Australian National Industries Ltd v Spedley Securities Ltd

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).

1. These reasons relate to an application for recusal by the applicant father, which occurs in the context of a substantive application filed by the applicant father to reopen previous parenting proceedings pursuant to s 65DAAA of the Family Law Act 1975 (Cth) ("the Act").
2. On 19 November 2021, I handed down a judgment in this matter that made final parenting orders in relation to the parties' two children, X, born 2017, and Y, born 2019. Those final parenting orders provided that the children spend no time with the father, due to the father posing an unacceptable risk of harm to them.
3. That judgment was subject to an unsuccessful appeal.
4. On 28 May 2025, the father made an application under s 65DAAA to reopen the proceedings, and discharge the orders for no time, primarily on the basis that he has undergone professional treatment to address the issues that led to the conclusion that he posed an unacceptable risk to the children. He alleges that this amounts to a significant change in circumstances as required by s 65DAAA.
5. The father has also brought an application that I recuse myself from hearing that application on the ground of apprehended bias. The mother opposes the recusal application.

1. As summarised by the Full Court in Biondi & Koen (No 6) [2024] FedCFamC1F 294:

In Ebner v Official Trustee in Bankruptcy and Ors [2000] HCA 63; (2000) 205 CLR 337 ("Ebner"), Gleeson CJ, McHugh, Gummow and Hayne JJ observed at [3] that "[f]undamental to the common law system of trial is that it is conducted by an independent and impartial tribunal". Giving effect to the requirements that justice be both done and seen to be done, disqualification is required where "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" (Ebner at [6]).

Two steps were identified in Ebner at [8] as necessary to determine such an issue. The first is the "identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits". The second is the "articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits".

1. In this case emphasis was given to the authorities that deal with the circumstances where the judge has previously determined issues, either between the parties or involving one of the parties.
2. The applicant emphasised that the test to be applied involves the fair-minded lay observer, who might reasonably apprehend that the judge might not bring an impartial mind.
3. In argument, the father distilled the issue. His assertion is that adverse credit findings were implicit to the conclusion of unacceptable risk, as such a conclusion resulted, in part, from a failure to accept the father's evidence as sufficient to establish that he does not pose an unacceptable risk of harm to the children. Put another way, acceptance of the father's evidence would have negatived risk of harm. Hence, while no global or general finding was identified by the father as to the father's credibility, rejection of, and failure to accept aspects of his accounts involved a degree of rejection of the father as a witness whose credibility should be accepted. The identification of this issue is the matter put forward by the father as meeting the first of the Ebner steps.
4. Having identified this matter, the second step required by Ebner is the "articulation of the logical connection between" the failure to accept the father's assertions at trial "and the feared deviation from the course of deciding the case on its merits".
5. In order to consider this issue, it is necessary to identify the nature of the case to be determined. In this instance it is the consideration and determination of the matters set out at s 65DAAA as a threshold to permitting the reconsideration of the final parenting orders.
6. In Radecki & Radecki [2024] FedCFamC1A 246 the Full Court described the operation of s 65DAAA as a codification of what was known as the rule in Rice v Asplund. As identified by that line of authority, the enquiry as to a change in circumstances is one that looks to whether a prima facie case of changed circumstances has been established.[1] That is a question determined on the assumption that the applicant's evidence will be accepted.[2]
7. It was accepted by the parties that the s 65DAAA enquiry takes the father's case at its highest, and thereby involves no assessment of his credibility, or analysis based upon his credibility.
8. The consequence then, is that the question posed by s 65DAAA(1)(a) of whether there is a significant change of circumstances is measured against a background of acceptance of the applicant's evidence. Secondly, the question posed by s 65DAAA(2) measures that prima facie change firstly against the background established by the judgment. Noting that s 65DAAA(2) refers to "all the circumstances" it may be the case that other circumstances are established that must also be part of the evaluation. For example, in this case it is uncontroversial that a number of years have now passed since the delivery of the judgment that directed that the father would have no contact with the children.
9. It was accepted that while, if reconsideration is permitted, the assessment of the father's credibility will be important to determine appropriate parenting orders based upon the father's personal development, there is no room for a credibility assessment in answering the s 65DAAA question as a threshold matter.
10. Acknowledging then that any previous assessment of credibility, and any current assessment of credibility are not matters to be taken into account, the father submitted that the mere fact of the prior credibility findings is sufficient to answer the double might question posed by Ebner.
11. This assertion was based by him upon two factors. The first was that a reasonable lay observer is not in a position to differentiate between determinations that do or do not require an assessment of credibility.
12. The qualities of such a fair-minded lay observer were identified by the High Court in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488. There the court identified that such a person is not assumed to have a detailed knowledge of the law, but the perspective is to be applied in the context of ordinary judicial practice.
13. In Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [23] the majority of the High Court observed that the fair-minded lay observer is "taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision".
14. While the applicant asserted that a fair-minded lay observer should not be taken to understand the nature of the s 65DAAA decision, or the significance of taking the case at its highest, this is not so. The issue is neither complex, nor delicately nuanced, nor one that requires a deep understanding of legal principle. In the primary hearing, or any future substantive hearing, the applicant's credibility is in issue. It is not in issue in the s 65DAAA determination, as it has no role to play.
15. The second is more ephemeral, and relied upon what might be colloquially referred to as an "ick" factor. That is, the mere fact of the prior non-acceptance of the applicant's evidence and implicit adverse credibility conclusion was sufficient to warrant recusal even without a connection between the implicit credibility conclusion and the s 65DAAA consideration.
16. This sits poorly with both the second limb of Ebner, being the logical connection, and also the applicant's manner of dealing with a waiver issue.
17. That waiver issue arose on the basis that the applicant previously applied for permission to use documents used in the trial of this matter in other civil proceedings. That application was heard by me without the raising of any issue of apprehended bias. When asked why this did not constitute a waiver, the applicant asserted that the issue did not arise on that application as it involved no assessment of the applicant's credibility. There is a significant inconsistency between the applicant's approach to the issue of apprehended bias between the two applications.
18. In support of her resistance to the recusal application, the respondent relied upon a decision of the Full Court of the Federal Court, ASIC v SunshineLoans Pty Ltd [2025] FCAFC 32 ("Sunshine"), where that Full Court dealt with an issue of apprehended bias in the context of a civil penalty case having been split into a liability and a penalty hearing, with the judge determining the liability hearing then recusing himself from the penalty hearing. The majority there determined that the primary judge was wrong to disqualify himself on the basis that, having made credibility findings against a key witness at the liability phase, would again have to assess the evidence and credibility of that witness at the penalty phase. Bromwich J said, regarding the circumstances of the litigation, that in determining the penalty phase the trial judge "may be required or may be permitted to have regard to them".[3]
19. While there is a parallel with this case, there is also a significant difference that places this case even further from circumstances justifying recusal. Unlike the requirement in Sunshine for the judge to consider and weigh again the witness's credibility and evidence, this case does not require or allow the further consideration of credibility in determining the s 65DAAA issue.
20. Reference was also made to a decision of the Full Court of this court, Jess & Jess [2021] FamCAFC 159; (2021) 63 FamLR 545 at [396] ("Jess"). Jess was said to support the proposition that a previous decision of the same fact or expression of clear views about the credit of a relevant witness, whether in the same proceedings or different proceedings will amount to a disqualifying ground. I do not accept that Jess laid down so strict or universal a rule, but rather, in the context of the "numerous seriously adverse findings as to the credit and credibility of [the witnesses]"[4], the court there applied BATAS[5] and Livesy[6] and Spedley[7] to conclude that the circumstances of those findings meant that it was almost inevitable that a reasonable apprehension of bias arose.
21. In Livesy v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at p299 the High Court observed that:

Necessity and the extraordinary case... make it impossible to lay down an inflexible rule; each case must be determined by reference to its particular circumstances. It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.

(Citations omitted)

1. It can be seen that the qualifiers placed by the High Court are that the potentially disqualifying effect clear views about a fact arise where that fact is a "live and significant issue in the subsequent case", and the potentially disqualifying effect of a conclusion about the credit is of a witness "whose evidence is of significance on such a question of fact".
2. Neither of those qualifiers are met here, where the previous determination of unacceptable risk remains the starting point from which the applicant's case is then to be assessed at its highest.
3. The exercise of determining a change of circumstances, and whether such is significant, is one measured against the primary judgment and the facts set out there. Whether it is the former trial judge, or a different judge who is to determine the matter, it is to be weighed against the conclusions reached by the trial judge, with which the trial judge is intimately acquainted, while another judge must engage in a greater task of becoming familiar with those matters.

1. The applicant's case for recusal was specifically directed to the non-acceptance or rejection of the evidence of the applicant, implicit in the factual conclusions adverse to him contained in the primary judgment. The application relied on no other matter and identified no other matter.
2. Given the absence of a place for credibility findings in determining the s 65DAAA question on a threshold basis, there is no sense in which previous credibility determinations can be seen to potentially influence the assessment of the matters put forward in evidence by the applicant. That is, there is no logical connection between the previous credibility determinations and the determination of whether there has been a significant change in circumstances.
3. As to the remaining amorphous matter, the applicant identified no aspect of the s 65DAAA determination that such logically bears upon.
4. In the absence of doing so, the judicial obligation to hear and determine the case is not displaced by the obligation to refrain from doing so by virtue of there being a reasonable apprehension of bias established.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

[1] Radecki [47] citing Marsden & Winch (2009) 42 FamLR 1

[2] Radecki [46] citing Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383.

[5] British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 ("BATAS").

[6] Livesy v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 ("Livesy").

[7] Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 ("Spedley").