CERWIN & CERWIN

[2019] FCCA 3184

FEDERAL CIRCUIT COURT OF AUSTRALIA

CERWIN & CERWIN [2019] FCCA 3184

Catchwords:
FAMILY LAW – Application for disqualification – nature of bias and pre-judgment – legal principles applicable – expression of interim views in relation to issues of unacceptable risk for a child and whether consideration should be given to child spending time with person alleged to have sexually abused child – matters to be considered – application dismissed.

Legislation:

Family Law Act 1975 (Cth), s.69ZN

Cases cited:

Johnson v Johnson (2000) 26 Fam LR 627

Applicant: MS CERWIN

Respondent: MR CERWIN

File Number: ADC 4232 of 2012

Judgment of: Judge Brown

Hearing date: 3 October 2019

Date of Last Submission: 3 October 2019

Delivered at: Adelaide

Delivered on: 3 October 2019

REPRESENTATION

Counsel for the Applicant: Ms Lindsay

Solicitors for the Applicant: Harry Alevizos

Counsel for the Respondent: Mr Dillon

Solicitors for the Respondent: Carlin Lawyers

ORDERS

1. The oral application for disqualification made 3 October 2019 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4232 of 2012

MS CERWIN

Applicant

And

MR CERWIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. The reasons for judgment were delivered orally following an oral application for disqualification, on the basis of pre-judgment, which was made part way through the final hearing of a case concerning issues of sexual abuse.

2. The case has now proceeded to judgment and this issue referred to in the published reasons.  In these circumstances, it is appropriate that the reasons be transcribed and released with the substantive judgment.

3. Headings have been added and grammatical errors and ill-felicities of expression corrected.

Legal principles applicable

1. The test to be applied in determining whether a judicial officer is to be disqualified by reason of appearance of bias from proceeding to hear a matter was stated by the majority of the High Court in the case of Johnson & Johnson.[1]  The Court said as follows:

   “The test to be applied in Australia in determining whether a Judge is disqualified by reasons of the appearance of bias, which, in the present case, was said to take the form of prejudgment, is whether a fair-minded lay observer might 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]  Johnson v Johnson (2000) 26 Fam LR 627 at [11]

2. Accordingly, the test is an objective one and it is based on a person who is fair-minded and who is apprised of all the relevant facts and circumstances in the case concerned.  It is not therefore the opinion of counsel for a party or a party themselves whether they individually or jointly think that there is some level of bias.  The test is based on the interests of justice. 

3. If fair-minded people either perceive or suspect that a court has a preconceived notion of the…