Heard before the Full Court of The Family Court of Australia
The mother in these proceedings sought orders that the child relocate from New South Wales to Brisbane. Family law parenting orders were made by the primary judge of the Federal Circuit Court on 26 September 2019.
An appeal was brought by the father on the basis of apprehended bias which denied the father a fair trial due to the conduct of the primary judge during the trial proceedings. The unusual aspect of this case, was that the conduct of the primary judge was directed towards the father's solicitor and barrister rather than to the father himself.
This case gave rise to the question, can excessive judicial intervention of a party's legal representative rather than a party themselves, give rise to apprehended bias, an unfair trial or miscarriage of justice? The answer is yes.
The issues in this matter were described as:
Excessive interruptions by the primary judge.
Impugning the honesty of the father's Queen's Counsel.
Impugning the professionalism of the father's Queen's Counsel.
Hectoring, bullying, insulting and demeaning.
In the appeal judgement the judges stated that during the proceedings the Queen's Counsel for the father was unable to speak more than about three sentences without interruption from the primary judge.
Impugning the honesty of the father’s Queen’s Counsel
During submissions on the first day, the Queen's Counsel for the father told the court an incorrect date for the return of subpoena documents, instead providing the subpoena application date. The primary judge admonished the Queen's Counsel for the error and continued to do so during the proceedings, inferring that the Queen's Counsel had been dishonest, untruthful or that he could not be relied upon.
Amongst the comments made by the primary judge included:
- "There’s a real problem in terms of information being provided as to its accuracy and/or truthfulness."
- "That turns out to be untrue. That’s why I’m going to require evidentiary reference during the course of this trial. That’s one of the reasons. Keep going, please, accurately making your application."
- "...because earlier today, the very first fact that was specified turned out to be either incorrect or untrue"
- "You’re not just making it up. There must be a basis to it, I would have thought..."
- "like the submission that was made first thing this morning that turned out to be either incorrect or untruthful..."
- "The reason I say that is because of what happened earlier this morning."
- "So, when we check the accuracy of information that’s provided, yet again it falls short. Go ahead. There’s a real problem in terms of information being provided as to its accuracy and/or truthfulness."
- "We’ve ascertained that that is either an untruth or incorrect."
The Family Court in its judgement stated at paragraph 35 "The aspersions cast by the primary judge on the honesty of the father’s Queens Counsel were without justification and should not have been made."
Impugning the professionalism of the father’s Queen’s Counsel
The primary judge made comments on the Queen's Counsel's preparation, presentation, conduct in court, dress and demeanour.
The comments made by the primary judge included:
- "Is there something else?" And I’m sure that it was loud enough...but, anyway, we will go through this charade..."
- "Would you pay me the courtesy of seeing whether or not I’m ready. I have been now for about 20 seconds. You asked me to turn to it. I’ve immediately – wait."
- "The record will indicate that you’re leaning forward about to speak while I am talking. All right. You asked me to refer to a document. I did. I opened it. Again, I am speaking. I opened it and waited. There must be something that you want to say to me about that document."
- "Take it, as I’ve said earlier, that I can read English. Thank you."
- "Please continue with your very helpful submissions. We’ve managed to waste five minutes identifying that it’s the very matter that we dealt with before lunch. Acknowledge that that has occurred..."
- "that you seem to either not gather or not want to gather – I’m not sure which it is – but that that is the very subpoena that we identified before lunch, so therefore it should have been a very simple matter to refer to it, rather than the Punch and Judy Show that we’ve been going through in relation to which subpoena it is. It’s really like a really bad Monty Python skit."
- "Do not be obtuse or rude. Try and improve from yesterday. Your performance was disgraceful. Answer my question."
- "Thank you. That only took three times today. Is there anything irregular about your client’s affidavit filed on 27 March 2019? That’s the third time I’ve asked that question."
- "It only took about 10 seconds. Is there anything irregular about that document that you would have noticed in your thorough preparation of the matter – both you and your solicitor – in your very thorough preparation?"
- "The record will indicate that I said that. Attend to me, Mr Page. Acknowledge that you will do that."
- "Because you’ve just made a mess of that request that I asked of you. This is pathetic"
- "That is absolute garbage."
- "Yes, right. Good. Now, address what it is that I’m talking to you about, rather than having your own shot. I notice that you stand a little bit upright as if jolted."
- "Oh, dear. It’s almost... just a waste of time, really. I had hoped that it might be... instructive and of assistance, but seemingly it can’t be. Probably a fortiori with respect to my comments this morning."
- "Pathetic. Let’s go through what it is that’s outstanding. I don’t want to have to do the job. So I wait to be addressed. Get on, please."
- "I didn’t say that you were. That’s why I asked you to adjust. That’s why I asked your solicitor to assist you. It’s unbelievable. A fortiori, with respect to your comment yesterday about what you remembered, I was actually asking you at that stage about this documentation, but because of your level of self-focus as opposed to what your focus should be, you answered accordingly,"
- "Thank you very much. I thought we got through that on the first day. That’s a further amplification of your behaviour. Just continues"
Hectoring, bullying, insulting and demeaning
On the third day, the Queen's Counsel for the father withdrew from the proceedings. The father's solicitor then appeared before the Court and made submissions. The primary judge made the following comments to the father's solicitor:
- "Just – just wait. You “just” – what does that mean?"
- "No, no. What does “just” mean?"
- "I don’t understand what “I just” means."
- "There’s no such thing as “I just”. You either do or you don’t, correct?"
- "That’s why I asked. I need clarity. I need particularity."
- "No, no. It doesn’t mean anything to me. Don’t look askance...On the record I will note your demeanour, looking away, looking down."
- "I beg your pardon. When I’m speaking, don’t. Acknowledge."
- "How is it that, in – how is it, in a case outline document where there’s only – looking away, for the record."
- "I factually saw you doing that. That’s why I put it on the record. How is it, in a document that might only run to, I don’t know, maybe 10 orders, that one can’t even refer to the correct number of the order before? What’s that – what’s the explanation for that?"
- "Correct. Gee, that- it’s not me...Clearly, it’s not me that has got the cognition problem."
- "Rack your mind and your conscience about that. All right. I will give you 30 seconds on the clock before I want you to speak. That will indicate to me that you’ve – what was that?"
- "All” is one of those words like “just”. You either are or you’re not. It’s a qualification word. That’s what I was wanting to get from you in terms of your comprehension and understanding of the English language earlier when I was asking about “just”.
- "It was an “adjective” about 10 minutes ago. Now it’s an “adverb”. Keep going."
- "What am I talking about? You immediately said, “Sorry,” so you knew what you hadn’t done. What am I talking about? Please don’t try to divert my attention. I’m not a goldfish."
- "it down. You’ve not been of any assistance to me at all. All you’ve done is waste the court’s time because of, effectively, your lack of preparation and your character. You need to do something about that...Been keen to talk so far. For the record, [solicitor] is standing dumb."
- "So, what I actually mean – I do it in shorthand to try and save time, but obviously that’s futile in these circumstances. I don’t understand, in context, a solicitor standing in front of me and saying, “I have a query.” I’m not an information booth."
A key issue arising from the conduct of the primary judge is, did his conduct during the proceeding act so as to cause an apprehension of bias? This goes to the right that every person who comes before a court should be able to receive a fair trial. At the heart of a fair trial is an impartial and un-bias adjudicator.
At paragraph 100 of the judgement the judges stated "Whether conduct gives rise to an apprehension of bias is answered by considering whether a fair-minded and informed lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues in the case, such that he or she was not open to persuasion, rather than whether he or she did so (see Johnson v Johnson (2000) 201 CLR 488 at ; Ebner v Official Trustee in Bankruptcy  HCA 63; (2000) 205 CLR 337 at –)."
The judges found that the primary judge had failed to afford the father a fair trial and that there was an apprehension of bias. As a result, the father's appeal was allowed, and the matter was remitted for a new hearing in the Federal Circuit Court.
Right to a Fair Trial
While the appeal was found for the father on the basis of apprehended bias, further questions were raised about what it means for a party to receive a fair trial before a court. Where a party does not receive a fair trial it amounts to a miscarriage of justice.
At paragraph 13, the judgement refers to the NSW Court of Criminal Appeal case of Ellis v The Queen  NSWCCA 262 said "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. A miscarriage of justice will occur in circumstances where the conduct of the judge prevents a party from properly presenting his or her case…"
At paragraph 107 of the judgement we are referred to the case of Finch & Finch  FamCAFC 60; (2020) FLC 93-949:
"(c) The evaluation of whether interventions are excessive involves an assessment and balancing of the appropriate role and limits of judicial engagement and management, with the need for the appearance of detachment, and the provision of fairness...
(e) Nonetheless the judge must not assume the role of advocate, or be unduly intimidatory, interventionist or directionist, nor unduly press so-called “preliminary views”...
These cases make it clear that a judge's role is not just to provide an impartial judgement, but to allow each party to present their proper case, be fair toward each party and not behave in an intimidatory or interventionist manner.
The father in family law parenting proceedings brought an appeal against final parenting orders made by the primary judge. The primary basis of the appeal pressed during the appeal proceedings was that the trial was unfair on the basis of an apprehension of bias and that as a result there had been a miscarriage of justice.
This appeal considered the behaviour of the primary judge, Queen's Counsel for the father and the solicitor for the father. After evidence was admitted of both the transcript and audio recordings of the primary proceedings, the appeal court identified a long list of communication between the primary judge and the Queen's Counsel and solicitor for the father that was of concern as it related to the conduct of the primary judge.
After considering the primary judge's conduct, the appeal court determined that he intervened excessively and unduly accused the father's Queen's Counsel of being dishonest and unprofessional. After the father's Queen's Counsel withdrew, the father's solicitor appeared. The Cour