A federal court judge made several inappropriate comments during her questioning of a party, including “whoop-de-do” and “what happens at mother’s group stays at mother’s group”.
Having found Judge Anna Bertone erred in law in her dismissal of both limbs of a recusal application, the Federal Circuit and Family Court of Australia (FCFCOA) (Division 1) remitted a part-heard parenting proceeding for rehearing before a separate judge.
In his decision, Judge Andrew Strum found Judge Bertone made inappropriate comments and intervened during the questioning of a witness where no objection had been made by counsel.
In doing so, Judge Bertone erred in law in her application of the test for apprehended bias and the dismissal of the application on that basis, and denied procedural fairness to one of the parties.
“I consider that Her Honour’s decision is attended by sufficient doubt to warrant it being reconsidered on appeal and, by reason of the nature thereof, which goes to the integrity of the judicial process, that substantial injustice would result if leave were refused,” Judge Strum said.
The father in the proceedings used “many” examples from the transcript, including those he said indicated Judge Bertone “entered the arena and remained” there for extended periods of time in the “role of counsel”.
The mother said the transcript “clearly shows matters that raise serious questions as to fairness and apprehended bias”, and a fair-minded lay observer “could indeed feel there has been an unfairness to the father and also a lack of procedural fairness to the father and his legal team”.
In one example, Judge Bertone interrupted the cross-examination of the mother and put to the counsel: “You’re not objecting to this.” Judge Strum said but for the following “intervention and encouragement”, the mother’s counsel would not have objected to the question of concern.
In the same cross-examination by counsel for an independent children’s lawyer, the mother answered a question about alcohol intake by saying she would “go out with my mum’s group and we probably have five cocktails”.
“Ma’am, what happens at mother’s group stays in mother’s group,” the transcript recorded Judge Bertone saying in response.
In response to concerns about this comment, Judge Bertone said the High Court indicated she was “not required to sit mute or like a sphinx” and the fair-minded lay observer “apparently” would not consider “it was a joke”.
“That was an inappropriate, and most unfortunate, comment by the primary judge,” Judge Strum said.
“Not only did it convey, at least, an element of protection of the respondent by Her Honour, but it also concocted a sense of commonality between them, to the exclusion of the appellant.”
At one point during the proceedings, Judge Bertone intervened over what she indicated was a “humiliating photograph” of the mother to question why it had been attached to an affidavit.
“This is clearly when the parties are together. The baby is breastfeeding. The mother is having a drink. Whoop-de-do,” Judge Bertone said.
The comment was made in the absence of the father, who had already been cross-examined on this photograph, Judge Bertone said.
“In circumstances where objection had not been taken by counsel … it is difficult to understand why Her Honour saw fit to intervene, other than to voice her own personal outrage, in strong (and, indeed, inappropriate) terms,” Judge Strum said.
Judge Strum found that many of Judge Bertone’s questions went “beyond mere clarification” of questions asked by counsel or answers by the witness.
Similarly, Judge Strum said many of the interventions “went beyond controlling the proceedings, especially in circumstances where the cross-examiner had not yet pressed the witness for an answer or requested that Her Honour direct the witness to answer the question”.
There were also a number of “leading questions” put to the father.
In relation to the recusal application, grounded in issues of procedural fairness, Judge Bertone said the father was afforded an opportunity to give evidence by way of affidavit, had been cross-examined, and had the opportunity for re-examination, as well as to test the mother’s evidence.
Judge Bertone added there was nothing his counsel could point to that showed her conduct of the matter was procedurally unfair to the father.
Judge Strum said this was not the test.
The father correctly submitted that the powers available to Judge Bertone “in no way justified or negated” her judicial obligations to ensure procedural fairness and a fair trial.
While a judge is permitted to “ask questions of, and seek evidence or the production of documents or other things from parties, witnesses and experts”, it does not “derogate from or negate” an obligation to ensure a fair trial, Judge Strum clarified.
“The focus must be on how the power was exercised, rather than merely whether the primary judge had the power,” he said.
“When the conduct of the primary judge, over the first three days of the part-heard trial is considered cumulatively and globally, and not merely through the lens of Her Honour’s statutory powers, I consider (and, indeed the respondent concedes and the Independent Children’s does not dispute) that Her Honour misdirected herself and that the appellant was denied procedural fairness.”
The case: Spargo & Spargo [2025] FedCFamC1A 174.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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