Atcheson and Agar

[2017] FCCA 2800

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATCHESON & AGAR [2017] FCCA 2800

Catchwords:
FAMILY LAW – Children – disqualification – actual bias or apprehended bias.

Legislation:

Family Law Act 1975, Div.12A, ss.69ZN, 69ZQ, 69ZX

Evidence Act 1995

Cases cited:

Johnson & Johnson [2000] HCA 48

Kioa v West (1985) 159 CLR 550

Minister for Immigration and Multicultural Affairs’ ex parte Jia (2001) 205 CLR 507
Allesch v Maunz [2000] HCA 40
JRL;  ex parte CJL (1986) 161 CLR 342
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63
Batey-Elton & Elton (2010) 43 Fam LR 62
Green & Knowles [2010] FamCAFC 248

Applicant: MR ATCHESON

Respondent: MS AGAR

File Number: ADC 1775 of 2007

Judgment of: Judge Kelly

Hearing date: 6 October 2017

Date of Last Submission: 6 October 2017

Delivered at: Adelaide

Delivered on: 16 November 2017

REPRESENTATION

Counsel for the Applicant: Ms V Lindsay

Solicitors for the Applicant: Gallagher & Co

The Respondent:	In Person
Counsel for the Independent Children's Lawyer:	Ms A Horvat
Solicitors for the Independent Children's Lawyer:	Legal Services Commission of SA

ORDERS

1. The oral application of the father seeking an order that Judge Kelly disqualify herself from further hearing the matter is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Atcheson & Agar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1775 of 2007

MR ATCHESON

Applicant

And

MS AGAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. The father, Mr Atcheson, filed an Initiating Application on 9 February 2015, seeking interim and final parenting orders regarding the parties’ child X, born (omitted) 2002.  The mother is contesting the father’s application for primary care.  Following extensive interim hearings, the trial commenced before me on 27 March 2017. 

2. The trial has been adjourned part heard on four separate occasions during 2017, for various reasons. Some delays arose as a result of the trial process, but other delays were beyond the Court’s control.

3. The application now before the Court is the father’s oral application that I disqualify myself, on the basis of apprehended bias, or actual bias. That application was made by the father when the trial resumed on 6 October 2017.   The recusal application was ultimately supported by the Independent Children’s Lawyer.

4. For the reasons that follow, I decline to disqualify myself.  I conclude that the transcript of the trial, properly considered, would not cause “a fair-minded lay observer [to] reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide …” [1]

   [1] Johnson & Johnson [2000] HCA 48 at para.11

Background

1. It is useful to provide a brief overview of the current proceedings before the Court and the family dynamics which exist between the parents.  The parties’ relationship began in approximately 1995, but was “on again/off again” for some time. The mother’s older child, Mr T, was born on (omitted) 1997, but was removed…