Federal Circuit Court judge’s ‘cruel, humiliating’ conduct results in retrial
A federal judge’s “rude” conduct towards a Queen’s counsel and a solicitor “amounted to an abuse of power” which forced a retrial amid concerns that not doing so would be allowing the integrity of the justice system to be undermined.
During a three-day parenting and property settlements order trial, Federal Circuit Court judge Guy Andrew was found to have engaged in “cruel, humiliating” conduct towards the father’s Queen’s counsel and solicitor. The conduct raised an apprehension of bias and failed to afford the father a fair trial, forcing an appeal approval for a retrial.
It was contended for the father that almost from the outset, Judge Andrew was “critical, dismissive, sarcastic and rude” to Graeme Page QC and Michael Dwyer. In requesting that the appeal be squashed on the grounds that the behaviour was not directed solely at the father, opposing counsel agreed it was “forceful” and “dogmatic”.
“[Judge Andrew’s] cruel, insulting, humiliating and rude interactions about the father’s Queen’s [counsel] and his solicitor amounted to an abuse of power of his position and, in our view, must be redressed by allowing the appeal lest the integrity of the judicial system be undermined,” the Family Court of Australia judgement found.
As well as finding objections towards the standard of preparation and the presentation of the father’s case, Judge Andrew took issue with Mr Page’s professionalism, the way he dressed and his demeanour. His honour also criticised Mr Page for not standing at the same time as counsel for the mother was making a submission and for not bowing.
The Family Court found the “oddest exchange” occurred on the third day of the hearing when the counsel for the mother indicated his name and it came time for Mr Page.
Mr Page: “Page, your [honour]. I appear for the ---"
Judge Andrew: “Sorry – you’re who?”
Mr Page: “Page.”
Judge Andrew: “Is there anything else that I need to know about you?”
Mr Page: “No, I --- I appear for the [father].”
Judge Andrew: “No, no. Is there anything else I need to know about you?”
Mr Page: “[Queen’s counsel].”
Judge Andrew: “Thank you very much. I thought we got through that on the first day. That’s a further amplification of your behaviour. Just continues…”
Shortly afterwards, a document was handed to Judge Andrew which set out the agreed facts, to which he said: “I see we’re able to identify ourselves properly on documents.”
The Family Court found on a number of occasions, Judge Andrew objected to Queen’s counsel “although it is difficult to understand quite what the problem was”. The Family Court also noted that Mr Page was also left unsure about his supposed transgressions.
The criticisms of Mr Page were made with oblique terms “that’s a further amplification of your behaviour”, “you’re running very close” and “you know exactly what you did”.
The proceedings on the third day did not start off well. Judge Andrew made a comment about Mr Page’s appearance and, after an adjournment, Mr Page requested leave for his withdrawal so that Mr Dwyer could take over. His conduct then “worsened”.
“The primary judge’s treatment of and conduct towards the father’s solicitor was such that it could bear no description than taking inappropriate advantage of the undoubted power imbalance that exists between the judge and the lawyer,” the court found, noting the opposing counsel said it amounted to bullying by Judge Andrew.
The Family Court said it was apparent that much of the conduct was “couched” in rude and intemperate language. He seemed to find parts of Mr Dwyer’s argument had faults that were not clear to Mr Dwyer at the time or the Family Court.
Judge Andrew: Well, tell me what [‘just’] means.”
Mr Dwyer: “It means just.”
Judge Andrew: “Don’t be impertinent. I’ve asked you what does it mean?”
Mr Dwyer: “What does --- what does ‘just’ mean?”
Judge Andrew: “Don’t ask me the question that I’ve asked you.”
Mr Dwyer: “Your [honour], I don’t ---”
Judge Andrew: “Please, don’t insult my intelligence, Mr Dwyer.”
Mr Dwyer: “I’m not insulting you. Your [honour], I just wanted ---”
Judge Andrew: “There we go again. What does it mean?”
Mr Dwyer: “Your [honour], may I start again, please?”
Judge Andrew: “No. It doesn’t mean anything to me. Don’t look askance, Mr Dwyer. On the record I will note your demeanour, looking away, looking down.”
The Family Court found that the primary judge’s interventions could “not be regarded” as justified even if some delay or inconvenience was caused by the father’s counsel.
“The tone, nature and ferocity of his [honour’s] comments could not be seen as justified, and in our view resulted in the father not receiving a fair trial and raised identification apprehended bias. No matter what the father’s case was, it would be rejected,” the court said.
Judge Andrew: “How old are you?”
Mr Dwyer: “I’m over 60, your [honour].”
Judge Andrew: “Right. How long have you been in this game, Mr Dwyer?”
Mr Dwyer: “25 years.”
Judge Andrew said: “You’ve not been of any assistance to me at all. All you’ve done is waste the court’s time because of, effectively, your lack of preparation and your character. You need to do something about that, Mr Dwyer. Been keen to talk so far. For the record, Mr Dwyer is standing dumb.”
The retrial was ordered back to the Federal Circuit Court for rehearing by a judge other than Judge Andrew. The Family Court said it would also be appropriate for the federal Attorney-General to authorise payment under the act of the costs in the appeal.
This judgement, and further examples of the conduct, can be found on Austlii: Adacot & Sowle  FamCAFC 215 (28 August 2020)