FAMILY COURT OF AUSTRALIA

Duke-Randall & Randall (no. 2)	[2013] FamCA 986	

FAMILY LAW – DISQUALIFICATION – Application by mother to disqualify presiding Judicial Officer from further hearing the matter – Submissions made to the effect that the Judicial Officer was biased because of comments made on a previous occasion and because of sitting on a medical research board – Application dismissed.	

Menzies School of Health Research Act 1985 (NT) 	

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342
Re Shaw; Ex parte Shaw (1980) ALJR 12	

APPLICANT:	Ms Duke-Randall	

RESPONDENT:	Mr Randall	

FILE NUMBER:	PAC	2327		of	2011	

DATE DELIVERED:	17 December 2013	

PLACE DELIVERED:	Parramatta	

PLACE HEARD:	Parramatta	

JUDGMENT OF:	Hannam J	

HEARING DATE:	9 and 10 December 2013	

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Self-represented Litigant	

SOLICiTOR FOR THE RESPONDENT:	Self-represented Litigant	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Falloon	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW Penrith	
Orders
(1)	Order 1 and 2 sought in the Application in a Case dated 9 December 2013 be dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duke-Randall & Randall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Family Court of Australia at Parramatta	

FILE NUMBER: PAC 2327 of 2011

Ms Duke-Randall 	
Applicant

And

Mr Randall 	
Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT
1.	On 9 December 2013, when this matter had been fixed for commencement of final hearing, the Applicant mother in the proceedings (“the mother”) sought that I disqualify or recuse myself from further hearing of the matter on the basis of apprehended bias.  In particular, it was submitted that there was an apprehension that I had prejudged a central issue in the proceedings, that is, whether it was in the best interests of the children, the subject of these proceedings to be immunised.
2.	On 10 December 2013 I indicated that the application for disqualification was dismissed and that I would publish my reasons later.  These are those reasons.
Background
3.	This case concerns two children, J, who is 11 years of age, and L, who is almost 10 years of age (“the children”).  The matter has been on foot before the Courts since June 2011 when the proceedings were initiated in the Federal Magistrates Court, as it then was.  The proceedings were subsequently transferred to the Family Court and his Honour Justice Collier was the docket Judge who dealt with a number of interim applications.
4.	On 18 July 2013 Collier J fixed the matter for trial to commence in December 2013 and estimated seven days of hearing time.  Subsequently the dates were slightly changed to accommodate the Court’s calendar and the seven day hearing was to commence on 9 December 2013.
5.	The matter concerns parenting orders in relation to the children, and although the mother’s Initiating Application does not seek a final order in relation to immunisation, the father’s Response does seek an order that the parties do any things necessary to ensure the children are immunised.  In addition, the mother has at various times throughout the proceedings sought interim orders that the children not be immunised.  The issue of immunisation has been central to various interim hearings in relation to experts to be called and related matters.  
6.	The issue of immunisation remains a central one, with the mother opposed to having the children immunised in the strongest terms and the father contending it is in the best interests of the children to be immunised.
7.	In her application and in oral argument, the mother contends that the issue of prejudgment arises in two ways.  Firstly, she contends that in the course of a pre-trial mention, I made certain remarks which the mother says demonstrates my prejudgment in relation to immunisation, or particularly in relation to the fitness of parents who choose not to immunise their children.  Secondly, the mother contends that by virtue of my membership of the Board of the Menzies School of Health Research I have also demonstrated my prejudgment of that issue.  In this regard, the mother contends that the Menzies School is a body in favour of vaccination, and also receives support from pharmaceutical companies which manufacture vaccines, and that as a Board member I must support the views of the researchers at the school.
First basis: Remarks made on 14 November 2013
8.	The mother asserts in her unsworn and unfiled affidavit that on 14 November 2013, in the course of the a trial readiness check, I said words to the following effect:
The children are at risk while they remain unvaccinated, so this matter cannot wait another three months.
9.	Whilst I had some recollection about comments made concerning delay in circumstances where, whilst the matter was pending, the children were not immunised, I did not recall saying the words I was alleged to have said.  The mother did not annex a transcript of 14 November 2013 but relied on notes she said that she took as to the words she says were spoken.
10.	With the parties’ consent, I adjourned the matter and listened to the audio of the Court’s proceedings on 14 November 2013.  I did not find that I spoke any words to the effect asserted by the mother, but did find that I said the following words:
I am concerned if it were ultimately to be found in the children’s best interests that they should be immunised to be putting something off for another date.  What if their health were compromised on the very issue of immunisation?; if they were to contract an illness and become very ill from it if they weren’t immunised, where normally that is something a parent can do in the exercise of parental responsibility.
11.	The mother explained in argument later that she was concerned that her custody of the children, if there was a bias towards vaccination, deeming her as being a negligent parent in some way, could be jeopardised.  She said she understood the effect of what I had said in respect of delaying the hearing to be putting the children at risk, as there was a connection between delay and the risk relating to them not being vaccinated for the period of the delay. 
12.	The comments on 14 November 2013 arose in the context of a trial readiness check in which the Independent Children’s Lawyer sought to sever the issue of immunisation from the other general parenting matters and for the immunisation issue to be determined at a later date, yet to be fixed.  That application arose because there was concern by the Independent Children’s Lawyer that key expert witnesses in relation to each of these issues were both only available on the same day and that the expert immunologist had not yet had an opportunity to consider a very large affidavit (384 pages) that had been prepared by the expert sought to be relied upon by the mother.
13.	On 14 November 2013, I had some concerns about severing the immunisation issues, and adjourning to a future indeterminate date, as there were a number of unresolved matters concerning witnesses and statements in relation to that issue.  I was also conscious that this matter had a long history and previously trial dates had been vacated, and that while the matter was pending, the children remained unimmunised.  
14.	In the course of an interchange between counsel and myself concerning the issue of separating the two matters and adjourning the immunisation issue to a future undetermined date, I made the comment, which has been taken from the audio of the Court proceedings and extracted in paragraph 10 above.
Second basis: Membership of the Board of the Menzies School of Health Research
15.	It is beyond dispute that I am a member of the Board of the Menzies School of Health Research (“Menzies”).  Menzies was established as a body corporate of the Northern Territory Government under the Menzies School of Health Research Act 1985 (NT) (“the Act”) and is now a controlled-entity of Charles Darwin University.
16.	The Act provides that the school is accountable to its own Board, of which I am a member.  The functions of Menzies set out in the Act include promoting improvement in the health of people in tropical and central Australia by establishing a centre of health research and health education, advancing knowledge in the fields of health research and health education, and using knowledge to improve methods of prevention, diagnosis and treatment of disease.
17.	Under s 33 of the Act the Board appoints a Director who, subject to the directions of the Board, is responsible to the Board for the financial and administrative management of the School, including the direction of all clinical, medical and scientific research of the School.  Board members are not authorised under the Act to play a role in applying for research grants, defining topics for research, nor does the Act provide that Board approval is required for any decisions in relation to research.
18.	The mother sets out in her affidavit an extract from the Menzies’ website dealing with research concerning indigenous children’s health and development.  On a page concerning research about vaccination the following words appear:
Rotavirus hospitalisations are more prevalent in the Northern Territory (NT) than anywhere else in Australia.
Menzies have a major focus on immunisation and vaccine-preventable diseases and are investigating ways to improve management of common diseases that affect indigenous children, such as the rotavirus vaccine.  This vaccination became routine for NT infants in October 2006.
Our research focus:
•	To investigate the effectiveness of the rotavirus and other vaccines in the NT.
Our research impact:
•	A Menzies study called ‘PneuMum’ established that vaccination of mothers has led to increased antibody transfer to their babies.  This is a step towards establishing whether mother’s can transfer antibody protection to their babies through breast milk – ultimately preventing ear disease.
19.	In addition, the mother says that the major supporters of Menzies, also listed on the Menzies’ website, include the companies GlaxoSmithKline Australia, the Wellcome Trust and the Bill and Melinda Gates Foundation, and these entities, the mother says, either manufacture vaccines or promote vaccination.
Mother’s Submissions
20.	It was submitted by the mother that I have views in favour of immunisation as demonstrated in the comments made on 14 November 2013 and by my membership of the Board of Menzies, and that these views will colour all of the hearing.  It is contended that in my remarks and by virtue of my Menzies Board membership I have shown prejudgment towards vaccination and I would, therefore, consider that any parent who is not in favour of vaccination is putting their child at risk.  It is further contended that I will determine the matter on the basis of my alleged prejudgment, regardless of the evidence.
21.	It is submitted that the inference from my comments on 14 November 2013 was that there was a connection between the children being put at risk from not being immunised and the hearing being delayed, which evidence bias.
22.	So far as Menzies is concerned, it is submitted that as a Board member, it can be assumed that I support a major focus of research, which the mother contends is immunisation.  Further, the mother argues that as Menzies receives funding from pharmaceutical companies, which are asserted by her to be Australia’s largest vaccine companies, this will further put pressure upon me to make a decision that vaccination is in the best interests of the children, irrespective of the evidence.
23.	In relation to the comments made on 14 November 2013, I am dealing with the application on the basis that I said the words extracted in paragraph 10 above, rather than what is asserted in the mother’s affidavit.  As the oral argument progressed, the mother seemed content to deal with the application on the basis that the impugned comments are those extracted in paragraph 10 above.

The Law
24.	The test for disqualification on the grounds of apprehended bias, set out by the High Court in Ebner v Official Trustee in Bankruptcy, is as follows (at page 344 to 345):
… 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. …
25.	In that case, the High Court went on to say that the application of the principle requires two steps.  First, it requires the identification of what is said might lead a judge to decide a case other than on its legal and factual merits.  Secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
26.	The first question to determine is whether the remarks and the Menzies Board membership does evidence prejudgment.  If it is found that the remarks and/or the Board membership do demonstrate a prejudgment then there must also be a logical connection between this position and the possibility of departure from impartial decision making.  It is not sufficient that the subject matter of my remarks and the subject matter of the research conducted by Menzies is the same as a central issue in the hearing.  The connection which must be established is the connection between the comments and/or the Board membership and the possibility of departure from impartial decision-making.
27.	Comments made by judges have been the subject of a number of cases involving applications for disqualification.  In another High Court case concerning this issue, Johnson v Johnson, Kirby J explained that, whilst it may have been traditional in the past for a judge to remain silent throughout the hearing, this is now regarded as carrying risks of even greater injustice.  His Honour considered that there have also been changes in the administration of justice, which means there is an increase in the number of trials by a single judge, which also involves an adjustment to the roles “of reticence in judicial observations” compared to jury trials. This is particularly applicable in the case in the Family Court where all trials are conducted by a judge alone.  Further, His Honour said in that context the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment.
28.	In Johnson (supra), the Judges who delivered the joint majority decision observed that (at page 493):
… two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
29.	In R v Watson; Ex parte Armstrong, the Judges who delivered the joint majority decision distinguished the nature of remarks made during preliminary proceedings and those made during final hearing. Their Honours said (at page 264):  
The remarks on which the wife’s submission was founded were made during argument in an interlocutory proceeding. One must be careful not to exaggerate the importance of remarks of that kind. During the course of argument a judge will often follow the common, and sometimes necessary, course of formulating propositions for the purpose of enabling their correctness to be tested, and as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory.
30.	In my view, a fair-minded lay observer may conclude that through these comments I made the connection between immunisation and the prevention of disease and illness as I expressed a concern that for as long as the children were not immunised they may contract an illness and become very ill.  
31.	There is no dispute about my membership of the Board of Menzies, nor about the matters appearing on the Menzies’ website.
32.	The website information does include the words “Menzies have a major focus on immunisation and vaccine preventable diseases” which does imply that certain diseases are preventable by vaccination and Menzies is focused on this topic as a subject of research.  However, I note that the particular research referred to on the website page relates to the vaccination of mothers and antibody transfer to babies, and is concerned with rotavirus in indigenous children, none of which are relevant to the issues of vaccination in this case.
33.	Having regard to the role of a Board member, I do not consider that any fair-minded lay observer would apprehend that I had formed a view in favour of immunisation simply because research conducted by researchers attached to Menzies demonstrated the effectiveness of vaccines in certain populations with respect to particular illnesses. Nor do I consider that any fair-minded lay observer would conclude that Board membership of a body that receives funding from pharmaceutical companies or bodies such as the Bill and Melinda Gates Foundation would result in the conclusion that I had prejudged the issue of immunisation.
34.	Accordingly, in my view, a fair-minded lay observer might conclude that I had given thought to the issue of vaccination and had made a connection between the prevention of illness and immunisation on the basis of the remarks I made, but would not draw this conclusion on the basis of my Board membership.
35.	In my view, the idea that a judge has given some thought to the issue of vaccination is hardly unexpected, especially as it is an everyday matter and as one would expect that many judges are parents themselves.
36.	However, even if it were considered that I had given thought to the issue of immunisation, in order to disqualify myself something further would need to be established.
37.	In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, another matter considered by the High Court, Gaudron and McHugh JJ said (at page 100):
	A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry [citations omitted]. When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. … This Court rejected the notion that a fair and unprejudiced mind was "necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it".
38.	The issue in relation to immunisation in this case is whether, on the evidence, immunisation is in the best interests of these particular children. As I understand the mother’s case, it is that, due to the particular characteristics of these children, that there is an unacceptable risk of them being harmed if they were to be vaccinated and, on that basis, it is not in their best interests for that to occur.
39.	The mother asserts that I am so prejudiced in favour of a conclusion already formed that I will not alter that conclusion irrespective of the evidence and argument presented to me.  When this contention is closely considered it seems to involve a suggestion that I have a predetermined opinion about vaccination generally, which I will apply to this case, regardless of the evidence about these specific children.
40.	In Laws v Australian Broadcasting Tribunal (supra), their Honours Gaudron and McHugh JJ said in relation to the Re Shaw; Ex parte Shaw
… the transcript showed that a judge of the Family Court of Australia had expressed opinions adverse to the case for the husband before his counsel had opened his case. Nevertheless, Gibbs A.C.J., with whose judgment Stephen J. and Wilson J. agreed, said that the evidence did not justify “a conclusion that the views which the learned judge expressed, although strong, were other than provisional, or that it could reasonably be suspected that at the end of the case she would not decide with a fair and unprejudiced mind”.
41.	Further, in Re J.R.L.; Ex parte C.J.L., another High Court case dealing with disqualification for apprehended bias, Mason J expressed this caution (at page 352):
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established" [citation omitted].
42.	Other than by simply making a general assertion that I will disregard the evidence, the mother does not say why a fair-minded lay observer would conclude that I will decide the case on the basis of my alleged prejudgment, rather than on the evidence.  
43.	In the absence of any acceptable basis for that inference, and having regard to the “training, tradition and oath” [which] required [me] to discard the irrelevant, the immaterial and the prejudicial”.  I am not satisfied that a fair-minded lay observer would hold the reasonable apprehension required to form the basis for me to disqualify myself.
44.	Accordingly, the application is dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on                17 December 2013.

Legal Associate:  	

Date:  			17 December 2013