Fadel and Jarrah (No. 2) - [2013] FamCA 531

FAMILY COURT OF AUSTRALIA

FADEL & JARRAH (NO. 2)

[2013] FamCA 531

FAMILY LAW – COURTS AND JUDGES – Disqualification – Bias – Application for disqualification on grounds of perceived bias – Order refused

Family Law Act 1975 (Cth)

APPLICANT:

Ms Fadel

RESPONDENT:

Mr Jarrah

INDEPENDENT CHILDREN’S LAWYER:

Karen L Haga & Associates

FILE NUMBER:

PAC

2015

2011

DATE DELIVERED:

19 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

3 June 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Beach

SOLICITOR FOR THE RESPONDENT:

Mr Jarrah appeared on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Haga

Orders

That the father’s Application in a Case filed 25 March 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fadel & Jarrah (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 SYDNEY

FILE NUMBER: PAC 2015 of 2011

Ms Fadel

Applicant

And

Mr Jarrah

Respondent

The Proceedings

On 25 March 2013 I heard an Application in a Case filed by the father, Mr Jarrah, by which he sought various interim orders in contested parenting proceedings. On 3 April 2013 I made orders and provided a written judgment which should be read in conjunction with these reasons.
On 21 May 2013 the father filed a further Application in a Case by which he sought the following :
1.That the Hounourable Justice Stevenson be Disqualified from Hearing these Prceedings.
That application was listed for hearing on 28 May 2013. It was necessary, however, for the proceedings to be adjourned to 3 June 2013 because no interpreter was available to assist the father.
In support of his application of 21 May 2013 the father affirmed an affidavit on 3 May 2013. On the date of the hearing I enquired of the father whether he wished to add anything to the contents of his affidavit in support of his application. The father stated clearly that he did not wish to put anything further to that material.
I now set out in full the contents of the father’s affidavit affirmed on 3 May 2013:
1. The father has heard rumours around the Honour Justice Stevenson since last year from the ICL and a registrar at Parramatta Court and he is concerned about his case being heard in this court and before this Judge.
2.The father stated more than 10, times in 25/3/2013, to his Honour his objection about her personality but she decided to continue this conduct making the father more suspect about her and he feels because of this conduct the rumours are true.
3.The father’s entire Suspicions around the Judge’s personality he believed after the judge made her decision in 25/3/2013, in his application case and support affidavit that was filed in 13/3/2013. That is totally biased and aggravated the little children.
4.The applicants still…

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 Fadel and Jarrah (No. 2)

Details

AGLC: Fadel and Jarrah (No. 2) [2013] FamCA 531
Case: [2013] FamCA 531
Decision Date

CaseChat Overview and Summary

In Fadel & Jarrah (No. 2), the Family Court of Australia considered an application by the father, Mr Jarrah, seeking the disqualification of Justice Stevenson from hearing contested parenting proceedings. The application was supported by an affidavit from the father alleging perceived bias and a lack of impartiality on the part of the judge.

The central legal issue before the court was whether a fair-minded lay observer might reasonably apprehend that Justice Stevenson might not bring an impartial and unprejudiced mind to the resolution of the questions before her. This required the court to apply the established test for apprehended bias, which involves identifying the matters that might lead to a judge deciding a case other than on its merits and articulating the logical connection between those matters and the feared deviation.

Justice Stevenson reasoned that the father's affidavit failed to identify any objective basis for his suspicions and speculations regarding bias. The court found that the father had not established what it was said might lead the judge to decide the case other than on its merits, nor had he articulated a logical connection between his concerns and a feared deviation from impartial decision-making. The judge noted that the father's claims of external contact were unsubstantiated and that his disagreement with previous judicial decisions did not, in itself, demonstrate bias. The court concluded that the father had not advanced any reason why it should disqualify itself from hearing the matter.

The father's application for disqualification was dismissed.

Orders