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FATHER SEEKS TRIAL JUDGE BE RECUSED

Scollan & Allamby [2020] FCCA 2398 (31 August 2020)  

This case involves the father seeking the trial judge be recused  for allegedly being biased

Facts:  

Father’s application seeks that the trial judge be recused. In his affidavit he submits that the judge has demonstrated in clear and unambiguous terms his actual bias in his injustice, his lack of understanding of practice and procedure, his lack of understanding of evidence and his complete lack of comprehension for natural justice, procedural fairness and the Rules of Court  

The allegations appear to be related to the process by which the Court has handled his Application in a Case and the Court receiving into evidence the two Family Reports that have been prepared to date. He complains that the Court either failed to provide the report writer with proper and adequate directions as to the nature of the second report or failed to consider the content of the second Family Report, as to the subject matter that the report writer needed to address. He submits that the reports should have been rejected by the Court.  He further submits the Court ought to have either “redacted” the reports or rejected them on the basis that they “failed the rules of evidence or properly addressed the directions" provided by the Court.   

He submits the “Court erred in law and in practice by demanding that the applicant sign same and because the applicant refused to sign the Family Reports, the Court refused to hear the applicant in Court.”  

Issue: Should the trial judge be recused?  

Law:  

...a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.  

...the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.  

Analysis:  

There is no evidence to support this allegation. The Court is well aware that this is not trial by report and it has always been made clear that the father has the right to challenge the Family Reports.   

He complains that the Family Reports contain largely hearsay, are irrelevant, and contain unreliable and untruthful information which should not be introduced into the Court.  He does not say nor in his submissions point out what that was. If there is a concern about the evidence produced by way of affidavit or the Family Reports it is usual for the matter to proceed to trial where that evidence can be challenged by way of cross examination and if required the production of evidence to refute the claims made.  

Counsel for the Independent Children’s Lawyer submits that the father’s application consists of broad allegations which lack any particulars or substance.  This submission is echoed by Counsel for the mother. The court accepts these submissions  

Conclusion: The father’s Application is hereby dismissed. 

 

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