Medapati and Revanka (No 3) - [2017] FamCA 1184

FAMILY COURT OF AUSTRALIA

MEDAPATI & REVANKA (NO. 3)

[2017] FamCA 1184

FAMILY LAW – PRACTICE AND PROCEDURE – Application for recusal – Where the Respondent sought to adjourn the hearing of a recusal application to obtain further evidence and the application was dismissed – Where the Respondent sought for the judge hearing the matter to recuse himself – Where the Respondent alleged actual bias on behalf of the judge – Where the application is dismissed.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Wentworth v Rogers [2002] NSWSC 1198

APPLICANT:

Ms Medapati

RESPONDENT:

Mr Revanka

FILE NUMBER:

BRC

2961

2016

DATE DELIVERED:

15 May 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

15 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Balzamo

SOLICITOR FOR THE APPLICANT:

Hunter Solicitors

THE RESPONDENT:

In Person

Orders

The respondent husband’s application to adjourn his application for the Judge to recuse himself, is dismissed.

The respondent husband’s application for the Judge to recuse himself is dismissed.
Judgment in relation to the applicant wife’s Application in a Case filed 11 May 2017 is reserved to a date to be advised.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2961 of 2016

Ms Medapati

Applicant

And

Mr Revanka

Respondent

EX TEMPORE REASONS FOR JUDGMENT

On 18 April 2017, in proceedings that were commenced in 2016, I heard and determined some competing interim applications in property adjustment proceedings and parenting Orders proceedings as between the husband and wife in this matter. On that day the wife was represented by a firm of solicitors who are on the record currently representing her, namely Hunter Solicitors and Mr Balzamo of counsel. The husband was represented by Mr Kilmartin, solicitor from the firm Adams Wilson. The wife was present in court that day and the husband, who was out of the country at the time, attended the proceedings by way of a telephone connection between the courtroom and wherever he was located, which at the time I understood was somewhere in State X in the United States of America.
On that day because the husband was represented, he was told that he would not be able to speak to the Court through the phone but that his solicitor, Mr Kilmartin, would be…

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.

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Details

Case: [2017] FamCA 1184
Decision Date

CaseChat Overview and Summary

In *Medapati & Revanka (No 3)* [2017] FamCA 1184, the Family Court of Australia considered an application by the respondent husband for the presiding judge to recuse himself. The dispute arose in the context of property adjustment and parenting proceedings between the husband and wife, who were Malaysian citizens residing in Australia. The husband alleged actual bias on the part of the judge, stemming from a comment made during a previous hearing on 18 April 2017 concerning the husband's investment acumen in relation to the parties' financial position. The husband also sought an adjournment to obtain a transcript of the previous proceedings to support his recusal application.

The primary legal issues before the court were whether the judge should recuse himself due to alleged actual bias, and whether the husband's application for recusal should be adjourned to allow him to obtain a transcript of the prior hearing. The court was required to determine if the comment made by the judge constituted actual bias or, more relevantly, if it would lead a fair-minded and informed observer to apprehend that the judge might not bring an impartial mind to the resolution of the case.

Justice Forrest dismissed the husband's application for an adjournment, finding that the husband had sufficiently articulated the specific words he attributed to the judge and that the judge was aware of the context and content of his remark. Applying the principles established in *Johnson v Johnson* and *Ebner v Official Trustee in Bankruptcy*, the court considered the test for apprehended bias, which requires a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the decision. The judge reasoned that his comment, made in response to the husband's own assertions about his investment skills and the parties' financial position, was a robust testing of argument rather than evidence of prejudgment or partisanship. The judge concluded that a reasonable observer, crediting the judge with the professional capacity to discard irrelevant and prejudicial matters, would not apprehend bias.

Consequently, the respondent husband's application for the judge to recuse himself was dismissed. The court also noted that judgment in relation to the applicant wife's separate Application in a Case filed on 11 May 2017 was reserved.

Orders