Latest from Circus Side … Sal Vasta’s written judgment recast from the original oral version … Threat of imprisonment hits the cutting room floor … Family Court appeal judges regret having to admonish the Circus judge … Sigh … Another burdensome remitted hearing … Janek Drevikovsky reports  

The case was a family matter involving three children. The Crabmans, mother and father, had split-up. Parenting orders were in place, accompanied by a handy dose of “parental disharmony”. 

In January 2019, the mother upped sticks out of Brisbane, taking the children with her. Mr Crabman protested, and filed a “contravention application” with the Federal Circus. He said the mother had breached the parenting order 39 times, and applied to vary the parenting plan.

Sal gave his mighty judgment in February 2019, speaking ex temp as soon as the parties had finished submissions. After a long harangue, he mostly dismissed the father’s case. 

Mr Crabman, who was unrepresented at trial and on appeal, felt hard done by. Sal’s oral decision, he felt, was a masterclass in judicial bullying. He appealed, with claims including bias and breaches of procedural fairness. 

When the written decisions were published, lo and behold, the whole thing had been bowdlerised. The following stream of consciousness passages had been excised entirely:

“I will be making very clear to both parents that these are orders that I make and unlike orders that some other judges make, if there are breaches of my order, then people come back before me. 

And unless there are some very good reasons or the – obviously, depending upon the severity of the breach of the order, there really is only one place that people go if they breach my order, where they will get at least square meals a day, but there is not much else to recommend it.

And I have considered every other circumstance that I feel is relevant to the matter.”  

It didn’t stop there. The appeal judges found the original was little more than a bare statement of the orders, while the published decision actually gave reasons. 

Their Hons concluded that, although the revision of an ex temp decision is permitted, Sal’s hatchet job went beyond the pale. A judge can only edit his homework after the fact, according to Lord Justice Danckwerts, when corrections are needed “to give the real meaning”.

The appeal court reminded Sal of Quant & Bonde, another appeal case where Vasta’s ex post facto revisions were put through the shredder.  

To do justice to the appellant, the full court decided the case on Sal’s oral reasons, rather than the revised version. 

On that basis, there wasn’t enough to make out apprehended bias.

Sal had remarked, before judgment, that Mr Crabman’s failure to keep up phone contact with his kids was “quite delinquent … if not almost negligent”. But, without more, this didn’t show Sal prejudged the matter. 

However, the father was successful on his procedural fairness ground. At the start of the hearing, he told Sal he would be pushing on with his contravention application, alongside his application to vary the parenting order. 

Sal acknowledged the contravention application, but did not return to it at all during the proceedings. This violated rule 25B.04 of the Federal Circuit Court Rules. 

It was also “an unequivocal denial of procedural fairness”. The appellant father should have been given the chance to be heard on his contravention application.

This alone was enough to decide the appeal in Mr Crabman’s favour. But their Honours went on to consider the bullying ground – because “the father is upset about what he perceives as intimidating behaviour”.

The threat of imprisonment, their Honours said, was inappropriate. They reminded Sal of his other overturned judgments – Lysons & Lysons and Oswin & Oswin – where he was birched for making similar threats. 

“We regret needing to do so, but we repeat [that] speaking to litigants in these terms which can only undermine the communities’ trust in the administration of justice.”

With two grounds made out, their Honours allowed the appeal and remitted the matter to the Circus – for consideration by a different judge. 

They left Sal with this piece of long-faced advice: 

“We regret the burden that a remitted hearing places on the Federal Circuit Court and wonder whether some of the difficulties that have arisen with the reasons for judgment might have been avoided had the primary judge taken a little more time prior to delivering judgment. 

The parties put in a deal of effort so as to present well-crafted applications and affidavits. They took time off work to attend the Family Consultant for a family report and another two days off work to attend the hearing. And now they must do so again.” 

And here we are thinking that Vasta would be a reformed judge after being sent to a reeducation camp by Two Wigs Willy. 

His name does not appear in the appeal judgment and his written judgment at first instance is not anywhere published online. However, Justice Michael Kent let the name slip in another judgment allowing the parties to listen to the audio of Sal’s original spray.