Spargo & Spargo [2025] FedCFamC1A 174 | Case summary

Spargo & Spargo [2025] FedCFamC1A 174 | Case summary | Zoe

[41]

By Notice of Appeal filed on 4 March 2025, and amended on 8 April 2025, the appellant father seeks leave (and, if successful) to appeal orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 27 February 2025 ("Orders").
The Orders dismissed the appellant's Application in a Proceeding filed on 29 January 2025, seeking that the primary judge recuse herself from further hearing the part-heard trial of the matter, on the grounds of denial of procedural fairness and apprehended bias ("recusal application").
The recusal application was made and determined in the period during which the trial was adjourned part-heard, between 16 October 2024 and 13 March 2025. By reason of the Notice of Appeal, which was listed for hearing on 4 June 2025, the resumption of the part-heard trial was further adjourned.
At first instance, the respondent mother did not file a Response to Application in a Proceeding but filed written submissions effectively conceding the recusal application. The Independent Children's Lawyer neither opposed nor conceded the recusal application.
On appeal, the respondent and the Independent Children's Lawyer each filed Submitting Notices, submitting to any orders the Court may make in the appellate proceeding.
At the hearing of the application for leave to appeal, the respondent appeared in person but the Independent Children's Lawer, notwithstanding his Submitting Notice, was nevertheless represented by counsel.
By reason of their Submitting Notices, the respondent and the Independent Children's Lawyer do not contest the relief sought by the appellant in his Notice of Appeal, effectively, that the primary judge be disqualified from further hearing the part-heard trial and that the matter be remitted for trial before another judge of the Federal Circuit and Family Court of Australia (Division 2). See Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 13.09(1). Nevertheless, the Court itself must be satisfied of appealable error: Bhatnagar & Riju [2018] FamCAFC 144 at [3]-[7]. In that case, Murphy J (with whom Strickland and Ainslie-Wallace JJ agreed) continued at [8]-[9]:
1. I am of the view that, respectfully, the concession that the appeal should succeed is properly made. Appealable error is amply demonstrated.

[46]

The appellant, in his Summary of Argument, does not address the applicable standard of appellate review, namely, whether it is the "correctness standard" to which the High Court referred in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442 at [15]-[17], or the standard applying to discretionary decisions to which it referred in House v The King (1936) 55 CLR 499 at 504-505.
In relation to the "correctness standard", in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore at [15]-[17], the plurality of the High Court said:
1. As explained below, an exercise of power under s 67 of the Civil Procedure Act to permanently stay proceedings on the ground that they are an abuse of process as any trial will be necessarily unfair or "'so unfairly and unjustifiably oppressive' as to constitute an abuse of process" is an evaluative but not a discretionary decision. Proceedings either are or are not capable of being the subject of a fair trial or are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process. Accordingly, the applicable standard of appellate review is not that specified in House v The King, but the "correctness standard" as explained in Warren v Coombes. Further, on the undisputed facts in the present case, the Diocese did not prove that there could be no fair trial (and did not contend otherwise that a trial would be so unfairly and unjustifiably oppressive as to constitute an abuse of process). Accordingly, the Diocese did not prove that the proceedings involved an abuse of process. The Court of Appeal's contrary conclusion was wrong. GLJ is entitled to have the proceedings heard and determined.
2. The reasoning in House v The King applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a "discretion" is "apt to create a legal category of indeterminate reference", but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for "value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right". The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the "correctness standard" applies) was identified as that between questions lending "themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions" in which event "it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance", and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.
3. The extreme step of the grant of a permanent stay of proceedings demands recognition that the questions whether a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process each admit of but one uniquely right answer. As Leeming JA observed in Moubarak by his tutor Coorey v Holt, while the "distinction between a trial being necessarily unfair and a trial which is so unfairly and unjustifiably oppressive as to constitute an abuse of process is no doubt a fine one", the distinction exists and was the ratio in Walton v Gardiner and the extant test for abuse of process when s 6A of the Limitation Act was enacted. Every case in which a fair trial cannot be held will also involve such unfairness to or oppression of a defendant as to constitute an abuse of process. But such unfairness to or oppression of a defendant as to constitute an abuse of process may exist even if a fair trial can be held. In both cases, while the answer to each question involves an evaluative process, the law tolerates but one correct answer.

[47]

In Moore (a pseudonym) v The King [2024] HCA 30; (2024) 419 ALR 169 at [14]-[15], the plurality of the High Court said:
1. Two standards of appellate review of first instance judicial determinations are of present relevance, namely what has come to be referred to as the correctness standard and a "House v The King" standard involving judicial restraint affording latitude to a trial judge. Under the correctness standard, the appellate court determines for itself the correct outcome while making due allowance for such "advantages" as may have been enjoyed by the judge who conducted the trial or hearing. With House v The King, appellate intervention is limited to circumstances where the trial judge: acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust. These grounds for intervention contemplate the appellate court accepting that intervention is not warranted even though the members of the appellate court may have decided the matter differently to the judge at first instance, a circumstance that is reflected in the language adopted by the Court of Appeal in this case when it described the trial judge's conclusion as "open" to his Honour.
2. The basis for intervention identified in House v The King was expressed to be dependent upon the subject matter of the appeal, being the exercise of a judicial "discretion". House v The King was an appeal against the imposition of a sentence of three months imprisonment for an offence under the Bankruptcy Act 1924 (Cth). While what constitutes a "discretionary decision" in this context can be ambiguous, in essence it refers to the circumstance where the decision maker is allowed "some latitude as to the choice of the decision to be made". A determination of which standard of review is applicable does not depend on whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ. Instead, the determination turns on whether the legal criterion to be applied "demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies".

[51]

It is difficult to see how it can be properly argued that [the test outlined in Ebner v Official Trustee in Bankruptcy] does not involve at every level an exercise of his Honour's discretion. His Honour has to say what is reasonable for a fair minded person and with the greatest respect ... it's ultimately, in our respectful submission, it is a clear case of an exercise of discretion as you might see. It's not a mathematical equation, two plus two equals four is not an application of discretionary judgment. It is difficult to perceive of a more clear case of a judge having to exercise his discretion in trying to decide the use of the word reasonable which is contained in lots of legislation but there are many cases that indicate it's difficult.

In oral submissions, counsel for the wife argued that this is not an appeal from a discretionary decision. His submission was adopted by counsel for the Independent Children's Lawyer.

The wife's counsel referred the court to the decision in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 where the majority (Gleeson CJ, Gaudron and Hayne JJ) stated:

"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result". Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.

(footnotes omitted)

Counsel also referred to the judgment of Sholl J in Russo v Russo [1953] ALR 95, where his Honour said, at 62:

What is a discretionary determination? I have not found, in the cases cited in Halsbury's Laws of England (2nd ed ), Vol 31, p 535, note (r), any definition apt to distinguish such determinations from those non-discretionary decisions, to appeals from or reviews of which different considerations apply. At least the concept involves a considerable latitude of individual choice of a conclusion - a right in the tribunal, adhering to certain general principles, and taking into account relevant factors, to decide nevertheless according to its individual opinion. It involves further that the tribunal, instead of merely ascertaining and declaring existing rights, formulates for the first time, and declares, new rights according to its own opinion - the only pre-existing right having been a right to have the tribunal's decision exercised on the correct materials.

Mr Whitington QC submitted that, applying those principles to this case, there was no discretionary decision involved in determining the disqualification application. Rather, it "involves the application of a rule or ... a governing principle" to the facts. He went on to say:

... it might involve an element of judgment as to which side of the line of principle the facts come to rest but that is not a choice the court is driven judicially to one conclusion or the other by reference to the facts.

Directions made by this court on 30 June 2009 allowed the parties to file further written submissions on this point. In those submissions, counsel for the husband submitted that whether or not the trial judge was exercising his discretion "is not determinative of the outcome of the appeal". Counsel referred to the decision in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, where Gleeson CJ, Gummow and Kirby JJ explained:

[55]

The trial of the proceeding, for parenting orders in relation to the two children of the appellant and the respondent, commenced on 2 October 2024 and continued on 3 and 16 October 2024. By the conclusion of the last of those days, both the appellant and the respondent had been cross-examined, and the further hearing of the trial was adjourned to enable a psychiatric assessment to be undertaken of respondent, and a new Family Report to be prepared. The further hearing of the part-heard trial was adjourned to resume on 13 March 2025.
On 29 January 2025, the appellant filed his recusal application, supported by an affidavit sworn by him on 28 January 2025 and filed together with that application. At the hearing of his recusal application, on 7 February 2025, the appellant further relied upon written submissions, drawn by counsel who appeared for him at trial, filed on 3 February 2025, which were supplemented by oral submissions.
The recusal application, founded on assertions of a denial of procedural fairness and apprehended bias, was based on seven grounds contained in the appellant's written submissions at first instance, namely, that:
- the primary judge had departed from the role of a judge presiding over an adversarial trial, compromising her Honour's ability to evaluate the evidence objectively, "from a detached distance";
- the primary judge had "cross-examined the [appellant] excessively and at length";
- the primary judge had "entered the arena and remained" there for extended periods of time;
- the primary judge had "assumed the role of the [respondent's] advocate" in her questioning of the appellant, and done so in an "unduly aggressive and intimidatory" tone and expression;
- the primary judge had excessively interrupted the cross-examination of the appellant;
- the primary judge had made pejorative comments toward the appellant; and
- the primary judge had made comments to the respondent, whilst she was giving evidence, "alluding to a mutual association of allegiance and secrecy".

[56]

Annexed to the appellant's written submissions at first instance, was a table of what was said to be 22 specific examples from the transcript, with page and line references, in support of those grounds (Appeal Book pp.162-164).
As referred to above, the respondent did not file a response to the appellant's recusal application. However, in her written submissions filed on 5 February 2025, it was submitted, inter alia, that:
- the transcript of the first three days of the trial "provide[s] an ebb and flow to matters that seem both fair at times and potentially unfair" (Appeal Book p.169, paragraph 5.4);
- the transcript "shows clear evidence of an understanding of what is fair and reasonable and procedurally fair yet it also clearly shows matter that raise serious questions as to fairness and apprehended bias" (Appeal Book p.175, paragraph 5.9);
- whilst "[t]here are many incidents that on their own might not be able to categorise as unfair [sic] ... a review of the transcripts potentially favours the [appellant's] contentions that a recusal is grounded here [sic]" (Appeal Book p.175, paragraphs 5.10-5.11);
- there are "comments and matters throughout the transcripts that when viewed as a whole give rise to a genuine need to consider if the test for apprehended bias is met" (Appeal Book p.176, paragraph 5.14);
- "... it may be that there is enough evidence to support a positive recusal and it is submitted that a fair-minded layperson could indeed feel there has been unfairness to the father and also a lack of procedural fairness to the father and his legal team" (Appeal Book p.176, paragraph 5.16);
- it was "uncontentious on the evidence in the transcripts that there were many interruptions of cross-examination" (Appeal Book p.176, paragraph 5.17);
- it was open to find that, on a number of occasions, during such interruptions, the primary judge "engaged in the arena not just to clarify but to give opinion at cross-examination before withdrawing back having elicited the answers she wanted by direct cross" (sic) (Appeal Book p.176, paragraph 5.18);
- in the circumstances, the primary judge should recuse herself "on the basis at least a great many of the grounds alleged" (Appeal Book pp.176-177, paragraph 5.19);
- it was arguable that all of the appellant's complaints were "supported in some way on the evidence" (Appeal Book p.177, paragraph 5.19.1); and
- in accordance with the applicable principles, "a recusal must occur" (Appeal Book p.177, paragraph 5.19.2).

[57]

In her reasons for judgment ("Reasons"), the primary judge described the respondent's submissions as being "unclear" and said that they did not respond to the appellant's submissions "in any meaningful way" and that, in fact, they "seem[ed] to add further complaints" (at [10]). Whilst, irrespective of the position taken by the respondent and the Independent Children's Lawyer, the recusal application was a matter for the primary judge, that latter observation by her Honour might be said to have lent some weight, prima facie, to the appellant's application, albeit that it was in no way determinative thereof.
Her Honour continued, saying that:
1. The written submissions purport to assert the position of the "fair minded lay observer". As I told [Mr D], that is not his role as Counsel for the Mother. As I commenced the hearing, I was unclear as to whether or not the Mother supports or opposes my recusal.
2. After I heard oral submissions, [Mr D] confirmed that the Mother sought to leave the decision of my recusal up to me.
Insofar as the primary judge said, at least inferentially, that concurring with the appellant's recusal application was not his role as counsel for the respondent, counsel had a duty to his client to advise her and to act on her instructions, as well as a duty to the Court, as an officer thereof.
At [18]-[19], the primary judge said:
1. In circumstances where the Father asserts that I have overstepped my role as a Judge to such a degree that I must recuse myself, I consider it is appropriate to set out the bases of power I have when hearing and determining child-related proceedings under the Family Law Act.
2. Division 12A of the Act sets out the principles I am required to follow when hearing child-related proceedings such as these.
At [20], over nearly three pages of her reasons, the primary judge recited the sections of the Family Law Act 1975 (Cth) ("Act"), as the Act then stood, that she considered to be "particularly relevant" to the appellant's recusal application, namely, ss 69ZN, 69ZP, 69ZQ, 69ZR and 69ZX. Section 69ZN set out the principles for conducting child-related proceedings. Section 69ZQ provided that the powers under Division 12A could be exercised (inter alia) on the Court's own initiative. Section 69ZQ set out the general duties of the Court in giving effect to the principles in s 69ZN. Section 69ZR conferred power on the Court to make determinations, findings and orders at any stage of the proceedings. Section 69ZW set out the Court's general duties and powers relating to evidence.
At [21], the primary judge said that, in a parenting matter, regard was also required to be had to the provisions of the Evidence Act 1995 (Cth) ("Evidence Act").
At [22]-[23], the primary judge referred to s 69ZT of the Act and to the sections of the Evidence Act that do apply to child-related proceedings, including ss 26 (court's control over questioning of witnesses) and 41 (improper questions). Her Honour said that she considered those two sections to be "particularly relevant to these parenting proceedings and to the [appellant's] current application", as well as ss 135-136, and she then recited them (at [24]).
At [25], the primary judge referred to the two limbs of the appellant's recusal application, namely, apprehended bias and denial of procedural fairness. It is to be observed, parenthetically, that both limbs are sub-sets of the right to, and the requirement for, natural justice to be accorded to litigants, and are inter-related. Both are challenges to the integrity of the administration of justice. See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]; Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [117]; and Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]-[10].
At [26]-[30], in relation to those two limbs, the primary judge referred to and cited from the decisions of the Full Court in Gin v Hing (No 4) [2024] FedCFamC1A 247 at [24]-[25] and Cusack & Cusack (No 3) [2024] FedCFamC1A 93 at [44] and those of the High Court in Ebner v The Official Trustee in Bankruptcy at [8], Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] and Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd at [112].
Of the 22 examples of the behaviour of the primary judge said to support the recusal application, counsel for the appellant, at first instance, withdrew one example. Her Honour proceeded to consider the remaining examples within the rubric of the seven grounds contained in the appellant's written submissions (at [35]-[156]).
In relation to certain of the examples relied upon by the appellant in support of his contention of a denial of procedural fairness by reason of what was submitted to be excessive and lengthy questioning by the primary judge, her Honour referred, inter alia, to s 69ZX(1)(e) of the Act and said that she was "entitled to ask questions of the parties and other witnesses" (at [83]).
In relation to apprehended bias, having considered the examples relied upon by the appellant, the primary judge returned to the decision of the High Court in Ebner v The Official Trustee in Bankruptcy and said as follows at [159]-[168]:
1. The High Court makes clear that proving apprehension of bias is a two-step test. The test is outlined earlier in these Reasons.
2. The first step "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".[1]
3. The first step has been outlined through examples 1-22 in the Father's submissions which I have dealt with above.
4. The examples proffered on behalf of the Father (and indeed also set out in [Mr D's] submissions) seem to ignore the powers I have as a Judge to hear this matter and control the proceedings.

[63]

The proposed amended grounds of appeal are as follows:
- The Appellant has been denied procedural fairness and the right to a fair trial.
- The primary judge erred in law by rejecting the Application that she disqualify herself from further hearing the matter:
  - 2.1 the primary judge erred by failing to apply the proper test, in that she relied on the fact that she had "not made any decisions in the substantive parenting proceedings". [Reasons para 183; AB]
  - 2.2 the primary judge erred by relying on "the Father cannot point to any decision I have made that would lead the fair-minded observer to conclude that I have prejudged the matter." [Reasons para 183; AB]
  - 2.3 the primary judge erred in concluding that "The Father has not been denied procedural fairness" because "The Father has not been prevented from running his case". [Reasons para 184; AB]
  - 2.4 the trial judge erred in finding that the Father "must show that the behaviour about which he complains shows that I have prejudged the matter against him". [Reasons para 165; AB]
  - 2.5 the primary judge erred in her apparent reliance on her assertion that "There was no evidence (Counsel for the Father) could point me to that showed I had prejudged the matter against the father or made any decision in the matter." [Reasons para 167; AB]
  - 2.6 the primary judge erred in finding that there was no evidence that "showed the conduct of the matter was procedurally unfair to the Father." [Reasons para 174; AB]
  - 2.7 the primary judge erred in rejecting the Application relying on "I have not evaluated the evidence. I have made no findings. I have not offered a preliminary view. I have not issued any interim judgment." [Reasons para 44; AB]
- The primary judge was wrong in law when asserting "The examples proffered on behalf of the Father (and indeed also set out in {Counsel for the Mother's) submissions) seem to ignore the powers I have as a judge to hear this matter and control the proceedings." [Reasons para 162; AB]
- The Primary judge has apparently misled herself (and is wrong in law) when asserting that the Application ought to have been made at some earlier time - when no such limitation is prescribed. [Reasons paras [175]-[181]; AB].

[73]

The primary judge, in her Reasons, correctly identified the leading High Court authorities of Johnson v Johnson and Ebner v The Official Trustee in Bankruptcy; however, for the reasons which follow, I consider that her Honour misunderstood the relevant principles therein and, therefore, erred in law in her dismissal of the appellant's recusal application on the basis of apprehended bias.
In Ebner v The Official Trustee in Bankruptcy, the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at [6]-[8]:
1. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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. It is convenient to refer to it as the apprehension of bias principle.
2. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
3. 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.

[80]

Similarly, in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 at [46], Kiefel CJ and Gageler J said, in relation to the characteristics to be attributed to the hypothetical fair-minded lay observer, that the observer "is to be placed in a contemporary setting. Uncritical attitudes of the past cannot be assumed to be those of the present". Their Honours continued at [47]-[49]:
1. Being "fair-minded", the observer "is neither complacent nor unduly sensitive or suspicious". Yet the observer is cognisant of "human frailty" and is all too aware of the reality that the judge is human. The observer understands that "information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making".
2. Being "lay", the observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge". Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard "the irrelevant, the immaterial and the prejudicial" and to discharge the judicial function uninfluenced by past professional relationships, "the public perception of the judiciary is not advanced by attributing to the ... observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case". This indicates that the observer will see the person who is currently a judge as the person who was formerly an advocate and may be less inclined to dissociate the advocate from the cause advocated than would someone steeped in the adversary process with a cultivated sense of the ethics of the legal profession and the profundity of the judicial oath.
3. Nor is the observer so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias.

[85]

HER HONOUR: Was there a protection order in place at this time?

[MR E]: Yes, there was.

HER HONOUR: Did the mother describe this incident as a confrontation with the father? Did she use the word confrontation with the father?

[MR E]: I don't think she used that word. No.

HER HONOUR: Your question was improper because you said that she could have avoided this confrontation. Right. Now, I'm not wanting to interfere with your cross-examination, it's also why I sent the witness out of the room, but ultimately, the video speaks for itself.

[MR E]: Yes.

HER HONOUR: I don't - I'm not going to accept a submission from you that - sorry. I withdraw that.

[MR E]: Yes.

HER HONOUR: You have put to her properly that she could have just walked around.

[MR E]: Yes.

HER HONOUR: And she said well, no, I'm taking my daughter to school.

[MR E]: Yes.

HER HONOUR: So I don't know what more you want about this incident, noting the time restraints, noting the really serious allegations in this matter, I just don't know that you need to be any longer on this. Because you've put to her, she could have avoided, she said yes, I could have done many things.

[MR E]: Yes.

HER HONOUR: But she doesn't accept, well, you didn't put to her it was a confrontation, so your question to that extent is unfair.

[MR E]: I accept that. Thank you. Yes.

HER HONOUR: All right. So is that the end of this topic? Sorry.

[MR E]: It is.

HER HONOUR: Of this questioning on this particular incident, or did you want more? Because I will bring her back in.

[MR E]: No. Can I ask just another couple of questions and that's it.

HER HONOUR: Certainly. But then just can you please bear in mind that ultimately it's going to be a matter of submissions to me, but you got a concession from her, she could have done something else.

[MR E]: Yes. Yes.

HER HONOUR: Ultimately, the actions are what they are.

[MR E]: Yes. And the video is clear enough. And I'm listening to what your Honour is saying. I therefore won't need to ask any further questions. I can make submissions on what was in the video.

HER HONOUR: But

[MR E]: I don't need her to concede to that.

HER HONOUR: Sure. But you - because you've already got it and I just was thinking you're just covering it again.

[MR E]: Yes.

HER HONOUR: She has given you the concession.

[MR E]: Yes.

HER HONOUR: But the actions are what the actions are of both parents.

[MR E]: Yes.

HER HONOUR: Right. Quite sure [Mr Spargo's] going to be asked some questions about this.

[MR E]: Absolutely.

HER HONOUR: So I'm not wanting to interfere.

(Transcript 2 October 2024, p.45 line 8 - p.46 line 46)

[94]

In relation to the comment about "what happens at mother's group stays at mother's group", her Honour, in her Reasons, said:
1. The comment I made must be seen in the context of the evidence that the Mother had already given in her Affidavit and also in answer to the questions posed by [Ms C].
2. The Father contends my comment is unduly personal towards the Mother and alluding to an association of allegiance and secrecy.
3. I do not know the Mother other than as a litigant in proceedings before me.
4. The Mother gave her answer to [Ms C's] questions, so there can be no secrecy. The evidence was given.
5. [Mr E] said in oral submissions that "what it portrays is a perception that there is an understanding between yourself and the Mother of something that the Father would not have an understanding of."
6. As I said to [Mr E], the test is an objective one, not a subjective one. How the Father perceives the interaction is not to the point.
7. It is the fair-minded lay observer who has the context of the whole proceeding up to that point, not just that one comment.
8. I asked [Mr E] to consider whether the fair-minded lay observer would consider the comment I made as a joke. He said no.
9. In an exchange between myself and [Mr E], it became clear to me that the reason the comment I made was not acceptable was because I am female. [Mr E] agreed that was so.
10. That is an innate quality that no one has control over. The innate quality of a judicial officer cannot be the reason (or one of the reasons) that a Judge ought to be disqualified from hearing a matter.
11. Litigants do not get to choose their Judges. They certainly cannot seek to disqualify the Judge assigned to their matter on the basis of sex.
12. [Mr D] submitted that the comment I made was a "sisterhood comment" and was "potentially familial".
13. [Mr E] and [Mr D] argue that the comment I made could be construed to show familiarity, or secrecy, or solidarity with the Mother, or sisterhood or secrecy.
14. But, apparently, the fair-minded lay observer would not consider it was a joke.
15. The High Court says that I am not required to sit mute or like a sphinx.
16. There is no substance to Ground 6 and I reject it.

[101]

HER HONOUR: What was the context?‑‑‑

WITNESS: There was no one actually allowed to see [X], because there was complications at the birth. She was in a humidicrib for - for around ‑ ‑ ‑

HER HONOUR: No. What was the context of you saying to the mother at a later time, "My family is allowed to celebrate the birth of their first grandchild"?‑‑‑

WITNESS: Yes. I don't agree with the - the wording. But I - I was sympathetic to [Ms Spargo] a week or so later, and the context was that - yes - she was tired, and she wanted them to leave, because she was tired and exhausted, which - which - I was ‑ ‑ ‑

HER HONOUR: Well, again, [Mr Spargo], you're not answering my question. The context is you're saying - not at the hospital - but was your family somewhere else where the child was and your wife was?‑‑‑

WITNESS: No. The - they - no. No. The context was that the family eventually, a week or two later, were in the room.

HER HONOUR: Right. At home or in the hospital?‑‑‑

WITNESS: At the hospital.

HER HONOUR: I see. So you're saying it didn't happen on the first day she was born, but they were there at the hospital on a different day?‑‑‑

WITNESS: They were at the hospital on a different day.

HER HONOUR: On a different day. Thank you. And then what happened?‑‑‑

WITNESS: It was the first grandchild. Dad bought a single bottle of Grange to there to celebrate. There was - there was five people there, so there was a lot of people there visiting. It was myself, my siblings, Mum and Dad.

HER HONOUR: And - sorry. Grange - what alcohol is that?‑‑‑

WITHNESS: Penfolds Grange, one - a bottle of red wine.

HER HONOUR: Red. All right. So ‑ ‑ ‑?‑‑‑

WITNESS: Just ‑ ‑ ‑

HER HONOUR: Yes. Go ahead? ‑‑‑

WITNESS: Just celebratory sort of special drink. So one bottle between five people, and everyone had a glass of wine. [Ms Spargo] was getting a bit overwhelmed. And - yes. And she did request they left. I was - I said, "Yes. Okay." She could tell I was a bit disappointed. You know, they had only get there, but she was tired. And the nurse did actually pull me aside and spoke to me and said, "Hey. You know, [Ms Spargo] has asked - she's pretty tired. Can we sort of clear everybody out?" So I said, "Yes. No worries." And then I can't remember the exact context, but when I was talking to [Ms Spargo] afterwards, after my family left, I - I was obviously - I was a bit disappointed. I said, "Well, you know, sorry. But they were just - they were here. They were excited about the birth of their first grandchild." So that - that was ‑ ‑ ‑

HER HONOUR: So really ‑ ‑ ‑?‑‑‑

WITNESS: ‑ ‑ ‑ context.

HER HONOUR: Okay. So what you're being asked questions about was on the day of the birth, and you're saying, "No. It didn't happen." Did you put in your affidavit, "Look, she has got the days wrong. This happened on another day"?‑‑‑

WITNESS: No. Because I don't agree with what was actually said. It wasn't said in the same manner or tone ‑ ‑ ‑

HER HONOUR: Okay?‑‑‑

WITNESS: ‑ ‑ ‑ that she's ‑ ‑ ‑

HER HONOUR: All right. That's fine?‑‑‑

WITHNESS: Sorry. I ‑ ‑ ‑

HER HONOUR: Thank you. No. That's fine. Thank you, [Mr F].

(Transcript 3 October 2024, p.143 line 21 - p.144 line 29)

[108]

HER HONOUR: [Mr E].

[MR E]: Yes, your Honour.

HER HONOUR: Explain to me how paragraph 171 came to be in this affidavit. And is your instructor the author of this document?

[MR E]: Let me just check that, your Honour.

HER HONOUR: Who drafted the document?

[MR E]: It is my instructor.

HER HONOUR: How dare an officer of this court think it's relevant to a parenting dispute that a mother or father has had a sexually transmitted disease. Tell me how that's relevant, [Mr E]. For the record, I am raising my voice, because I am outraged. And I will now lower my voice, because that is more appropriate.

[MR E]: It's the - can this be said without the - - -

HER HONOUR: No.

[MR E]: Okay.

HER HONOUR: The mother is entitled to hear - - -

[MR E]: Okay.

HER HONOUR: Ma'am, did you want to be excused?

[MS SPARGO]: No.

HER HONOUR: Or do you want to hear this?

[MS SPARGO]: I want to hear this.

HER HONOUR: As you should.

[MR E]: Certainly.

HER HONOUR: Please proceed, [Mr E].

[MR E]: I just didn't want to offend her if I said anything - - -

HER HONOUR: No. I suspect she's highly offended. Also, this is coupled with the photograph of this mother breastfeeding one of the babies. As the Solicitors' Conduct Rules clearing show - state, we legal practitioners are not the mere mouthpiece of our clients. We are the forensic gatekeepers of what is relevant in this court, and it is not a shop where parties get to come in and say, "This is what I want, and this is what I want you, my solicitor, to say." So in respect of those two issues, would you kindly address me.

[MR E]: Certainly. Can I take some instructions from my instructor first in relation to the process of it? I'm going to be speaking in relation to why it's in there.

HER HONOUR: Yes. But I won't stand the matter down.

[MR E]: No. No. Thank you. Thank you for that time, your Honour.

HER HONOUR: Yes, [Mr E].

[MR E]: The instructions received from the father were that - and he said that in his evidence now. There were a number of partners that he thinks were on a casual basis, and he took issue with that, because the children were being exposed to it. The reason that it has gone to this extent is that he's trying to show the court of reasons and evidence that the mother's evidence of only having one partner is inconsistent and supports his case theory that there were a number of different parties.

HER HONOUR: Not my proposition to you, [Mr E]. As an officer of the court, I want you to take instructions as to why this solicitor considered it was appropriate to follow her client's instructions to the extent that immaterial, irrelevant, highly embarrassing, humiliating information - just - because we're all adults in this room, I think we can all understand that sexually transmitted diseases can be transmitted by one partner just as they can by 48.

[MR E]: Absolutely.

HER HONOUR: Please take those instructions.

[MR E]: Your Honour, the affidavit went back and forward to the client. It was a poor judgment call to leave it in there when the client said, "This is the final affidavit that I want presented." It should - - -

HER HONOUR: Yes.

[MR E]: It should have been removed. It was a poor judgment call. Your Honour, and I'm not going to let my instructor be exposed to this. I had some review of the affidavit material and myself didn't remove that at the time. So I fall on my sword there as - - -

HER HONOUR: I appreciate your candour, [Mr E].

[MR E]: - - - I always will.

HER HONOUR: Yes. Thank you for that.

[MR E]: And, obviously, it's something that I will take into consideration, as well, being a little more forceful in these situations, if I could put it that way.

HER HONOUR: Tell me about the photograph of the breastfeeding that clearly is taken at a time these parties are together.

[MR E]: Yes.

HER HONOUR: And I'm going to be asked to believe, on your submission that this father took that photo not in a jesting, jocular way, which is certainly how it appeared to me, when I looked at it, and I did wonder, "Why is this in the affidavit?" This is clearly when the parties are together. The baby is breastfeeding. The mother is having a drink. Whoop-de-do. But he's telling me in evidence, "Well, no. Actually, it's because I was concerned." Tell me how that humiliating photograph ended up annexed to an affidavit.

[MR E]: Similar circumstances. It paints a very poor picture not only - if I can put it this way - not only for the inclusion of it in an affidavit but the insistence that it should have been removed. So it's certainly open to your Honour to draw an inference from the reasons why it was taken in the first place and, secondly, why it was included in the affidavit material.

HER HONOUR: Yes.

[MR E]: So I appreciate both those points.

HER HONOUR: Thank you, [Mr E]. Just while we have the father outside - - -

[MR E]: Yes. Of course.

HER HONOUR: - - - are there any other - because that escaped my attention.

[MR E]: Yes.

HER HONOUR: And I would like to know now, in the absence of the father - - -

[MR E]: Certainly.

HER HONOUR: [Mr F] or [Ms C], are there any other disgustingly humiliating, irrelevant comments about this mother in the affidavit? Because I will be taken to them, and I will then be taken to them in submissions. Because I don't propose to strike them out, because you might wish to make a submission to me, [Mr F], about what I should do with these comments

(Transcript 3 October 2024, p.174 line 1 - p.177 line 2) (Emphasis added)

[114]

HER HONOUR: All right. Well, [Ms C], did you want to ask questions while the certificate is current? Because then I have to put a stop on the certificate.

[MS C]: Certainly, your Honour. Your Honour, I don't wish to ask any questions with regards to that.

HER HONOUR: All right. I do. Why did you think showing the court documents to the police would make the mother stop telling people about her allegations?---

WITNESS: Because then they would do - whether it made her stop or not, I wanted it exposed for any future reference, because I - I'm - that may come back to my children, not about myself so much or any future incrimination or prosecution. It was more to say that it's - look, this has been - this has had the chance, at least, to be investigated. I had taken it to the fullest extent I could to have it investigated so the truth could - could be at least - - -

HER HONOUR: That's not your evidence, sir. You said, "I wanted to put a stop to it. She was going around telling people this." My question that you - - -?

WITNESS: ---Yes.

HER HONOUR: - - - haven't answered is why did you taking the court documents to the police lead you to think it would stop the mother telling people things?---

WITNESS: Because I assumed, with police involvement, it - it may make her think that each time, maybe, she makes allegation again - that it - I - I don't know. I had no other options, your Honour. I - - -

HER HONOUR: Sir, you wanted her to be dealt with by the police for making a false complaint against you; that's right, isn't it?---

WITNESS: I wanted police involvement. Yes.

HER HONOUR: Yes. To have her dealt with for making a false complaint against you; that's right, isn't it?---

WITNESS: Yes. I suppose it is, your Honour.

HER HONOUR: So you wanted the police to get involved, to go to the mother and tell her, "Don't make a false complaint"?---

WITNESS: Yes. I guess - yes. When you put like that, yes. That is what - - -

HER HONOUR: That's right?---

WITNESS: That is what I wanted, your Honour. Yes.

HER HONOUR: Anything arising from my questions, [Mr F]?

[MR F]: No, your Honour. Thank you.

(Transcript 3 October 2024, p.194, line 38 - p.195, line 29)

[120]

Is that what happened?‑‑‑

WITNESS: I was putting [X] in the car.

HER HONOUR: Is that what happened?‑‑‑

WITNESS: I ‑ ‑ ‑

HER HONOUR: She said you left ‑ ‑ ‑?‑‑‑

WITNESS: No, I hadn't ‑ ‑ ‑

HER HONOUR: ‑ ‑ ‑ then you came back?‑‑‑

WITNESS: I hadn't left the property, no. I was still putting [X] in the car. And [X], straight away as I was putting her in the car, said to me, "Dad, [Mr G] was really mean to me." I said, "okay." That is concerning, obviously. So I just walked from - we're still in the driveway. I just walked over and knocked on the door again. I said, "Hey, ma'am, is there any reason - why is [X] saying that [Mr G] was mean to her?" She said it was because the girls were playing - and she said "No, he wasn't mean to her", which I agree with, he wasn't. And she explained that the girls - [Mr G's] daughter and [X] were playing in the sprinkler, or something, in the backyard, and they did something to each other that were upsetting each other ‑ ‑ ‑

HER HONOUR: All right?‑‑‑

WITNESS: ‑ ‑ ‑ and [Mr G] told them to stop, and [X] got upset.

HER HONOUR: All right. And you say that that didn't make you upset?‑‑‑

WITNESS: No, it didn't.

HER HONOUR: Your daughter telling you that someone was mean to her?‑‑‑

WITNESS: Yes.

HER HONOUR: So that you turned around to go and ask the mother, you weren't upset?‑‑‑

WITNESS: I'm telling you, I - not to the point that I said ‑ ‑ ‑

HER HONOUR: Were you upset?‑‑‑

WITNESS: ‑ ‑ ‑ said anything like that.

HER HONOUR: I didn't ask you that. I just said, "were you upset"?‑‑‑

WITNESS: Yes, I was upset initially. Yes.

HER HONOUR: Right. Initially?‑‑‑

WITNESS: Yes.

HER HONOUR: Because, like you said, your daughter's told you something that worried you?‑‑‑

WITNESS: That is right. So initially I was ‑ ‑ ‑

HER HONOUR: You go back?‑‑‑

WITNESS: Yes.

HER HONOUR: Mum was defensive?‑‑‑

WITNESS: Yes.

HER HONOUR: And she said, "go away"?‑‑‑

WITNESS: Correct.

HER HONOUR: It's her house, isn't it?‑‑‑

WITNESS: It is, yes.

HER HONOUR: Did you go away?‑‑‑

WITNESS: Yes, I did.

(Transcript 3 October 2024, p.209 line 1 - p.210 line 9) (Emphasis added)

[128]

HER HONOUR: You want to scare the mother into agreeing with your case because, otherwise, she has got appeal after appeal to look forward to, doesn't she?---

WITNESS: Like I said, I'm - I'm not even sure what the options are, if there are any.

HER HONOUR: I didn't ask you that. You've accepted that - - -?

WITNESS: ---No, I - - -

HER HONOUR: - - - you made a certain comment to the report writer, and you're being asked about, well, you know one question counsel put to you was, "You don't want to - you don't like being told" - I can't remember how you put it, but what to do.

[MS C]: "You don't like being told what to do", yes.

HER HONOUR: Yes. You don't, do you?---

WITNESS: I - I guess not. No.

HER HONOUR: You don't. Because there's a protection order that tells you what to do, and you breach it, right?---

WITNESS: I have been breached on it, yes.

HER HONOUR: Yes. You're at the restaurant with the girls; the mother's telling you to go. You don't, do you?---

WITNESS: On that occasion, no.

HER HONOUR: Was she crying when she took that video?---

WITNESS: I believe she was teary, yes.

HER HONOUR: You told the police, didn't you, that she was hysterical?---

WITNESS: Yes.

HER HONOUR: She was hysterical, wasn't she?---

WITNESS: Yes.

HER HONOUR: She was telling you to go. You didn't go. Yes?---

WITNESS: Yes.

HER HONOUR: Right. And you telling the report writer that you won't accept whatever result I give you that you don't like because you will have "appeal after appeal", and it's right, isn't it, you don't like it to be told what to, do even by me?---

WITNESS: I - - -

HER HONOUR: No?---

WITNESS: No. Yes.

HER HONOUR: Okay. So then what do you say about the possibility that I could find that you making that threat - sorry - that you making that comment is a threat to the mother that if she doesn't agree with your orders for week about, you're facing an "appeal after appeal after appeal. Whatever I need to do to make it work", or to get what I want? I could find that, couldn't I?---

WITNESS: I - I guess you could, your Honour, yes.

HER HONOUR: And what do you have to say to persuade me that I shouldn't come to that conclusion?---

WITNESS: When I was talking to [Mr B], it's quite an intimate sort of - I don't know whether that's the right word, but just a cosy, comfortable - - -

HER HONOUR: You let your guard down. Yes. You're comfortable. You let your guard down. You're having a talk with someone?---

WITNESS: Yes.

HER HONOUR: So you told him the truth, didn't you, about how you were feeling?---

WITNESS: That - that was not what I was trying to do. It was not a comment about trying to intimidate [Ms Spargo]. It - it wasn't. I can - - -

HER HONOUR: Okay?---

WITNESS: - - - say that. It was - it was a comment about - it was more a personal comment about herself, saying I - I can't accept it, I - and, obviously, I will have to accept that there will be no appeal after appeal.

HER HONOUR: Well, I mean, look, it's up to you. The rights are there?---

WITNESS: I - there will - there will be no appeal after appeal, your Honour.

HER HONOUR: That's fine. And you - sorry, yes?---

WITNESS: It was just something I was saying to - to almost express how much I just almost would be completely devastated - - -

HER HONOUR: Okay?---

WITNESS: - - - if the time was reduced with me and my children, how - yes.

HER HONOUR: So that's how I should interpret it, then?---

WITNESS: Well - - -

HER HONOUR: Because you don't want the time to reduce. You feel - - -?---

WITNESS: No, I just - - -

HER HONOUR: - - - passionately about that?---

WITNESS: Extremely.

HER HONOUR: Okay. All right. I will just stop you there, [Ms C].

[MS C]: Your Honour, in light of that last comment, I do have two quick more questions.

[MS C]: Are you so passionate about not having your time reduced with the mother that you would consider withholding them from the mother if an order was made against you?---

WITNESS: No. I think that would be an extremely foolish thing to do.

[131]

HER HONOUR: Thank you. But you have withheld the kids in the past, haven't you?---

WITNESS: Yes, I - yes.

HER HONOUR: I've read the messages, sir - - -?

WITNESS: ---Yes, your Honour. Yes.

HER HONOUR: - - - where the mother is saying to you - I know you had a loose arrangement, but mother is saying to you children need to be brought back at this time, and your message back is saying, "No, they will be - you can collect them on this day". You've done that, haven't you?---

WITNESS: Yes, I've done that.

HER HONOUR: Right. Okay. In terms of your income, you had attached in your tender bundle provided by your lawyers - page 49, everybody - there's a child support assessment that's dated 5 August 2024, and that's the nil assessment?---

WITNESS: Yes.

HER HONOUR: Okay. When did the AAT decision come out?---

WITNESS: Around - early this year. When I say that, I - last year, maybe, even. I - - -

HER HONOUR: Well, I don't understand how there's a nil assessment, but in any event - - -?---

WITNESS: They - they - I've clarified that with child support because I didn't - I didn't completely understand it myself.

HER HONOUR: Okay. So why is this - why do you want me to see this nil assessment if you've actually got an assessment from the AAT from earlier this year?---

WITNESS: It - it was - now that I understand it, the AAT assessment overrules that. It was just the point that I had sent a message to [Ms Spargo] saying, "Hey. Look, even though this is done, I will continue the payments as - as they're coming through." That was - - -

HER HONOUR: Sir, you had to under the AAT, didn't you?---

WITNESS: Yes, but I didn't - I didn't realise that. I thought that they were changing it somehow. I didn't - I didn't understand it.

HER HONOUR: Okay. Why is this - - -?---

WITNESS: So I wanted to make [Ms Spargo] sure.

HER HONOUR: So this is here to tell me that you had in your affidavit a nil assessment for child support?---

WITNESS: Yes. I - I - - -

HER HONOUR: Right?---

WITNESS: I guess so, yes, to make you aware that there was an assessment sent through. Yes.

HER HONOUR: So you were asked questions about the voluntary drop in your income. Is it the case, sir, that you haven't paid the arrears of your child support - your debt - because you're hoping I make an equal time arrangement, which actually, with your income lower than the mother's, will result in her having to pay you child support?---

WITNESS: No, that's - - -

HER HONOUR: Didn't occur to you?---

WITNESS: It's something that would happen, yes. It occurred - - -

HER HONOUR: Did occur to you?---

WITNESS: It occurred to me, but it makes no - - -

HER HONOUR: Did occur to you?---

WITNESS: Yes, it occurred to me. Yes.

HER HONOUR: That's why you didn't pay the debt, isn't it?---

WITNESS: No, it's not.

HER HONOUR: It's why you didn't pay the debt, sir, isn't it? You paid your lawyers. So let me see if I understand your earlier evidence. You sold a tractor for 60,000?---

WITNESS: Excavator, yes.

HER HONOUR: Excavator. Excuse me?---

WITNESS: Machinery, yes.

HER HONOUR: What was the $30,000 one that you sold?---

WITNESS: A truck.

HER HONOUR: Okay. And you've paid your lawyers 56,000?---

WITNESS: Yes, your Honour.

HER HONOUR: 90 minus 56 is 40 - sorry, 34?---

WITNESS: Yes.

HER HONOUR: So you could pay the debt and still have 23,000 left over?---

WITNESS: I'm - the moneys to renovate the house I was discussing earlier, your Honour, which is - - -

HER HONOUR: Sir, you have an obligation to financially support your children; do you understand that?---

WITNESS: Yes.

HER HONOUR: It's not just about happy times, going to the park, and going to theme parks and whatever, is it?---

WITNESS: No.

HER HONOUR: So one of the things I have to look at is your ability to meet your parental obligations to these children, which includes your financial obligation; do you understand that?---

WITNESS: Yes, I do, your Honour.

HER HONOUR: Right. So when you had the cash from selling those items, you chose not to fully pay out your child support debt, didn't you?---

WITNESS: Yes.

HER HONOUR: And you were hoping for a result that will, in this court, give you equal time with the children, aren't you?---

WITNESS: Yes.

HER HONOUR: And that will result, with your current income, in the likelihood of the mother having to pay you child support, isn't it?---

WITNESS: It would result in that, I suppose, but it wouldn't - - -

HER HONOUR: Right?---

WITNESS: - - - be for a long time. I would - - -

HER HONOUR: Wouldn't it?---

WITNESS: Well, I would still need to pay the arrears.

HER HONOUR: Sir, how about the videos? Tell me about the camera on the dash-cam. Is it forward-facing to catch traffic incidents, or is it inward-facing like in a - those taxi driver movie - you know, the - on YouTube or whatever, to catch funny conversations in the car?---

WITNESS: It's a normal dash camera that I had mounted to face in the car.

HER HONOUR: Correct. Right?---

WITNESS: Yes.

HER HONOUR: Why is it that I only have, out of all of these 7 videos, the parts that make the mother look bad?---

WITNESS: I feel I left a good portion on each side of it to - - -

HER HONOUR: Do you know what I don't have in those videos, sir? The conversation you are having with your girls before they start telling you that, "Mummy said you're going to jail. Mummy said you're not paying child support." Isn't that funny that I don't have the beginning part of that video that tells me what questions you were asking these girls? Do you think that's a funny coincidence that I don't have the beginning parts of those conversations?---

WITNESS: Well, I agree, it could be. Yes.

HER HONOUR: Because you ask these questions of these girls when you see them, don't you?---

WITNESS: No, I don't.

HER HONOUR: The only way you can have the information about mummy's special friends is by you asking the children who was at mummy's house. That's right, isn't it?---

WITNESS: It's not, your Honour.

HER HONOUR: You're under your affirmation to tell the truth - - -?---

WITNESS: I - - -

HER HONOUR: - - - sir. These children in that video, [Y] was two. Yes?---

WITNESS: Yes.

HER HONOUR: [X] was five?---

WITNESS: Yes.

HER HONOUR: And you want me to believe on those videos that from the - just - it just only happened that the portion that you got started with [X] saying, "Oh, mummy said you don't do child support". That's what you want me to believe?---

WITNESS: That - yes, it is.

HER HONOUR: Well, sir, given that your evidence is that you have had that dash-cam forward facing - into the car, I mean - rear-facing - from early to mid-2021 until September 2021 - your evidence - you've only given me about 10, 15 minutes of all of that footage, haven't you?---

WITNESS: Yes.

HER HONOUR: You have not given me any footage of these children saying anything in answer to any questions that you might have of them, have you?---

WITNESS: No.

HER HONOUR: And I could find that you have - what's the word - edited these videos so that the only point that I have is the tiny bit that makes mum look bad. I could, couldn't I?---

WITNESS: Yes, you could find that.

HER HONOUR: And I could also find that the reason I don't have the minutes leading up to that conversation is because you are asking them questions to get the response that then you have tendered into court. What do you say about that?---

WITNESS: That would not be possible to find, your Honour.

HER HONOUR: Sir, you're asking me to accept evidence that logically isn't acceptable. Do you understand what I'm saying?---

WITNESS: Yes, I do.

HER HONOUR: Anything arising from my questions - noting the time, but anything arising?

[MS C]: No. Thank you, your Honour.

HER HONOUR: [Mr F]?

[MR F]: No. Thank you, your Honour.

HER HONOUR: Thank you. [Mr E], re-examination?

[MR E]: No. No re-examination.

(Transcript 3 October 2024, p.260, line 20 - p.263, line 36)

[138]

In Galea v Galea (1990) 19 NSWLR 263 at 281-2 (Galea), Kirby A-CJ (with whom Meagher JA agreed) summarised the relevant principles in relation to excessive judicial interference, as follows: 1. The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (NZCA). 2. A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: see R v Matthews (1984) 78 Cr App R 23; E H Cochrane C Ltd v Ministry of Transport. 3. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and "into the perils of self-persuasion": see Sir Robert Megarry, "Temptations of the Bench" (1978) 16 Alta L Rev 406 at 409; see also U Gautier, "Judicial Discretion to Intervene in the Course of the Trial" (1980) 23 Crim LQ 88 at 95-96 and cases there cited. 4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: see In the Marriage of Lonard (1976) 11 ALR 618 at 626; 26 FLR 1 at 10-11; 2 Fam LR 11,116 at 11,123; see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby [1970] 1 NSWR 654; 90 WN (Pt 1) (NSW) 427. 5. It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill (at 185) and Gautier (at 117). 6. The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: see Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657; 49 ALR 448 discussed in R v R (1989) 18 NSWLR 74 at 84F per Gleeson CJ. 2. This statement of principle is widely accepted: see Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 (Royal Guardian); Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 85 and Jorgensen v Fair Work Ombudsman (2019) 371 ALR 426; [2019] FCAFC 113 (Jorgensen). 3. Further, the following principles may be distilled from the previous authorities in relation to excessive judicial intervention:

[154]

The primary judge, in her Reasons at [30], cited the decision of Full Court in Cusack & Cusack (No 3) at [44], where the plurality said:
1. The flavour of the husband's complaint is that the primary judge intervened excessively when he was making submissions, but the tranches of transcript the husband recited only show the primary judge debating the husband about the merit of his application and the sufficiency of the supporting evidence. As a general observation, his Honour interjected during submissions for clarification, to answer direct enquiries, and to identify deficiencies in both the evidence and the proposed orders, as is common and permissible (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd at [111]-[112] ; Antoun v R [2006] HCA 2; (2006) 224 ALR 51 at [27] ; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 and 504-505). The husband was not importuned. Occasional instances of mild exasperation aside, the transcript shows the interventions were reasonable and proportionate. ...
Whilst the primary judge referred to each of the examples proffered by the appellant at first instance, it is evident that the relevant principles were not applied in her Honour's analysis thereof, nor did she consider the cumulative effect thereof. Rather, her Honour proceeded upon what she considered to be her freedom as a judge to engage in the proceedings, including by reason of certain provisions of Division 12A of Part VII of the Act, without proper consideration of the principles of procedural fairness, as required by the authorities.
In relation to the extent of her questioning of the appellant and the respondent, the primary judge undertook a mathematical analysis, focusing on the quantity of her interventions, rather than the qualitative nature thereof. Her Honour said at [48], [50]-[52]:
1. As the authorities tell me, whether there has been excessive judicial intervention will depend upon the number, length, terms and circumstances of the intervention. Interruptions early in a witness' evidence may be less readily excused than one later, and the judge must ensure the appearance of an impartial and unprejudiced mind. I am entitled to ask clarifying questions.

[156]

It is apparent, from the passages of the transcript cited above, that many of her Honour's questions went beyond mere clarification of the questions asked by counsel and/or the answered proffered by the witness. Similarly, it is apparent that many of her Honour's interventions went beyond controlling the proceedings, especially in circumstances where the cross-examiner had not yet pressed the witness for an answer or requested that her Honour direct the witness to answer the question.
Insofar as the primary judge said at [67] that, "[j]ust because I asked the Father questions, does not mean that I was engaging in cross-examination", as a general proposition, that is self-evident. However, the qualitative difference between non-leading and leading questions is also self-evident, cross-examination being in the latter category. The passages of lengthy questioning by her Honour, cited above, overwhelmingly comprise leading questions, in the nature of cross-examination.
In relation to the recusal application grounded in a denial of procedural fairness, the primary judge concluded:
1. The Father's assertions of my entry into the fray, which I have already considered earlier in these reasons, are complaints as to procedural fairness.
2. The Father was afforded the opportunity to give evidence by way of affidavit. The Father was cross-examined. He was given the opportunity for re-examination.
3. The Father, through his Counsel, was given the opportunity to test the Mother's evidence.
4. As the trial is part-heard, not all the evidence has fallen. Final submissions have not been made.
5. There was nothing [Mr E] could point me to that showed the conduct of the matter was procedurally unfair to the Father.
With respect, that was not the test. As referred to above, it is readily apparent from earlier passages throughout her Reasons, that the primary judge relied heavily on the provisions of Division 12A of Part VII of the Act, stating, for example, that examples proffered, not only by the appellant but also by counsel for the respondent at first instance, "seem to ignore the powers I have as a Judge to hear this matter and control the proceedings" (at [162]).
The appellant submits, correctly, that the "powers" available to the primary judge in no way justified or negated her Honour's judicial obligation to ensure procedural fairness and a fair trial. Whilst s 69ZX(1)(e) of the Act permits judges to "ask questions of, and seek evidence or the production of documents or other things from parties, witnesses and experts," this does not derogate from or negate the obligation upon judges to ensure a fair trial. The focus must be on how the power was exercised, rather than merely whether the primary judge had the power.
When the conduct of the primary judge, over the first three days of the part-heard trial is considered cumulatively and globally, and not merely through the lens of her Honour's statutory powers, I consider (and, indeed the respondent concedes and the Independent Children's does not dispute) that her Honour misdirected herself and that the appellant was denied procedural fairness.
For completeness, I note that, in his Summary of Argument, counsel for the appellant referred to an article by Sir Robert Megarry, then Vice-Chancellor of the Chancery Division of the High Court of Justice of the United Kingdom, entitled "Temptations of the Bench" (1978) 16 Alberta Law Review 406, in which the following salient observations were proffered.
In relation to judges indulging in unrestrained intervention, one of the vices of this indulgence is that it has the -

[163]

This proposed ground of appeal effectively contends that the primary judge erred in law in holding that, in the absence of explanation for the appellant's delay, the recusal application ought to have been made at some earlier time, such that he had waived his complaints.
The primary judge noted at [175]-[176] that the appellant filed his recusal application on 29 January 2025, in circumstances where he had been legally represented during the first tranche of the trial on 2, 3 and 16 October 2024.
Her Honour then said:
1. Nowhere in his Affidavit filed 29 January 2025 does the Father explain his delay in bringing the recusal application.
2. As I said to [Mr E], now that the Father has made his application, the submission is that the fair-minded lay observer at the time would have said this is all very troublesome, and yet it did not occur to any of the three Counsel appearing at the trial at the time.
3. The appropriate time to make the application for recusal was either on 3 October 2024 or at the very least 16 October 2024 when the matter came back before me.
4. There is no explanation for the delay in bringing the application so close to when the trial is due to recommence in a few weeks' time.
The primary judge referred at [180] to Vakauta v Kelly at [5], where the plurality said:
1. Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

[169]

Having found that the primary judge erred in law in her dismissal of both of limbs of the recusal application, I consider that her Honour's decision is attended by sufficient doubt to warrant it being reconsidered on appeal and, by reason of the nature thereof, which goes to the integrity of the judicial process, that substantial injustice would result if leave were refused. Accordingly, the conjunctive test for leave to appeal in Medlow & Medlow is satisfied.
Leave to appeal will be granted, the appeal will be allowed and, for the reasons above, the part-heard trial of the parenting proceedings will be remitted for rehearing by another judge of the Federal Circuit and Family Court of Australia (Division 2).
In his amended Notice of Appeal, the appellant also sought orders that:
1. That the parties be provided with the audio transcript of the part-heard Final Hearing on 2, 3 and 16 October 2024.
2. That the Court's copy of the transcript of the evidence given on 2, 3 and 16 October 2024 be placed in a sealed envelope, with such envelope to be marked "Not to be provided to any person/party without further Order of the Court."
3. That the parties and/or their solicitors destroy the electronic copy of the transcript of the proceedings given on 2, 3 and 16 October 2024 forthwith and file an Affidavit confirming that all electronic copies of same have been destroyed.
No submissions were made at the hearing of the appeal in relation to such orders and the appellant's Summary of Argument is entirely silent in relation thereto. However, by reason of the Submitting Notices filed by the respondent and the Independent Children's Lawyer, such orders are not opposed by them.
A not dissimilar, but more far reaching, provision, albeit by way of notation, rather than orders, was made by the Full Court in Henley and Bestari [2024] FedCFamC1A 12; (2024) 68 Fam LR 284. However, in that case, in which the Full Court allowed an appeal from the dismissal of a disqualification application, the primary judge was exposed to proposed property settlement orders which materially deviated from the formal position of both parties. The documents the subject of the notation apparently disclosed the settlement negotiations.
In the present case, in the absence of submissions to the contrary by the appellant, I do not consider the transcript contains the same mischief which the Full Court saw fit to avoid in Henley and Bestari and, accordingly, the further orders will not be made.

Spargo & Spargo [2025] FedCFamC1A 174 (25 September 2025)

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