Hannigan and Sorraw (No 2)

[2010] FamCA 843

FAMILY COURT OF AUSTRALIA

HANNIGAN & SORRAW (NO. 2) [2010] FamCA 843

FAMILY LAW – COURTS AND JUDGES – Disqualification

APPLICANT: Mr Hannigan

RESPONDENT: Ms Sorraw

FILE NUMBER: SYC 2143 of 2007

DATE DELIVERED: 22 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 22 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Rees SC

SOLICITOR FOR THE APPLICANT: York Family Law

COUNSEL FOR THE RESPONDENT: Mr Schonell

SOLICITOR FOR THE RESPONDENT: Moira Ryan Family Lawyers Pty Ltd

Orders

1. That the oral application of the father to disqualify Justice Cohen from hearing application for a stay filed 20 September 2010 is hereby dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2143 of 2010

MR HANNIGAN

Applicant

And

MS SORRAW

Respondent

REASONS FOR JUDGMENT

1. In this matter the husband has sought a stay after a judgment which I delivered on 13 September 2010 in which, it is fair to say, I have been highly critical of him as a parent and, essentially, found against his application.  In ordinary circumstances, one considers a stay application in the light of the findings that have been made in the judgment, both on the basis of the likelihood of the appeal succeeding and on the matters of law which must be considered on a stay application, but also, in children's case like this, on the ground of the child's welfare.  Thus, the findings in the judgment are critical to the issue of whether or not a stay should be granted.  Here, I have been asked to disqualify myself prior to the hearing of the stay application, something which was not done at the trial. 

2. The issues that I have found against the husband on were all clearly available at the hearing.  The father must have known, in my opinion, that the wife's case involved claims that he was unsuited as the principal parent and claims to base her ability to be allowed to travel with the child to America and live there on the ground of his unsuitability.  In those circumstances, he must have known whatever was necessary to know to base a stay application apart from knowing my findings.  I am not alleged to be actually biased, but to give the appearance of bias, in other words to create apprehension in the mind of a reasonable bystander who is appreciative of all the relevant matters that would create an impression of bias.

3. A reasonable bystander could not fail to appreciate that I could well make findings against the father, as I did in the judgment.  It is my understanding of the law, for reasons which clearly are derived from the principles behind what I have just said, that if one wishes to make an application based upon apprehended bias, it must be made at the earliest reasonably possible time.  One cannot wait to see what the result will be and he will make such an application if he does not get what he wishes, but will not do so if he gets what he seeks.  In those circumstances, what the father has done is wait until I have made my findings, something that any reasonable bystander would appreciate I would have to do; appreciation that I would have to choose in favour of one side’s relevant allegations rather than the other, although it is possible that I could find that I was not satisfied either way. Generally speaking, any reasonable bystander would understand that a judge, on confronted with the issues, is forced to determine them and could not do his duty without determining them.  In those circumstances, as it is now put before me that because I determined them I have shown that I am biased in relation to the stay application; an application which ought to be decided based upon my determinations, in part at least, I am of the view that a fair‑minded layman, who was appreciative of all of the relevant matters, would not reasonably apprehend that I had not brought an impartial and unprejudiced mind to the questions in issue. Such a bystander would appreciate that I have simply decided the issues in a manner which is unfavourable to the father and would understand that in a stay application, I would have to rely upon my findings, in part. Therefore, I am of the view that I should not disqualify myself and I shall refuse to do so.  That is the order I shall make.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 22 September 2010.

Associate:     

Date:              29 September 2010