SALERNO & SALERNO

[2015] FamCA 774

FAMILY COURT OF AUSTRALIA

SALERNO & SALERNO [2015] FamCA 774

FAMILY LAW – COURTS AND JUDGES – Disqualification – Apprehension of bias—Application granted.

Family Law Act 1975 (Cth) s 33B

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63.
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48.

APPLICANT: Ms Salerno

RESPONDENT: Mr Salerno

INDEPENDENT CHILDREN’S LAWYER: Ms Soliman

FILE NUMBER: PAC 3648 of 2013

DATE DELIVERED: 16 September 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 1 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schroder

SOLICITOR FOR THE APPLICANT: Rafton Family Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Iuliano of Armstrong Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Soliman of Legal Aid NSW

Orders

1. I recuse myself from further hearing these parenting proceedings.

2. This matter is declassified from the Magellan protocol.

3. Pursuant to section 33B of the Family Law Act 1975 (Cth) the proceedings are transferred to the Federal Circuit Court at Parramatta to be listed on a date fixed by that Court.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3648  of 2013

Ms Salerno

Applicant

And

Mr Salerno

Respondent

REASONS FOR JUDGMENT

Introduction

1. In the course of parenting proceedings relating to B, an 11 year old child of the parties, application was made that I recuse myself on the basis of apprehended bias.

2. The application was made on behalf the father and supported by the mother and Independent Children’s Lawyer. The father’s legal representative indicated that he required reasons to be given even in the event that I disqualified myself.

3. I am of the view that it is appropriate for me to recuse myself from the further hearing in this matter as a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the question I am to determine due to information that I received in the course of the parties attempting to settle the matter.

Background

1. The proceedings relate to B, who is 11, one of five children of the parties’ marriage.

2. The parent’s relationship broke down in November 2012 after 21 years.

3. Originally there had been both property and parenting proceedings concerning B and another child of the marriage, but in January 2014 and on 6 May 2015, many of the matters in dispute were settled by the parties and Foster J made final orders.

4. The final orders of May 2015 included relevantly an order that the parents have equal shared parental responsibility for the two children of the marriage that the proceedings were concerned with, including B. Final orders were also made with respect to the living and parenting arrangements for the other child C.

5. In the 6 May 2015 orders, trial directions were also made with respect…