FAMILY COURT OF AUSTRALIA
| SHELDON & WEIR (NO 2) | [2010] FamCA 449 |
| FAMILY LAW – COURTS AND JUDGES – Disqualification – Application for disqualification of judge on ground of apprehended bias – Where remarks complained of provided information disclosed by judge - Prudent judicial practice of disclosure of any possible interests, statements, associations, relationships discussed – Where applicant gave consent to composition of the Court – Consideration of the test in Ebner v Official Trustee in Bankruptcy - Waiver of right to object - Application for disqualification dismissed |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Australian Securities and Investment Commission v Reid [2005] FCA 1274 Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Goode and Goode (2006) FLC 93-286 Ebner v Official Trustee (2000) 205 CLR 337 In the Marriage of H (2003) 30 Fam LR 264 Johnson v Johnson (2000) 201 CLR 488 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 MRR v GR (2010) FLC 93-424 Smits v Roach [2006] 227 CLR 423 Strahan & Strahan (Disqualification) (2009) FLC 93-414 Vakauta v Kelly (1989) 167 CLR 568 Penfold v Penfold (1980) FLC 98-800 |
| APPLICANT: | Mr Sheldon |
| RESPONDENT: | Ms Weir |
| FILE NUMBER: | (P)NCC | 3259 | of | 2009 |
| DATE DELIVERED: | 3 June 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATE: | 15 April 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Graham |
| SOLICITOR FOR THE APPLICANT: | Slade Manwaring |
| COUNSEL FOR THE RESPONDENT: | Mr Duane |
| SOLICITOR FOR THE RESPONDENT: | Burke Elphick & Mead |
Orders
That the Application in a Case filed by the applicant on 23 March 2010 is dismissed.
That within three months the applicant pay to the respondent for reimbursement to Legal Aid New South Wales costs in the sum of EIGHT HUNDRED DOLLARS ($800) for this application.
In the event the applicant fails to fully pay the amount ordered above, interest on the amount outstanding will be due as calculated in accordance with the Family Law Rules 2004.
IT IS NOTED that publication of this judgment under the pseudonym Sheldon & Weir is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCC3259 of 2009
| MR SHELDON |
Applicant
And
| MS WEIR |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Mr Sheldon (“the applicant”) that I disqualify myself from further involvement in these proceedings. In the event that no other judge is available to determine the seven day hearing due to commence on 5 July 2010, directions are sought for a new trial.
The application is based upon an assertion that there is an apprehension of bias on my part. Specifically, the applicant contends that by reason of remarks I made during the first day of this Div 12A parenting proceedings, a fair minded lay observer might reasonably apprehend that I will…
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- AGLC
- Sheldon and Weir (No 2) [2010] FamCA 449
- Case
- [2010] FamCA 449
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the judge’s conduct gave rise to a reasonable apprehension of bias. This involved an examination of remarks made by the judge, which the applicant contended demonstrated bias. The Court was required to apply the established test for apprehended bias, considering whether a fair-minded lay observer, informed of all the relevant circumstances, would apprehend that the judge might not bring an impartial mind to the issues the judge was to decide.
Justice Ryan applied the principles established in *Ebner v Official Trustee in Bankruptcy*, focusing on the objective test for apprehended bias. The Court noted that the remarks complained of were made in the context of a prudent judicial practice of disclosing any potential interests, statements, associations, or relationships. Crucially, the applicant had previously given consent to the composition of the Court, which the Court considered as a waiver of any right to object on the grounds of apprehended bias that arose from the disclosed information.
Consequently, the Court dismissed the application for disqualification. The applicant was ordered to pay the respondent $800 for costs, with interest to accrue on any outstanding amount in accordance with the *Family Law Rules 2004*.
Orders
Orders of the court
1.
That the Application in a Case filed by the applicant on 23 March 2010 is dismissed.
2.
That within three months the applicant pay to the respondent for reimbursement to Legal Aid New South Wales costs in the sum of EIGHT HUNDRED DOLLARS ($800) for this application.
3.
In the event the applicant fails to fully pay the amount ordered above, interest on the amount outstanding will be due as calculated in accordance with the Family Law Rules 2004.
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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