Santoro and Santoro (No.3) - [2009] FMCAfam 212

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SANTORO & SANTORO (No.3)

[2009] FMCAfam 212

PRACTICE & PROCEDURE – Application to disqualify Federal Magistrate from further hearing of the matter – reasonable apprehension of bias – division 12A proceedings.

Family Law Act 1975, ss.69ZN, 69ZQ, 69ZT

Johnson v Johnson [2000] 201 CLR 488
Vakauta v Kelly (1989) 167 CLR 568

Applicant:

MS SANTORO

Respondent:

MR SANTORO

File Number:

SYC 1574 of 2008

Judgment of:

Altobelli FM

Hearing date:

9 March 2009

Date of Last Submission:

10 March 2009

Delivered at:

Sydney

Delivered on:

10 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr Schonell

Solicitors for the Applicant:

Karras Partners Lawyers

Counsel for the Respondent:

Mr Richardson SC

Solicitors for the Respondent:

York Family Law

Counsel for the Independent Children's Lawyer:

Mr Barry

Solicitors for the Independent Children's Lawyer:

Ross A Clarke & Associates

ORDERS

The Applicant’s oral application to disqualify Federal Magistrate Altobelli from further hearing of this matter is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Santoro & Santoro is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYC 1574 of 2008

MS SANTORO

Applicant

And

MR SANTORO

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

Counsel for the applicant mother has asked me to disqualify myself from hearing the matter arising out of comments I made yesterday. The submission is that, in effect, certain comments I made were critical of the applicant mother and would create in the mind of a fair-minded lay observer a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the determination of the proceedings before me.
At the outset I record that no transcript of yesterday's proceedings is, to the best of my knowledge, available to Counsel and so the application that was made yesterday, and the submissions that were made by Counsel, were made in the absence of the transcript.
A transcript became available to me late this morning. The situation presents obvious difficulties to the parties and to a lesser extent to the Court and I have to balance up whether to postpone the decision but the circumstances of this case would make postponing the decision equally problematic.

Reasonable apprehension of bias

In any event, Counsel for the applicant mother submitted that a reasonable apprehension of bias would arise out of two comments I made yesterday. The first comment occurred at 11.45 am when after a short adjournment, I made the following comments: from page eight of the transcript at line 32:
FEDERAL MAGISTRATE: Mr Schonell, what's been the difficulty or the delay in formulating the mother's position in this case? It's hard to believe that with the long lead-in time we've had in this case that she hasn't been able to formulate her position.
It is said that the perception of bias, having made these comments, was especially accentuated by the circumstance that the respondent father had only provided an amended minute of his…

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: [2009] FMCAfam 212
Decision Date: 10 March 2009

CaseChat Overview and Summary

The case involves an application by the Applicant to disqualify Federal Magistrate Altobelli from further hearing the matter. The Applicant's application is based on the claim of bias against the Magistrate. The application was heard by the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the Magistrate's previous comments and actions demonstrated bias, warranting his disqualification. The Applicant argued that the Magistrate's comments during a previous hearing indicated a predisposition to rule in favour of the Respondent, which would require the Magistrate to recuse himself. The Respondent countered that the Magistrate's comments did not demonstrate bias and that the Magistrate was entitled to express his views on the matter.

The court found that the Magistrate's comments did not demonstrate bias. The court held that the Magistrate's comments were made in the context of a discussion about the legal principles that would apply to the case, and were not indicative of a predisposition to rule in favour of the Respondent. The court further held that the Magistrate's comments were not so extreme as to suggest that a fair-minded observer, having full knowledge of the facts, would conclude that the Magistrate might be biased. The court also noted that the Magistrate had not acted in a manner that was inconsistent with his duty to remain impartial.

Accordingly, the court dismissed the Applicant's application to disqualify the Magistrate. The court held that there was no basis for the Magistrate to recuse himself from the matter. The court also noted that the Applicant had not provided any evidence to support his claim of bias, and that the application was therefore without merit.

The court's decision to dismiss the application means that the Magistrate will continue to hear the matter. The Applicant's application to disqualify the Magistrate has therefore been unsuccessful.

Orders

Orders of the court

The Applicant’s oral application to disqualify Federal Magistrate Altobelli from further hearing of this matter 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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