Father Opposes Dismissal of Application for Judge to Recuse Herself

Reema & Baboor [2021] FedCFamC1A 19 (24 September 2021)

The primary judge made orders for the mother to have sole parental responsibility for the child, for the child to live with the mother and spend no time with the father or paternal grandparents.  The father filed an application seeking that her Honour recuse herself from further hearing the parenting and property settlement proceedings between the parties.  The Court, in assessing whether the father's appeal has merit, determined whether or not apprehended bias was demonstrated and examined the primary judge's power pursuant to s 69ZR(1) of the Family Law Act 1975 (Cth).

Facts:

The parents began cohabiting in Australia in about 2009 and were married in January 2011. Their child X was born in 2015 in Australia.  The parents lived in the home of the paternal grandparents in Sydney from about 2015 onwards.  The mother contends that throughout the relationship the father perpetrated family violence against her, which violence escalated to severe physical and sexual abuse.  She further contends that the paternal grandparents turned a blind eye to the father’s behaviour, and to some extent engaged in coercive conduct towards the mother while they lived together.

The mother deposes that the father physically assaulted her, including by choking her, engaged in sexual abuse and particularly degrading sexual conduct towards her, and that she experienced a physical injury as a result of these assaults.  She says that the paternal grandmother removed the child from the parents at one stage to allow the assault to continue.  The father denies any of the violence alleged by the mother and contends that he poses no risk of harm to the child.

The parents separated in early May 2018 when the mother left the paternal grandparents’ home with the child and attended a police station.  A provisional Apprehended Domestic Violence Order (“ADVO”) in favour of the mother against the father was made on the same day.  On 8 May 2018, the father commenced proceedings in the Federal Circuit Court of Australia seeking interim and final parenting orders that he spend supervised time with the child at a contact centre for two hours each Saturday. 

The mother filed a Response seeking parenting and property settlement orders.  The mother sought interim parenting orders that she have sole parental responsibility for the child, that the child live with her and spend no time with the father or the paternal grandparents.  Interim parenting orders were provided for the mother to have sole parental responsibility for the child, for the child to live with the mother and spend no time with the father or paternal grandparents.  A final ADVO was made against the father for the mother’s protection for two years.

On 15 November 2019, the father filed an Application in a Case and supporting affidavit seeking that the primary judge disqualify herself by reason of apprehended bias, which application was supported by the paternal grandparents.   The primary judge dismissed the application.  On 9 November 2020, by amended Notice of appeal, the father appeals from an order made by a judge of the Family Court of Australia on 29 May 2020, dismissing the father’s application filed on 15 November 2019 seeking that her Honour recuse herself from further hearing the parenting and property settlement proceedings between the parties.  The mother brought an appeal as of right, and leave to appeal was not sought.  

The mother sought her costs on a party/party basis and such application was not opposed. 

Issue:

Whether or not the grounds of the appeal have merit. 

Applicable law:

Family Law Act 1975 (Cth) s 69ZR - provides that if, at any time after the commencement of child related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:

(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c) make an order in relation to an issue arising out of the proceedings.

Ebner v Official Trustee in Bankruptcy(2000) 205 CLR 337; [2000] HCA 63 - where the test for disqualification for apprehended bias appears.   Her Honour applied the test by considering the first step, namely the identification of what it is said might “lead a judge to decide a case other than on its legal and factual merits”.

AGF and LLS (Apprehension of bias) (2005) FLC 93-210; [2005] FamCA 13 - where no argument was provided by counsel or sought by this Court, noting that the prevailing view at the time was that leave to appeal was not required. 

Analysis:

The father asserts that Her Honour erred in failing to apply the proper principles to a determination of the application, including by engaging in a search for indicia of actual bias (Ground 1).  The father also claims that Her Honour erred in failing to accede to the application for disqualification (Ground 2) and that Honour erred in considering that no findings had been made (Ground 3).  Her Honour was able to make findings for the purpose of determining the interim application, observing that the effect of no time between the father and the child could be addressed by family therapy, and that the father may be seen as attempting to exert control over the mother by refusing consent to travel.  She “assessed the probability at the final hearing of the father being found to pose an unacceptable risk of harm to the child”. 

It was within power for her Honour to refuse to determine at the hearing of 15 April 2019, the father’s application filed that same day seeking to revisit the interim parenting orders made on 1 November 2018, and to indicate that that application would have to be heard in the usual course.  The principle emanating from Rice and Asplund applied, and the father would need to demonstrate a sufficient change of circumstances “was an accurate statement of the law”.  

Her Honour, by exercising her power is not, merely because of doing that, required to disqualify herself from further hearing the proceedings.  Her Honour weighed the risks on the basis of the evidence and arrived at a position where there should be no order for the child to spend time with the father (or the paternal grandparents) pending trial; entirely unremarkable and not suggestive of any apprehended bias.

Conclusion:

The Court concluded that apprehended bias was not demonstrated and that none of the grounds of the appeal have merit.   The Court dismissed the appeal.  The appellant father is to pay the costs of the respondent mother incidental to the appeal fixed in the sum of $9,480.