Hartnett & Sampson

This matter came before Moore J concerning an application by the wife for the disqualification of the judge who had made findings against her credit in earlier proceedings. The dispute centred on the wife's alleged resistance to the father's relationship with the children and her attempts to marginalise his role, which the original judge had found to have potentially serious consequences for the children.

The primary legal issue before Moore J was whether the findings made by the original judge regarding the wife's credit and her parenting capacity necessitated a rehearing of the matter before a different judge. The wife argued that the findings, particularly those concerning her resistance to the father's contact and her attempts to marginalise his role, were so adverse to her credit that they required a fresh hearing by an unburdened judge to ensure impartiality. The husband, however, contended that the wife was precluded from seeking disqualification by law and by operation of estoppel, and that the apprehension of bias was unfounded.

Moore J considered the established authority on judicial impartiality, citing decisions from the High Court and the New South Wales Court of Appeal. The court accepted the wife's argument that where findings against a central witness's credit have been made, and further evidence is anticipated leading to factual disputes, a rehearing before another judge is appropriate to maintain the appearance of impartiality. The court noted that the original judge's findings, particularly those concerning the wife's resistance to supervised contact and her attempts to marginalise the father's role, were significant and had been made in difficult circumstances.

Consequently, Moore J ordered that the rehearing of the matter be expedited and heard by another judge. The matter was listed for mention before Le Poer Trench J for directions.