Mother Appeals decision of Judge not to recuse herself and Opposes Final Parenting Orders
Annesley & Pembleton [2022] FedCFamC1A 8 (7 February 2022)
The mother appeals against final parenting orders where the child is to continue living with the father and spend time with the mother and the parties are to have equal shared parental responsibility. The primary judge dismissed applications for recusal. The Court, in determining whether or not the primary judge erred, relied upon relevant jurisprudence's discussion of apprehended bias.
Facts:
Ms Annesley (“the mother”) appeals against the orders made by a judge of the Federal Circuit Court of Australia (as it then was) on 12 May 2021 which dismissed her application for sole parental responsibility and primary care of child X, born in 2016 (“the child”).
The orders provided that, inter alia, Mr Pembleton (“the father”) have equal shared parental responsibility with the mother and that the child live with him and spend time with the mother. Her Honour’s orders provided for the mother’s time to increase from term three 2022 by the addition of a further night in the intervening week. By reference to the Further Amended Notice of Appeal filed 22 October 2021, the mother seeks that should the appeal be allowed, the matter be remitted for rehearing.
The mother was the primary carer for the child until a life threatening illness required an extended period of hospitalisation for the mother. The primary judge understood that, consequent upon the mother’s recovery and her regaining adequate health, she expected the child to be returned to her care. The period of the mother’s hospitalisation was about ten months. Notwithstanding the mother’s apparent recovery, the father contended that there was now a close attachment with the child and it was not in the child’s best interests that the mother should resume primary care.
The father proposed that given his assessment that the parties would be able to reach consensus in respect of parenting arrangements, as and from 2022, the child should live with him and spend each alternate weekend, from Thursday to Monday, and half of the school holidays with the mother.
Whilst the mother was initially prepared to consider a shared care arrangement, her proposal at trial was that the child should return to her primary care and spend each alternate weekend and half of the school holidays with the father. The father sought equal shared parental responsibility whereas the mother considered that she was not easily able to stand up to the father and, as such, she sought sole parental responsibility.
The primary judge did not consider that sole parental responsibility would be in the child’s best interests.
Ground 1 of the Further Amended Notice of Appeal concerns a challenge to the determination of the primary judge that the evidence of Ms M (“the father’s previous partner”); Grounds 2 and 3 contend that the primary judge failed to recuse herself on the ground of apprehended bias; Grounds 4, 5, 6 and 7 complain that the primary judge fell into error by concluding that she could not find, on the balance of probabilities, that the father had perpetrated family violence; Grounds 8 and 9 assert that the primary judge was not sufficiently alive to the shortcomings inherent in the family report; Grounds 10 and 11 complain that the primary judge did not make orders restraining the paternal step-grandmother from spending unsupervised time with the child; Grounds 12 and 13 assert that the primary judge exceeded the reasonable ambit of the exercise of her discretion; and Ground 14 is a complaint that the primary judge did not give adequate reasons for the inclusion of Order 12 in the final orders made 12 May 2021.
Applications for the primary judge to recuse herself on the basis of apprehended bias were made on day one and day three of the proceedings. The first application was founded upon two issues, the first being the treatment by the primary judge of the admission of annexure “A” to the mother’s trial affidavit which comprises an offer from the father’s solicitors to the mother’s solicitors. The second issue concerns the refusal by the primary judge to grant leave for the mother to rely upon the affidavit of the father’s previous partner, Ms M. The primary judge dismissed the first and second recusal application.
Issue:
Whether or not the primary judge erred in dismissing applications for recusal.
Applicable law:
Evidence Act 1995 (Cth) s 135 - provides that he court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
(1) The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:(a) is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) contains opinions of persons not qualified to give them.
Bartlett & Bartlett (1994) FLC 92-455; [1994] FamCA 7 - support for the approach that the principles in Vakauta may not be applied as stringently in parenting proceedings.
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148 - provides that the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27 - provides that evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue.
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 - observed that challenges on the basis of bias ought to be dealt with ahead of other substantive challenges to the orders because if the ground of bias is made out, the remedy would be a retrial.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 - provides that the apprehension of bias principle 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.
Ellis v The Queen [2015] NSWCCA 262 - provides that although a number of these decisions seem to be based on the proposition that the conduct of the judge founded a reasonable apprehension of bias, that is not necessarily the case.
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 - relied upon in holding that counsel for the mother’s submissions in asserting either apprehended bias or actual bias impermissibly conflate the mother’s assessment of the proceedings with the test to be applied, namely “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”.
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 - provides that there can be no doubt that the reference to the effect that the evidence “could” have on proof of a fact is a reference to the capability of the evidence to do so.
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 - provides that a complaint of actual bias requires the complainant to demonstrate that the decision maker’s mind is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”.
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 - provides that without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision.
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3 - provides that the true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments.
Analysis:
Counsel for the mother argued that the primary judge fell into error by not granting leave for the mother to rely upon the father’s previous partner’s affidavit and, as such, that and what was submitted by the mother’s counsel to be the appearance given by the primary judge that the father was afforded “great leeway” in the conduct of his case, invited a finding of apprehended bias.
Counsel for the mother was challenged on appeal with the proposition that an assertion that the primary judge gave the father impermissible leeway in receiving his evidence, and that she had impermissibly assisted the father in the giving of his evidence, is a complaint of actual bias rather than apprehended bias.
Counsel for the mother failed to establish that the primary judge did not attend to the proceedings with an open mind, nor that she had an ulterior motive or was not capable of being able to carefully consider the evidence. There is no basis for counsel for the mother’s submission that there was some tacit or implicit agreement between the father’s counsel and the primary judge.
The primary judge’s conduct was transparent and submissions of counsel for the mother do not accord with her Honour’s transcribed remarks.
Conclusion:
Appeal EAA 55 of 2021 is dismissed. The appellant shall pay the respondent’s costs of and incidental to the appeal in the fixed sum of THREE THOUSAND NINE HUNDRED AND SIXTY DOLLARS ($3,960).
