BW v Secretary, Department of Communities and Justice & Ors

1. [1]

   HIS HONOUR: The Plaintiff brings these proceedings under s 69 of the Supreme Court Act 1970 (NSW) to prevent a magistrate from continuing to hear proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) which are part heard before the Children’s Court of New South Wales.

2. [2]

   The hearing of the Children’s Court Proceedings commenced on 4 September 2023 and has thus far run for ten hearing days in three sittings. On the eleventh day, 23 February 2024, an application was made by two of the parties that the Magistrate disqualify herself from further hearing the case on the basis that her Honour’s conduct of the hearing gave rise to a reasonable apprehension of bias.

3. [3]

   There is no allegation of actual bias.

4. [4]

   The Magistrate did not dismiss the application immediately. Her Honour received submissions, first orally and then in writing. On 21 May 2024 the Magistrate dismissed the application. Since that date the Children’s Court Proceedings have stood adjourned.

5. [5]

   One of the parties who applied to the Magistrate to disqualify herself is the Plaintiff in the current proceedings before the Supreme Court. After the Magistrate dismissed the application, the Plaintiff filed the Summons by which these proceedings were commenced. The Summons was subsequently amended, for the last time on 2 July 2024. As it further evolved during the hearing, the final relief sought by the Plaintiff is:

6. [6]

   At the Supreme Court hearing, most but not all the parties to the Children’s Court Proceedings were represented. All those who appeared supported the Plaintiff's application. No one opposed it.

7. [7]

   In addition to the parties, an appearance was made by the Attorney-General. The Attorney-General's objective was to assist the Court by ensuring that all relevant matters were put before the Court. The Attorney-General made submissions on both the law and the facts but did not advocate for any particular outcome of the case.

8. [8]

   Having considered all the evidence and the submissions, I have found that a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the questions her Honour is required to decide. In those circumstances the Orders referred to in [5] above are to be made.

9. [9]

   It is necessary to set out in some detail the circumstances in which the Children’s Court Proceedings arose. Without the detail it is not possible to understand some of the events which occurred during the hearing before the Magistrate.

10. [10]

    The factual background includes matters concerning the performance of officers of the Department of Communities and Justice in the context of the statutory care regime established by the Children and Young Persons (Care and Protection) Act 1998 (NSW). I will refer to the statute as the “Statute”. An overview of the provisions of the Statute will aid an understanding of the narration of events.

Children and Young Persons (Care and Protection) Act 1998

1. [11]

   The Children and Young Persons (Care and Protection) Act has a long title which describes it as an Act to provide for the care and protection of, and the provision of services to, children and young persons. Within Chapter 2 of the Statute, s 7 provides:

2. [12]

   Section 9(1) provides:

3. [13]

   The Statute has 16 Chapters which provide for many aspects of the care and protection of children and young persons. Chapter 3 is entitled “Requests for assistance and reports”. Within Chapter 3, s 23 provides that a child is “at risk of serious harm” if current concerns exist for the safety welfare or well-being of the child because of the presence, to a significant extent, or any one or more of specified circumstances. One specified circumstance is that the child is at risk of being physically or sexually abused or ill-treated.

4. [14]

   Section 24 provides:

5. [15]

   The Secretary referred to in this provision is the Secretary of the Department of Communities and Justice.

6. [16]

   A report that a child is at risk of serious harm is called a “ROSH report”. The Secretary must keep a record of ROSH reports made to the Secretary: s 28. Section 30 provides:

7. [17]

   Chapter 4 of the Statute addresses care plans. Section 34(1) provides that if the Secretary forms the opinion, on reasonable grounds, that a child is in need of care and protection, the Secretary is to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the child. One action the Secretary might take is set out in s 34(2)(b) in the following terms:

8. [18]

   The term "care plan" is defined in s 3 of the Statute as follows:

9. [19]

   Another action the Secretary may take is to seek appropriate orders from the Children's Court: s 34(2)(d).

10. [20]

    Section 38 provides for the Children's Court to register a care plan. Alternatively, the Children’s Court may make orders giving effect to the care plan where the orders are sought by consent and in the circumstances specified in s 38(2B).

11. [21]

    Chapter 5 of the Statute is headed "Children's Court proceedings". It is divided into three Parts, the second of which is relevant to the current case. Part 2 is headed "Care applications". A care application is an application for a care order, which is defined in s 60 as follows:

12. [22]

    Section 61 relevantly provides:

13. [23]

    An exception to the Secretary making an application for a care order is s 90 which provides for other persons to make an application to vary or rescind a care order: D v C; Re B (No. 2) [2018] NSWCA 310 at [20] (Basten JA, with whom McColl JA and Emmett AJA agreed).

14. [24]

    When making the care application, the Secretary must provide evidence about certain matters to the Children's Court, including the active efforts made by the Secretary to prevent the child from entering out-of-home care and the alternatives to the care orders which the Secretary has considered and the reasons why those alternatives are not considered appropriate: s 63. With leave, a party to a care application may file further documentary evidence, but before granting leave the Children's Court must be satisfied that the grant of leave will not result in undue delay in the matter being finalised: s 68.

15. [25]

    The Children's Court may make a care order (as defined in s 60) if it is satisfied that the child is in need of care and protection for specified reasons. The specified reasons include: that the parents acknowledge that they have serious difficulties in caring for the child; or that the child has been, or is likely to be, physically or sexually abused or ill-treated: s 71.

16. [26]

    Section 72 provides:

17. [27]

    Section 78(1) provides:

18. [28]

    Section 78(2) specifies the matters to be addressed in a care plan presented to the Children's Court in respect of any child. Section 78(2A) specifies additional matters in the case of an Aboriginal or Torres Strait Islander child.

19. [29]

    “As far as possible”, the care plan is to be made with the agreement of the parents: s 78(3). This reflects s 34(2)(b) which provides for the Secretary to develop the care plan in consultation with the parents.

20. [30]

    Section 80 provides:

21. [31]

    Section 83 addresses the specific situation where the Secretary applies for a care order for the removal of a child and an assessment is required as to whether there is a realistic possibility of the child being restored to his or her parents within a reasonable period. Provision is made for consideration by the Children's Court of the Secretary’s assessment of the possibility of future restoration. Section 83(3) provides:

22. [32]

    Section 83(7) provides:

23. [33]

    A care plan is only enforceable to the extent to which its provisions are embodied in or approved by orders of the Children's Court. In determining a care application, the Children's Court is not limited to making the order sought in the Secretary's application, but may make different orders: s 67 and (in the case of a permanency plan) s 83. However, the Children's Court must not make a final order for the removal of a child from the care and protection of his or her parents unless it has considered a care plan presented to it by the Secretary: s 80.

24. [34]

    The procedures of the Children’s Court are not the same as the procedures of other courts. The procedures are set out in Chapter 6 of the Statute. Section 93 provides:

25. [35]

    Section 94 provides:

26. [36]

    Sections 98 and 99 provide:

27. [37]

    Section 107 provides:

28. [38]

    By reference to the Second Reading Speech for the Children and Young Persons (Care and Protection) Bill 1998, the Attorney-General emphasises that the Statute contemplates that it is proper that the Children's Court should inform itself on any matter in whatever way it considers appropriate to ensure that it has before it all the relevant information on which to base its decision. The Magistrate's power in s 107 to question a witness extends to calling the witness to be questioned: D v C; Re B (No. 2) at [42] (Basten JA, with whom McColl JA and Emmett AJA agreed).

29. [39]

    The Children’s Court, however, is still a court with powers to make orders which affect people’s rights. In Director General, New South Wales Department of Community Services v Children's Court of New South Wales (2002) 56 NSWLR 555 at 567; [2002] NSWSC 679 at [57], O'Keefe J said:

30. [40]

    The Children’s Court must have regard to the interests of the parties in determining how a hearing is to be conducted. In D v C; Re B (No. 2) at [83] Basten JA said:

31. [41]

    There is nothing in the Statute which relieves the Children's Court of the obligation to afford the parties procedural fairness. However, the content of that obligation will be informed by the provisions of the Statute: D v C; Re B (No. 2) at [37] & [43] (Basten JA, with whom McColl JA and Emmett AJA agreed). In care proceedings, a denial of procedural fairness may arise from denying the parties the right to question a witness. It may also arise from disregarding the parties’ views and evidence about where the best interests of the child lie: D v C; Re B (No. 2) at [82] (Basten JA, with whom McColl JA and Emmett AJA agreed).

32. [42]

    Like all other provisions of the Statute, the powers of the Children’s Court in s 107 are to be exercised having regard to s 9 and the paramount consideration of the safety, well-being and welfare of the child.

Two boys: MX and BN

1. [43]

   Turning to the facts, the case centres on two boys, MX who was born on 14 October 2016 and BN who was born on 9 April 2018.

2. [44]

   I will refer to the mother of the boys as MK. For some years MK was in a domestic relationship with BA. BA is the father of BN. Until part way through the following narrative it was unclear if BA is also the father of MX. It has now been determined that he is not. In any event, up until August 2020 MK, BA, MX and BN lived together as a family unit.

3. [45]

   The Plaintiff is the mother of BA and, hence, the grandmother of BN. Given that BN and MX have always lived as brothers, the Plaintiff is sometimes referred to as MX’s psychological grandmother. The evidence shows that both boys called her “Nan”. [1]

4. [46]

   As will be apparent from the provisions of the Statute set out above, the Secretary of the Department of Communities and Justice has responsibilities for providing care and protection for children in certain circumstances. As set out above, under ss 23 and 24 the Secretary’s responsibilities include receiving ROSH reports from the community about individual children.

5. [47]

   From as early as 2016 the Secretary began receiving ROSH reports about MX and, later, BN. The particulars of the early ROSH reports are not relevant, other than to say that they related to concerns about psychological harm, domestic violence, neglect, lack of supervision, exposing the boys to unsafe people, substance abuse and homelessness.

6. [48]

   In January 2020, MK, BA, MX and BN went to live with the Plaintiff in her home. Once there, there is evidence that people came to visit MK and BA at the Plaintiff’s house, often late at night. There is dispute about the number of people and the frequency of the visits. There is no dispute that there was domestic conflict between MK and BA. There was also conflict between the Plaintiff and each of MK and BA about the care of the boys. Between January 2020 and August 2020 the Secretary received further ROSH reports about MX and BN. The Plaintiff herself made some of the ROSH reports to the Department.

7. [49]

   On 5 August 2020 MK and BA agreed with the Secretary to a temporary care arrangement being put in place under which the boys were placed with MK's sister for one month. The sister is referred to as "MS".

8. [50]

   Before continuing with the narrative, it is necessary to appreciate that a factual matter which has assumed some importance in the Children’s Court Proceedings is the word used by the boys to refer to a penis. The Plaintiff’s evidence is that in the family it is referred to as a "pecka”. [2] It is not referred to as a "willy". [3] The Plaintiff’s son, BA, gave the same evidence. [4]

9. [51]

   Whilst the boys were living with MS, on 21 August 2020 the Secretary received a ROSH report which stated that MX was trying to touch his cousin's penis. The person who made the report said that MX was asked the question "Has anyone touched your willy?" to which MX answered "Yes". MX was asked "Was it an adult?" to which MX answered "Yes". MX did not say who.

10. [52]

    On 29 August 2020 the Secretary received another ROSH report which stated that MX had tried to touch someone's penis. As reported, when asked "Why?" MX said that the Plaintiff "had taught them to touch each other's willy to make each other laugh". It was also reported that MX said that the Plaintiff watched adults playing "the willy game" on TV. MX was also reported as saying that the Plaintiff "touches my willy" and that the boys touch each other's "willy" and get a Nutella sandwich as a present. "It happens a lot." There were other details, including aspects of secret-keeping.

11. [53]

    On 1 September 2020 MX was visited by officers from the Joint Child Protection Response Programme (JCPRP). The JCPRP is an organisation which includes officers from the Department, the police and other government bodies. MX made no disclosures to the JCPRP officers who visited him. JCPRP did not “substantiate” any harm to MX.

12. [54]

    The word “substantiate” is used in a number of documents in evidence, especially Department documents. I have not been able to find an explanation of what is intended by ”substantiate”.

13. [55]

    On 18 September 2020 the temporary placement with MS came to an end. The Secretary assumed the boys into care because it was considered unsafe for them to be returned to the care of MK and BA. The Plaintiff liaised with Department officers about her becoming the boys' carer. The Secretary, however, placed the boys into the care of an authorised carer, Louise.

Commencement of the Children's Court Proceedings

1. [56]

   Having assumed the boys into care, on 23 September 2020 the Secretary commenced the Children's Court Proceedings by filing a care application under s 61 of the Statute. On 16 October 2020 the Children's Court formally found that the boys are in need of care and protection for the purposes of ss 71 and 72 of the Statute. Without admissions, MK and BA consented. An independent legal representative for the boys was appointed under s 99. He also consented to that finding. The finding that the boys were in need of care and protection enlivened the Children’s Court power to make care orders.

2. [57]

   On 18 October 2020 the Secretary received another ROSH report which stated that MX had woken in the night crying loudly and wetting the bed. The carer attended to MX and heard MX say repeatedly "Don't touch me there Nanny".

3. [58]

   On 3 November 2020 two case workers from the Department visited MX at the home of the carer. The case workers were Brittany Watson and Ebony Larrigo. This visit and the report subsequently prepared by Ms Watson assumed prominence in the subsequent hearing before the Magistrate. At the time, Ms Watson was a case worker with about two years' experience. She had no particular training in interviewing children. MX had just had his fourth birthday.

4. [59]

   On 18 November 2020 the Secretary filed care plans for the boys which proposed permanent placement with Louise.

5. [60]

   On 26 November 2020 Ms Watson completed a report of the visit with MX. The report is referred to as the "Alternate Assessment". The Alternate Assessment is one of the most important documents in the case. Some of the text in the Alternate Assessment needs to be set out. At Item 2 the following text appeared:

6. [61]

   At Item 3 the following text appeared:

7. [62]

   On the page of the Alternate Assessment after Item 11, the following text appeared:

8. [63]

   At this time the Secretary’s computerised record system, ChildStory, recorded "Sexual harm - suspicious indicators consistent with sexual abuse" was substantiated for MX.

9. [64]

   On 5 February 2021 the Secretary moved the boys into the care of another authorised carer, Trish. On 12 March 2021 the Department filed amended care plans for the boys which proposed permanent placement with Trish.

10. [65]

    On 24 September 2021 a Children's Court Clinic assessment report was completed by the Authorised Clinician, Doulan Teoman. Ms Teoman assessed MK and BA not to have the capacity to care for the boys and to protect them from harm. She recommended the Plaintiff as the most suitable family member who is able and willing to care for the boys.

11. [66]

    On 28 October 2021 the Department received a further report in which MX was said to have expressed fear of the Plaintiff.

12. [67]

    In November 2021 Julianne Morrisey, an "assessor" from Arcadian Consulting, completed a kinship assessment of the Plaintiff and recommended that the Plaintiff be authorised as the long-term carer for the boys.

13. [68]

    On 12 November 2021, the Plaintiff was formally joined as a party to the Children’s Court Proceedings.

14. [69]

    On 13 December 2021 the Secretary filed a further amended care plan for each of the boys which proposed permanent placement with the Plaintiff, with the Minister to take parental responsibility until the age of 18. By proposing permanent placement with the Plaintiff, the Secretary made a significant change from his previous position that the boys should be placed permanently outside the family.

15. [70]

    On 21 December 2021 the Department moved the boys into the temporary care of the Plaintiff. The boys have remained in the Plaintiff’s care ever since.

16. [71]

    On 28 January 2022 the Department filed the most recent care plans for the boys which continued to propose permanent placement with the Plaintiff. These care plans have the consent of MK and BA. Initially they also had the consent of the independent legal representative for the boys.

17. [72]

    On 28 January 2022 the Children's Court Proceedings were listed for a final hearing before Magistrate Sheedy. The Secretary sought final orders based on the care plans. As set out above, the final orders contemplated permanent placement with the Plaintiff. Magistrate Sheedy did not make the final orders. Her Honour adjourned the proceedings so that her Honour could review the file. Magistrate Sheedy expressed concern about the risk of sexual harm if the boys were placed with the Plaintiff.

18. [73]

    On 18 February 2022 the proceedings came before the current Magistrate for the first time. The Magistrate expressed concerns about the permanency plan and the risk of sexual harm in the Plaintiff’s household. Her Honour listed the case for final hearing. The hearing dates listed by the Magistrate were vacated and re-listed on a number of occasions due to the unavailability of essential witnesses. Obtaining hearing dates was difficult because the case was being heard on a part-time circuit and there was pent up demand for dates in the shadow of COVID-19. The case was ultimately listed to commence on 4 September 2023.

19. [74]

    On 16 May 2023 the Department decided to obtain a new assessment about whether the Plaintiff posed a risk of sexual harm to the boys. The assessment was to be undertaken by forensic psychologist Katie Martens who was independent of the Department.

20. [75]

    On 29 June 2023 Ms Martens completed her report. This is another important document in the case. The report supported the placement with the Plaintiff. It was critical of the visit with MX which Ms Watson and Ms Larrigo made on 3 November 2020 and the way the questioning was conducted. Ms Martens was critical of the conclusion arrived at by the Department following the visit. In paragraph 10, Ms Martens' report includes the following text:

21. [76]

    In paragraph 65, Ms Martens' report includes the following text:

22. [77]

    In paragraph 68, Ms Martens' report includes the following text:

Issues before the Magistrate

1. [78]

   On 4 September 2023 the final hearing of the Children’s Court Proceedings commenced before the Magistrate.

2. [79]

   Having regard to the care plans finally brought forward by the Secretary and the provisions of the Statute, one of the issues for determination by the Children's Court is whether permanency planning for the boys has been "appropriately and adequately addressed" by the Secretary for the purposes of ss 83(3) and 83(7).

3. [80]

   At a factual level, the key issue is whether the Plaintiff poses a risk of sexual harm to MX.

4. [81]

   To be perfectly clear, the Secretary is proposing that the boys be placed permanently into the care of the Plaintiff and the Plaintiff fully supports the placement. MK and BA also support permanent placement with the Plaintiff. As at 28 January 2022 (the date of the listing before Magistrate Sheedy), the independent legal representative for the boys also supported permanent placement with the Plaintiff. On the key factual issues, at the commencement of the final hearing before the Magistrate, no party contended that the Plaintiff poses a risk of sexual harm to MX.

Hearing before the Magistrate

1. [82]

   As the applicant for the proposed care orders under s 61, the Secretary is in substance the moving party at the final hearing. The Secretary's legal representative is Ms Smith.

2. [83]

   Each of the Plaintiff, MK and BA is separately represented. In the case of the Plaintiff, she was represented by counsel for the first week of the hearing and then by a solicitor, Ms Roberts. The boys have an independent legal representative who has thus far appeared for them throughout the hearing, Mr Squires. The names of Ms Smith, Ms Roberts and Mr Squires appear in many of the transcript extracts set out below so I have named them here so that their respective client’s interests can be kept in mind.

3. [84]

   The case was originally listed for six days, but the evidence remained incomplete on the last day so further hearing days were added in the week commencing 19 February 2024. Further oral evidence was adduced on 19, 20, 21 and 22 February 2024. On the morning of 23 February 2024 the application was made for the Magistrate to disqualify herself, following which no further evidence has been adduced. The Children’s Court Proceedings are currently in abeyance.

4. [85]

   It will be necessary to provide some details about the conduct of the hearing. The most efficient way to do that will be to set out the details when addressing each of the contentions made by the parties in the current proceedings. All that is necessary at this stage is to describe the sequence of oral evidence being adduced from the witnesses so that the detailed events can be put in chronological context. A table may help:

5. [86]

   The oral evidence from these witnesses addressed many issues, but a lot of it focussed on the factual question of whether the Plaintiff has sexually abused MX.

6. [87]

   In addition to the witnesses who have already been called, a number of witnesses remain to be called, some of whom the Magistrate has requested be called contrary to the Secretary’s plan for the proceedings. The witnesses still to be called are MS (the maternal aunt with whom MX was living in August 2020), three other Department casework officers and a carer assessor who has assessed the Plaintiff’s suitability as a carer for the boys. There may be others.

7. [88]

   In the first instance, the application that the Magistrate disqualify herself from further hearing the case was made orally on 23 February 2024. The application was made by the Plaintiff and supported by the Secretary. The oral submissions were relatively brief, although focussed and cogent.

8. [89]

   Although the Magistrate initially intended otherwise, her Honour did not determine the application that day. Her Honour adjourned the hearing and subsequently directed the parties to provide written submissions. The Plaintiff and the Secretary did so on 17 May 2024. BA formally supported the application but did not file submissions.

9. [90]

   On behalf of the mother of the boys, MK, a short written submission was provided on 16 May 2024. It reads as follows.

10. [91]

    Other than to provide references to authorities on apprehended bias, the independent legal representative for the boys did not make any submissions on the application, either orally or in writing. It may be that the reason Mr Squires took this approach is that on the morning of 23 February 2024 the Secretary also foreshadowed an application under s 99(3) of the Statute that leave be withdrawn for the boys’ independent legal representatives to appear because of the way the representative “has conducted himself”. [5] There are no particulars for this application and it has not yet been heard. It is no part of the matters before the Supreme Court to give consideration to the conduct of the independent legal representative and I have not done so. Nothing in this judgment ought to be viewed as a reflection of Mr Squires.

11. [92]

    The overall effect of the parties taking their respective positions is that the Magistrate had to decide the disqualification application without the benefit of a contradictor.

12. [93]

    The ultimate submission made by the Plaintiff and the Secretary was that a fair-minded lay observer might entertain a reasonable apprehension that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the questions whether MX has been sexually harmed and whether the Plaintiff was the perpetrator of that harm.

13. [94]

    The Plaintiff and the Secretary submitted that there have been a number of incidents during the hearing, and aspects of the Magistrate’s conduct of the hearing, from which that conclusion is to be drawn. The following is a list of matters relied upon by the Plaintiff and the Secretary before the Magistrate:

    1. (1)

       the Magistrate’s “excessive intervention” in the conduct of the hearing;

    2. (2)

       the Magistrate requiring officers of the Department to be called as witnesses in the proceedings and contrary to their instructions to their legal representatives, and without notice of the questions to be asked;

    3. (3)

       the Magistrate’s questioning of one Department officer, Ms Gordon, including asking unfair questions;

    4. (4)

       the Magistrate’s interference in the cross-examination of Ms Watson;

    5. (5)

       the Magistrate’s questioning of another Department officer, Ms Perrin;

    6. (6)

       the Magistrate advocating the case that the Plaintiff was the perpetrator of sexual harm to MX;

    7. (7)

       the Magistrate’s apparent adherence to the information in the Alternative Assessment, contrary to the expert evidence of Ms Martens, and before the evidence is complete and submissions have been made;

    8. (8)

       the Magistrate making references during the hearing to the Plaintiff as the perpetrator of sexual harm to MX;

    9. (9)

       the Magistrate requiring people to be called as additional witnesses, such as MS;

    10. (10)

        the Magistrate conducting the hearing in a way which caused delay; and

    11. (11)

        the Magistrate bullying the legal representatives for the Plaintiff and the Secretary.

14. [95]

    The written submissions provided by the Plaintiff and particularly the Secretary included extensive references to the transcripts of the ten days of hearing.

15. [96]

    On 21 May 2024 the Children’s Court Proceedings were again listed before the Magistrate at which time the Magistrate dismissed the disqualification application.

16. [97]

    The Magistrate gave oral reasons which are recorded in 42 pages of the transcript.

17. [98]

    The reasons commence with a narration of the facts about the placements of the boys and the progress of the Children's Court Proceedings. A particular matter addressed by the Magistrate was the history of delay in having the case listed for final hearing, largely due to the unavailability of witnesses, the number of parties to be accommodated, limited hearing dates and pent-up demand following COVID-19.

18. [99]

    The Magistrate’s reasons set out various statements made in successive iterations of the care plan about the concern of sexual harm to MX and the concern that the Plaintiff was the perpetrator. [6] There follows references to other documents which were recited, quoted and commented upon by the Magistrate as evidence of those concerns.

19. [100]

    The Magistrate emphasised that two matters which her Honour raised with the parties at pre-hearing mentions were the Plaintiff’s position under s 128 of the Evidence Act 1995 (NSW) and her Honour's requirement that the opinions of Ms Martens be tested at the hearing, including the assumptions upon which Ms Martens' opinions were based. The Magistrate also set out some statements which her Honour had made at pre-hearing mentions about her Honour’s concern about the risk of sexual harm to the boys in the care of the Plaintiff. These included the following statement:

20. [101]

    The Magistrate’s reasons nextly turned to the conduct of the final hearing. Her Honour stated:

21. [102]

    The Magistrate’s reasons then set out at length a number of statements which her Honour made during the hearing in which her Honour voiced her concerns about the Plaintiff.

22. [103]

    The Magistrate then addressed the nature of proceedings under the Statute and observed that since it is not a “consent jurisdiction”, the Children's Court is bound to exercise an independent judgment and that the safety, welfare and well-being of the child are paramount. The Magistrate also referred to the procedural matters set out in Chapter 6 of the Statute, including s 107(1). The Magistrate set out s 140 of the Evidence Act 1995 and made lengthy references to Briginshaw v Briginshaw 60 CLR 336; [1938] HCA 34 in the context of a positive finding of harm having been caused to a child. The Magistrate described care proceedings as inquisitorial and, in accordance with s 93 of the Statute, not adversarial. Her Honour included a passage from D v C; Re B (No. 2) which included the following quote from Basten JA, with whom McColl JA and Emmett AJA agreed, at [42]:

23. [104]

    The passage which the Magistrate quoted from D v C; Re B (No. 2) also states that the parties are entitled to procedural fairness and that the Secretary is entitled to be heard.

24. [105]

    The Magistrate also quoted M v M (1988) 166 CLR 69; [1988] HCA 68 and other cases about the assessment of the “risk” of harm.

25. [106]

    Having concluded Her Honour's description of the nature of care proceedings, the Magistrate turned to the principles which apply to disqualification for apprehended bias. Her Honour commenced by quoting the double might test from a number of cases and observed that the test was objective and did not require an assessment of the decision-maker's state of mind. The Magistrate then set out a number of passages from various authorities about the application of the double might test.

26. [107]

    The Magistrate identified the basis for the disqualification application which the Plaintiff and the Secretary had made, namely a reasonable apprehension of bias. [9] The Magistrate listed the individual contentions made in support of the application. It was a long list which ran to more than seven pages of transcript. The Magistrate listed the contentions without material comment or response.

27. [108]

    The Magistrate concluded by stating her Honour's reasons for dismissing the application. [10] This part of the reasons is short and ought to be read in full:

28. [109]

    Having dismissed the application, the Magistrate adjourned the Children's Court Proceedings.

29. [110]

    The proceedings before the Supreme Court were commenced on 21 May 2024 by way of a Summons. As set out above, the Summons was subsequently amended and, ultimately, the Plaintiff seeks the relief set out in paragraph [5].

30. [111]

    The material adduced into evidence at the hearing of these proceedings is:

    1. (1)

       the application by which the Children's Court Proceedings were commenced by the Secretary on 23 September 2020;

    2. (2)

       each iteration of the Secretary's Care Plan for MX (four iterations) and BN (three iterations), culminating with the final amended care plans dated 28 January 2022 (one for each boy);

    3. (3)

       an Affidavit of Brittany Watson dated 28 January 2021 who, at that time, was the Department's case worker working on the Children's Court Proceedings, which Affidavit updated the circumstances of the boys, MK and BA and the case work being undertaken at that time;

    4. (4)

       as Annexure D to that Affidavit, a copy of the Alternate Assessment completed by Ms Watson on 16 November 2020;

    5. (5)

       an Affidavit of Jamie Pendergast dated 13 July 2023 who, at that time, was the Department's case worker with casework responsibility for the boys which provided the Children's Court with additional information about events in September and October 2020, and updated material about the circumstances of the boys, MK and BA and the case work being undertaken at that time;

    6. (6)

       as Annexure L to that Affidavit, a copy of the Ms Martens' report dated 29 June 2023;

    7. (7)

       the transcript of the pre-hearing mentions before the Children's Court on 28 January 2022, 18 February 2022, 18 March 2022, 22 October 2022, 3 February 2023, 29 May 2023 and 21 July 2023, all of which were heard by the Magistrate (except the first);

    8. (8)

       the transcript of the ten hearing days to date, commencing on 4 September 2023 and concluding on 22 February 2024;

    9. (9)

       the complete audio recording of the first nine hearing days concluding on 21 February 2024, which runs to 32 hours, 27 minutes and 6 seconds; the audio recording was adduced into evidence in the form of an USB stick (Exhibit B);

    10. (10)

        the first 1 hour, 22 minutes and 51 seconds of the audio recording of the tenth hearing day on 22 February 2024 - unexplained, Exhibit B does not include audio recording of the rest of the tenth hearing day, including the questioning of Ms Perrin (see below);

    11. (11)

        the transcript of the disqualification application made on 23 February 2024 – there is no audio;

    12. (12)

        written submissions of the parties which were provided to the Magistrate on 16 and 17 May 2024;

    13. (13)

        the transcript of the reasons for dismissing the application given by the Magistrate orally on 21 May 2024; and

    14. (14)

        confirmation from the Children's Court that there are no written reasons.

31. [112]

    In this Court written submissions were filed by the Plaintiff, MK and BA. MK and BA supported the relief sought by the Plaintiff, a circumstance which some of the parties emphasised.

32. [113]

    Upon the Attorney-General appearing in the proceedings, the Secretary ceased to take an active role.

33. [114]

    The matter was heard on 11 September 2024 when all parties, including the Attorney-General (but not the Secretary or the Children’s Court Registrar), were represented by Counsel. In a model of efficiency and in pursuit of the overriding purpose, perhaps achievable to a greater extent when everyone is pushing in the same direction, no party sought to repeat matters already written down or which someone else had already said. The hearing concluded in half a day, with the evidence commended to the Court.

34. [115]

    In addition to the other evidence, I have read all the transcript and listened to all the audio recordings in Exhibit B.

Submissions of the parties and the Attorney-General

1. [116]

   No party nor the Attorney-General contended that there was actual bias on the part of the Magistrate, yet every party and the Attorney-General made a number of submissions which were phrased in terms of what the Magistrate may have thought, intended or hoped to elicit by certain action on her Honour’s part. Such submissions were more consistent with actual bias than a reasonable apprehension of bias. Despite the wording of these submissions, I have taken each of them to be a submission that a fair-minded lay observer might reasonably apprehend from the relevant action that the Magistrate might think, intend or hope to elicit as submitted.

2. [117]

   Viewing the submissions in that light, the following is a summary of the submissions made by each party and the Attorney-General.

Submissions of the Plaintiff

1. [118]

   As distilled at the hearing on 11 September 2024, the Plaintiff relied upon two contentions as to why the Court ought grant the claimed relief:

   1. (1)

      jurisdictional error by the Magistrate; and

   2. (2)

      error of law on the fact of the record.

2. [119]

   As for the first contention, the Plaintiff's essential proposition is that a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of issues which the Magistrate has to decide. This is said to constitute jurisdictional error.

3. [120]

   The Plaintiff submits that a reasonable apprehension of bias is to be concluded not from a single incident which occurred during the hearing but from a succession of incidents across the ten hearing days. Drawing on the submissions previously made to the Magistrate, the Plaintiff puts forward five contentions:

   1. (1)

      there might be a reasonable apprehension that the Magistrate might have already formed a view that the Plaintiff has caused sexual harm to MX, even though the evidence has not concluded and the submissions have not yet been made - this is one place where the Plaintiff’s submissions were worded in a way more consistent with actual bias than a reasonable apprehension of bias, and the submissions are to be understood as described above;

   2. (2)

      the Magistrate denied the Plaintiff and the Secretary procedural fairness by excessive intervention and interruption in the course of the hearing;

   3. (3)

      the Magistrate entered into the arena and became an active participant in the conduct of the case;

   4. (4)

      the Magistrate impaired the conduct of the case by each of the Plaintiff and the Secretary by levelling dismissive and critical comments at the legal representatives for those parties and "bullying" the legal representative for the Secretary; and

   5. (5)

      the Magistrate made comments which may have had the effect of confusing or upsetting witnesses, put propositions to some witnesses not put to others and enquiring with respect to irrelevant considerations.

4. [121]

   To make good these five contentions the Plaintiff drew attention to some particular incidents during the hearing and submitted that the Magistrate's conduct went beyond mere enquiry into factual matters yet to be decided and might have instead given rise to a reasonable apprehension that the Magistrate might not bring an open mind to the determination of those matters. The specific incidents relied upon by the Plaintiff are not set out here but addressed below in detail.

5. [122]

   As for the second contention (error of law on the face of the record), the Plaintiff submitted that pursuant to s 69(4) of the Supreme Court Act 1970 the record includes the reasons given orally by the Magistrate on 21 May 2024. The other parties supported this submission, as ultimately did the Attorney-General.

6. [123]

   The Plaintiff submitted that the Magistrate's reasons are inadequate. They do not address the individual matters relied upon by the Plaintiff and the Secretary for the contention that there is a reasonable apprehension of bias, let alone how those matters might operate on the mind of a fair-minded lay observer.

7. [124]

   The Plaintiff further submitted that the Magistrate's reasons demonstrate that the Magistrate took into account an irrelevant consideration, namely the fact that the Magistrate is not actually biased. Despite the fact that the Magistrate set out a number of authorities about the reasonable apprehension of bias, the Magistrate appears to have concluded that her Honour ought not disqualify herself because she has not yet decided whether the Plaintiff has perpetrated sexual harm to MX. The reasons do not address reasonable apprehension.

8. [125]

   The Plaintiff ultimately submitted that the Magistrate's reasons leave the parties with an insufficient understanding of how her Honour came to the conclusion that she did. The reasons fall short of the minimum requirement and are therefore inadequate.

Submissions of the other parties

1. [126]

   Written submissions were filed on behalf of each of MK and BA.

2. [127]

   For her part, MK submitted that her position before the Magistrate (see above at [90]) was "expressed as a neutral position" but in substance it was supportive of the Plaintiff and the Secretary. In any event, as the mother of the boys, MK now fully supports the Plaintiff's position. Broadly the same contentions were made on her behalf as to why the Magistrate ought to have disqualified herself. MK submitted that the Magistrate has crossed the line between acceptable and unacceptable judicial conduct, even if the proceedings are characterised as inquisitorial in nature.

3. [128]

   On the adequacy of the Magistrate's reasons, MK's principal submission was that the Magistrate has not in fact given any reasons. The Magistrate has merely stated a series of conclusions but nowhere explains the reasons for those conclusions. [11] MK further points out that three times the Magistrate refers to what a reasonable lay person "would" apprehend when the correct test is what a reasonable lay person "might" apprehend. MK submits that the Magistrate has therefore not answered the correct question. Her Honour has adjudicated the application using the “wrong test”.

4. [129]

   BA also supported the position taken by the Plaintiff. His submissions ran in much the same channel as the Plaintiff's submissions. He emphasised that there was no single incident which gave rise to a reasonable apprehension of bias but that such a finding arose from "the culmination of the Magistrate's conduct". BA submitted that "the Magistrate's conduct takes a proper judicial inquiry into what is the evidence about [the Plaintiff] and overreaches into the Magistrate only being interested in evidence that would prove [the Plaintiff's] guilt".

5. [130]

   BA further submitted that the reasons given by the Magistrate list "bullying" as one of the grounds relied upon by the Secretary, yet the Magistrate did not address that ground when determining that her Honour would not disqualify herself. BA submits that the Magistrate failed to take into account a relevant consideration (bullying) and that that is an error of law which appears on the face of the record.

Submissions of the Attorney-General

1. [131]

   For his part, the Attorney-General served extensive written submissions which addressed both the principles and the facts. The Attorney-General provided some analysis but did not advocate any particular finding.

2. [132]

   The Attorney-General emphasised that pre-judgment is not the same as pre-disposition and that pre-judgment will not occur unless a pre-disposed decision maker ceases to be open to persuasion prior to hearing all the evidence and the submissions. Citing a number of authorities including the Full Court of the Federal Court in Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 317, the Attorney-General pointed out that it may be useful for the parties to have the decision maker give insight into his or her developing opinions. Citing Antoun v The Queen (2006) 80 ALJR 497; [2006] HCA 2 and Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44, the Attorney-General submitted that the line between a forthright and robust indication of the decision maker's tentative views and an impermissible indication of pre-judgment is "ill-defined" and may be hard to discern.

3. [133]

   The Attorney-General addressed each of the five contentions relied upon by the Plaintiff (see [120] above). The Attorney-General’s observation about the Plaintiff’s contentions may be summarised as follows:

   1. (1)

      having regard to all the evidence, it would be open to the Court to find that there might be a reasonable apprehension that the Magistrate might have already formed a view that the Plaintiff has caused sexual harm to MX, and is no longer open to being persuaded that that view is wrong; alternatively, the Court may find that the incidents relied upon by the Plaintiff are not sufficient for such a conclusion;

   2. (2)

      whilst intervention by the Magistrate is to be viewed in the light of the nature of proceedings in the Children's Court and the power specifically conferred on the Magistrate by s 107 of the Statute, having regard to the number of interruptions, the number of questions put to witnesses by the Magistrate and the general nature of the Magistrate's questions, it is open to the Court to find that the Magistrate's interventions support a finding that a fair-minded lay observer might reasonably apprehend that the Magistrate might have been attempting to elicit evidence to support the view that the Plaintiff was the perpetrator of sexual harm to MX;

   3. (3)

      there is no doubt that:

   4. (4)

      whilst rude behaviour towards legal practitioners does not of itself give rise to a reasonable apprehension of bias (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at 112; [2003] FCA 872 at [44] (Kenny J)), the Magistrate's behaviour towards Ms Smith may be viewed as her Honour seeking to discourage Ms Smith in circumstances where the Secretary continued to propose a permanent placement with the Plaintiff, in which case the Magistrate’s behaviour is supportive of a finding of apprehended bias; and

   5. (5)

      the fifth contention relied upon by the Plaintiff does not materially add to the other four.

4. [134]

   As for the adequacy of the reasons, the Attorney-General observes that the Magistrate read her Honour's reasons and did not provide a written judgment. However, the Attorney-General also observes that the application was effectively made with notice (given the lengthy adjournment ordered by the Magistrate at the conclusion of the oral submissions on 23 February 2024), with the benefit of written submissions and with a period of about three months since the application was first made. In those circumstances, the standard for the Magistrate’s reasons is higher than that which would apply to an ex tempore judgment given by a magistrate in a busy Local Court list.

5. [135]

   The Attorney-General submitted that the Magistrate's reasons, if read fairly, read "beneficially" and taken as a whole, may be capable of demonstrating that the Magistrate considered apprehended bias rather than actual bias and otherwise did not make any of the positive errors for which the Plaintiff contends. The Attorney-General submitted that it is necessarily implicit in the dismissal of the application that the Magistrate did not accept that a fair-minded lay person might reasonably apprehend that the Magistrate might have closed her Honour's mind about whether the Plaintiff has engaged in sexual abuse of MX. The Attorney-General submitted that it is open to the Court to find that the reasons are adequate.

6. [136]

   The Attorney-General's ultimate submission is that it is open to the Court to find that the Magistrate erred by refusing to disqualify herself.

7. [137]

   Were the Court so to find, the Attorney-General submits that the Court ought to exercise its discretion by quashing the Magistrate's decision not to disqualify herself, and by prohibiting the Magistrate from hearing the case further.

8. [138]

   More specific details of the parties' and the Attorney-General's submissions are reflected in the analysis of the evidence below. In some instances, specific submissions are identified.

Disqualification for apprehended bias

1. [139]

   The criterion by which asserted apprehension of bias is to be determined and the process by which that criterion is to be assessed were conveniently stated in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65 at 77; [2023] HCA 15 at [37]-[38] by Kiefel CJ and Gageler J as follows (footnotes omitted):

2. [140]

   Disqualification for apprehended bias gives effect to the requirement that justice should both be done and be seen to be done: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6].

3. [141]

   Whether a fair-minded lay observer might reasonably apprehend bias can be informed by the cumulative effect of several incidents during the hearing: Antoun v The Queen at [2] (Gleeson CJ) and [57] (Hayne J). In order to decide whether there is a reasonable apprehension of bias, it may be necessary to consider the whole of the transcript rather than an isolated incident identified by the applicant: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [75] (Robertson J, with whom Allsop CJ agreed).

4. [142]

   Another matter which a fair-minded lay observer will take into account is the fact that an open judicial mind does not mean a blank mind. In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531-532; [2001] HCA 17 at [71]-[72] (footnotes omitted), Gleeson CJ and Gummow J said:

5. [143]

   Central to an assessment of apprehended bias is the "fair-minded lay observer" who is a hypothetical figure founded in the need for public confidence in the judiciary. In Polsen v Harrison [2021] NSWCA 23 at [46], Bell P gathered together and set out a number of attributes of the fair-minded lay observer as established by the authorities. Pertinently, the fair-minded lay observer will not be unduly sensitive or suspicious, nor complacent. The fair-minded lay observer will admit human frailty and not reasonably apprehend bias from a short and emotional exchange taken out of context and weighed in isolation. The fair-minded lay observer will understand that interventionist comments and conduct by the judge are often motivated by the judge's desire to understand the evidence and to advance the trial process. Whilst the reasons given by the judge for refusing to disqualify him or herself are relevant, the fair-minded lay observer will give them little weight.

6. [144]

   One matter which a fair-minded lay observer will take into account is the special features of the processes of the Children's Court on account of that court being partially inquisitorial and subject to the paramount obligation set out in s 9(1) of the Statute. The fair-minded lay observer is taken to have knowledge of the legal, statutory and factual context in which the decision is to be made: Isbester v Knox City Council (2015) 255 CLR 135 at 146-147; [2015] HCA 20 at [23] (Kiefel, Bell, Keane and Nettle JJ). The fact that the Children's Court is required, to some extent, to inquire, means that it may be more difficult to establish a reasonable apprehension of bias: SZBLY v Minister for Immigration and Citizenship [2007] FCA 765 at [25] (Cowdroy J). See also NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at 269 (Allsop J). An apprehension of bias may nonetheless arise in inquisitorial proceedings, including from the way the judge questions a witness: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [29]-[31] (Gleeson CJ, Gaudron and Gummow JJ).

7. [145]

   A finding that there is a reasonable apprehension of bias is not to be arrived at lightly: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 98; [2019] HCA 50 at [56] (Nettle and Gordon JJ). This is because the training, tradition and oath or affirmation of a professional judge require him or her to discard the irrelevant, the immaterial and the prejudicial: Vakauta v Kelly at 584-585 (Toohey J).

8. [146]

   As for the treatment of the parties’ legal representatives, in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship at [91], Robertson J, with whom Allsop CJ agreed, said:

9. [147]

   In Heywood v Local Court of New South Wales [2024] NSWSC 1047 at [101], Lonergan J said:

10. [148]

    The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a question of fact, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made: Isbester v Knox City Council at 146; [20] (Kiefel, Bell, Keane and Nettle JJ).

11. [149]

    Ultimately, the Plaintiff’s application requires the Court to consider all the evidence and carefully make a finding of fact about the perception of a fair-minded lay observer.

12. [150]

    If there is a reasonable apprehension of bias, the Court may grant relief under s 69 of the Supreme Court Act 1970 (NSW) as set out below at [155].

Adequacy of reasons

1. [151]

   Giving reasons is central to the judicial function: Wainohu v New South Wales (2011) 243 CLR 181 at 214; [2011] HCA 24 at [54] (French CJ and Kiefel J). The necessary content and detail of the reasons will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision: Wainohu v New South Wales at 215; [56]. However, the basis for the decision must be apparent from the reasons: IFTC Broking Services Limited v Commission of Taxation [2010] FCAFC 22 at [4] (Stone, Edmonds and Jagot JJ). In Resources Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48], Basten JA, with whom Beazley JA agreed, said that it is necessary to determine whether the reasons have reached the minimum acceptable level to constitute a proper exercise of judicial power.

2. [152]

   If the Magistrate’s reasons fall short of the required standard, the Court may grant relief under s 69 of the Supreme Court Act 1970 as set out below at [155].

Judicial review and relief

1. [153]

   Although the Plaintiff at one stage sought leave to appeal from the Magistrate's decision not to disqualify herself, the weight of authority is to the effect that the current proceedings are not an appeal but rather an application to the Court in its supervisory jurisdiction: Lee v Cha [2008] NSWCA 13 at [2] (Hodgson JA) and [23] (Basten JA, with whom Bell JA agreed).

2. [154]

   Section 91(1) of the Statute provides for an appeal from “an order (other than an interim order) of the Children’s Court”. In this case, the Plaintiff's application was for the Magistrate "to disqualify herself from further hearing the matter". After hearing submissions on 23 February 2024, the Magistrate attended to some case management matters, such as ordering transcript and extending interim orders, and then adjourned the proceedings to 20 May 2024, and then to 21 May 2024. On that date the Magistrate evidently pronounced that the application was dismissed. [12] Whether or not the Magistrate's determination of the Plaintiff's application was "an order (other than an interim order)” for the purposes of s 91(1) of the Statute, I will proceed to determine the current proceedings as an application for judicial review in accordance with the consensus of the parties and the Attorney-General.

3. [155]

   Although not specifically referred to in the Further Amended Summons, the Plaintiff seeks relief in the nature of certiorari and prohibition. Such relief is addressed by s 69 of the Supreme Court Act 1970, which provides:

4. [156]

   In order to obtain relief under s 69, a party must establish either jurisdictional error by the decision maker or an error of law on the face of the record: D v C; Re B (No. 2) at [4] (Basten JA, with whom McColl JA and Emmett AJA agreed).

5. [157]

   A jurisdictional error occurs where the decision maker makes a decision outside the limits of the functions and powers conferred on him or her or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141; [2000] HCA 57 at [163] (Hayne J).

6. [158]

   Courts have an overriding duty to ensure that a trial is fair. A failure to afford procedural fairness will therefore constitute jurisdictional error: D v C; Re B (No. 2) at [6] (Basten JA, with whom McColl JA and Emmett AJA agreed). A fair trial must be free of bias. Bias on the part of the judge would therefore constitute jurisdictional error: Re Henry; LJ v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [112]-[115] (McColl JA) and [232] (Basten JA, with whom Meagher JA agreed). Further, justice must not only be done but must be seen to be done. As Basten JA put it in Re Henry at [236], "a reasonable apprehension of bias will constitute a failure to exercise the jurisdiction of the court within the limits fixed by the law".

7. [159]

   It follows that the Court’s power to grant relief under s 69 is enlivened when there is a reasonable apprehension of bias. In Lee v Cha at [28], Basten JA, with whom Hodgson and Bell JJA agreed, said (footnotes omitted):

8. [160]

   As for the adequacy of the Magistrate’s reasons, s 69(3) provides that the Court may grant relief in the nature of certiorari if satisfied that the "ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings". In Goldsworthy v Local Court of NSW [2013] NSWSC 459 at [59], Price J stated that a decision by a Magistrate to disqualify himself was not "an 'ultimate determination'" for the purposes of s 69 and the Court’s power was not therefore engaged. However, the enlivenment of s 69 was not a matter which Price J had to decide in Goldsworthy because the Magistrate had already disqualified himself and Price J found that he was correct to do so. No reasons were given by Price J for his statements about whether s 69 could have applied otherwise.

9. [161]

   In Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595 at [230]-[235], Wright J considered the construction of s 69(3) and observed that the Court's power related to the "ultimate determination…in the proceedings", not the ultimate decision “of” the proceedings. Whilst it was also unnecessary to decide the point in the case before Wright J, his Honour favoured a construction under which the s 69(3) powers are engaged in relation to the ultimate determination of an application which is made in the proceedings, not just the ultimate determination by which there is a final disposition of the whole of the proceedings. If s 69(4) is construed consistently with s 69(3), the record would include the decision maker’s reasons for the determination of the application.

10. [162]

    Secretary, Department of Communities and Justice v KH [2022] NSWCA 221 was a case where the determination of the District Court (on appeal from the Children’s Court) which was under review was a "finding" by the District Court for the purposes of s 83(5) of the Statute not to accept the Secretary's assessment that there was no realistic possibility of restoration of a child to his mother’s care, and a "direction" for the purposes of s 83(6) that the Secretary prepare a different permanency plan. The Court of Appeal held that neither was an ultimate determination for the purposes of ss 69(3) and 69(4) of the Supreme Court Act 1970. However, in Secretary, Department of Communities and Justice v KH at [66], White JA referred to Wright J's analysis of s 69 and said:

11. [163]

    Beech-Jones JA agreed with White JA at [109]. For the purposes of "the sequential operation" of s 83 of the Statute, the District Court’s finding and directions are of a very different nature to the determination of a discrete application for the Magistrate to disqualify herself. A disqualification application is more similar to the decision under review in Commissioner of Police v Attorney General for New South Wales, namely a discrete decision by a coroner to reject a claim for public interest immunity over certain documents.

12. [164]

    For the purposes of the inclusive jurisdiction granted to the Court by s 69(3), there is no apparent policy reason why different provision is to be made for review of a decision by which there is a final disposition of the whole of the proceedings and the final determination of a discrete application in the proceedings. Nor is there an apparent policy reason under s 69(4) why the record ought to include the decision-makers reasons for the final disposition of the whole case and not for the determination of an application in the proceedings.

13. [165]

    Having regard to the text of s 69(4), the context to which Wright J referred, the purpose identified in the preceding paragraph, and consistently with the views expressed by White and Beech-Jones JJA in Secretary, Department of Communities and Justice v KH, I find that the face of the record for the Magistrate’s decision not to disqualify herself includes her Honour’s reasons on 21 May 2024.

14. [166]

    A failure to give adequate reasons is an error of law on the face of the record: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at 502; [2013] HCA 43 at [55] (French CJ, Crennan, Bell, Gageler and Keane JJ). Where such an error occurs, the Court may set aside the decision under s 69: Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at 398; [2006] NSWCA 284 at [130] (Basten JA).

15. [167]

    The question which the Magistrate must ultimately decide in the Children’s Court Proceedings is whether to make care orders for the permanent placement of the boys with the Plaintiff.

16. [168]

    The factor which the parties say might lead the Magistrate to resolve that question other than on its merits is the concern that the Plaintiff has engaged in sexual abuse of one of the boys, MX.

17. [169]

    There is an obvious and clear logical connection between that factor and the apprehended deviations from deciding whether to make the proposed care orders on their merits.

18. [170]

    In accordance with the above authorities the criterion by which this case is to be decided may be expressed as whether a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the question whether the Plaintiff has engaged in sexual abuse of MX.

19. [171]

    As stated above, this requires the Court to consider all the evidence and carefully make a finding of fact about the perception of a fair-minded lay observer. Given the volume of the evidence and the numerous individual incidents relied on by the parties, it is convenient sequentially to address the five contentions made by the Plaintiff (see [120] above) and analysed by the Attorney-General (see [133] above), in each case having regard to the submission of the other parties.

20. [172]

    There is substantial overlap between the five contentions. The first contention, that there might be a reasonable apprehension that the Magistrate might have already formed a view that the Plaintiff has engaged in sexual abuse of MX, is in fact a statement of the criterion by which the case is ultimately to be decided. The other four contentions are in truth additional and supportive reasons why the Court ought to make a finding in accordance with the first contention.

21. [173]

    Having regard to the issues, it is also appropriate to record at the outset some objective facts about the oral evidence given by the Plaintiff in the Children’s Court Proceedings. The parties contend that a reasonable apprehension of bias arises not from a single incident but from an accumulation of incidents which were spread across the duration of the hearing to date. A fair-minded lay observer would have been present throughout and would have heard and seen the entirely of the Plaintiff’s evidence. The fair-mined lay observer’s perception of the Magistrate’s statements and other conduct cannot be divorced from the experience and perception of the Plaintiff’s evidence. It is essential context in which the Magistrate’s conduct would be perceived: Galea v Galea (1990) 19 NSWLR 263 at 279 (Kirby ACJ).

22. [174]

    The Plaintiff has an extensive work history which includes training and working in child protection over many years, including work for the Department in New South Wales, work interstate and five years working in London. Most recently, the Plaintiff has been a private provider of social work services to the Department.

23. [175]

    Listening through the whole of the Plaintiff’s evidence as recorded in Exhibit B, it is plain that the Plaintiff presented as an intelligent, mature, experienced, candid and transparent witness. She was focussed and helpful. She was patient. She readily made concessions when describing the boys, her son, the conflict in her home whilst she was accommodating her son and the boys’ mother, and her behaviour when dealing with the Department. I did not discern any guile or defensiveness.

24. [176]

    The Plaintiff was examined and cross-examined over six days, starting on 5 September 2024 and ending on 20 February 2024. Apart from the interruption of Ms Teoman on 16 October 2024 the Plaintiff gave her evidence continuously.

25. [177]

    Amongst other things, the Plaintiff was asked questions about:

    1. (1)

       events;

    2. (2)

       dreams;

    3. (3)

       disclosures of events and dreams;

    4. (4)

       what the Plaintiff has been told about disclosures;

    5. (5)

       reports of disclosures by a third party to the Department;

    6. (6)

       records of reports;

    7. (7)

       investigations into disclosures;

    8. (8)

       records of investigations;

    9. (9)

       reviews of records of investigations;

    10. (10)

        affidavits prepared for the Children’s Court Proceedings; and

    11. (11)

        her oral evidence given earlier in the hearing.

26. [178]

    The matters about which the Plaintiff was asked questions generally related to her interactions with the boys and her role in providing care for the boys. The events occurred in 2020 and 2021 during which period the Plaintiff lived in her home. During that period the people sharing the Plaintiff’s home changed from time to time. Sometimes the Plaintiff lived by herself, sometimes with the boys, sometimes not with the boys but with the Plaintiff’s son, BA, and the boys’ mother, MK, and sometimes all together.

27. [179]

    Sometimes the matters about which the Plaintiff was asked questions were not clear. For example, it was not always clear if the Plaintiff was being asked about an event or someone’s subsequent comment on that event. The Plaintiff was sometimes asked questions without the relevant time period being identified. The transcript shows that misunderstandings occurred. There may have been other misunderstandings which are not apparent from the transcript, that is when the Plaintiff thought she was answering one question yet the Magistrate thought she was answering a materially different question.

28. [180]

    A constant theme in the Plaintiff’s evidence was her instinctive consideration of the welfare of the boys when making her own decisions, such as cutting back her working hours, keeping channels of communication open with the boys’ mother, getting trauma counselling for MX and improving her own working relationship with the Department going forward. The Plaintiff has herself made reports to the Department about the boys’ welfare. There are many examples of the Plaintiff’s attitude displayed throughout the transcript. An example occurred on 20 February 2024 when Mr Squires asked the Plaintiff about whether it was wise for the Plaintiff to continue to comfort the boys when they came to her bed in the middle of the night after a bad dream. The following exchange took place:

29. [181]

    These observations are based on the audio recording in Exhibit B. The evidence before the Court does not include a video record so it is not possible to make observations about the Plaintiff’s non-auditory demeanour when giving evidence. However, it may be accepted that there was nothing in the Plaintiff’s visual demeanour which warrants any significant departure from that which is clear from the audio evidence. The Magistrate had a practice of placing on the transcript her Honour’s visual observations about events in the courtroom which her Honour regarded as significant. On four occasions the Magistrate voiced visual observations and required the legal representatives of the parties to confirm their agreement with her Honour’s description of what her Honour had seen. [14] This included two observations about the Plaintiff’s demeanour when being cross examined. [15] Whilst such observations presumably did not descend to the minutiae of the Plaintiff’s presentation over the six days of her examination and cross-examination, the absence of any further observations by the Magistrate gives confidence that nothing of significance was observable which would warrant a dramatic departure from the impression of the Plaintiff which is apparent from the audio evidence in Exhibit B, especially given the clarity of the audio evidence.

30. [182]

    As I have said above, I have included these observations about the Plaintiff’s evidence because it is important context to what a fair-minded lay observer might reasonably apprehend from the Magistrate’s conduct. It is not necessary for the Court to make any finding about the credit of the Plaintiff (or any other witness) let alone findings about the underlying events about which she gave evidence. I have not made any such finding.

Plaintiff’s first contention: apprehension of a view already formed

1. [183]

   In support of the first contention, the Plaintiff identified a number of incidents which have occurred during the hearing. It is convenient to address the main four incidents in a sequence which makes clear the relevance of each incident to the others. It is a chronological sequence. The four incidents are:

   1. (1)

      the Plaintiff’s evidence about showering the boys;

   2. (2)

      the Magistrate’s concern that the Plaintiff be given a s 128 certificate;

   3. (3)

      the Magistrate’s questioning of Ms Gordon; and

   4. (4)

      the Magistrate’s questioning of Ms Perrin.

2. [184]

   As set out above, in 2020 MX was three years old and BN was about one year old. They, together with their mother, MK, and BA, were living with the Plaintiff in the Plaintiff’s home. Although not the parent of the boys, the Plaintiff was heavily involved in providing day to day care for MX and BN.

3. [185]

   A particular incident occurred during the Plaintiff’s examination-in-chief on 5 September 2023 when she was asked about the night-time showering regime for the boys. The transcript of the relevant evidence records the following:

4. [186]

   To understand subsequent events, the critical part of this evidence is underlined.

5. [187]

   The audio record of this evidence is located in Exhibit B, File 2.4 from about 2:15. Listening to the audio, it is evident that it was difficult to hear exactly what was the fourth word which the Plaintiff said in the underlined sentence. It is possible that the transcript is completely accurate. Another possibility is that the Plaintiff said “he would just – he’d get undressed”. Another possibility is that the Plaintiff said “he would just – we’d get undressed”.

6. [188]

   The fact that it was difficult to hear exactly what the Plaintiff said is apparent not just from the audio tape but also from the events which followed in the courtroom. The transcript continues (repeating the last sentence again):

7. [189]

   As made clear by this transcript, the audio recording of the Plaintiff’s evidence was replayed to the court several times. The Magistrate also listened to the audio through “headphones” and offered the legal representatives the same opportunity. Judging from the extended silences in Exhibit B, some of them evidently took up that opportunity.

8. [190]

   Given the repeated replay of the audio, the significant amount of investigation which was undertaken and the ultimate lack of consensus amongst the Magistrate and the legal representatives, it may safely be concluded that the fourth word spoken by the Plaintiff in the underlined sentence remained unclear to all present in the court.

9. [191]

   After the interrogation of the audio was complete, the Magistrate said “there’ll be a finding – the Court will benefit from the transcript and potentially the audio”. The Magistrate stated that her Honour heard “we’d” and that was what was written in her Honour’s contemporaneous note.

10. [192]

    The Magistrate stated that what the Plaintiff said was a “fairly critical issue”.

11. [193]

    Whilst even now it is uncertain what the Plaintiff said, the following matters are certain:

    1. (1)

       the audio recording in Exhibit B does not make it humanly possible to know with certainty what was the fourth word uttered by the Plaintiff in the underlined sentence;

    2. (2)

       if the audio recording available to the Magistrate and the legal representatives on 5 September 2023 was the same as Exhibit B, none of them could know with certainty on that day;

    3. (3)

       as apparent from the Plaintiff’s tone of voice, the Plaintiff spoke the underlined sentence in a matter-of-fact way, without any hint of her being defensive or sensational;

    4. (4)

       immediately after the Plaintiff uttered the underlined sentence, the Magistrate sought clarification from the Plaintiff as to what she had said, and the Plaintiff said it was MX who got undressed, not the Plaintiff;

    5. (5)

       the Plaintiff’s tone of voice when giving the clarification showed that she was surprised by the idea of her getting undressed when showering MX; that is, until the Magistrate requested the clarification the idea had not occurred to the Plaintiff;

    6. (6)

       the Plaintiff’s clarification included a little chuckle immediately after the words “not me” which indicates that, as it dawned on the Plaintiff what the Magistrate was suggesting, the Plaintiff found it a little bit comic;

    7. (7)

       the Magistrate misheard another word uttered by the Plaintiff in the underlined sentence; this is apparent because, when seeking clarification the Magistrate repeated back what the Magistrate thought she heard, but her Honour incorrectly described the person who would get in the shower as “you” when the Plaintiff had said “he’d get in the shower” – the Magistrate’s mishearing of this later part of the underlined sentence is perfectly clear in the audio in Exhibit B; and

    8. (8)

       shortly after the evidence above, the Plaintiff was asked a second time to clarify what she had said, this time by Ms Smith, and the Plaintiff again said that she did not get undressed when she showered MX. [18]

12. [194]

    Given the Magistrate’s mishearing of another part of the underlined sentence, her Honour’s statement that she heard “we’d” at the time the fourth word was spoken by the Plaintiff makes clear that the Magistrate thought she heard “we’d” even though that may not have been what the Plaintiff said. Although not in evidence, it may be accepted that the Magistrate’s contemporaneous note recorded “we’d”. There is no reason to doubt that the Magistrate wrote what her Honour thought she heard.

13. [195]

    In any event, it is evident that the Magistrate was aware that the matter was not clear. That much follows from the fact that her Honour immediately sought clarification from the witness and then initiated the interrogation of the tape recording. Her Honour also made the statement to Mr Squires that there is no agreement. The Magistrate was also aware that the Plaintiff made her evidence clear when clarification was sought, that clarification coming both from the words used for the Plaintiff to clarify and from the tone in which she said those words.

14. [196]

    In such circumstances, a finding by the Magistrate that the Plaintiff admitted taking off her clothes when showering MX would require the Magistrate to adhere to her Honour’s initial belief that she heard correctly, to disregard the objective lack of clarity and to reject the clarification evidence given by the Plaintiff, not once but twice.

15. [197]

    The Magistrate started to state that there would be a particular finding by her Honour, but that statement was not completed. Her Honour’s ultimate statement was that the court will benefit from the transcript yet to be obtained and potentially the audio. The Magistrate also permitted the parties to ask questions based on what they heard. Fairly viewed, the only thing which the Magistrate stated with certainty is that the Magistrate heard “we’d”. At this stage in the hearing, the Magistrate is yet to make a finding about what was said by the Plaintiff in this part of her evidence.

16. [198]

    This incident alone would not have caused a fair-minded lay observer to consider that the Magistrate might not decide the case impartially.

17. [199]

    However the Magistrate’s apparent willingness to entertain the idea that the Plaintiff said that she took off her clothes when showering MX and to persist with that idea after the Plaintiff clarified the matter makes this incident, when considered with an accumulation of later incidents, one which may support the Plaintiff’s argument about apprehended bias. Further support comes from the fact that the Magistrate immediately described the evidence as a “fairly critical issue” without any apparent allowance for the possibility that, even if the Plaintiff did say “we’d get undressed”, she may simply have been referring to her helping a three year old boy take off his clothes.

18. [200]

    The Attorney-General submitted that it is open to the Court to consider that, although not material in isolation, this incident provides support for a finding that a fair-minded lay observer might reasonably apprehend that the Magistrate might have formed a view that the Plaintiff engaged in sexual abuse or sexual harm of MX when viewed with other incidents. I agree.

19. [201]

    Another incident occurred later on 5 September 2023 whilst the Plaintiff’s oral evidence was continuing.

20. [202]

    The Plaintiff had previously given evidence about her work history in child protection, including her professional experience with teaching protective behaviours to small children who might be at risk of sexual harm. [19] The Plaintiff also gave evidence about being concerned that MX and BN were at risk of sexual harm because her son and the boys’ mother had unknown people visiting the house at all hours of the night. The Plaintiff said that she tried to prohibit, and then regulate this activity, but BA and MK were not compliant

21. [203]

    As set out at [48]-[53] above, the Department received two ROSH reports about MX in August 2020 which JCPRP investigated.

22. [204]

    When being questioned during the hearing, the Plaintiff was asked about disclosures reportedly made by MX. Her evidence included the following:

23. [205]

    An aspect of this evidence which warrants emphasis is that the Plaintiff readily recognised in the disclosures reportedly made by MX two topics which she had discussed with MX, namely touching penises and keeping secrets. She accepted that MX may have disclosed those discussions without accepting that she had said to MX what was now being reported. Her evidence was that she did talk to MX about touching penises, but only to say not to. She did talk to MX about keeping secrets, but only to say secrets were not to be kept about touching penises.

24. [206]

    The Plaintiff gave this evidence in September 2023. About five months later this evidence became context for some other evidence which the Plaintiff gave.

25. [207]

    The cross-examination of the Plaintiff was continuing on 20 February 2024. By this time, the Plaintiff was represented by Ms Roberts.

26. [208]

    On 20 February 2024 the Plaintiff was unable to attend the court in person and was permitted to give remote evidence from her home. Shortly into the day the Plaintiff was asked the following questions and gave the following answers:

27. [209]

    The underlined question and answer became the focus of subsequent events.

28. [210]

    From a review of the transcript as a whole, the Plaintiff’s reference to what had been “covered last time” was a reference to her evidence on 5 September 2023 set out at [204] above.

29. [211]

    The cross-examination of the Plaintiff continued until it reached its final completion during the morning session. There followed a short adjournment. Upon resumption, the Magistrate raised a “preliminary issue”. Her Honour referred to the Plaintiff’s evidence as set out at [208] and had the audio tape replayed in the absence of the witness. The Magistrate then raised the question about whether a certificate ought to be given to the Plaintiff under s 128 of the Evidence Act 1995.

30. [212]

    The first seven subsections of s 128 provide:

31. [213]

    In the following passage from the transcript, the Magistrate explained her concern about the Plaintiff and s 128, having regard to the underlined sentence in the Plaintiff’s evidence at [208]:

32. [214]

    The Magistrate then read out several other provisions of the Crimes Act 1900 (NSW) and the Evidence Act 1995. After the further provisions had been discussed, the legal representative for the Plaintiff informed the Magistrate that the Plaintiff denied any criminality and would not in fact be applying for a certificate under s 128. The hearing then moved on, as described later in these reasons.

33. [215]

    In this Court the Plaintiff and the other parties submitted that the statements made by the Magistrate about s 128 were another matter which might give rise to a reasonable apprehension of bias against the Plaintiff. It was submitted that the Magistrate’s statements indicated that the Magistrate thought that the Plaintiff had committed an offence under s 66DA of the Crimes Act 1900. Viewed as an isolated incident, I do not accept that submission. As isolated statements, the Magistrate’s concern about s 128 was not such as might cause a fair-minded lay observer reasonably to apprehend that the Magistrate might not bring an impartial mind to the question whether the Plaintiff had taught the boys to touch each other’s penis. Although the Magistrate said that the Plaintiff’s answer “seems very clear to me”, [23] her Honour expressly stated that she had not expressed a view. Her Honour said that she had “shared” a concern. [24]

34. [216]

    In addition, s 66DA only applies to “sexual touching”. The Magistrate read out s 61HB of the Crimes Act 1900 which contains the definition of “sexually touching”. The definition does not include touching unless a reasonable person would consider the touching to be “sexual”. There does not appear to be any evidence before the Magistrate, and her Honour did not refer to any, which would warrant a conclusion that teaching the boys to touch each other’s penis for the purposes of protective behaviour education would be considered by a reasonable person to be “sexual”.

35. [217]

    In its terms s 128 arises for consideration when a witness objects to giving evidence because the evidence “may” tend to prove that the witness has committed an offence (s 128(1)) and the Court determines that there “are reasonable grounds” for the objection (s 128(3)). A court may (and in the ordinary course, will) be concerned with s 128 before a final decision has been made about the commission of the offence, or before all the evidence relevant to that question is complete. Section 128 contemplates that a certificate may be given even before the completion of the evidence of the witness to whom the certificate is to be given.

36. [218]

    On the other hand, a fair-minded lay observer may have observed that, unlike s 132 of the Evidence Act 1995 which casts on the Court the obligation to forewarn a witness about potential jeopardy from answering a question, s 128 casts the obligation on the witness. Section 128 only applies where an objection is taken. The Plaintiff who was represented by Ms Roberts, did not object to giving the evidence in question. The fact that the Magistrate nonetheless voiced a concern about s 128 might cause a fair-minded lay observer to apprehend that the Magistrate is more focussed on the Plaintiff’s criminality than even the Plaintiff.

37. [219]

    In isolation, the most that can be said about the incident is that the Magistrate may have appeared to a fair-minded lay observer to be open to a criminal view of the Plaintiff’s evidence which was not apparent to the legal representatives for any of the parties, including the Plaintiff.

38. [220]

    However, raising s 128 was only one part of the response which the Magistrate had to the Plaintiff’s evidence set out at [208] above. After raising s 128, the Magistrate turned to a different matter.

39. [221]

    After Ms Roberts told the Magistrate that the Plaintiff would not be seeking a certificate, the Magistrate turned to Ms Smith and the following exchange occurred:

40. [222]

    The sentences first recorded in this extract as spoken by the Magistrate are recorded as a question, although even in that form they read like an invitation to change the Secretary’s approach to permanent placement. The Secretary had not requested any such invitation. The Secretary was represented by Ms Smith and was free to make his own decision about this issue. He did not need any leave from the Children’s Court.

41. [223]

    The transcript does not reflect the atmosphere in the Court during this exchange. As McDougall J observed in Re June (No 2) [2013] NSWSC 1111 at [37], transcript is an imperfect medium for assessing the way in which proceedings were conducted. Exhibit B contains the audio from which the atmosphere is apparent. [26]

42. [224]

    The tone of voice used by the Magistrate was not inquisitive but directive. When Ms Smith informed her Honour that she had not spoken to her client about this particular issue, the Magistrate departed the bench for a short adjournment. Her Honour’s departure was abrupt, unaccompanied by the customary formalities. At the very least, there was a display of dissatisfaction by the Magistrate.

43. [225]

    After the Magistrate returned to the Courtroom, the following exchange occurred:

44. [226]

    After Ms Smith informed the Magistrate that the Secretary had not changed his position there was a silence which lasted for 12 seconds. The silence was broken by the Magistrate saying the word “Alright”. That word does not appear in the transcript. The Magistrate spoke the word in a disdainful tone of voice. [28]

45. [227]

    There were further developments. The case proceeded. There was a brief re-examination of the Plaintiff by Ms Roberts, during which the following evidence was given:

46. [228]

    Again, the Plaintiff readily accepted that the topic of touching penises was discussed with MX but not the touching. The Plaintiff’s evidence finally concluded just before the luncheon adjournment.

47. [229]

    At 2:05 pm the hearing resumed at which time the Magistrate raised an “administrative issue”. Her Honour said to Ms Smith:

48. [230]

    Another witness (Ms Pittman, MX’s psychologist) gave evidence by AVL until 3:34 pm. The evidence of that witness was not completed but the Magistrate brought it to an end at that time.

49. [231]

    The Magistrate then required that the manager caseworker give evidence. As the Magistrate had earlier observed, the relevant official from the Department was present in court. Her name was Diana Gordon. Ms Gordon was not attending court as a representative before the Court or a witness, but as the officer instructing Ms Smith in the conduct of the hearing on behalf of the Secretary. Ms Gordon was the person from whom the Magistrate invited Ms Smith to obtain instructions about changing the Secretary’s position. Ms Gordon was the person whose instructions were then communicated to the Magistrate by Ms Smith.

50. [232]

    Although it is a lengthy passage, it is necessary to set out all of the questioning of Ms Gordon which is recorded in the transcript:

51. [233]

    None of the parties called Ms Gordon as a witness; she was called by the Magistrate. None of the parties had any questions for Ms Gordon. In the first substantive question, Ms Gordon was asked about “the [D]epartment’s view” [32] but the subsequent questions appeared to be directed to Ms Gordon’s personal view. [33]

52. [234]

    When first asked about what she made of the Plaintiff’s evidence from a risk perspective, Ms Gordon was not permitted to complete her answer but was cut off by the Magistrate. [34] The Magistrate then asked another question about “evidence of an adult teaching children to touch each other’s penises”.

53. [235]

    Ms Smith objected to the question. The objection was phrased as one of fairness because the Plaintiff’s evidence was being put to Ms Gordon without the context in which the Plaintiff gave the evidence. In addition to the preamble in the Plaintiff’s evidence (“I covered that last time, but”) and the qualification (“in terms of safe touching”), there were two other passages of evidence which were relevant to the Plaintiff’s evidence on this specific topic, namely:

54. [236]

    Given the nature of the Plaintiff’s evidence and the topic it addressed, the context in which the Plaintiff gave the particular evidence was important. By virtue of the context, the Magistrate’s phrasing of the question was not an accurate representation of the Plaintiff’s evidence. Without the context, any view expressed by Ms Gordon in answer to the Magistrate’s inaccurately phrased question would have no probative value to the issues which the Magistrate has to decide. In theory, the Magistrate’s question might be asked as part of an incremental series of question to explore the witness’s view, but in that situation the question would take its probative value from being the groundwork for a later, probative question. This was not the case for the Magistrate’s questioning of Ms Gordon.

55. [237]

    Ms Smith’s objection was expressed as one of fairness when it was really an objection as to relevance. Nonetheless the basis for the objection was sound and it ought to have been upheld. Alternatively, an assurance ought to have been given that the Magistrate would ask a follow up question which introduced the context.

56. [238]

    The Magistrate nonetheless overruled Ms Smith’s objection. Inexplicably, the Magistrate did not seek to meet the objection by putting the Plaintiff’s evidence in context when continuing to question Ms Gordon. On the contrary, the question as ultimately put by the Magistrate expressly excluded the Plaintiff’s “explanation”. [35] Ms Gordon answered the Magistrate’s question by saying she needed more information and she identified some general material which she would need. The Magistrate did not ask the witness whether the context previously given by the Plaintiff was the sort of further information Ms Gordon needed to answer the Magistrate’s question. The Magistrate simply ended the questioning. Her Honour did not invite questioning from Ms Smith, or Ms Roberts or any of the other legal representatives. None of Ms Smith, Ms Roberts or any other legal representatives sought to question Ms Gordon of her or his own initiative.

57. [239]

    In her submission to the Court, MK placed particular emphasis on this incident. She submitted that after the audio was played to Ms Gordon, the Magistrate summarised the Plaintiff’s evidence as “[the Plaintiff] agreed that she taught the children to touch each other’s penis”. [36] MK submitted that this was not a fair summarisation of the Plaintiff’s evidence in total, and that the question would have been objectionable if asked by one of the other parties. I accept those submissions.

58. [240]

    By insisting on asking the questions without context, especially in the face of reasonable objections, a fair-minded lay observer might reasonably have formed an apprehension that the Magistrate might be interested only in her Honour’s perspective of the answer from the Plaintiff in [208] and not interested in the other evidence which the Plaintiff has given on this issue. A fair-minded lay observer might reasonably apprehend that the Magistrate might not be open to being persuaded from a pre-formed view that the Plaintiff taught the boys to touch each other’s penis.

59. [241]

    MK further submitted that the unavoidable impression one gets from the questioning is that the Magistrate questioned Ms Gordon for the specific purpose of eliciting evidence from Ms Gordon to support a finding that the Plaintiff posed an unacceptable risk to the boys. Whilst not expressing a view, the Attorney-General also submitted that it was open to the Court to conclude that a fair-minded lay observer might apprehend that the Magistrate was seeking to elicit evidence from Ms Gordon to the effect that an adult who teaches boys to touch each other’s penis poses a risk to the children, especially given the Magistrate’s express requirement that Ms Gordon leave aside the Plaintiff’s explanation when giving her answer.

60. [242]

    The further submission is not necessary for acceptance of the Plaintiff’s first contention. In any event, on the evidence before the Court I do not accept that the Magistrate’s specific objective in questioning Ms Gordon was to elicit evidence to support a finding against the Plaintiff. There may be other explanations for the Magistrate’s questioning of Ms Gordon. However, the fact remains that there is no obvious explanation for the approach taken by the Magistrate so as to convince a fair-minded lay observer that there is no bias. The Magistrate’s questioning of Ms Gordon might have caused a fair-minded lay observer to have a reasonable apprehension that the Magistrate might not bring an impartial mind to the assessment of the Plaintiff’s evidence on this issue.

61. [243]

    This is especially so because it followed, firstly, the Magistrate raising a concern about a s 128 certificate for the Plaintiff and, secondly, the Magistrate requiring Ms Smith to obtain instructions (from Ms Gordon) about whether the Secretary had changed his position in view of the Plaintiff’s evidence. The Magistrate’s conduct needs to be considered as a whole.

62. [244]

    The fourth incident which also needs to be considered arises from the Magistrate’s questioning of another officer of the Department two days later. On 22 February 2024 the Manager Case Worker who has had responsibility for the boys from July 2021 was called to give evidence. Her name is Rachel Perrin. The record of Ms Perrin’s evidence is in the transcript. [37] The audio evidence in Exhibit B does not include Ms Perrin’s evidence.

63. [245]

    Ms Perrin was briefly questioned in chief by Ms Smith and then cross examined by the independent legal representative for the boys. The focus of that cross-examination was the Secretary’s decision in November 2021 to change his position on the permanent placement of the boys. As explained above, up until 4 November 2021 the Secretary had proposed a permanent placement with the boys’ successive carers, first Louise then Trish. On 15 December 2021 the Secretary filed an amended care plan in which he proposed permanent placement with the Plaintiff. Ms Perrin gave evidence about the reasons for the change. The legal representative for the boys completed his cross-examination at which point the Magistrate said that her Honour would “pick up” on the issue. [38]

64. [246]

    The Magistrate then asked a series of questions about a clinical assessment dated 24 September 2021. Her Honour’s questioning concluded in a passage which needs to be set out in full:

65. [247]

    This extract shows that during this part of the hearing most of the speaking was done by the Magistrate. These are a number of lengthy statements made by the Magistrate followed by relatively short responses from Ms Perrin. Although the passages are recorded as questions and answers in the usual transcript format for cross-examination of a witness, the words used by the Magistrate are more in the nature of assertations made to Ms Perrin rather than questions asked of Ms Perrin. In broad sequence, the extract may be analysed as follows:

    1. (1)

       After finding the right page in the clinical assessment and drawing Ms Perrin’s attention to a particular passage, the Magistrate is recorded uttering five continuous sentences, each of which is in the nature of a statement by her Honour about what the clinic report comprehended, what seems to her Honour to be misapprehension by the clinician, sexual harm being substantiated, the sex of the person causing the harm (or what had been substantiated about that matter - the Magistrate’s words are unclear), how many people it could possibly be and what that leads you to think albeit unsaid. [40] None of the sentences appears to include a question, although that may depend on the intonation of the Magistrate’s voice. Ms Perrin did not respond to the Magistrate’s sentences with an answer. Ms Perrin responded with her own question by which she sought clarification about what the Magistrate was talking about (“is that when [MX] was talking about a dream”). If the Magistrate did intend her sentences to be a question or a number of questions, it was not a question that could fairly be asked of a witness of fact like Ms Perrin, even in a hearing where the rules of evidence do not apply. Numerous concepts were rolled-up together and spoken by the Magistrate in the presence of Ms Perrin. It is most unlikely that anything Ms Perrin said in response to the Magistrate’s rolled-up words could have had any evidential meaning.

    2. (2)

       The Magistrate is then recorded as uttering four more continuous sentences beginning with the statement “No, it wasn’t a dream”. This passage has the same features as the preceding passage. [41] Again, it appears only to contain statements made by the Magistrate and no questions asked of Ms Perrin.

    3. (3)

       Ms Perrin then started to say something about the information which she had in her head but was interrupted by the Magistrate. The Magistrate is recorded as uttering three more sentences in the nature of statements, not questions. This time the sentences are responded to by Ms Roberts, not Ms Perrin. [42] There follows a dialogue between the Magistrate and Ms Roberts which concludes with the Magistrate stating that her Honour had mischaracterised the evidence.

    4. (4)

       The Magistrate is then recorded as uttering five continuous sentences in a way which conforms to the earlier parts of this passage. [43] Ms Perrin then stated that she would like to read the material again. The Magistrate is then recorded as uttering two sentences, the first of which was a statement of what the Magistrate was “relying” on. The second was a question of Ms Perrin about what she was aware of, which Ms Perrin answered. [44] Some of the documents were then referred to.

    5. (5)

       The Magistrate is then recorded as uttering six continuous sentences. They were all statements. Ms Perrin was not asked a question but appears to have interrupted the Magistrate with some not transcribable words about bears. It seems likely that this passage is not a discrete part of the Magistrate’s speech but rather the commencement of the much longer speech by the Magistrate at the top of page 86 of the transcript [45] from where the Magistrate is recorded as uttering another nine continuous sentences which, if viewed as a continuation of the speech at the foot of page 85, makes 15 altogether. [46] In fact it was more. The seventh sentence recorded on page 86 and beginning with the words “Knowing that and knowing the notion of risk” was constituted by a number of clauses which addressed different concepts. The eighth sentence has been transcribed as a single sentence but it was really two (or three). There are two questions in this passage, one in the middle of the seventh sentence and one in the last sentence. The final question “[c]ould you explain to the court, please, your approach to assessing risk in those circumstances?” required Ms Perrin to distil from the preceding fifteen sentences “those circumstances”. Ms Perrin’s answer to that question, no matter what it was, would have had no evidential meaning.

66. [248]

    A fair-minded lay observer might reasonably apprehend that the statements made by the Magistrate, albeit in the presence of Ms Perrin, might have had a purpose other than adducing evidence.

67. [249]

    There are other aspects of this passage which might have caused a fair-minded lay observer reasonably to apprehend that Ms Perrin’s presence was incidental to some other purpose of the Magistrate. One of the circumstances referred to by the Magistrate in this passage is something to which Mr Squires “has taken us today”. From the Magistrate’s immediately preceding sentences, this appears to be a reference to a report from one of the carers that MX had woken up at night screaming and yelling, or it may have been the event thus reported and not the making of the report itself (it is unclear). In any event, the “us” to whom Mr Squires took the report (or event) today does not appear to include Ms Perrin. Mr Squires asked the preceding witness about MX waking up and yelling but he did not ask Ms Perrin about any such incident, or bad dreams. [47] He did not ask Ms Perrin about a report by a carer. A fair-minded lay observer might have concluded that the Magistrate was addressing someone other than Ms Perrin during this part of the passage.

68. [250]

    Although the evidence before the Court does not include audio evidence for this part of this case, it is nonetheless apparent from the transcript that the Magistrate delivered these statements in an assertive manner. That may be inferred from five things:

    1. (1)

       some of the sentences spoken by her Honour were crisp (eg, “No, it wasn’t a dream”; “No, that’s not the reference to zombies”; “It’s in the bears.”; “A female, it being a female?”);

    2. (2)

       on four occasions the Magistrate appears to have interrupted when Ms Perrin or Ms Roberts was speaking; [48]

    3. (3)

       some of her Honour’s sentences are recorded as sequences of propositions asserted one after the other;

    4. (4)

       when the hearing resumed the next morning, an application was made to have the Magistrate disqualify herself, in support of which Ms Smith made the following submissions:

    5. (5)

       ; and

    6. (6)

       in written submissions on the disqualification application, the legal representative for the Secretary described the Magistrate’s questioning of Ms Perrin as “emphatic”.

69. [251]

    In considering what a fair-minded lay observer might have apprehended from this incident, it must be remembered that s 107(1) of the Statute provides that a children’s magistrate may examine and cross-examine a witness to such an extent as the magistrate thinks proper. The fair-minded lay observer would take that into account when forming an apprehension about the Magistrate’s conduct. However, the power given to a children’s magistrate under s 107(1) is not unlimited. Under s 107(1), a children’s magistrate may question a witness but only for the purpose specified in the provision. The questioning must be “for the purpose of eliciting information relevant to the exercise of the Children’s Court’s powers”.

70. [252]

    The magistrate’s power to question a witness may not be sourced solely in s 107(1). However, the relevance of the s 107(1) power is that it directs attention to the possibility that the Magistrate might not have been perceived to be questioning Ms Perrin at all. The Magistrate might have been perceived as making contentions.

71. [253]

    Section 107(3) of the Statute provides that the Children’s Court must forbid an examination of a witness that it regards as oppressive, repetitive or hectoring. A magistrate’s power to ask questions under s 107(1) ought not as a matter of construction be construed in a way which is inconsistent with s 107(3). The Magistrate certainly spoke many continuous sentences with, according to the Secretary, “force”, but without audio evidence for this part of the hearing, it is not appropriate for the Court to find that the Magistrate’s questioning of Ms Perrin was oppressive or hectoring, and by reason of that contrary to s 107(1) and/or s 107(3). Nonetheless, a fair-minded lay observer would have perceived the Magistrate’s conduct in the light of the evident purpose of s 107(3). Any apprehended failure to conform to that purpose might contribute to an apprehension of bias.

72. [254]

    The Plaintiff submits that implicit in the Magistrate’s questioning of Ms Perrin is a reasonable apprehension that the Magistrate might have accepted the veracity of MX’s disclosures and the accuracy of the reporting of the disclosures in the Alternative Assessment. The Attorney-General submits that it is open to the Court to find that the nature of the questioning might cause a reasonable apprehension that the Magistrate might have made up her Honour’s mind that the Plaintiff was the zombie and had a closed mind to any other explanation for the dream. I accept those submissions based on the Magistrate’s statements as a whole. The Magistrate’s statements were made at a time when Ms Martens’ evidence, which she casts doubt on those matters, is not complete and the Magistrate had not yet heard the parties’ submissions on these issues.

73. [255]

    Having regard to the questioning of Ms Perrin in the circumstances referred to above, a fair-minded lay observer might have apprehended that the Magistrate might not bring an impartial mind to the resolution of the questions her Honour is required to decide in the case.

74. [256]

    In addition to the four incidents, the Plaintiff (and the Attorney-General) identified other incidents which they submitted did (or may) specifically support the finding that there might be a reasonable apprehension that the Magistrate might have already formed a view that the Plaintiff has caused sexual harm to MX. In view of my conclusion on the four incidents as a whole, it is not necessary to address these additional incidents. However, a number of the Magistrate’s other statements which are specifically relied upon by the Plaintiff (and referred to by the Attorney-General) were expressly phrased by the Magistrate in terms of the existence of “evidence” and “reports” that the Plaintiff has sexually abused MX. Given that there is such evidence which may or may not be accepted (eg, the Alternate Assessment), a fair-minded lay observer would not have had a reasonable apprehension of bias merely from the Magistrate referring to the evidence.

75. [257]

    This includes a statement made by the Magistrate on 6 September 2023 upon which the Plaintiff places considerable reliance. [50] At the time, the Plaintiff was being questioned by Ms Smith. In the absence of the witness, the Magistrate made some comments about what her Honour considered to be the proper approach to Ms Smith’s questioning. This led to the following exchange:

76. [258]

    The underlined statements are the ones specifically relied upon by the Plaintiff.

77. [259]

    This is another instance where the written transcript does not describe the incident with sufficient detail and accuracy. From the audio recording in Exhibit B, it is clear that after the Magistrate said “it seems obvious to say in which there’s evidence before the Court that they have caused sexual harm to this child” there was an observable reaction from the bar table. In written submissions to the Magistrate, the Secretary said that the Magistrate’s statement caused the lawyers to “physically react in surprise/shock”. In response to the lawyers’ reaction, the Magistrate asked “Is something unclear about what I’ve just said?”. [52] It was a genuine question.

78. [260]

    The Plaintiff submitted that the statement might have caused a fair-minded lay observer reasonably to apprehend that the Magistrate might have already formed a view that the Plaintiff has caused sexual harm to MX. As it relates to this particular statement, I do not accept that submission. In its terms, the Magistrate’s statement was a description of the “evidence before the Court”. It was not a reference to all the evidence before the Court. It did not exclude the possibility that there is other evidence before the Court which had a different effect. The phrase “they have caused sexual harm to this child” was a reference to the effect of the evidence. The thing which was “obvious” to the Magistrate was the existence of some evidence. It was not a finding of fact about what the evidence showed.

79. [261]

    This analysis is supported by the context in which the Magistrate made the statement, namely the need to put matters to the Plaintiff in fairness to her. The reason why certain evidence needs to be put to a witness is to give the Court an opportunity to hear what the witness has to say before making a finding.

80. [262]

    When responding to the Magistrate’s question “is something unclear about what I’ve just said?”, Ms Smith’s paraphrase of the Magistrate’s statement was not accurate. As set out above, the thing which the Magistrate described as “obvious” was the existence of evidence, not what was proved by the evidence. This suggests that Ms Smith misheard or misunderstood what the Magistrate had just said.

81. [263]

    It is submitted that the Magistrate’s statement was a “slip”, which the Magistrate immediately corrected by stating that the evidence showed that the Plaintiff “potentially” caused sexual harm to MX. In context, this was not a correction of a slip but merely a more comprehensive statement of what the Magistrate had said in the first place.

82. [264]

    I do not think that the Magistrate’s subsequent reference to the “risk” the Plaintiff poses to the boys has the quality of pre-judgment for which the Plaintiff contends. The Magistrate was correct to identify the issues before the Children’s Court as questions of risk. This particular incident would not have caused a fair-minded lay observer reasonably to apprehend that the Magistrate might have already formed a view that the Plaintiff had sexually abused MX. It does not otherwise support the Plaintiff’s first contention.

83. [265]

    It is apparent from the analysis of the four incidents referred to above that they accumulated one upon the other in the context of a fair-minded lay observer’s perception of the Children’s Court Proceedings. The second incident (s 128 certificate) and the third incident (calling and questioning Ms Gordon) were intimately connected because they both flowed directly from the Plaintiff’s evidence at [208]. They appear to have been two parts of the Magistrate’s multifaceted response to that evidence. The fourth incident (questioning of Ms Perrin) was similar to the third incident. The Magistrate might reasonably have been apprehended to be challenging the Department officers in the manner described above. The first incident (showering the boys) was similar to the other incidents because it arose from evidence given by the Plaintiff, which, despite the evidence being unclear and the Plaintiff subsequently clarifying what she had said, the Magistrate immediately regarded the evidence in a sinister light and as a fairly critical issue.

84. [266]

    Whilst the first two incidents when viewed in isolation would not give rise to a reasonable apprehension of bias, the questioning of Ms Gordon and Ms Perrin would. That reasonable apprehension is reinforced by the first two incidents and some of the Plaintiff’s other contentions, to which I will shortly turn.

85. [267]

    The accumulation of the incidents is also significant because of their spread across the breadth of the hearing. They occurred on 5 September 2023, 20 February 2024 and 22 February 2024 and were interspersed with other incidents, especially Ms Roberts’ attempt to cross-examine Ms Watson on 21 February 2024. Viewed as a whole, the incidents might indicate a consistent and persistent attitude by the Magistrate. As set out above, merely articulating a preliminary view held by the Magistrate would not give rise to a reasonable apprehension of bias. However these four incidents, accumulated as they were with each other and with other incidents, go further. They might have caused a fair-minded lay observer reasonably to apprehend that the Magistrate’s mind was not open to persuasion.

Plaintiff’s second contention: denial of procedural fairness and excessive intervention

1. [268]

   There is no doubt that the Magistrate conducted the hearing in a highly interventionist manner. In this Court the Plaintiff, and before the Magistrate the Secretary, identified numerous occasions where the Magistrate interrupted the flow of questioning of a witness, sometimes to require the questioner to take a different approach and sometimes to commence the Magistrate’s own questioning of the witness, often at length.

2. [269]

   The fact that many interventions occurred does not of itself give rise to a reasonable apprehension of bias. However, there are aspects of some of the Magistrate’s interventions which might in this case. I have already addressed the incidents when the Magistrate required Ms Gordon to be called as a witness and her Honour’s questioning of Ms Gordon, and also the Magistrate’s questioning of Ms Perrin, all of which were instances of very significant intervention in the Secretary’s conduct of the hearing.

3. [270]

   Another incident of intervention by the Magistrate provides substantial support for the Plaintiff’s case. It arose from the cross-examination of Ms Watson.

4. [271]

   As set out above, Ms Watson was the Department’s case worker who visited MX on 3 November 2020 and prepared the Alternate Assessment. Some of the conclusions in the Alternate Assessment were based on what Ms Watson understood from talking to MX.

5. [272]

   The Magistrate was informed on the first day of the hearing that the cross-examination of Ms Watson was required critically to assess the disclosures made by MX in 2020. [53]

6. [273]

   Ms Watson was called to give evidence on 21 February 2024. Her evidence in chief was taken by Ms Smith who essentially identified the witness and each of the Affidavits which she had affirmed in the Children’s Court Proceedings. Ms Roberts, the legal representative of the Plaintiff, then cross examined Ms Watson. The written record of Ms Roberts’ cross-examination is in the transcript. [54] The audio evidence is in Files 9.3, 9.4 and 9.5 in Exhibit B. In File 9.3, Ms Roberts’ cross-examination commences at 17:30 and continues to the end of the file at 38:35. File 9.4 is a short file with a duration of four minutes and six seconds. File 9.5 commences with the continuation of Ms Roberts’ cross-examination until it concluded at 23:30.

7. [274]

   It is necessary to listen to the entire cross-examination in order to assess the Plaintiff's submissions in relation the Magistrate's conduct. The audio evidence makes plain the following facts:

   1. (1)

      the legal representative for the boys did not object to any of Ms Roberts’ cross-examination;

   2. (2)

      the Magistrate consistently interrupted the questioning, sometimes for good reason but often for no apparent reason;

   3. (3)

      the Magistrate repeatedly took over Ms Roberts’ cross-examination, cutting across Ms Roberts’ line of questioning, supplanting it with her Honour's own line, and sometimes asking questions to reframe and recontextualise questions which Ms Roberts had asked; [55] and

   4. (4)

      the Magistrate, proactively and without regard to Ms Roberts’ own intentions and timing, insisted upon Ms Watson being given specific context for matters about which she was being asked.

8. [275]

   In this last respect her Honour's conduct was in stark contrast to her Honour's cross-examination of Ms Gordon the previous afternoon when her Honour had asked questions about matters isolated from their context over the objection of Ms Smith and Ms Roberts.

9. [276]

   I do not set out in these reasons each instance when the Magistrate interrupted or intervened in Ms Roberts’ cross-examination. They are in the transcript.

10. [277]

    One incident warrants special reference. A short time into her cross-examination, Ms Roberts raised with Ms Watson the topic of MX’s memory. The following incident occurred:

11. [278]

    The question which gave rise to this exchange was a question about Ms Watson’s perception of MX. It was directed to Ms Watson’s perception of “his ability” to look into “his memory” because of “his age”. It was not a question about a class of children, nor a question about Ms Watson’s perception of a class of children.

12. [279]

    Ms Roberts’ question was part of a sequence about Ms Watson’s experience in interviewing children. [57] The questions were directed to Ms Watson’s own perceptions, a matter which was relevant to the circumstances in which the record of her visit with MX was created and the conclusions expressed in that record formed. Ms Watson was not being asked to express an opinion within s 76 of the Evidence Act 1995 to prove the existence of an objective fact such as, for example, a child’s age may affect his or her ability to know the difference between real and imagined memory. As was apparent from the issues before the Children’s Court, especially the provenance and materiality of the Alternate Assessment and the conclusions expressed in it, it was appropriate for Ms Roberts to explore Ms Watson’s perception of MX’s memory. Specifically, Ms Roberts was entitled to find out whether, and if so to what extent, Ms Watson had taken MX’s age and memory into account when making the statements in the Alternate Assessment.

13. [280]

    Her Honour may have misheard the question or misunderstood it. In raising the matter with Ms Roberts (in the absence of the witness), the Magistrate rephrased Ms Roberts’ question as a question about children as a “class of persons”. That was not Ms Robert’s question. No “foundation” was required, other than the undisputed fact that Ms Watson was the case worker who interviewed MX and prepared the Alternate Assessment.

14. [281]

    Ms Roberts began to explain the position to the Magistrate. It may be accepted that Ms Roberts’ explanation lacked clarity. In any event, the Magistrate did not hear the explanation. In the middle of Ms Roberts’ sentence the Magistrate left the bench. From the audio evidence it is clear that the Magistrate’s departure was abrupt, similar to the Magistrate’s departure the previous day when Ms Smith informed the Magistrate that she did not have instructions about the Secretary changing his position.

15. [282]

    The duration of the Magistrate’s absence from the bench is not apparent from the evidence. Upon her Honour’s return, the following exchange occurred:

16. [283]

    Again, the audio recording makes clear that the Magistrate’s departure from the bench was abrupt. Apart from its abruptness, the remarkability of this departure is that the Magistrate has just returned to the bench following her Honour’s previous departure.

17. [284]

    Upon the resumption of the hearing, there was some brief housekeeping followed by the following exchange:

18. [285]

    There followed an exchange between the Magistrate and Ms Roberts which was premised on the Magistrate’s enduring misunderstanding of Ms Roberts’ question. The Magistrate referred Ms Roberts to s 165A of the Evidence Act 1995 which restricts the directions which may be given to juries about the reliability of evidence given by children. [60] Section 165A is not relevant to any issue before the Children’s Court. Even by analogy, it is not relevant to Ms Roberts’ question to Ms Watson.

19. [286]

    The Magistrate ultimately insisted that Ms Roberts “establish whether [Ms Watson] has the capacity to provide comment to the Court about this type of evidence”. [61]

20. [287]

    The following exchange then occurred:

21. [288]

    The tone of voice used by the Magistrate in this exchange was dogmatic and imperative.

22. [289]

    Ms Roberts then resumed her cross-examination of Ms Watson. She asked some questions about Ms Watson’s training in interviewing children. She then asked some broad questions about whether Ms Watson had any “concerns” about the way she conducted the interview with MX in 2020. [63] Interestingly, Ms Watson’s evidence on this topic was measured. Ms Watson said:

23. [290]

    Ms Roberts then concluded her cross-examination.

24. [291]

    The Attorney-General submits that the fact that Ms Roberts twice complained to the Magistrate about the level of intervention (“I don’t seem to be able to ask a question without it raising concerns from the bench” and “I’m struggling to be able to do that at this point”) [65] may indicate that the Magistrate’s interventions were objectively excessive. I accept the Attorney-General’s submission. In fact Ms Roberts made a third contemporaneous complaint to the Magistrate (“if I can finish my submission please…” [66] ).

25. [292]

    When Ms Watson was excused at the end of 21 February 2024, The Magistrate’s interventions in and management of Ms Roberts’ questioning were to such an extent that Ms Roberts had been deprived of a fair opportunity to question Ms Watson. Ms Watson’s evidence about disclosures by MX had not been fairly tested. In those circumstances, it may be doubted that it is now open to the Magistrate to place any weight upon the evidence of Ms Watson or the conclusions reached in the Alternate Assessment. Were the Magistrate to do so, there may be a denial of procedural fairness to the Plaintiff.

26. [293]

    The Magistrate’s conduct during Ms Roberts’ cross-examination of Ms Watson might give rise to a reasonable apprehension in a fair-minded lay observer that the Magistrate might not have been willing to listen to evidence which detracted from the conclusion that MX had suffered sexual harm as set out in the Alternate Assessment. This is especially so when the cross-examination that was permitted of Ms Watson is contrasted with the Magistrate’s questioning of Ms Gordon the day before.

27. [294]

    There is nothing in the procedures of the Children’s Court which would have alleviated any such reasonable apprehension. Although a fair-minded lay observer would have understood that the Children’s Court procedures are to an extent inquisitorial, he or she would also have understood that the Magistrate is required to ensure procedural fairness to all parties.

28. [295]

    The Plaintiff has identified other instances of intervention by the Magistrate. A submission is made that during Ms Smith’s questioning of the Plaintiff there were at least two occasions where the Magistrate required Ms Smith not to ask leading questions. In the context of this submission, the Plaintiff refers to Ms Smith’s questioning as “cross-examination”. The Plaintiff states that leading questions are permissible in cross-examination. Hence, these interventions were inappropriate.

29. [296]

    I do not accept the Plaintiff’s submissions on this issue. On a number of occasions the Magistrate did tell Ms Smith not to ask leading questions, which was a source of frustration to Ms Smith and, ultimately, the Magistrate. However, even where the rules of evidence apply there may be instances where a cross examiner ought not be permitted to ask leading questions of a witness. For example, where the cross-examiner is in the same interest as the party which called the witness and where both those parties may obtain a forensic advantage by the cross-examiner leading the witness to give mutually beneficial evidence. The Plaintiff and the Secretary are generally in the same interest because both seek permanent placement of the boys with the Plaintiff.

30. [297]

    Some of the Magistrate’s objections to leading questions are difficult to follow. The impermissible forensic advantage which the Magistrate may have been trying to control was not immediately apparent from the line of questioning. It may be that the Magistrate was simply taking an overall position rather than a position tailored to meet any perceived vice in particular questioning. In any event, the requirement that Ms Smith not ask leading questions of the Plaintiff would not have caused a fair-minded lay observer to apprehend that the Magistrate might be doing so because the Magistrate is bias.

31. [298]

    Some of the Magistrate’s intervention in the hearing support a finding of apprehended bias, especially in relation to Ms Roberts’ cross-examination of Ms Watson. In that particular instance, the Magistrate’s intervention rises to the level of a denial of procedural fairness.

Plaintiff’s third contention: the Magistrate entered into the arena

1. [299]

   The Plaintiff’s third contention overlaps the first two. I accept the further submission that a fair-minded lay observer might have formed a reasonable apprehension that the Magistrate might have entered into the arena in which the Children’s Court Proceedings were being conducted.

2. [300]

   In accepting that submission, I have not lost light of s 93(1) of the Statute and the requirement that the Children’s Court Proceedings not be conducted in an adversarial manner. Even in non-adversarial proceedings, there is an arena in the sense that the Court is a forum in which the parties may make contentions and advocate for a certain position on certain issues. That much is true for the Children’s Court, in which certain persons are entitled to appear (eg ss 98(1) and 98(3)), they may be legally represented (eg ss 98(1), s 98(3) and 99(1)), they may place views (eg s 99D(a)(i)) and may test evidence (eg ss 98(3) and 99D(a)(iii)). The arena is the exclusive domain of the parties. The Court must not itself enter the arena, or be seen to enter it.

3. [301]

   Whilst a fair-minded lay observer would not necessarily form such an apprehension of the Magistrate’s conduct in this case, he or she might reasonably do so from the following specific matters:

   1. (1)

      the circumstances in which the Magistrate required Ms Gordon to be called to give evidence;

   2. (2)

      the Magistrate’s questioning of Ms Gordon;

   3. (3)

      the Magistrate’s intervention in Ms Roberts’ cross-examination of Ms Watson; and

   4. (4)

      the Magistrate’s questioning of Ms Perrin.

4. [302]

   Each of these incidents has already been addressed above in the context of the Magistrate having already formed a view. Some further comment is warranted in the specific context of the Plaintiff’s third contention. Individually and as a group they might have caused a fair-minded lay observer to perceive that the Magistrate’s proactivity might have resulted from partisanship.

5. [303]

   In relation to Ms Gordon being called as a witness, and as subsequently submitted by Ms Smith, the Magistrate’s requirement that Ms Gordon give evidence appears to have been directly linked to her Honour’s earlier questioning of Ms Smith about whether the Secretary had changed his position following the Plaintiff’s evidence set out at [208] above. When Ms Smith informed the Magistrate not, the Magistrate’s response was to require Ms Smith’s instructing officer to be called as a witness to be directly questioned by the Magistrate. In her submission on disqualification, Ms Smith described this as “undercutting” the Secretary’s legal representative. [67] The sequence of events is consistent with that analysis.

6. [304]

   It must be remembered that under s 61 of the Statute the Secretary is the moving party in the proceedings. Under s 98, the Secretary has a right of appearance. The Secretary is entitled to make that appearance by a legal representative: s 98(1).

7. [305]

   Whatever other vice it may have, an isolated incident of a judge seeking to circumvent the legal representation by which a party has chosen to appear, would not without more be a basis to find a reasonable apprehension of bias against that party. However, in this case the Magistrate’s desire to question Ms Smith’s instructing officer might have given rise to an apprehension that the Magistrate was convinced that the Plaintiff had taught the boys to touch each other’s penis. The Magistrate’s conduct might have been perceived as oppositional to the Secretary in the conduct of the case. It might appear that way because the Magistrate’s conduct was unusual and not readily explicable otherwise

8. [306]

   It might even have been perceived by a fair-minded lay observer that the Magistrate might have been dissatisfied with Ms Smith being instructed that the Secretary has not changed his position and the Magistrate’s insistence on directly questioning the officer giving the instructions might have been a reaction to her Honour’s dissatisfaction.

9. [307]

   In relation to the questioning of Ms Gordon itself, in D v C; Re B (No 2) at [85]-[86], the following was said by Basten JA, with whom McColl JA and Emmett AJA agreed:

10. [308]

    This passage highlights the qualitative difference between a judge listening to a witness being questioned by someone else and the judge asking questions. The Magistrate’s questioning of Ms Gordon was less in the nature of a disinterested inquiry about information and more in the nature of a cross-examination in which the Magistrate was leading the witness in a desired direction.

11. [309]

    As mentioned above, the Magistrate’s reaction to Ms Smith’s objection to Ms Gordon being questioned about the uncontextualised evidence of the Plaintiff is inexplicable. The objection might readily have been addressed by the Magistrate including the context which Ms Smith was seeking, but the Magistrate did not adopt that simple, practical solution. As the person who called Ms Gordon and then asked all the questions, even over the objection of Ms Smith, the Magistrate might have resembled more a contesting party than a disinterested judge.

12. [310]

    In relation to the Magistrate’s intervention in Ms Roberts’ cross-examination of Ms Watson, two matters warrant emphasis in the context of the Magistrate’s perceived entry into the arena. First, the Magistrate was the only person who “objected” to Ms Roberts’ questions. In particular, Mr Squires did not object even though he appeared as the independent legal representative for the boys. Secondly, the Magistrate’s vigilance about Ms Roberts’ asking questions without relevant context contrasted with the Magistrate’s own questioning of Ms Gordon the previous day, again potentially suggestive of partisanship.

13. [311]

    In relation to the Magistrate’s questioning of Ms Perrin, and without repeating what is set out above, the long stream of continuous statements might have appeared more in the nature of submission-making than question-asking. There are also indicators that the witness, Ms Perrin, may not have been the intended audience for the Magistrate’s statements.

14. [312]

    In addition to these matters, the Plaintiff relied upon other aspects of the Magistrate’s conduct to support the contention that the Magistrate might have been perceived to have entered into the arena. They include requiring other persons to be called as a witness, sometimes over the objection of the Secretary, especially MS. In addition to MS, there are the two JCPRP officers who investigated the ROSH reports in August 2020, other professionals who have engaged with MX over recent years including a counsellor, Ms Watson’s co-worker on 3 November 2020 (Ms Larrigo), other officers of the Department and an erstwhile foster carer for the boys, Trish. The Plaintiff also relies on the Magistrate “calling” for documents or otherwise requiring witnesses to obtain documents. The Magistrate has also invited the parties, specifically the independent legal representative for the boys, to apply for short service of subpoenas to obtain other documents, including from the police. In the face of an objection from Ms Smith, on 22 February 2024 the Magistrate asked for the duty solicitor to appear before her Honour and then recruited him to contact MS and advise her about giving evidence. [68]

15. [313]

    A fair-minded lay observer might reasonably perceive that the Magistrate’s proactivity has been methodical and persistent. The resumption of the hearing each morning, and sometimes after lunch and other adjournments, usually commenced with the Magistrate asking Ms Smith for an update on the various investigation and evidence gathering tasks which the Magistrate had previously required of Ms Smith.

16. [314]

    Some of these further aspects of the Magistrate’s conduct were not inherently partisan. A fair-minded lay observer appreciating that the Magistrate is by training, tradition and oath or affirmation impartial, might instead perceived that the Magistrate has simply been seeking out all evidence on the issues before the court. In the words of MK as set out at [90] above, the Magistrate was being very thorough in trying to get to the bottom of what has gone on. A fair-minded lay observer might not have perceived that the Magistrate was seeking further evidence specifically to prove a pre-formed view that the Plaintiff has sexually abused MX.

17. [315]

    In this regard, a fair-minded lay observer would appreciate that some of the evidential material which the Magistrate has been seeking may not ultimately support a finding that the Plaintiff has sexually abused MX. For example, the Magistrate has sought evidence from the two officers from JCPRP who visited MX in September 2020 and who concluded that the reported sexual abuse by the Plaintiff cannot be substantiated. Were the two officers to give evidence in the Children’s Court Proceedings, they may give perfectly cogent explanations for their conclusions, which explanations may undermine the reliability of the ROSH reports they were investigating.

18. [316]

    In light of the incidents referred to at [301] above, it is understandable for the Plaintiff and the Attorney-General to submit that all these additional matters accumulate to support the Plaintiff’s third contention. It is not necessary to make finding about each matter. The Plaintiff’s contention that the Magistrate might be perceived to have entered the arena finds sufficient support in the incidents referred to at [301] above without further support being necessary from the additional incidents relied on by the Plaintiff.

Plaintiff’s fourth contention: the Magistrate’s dismissive treatment of Ms Smith

1. [317]

   The Plaintiff’s submissions for this contention are variously expressed in terms of conduct by the Magistrate which was “dismissive”, “sarcastic”, “rude” and expressive of “judicial frustration”.

2. [318]

   As the Plaintiff correctly accepts, querulous, peevish or even rude behaviour by a judge does not on its own make out a case of disqualifying bias (FAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [44] (Kenny J)). Indeed, a judge’s displeasure distributed evenly along the bar table, or capriciously without a discernible method, may be an indicator of impartiality: Royal Guardian Mortgage Management Oty Ltd v Nguyen [2016] NSWCA 88 at [176] (Ward JA). However, the Plaintiff’s contention is that the Magistrate’s conduct in this case has been discernibly directed to Ms Smith, and, to a lesser degree, Ms Roberts. For these contentions, as for the others, the entirety of the Magistrate’s conduct needs to be considered.

3. [319]

   As set out above, Ms Smith appeared for the Secretary and, in February 2024, Ms Roberts appeared for the Plaintiff. These two parties have a common interest in the sense that they are both advocating for orders by which the boys will be placed permanently with the Plaintiff. Mr Squires appeared as the independent legal representative for the boys and, more recently, has not necessarily supported that position.

4. [320]

   It again needs to be borne in mind that Ms Smith appeared as the legal representative for the Secretary. As set out above, under the Statute the Secretary is required by s 34(1) to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of a child if the Secretary forms the opinion that the child is in need of care and protection. That action might include developing a care plan (s 34(2)(b)) and making an application to the Children’s Court for a care order (s 61(1)). All these obligations are cloaked by the Secretary’s obligation under s 9 to have regard to the safety, welfare and wellbeing of the child as the paramount consideration.

5. [321]

   The Secretary brings proceedings in the Children’s Court in performance of its statutory obligations. It is essential to the proper operation of the Statute that the Children’s Court hear the Secretary and give proper consideration to the Secretary’s views. In this case, Ms Smith is entitled to be heard. The Magistrate must give proper consideration to the views which Ms Smith expresses on behalf of the Secretary.

6. [322]

   An entitlement to be heard is a matter of substance. Any conduct by the Court which might discourage a legal representative from making submissions on behalf of his or her client is antithetical to that entitlement.

7. [323]

   Throughout the ten hearing days there were numerous occasions when the Magistrate responded to a submission from the Ms Smith which is fairly described as was dismissive. I will not set out all the relevant text, but I will give some examples which are representative. [69]

8. [324]

   An example occurred on the first day of the hearing on 4 September 2023 when an issue arose about a redaction in a report to be adduced into evidence. The redaction had been made to protect the privacy of the Plaintiff. The following exchange occurred:

9. [325]

   Ms Smith was communicating to the Magistrate a sensible and pragmatic arrangement appropriately to address a sensitive issue of confidentiality for the Plaintiff. The arrangement had arisen from the parties consulting each other to ensure each party’s interests were protected. As revealed by the audio recording in Exhibit B, the Magistrate’s response “all the time” was delivered in a belittling tone. By use of that tone, by directing her Honour’s response to Ms Smith’s initial statement that reports get redacted “all the time”, by not referring and implicitly ignoring everything else which Ms Smith had said and by asking “do you have something other than a submission ‘all the time’, that you can assist the Court with” the Magistrate treated Ms Smith in a dismissive way.

10. [326]

    On another occasion the Magistrate questioned Ms Smith about whether there existed a recording of some JCPRP investigative work. The approach taken by the Magistrate was to get Ms Smith first to confirm what Ms Smith had previously “placed on the record” about the non-existence of a recording, and then to ask Ms Smith a series of incremental questions about a document evidently designed to demonstrate the opposite. The Magistrate was cross-examining Ms Smith in order to demonstrate a point. There was no reason for the Magistrate to take that approach. It would have been more efficient, just, quick and cheap for her Honour simply to explain what her Honour had more recently observed from the documents, and query the correct position. A fair-minded lay observer might reasonably have apprehended that the Magistrate was trying to belittle Ms Smith. [71]

11. [327]

    On 6 September 2023 the following exchange occurred during Ms Smith’s questioning of the Plaintiff. In the absence of the witness:

12. [328]

    It was apparent that Ms Smith did not understand what she was being asked by the Magistrate. Her lack of understanding was explicable by the novelty, vagueness and undiscernible object of the Magistrate’s question. Nonetheless, the Magistrate did not explain to Ms Smith what her Honour as asking, but essentially kept repeating the same question, interrupted by the condescending “Am I not being precise enough for you, Ms Smith?”. On the audio tape in Exhibit B, the Magistrate’s questions sound officious and belittling.

13. [329]

    There were a number of occasions when the Magistrate specifically asked Ms Smith to make submissions and then cut Ms Smith off once she started to do so. An example occurred on 8 September 2023:

14. [330]

    There were occasions when the Magistrate spoke to Ms Smith in a way which is fairly described as rude. On 21 February 2024 the following exchange occurred:

15. [331]

    The full meaning of the Magistrate’s words is only apparent from the audio evidence in Exhibit B. [75] The Magistrate’s words “thank you for that contribution Ms Smith” were spoken in a sarcastic tone of voice.

16. [332]

    The Magistrate’s treatment of Ms Smith was not uniform throughout the ten hearing days, but the dismissive behaviour was sufficiently frequent and regular across the entire hearing to make it remarkable.

17. [333]

    My perception of the manner in which the Magistrate spoke to Ms Smith is confirmed by the submissions made orally by Ms Smith in support of the disqualification application on 23 February 2024. Ms Smith made the following submission:

18. [334]

    The Attorney-General submits that it may be inferred that Ms Smith was aware that this submission was a serious matter, and that Ms Smith would not have made it unless she held the honest belief which she expressed. Ms Smith evidently did not make this submission to the Magistrate lightly. I accept the Attorney-General’s submission.

19. [335]

    Compared to Ms Smith, Ms Roberts’ participation in the hearing was limited. For the first week of the hearing the Plaintiff was represented by counsel who was instructed by Ms Roberts. Ms Roberts was not required to play the same role as the Secretary’s legal representative. Nonetheless, I have set out above the details of Ms Roberts’ cross-examination of Ms Watson. For current purposes, some of the Magistrate’s interaction with Ms Roberts may fairly be described as dismissive and intolerant. In particular, the two occasions when the Magistrate abruptly left the bench, once when Ms Roberts was in the middle of a sentence, were intolerant behaviour by the Magistrate.

20. [336]

    Listening to the entire recording in Exhibit B, I am satisfied that the complaint about the Magistrate’s treatment of the legal representatives was not universal but was directed to Ms Smith in particular, and to Ms Roberts to a lesser extent.

21. [337]

    In reaching this conclusion, I have had regard to the broader frustrations faced by the Magistrate in the conduct of the case. There were a number of matters which the Magistrate clearly found to be irritating. In particular, it is a document heavy case. On another occasion the Magistrate referred to having 16 volumes of documents. On one occasion it seems clear that the Magistrate was working from a bundle which was paginated differently to the bundle which everyone else had. There were other difficulties, such as the unavailability of witnesses, not always for self-evidently good reasons, third party claims for confidentiality and imperfect audio visual links to remote witnesses. BA was consistently late on each hearing date. There is no doubt that this has been a difficult case for the Children’s Court to hear.

22. [338]

    It is not possible to drill down into all these details and attribute responsibility. It is certainly not possible to find that the Secretary was responsible for any particular irritant. In some cases it is clear that the Secretary was not responsible. However, as the legal representative for the Secretary, it was usually Ms Smith who was on her feet each time the Magistrate raised a problem.

23. [339]

    For incidents specifically referrable to, for example, the collation of the documents, the Magistrate’s expressions of dissatisfaction are not relevant to apprehended bias. For each such incident, a fair-minded lay observer would have understood that the Magistrate’s conduct has no logical connection with the determination of the issues in the case. On the hand, the Magistrate’s dismissive conduct towards Ms Smith and Ms Roberts cannot be explained by the Magistrate’s frustration with the logistics of running the proceedings.

24. [340]

    Whilst dismissive behaviour towards legal representative is not demonstrative of bias per se nor the apprehension of it, it may be relevant if it gives the impression that the judge might be oppositional to the position for which the legal representative is contending, or that the judge might wish to discourage the legal representative from advocating his or her clients position or that the judge might not be interested in what the legal representative has to say, either generally or on a particular issue. A fair-minded lay observer might reasonably have had such an apprehension from the Magistrate’s conduct in this case.

25. [341]

    This is especially so in the case of Ms Smith. The fair-minded lay observer would be aware that Ms Smith has an express statutory entitlement to be heard as the legal representative for the Secretary.

26. [342]

    In these circumstances and having regard to the entire transcript and audio recording, the Magistrate’s conduct might have caused a fair-minded lay observer to have a reasonable apprehension that her Honour might not bring an impartial mind to the resolution of the issues being advocated by the Secretary and the Plaintiff.

Plaintiff’s fifth contention: the Magistrate’s treatment of witnesses

1. [343]

   For her final contention, the Plaintiff submitted that the Magistrate “made comments which may have had the effect of confusing or upsetting witnesses, put propositions to some witnesses that were not put to others, and enquiring with respect to irrelevant considerations”.

2. [344]

   Most of the particulars relied upon for this submission have been addressed above. Some of the additional particulars are:

   1. (1)

      Twice during the questioning of the Plaintiff, the Magistrate interrupted to place on the transcript observations which her Honour had made about the Plaintiff’s demeanour (shrugging arms [77] and repeatedly placing hands heavily on witness box [78] ).

   2. (2)

      On 6 September 2023 the Magistrate questioned the Plaintiff for approximately 19 minutes about her membership of the Wellington Daley Wiradjuri Aboriginal Corporation which culminated in the Magistrate “calling” for a document “signed and stamped” by the land council to prove the Plaintiff’s membership [79] . There was no apparent reason for this line of questioning.

   3. (3)

      During BA’s oral evidence, the Magistrate questioned him extensively. At one point her Honour asked him whether the Plaintiff had taught him protective behaviours when he was a child. Ms Roberts objected to the question on the basis that the same question had not been put to the Plaintiff whose evidence was long since complete. The Magistrate overruled the objection on the basis that an application for leave could be made if any prejudice flowed from BA’s answer [80] .

3. [345]

   There are some other minor particulars identified by the Plaintiff, like getting witnesses to cover up affidavits and turn off phones, which do not need to be addressed.

4. [346]

   These incidents do not add to (nor detract from) the findings above.

Summary on reasonable apprehension of bias

1. [347]

   The foregoing analysis has been structured to respond to the Plaintiff’s contentions and the Attorney-General’s submissions. It will be clear that there is overlap and accumulation between the incidents referred to and the submissions made in relation to them. When the Magistrate’s conduct of the Children’s Court Proceedings is viewed as a whole it is clear that a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the issues which the Magistrate is required to decide.

2. [348]

   I have not reached this conclusion lightly. The evidence to support it is strong.

3. [349]

   Without advocating a view, the Attorney-General has submitted that this is a finding which is open to the Court.

4. [350]

   My finding is expressed in terms of a fair-minded lay observer who is a hypothetical figure. The personal perspective of the mother of the boys, MK, is not strictly relevant to the conclusion. However, MK’s perspective is consistent with my conclusion. As set out at [90] above, MK instructed her lawyer that “she can see that the Magistrate does not like [the Plaintiff] and seems to have formed a view that [the Plaintiff] has done something to [MX]”. It will be recalled that MK supports the Plaintiff in the proceedings in this Court.

Discretion and relief

1. [351]

   Conducting proceedings when there is a reasonable apprehension of bias constitutes a jurisdictional error. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [26], Kiefel CJ and Gageler J said that an apprehension of bias is inherently jurisdictional in that it negates judicial power.

2. [352]

   In the face of jurisdictional error, the submissions of the parties and the Attorney-General fell short of a contention that the Court does not have a residual discretion to decline relief. Even if the Court does have a discretion to decline relief, the relief sought by the Plaintiff should be granted in this case.

3. [353]

   The Children’s Court Proceedings were commenced on 23 September 2020. They concern the permanent placement of two small boys, MX and BN. The first care plan was brought forward in November 2020. The Magistrate has already received ten days of evidence. The Magistrate’s outstanding requirements for the case will result in at least one further week of hearing days to be found amongst the Children’s Court busy lists and the legal representatives’ crowded diaries. Given that there is no allegation of actual bias, I have considered whether the interests of the boys in a speedy conclusion would be best served by permitting the Magistrate to continue.

4. [354]

   The parties are unanimous in their submissions to the contrary. As for the interests of the boys, the parties expressed a high degree of confidence that the Children’s Court Proceedings can be concluded more quickly before another magistrate even if the hearing has to start again. That confidence is founded on the Secretary’s uniquely extensive experience with applications for care orders and the practices and procedures of the Children’s Court. The confidence further comes from the submission, which I accept, that the time thus far spent in hearing the Children’s Court Proceedings has to a significant extent resulted from the interventions of the Magistrate. It may also be the case that dismissal of these proceedings will not finally quell the controversy if, upon the Magistrate making final orders one way or the other, an appeal is brought against those orders on the ground that there was a reasonable apprehension of bias. Such a situation would be intolerable, not least for the reason of the further delay it would cause the boys.

5. [355]

   Sight should not be lost of the fact that the parties who are united in seeking relief from the Court comprise the boys’ mother, NB’s father and MX’s psychological father and the Plaintiff. Guided by his statutory obligations to regard the safety, welfare and well-being of the boys as paramount, the Secretary agrees with the other parties.

6. [356]

   In addition to the interests of the boys, the matter which weighs most heavily in favour of the Court granting relief is the administration of justice. The determination of the Children’s Court Proceedings must be fair and must be seen to be fair. It would be contrary to the administration of justice to permit the Magistrate to continue to hear the case. The principle is illustrated by the submission by MK’s solicitor that MK “knows that this is not how this process is meant to work”.

7. [357]

   In those circumstances, I will grant the relief sought by the Plaintiff as set out in [5] above.

8. [358]

   In view of the conclusion I have reached on apprehended bias it is not necessary to consider whether the reasons given by the Magistrate are inadequate so as to constitute an error of law on the face of the record.

9. [359]

   I will nonetheless decide that issue given that the matter has been fully argued.

10. [360]

    I have described above at [98]-[108] the structure of the reasons given by the Magistrate and set out the concluding passage in which the Magistrate gave her Honour's reasons for refusing to disqualify herself. I have also set out the legal principles by which the adequacy of the reasons is to be determined.

11. [361]

    I accept the Attorney-General's submission that the standard required of the reasons in this case is higher than that which may be required for a judgment given ex tempore in a busy Local Court list. The Magistrate's reasons were set out in a reserved judgment given after an extended period and with the benefit of oral and written submissions: cf Heywood v Local Court of New South Wales [2024] NSWSC 1047 at [92] (Lonergan J).

12. [362]

    The mother, MK, took the labouring oar for this part of the case. She made the essential submission that the Magistrate has in fact provided no reasons for her Honour's determination of the application. The question which her Honour had to decide was whether a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the issues which the Magistrate is required to decide in the Children's Court Proceedings. The Magistrate’s reasons do not address that question. I accept that submission.

13. [363]

    There are four relevant parts to the reasons. First, the Magistrate has identified the nature and content of the Children's Court Proceedings. The Magistrate has also, rightly, observed that the proceedings are not adversarial and that the Magistrate may question witnesses under s 107 of the Statute. The Magistrate further identified the issue in the proceedings which was most relevant to the disqualification application, namely whether there is a risk of sexual harm to the boys in the care of the Plaintiff.

14. [364]

    Secondly the Magistrate has quoted passages from five authorities about apprehended bias. However the Magistrate has not made any statement about the application of any of the principles to the facts of this case.

15. [365]

    Thirdly, the Magistrate listed all the individual matters relied upon by the Plaintiff and the Secretary for the contention that a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the issues which the Magistrate is required to decide. The Magistrate has done so without comment or response, other than to observe repeatedly that Ms Martens' evidence has not been completed and that when her Honour questioned BA about what the Plaintiff had taught him as a boy, she did so on that basis that leave may be granted to recall the Plaintiff if necessary. Beyond that, the Magistrate has not addressed whether any of the listed matters might not support the Plaintiff's contentions and, if not, why not.

16. [366]

    Finally, the Magistrate has given the reasons set out at [108] above. The first thing to note about the reasons is that they cut across any implication that the Magistrate has applied the principles from the five authorities quoted by her Honour. From Webb v The Queen (1994) 181 CLR 41 and other authorities, the Magistrate quoted passages which prescribe the double might test, but the Magistrate has then expressly applied a different test about what a fair-minded lay observer "would" apprehend. The Magistrate quoted a passage from Chamoun v District Court of New South Wales [2018] to the effect that the test is objective, but has then stated subjectively that her Honour has not made any finding. Apart from the passage from Vakauta v Kelly (1989) 167 CLR 568 about delay in bringing the application, there is no apparent correlation between the authorities quoted by the Magistrate and the reasons given by her Honour for not disqualifying herself.

17. [367]

    Nor is there any apparent correlation between her Honour's reasons and the list of matters relied upon by the Plaintiff and the Secretary for the application. Apart from observing that the list is expansive and includes (unspecified) incidents dating back to the first day of the hearing, the Magistrate has not addressed any of the detail put forward by the Plaintiff and the Secretary. The Magistrate has simply stated the conclusion that there is nothing which would cause a fair-minded lay observer reasonably to apprehend that her Honour might not bring an impartial mind to the issues in the case. The reasons for that conclusion have not been revealed.

18. [368]

    Other than by generic references, the Magistrate has not addressed any of the matters specifically referred to in the foregoing part of this judgment, including the Magistrate's reaction to the Plaintiff's evidence about showering the boys or the evidence about talking to the boys about touching each other’s penis, the s 128 certificate, her Honour calling and questioning Ms Gordon, the interruption of Ms Robert's cross examination of Ms Watson, her Honour's questioning of Mr Perrin or her Honour’s dismissive treatment of Ms Smith (and Ms Roberts) throughout the hearing. Apart from the Plaintiff's evidence about showering the boys, each of these matters was included in the list of complaints which her Honour set out in her Honour’s reasons. The Magistrate's reasons for not accepting the submission that these matters might cause a fair-minded lay observer reasonably to apprehend that the Magistrate might not bring an impartial mind to the issues in the case are unknown.

19. [369]

    The Plaintiff submits that the Magistrate's reasons leave the parties with an insufficient understanding of how her Honour came to the conclusion which she did. I accept that submission.

20. [370]

    The Attorney-General submits that it is open to the Court to find that the Magistrate's reasons were adequate. By including a list of the particulars relied upon by the Plaintiff and the Secretary, the Magistrate's reasons demonstrate that her Honour understood the parties' submissions. It was therefore "implicit" in her Honour's rejection of the application that her Honour did not accept that a reasonable bystander might apprehend that her Honour has closed her mind on the question whether the Plaintiff has engaged in sexual abuse of the boys. The difficulty with this submission is that it does not address the fact that the Magistrate consistently expressed her Honour's conclusion in terms of what a reasonable bystander "would" apprehend.

21. [371]

    Further, the specific matters addressed in this judgment are complaints of substance. They each warranted an explanation as to why the Magistrate considers that it does not give rise to a reasonable apprehension of bias.

22. [372]

    The second ground for relief relied upon by the parties is also made out.

23. [373]

    Generally in support of the contention that the reasons given by the Magistrate were not adequate, the parties made a number of other submissions which may in truth relate to different errors of law which appear on the face of the record.

24. [374]

    MK submitted that the conclusion expressed in her Honour’s reasons show that the Magistrate did not apply the double might test. As set out above, that submission ought to be accepted. The submission is relevant to the adequacy of the reasons, but it may be that is more appropriately viewed as a separate error of law on the face of the record, namely the Magistrate's failure to ask the right question.

25. [375]

    The Plaintiff submitted that the Magistrate's statement that her Honour had not made any finding about whether the Plaintiff has sexually abused MX demonstrates that the Magistrate took in account an irrelevant consideration when deciding not to disqualify herself. The Magistrate was required to determine whether there was a reasonable apprehension of bias, to which question the absence of actual bias or pre-judgment is irrelevant.

26. [376]

    Further support for that submission comes from the fact that a large part of the Magistrate's reasons is taken up with the recitation of evidence which relates to the underlying factual issue, namely whether the Plaintiff has sexually abused MX. The Magistrate has not explained why this material has been included in the reasons. It may be that the Magistrate considers that a fair-minded lay observer would have been aware of this material and therefore would have viewed her Honour's conduct of the case as no more than a rigorous investigation of the facts. The difficulty with that explanation is that the Magistrate does not articulate it and it is not self-evidently correct. An alternative explanation is that the Magistrate has focussed on this material because the Magistrate has decided the disqualification application by reference to the underlying issue. The Magistrate has focussed on the issue which the administration of justice requires to be determined impartially and to appear to be so determined, rather than the reasonable apprehension of the process by which the issue is to be determined.

27. [377]

    In view of the conclusion that Ground 2 is to be upheld, it is not necessary to consider these discrete matters further. To the extent that they inform the adequacy of the reasons, they have been addressed above.

28. [378]

    At the commencement of the hearing before the Court on 1 September 2024 an application was made for orders under the Court Suppression and Non-publication Orders Act 2010 (NSW). Upon being satisfied that evidence would be adduced in the proceedings which would provide a basis for the orders, I made the orders with the consent of all the parties. These are my reasons for making the orders.

29. [379]

    A primary objective of the administration of justice is to safeguard the public interest in open justice as required by s 6 of the Suppression Act. The ground upon which the orders were made is that they were necessary to prevent prejudice to the proper administration of justice in circumstances where the proceedings in this Court concern the welfare of two small boys, namely MX and BN. The administration of justice requires that the parties have access to this Court to bring proceedings in which they wish to assert that there is a reasonable apprehension of bias on the part of the Magistrate. Given the nature of the factual matters being considered in the Children's Court Proceedings and thus necessarily arising in this Court, the suppression orders are necessary to give practical support to that access, as the concept of necessity is understood for the purposes of s 8 of the Suppression Act.

30. [380]

    For those reasons I made the following orders on 11 September 2024:

    1. (1)

       For the purposes of these proceedings, the plaintiff shall be referred to as "BW", the second defendant shall be referred to as "MK", and the third defendant shall be referred to as "BA", and the two children the subject of the proceedings in the Children's Court of New South Wales, Case number 2020/273771 shall be referred to as "MX" and "BN" respectively.

    2. (2)

       On the ground that it is necessary in the public interest for the order to be made and that the public interest significantly outweighs the public interest in open justice (s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW)), the Court orders that there be no publication of the name and of any information or matter that would tend to reveal the identity of the Plaintiff, Second Defendant, Third Defendant, or the two children who are the subject of the proceedings in the Children's Court of New South Wales, case number 2020/273771.

    3. (3)

       Order 2 applies throughout the Commonwealth for a period until both children who are the subject of the proceedings in the Children's Court of New South Wales, case number 2020/273771 attain the age of 25 years.

31. [381]

    On the substantive application, I make the following orders:

    1. (1)

       Pursuant to s 69 of the Supreme Court Act 1970 (NSW), quash the judgment of her Honour Magistrate Richardson of the Children’s Court declining to recuse herself from any further hearing of proceedings 2020/00273771.

    2. (2)

       An order in the nature of prohibition prohibiting her Honour Magistrate Richardson from further hearing proceedings 2020/00273771.

    3. (3)

       No order as to costs.