DEMYAN & BEATTIE

[2012] FamCA 1140

FAMILY COURT OF AUSTRALIA

DEMYAN & BEATTIE [2012] FamCA 1140

FAMILY LAW - COURTS AND JUDGES – Disqualification – where the mother’s oral application for disqualification was granted – where there were previous findings that the mother was an unreliable witness – where a fair minded lay observer might reasonably apprehend bias in the determination of the father’s contravention application - Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488 applied

Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488.

APPLICANT: Mr Demyan

RESPONDENT: Ms Beattie

FILE NUMBER: NCC 2026 of 2009

DATE DELIVERED: 28 November 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 28 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Boyd Olsen Lawyers

Orders

1. I entertain the oral application made by the respondent mother to disqualify myself from these proceedings.

2. Justice Austin is disqualified from hearing any further applications by the parties in these proceedings.

3. The Application-Contravention filed by the applicant father on 24 March 2011 is adjourned for further procedural directions before Justice Cleary at 9.30am on Tuesday 11 December 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Demyan & Beattie (No 2)has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2026 of 2009

Mr Demyan

Applicant

And

Ms Beattie

Respondent

EX – TEMPORE

REASONS FOR JUDGMENT

1. Proceedings between the parties have been pending for some years, but all outstanding applications for substantive parenting orders have now been determined.

2. The only outstanding application is an Application-Contravention filed by the father on 24 March 2011. It is the applicant father’s request that I list that application for hearing before me on the first available date. The solicitor appearing on behalf of the respondent mother objects to that application being heard by me and makes an oral application for my disqualification.

3. The premise for the disqualification application is the perception of bias against the mother, which might arise from my findings in two separate earlier substantive hearings to the effect that the mother is an unreliable witness. Reasons were published, including findings to that effect, on both 9 March 2011 and 7 November 2012.

4. The applicant father opposes the disqualification application asserting that I would not be biased. I accept that submission and believe I would not actually be biased against either of the parties, notwithstanding findings made in the past. However, as was explained to the father, the question of bias is not just a matter of actuality but also a matter of perception.

5. The cardinal principal about disqualification for bias is well known, having been enunciated by the High Court in Ebner v The Official Trustee  in  Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488.

6. In those cases the High Court observed that a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should be both done and seen to be done, a requirement which reflects the fundamental importance of the tribunal being independent and impartial.

7. Having regard to my findings both in March 2011 and November 2012 to the effect that the respondent mother is an unreliable witness it is my view that the submission now made on her behalf for my disqualification cannot be logically resisted.

8. In determination of the Application-Contravention it is possible, if not likely, that the contraventions will be conceded by the respondent mother and it would be then necessary for her to establish a reasonable excuse for those contraventions.

9. In the establishment of any reasonable excuse it is highly likely it will be necessary for the Court to form a view about the reliability of the mother’s evidence concerning the reasons she advances for not being able to comply with the orders. In those circumstances, previous adverse findings about the mother’s reliability are likely to be perceived by a fair minded lay observer as bearing upon the ultimate determination of the judge hearing the contravention application.

10. Accordingly, I accede to the application for disqualification and therefore make the following orders.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 28 November 2012.

Associate: 

Date:  4 March 2013