The mother’s Counsel’s submission of 24 October 2016, that the Court rejected a request by the mother’s solicitor (Mr Bui) to adduce evidence with respect to the paternal grandmother supervising the time the father spends with the children, is not correct and the Court refers to the transcript at page 8. What the Court should presently state is that it may have unintentionally misled Mr Bui when the Court perhaps inaccurately stated to him, “the mother has already given evidence as to her objections to the paternal extended family assisting in this matter”; as the Court understands, the present evidentiary position is that the mother had not filed her own affidavit evidence on this issue but she had made statements on this issue to the Family Consultant at the Child Dispute Conference on 25 February 2016, as referred to in the Child Dispute Conference Memorandum to Court of the same date at page 3 (she had stated, inter alia, that she did not feel that there were any paternal family members who were suitable to act as supervisors of the father’s time with the children, giving some explanation).
21. The Court, acknowledging the above matter, does not view such circumstance as grounding, within relevant legal principle, an application to disqualify myself. The Court, in due course, will grant an appropriate opportunity to the mother to file and serve evidence responding to the paternal grandmother’s affidavit filed on 6 October 2016.
22. Noting the above legal principles, the Court is clearly of the view that the mother’s contentions as to apprehended bias are without foundation. Contrary to the submissions of the mother, the Court’s directions, following hearing submissions from the parties at the mention on 29 September 2016, were designed to afford procedural fairness to the parties; the question of whether a fair minded lay observer might have reasonably apprehended that the Court might not bring an impartial and unprejudiced mind to the resolution of the question(s) the Court is required to decide should, in this Court’s view, be answered in the negative.
23. The mother’s Application in a Case filed 10 October 2016 shall be dismissed