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Mother Appeals Against Orders Dismissing Recusal Application

Markwell & Solberg [2021] FedCFamC1A 80 (9 December 2021)

Parenting orders were made with adverse findings as to the credibility of the mother, dismissing the mother's recusal application and requiring the parties to provide relevant reasons for judgment and orders to child welfare authority upon any notifications made. 

The mother lodged an appeal against said orders.  The Court, in deciding whether or not the appeal should be granted, assessed the reasonable apprehension of bias and considered the appellant’s delay in raising the application waived her right to object.

Facts:

Ms Markwell (“the mother”) has been involved in parenting and property proceedings with Mr Solberg (the father of her first child, B, who was born in 2010 (“the first respondent”) and Mr Ranwick (the father of her second child, D, who was born in 2017 (“the second respondent”) for some time.  

On 30 June 2020 the primary judge made a suite of parenting orders after a contested hearing.  In determining those proceedings the primary judge made adverse findings as to the credibility of the mother.  

As to D, the orders provided for the mother and the second respondent to have equal shared parental responsibility, if the mother lived within 200 kilometres of Town E, she was to live with the mother and spend time with the second respondent.  If not, the child was to live with the second respondent and spend time with the mother during school terms as agreed and during the school holidays in accordance with the orders.  

As to B, the mother and the first respondent were to have equal shared parental responsibility for her.  She was to attend school in Canberra and spend equal time with her parents during school terms, provided the parents both lived within the Canberra district.  Otherwise, B was to live with the first respondent and spend time with the mother, as agreed, until the mother moved to Canberra.

The mother had filed three Applications in a Case which remained unresolved by the time the reasons for judgment in the parenting proceedings were delivered on 30 June 2020 seeking leave to provide a copy of the Family Report to the Australian Federal Police and to others, recusal of the primary judge and that the proceedings be transferred to the Melbourne registry, and property orders.

The first application was granted and directions were made in respect of the property application.  The mother withdrew her application for recusal and change of registry. 

The mother’s appeal against the substantive orders made on 30 June 2020 included a ground asserting that the primary judge erred by not determining the recusal application prior to giving judgment.  The mother filed another Application in a Case on 28 July 2020 seeking the recusal of the primary judge as well as a stay of the parenting orders made on 30 June 2020 pending the appeal.  Both applications were refused on 3 August 2020 and 7 August 2020 respectively.  The appeal by the mother against the orders of 7 August 2020 was withdrawn at its hearing and accordingly dismissed.

On 7 August 2020, his Honour made specific orders to give effect to the final parenting orders of 30 June 2020. The 7 August 2020 orders set out the arrangements for B to spend time with her mother prior to the mother relocating to Canberra and specified the date on which D’s time with [the second respondent] was to commence in accordance with the orders of 30 June 2020.  In the event any of the parents made a notification to the police or a child protection agency in relation to either of the children, they were required to also provide to the police or child protection authority a copy of the orders and reasons for decision dated 30 June 2020 and a copy of the orders of 7 August 2020. The mother challenges the refusal of the primary judge to disqualify herself and the making of Order 3.  

Issue:

Whether or not the appeal should be granted. 

Applicable law:

Family Law Act 1975 (Cth) s 68B - provides that the Court is empowered to make injunctions as part of a suite of parenting orders. 

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2000] HCA 63 - provides that the test for apprehended bias is that a judge is disqualified “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide."
 
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51[1996] HCA 24 - relied upon by the mother in submitting that Order 3 “unduly, and in excess of jurisdiction, prejudices contact with services, indirectly conscripting services to ‘not believe’ any reports”. 
 
R v Watson; Ex parte Armstrong (1976) 136 CLR 248[1976] HCA 39 - referred to by the mother in submitting that the primary judge “has a fixed mindset that the [mother] is ‘not credible’ in every instance as there is no jurisdictional fact to sustain the validity of the order." 
 
Royal Guardian Mortgage Management Pty Ltd v Nguyen and Another (2016) 332 ALR 128; [2016] NSWCA 88 - provides that two significant features of the applicant of principle regarding waiver.  First, there was a precise point in time at which the appellant could have identified an element of pre-judgment, when there was a reasonable opportunity to object.  Secondly, the judgment itself may revive the earlier appearance of bias, in which case, there being no further opportunity to take objection, the ground is available on appeal.
 
Vakauta v Kelly (1989) 167 CLR 568[1989] HCA 44 - Brennan, Deane and Gaudron JJ said that a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. 

Analysis:

The matters relied on by the mother could and should have been raised earlier.  The primary judge found that by her delay the mother had waived her right to object.  The test for apprehended bias is that a judge is disqualified “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.  As the primary judge herself recognised, more than once, the earlier adverse comments as to the creditworthiness of the mother’s evidence, were something that could give rise to an appearance of bias.  The mother submitted that the primary judge “has a fixed mindset that the [mother] is ‘not credible’ in every instance as there is no jurisdictional fact to sustain the validity of the order”.  However, it is not at all apparent how the mother’s creditworthiness bore on her repeated notifications to child welfare authorities and the order that was made in respect of them. 

Conclusion:

The Court dismissed the Application in an Appeal filed on 15 September 2021 and the Application in an Appeal filed on 21 September 2021.  The appeal is dismissed.

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