THEOPHANE & HUNT (RECUSAL) - [2014] FamCA 708

FAMILY COURT OF AUSTRALIA

THEOPHANE & HUNT (RECUSAL)

[2014] FamCA 708

FAMILY LAW – COURTS AND JUDGES – Disqualification – Where Applicant Father seeks the trial Judge recuse himself from the further hearing of trial on grounds of actual bias and apprehended bias – Whether trial Judge was actually biased or created a reasonable apprehension of bias – Where the court found no finding of actual bias or reasonable apprehension of bias – Where father’s application dismissed.

Family Law Act 1975 (Cth)

Helbig & Rowe (No.2) [2012] FamCAFC 175

APPLICANT:

Mr Theophane

RESPONDENT:

Ms Hunt

INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

FILE NUMBER:

CSC

1089

2007

DATE DELIVERED:

5 August 2014

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

5 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:	In person
COUNSEL FOR THE RESPONDENT:	Ms McMillan QC

SOLICITOR FOR THE RESPONDENT:

O’Reilly Stevens

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

IT IS NOTED that publication of this judgment by this Court under the pseudonym Theophane & Hunt (Recusal) 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 CAIRNS

FILE NUMBER: CSC 1089 of 2007

Mr Theophane

Applicant

And

Ms Hunt

Respondent

EX TEMPORE

RULING

By oral application made this morning, which is the second day of a trial estimated to take five days to conclude, the father sought an order that I recuse myself from the further hearing of the trial on the grounds of actual bias and apprehended bias. That application was opposed by the mother and the Independent Children’s Lawyer.
This litigation has an extraordinary and protracted history, which I have recounted on occasions when prefacing earlier decisions that I have made in these proceedings, and it is unnecessary to again traverse that history. Suffice to say that, in 2011 Benjamin J made orders after having conducted an interim hearing with cross-examination of witnesses in anticipation that that regime of orders may run for some two or three years. However in fact, it has transpired that the events that Benjamin J was contemplating would occur within those two or three years, namely the parties’ respective criminal trials, have not concluded. Particularly the father’s criminal trial on charges of rape and grievous bodily harm of the mother has yet even to commence, much less conclude.
The relationship between the parties was short, and their interactions with each other in the years after the breakdown of the relationship have been marked by conflict and hostility.
The circumstances of the parties in the first quarter of this year were in something of a state of flux, and ultimately when the matter was before me in May of this year, in the context of their competing applications for further interim parenting orders, the parties agreed that the preferable course was no longer to await the conclusion of the father’s criminal proceedings, but rather for the final hearing of this matter to be listed…

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 THEOPHANE & HUNT (RECUSAL)

Details

AGLC: THEOPHANE & HUNT (RECUSAL) [2014] FamCA 708
Case: [2014] FamCA 708
Decision Date: 5 August 2014

CaseChat Overview and Summary

The matter of *Theophane & Hunt (Recusal)* concerned an application for the recusal of Tree J from hearing proceedings in the Federal Court of Australia. The application was brought by the applicant, Ms. Theophane, against the respondent, Mr. Hunt. The core of the dispute revolved around allegations of apprehended bias on the part of the judge.

The primary legal issue before the Court was whether there were grounds to recuse Tree J from continuing to preside over the case. This required the Court to consider the test for apprehended bias in Australian law, specifically whether a fair-minded and informed observer, having considered the facts, would apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is to decide.

In determining the application, the Court applied the well-established principles governing recusal. It considered the nature of the allegations made by Ms. Theophane and assessed whether these allegations, viewed objectively, could lead to a perception of bias. The Court's reasoning focused on the need to maintain public confidence in the administration of justice and the importance of judicial impartiality. The Court found that the circumstances did not give rise to a reasonable apprehension of bias.

Consequently, the application for recusal was dismissed.

Orders