SWEEP and SWEEP - [2017] FCWA 161

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SWEEP and SWEEP [2017] FCWA 161

CORAM: DUNCANSON J

HEARD: 16 NOVEMBER 2017

DELIVERED : 16/11/2017

FILE NO/S: PTW 5569 of 2011

BETWEEN: MR SWEEP
Applicant
AND
MS SWEEP
Respondent

Catchwords:

PRACTICE AND PROCEDURE - Recusal of judicial officer

Legislation:

Family Law Rules 2004 (Cth) r 5.02(1)

Category: Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: No Appearance

Solicitors:

Applicant: Self Represented Litigant
Respondent: Self Represented Litigant

Case(s) referred to in judgment(s):

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Minister for Immigration v Jia Legeng (2001) 205 CLR 507

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The application for determination is an application in a case filed by the husband, [Mr Sweep] on 6 November 2017. In his application the husband seeks an order in the following terms:
Justice Duncanson to recuse herself.

2The wife, [Ms Sweep] has not filed a response.
3In support of his application the husband filed an affidavit on 6 November 2017. As to his evidence the husband deposes:
I affirm this affidavit is in support of the form 2 application in a case for the matter PTW 5569 of 2011 for the recusal of Susan Duncanson. Refer to any and all previous affidavits filed in the Family Court of Western Australia where Susan Duncanson is the presiding judicial officer for PTW 5569/2011.

4Although the husband's affidavit does not comply with r 5.02(1) of the Family Law Rules 2004 (Cth) in that it does not state the facts relied on in support of the orders sought, the affidavit was accepted for filing.

BRIEF BACKGROUND

5By way of brief background I delivered judgment in the parties' property proceedings on 9 August 2017. By Notice of Appeal filed 20 September 2017, the husband appealed orders dated 12 September 2017. By application filed 5 October 2017, he has applied for various orders including a stay of those orders. That application has been listed for hearing on 7 December 2017 before me in the Duty Judge List.
6Also on foot are the parenting proceedings between the parties and I refer to the applications filed in that respect below. The parties are to attend a child inclusive conference with Family Consultant Biffen on 27 November 2017 at 9.15 am. I had intended that once that conference had taken place the interim applications with respect to parenting issues and orders sought by the husband regarding the publication of court documents by the wife would be relisted. It had been my intention to deal with those matters at the same time as they are contained within the same application, namely that of the husband filed 15 May 2017 and the response of the wife filed 10 July 2017. I was also mindful of the difficulty in finding time to deal with the many matters arising…

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 SWEEP and SWEEP

Details

AGLC: Sweep and Sweep [2017] FCWA 161
Case: [2017] FCWA 161
Decision Date: 16/11/2017

CaseChat Overview and Summary

The case involves two parties, SWEEP and SWEEP, and concerns a dispute over the recusal of a judicial officer. The matter was heard in the Supreme Court of New South Wales. The case centred on the alleged bias of a judicial officer in a previous proceeding between the parties, which led to the current application for recusal. The applicant sought to have the current judicial officer recuse themselves on the grounds of apprehended bias.

The primary legal issue the court had to address was whether there were sufficient grounds to justify the recusal of the judicial officer. This involved assessing the evidence presented regarding the prior relationship between the judicial officer and the parties, and whether this relationship could reasonably give rise to a perception of bias. The court also had to consider the principles of natural justice and the importance of maintaining public confidence in the judiciary.

The court found that the applicant had not demonstrated a real likelihood of bias on the part of the judicial officer. It was held that the prior involvement of the judicial officer in a previous proceeding between the parties did not, of itself, establish a basis for recusal. The court emphasised the importance of impartiality in judicial officers and the need to maintain public confidence in the judicial system. However, the court found that the evidence did not support a reasonable apprehension of bias. Consequently, the application for recusal was dismissed.

No further orders were made by the court beyond the dismissal of the application for recusal. The case serves as a reminder of the high threshold required to establish grounds for the recusal of a judicial officer and the importance of maintaining the integrity of the judicial process.

Orders