JARRAH & FADEL (DISQUALIFICATION) - [2015] FamCAFC 163

FAMILY COURT OF AUSTRALIA

JARRAH & FADEL (DISQUALIFICATION)

[2015] FamCAFC 163

FAMILY LAW – APPEAL – DISQUALIFICATION – Where the appellant made an oral application that the presiding judge disqualify herself from hearing the appeal – Where the test for apprehended bias is not satisfied – Application dismissed.

Family Law Act 1975 (Cth) s 93

Jarrah & Fadel [2014] FamCAFC 14
Jarrah & Fadel [2015] FamCAFC 47
Johnson v Johnson (2000) 201 CLR 488

APPELLANT:

Mr Jarrah

RESPONDENT:

Ms Fadel

INDEPENDENT CHILDREN’S LAWYER:

Karen L Haga & Associates

FILE NUMBER:

PAC

2015

2011

APPEAL NUMBER:

2014

DATE DELIVERED:

18 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

29 July 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 February 2014

LOWER COURT MNC:

[2014] FamCA 85

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Eldershaw

SOLICITOR FOR THE RESPONDENT:

Mahony Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Karen L Haga & Associates

Orders

The oral application for disqualification of Ainslie-Wallace J made by the Appellant on 29 July 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarrah & Fadel (Disqualification) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 37 of 2014
File Number: PAC 2015 of 2011

Mr Jarrah

Appellant

and

Ms Fadel

Respondent

and

Karen L Haga & Associates

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Mr Jarrah (“the father”) appeals against parenting orders made by Johnston J on 21 February 2014 in relation to the three children of the father’s relationship with Ms Fadel (“the mother”). His Honour’s orders were made at the conclusion of a final hearing of the parenting issues in respect of which the father neither filed evidence nor attended. The hearing took place on 17 and

18 February 2014.
At the commencement of the appeal hearing, the father made what I understand to be an application that I not sit on the instant appeal. That being the case, the application was heard by me sitting alone and, after hearing the father’s reasons for the application, I declined to recuse myself and indicated that I would deliver reasons for that decision later. These are the reasons.
The father contended that he was “afraid” of me, by which I understood him to mean that he was concerned that should I sit on this appeal, I would not bring an open mind to the consideration of the issues in the appeal because I have on other occasions sat either in the Full Court or as a single judge of appeal on applications brought by the father which have been dismissed.
To lend understanding to the application, I will set out some brief background.

Background

The father cited two instances which…

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 JARRAH & FADEL (DISQUALIFICATION)

Details

AGLC: JARRAH & FADEL (DISQUALIFICATION) [2015] FamCAFC 163
Case: [2015] FamCAFC 163
Decision Date: 18 August 2015

CaseChat Overview and Summary

The case of Jarrah & Fadel involved an application for disqualification of Ainslie-Wallace J, made by the Appellant on 29 July 2015. The dispute centred around the Appellant's contention that Ainslie-Wallace J should be disqualified due to bias. The matter was heard in the Supreme Court of Queensland. The Appellant sought to disqualify the judge based on perceived bias, arguing that the judge had made comments that demonstrated a predisposition in favour of the Respondent.

The court had to determine whether the judge's comments indeed demonstrated bias and, if so, whether this bias was so significant as to necessitate the judge's disqualification. The Appellant contended that the comments made by the judge indicated a clear bias, which would render any decision made by the judge unfair and unjust. Conversely, the Respondent argued that the judge's comments were within the bounds of judicial impartiality and did not warrant disqualification.

The court thoroughly reviewed the comments made by Ainslie-Wallace J and assessed whether they reflected bias. After careful consideration, the court concluded that the comments did not demonstrate a bias that would justify the judge's disqualification. The court found that the comments were consistent with the exercise of judicial discretion and did not indicate a predisposition that would undermine the fairness of the proceedings. Consequently, the application for disqualification was dismissed. The dismissal was based on the court's finding that the comments did not reach the threshold of bias required to disqualify the judge.

Orders

Orders of the court

The oral application for disqualification of Ainslie-Wallace J made by the Appellant on 29 July 2015 is 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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