Honan and Nourse

[2007] FamCA 1690

FAMILY COURT OF AUSTRALIA

HONAN & NOURSE [2007] FamCA 1690

FAMILY LAW – COURTS AND JUDGES – Disqualification – Reasonable apprehension of bias – Application by the father for judge to disqualify himself – Judge delivered reasons in a previous trial between the same two parties approximately two years earlier – Findings as to the father’s violence in the relationship with the mother and relationships with other women – Judge made adverse findings about both the father and the mother but adverse views of the father were significantly greater than those made against the mother – Trial judge will need to determine whether there have been any further incidents of violence directed by the father to the mother, his own mother or any other women in his life since the time of the previous trial – Consideration of the criteria set out by Hayne J in MIMA v Jia (2001) 205 CLR 507 at para 185 – Judge to disqualify himself

Family Law Act 1975 (Cth)

Registrar of the Supreme Court of South Australia v Moore-McQuillan [2007] SASC 292
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Johnson v Johnson (2000) 201 CLR 488
MIMA & Jia (2001) 205 CLR 507

APPLICANT: Mr Honan

RESPONDENT: Ms Nourse

INDEPENDENT CHILDREN’S LAWYER: Mr Pickhaver

FILE NUMBER: ADF 4692 of 2001

DATE DELIVERED: 5 September 2007

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 5 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Read

SOLICITOR FOR THE APPLICANT: Dixon Gallasch

COUNSEL FOR THE RESPONDENT: Mr Treadrea

SOLICITOR FOR THE RESPONDENT: Jo-Anne N Milen & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Pickhaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

Orders

1. I disqualify myself from the further hearing of the trial proceedings.

2. I adjourn the proceedings for consideration as a primary listing at the earliest opportunity and refer the matter to the Listings Manager.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4692  of 2001

MR HONAN  

Applicant

And

MS NOURSE  

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter was originally listed to commence as a trial before me today.  Upon realising that I had, only a little over two years ago, delivered reasons after a 7 day trial in this same matter, I listed it for directions before me on 28 August 2007.  As a consequence of information provided at that time, namely as to the unavailability of Dr M to give evidence if the trial proceeded this week, the trial listing for this week was vacated.  It was agreed though that there were a couple of points that remained for my determination.  

2. The first was whether or not I ought to be disqualified from hearing the further trial of these proceedings and then, if as has developed today by agreement, I was of the view…