Aldridge v Keaton

1. The Respondent father's Application filed 30 May 2025 seeking the recusal of the Honourable Justice Howard be dismissed.
2. The Respondent father's Application filed 30 May 2025 seeking a stay of the proceedings be dismissed.
3. The balance of the Respondent father's Application in a Proceeding filed 30 May 2025 be dismissed.
4. The Registrar of the Federal Circuit and Family Court of Australia (Division 1) shall do all things necessary to remove the name and place of employment of the solicitor referred to in the father's Affidavit filed 29 May 2025 at paragraphs 16 to 23 (inclusive), from the Court record, including all transcripts and Court recordings.
5. Paragraphs 16 to 23 (inclusive) of the Respondent father's Affidavit filed 29 May 2025 be struck out pursuant to rule 8.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on the basis that those paragraphs are scandalous.
6. The recordings annexed to the Respondent father's Affidavit filed 29 May 2025 (relating to the content of paragraphs 16 to 23 (inclusive) of the said Affidavit) be struck out pursuant to rule 8.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on the basis that those recordings contain or are likely to contain scandalous material.

1. Orders 9 and 10 are made to give full force and effect to Orders 7 and 8 and to give full force and effect to the Reasons for Judgment delivered Ex Tempore on 2 June 2025.

1. The Respondent father be restrained by injunction from publishing or republishing or relying upon any of the allegations which refer to the Court or to the Presiding Judge contained in paragraphs 16 to 23 (inclusive) of the Respondent father's Affidavit filed 29 May 2025 and also contained in the recordings annexed to the Respondent father's Affidavit filed 29 May 2025.
2. The injunction contained in Order 9 shall remain operative unless leave is granted to the father to rely upon any of the stated paragraphs or recordings and such leave can only be granted by a Judge of the Federal Circuit and Family Court of Australia (Division 1) or by a Judge of the High Court of Australia.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

These reasons for Judgment were delivered Ex Tempore on 2 June 2025 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.

1. This matter came on for trial today, 2 June 2025. There are outstanding parenting and property issues but the parenting will be addressed first. Before getting to that, other matters have arisen, including an application brought by the father that I recuse myself from further involvement in these proceedings on the grounds of both actual bias and apprehended bias and reference is made to the father's affidavit, filed 29 May 2025. The father, in fact, not only filed an affidavit on 29 May but also on 30 May 2025. As long ago as October 2024 the father had flagged the possibility that he would be applying again for me to recuse myself. The father has, again, waited until the very eve of the trial to bring a recusal application. I say "again" because it is somewhat reminiscent of the events of March 2023. The father's affidavit, filed on 29 May 2025, is approximately 90 pages long and it attaches approximately 990 pages of annexures. The second affidavit filed by the father on 30 May 2025 comprises approximately 90 pages (the Court record indicates that the Application in a Proceeding was filed on 30 May 2025).
2. In the Application in a Proceeding that was forwarded to the Court by the father on 30 May 2025 and which I heard this morning, apart from the recusal order sought, the father seeks an order that the matter be listed before another Judge of this Court for further case management and also in the event that I decide not to recuse myself, the father seeks that the proceedings be stayed, pending the outcome of an intended application by the father under the Commonwealth Constitution for a writ of prohibition to prevent any potential impact of interim or final orders which may adversely affect the welfare and best interests of the children.
3. A matter arose as part of the application for recusal relating to various paragraphs contained in the father's affidavit filed 29 May and there may well be some references also in the affidavit filed 30 May. And the matter upon which I sought submissions was essentially the admissibility of those paragraphs. This really arose because the father pressed the point this morning in his submissions that he wanted to rely upon recordings which - it is said by the father, are relevant to paragraphs 16 through to 23 of his affidavit which was sworn on 29 May 2025 and forwarded on that date to the Court. I'm noting for the record that that affidavit is accepted as filed on 29 May 2025 along with the (approximately) 990 pages of annexures. I'm accepting and directing that the father's other affidavit that says at the bottom of it on the left-hand side it was sealed on 30 May 2025 4.07 pm ACT time was filed on that date even though it bears another date (31 May 2025). It may well have been filed on the earlier day as well but it was clearly re-filed on 30 May 2025. For the Court record I'm noting the filing dates of those two affidavits upon which the father relies.
4. I will start by noting the following:

(a) When Court commenced this morning the Court was informed by Mr Woods, Counsel for the mother, that the mother was unwell, that she had apparently gone missing on the weekend; and

(b) The mother was registered "as a missing person" on the weekend; and

(c) When I inquired further, Mr Woods - with the assistance of his instructing solicitor - was able to ascertain that the mother was presently at the AZ Hospital. Although the Court as yet does not have any evidence in relation to why it is that she is at the AZ Hospital. There is no evidence as to her health at this point.

1. Ms Wardle of Counsel instructed by O'Sullivans Law Firm appeared for the father at the commencement of today. For clarity, Ms Wardle told the Court that she was briefed by O'Sullivans Law Firm and both her and O'Sullivans Law Firm are funded by Legal Aid Queensland. But Ms Wardle told the Court that she was not briefed to appear for the father in respect of the recusal application. The father is a self-represented litigant in the recusal application. Mr Woods, (instructed by Ms Plint) appears for the mother and Ms Hellewell appears as Counsel instructed by the Independent Children's Lawyer. Ms Smithson is the Independent Children's Lawyer. During a Case Management Hearing last Monday 26 May 2025 the Court heard from Ms Plint Solicitor for the mother and Ms Smithson the Independent Children's Lawyer. On 26 May 2025, Ms Stewart, solicitor, appeared for the father. Her firm, Queensland Legal Practice, were the solicitors on the record for the father at that point in time. Ms Stewart told the Court that she had, on the previous Friday - which I take to be 23 May 2025 - briefed Mr M of Counsel. Ms Stewart had forwarded a brief to him comprising thousands of pages. And that by the Monday (26 May 2025) when the matter was on for case management hearing, Mr M had read the brief. Ms Stewart and Mr M held a conference by Zoom about midway through last week - I understand it was Wednesday - with the father. After that conference those lawyers came to the conclusion that they could no longer act for the father or appear on his behalf. Ms Wardle told the Court, when she was at the bar table earlier for the father, that she understood there had been some form of conflict which meant that the lawyers had to withdraw. And they did withdraw. I am told that what then occurred was that the father filed a Notice of Address for Service in his own name. Subsequently, O'Sullivans Law Firm filed a Notice of Address for Service. That firm on behalf of the father then briefed Ms Wardle.
2. In a happy coincidence, Ms Wardle had previously been briefed for the father. It is of some comfort to the Court that she will at least be aware of some of the history of this case. Although she has not have been involved for three years. I am giving all of that history because I note that, in particular on 26 May 2025, Ms Stewart for the father, informed the Court that the father had instructed her that he would be bringing an application for recusal and an application for adjournment. I made it clear on that occasion - as I have in the past, (including by way of an Order I made on 10 October 2024) that in the event that either party wished to bring any interlocutory application or further application, they would need to do so by filing and serving an Application in a Proceeding with an accompanying affidavit. On Thursday 29 May, the father forwarded to the Court his proposed affidavit. And on Friday 30 May, the father filed a further affidavit and that is also the date that the Application in a Proceeding was filed.
3. A preliminary aspect to this preliminary application, relates to certain paragraphs in the father's affidavit of 29 May, which are accompanied by certain recordings. The father wanted the Court to hear the recordings. I was wary of listening to the recordings because I did not want to put myself in a position where it would be inappropriate for me to hear the trial. I therefore directed that, first of all, the father make the recordings available and he downloaded the recordings to a USB stick. Then I directed that Counsel for the Independent Children's Lawyer, Ms Hellewell and the Independent Children's Lawyer, as well as Counsel for the mother, Mr Woods, and his instructing solicitor, listen to those recordings. And then I wanted to hear from those lawyers and from the father about a number of matters - including whether or not the paragraphs and the recordings were relevant to the recusal application. That was one aspect. Another aspect was whether those paragraphs and the recordings should be struck out on the basis that they are objectionable - because of the scandalous nature of (at least) the paragraphs. I am aware of what is in the paragraphs because I have read them. I have not listened to the recordings and I do not consider it appropriate for me nor is it necessary for me to listen to the recordings.
4. My view in that regard, is confirmed by a decision in 2022 of the Court of Appeal in Queensland in a matter called Dupois v Queensland Police Service & Anor [2023] QCA 44. In paragraph 16, the Court stated that the relevant affidavits contained an abundance of assertions by Mr Dupois of judicial corruption by various named Magistrates and of serious professional misconduct against named court officers and police officers. The Court said the allegations have not been tested and that a cursory reading of the affidavits suggested that the admissibility of many parts of the affidavits which advance the allegations is at least doubtful. And the Court quoted Morrison J where he had said at paragraph 34 (of his earlier decision), his Honour had specifically expressed the view that the opinions expressed by Mr Dupois were scandalous and without basis. In that case, neither Morrison J nor the Court of Appeal listened to the tapes. That is confirmed in paragraph 16(a), where the Appeal Court said:

"We have read the affidavits, although, like the primary judge, we have not listened to the exhibited recordings of conversations."

1. The Court needs to carefully consider the situation before listening to recordings of a scandalous nature. It may be that some of the aspects raised by the father from paragraph 16 to 23 are matters upon which he might be cross-examined at the trial - but that remains to be seen. Mr Woods flagged it as a possibility. I am far from certain that it will become necessary, but I really cannot say at this stage.
2. But what concerns me is what can only be described as the scandalous nature of the information, or the evidence, if one can call it that, between paragraphs 16 and 23 of the father's affidavit of 29 May 2025. There is an assertion, more than one, against me personally in my role as a Judge of this Court, and against the Court generally. I note paragraph 16 and I note the bottom of paragraph 23 it states as follows:

"Note: there is a direct reference to Justice Howard in this part of the discussion."

1. The affidavit does not disclose the name of the father's interlocutor. It is only said that he is a solicitor. When I asked the father to do that today, he gave the man's name, and I will not repeat it, and it will become clear later, that I will be issuing orders to strike the man's name from the transcripts and the Court records, and he is only to be referred to as he was in the father's original affidavit as "a solicitor".
2. If I have not already stated it, one of the reasons that I wanted the Counsel for the other party, (the mother), and the Independent Children's Lawyer to listen to the recordings was to provide some assistance to the Court and make a submission as to whether or not there was anything contained in the recordings which was relevant to the recusal application filed on 29 May. Ms Hellewell submitted, on behalf of the Independent Children's Lawyer that the paragraphs contained in the father's affidavit, paragraphs 16 to 23, and the recordings should both be struck out on the grounds that they are scandalous, and she may well have stated other grounds as well.
3. It was a little bit unclear as to the precise parameters of Mr Woods' submission, but I understood him to say that those paragraphs were scandalous.
4. The father was given an opportunity to make a submission in relation to whether those paragraphs and the recording should be struck out, and I heard from him. The father complained, as he has in the past, that I had helped the lawyers on the other side by directing them to a rule of Court, and he complained that I was assisting the lawyers. This issue has arisen before in this litigation involving a similar complaint by the father. In March of 2023, in the father's earlier application for recusal, one of the grounds on which he relied was the fact that at a hearing before the Court on 15 June 2022, I had drawn to the attention of certain solicitors, (Mr Nowers, Mr K and Mr J), section 198G of the Corporations Act 2001 (Cth). That formed part of the father's submissions when he applied last time for a recusal. I rejected the argument and gave reasons. The father appealed that decision and the orders made. That appeal was dismissed by the Full Court of this Court. The father sought special leave to apply to the High Court of Australia. He needed an extension of time to seek special leave, but Gordon and Steward JJ stated on 7 March 2024 that the application - that is, for special leave - "the application has no prospects of success. It would therefore be futile to grant the extension of time that is sought."
5. As to the complaint by the father that the Court ought not refer parties or lawyers to particular Rules or Sections of an Act or cases - I restate for the purpose of these reasons here today - it is completely appropriate. Indeed, it is necessary for the Court, on occasions, to direct parties or lawyers to relevant Rules of Court, Sections of legislation and applicable cases. As I said on the last occasion, a Judge would be in dereliction of his duty if he failed to draw relevant legislation or rules or cases to the attention of lawyers or parties. There is no merit in that submission by the father.
6. I would also add at this point that the father informed the Court that earlier today apparently he had sent an email to the Attorney-General of the Commonwealth of Australia; the Chief Justice of this Court; and a Queensland Senator, and, apparently, the father cc'd the Court in on it. I state for the record, as I indicated earlier, I have not read the email. It is not appropriate for me to read the email. I do not read emails from self-represented litigants, and only in very special circumstances do I read direct emails to the Court from lawyers.
7. I note that it formed part of Ms Hellewell's submissions, (and it was confirmed by the father), that what he provided today to the lawyers was only part of conversations or recordings that he had possession of. I am told by Ms Hellewell that the recording itself does not indicate a date. I am told by the same Counsel that the people involved in the conversation are not identified by name. I note also, as Ms Hellewell stated, that there is no affidavit from the solicitor, who the Court has been told by the father is the other person involved in the conversation with him.
8. Rule 8.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 states:

"8.18 Objectionable material may be struck out

(1) Subject to section 69ZT of the Family Law Act, the court 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.

Note: Section 69ZT of the Family Law Act provides that some provisions of the Evidence Act

1995 do not apply to child related proceedings except in certain circumstances.

(2) Unless the court otherwise directs, any costs caused by the material struck out must be paid by the party who filed the affidavit."

1. In a decision entitled Sweeney v Sweeney [2016] VSC 483, Digby J of the Supreme Court of Victoria stated, inter alia:

"26, The plaintiffs' submissions rely upon HRF Nominees Pty Ltd (in liq) v Man Civil Constructions Pty Ltd.4 In that matter Derham AsJ described the operation of r 23.02 and r 27.07 as follows:

In relation to the power under Rule 23.02 to strike out pleadings that are scandalous, frivolous or vexatious, it has been found that allegations made for the purpose only of abusing or injuring the opposite party, and allegations which are indecent or offensive, are scandalous within the meaning of the rule, and liable to be struck out. It may be that the matter is defamatory or grossly disgraceful and irrelevant to the claim or defence. Similarly, in relation to applications to strike matters out of affidavits under Rule 27.07, and its predecessors, matters will be struck out where it is both scandalous, in a sense used above, and irrelevant or it may be unnecessarily indecent or libellous, and irrelevant. (citations omitted)"

1. In paragraph 26, Digby J was referring to a power to strike out pleadings that are scandalous, frivolous, or vexatious. His Honour was quoting from a decision entitled HRF Nominees Pty Ltd (in liquidation) v Man Civil Constructions [2014] VSC 93 ("HRF Nominees") at paragraph 57. In HRF Nominees - the reference was made to scandalous matters which were "defamatory or grossly disgraceful and irrelevant to the claim or defence".
2. I would certainly characterise the paragraphs currently under consideration as defamatory and grossly disgraceful. In paragraph 27 of that decision in Sweeney, Digby J refers to a decision of Hasluck J in the West Australian Supreme Court called Cavill Business Solutions v Jackson [2005] WASC 138 at paragraph 25, where Hasluck J said:

"25. The learned author observes at par 20.19.8 that the mere allegation of a scandalous fact does not render the pleading liable to be struck out as scandalous, for material which is degrading and therefore scandalous will not be struck out unless it is also irrelevant. Scandal consists in the allegation of anything which is unbecoming to the dignity of the Court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause: to which may be added that any unnecessary (not relevant to the subject) allegation bearing purely upon the moral character of an individual is also scandalous.

1. In a decision of the Federal Court called Zaghloul v Woodside Energy Limited (No 2) [2013] FCA 947 ("Zaghloul"), consideration was again given to scandalous material, and on that occasion, the scandalous material was contained in written submissions. A convenient summary of what occurred in Zaghloul appears in a decision of Judge Lucev of the Federal Circuit Court of Australia, as that Court was then known. In paragraph 26, (of the decision entitled Sims v Jooste & Ors (No 3) [2016] FCCA 1751) Judge Lucev referred to the decision in Zaghloul, and stated inter alia:[1]

"26. In Zaghloul v Woodside Energy Ltd (No. 2) [2013] FCA 947 ("Zaghloul") the Federal Court dealt with an application which alleged, in effect, that the applicant's solicitor and Senior Counsel had been involved in negotiations with the respondent to obtain monies unlawfully, and had used his consent to transfer the proceedings from the Federal Court's Australian Capital Territory Registry to the Western Australian Registry as a successful bargaining chip, or as the applicant put it, he "was, once again, used as a fair game to extract money from the Respondent". The Federal Court found the allegation to be unsupported by evidence, and to be scandalous: Zaghloul at [52]-[53] per Gilmour J."

1. The father has included in the 29 May affidavit those paragraphs to which I have referred, namely, paragraphs 16 to 23. He does not provide any credible evidence to support what is contained therein. As to the recordings the father provided to the lawyers today - those recordings do not identify the persons involved and there is no affidavit before this Court from the solicitor allegedly involved in the conversations recorded. There are mere assertions made by the father. Those assertions are scandalous in nature. Apart from those mere assertions there is no evidence to which my attention has been drawn that could be said to be evidence which supported such scandalous paragraphs and, I infer, such scandalous content contained in the recordings as described by Counsel.
2. Ms Hellewell has submitted, and it may well be the case, that the material has been put before the Court in paragraphs 16 to 23, with a reference to recordings, in an attempt by the father to bolster his application that I recuse myself. I do not need to make a finding about that one way or the other. The paragraphs, and, having regard to the submissions of Counsel, the recordings themselves, are scandalous in their nature. The father says he maintains a fear for his own personal safety, but he has not provided any evidence, or any credible evidence to support such an assertion. He indicated earlier today that naming the solicitor may put him - that is, the father - at some risk. There is no evidence to support such a submission. In any event, I will be directing that the name of that person, as I indicated earlier, to be struck from the record and from the transcript. And to that end, when the transcript becomes available, I direct now that it be drawn to my attention immediately so that I can ensure that there is no reference on the transcript to the name of the solicitor, and, in addition, I will direct that, to the extent it is recorded by tape-recording, (which the Court proceedings are), that the name will be deleted from those recordings as well, and I direct the Registrar of the Court, in fact, to undertake that task and remove the name of the solicitor from both the recordings and from any written transcript that may be produced. To the extent the father stated today the name of that lawyer, that recording will have the name deleted. That will involve the Registrar working with the IT department and I apprehend the third-party entity responsible for recording of Court proceedings.
3. Paragraphs 16 to 23 do contain scandalous material, including about me, the Judge charged with the hearing of this case. As I said earlier, the material is not supported by anything credible by way of evidence. It is scandalous and it will be struck out from every Court record and recording. That is to say, the paragraphs between 16 to 23 (inclusive) will be struck out, and the recordings will be struck out, and a further direction will be made by way of injunction preventing the father from relying on the recordings or those paragraphs, either in these proceedings or any future proceedings in this Court, unless he first obtains the leave of this Court - or a Judge of this Court.
4. Returning to the application itself, namely, the application that I recuse myself, I would point out further, by way of history, that the matter was, to a large extent, in a state of limbo between March of 2023 and March of 2024, while the father appealed my earlier order dismissing the father's earlier application for recusal. On 7 March 2024, the High Court gave its decision. I have already made reference to that. After March of 2024 then, the next relevant date was 10 June 2024. Trial dates were allocated for five days in October of 2024, and on 10 June 2024, orders were made, including order 3, which required the parties to file and serve an Application in a Proceeding should they seek any further order of the Court. The trial did not proceed in October 2024. It was not ready. The Independent Children's Lawyer sought further expert evidence. On 10 October 2024 some orders were made by consent for psychiatric assessments of the parties. Further orders, not necessarily by consent, were made on that date, including an order for an updated family report, and the trial was given further dates in March of 2025. Reasons for judgment were delivered on 10 October 2024, ex tempore reasons for judgment, which were subsequently settled, including in relation to an amended notice of risk that had been filed by the father. The trial was then adjourned on 10 October 2024 to the March 2025 trial dates.
5. As those dates approached, it became apparent to the Independent Children's Lawyer that the trial would not be ready for March 2025, and a case management hearing took place in February of 2025. The father failed to appear. Orders were made adjourning the trial to June 2025 and other orders were made. The trial directions were amended last week on 26 May, requiring both parties to file one updating affidavit of evidence-in-chief by 5 pm on 29 May 2025. The mother filed an affidavit on 31 May, late, but nonetheless, I am told it is by way of updating evidence-in-chief. The father has not filed an affidavit of updating evidence-in-chief. He filed some affidavits, as I have already indicated, on both 29 May and 30 May this year, but they are not and cannot be characterised as updating evidence-in-chief. This much was correctly conceded by Ms Wardle earlier today.
6. In terms of the application for recusal more specifically, I have already indicated that it is contained in the Application in a Proceeding filed by the father on 29 May this year. I would state that Judges do not get to choose the cases that they hear. Judges take an oath of office and they are bound by their duty to hear and determine cases which are allocated to them. The cases are allocated to the Judges around the country. A Judge cannot recuse himself just because the parties or the lawyers are unhappy with the Judge or with some of his rulings. Judges do not get to choose their cases and litigants do not get to choose their Judge. Applications for recusal do arise. As I have indicated earlier, this is the second such application in these family law proceedings. The father has been the applicant on both occasions.
7. The father, in his affidavits of 29 May and 30 May has included a large number of submissions. Those submissions relate to the application for recusal. I indicated this much to the father in Court today, and he agreed that there are many submissions contained in his affidavit material, but he was, at that point in time earlier today, concerned at his own ability to make any oral submissions today, having stated to the Court that he was upset about hearing that the mother in this case was unwell and was at the AZ Hospital, and the father at one point indicated he was content for the application to be decided on the papers and not make any further oral submissions. It was apparent to me, for many reasons, (including the family report, (Exhibit 1 in this application) where the family report writer highlights her concern at the length of time it has taken to finalise this litigation, and that she is concerned at the impact on the children) that the application needed to proceed today.
8. During argument I stated to the father that I wanted to summarise what I understood to be his various arguments upon which he relies for his application for recusal. I summarise them as follows: firstly, in relation to the Court file of Town AP Court in New South Wales; secondly, in relation to the proceedings in Court on 10 October 2024; thirdly, in relation to the Notice of Risk and the Amended Notice of Risk filed by the father; fourthly, in relation to the Court hearing that took place on 14 February 2025; fifthly, in relation to what was said to be, in one of the headings in one of the two affidavits, the Court's interference with disclosure to the family report-writer, which it is said occurred in March of 2025; the sixth is the threats to the father's life referred to in the affidavit filed on 29 May 2025, and I do include in there the recordings and the paragraphs, but only to this extent, to note that I have already given reasons as to why those paragraphs of the affidavit and the recordings ought to be struck out. The seventh topic raised by the father relates to the Department of Child Safety in New South Wales and the Amended Notice of Risk. The eighth topic raised by the father relates to the BB Hospital.
9. Before I move to consider each of those areas raised by the father, I would state that, happily, the father was clearly able today to make oral submissions in support of his own application, notwithstanding he was upset at hearing of his former wife's illness, and the Court relies upon what the father had to say in summarising the topics raised by him to support his application for recusal.
10. The relevant High Court authority in relation to apprehended bias is Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ("Ebner"). There are two particular pages and paragraphs in that decision which are relevant. The first is at page 345, where Gleeson CJ and McHugh, Gummow and Hayne JJ stated in paragraph 8 that:

"8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it 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. The second step is no less important. 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. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."

1. I pause to note that this case (Ebner) and Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 ("Johnson"), an earlier decision of the High Court on a similar topic, was cited by the Court in my decision of 8 March 2023 - reported as Danilov & Wynn (No 2) [2023] FedCFamC1F 252. I draw this to the attention of the parties and the lawyers to make it clear that the self-represented father in the current application for recusal would be well aware of the decisions in Ebner and Johnson, those cases having both been cited in the judgment dismissing the earlier application for recusal brought by the father.
2. More relevantly, for present purposes is paragraph 83 of Ebner, which appears on page 363. In paragraph 83 Gaudron J states, inter alia, that:

"83....The test in this country with respect to the appearance of bias is "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 [he or she] is required to decide."."

1. That test does not only appear in Ebner but also is stated in Johnson at 492, where at paragraph 11, Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ confirmed the relevant test.
2. I will refer in some detail to the submissions made by the father and the reasons behind my decision. My decision is that a fair-minded lay observer would not reasonably apprehend that the Judge in this case might not bring an impartial and unprejudiced mind to the resolution of question that I am required to decide. There is no merit in the argument that there is apprehended bias.
3. Quite apart from the question of apprehended bias, the father asserts actual bias. There is no reasonable argument to support the conclusion of actual bias. There is no evidence to support it. It is an argument without merit. I will refer later in these reasons to the relevant authorities.
4. My reasons as to why I have come to the conclusion that there's no apprehension of bias has to be explained by reference to the father's submissions and the evidence that he has put before the Court. The first topic raised by the father relates to the Town AP Court. The Independent Children's Lawyer sought a relevant file from the Town AP Court in New South Wales, and this Court was informed that the Independent Children's Lawyer wanted that file, and it is more likely than not, although I cannot recall specifically, that at least one of the other parties, either the father or the mother, also sought the file. Whether they did or not is irrelevant. The fact of the matter is that the Court was satisfied that the file may have some information that is relevant to the parenting proceedings. There is a protocol in place when one Court, that is, this Court, seeks a file from another Court. That protocol was followed. The Registrar of this Court wrote to the Town AP Court. In accordance with the protocol, the file arrived at this Court. An order was made concerning access to the file. There was nothing controversial in this procedure. There was nothing unusual in this procedure. There was nothing sinister about this procedure. It happens all the time.
5. One of the father's complaints in his submissions that appear in his affidavits on this application is that somehow I had acted improperly in relation to the obtaining by this Court of the Town AP Court file. In the affidavit filed 30 May 2025, in paragraph 4, (or just before paragraph 4) the father has a heading "Judicial Misconduct, False Assertion Regarding Extrajudicial Access to the Town AP Court file". As far as I can ascertain, there seems to be some allegation by the father that the Court, and, in particular, myself, acted improperly in relation to the obtaining of the file from the Town AP Court. I have read what the father has included in his relevant affidavit. The father in his written submissions appeared to become fixated on Rule 6.28 of the Rules of this Court, but the rule is straightforward. The husband's submissions are confused. They do not make sense. The process is straightforward to get a file from another Court. It is run of the mill. There is no merit in the father's arguments that my conduct concerning the Town AP Court file warrants recusal. More particularly, the submission by the father that I somehow obtained evidence from an extrajudicial source is similarly an argument which is without merit.
6. On 10 October 2024, the matter was before the Court on the hearing of certain applications. On that occasion, the Court heard submissions from the parties and the Independent Children's Lawyer. On that day, it is apparent from the transcript of the Court record, that the matter commenced at 11.13 am and concluded at 12.18 pm. At one point in time, at page 31 of the transcript, line 23, I had to state to the father the following words:

"Now, [Mr Wynn], if you don't keep quiet I will have to exclude you from the room. Now, keep quiet while I'm talking. All right."

1. It is apparent by reading the transcript that the father was speaking while I was speaking. That is something a Judge cannot abide. There is nothing unusual in my approach on that occasion. The parties and the Independent Children's Lawyer had been given an ample opportunity to be heard. In addition to his oral submissions made on that day, the father had provided written submissions contained in an outline of submissions filed on 10 October 2024, comprising some 42 pages. On occasions, litigants, especially self-represented litigants, do interrupt the Court and it is necessary for the Judge, and it is my practice, to make sure that the person knows that they cannot speak while I am speaking. Both decorum and good manners must be maintained in the courtroom.
2. Earlier that day, it is apparent from the transcript, the father had made an allegation against the solicitors in the case, that is, the solicitor for the mother, Ms Plint, and the Independent Children's Lawyer. At page 24 of the transcript of that day I described the allegation as outrageous. One part of it included the father maintaining that the solicitors can "get away with murder in here and nothing happens to them". Ms Smithson objected, and, fortunately, after I suggested he do so, the father withdrew the comment. That is apparent at page 24, line 42 or 43.
3. It is important for the Court to point out that page 31 line 23 was not the first time on that day that the father had interrupted the Court. At page 25 of the transcript, it is apparent that the father had earlier interrupted the Court. At line 11 of page 25, I have stated - and this was directed to the father:

"Excuse me, let me finish my sentence. Stop interrupting..."

1. That was clearly in reference to the father, because he was the one speaking immediately above that line in the transcript. I want to make it clear beyond any shadow of a doubt that self-represented litigants on occasions do interrupt the Court, but as I said earlier, they have to be corrected and asked to keep quiet. That is not a reason for the Judge to subsequently recuse himself in respect of hearing the case. This Court, along with the Federal Circuit and Family Court of Australia (Division 2), operates on a docket system, and very often there are interlocutory applications and case management hearings before the same Judge, so that many occasions arise where the Judges must interrupt a party. That is, to put it another way, correct a party when the party is interrupting the Court. It is not a ground for recusal, especially in circumstances where, in the reference at page 31 on that transcript, by that point in time, as I indicated earlier, the father, along with the other party and the Independent Children's Lawyer, had already had an ample opportunity to make oral submissions, and, in any event, the father had submitted a 42-page document comprising his written submissions.
2. The father was concerned on that day, as he has been if I recall correctly, on more than one occasion, that certain allegations raised by him or matters raised by him in the Notice of Risk required some form of preliminary determination by the Court. The Court has previously given reasons, including on 10 October, about the need, on the father's submission, for the Court to determine aspects of the Notice of Risk before the trial. In the reasons for judgment that were delivered on 10 October 2024 - I gave reasons why the Court would not be, and could not be, dealing with the Notice of Risk. Namely, of course, there would need to be a trial and factual findings made one way or the other.
3. After I delivered reasons Ex Tempore - at page 31 of the transcript on 10 October 2024, as is my practice, I asked the Independent Children's Lawyer and the parties whether there was anything further before I adjourned the Court. I had given reasons and I had indicated what orders would be made, and I had dealt with all outstanding applications before the Court. That is a matter of courtesy which I have adopted these many years past. Many other Judges take the same approach. At that point, the father wanted to make a statement to the Court about how unhappy he was with the judgment I had just delivered, and this is apparent from page 31 of the transcript, line 39 onwards. The Court, as I say, had already dealt with the outstanding applications. The Court had addressed the Notice of Risk in the reasons. I told the father that he could not make a statement at that point. The father was entitled to appeal the orders but he did not appeal. There is no merit in the father's argument relating to the Court hearing that took place on 10 October 2024.
4. I have pointed out that all of the relevant matters that he raised in this application now about the Notice of Risk were (essentially) raised by him in October 2024, and the Court dealt with his submissions and gave reasons for judgment on that occasion. As I said just now, there was no appeal by the father from that decision. There is no merit in the father's complaints about the manner in which the Court has dealt with the Notice of Risk. The Court has on more than one occasion explained the position concerning the Notice of Risk, and I would add the following, because it is highly relevant to the application for recusal. The father maintains that the Court has failed in its duty and its obligation to protect the children. I am well aware that the family report has not yet been the subject of testing by cross-examination, but the Court does now have it and I referred to it during argument, and I have made it exhibit 1 in respect of this recusal application. As currently advised, the family report-writer's views, her recommendations, are that the children live with the mother and spend supervised time with the father four times a year. That is one possible outcome. She seems to indicate another possible outcome - which would be an order for no time. As I say, these matters have not been tested under cross-examination. It may be the family report-writer has not seen all of the relevant information. I know with some certainty that the family report-writer has not seen any independent psychiatric assessment of the father, because he did not show up for the psychiatric assessment as ordered by the Court. I was told earlier today by Ms Wardle that the father told her that he has an affidavit concerning that. It has not yet been drawn to my attention. I will leave that to one side.
5. But the risk issues identified and addressed in the recent family report lead the family report-writer at this stage to express an opinion that the father's time should be supervised. To put it another way, the interim parenting orders, which do require the father's time to be supervised, those parenting orders protect the children from possible risks of harm outlined by the family report-writer. I would state again that these aspects of the matter remain for determination by the Court, including, as I was told by Ms Wardle, a number of preliminary steps, including the fact that the family report-writer needs to be given all the updated material by way of notes from the contact centre. It cannot be said that the Court neglected its duty in relation to the protection of these children. There is in place an order that the father's time be supervised. As it turns out, that is in accordance with the current recommendation of the family report-writer. The father maintains that the risk comes not from him but from the mother, and he may well be right about that, and that is one of the reasons that this matter is crying out for a trial. The father maintains that the risk is on the mother's side, and I can assure the parties and the Independent Children's Lawyer that the Court will eventually get to the bottom of this and ascertain where the risk really does lie, one way or the other, in respect of these parents. It may well be that there are risks to the children by exposure to either parent. It all remains to be seen. There will need to be cross-examination of the family report writer and of the parents, and the Court will need to make findings and proceed to make final orders in the best interests of the children. That is the ultimate goal, and to reach that ultimate goal requires a trial. There is no basis for me to recuse myself because of the Court's approach to the Notice of Risk.
6. On 14 February 2025, there was a Court hearing by video link. It may have been a case management hearing combined with certain orders sought by the Independent Children's Lawyer. By order of this Court, the parties and the Independent Children's Lawyer were informed that the matter was listed for "not before 11.30am". The matter was called on at 12.01 pm. There was no appearance on the video link by the father at that time. There is no obligation on the Court to go looking for a litigant. That is not the Court's role. The Independent Children's Lawyer was on the line. The mother's lawyer was on the line. The father was not. That is a matter for the father. The father argues in his written submissions that he ought to have received some special notification or email from the Court advising him precisely what time after 11.30 am the matter would be proceeding. As I say, the father's argument seems to be that the Court should have sent him an email or contacted him somehow, but as I said earlier, that is not the Court's role. Litigants must be ready to go when the Court is ready. The father, by that stage, that is, by February of this year, had been involved in this litigation for about five years. He has attended on numerous occasions as a self-represented litigant. I am satisfied that the father was well aware, or should have been aware, that he needed to be available at the Court's convenience and as directed by the Court. There is no merit in that argument by the father.
7. The next complaint by the father relates to the father's assertion about the Court's alleged interference with disclosure to the family report-writer. There is no merit in this argument raised by the father. The Court must on all occasions, unless it is drawn to the Court's attention otherwise, assume that all relevant documents are put before the family report-writer. If there is something relevant that has been missed, it can be put to the family report-writer in cross-examination, or an application could be brought seeking an order from the Court that leave be granted for certain documents to be sent to the family report-writer. As I say, there is no merit in that argument by the father.
8. The next complaint raised by the father relates to his submissions concerning what he calls "threats to his life", and this is the sixth matter raised by the father on this application for recusal. I struck from the record certain paragraphs and recordings also and I gave reasons earlier about that. The father had included in those paragraphs his concerns about his own safety. The paragraphs were such that it was not possible to extricate anything that may possibly be considered relevant from the scandalous material, hence those paragraphs were struck out in full. I would reiterate that, notwithstanding the father's assertions contained in the affidavit, as yet, the Court has not received evidence from the father that would support his assertion that his health or safety is in any way at risk. To some extent, on the hearing of the recusal application, obviously, I needed to read paragraphs 16 to 23, those paragraphs that have now been struck out, of the father's 29 May affidavit. The matters raised there are not matters that would lead any Judge to recuse themselves. A Judge cannot recuse himself on the basis of a litigant's unproven allegations or assertions of improper conduct by the Judge, nor can a Judge recuse himself on the basis of what the family report-writer described as some conspiracy theory. If, in the fullness of time, the father did put before the Court some evidence that the father's personal safety is at risk, the Court obviously would reserve the right to review this issue.
9. The seventh topic raised by the father relates to the New South Wales Department of Child Safety. The father's complaints relate to the Court dealing with the New South Wales Department of Child Safety. At one part of the submissions, the written submissions, page 35 of 91 of the affidavit filed 30 May 2025, under a heading "Judicial Negligence in Child Protection, Failure to Act on Notice of Risk and Statutory Obligations", the father refers to the Court issuing a separate Notice of Risk over the top of one filed by him without properly addressing the original Notice of Risk. It is not precisely clear from the father's affidavit what he is talking about there, but he is concerned about what he says was a failure by the Court to adequately address certain matters with the New South Wales Department of Child Safety. I have had regard to his arguments and his submissions and the affidavit material. There is no merit in the argument.
10. The next complaint by the father relates to the BB Hospital, a matter that he has raised previously with the Court. It is said by the father that a subpoena was served on the BB Hospital. The documents were provided but not released to the parties until sometime post-March 2023, but, nonetheless, I apprehend, not long thereafter, and that such release of the documents came about because of an order made by Judicial Registrar Brooks. The BB Hospital documents are before the Court. In fact, I referred to them this morning. I asked my Associate to show me. They are here, indeed. As to precisely what occurred and why it was that the Court received the documents in a sealed envelope; and why they were not distributed at the time - I would say that given the length of time this litigation has gone on, it is not altogether clear. But what is clear is that for a period of time - now some two years - the BB Hospital documents have been available to the parties and the Independent Children's Lawyer to inspect. There is no merit in the father's argument concerning the documents from BB Hospital.
11. I would add further by way of reasons in relation to the father's contention of the existence of actual bias the Court specifically refers to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 ("Minister for Immigration & Jia"). I note, relevantly, paragraphs 71 and 72 of the decision of Gleeson CJ and Gummow J. In that case, it had been argued before the High Court of Australia that all that was necessary to constitute bias was an inclination or predisposition of mind. The High Court stated, in paragraphs 71 and 72, inter alia, that:

"71...Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

72. The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgement is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. This preliminary argument should be rejected."

1. The tests which have been applied, accord with the earlier decisions of the High Court in Laws v Australian Broadcasting Tribunal (1989) 17 ALD 522 and Johnson.
2. It will be apparent that having reached the conclusion that apprehended bias is not present, it will also be apparent that I am of the view that actual bias is not present.
3. The fact that a litigant brings multiple applications for recusal does not make it necessary for the Judge to recuse themselves. As I have said more than once and I highlight it again, a trial is what is needed.
4. I would conclude by saying I have spent a considerable amount of time since 29 May, poring over the documents upon which the father relies and the submissions which are contained therein, reading transcripts referred to by the father, reading transcripts generally that are relevant to the matter, reading decisions - earlier decisions of the Court, and of the Full Court and the High Court.
5. I have considered all of the relevant arguments. If I have not specifically made mention of a particular argument here it is because I do not consider that such argument has any merit and the Court is not required to refer to every single argument raised in evidence or every single argument raised by a party.
6. I referred earlier today to the father's stay application, which he brings by paragraph 3 of the Application in a Proceeding filed 30 May 2025. After I dismissed the recusal application, I asked the father whether he had a submission about the stay. He did not have any detailed submission and his view was there should be a stay so he has an opportunity to pursue other avenues, as outlined in paragraph 3 of the Application in a Proceeding. Ms Hellewell correctly points out that there are certain matters that the Court has to consider when having regard to the application for a stay. Generally, these applications arise once the final judgment has been delivered and an appeal is on foot, and the appellant seeks a stay of the final orders.
7. The father here seeks a stay of the proceedings, all of the proceedings, pending an application to the High Court. I am assisted by earlier decisions relating to stay applications - including of the Full Court of this Court Aldridge v Keaton [2009] FamCAFC 106 ("Aldridge v Keaton"). On that occasion, the Court comprised Bryant CJ as well as Boland and Crisford JJ, and their Honours helpfully included in paragraphs 17 and 18 the relevant principles relating to a stay application.
8. It is the case that whether or not the Court grants a stay is a matter of discretion and there are various matters to be taken into account. For present purposes, the mere statement by a person, in this case the father, that he intends filing an application for a constitutional writ is not sufficient to grant a stay. The bona fides of the applicant for the stay must be taken into account but because I have not had a trial yet I am not in a position to make a determination on the bona fides of the application or of the applicant (the father).
9. One of the matters I should take into account, (and I agree with Ms Hellewell), is the situation with the children and the current family report, and the statement in the family report that in the best interests of the children, the matter needs to be finalised sooner rather than later. I have taken into account the fact that today the Court has been told the mother is not here and she has some health issue but there is no evidence about that.
10. It may be that this trial can proceed later this week on the basis that this will give the Independent Children's Lawyer time to contact Ms AX overnight and inform Ms AX that the Court requires her compliance with the subpoena without any further delay and that she has until 10 am tomorrow morning to comply with the subpoena, or if she wishes to be heard about that, she can contact the Court and she will be given a hearing - the Court will hear from her over the telephone in open court tomorrow. In relation to the mother, the mother's attendance by telephone tomorrow morning at 10 am is required or if she is not well enough, the attendance of her partner, Mr CC. At the very least, he has to be available by telephone to inform the Court as to what has happened with the mother's health and what the doctors are advising at the AZ Hospital.
11. Mr Woods read out to the Court what is contained in the letter from the hospital at Town AP relating to the mother's admission today, and it does not really provide much guidance in relation to the stay application but I have taken it into account. I note in particular, in the decision of the Full Court in Aldridge v Keaton, that their Honours in paragraph 18 refer to:

"18....the best interests of the child the subject of the proceedings are a significant consideration."

1. I have had regard to all the various relevant considerations. Noting the family report writer's stated opinions including the opinion that the matter be finalised sooner rather than later, taking all factors into account including the submission by Ms Hellewell, which I agree with, that the father's prospects of obtaining a constitutional writ or of successfully appealing the dismissal of the application for recusal - those prospects would have to be seen as limited. The father's application for a stay is dismissed.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Howard.

[1] Judge Lucev was referring to paragraphs 52 and 53 in the decision of Gilmore J in Zaghloul.