Chatterjee and Woodby-Chatterjee

[2018] FamCA 474

FAMILY COURT OF AUSTRALIA

CHATTERJEE & WOODBY-CHATTERJEE [2018] FamCA 474

FAMILY LAW – COURTS AND JUDGES – Bias – Application that the Court recuse itself by reason of apprehended judicial bias – Application dismissed.

DH Singh v DH Singh and Others (No 2) [2018] NSWCA 31
Re JRL; Ex parte CJL (1986) 161 CLR 342

APPLICANT: Mr Chatterjee

RESPONDENT: Ms Woodby-Chatterjee

INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

FILE NUMBER: SYC 3822 of 2013

DATE DELIVERED: 6 April 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 6 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M. Bridger

SOLICITOR FOR THE APPLICANT: Bricknell Legal

COUNSEL FOR THE RESPONDENT: Ms N. Obrart

SOLICITOR FOR THE RESPONDENT: G & D Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms E. Stolier

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

Orders

IT IS ORDERED THAT:

1. The application of the wife that I recuse myself from these proceedings is refused.

   AND THE COURT NOTED that the court will give brief reasons now and the court will elaborate in my Reasons for Judgment.

   AND THE COURT LATER NOTED THAT those are my brief reasons. I will elaborate thereon in my written judgment at the conclusion of the proceedings.

   AND THE COURT NOTED the oral application for costs made on behalf of the husband.

AND THE COURT DIRECTED THAT:

1. Any costs application from either side should be made in written form supported by proper evidence including as to quantum; in the form of a Case Application and that any costs application is to await the conclusion of the entire proceedings.

AND THE COURT LATER DIRECTED:

1. The hearing is adjourned part-heard before me to 10.00 am on Monday, 9 April 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chatterjee & Woodby-Chatterjee has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3822 of 2013

Mr Chatterjee

Applicant

And

Ms Woodby-Chatterjee

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

Brian Samuel & Associates

EX TEMPORE REASONS FOR JUDGMENT

1. The application of the wife that I recuse myself from these proceedings is refused.  I will give brief reasons now, and I will elaborate in my written reasons for judgment.  I refer to a decision of Gleeson J in the Supreme Court of New South Wales, DH Singh v DH Singh and Others (No 2) [2018] NSWCA 31. Inter alia his Honour said as follows:

   The test for recusal is whether a fair-minded layperson with knowledge of the matters relied upon by the applicant might reasonably consider that I might not carry out my judicial functions as a member of the court with an impartial and unprejudiced mind … The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an enquiry about actual bias.

2. The application of the apprehension of bias principle involves two steps.  The first is to identify what it is said might lead the judge to decide a case other than on its legal and factual merits; the second is to articulate the logical connection between the circumstances identified in that matter, and the apprehension that the case might not be decided on its merits.  Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension, and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided.  The question is not whether the judge had, in fact, prejudged an issue.

3. I am mindful that it is my duty to determine matters which come before me as a member of this court and also that it is my duty not to withdraw unless there are reasons which require me to do so.  As Mason J said in Re JRL; Ex parte CJL (1986) 161 CLR 342:

   Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to the suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge they will have their case tried by someone thought to be more likely to decide the case in their favour.

4. With that authority in mind, I make the following observations.  I consider that I did no more than inter alia the following:  draw attention to the potential consequences of parties making allegations of fraudulent misrepresentation or fraud; endeavour to ensure that the trial could be concluded within the allocated time, particularly having regard to the protracted history of the proceedings; allowed counsel for the wife a proper opportunity to prepare a response to the husband’s application for summary dismissal of aspects of her response.  Those are my brief reasons.  I will elaborate thereon in my written judgment at the conclusion of the proceedings.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 6 April 2018.

Associate: 

Date:  29 May 2018