D v B

[2014] WASCA 196

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	D -v- B [2014] WASCA 196

CORAM	: NEWNES JA MURPHY JA
HEARD	:  8 OCTOBER 2014
DELIVERED	:  8 OCTOBER 2014
PUBLISHED	:  29 OCTOBER 2014
FILE NO/S	:  CACV 93 of 2014
BETWEEN	: D

Appellant

AND

B

Respondent

ON APPEAL FROM:

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Coram	: MONCRIEFF J
Citation	:  B and D
File No	:  PTW 3688 of 2009

[2014] WASCA 196

Catchwords:

Family law - Appeal against suspension by Family Court of order for access to children - Interim application by appellant for access to children - Application dismissed - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

Case(s) referred to in judgment(s):

D v B [No 2] [2012] WASCA 265
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR

427

[2014] WASCA 196

NEWNES JA

1. NEWNES JA: On 8 October 2014, we dismissed an interim application filed by the appellant seeking a number of orders in the appeal. These are the reasons I joined in the order dismissing the application.

2. The appellant has appealed from an order of Moncrieff J in the Family Court by which his Honour, on the application of the respondent, suspended the operation of an order he made on 10 February 2012 for the appellant to have supervised access to his two children for a period of up to two hours per fortnight. His Honour did so pending compliance by the appellant with an order his Honour had also made on 10 February 2012 that the appellant attend upon a psychiatrist for treatment and management. In his reasons for decision, the primary judge said he suspended the operation of the access order because of concern that, in view of the conduct of the appellant set out in the evidence before him, the children may well be at risk of psychological harm [42].

3. The result is that the appellant currently does not have any right of access, supervised or unsupervised.

4. I should mention that the appellant had opposed the respondent's application and in turn had sought an order for custody of the children on a full time basis or, alternatively, that he have unsupervised access for two days per week. While the primary judge did not expressly deal with the appellant's application, it necessarily follows from his decision that he rejected it.

5. In the interim application in the appeal, the appellant seeks, in effect, an order for access to the children for two days per week (apparently on an unsupervised basis) and various other orders, including orders for the production by the police force of any transcript it may have of an interview with a third party whom the appellant alleges has sexually interfered with one of the children, and for an agency which had previously supervised the appellant's access to his children to provide a '2013 Report'. The matters set out in the appellant's affidavit in support of the interim application are no different in substance to those he advanced before the primary judge.

6. There is no basis for the orders the appellant seeks. The issue on the appeal is whether the primary judge erred in suspending the order of 10 February 2012 for supervised access. The effect of the order for access which the appellant seeks in the interim application would be not only to reverse the suspension of the 10 February 2012 order but also to grant to

[2014] WASCA 196

NEWNES JA

the appellant access rights going well beyond those previously allowed.
There are no grounds upon which this court might make such an order.

1. The other orders sought appear to reflect a belief on the part of the appellant that the appeal to this court involves a hearing de novo. If that is indeed the appellant's belief, it is mistaken. The appeal is not a hearing de novo but by way of a rehearing on the evidence before the primary judge.

2. It was for those reasons I considered that the application should be

   dismissed.

3. There is one further matter. In the course of the hearing of the application, I refused an oral application by the appellant that I recuse myself on the ground, as I understood it, of apprehended bias. The grounds upon which the appellant relied were, in substance:

(1)	that I was a member of the court which had dismissed an earlier appeal by the appellant: D v B [No 2] [2012] WASCA 265;
(2)	his assertion that I was not giving sufficient weight to the material in the affidavit in support of the application; and
(3)	his assertion that I was not acting in the best interests of the children (ts 5).

1. My reasons for refusing the recusal application are as follows.

2. The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. That requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]. The onus of establishing the facts upon which an allegation of a reasonable apprehension of bias is made lies on the party making it.

3. The matters advanced by the appellant do not establish any basis for such an apprehension and no basis exists for it.

4. Accordingly, I refused to recuse myself.

[2014] WASCA 196

MURPHY JA

1. MURPHY JA: I joined in the dismissal of the appellant's application on 8 October 2014, essentially for the reasons recorded in the judgment of Newnes JA.