Mother Files an Application for Recusal Against the Primary Judge
Corkhill & Corkhill (No 3) [2022] FedCFamC2F 1587 (18 November 2022)
The parties are in dispute over a prior judgment in a contravention application about lack of reasonable excuse when contraventions were admitted. An application for recusal was made by the mother based upon certain remarks that the primary judge made in the judgment. The Court, in resolving this dispute, assessed whether there was a lack of logical connection with matters to be raised at trial.
Facts
On 12 October 2022 there came before the Court the mother’s Application in a Proceeding filed 30 August 2022 supported by an affidavit of her instructing solicitor of 24 August 2022. The Application sought that the Court recuse myself from further hearings in this matter and in particular from the final hearing of the mother’s Further Amended Initiating Application for parenting orders filed 14 April 2022.
No responsive documents were filed on behalf of the father or the Independent Children's Lawyer in respect of the Application in a Proceeding but each made submissions in respect of the Application. A point was sought to be made by the Applicant mother that the father and the Independent Children's Lawyer in not filing answering documents in compliance with orders of 10 August 2022 were precluded by operation of Rule 5.05 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (“the Rules”) from being heard in opposition to the present Application.
There was no contention about the affidavit material filed in support of the application save and except that there was a point sought to be made on behalf of the Independent Children's Lawyer that such affidavit should not have come in through the Applicant mother's solicitor as there was a risk that that would make the solicitor a witness in the proceedings.
Insofar as the supporting affidavit contained submissions or conclusions about law they cannot and are not given any weight by the Court in determining the present application. The reasons given by the Court on 10 February 2022 in respect of the then pending Application - Contravention filed on behalf of the father (referred to as “the judgment" in these reasons) were provided to resolve a dispute between the parties as to whether a "reasonable excuse" had been made out on behalf of the mother in respect of admitted contraventions of parenting orders which were the subject of that Application – Contravention.
The present application for the Court to recuse itself based upon certain remarks that the primary judge made in the judgment which are identified by the applicant mother in the course of oral and written submissions are comprised by the following with references to the paragraph numbers used in the judgment: (a) "The Applicant father gave his evidence in a manner that was straightforward and, in the Court's view, candid." [23]; (b) "...the Court does not consider the father was avoidant in his answers to these specific questions and in his inability to identify a place of purchase of such items does not undermine his credibility generally.” [24]; (c) "The father admitted matter of factly that he smacked the children but not in anger. The Court accepts his evidence in this regard."[25]; (d) "The Court finds the mother’s attitude towards the father had hardened by September 2020." [32]; (e) "The mother’s evidence left little doubt in the Court’s mind that she was and remains angry with the father and held limited regard for him or his place in the children's lives" [33]; and (f) "The mother was at times defensive in her answers to questions put to her in cross-examination" [35].
Issue
Whether or not the application should be granted.
Applicable law
Analysis
The Court in expressing the views that it did at paragraph 24 was doing no more than rejecting the mother’s submissions about the credit of the father's evidence on particular issues which was said to have gone on to impugn the fathers credit generally.
The findings insofar as they are about the father's credit in relation to specific matters are not generally about the father's credibility as a witness beyond topics raised at the hearing of the contravention application which had been put to him under cross-examination.
There is no complaint that the Court expressed a preference for the evidence of one party over another. This is not a case as was the situation in Khalif & Khalif and Anor (No 2) ([2020] FamCA 73 ([23]-[25]) cited by the mother’s counsel where there were clear findings of credit about one party including findings that the giving of some evidence in that case by one party was "clearly false" and that the evidence of one party was to be preferred over that of the other party unless there was objective evidence to permit otherwise.
Whatever factors may have in fact influenced the outcome of the contravention proceedings, the test of the recusal for “apprehended bias” is concerned with that the fair-minded lay observer might reasonably apprehend that the judge might not determine an issue to come before the Judge with an impartial mind. This indicates there is a reliance or caution present.
The trial of the parenting application is not to be a hearing at which the evidence led during the course of the Application - Contravention is to be recast or the findings in the judgment in effect remade. It has not been demonstrated through the oral and written submissions of the mother how the “influence" referred to in the mother’s submissions might be reasonably likely to preclude an impartial consideration of the parties’ positions both in terms of their respective cases at a subsequent parenting trial or of the parties as sources of evidence in the light of all the evidence that might then be presented at a subsequent parenting trial.
Conclusion
The applicant’s Application in a Proceeding sealed 30 August 2022 be dismissed. The matter is listed for trial directions on 30 January 2023 at 10.00am.
