RADER & RADER (No.3) - [2019] FCCA 2825

FEDERAL CIRCUIT COURT OF AUSTRALIA

RADER & RADER (No.3)

[2019] FCCA 2825

Catchwords:
FAMILY LAW – Application for recusal – application dismissed.

Cases cited:

Johnson v Johnson (2000) 201 CLR 488

Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337.

Applicant:

MS RADER

First Respondent:

MR RADER

Second Respondents:

MS HAINES & MR HAINES

File Number:

SYC 1641 of 2019

Judgment of:

Judge B Smith

Hearing date:

13 September 2019

Date of Last Submission:

13 September 2019

Delivered at:

Sydney

Delivered on:

13 September 2019

REPRESENTATION

Counsel for the Applicant:

Ms Mahony

Solicitors for the Applicant:

Bowral Legal

The First Respondent appeared in person

The Second Respondents appeared in person

Solicitors for the Independent Children's Lawyer:

Morton Family Lawyers

Ms Morton

ORDERS

The oral application made by the first respondent in Court that I recuse myself is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Rader & Rader (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1641 of 2019

MS RADER

Applicant

And

MR RADER

First Respondent

And

MS HAINES & MR HAINES

Second Respondents

REASONS FOR JUDGMENT

There is an oral application for me to disqualify myself on the basis of apprehended bias.
The principle is that a judge affected by actual bias would obviously be unable to comply with their judicial oath.
The next question, since that is not suggested, is whether there is a reasonable apprehension of bias here. The test for determining whether a judge should disqualify himself or herself is:
whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
I note Johnson v Johnson (2000) 201 CLR 488, Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337.
I note that, as I understand the position, an application for disqualification can be made without the filing of a formal motion, although it is preferable that it is provided, but it does not matter. The respondent is unrepresented. He is entitled to raise the issue. He raises issues in respect of the judgment on subpoenas. The reasons have not been settled yet, because I am hearing three or four matters a day. I know what those reasons were. I made comment about the fact that I felt some of Ms Lane’s arguments were not appropriate. I stand by those comments.
The fact that I found against an argument that s.126B of the Evidence Act 1995 (NSW) applies to Commonwealth proceedings, I do not think could in the mind of any reasonable person having the necessary knowledge, convey anything in terms of my ability to bring an unbiased mind to bear on the actual underlying facts in the case. A question of law is a question of law. I note that I did, in fact, ultimately accept a part of the submissions made about…

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 RADER & RADER (No.3)

Details

AGLC: RADER & RADER (No.3) [2019] FCCA 2825
Case: [2019] FCCA 2825
Decision Date: 13 September 2019

CaseChat Overview and Summary

This matter concerned an application for recusal made by the first respondent against Judge B Smith in the Family Court of Australia. The specific nature of the underlying dispute between the parties, Mr and Mrs Rader, is not detailed in the provided text, beyond the fact that it led to an application for the judge to disqualify themselves from hearing the case.

The sole legal issue before the Court was whether Judge B Smith ought to recuse themselves from presiding over the proceedings. This required the Court to consider the principles of apprehended bias and whether there were grounds to believe that the judge might not bring an impartial mind to the resolution of the case.

Judge B Smith dismissed the oral application for recusal. While the specific reasons for this dismissal are not elaborated upon in the provided text, the decision indicates that the Court found no basis to conclude that a reasonable apprehension of bias existed. The Court's reasoning would have involved an assessment of the circumstances presented by the first respondent against the established legal tests for recusal.

Consequently, the Court ordered that the oral application made by the first respondent for the judge to recuse themselves be dismissed.

Orders

Orders of the court

The oral application made by the first respondent in Court that I recuse myself 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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