ANDERSON & TAYBOR - [2012] FamCA 929

FAMILY COURT OF AUSTRALIA

ANDERSON & TAYBOR

[2012] FamCA 929

FAMILY LAW – DISQUALIFICATION – Whether the Judge should disqualify himself because of apprehended bias – Where Judgment and Final Orders were delivered by the Judge following a hearing in September 2009 in the Respondent’s favour – Consideration of the test in Ebner & Official Trustee in Bankruptcy - Whether the Applicant had waived her right to raise the issue of disqualification due to delay having regard to the matter of Strahan & Strahan – Application allowed in circumstances of the case

FAMILY LAW – COSTS – Applicant to pay costs thrown away of (a) the Independent Children’s Lawyer and (b) the father in two sums being (i) a specified amount to be placed in a controlled monies account, (ii) an amount as assessed on a solicitor and client basis

Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337
Rice & Asplund [1979] FLC 90-725; [1978] FamCA
Smits & Roach (2006) 227 CLR 423
Strahan & Strahan (Disqualification) (2009) FLC 93-414; (2009) 42 Fam LR 252; [2009] FamCAFC 204

APPLICANT:

Ms Anderson

RESPONDENT:

Mr Taybor

INDEPENDENT CHILDREN’S LAWYER:

Ms Stanford

FILE NUMBER:

PAC

5282

2008

DATE DELIVERED:

12 October 2012

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

12 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lucy

SOLICITOR FOR THE APPLICANT:

Accentro Legal

COUNSEL FOR THE RESPONDENT:

Mr Gersbach

SOLICITOR FOR THE RESPONDENT:

Matthews Folbigg Pty Ltd

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER:

Ms Stanford

Orders

That within three (3) business days of today the wife shall pay to Legal Aid New South Wales the sum of $5,040 for payment of costs of the Independent Children’s Lawyer.
That the mother shall within three (3) business days deposit in the trust account of the husband’s solicitors the amount of $15,818.51. That sum is to be held by that firm and to be retained in some form of controlled money account.
That the mother shall pay to the father, his costs on a solicitor and client basis in relation to her application filed on 15 October 2010, from the date of receipt of that application and to the conclusion of today’s hearing.
That the payment of that amount is to be made within fourteen (14) days of the issue of such certificate of assessment and that will entitle the solicitors for the father to remove that money from the controlled money account as specified and apply it to their costs.
That I list the matter before another Judge sitting in this Registry on such date as may be arranged or allocated by that Judge for a mention of that matter.
That I otherwise disqualify myself from any further hearing in the matter.
I note that I have read the material which has been put before me in this matter and I will attach a list of documents as an attachment to my reasons for Judgment.

IT IS NOTED that publication of this judgment by this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ANDERSON & TAYBOR

Details

AGLC: ANDERSON & TAYBOR [2012] FamCA 929
Case: [2012] FamCA 929
Decision Date

CaseChat Overview and Summary

This case involved an application by Ms Anderson (the mother) for the disqualification of Justice Collier of the Family Court of Australia from further hearing proceedings concerning her child with Mr Taybor (the father). The dispute originated from final orders made by Justice Collier in September 2009, which favoured the father regarding parental responsibility and the child's residence. The mother subsequently filed an application to vary these orders in October 2010, leading to a protracted legal process with multiple changes in legal representation for the mother. The application for disqualification was specifically pressed on the basis of apprehended bias.

The central legal issue before the Court was whether Justice Collier should disqualify himself due to apprehended bias, applying the test established in *Ebner & Official Trustee in Bankruptcy*. This test requires consideration of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions before them. A secondary issue concerned the mother's potential waiver of her right to raise disqualification due to delay, particularly in light of the repeated indications from her previous legal representatives that they did not object to the judge continuing to hear the matter, and the timing of the current application. The Court also addressed the consequential issue of costs.

Justice Collier acknowledged the test for apprehended bias, which involves identifying the source of the apprehension and articulating the logical connection to a feared deviation from impartial decision-making. The mother's argument centred on the perception that, having made a decision based significantly on expert evidence in 2009, the judge might be unlikely to depart from that view in a rehearing. While noting the delay and the previous lack of objection from the mother's prior legal teams, the judge referred to *Strahan & Strahan* for the principle that delay is not necessarily fatal to a disqualification application. Ultimately, despite personal misgivings and the late stage of the application, Justice Collier concluded that the mother should be entitled to rely on the view of a fair-minded layperson that he might not bring an open mind to the matter, and therefore disqualified himself.

Consequently, Justice Collier ordered that the mother pay the costs thrown away by the Independent Children's Lawyer and the father. These costs were to be paid in specific sums, with a portion for the Independent Children's Lawyer to be paid directly and a larger sum for the father to be held in a controlled monies account pending assessment on a solicitor and client basis. The matter was adjourned for mention before another judge.

Orders