Australian Coal and Shale Employees' Federation v The Commonwealth

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 the pseudonym Rex & Arata has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an appeal against parenting and property orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 1 November 2024. The orders moved the care of the parties' 10-year-old child from the appellant mother to the respondent father. Property settlement orders were also made.
2. The appeal has had somewhat of a checkered procedural history which featured many adjournment applications. It is helpful to note that on 13 December 2024, the original Notice of Appeal, which contained grounds extending over 100 pages, was struck out. An Amended Notice of Appeal was filed on 28 January 2025 and raises just four grounds. It is necessary to add, however, that each ground was supported by an extensive number of particulars which tended to range widely.
3. The appellant attempted to file a Summary of Argument which was 72 pages long. Unsurprisingly, the appeal judicial registrar declined to file it.
4. The document is prolix and difficult to read. It does not address the grounds of appeal until page 21. The introduction consists of a general discussion on points of relevant law and a general criticism of aspects of her Honour's reasons. Nonetheless, we allowed the appellant to rely on it. Whilst litigants in person remain obliged to abide by the rules of the court when preparing appeals, we considered that, in this case, justice was best achieved by the course we followed. We bore in mind that the parenting orders effected a substantial change in the living arrangements of a 10-year-old boy who was moved from his mother's care to his father's.
5. We also received oral submissions which were difficult to follow. They departed quickly from the grounds of appeal and descended into minutiae.
6. A judgment is presumed to be correct until demonstrated otherwise (Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621). It is for the appellant, including litigants in person, to identify and persuade an appeal court of error.
7. In Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415, the Full Court of the Federal Court of Australia said (at [3]):

...it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.

1. We have closely read her Honour's reasons. No error suggests itself to us. It therefore remains for us to deal with the appeal grounds.

Was the appellant denied procedural fairness when the hearing was adjourned from 19 February 2024 to 8 April 2024? (Ground 1)

1. In July 2023, the matter was listed for final hearing commencing on 19 February 2024. On that date, the appellant successfully sought an adjournment and the hearing was relisted for 8 April 2024. The appellant's complaint is that this was too short a period of time for her to prepare her case with her new legal team.
2. An adjournment is a discretionary decision. The principles applicable to such appeals were set out by the High Court in House v The King (1936) 55 CLR 499 at 504-505 as follows:

...The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred...

1. The transcript of 19 February 2024 is available. It records the appellant as appearing for herself and seeking an adjournment because she and her lawyers had recently parted ways. The adjournment was opposed by the respondent but granted by the primary judge.
2. Her Honour then raised with the parties the date of the resumed hearing. Two dates were available - one in two weeks and one in six weeks. The later date was selected.
3. Her Honour then discussed the matters that should be attended to before the resumed hearing and added:

[HER HONOUR]: Because I will have considered all of those things that I have already relied upon as persuading me that it's appropriate and just to adjourn the trial. I will have considered that there has been more than enough time for those things to be remedied between now and 8 April.

(Transcript 19 February 2024, p.13 lines 16-19)

1. To this the appellant said, "Yes. Thank you" (Transcript 19 February 2024, p.13 line 21).
2. The appellant did not seek a longer adjournment and this ground must fail.
3. In her Summary of Argument, the appellant referred to affidavits of various witnesses dated 10 February 2024, 17 February 2024, 20 February 2024 and 28 February 2024. They were obviously available for use at the hearing fixed for 8 April 2024. We do not understand the relevance of the reference.
4. The appellant also made much of subpoena 38, which was directed to New South Wales Police. The documents produced included a police interview with her older son.
5. The documents had been produced by 19 February 2024. The fact that they may not have been used at the subsequent hearing does not establish that the period of the adjournment was so short that they could not be inspected by her lawyers.

Was there a denial of procedural fairness when the primary judge refused to adjourn the hearing on 12 April 2024? (Ground 2)

1. Counsel and the instructing solicitor for the appellant appeared for her on 8 to 12 April 2024. On 12 April 2024, her counsel applied for an adjournment of the proceedings to allow the appellant to appoint a forensic accountant to value the businesses of the parties (a single expert had been appointed), to re-open the valuation of a piece of real estate and to engage a shadow expert regarding the single expert Family Report.
2. The adjournment was refused.
3. In her Summary of Argument, the appellant said that the methodology of the single expert valuer of the businesses was flawed and that objective evidence indicated a higher value. The objective evidence was identified as:

2.1. A valuation conducted by [a merger and acquisitions broker] on 25 January 2024, which assessed the business at $7,000,000;

2.2. A Term Sheet from [Company AH] dated 16 February 2024 to purchase 50% of the business for $7,000,000.

2.3. Furthermore, on 17 December 2024 Australian owner of popular [Company AJ] signed a Term Sheet to purchase 50% of the Appellant's share in the business for $1,200,000. The Respondent continued obstructing the Appellant's share to be exchanged for its monetary value by refusing to act on the offer.

(Appellant's Summary of Argument filed 22 May 2025, p.23)

1. It is obvious that this material had been available for some time.
2. Whilst the appellant may have benefited from an adjournment, justice is a two-way street and the primary judge was entitled to take into account the interests of the respondent and the child, as her Honour did, in continuing with the matter. They had already been subject to one adjournment at the request of the appellant.
3. No error has been identified.

Was there a reasonable apprehension of bias on the part of the primary judge? (Grounds 3 and 4)

1. We will deal with these grounds together. Ground 3 refers to apprehended bias in the parenting proceedings and Ground 4 the property proceedings. As is made plain by a reading of the Summary of Argument, the distinction arises because the "bias" is said to arise from a series of errors such as wrongfully accepting evidence, overlooking other evidence and incorrectly giving weight to particular matters in each aspect of the proceedings.
2. Although the grounds refer to apprehended bias, the submissions go further and appear to verge on assertions of actual bias. The difference is significant and substantial.
3. The test for apprehended 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 the judge is required to decide" (Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]; see also Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]).
4. Actual bias is a distinct matter from apprehended bias (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [33]).
5. Actual bias requires the complainant to demonstrate that the judge's mind is "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented" (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]).
6. Such a finding is a "grave matter", not to be made lightly and "must be distinctly made and clearly proved" (Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]).
7. This is because a judge having an impartial mind is the essential part of his or her sworn or affirmed duty.
8. We are conscious that over the last few years, in this court at least, allegations of actual bias have been made with increasing frequency - all unsuccessful. Contentions of this kind must only be made on the basis of substantial grounds and after mature consideration. Meritless submissions may result in orders for indemnity costs. Where legal practitioners are involved, the consequences could be more severe.
9. The assertions of bias (it is difficult to tell from the submissions which type is relied upon) all arise from the reasons of the primary judge. As far as actual bias is concerned, drawing such a finding from the reasons will be "rare and exceptional" (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 ("SCAA") at [38]). As von Doussa J went on to explain in SCAA, this is because:
   1. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision.
10. The section of the Summary of Argument dealing with bias covers some 50 pages. They are perhaps best explained by the concluding paragraph:
    1. Cumulatively, the sheer volume of fundamental errors in the Judgement, combined with the deficient approach, raised a reasonable apprehension of bias, demonstrated a disregard for the Appellant's right to a fair hearing, and undermined the integrity of the proceedings.

(Appellant's Summary of Argument filed 22 May 2025, p.72)

1. We do not propose to identify or deal with every asserted error in the Summary of Argument. First, they are not the subject of any ground of appeal. Secondly, adverse decisions, even incorrect adverse decisions, do not automatically lead to findings of actual or apprehended bias. Something more is required.
2. Examples of the asserted errors and deficient approach outlined in the Summary of Argument are:
   • Alleged reliance "on biased family reports that re-cycled discrimination on religious and cultural grounds" which "resulted in a compounding bias that undermined the fairness and impartiality of the entire proceedings" (paragraph 3.1). We note that whilst the primary judge did record comments made by the single expert as to the appellant's lifestyle, the comments were not adopted as findings.
   • "Failing to evaluate all evidence even-handedly, applying differential standards of scrutiny to evidence from the Appellant and the Respondent" (paragraph 3.4). No further details were provided as to this contention.
   • "Relying on and giving weight to" biased Family Reports (paragraphs 3.9 and 3.10). It is not apparent from the reasons that this point was the subject of cross-examination or submissions. We do not have the relevant transcript. One of the experts against whom this allegation was made on appeal was not cross-examined at all.
   • Failing to balance opinion with objective evidence (such as school reports) (paragraph 3.10.6).
   • Failing to have regard to "critical evidence" (paragraphs 3.10.13, 3.10.17 and 3.13.50). In her oral submissions the appellant spent some time referring to the affidavit of Mr AK. He describes the aftermath of an alleged incident in May 2006, although he did not see the incident, only a damaged door. Senior counsel for the respondent informed the Court that the affidavit was in fact withdrawn by the appellant's counsel on Day 3 of the trial. The appellant disagreed with this. We do not have the transcript for that day of the hearing. Nonetheless, given the date of the incident, it did not loom large in her Honour's reasons, but was considered at [71], obviously not giving that witness' evidence weight.
   • "The trier of fact accepted the Respondent's narrative" (paragraphs 3.13.4, 3.13.9, 3.13.14, 3.13.18 and 3.13.44). Here the appellant referred to a finding that she left the child in the respondent's care for some months while she travelled overseas. The appellant said that this was wrong and refuted it in her affidavit of 9 February 2024. It in turn referred to an affidavit of 25 January 2024 which apparently contained relevant travel documents. Whilst the first affidavit is in the appeal book, it is not clear whether it was relied on at the hearing. It is not listed in the evidence relied upon in the appellant's Case Outline and we do not have the relevant transcript. The later affidavit is not in the appeal book. There is no suggestion the travel documents were tendered.
   • "While the evidence of the child-mother bond, willfully (sic) destructed by the Respondent, and outlined in the Appellant's trial affidavit sealed on 8 April 2024, was overlooked in its entirety, Baker's Model for Identifying Parental Alienation provides a structured and evidence-based framework for objectively evaluating the behaviours of the alienating parent, the symptoms exhibited by the child, and the dynamics of family relationships prior to and during the alienation" (paragraph 3.13.32, emphasis in original). It is not apparent that the affidavit was before the primary judge nor that "Baker's Model" was the subject of any evidence or submission.
3. We do not propose to give further examples. The Summary of Argument identifies many matters which the primary judge decided against the appellant or did not take into account. That is not enough to give rise to an inference of either apprehended or actual bias. The appellant would submit that the sheer number of such findings must inexorably lead to such a conclusion. We disagree.
4. Further, as this brief exercise has shown, the premise of a multitude of errors was unlikely to be made good. That is clear from the Summary of Argument where the error is often identified as preferring particular evidence or considerations, or giving too much or insufficient weight to them. That does not identify error.
5. The appeal will be dismissed.

1. In the event the appeal was unsuccessful, the respondent sought costs calculated in accordance with Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The updated total provided at the hearing was $36,040.
2. The appellant opposed any order as to costs, seemingly on the basis that there are outstanding contravention applications filed by her against the respondent in the first instance proceedings.
3. The appeal was wholly unsuccessful and it is appropriate that the appellant pay the respondent's costs fixed in the sum claimed.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Campton & Christie.