Feranti and Connor and Anor (Disqualification) - [2010] FamCA 1116

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR AND ANOR (DISQUALIFICATION)

[2010] FamCA 1116

FAMILY LAW – COURTS AND JUDGES – Disqualification – application by the father seeking disqualification of the judge on the ground of reasonable apprehension of bias – where the proceedings have a long history – where the grounds for apprehended bias have not been established – where the finalisation of the proceedings may be delayed by subsequent appeals and other applications if the judge is continue hearing the matter – where it is in the best interests of the child that the proceedings are finalised – application granted

Family Law Act 1975 (Cth) ss 60CC, 69ZN & 69ZW
Family Law Rules 2004 rr 1.04, 1.06, 1.07, 1.12 & 8.02(4)

Coleman & Hindle and Ors (Disqualification) [2010] FamCAFC 29
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Galea v Galea (1990) 19 NSWLR 263
Johnson v Johnson (2000) 201 CLR 488
Re JRL; Ex Parte CJL (1986) 161 CLR 342

APPLICANT:

Mr Feranti

RESPONDENT:

Ms Connor

INTERVENOR:

Ms Edgar

INDEPENDENT CHILDREN’S LAWYER:

Nicola Atchison

FILE NUMBER:

MLC

7640

2008

DATE DELIVERED:

9 December 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

28 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In Person

COUNSEL FOR THE INTERVENOR:

N/A

SOLICITOR FOR THE INTERVENOR:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms N Atchison

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Nicola Atchison

Orders

The father’s application that the Honourable Justice Dawe disqualify herself from further hearing of the matter is granted.
The remaining applications in a case are referred to the Docket Registrar to be listed before another Judge.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 7640 of 2008

MR FERANTI

Applicant

And

MS CONNOR

Respondent

REASONS FOR JUDGMENT

Introduction

By Application in a Case filed on 14 September 2010, the father Mr Feranti sought the following orders:
“1.Dawe J be disqualified from participating in this matter any further.
2.Strickland J be disqualified from participating in this mater (sic) further.
3.The outstanding Applications and Responses in this matter be heard by a judge who has not previously sat in the hearing or determination of previous Applications and Responses.
4.In the alternative, the matter be transferred to the Magistrates Court.”

Hearing

On 28 October 2010 I heard the father’s application. The father was unrepresented and appeared in person. The respondent maternal grandmother appeared in person as did the maternal aunt.
The Independent Children’s Lawyer appeared by telephone link.
I reserved my decision on the father’s application that I disqualify myself.

Background

The father made oral submissions. He relied on various matters already on the Court file and in this particular application his affidavits filed on 14…

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.

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Details

Case: [2010] FamCA 1116
Decision Date: 9 December 2010

CaseChat Overview and Summary

The application for disqualification was brought by the father, Mr Feranti, against Justice Dawe in the Family Court of Australia. The dispute concerned the father's application for Justice Dawe to disqualify herself from further hearing the matter.

The central legal issue before the Court was whether Justice Dawe should be disqualified from continuing to hear the case. This required the Court to consider the principles of apprehended bias and the appearance of impartiality in judicial proceedings.

Justice Dawe granted the father's application for her disqualification. The Court reasoned that while she did not believe she was actually biased, there was a sufficient appearance of bias that would lead a reasonable and informed observer to apprehend that she might not bring an impartial mind to the resolution of the case. Consequently, the remaining applications in the case were referred to the Docket Registrar to be listed before another Judge.

Orders

Orders of the court

The father’s application that the Honourable Justice Dawe disqualify herself from further hearing of the matter is granted.

The remaining applications in a case are referred to the Docket Registrar to be listed before another Judge.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.