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KABRA and SACHIN

KABRA and SACHIN

Case [2019] FCWA 212 27 September 2019

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: KABRA and SACHIN [2019] FCWA 212
CORAM: TYSON J
HEARD: 28 AUGUST and 23 SEPTEMBER 2019
DELIVERED : 27 SEPTEMBER 2019
FILE NO/S: PTW 3451 of 2017
BETWEEN: MR KABRA
Applicant
AND
MS SACHIN
Respondent

Catchwords:

FAMILY LAW - PRACTICE AND PROCEDURE – Apprehended bias – Where the father seeks that the Judge recuse herself – Application for recusal made after trial and final orders made – Where the husband has appealed the final orders made on the ground of bias and has been unsuccessful in his appeal - Where there is a pending application for enforcement of the final orders and application for re-appointment of the Independent Children’s Lawyer – Application for recusal dismissed - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Legal Aid WA

Case(s) referred to in decision(s):

Antoun v The Queen (2006) 224 ALR 51
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
Charisteas & Charisteas [2016] FCWA 106
Ding & Ding (2019) FLC 93-893
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Galea v Galea (1990) 19 NSWLR 263
Gambaro v Mobycom Mobile Pty Ltd & Ors [2019] FCAFC 144
Johnson v Johnson (2000) 201 CLR 488
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
XYZ Pty Ltd and Anor & Charisteas & Ors (2017) FLC 93-782

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kabra and Sachin has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act (Cth).

1The applicant father [Mr Kabra] seeks that I recuse myself. That application is opposed by the respondent mother, [Ms Sachin].

BRIEF BACKGROUND

2The father was born [in] 1976 and the mother was born [in] 1981. Both parents were born in India. The father is an [architect]. The mother is a full-time homemaker and parent.
3The parties married [in late] 2003 in Perth and commenced living together on 1 May 2004. The parties lived in India, [the Middle East] and Perth throughout their marriage.
4There is one child of the parties, [child X] [(“the child”)] born [in] 2010.
5Following the breakdown of the parties’ marriage, the parents were unable to agree on the parenting arrangements that were in the child’s best interests. As a result of a number of competing allegations, an Independent Children’s Lawyer was appointed for the child. [Dr N] was appointed as the Single Expert Witness.
6Child-related proceedings culminated in a trial before me on 10 September 2018. At that time,…

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 KABRA and SACHIN

Details

AGLC: KABRA and SACHIN [2019] FCWA 212
Case: [2019] FCWA 212
Decision Date: 27 SEPTEMBER 2019

CaseChat Overview and Summary

The case of KABRA and SACHIN involved a dispute between the father, Sachin, and the mother, Kabra, concerning the welfare of their child. The matter was heard in the Family Court of Australia. The primary issue that came before the court was whether the judge should recuse herself from the case due to an alleged apprehended bias. This application was made by Sachin after the final orders had already been made in the case, and he subsequently appealed these orders on the grounds of bias. The appeal was dismissed, and now a pending application for enforcement of the final orders and for the re-appointment of the Independent Children’s Lawyer necessitated the court to revisit the issue of bias.

The court needed to determine whether the application for the judge's recusal, made after the trial and final orders, was valid. The judge considered the timeliness of the application and the grounds upon which it was based. The court assessed whether there were any circumstances that would justify the judge's recusal despite the final orders already being made. It was critical to examine if the alleged bias was such that it could potentially affect the fairness of the proceedings. The court also needed to balance the need for finality in legal matters with the imperative of ensuring that justice is seen to be done.

In ruling on the application for recusal, the court held that the application was made out of time and did not meet the threshold for establishing apprehended bias. The court found that the final orders had already been made, and it would not be appropriate to grant the application for recusal at this stage. The appeal on the grounds of bias was dismissed, reinforcing the finality of the orders. The court dismissed the application for recusal and ruled that the case must proceed on its own facts, ensuring that justice is administered in a manner that upholds the integrity of the judicial process.

Orders