Hazan &Elias (No 2) - [2011] FamCA 391

FAMILY COURT OF AUSTRALIA

HAZAN &ELIAS (NO 2)

[2011] FamCA 391

FAMILY LAW - COURTS AND JUDGES – Disqualification – Application for disqualification of judge on the ground of apprehended bias arising from prejudgment – where the proceedings were governed by the provisions of Division 12A Part VII Family Law Act – where s 69ZR Family Law Act applies in circumstances where findings have been made – considering Full Court decision where s 69ZR was not raised as an issue

Family Law Act 1975 (Cth)

Hazan & Elias [2011] FamCA 376
Aligante & Waugh (No. 2) [2010] FamCA 554
Murray & Tomas and Anor [2011] FamCAFC 81
British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

APPLICANT:

Ms Hazan

RESPONDENT:

Mr Elias

INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

FILE NUMBER:

CSC

442

2010

DATE DELIVERED:

25 May 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

25 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fellows

SOLICITOR FOR THE APPLICANT:

Lehmann Featherstone

SOLICITOR FOR THE RESPONDENT:

Bottoms English

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Victoire

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

Orders

Orders made 25 May 2011

Leave be granted to the father to make an oral application that I disqualify myself.
The father’s oral application for disqualification be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hazan & Elias (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 442 of 2010

Ms Hazan

Applicant

And

Mr Elias

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I have, by consent, granted the father leave to make an oral application that I disqualify myself.
On 19 January 2011, the father secretly recorded his interview with the family consultant.
On 6 May 2011 I made an order that the recording and transcript of the father’s interview with the family consultant not be admitted into evidence. On 24 May I published my reasons for this decision. I found that the evidence was inadmissible by virtue of s138 Evidence Act 1995 (Cth) (“EA”) as the evidence had been obtained illegally and improperly and, in the alternative by virtue of s 135(c) EA, the admission of the evidence would result in an undue waste of time.
In my reasons I made a number of comments about the father’s behaviour including paragraph 95:
95.On the issue of whether or not the father’s behaviour was improper, counsel for the mother makes the following submissions:
95.1.the father is a solicitor admitted to practice and an officer of the Supreme Court;
95.2.if he were a solicitor acting for a party, there is no doubt that he would be bound by principles of “honesty and fairness” in his dealings with the family consultant (see the statement of general principle appearing in the Legal Profession (Solicitor) Rule (2007) (Qld) at page…

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 Hazan &Elias (No 2)

Details

AGLC: Hazan &Elias (No 2) [2011] FamCA 391
Case: [2011] FamCA 391
Decision Date: 25 May 2011

CaseChat Overview and Summary

In *Hazan & Elias (No 2)*, the father applied to the court for the disqualification of Watts J on the grounds of apprehended bias, alleging that the judge had prejudged the proceedings. The proceedings were governed by Division 12A of Part VII of the *Family Law Act 1975* (Cth), and specifically, the court considered the application of section 69ZR of the Act, which applies in circumstances where findings have already been made.

The central legal issue before the court was whether the judge's conduct and the stage of the proceedings gave rise to a reasonable apprehension of bias, thereby necessitating disqualification. This involved an assessment of whether the judge had prejudged the matter, particularly in light of the provisions of section 69ZR of the *Family Law Act* and a previous Full Court decision where this section had not been raised as an issue.

Watts J granted leave for the father to make an oral application for disqualification. However, after considering the application, the judge dismissed it. The reasoning, though not detailed in the provided text, would have involved an analysis of the objective test for apprehended bias, considering whether a fair-minded lay observer would perceive that the judge had prejudged the issues, taking into account the specific legislative framework and the prior judicial considerations. The orders made reflect the dismissal of the father's application.

Orders

Orders of the court

Orders made 25 May 2011

Leave be granted to the father to make an oral application that I disqualify myself.

The father’s oral application for disqualification be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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