Mcphee Lawyers


05 September 2016

Judicial bias: The moral to the story


Three of the 24 decisions of the Full Court of the Family Court released in August 2016 consider whether a judicial officer should be, or should have been, disqualified from determining a matter by reason of bias.

To succeed, all three appellants were required to show that:

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

Why did all three appellants fail?

In the first case of Forster & Forster [2016] FamCAFC 143 the appellant husband considered that the trial judge was biased because (amongst other things):

  1. The trial Judge failed to take into account “the respondent’s partner as a financial resource” and “failed to consider the respondent’s superannuation as a financial resource to include in a total of assets”; and that
  2. The trial Judge’s “demeanour” demonstrated his “prejudices” and that His Honour “yelled in a loud tone of voice”.

The Full Court commented at paragraph 178 “looking through at the further detail provided in the Notice of Appeal, his [the appellant’s] reasons for this challenge are no more than that he disagrees with the decision”.

The Full Court further stated at paragraph 186 “it is open to a litigant to complain that a trial Judge has demonstrated bias in the Reasons for Judgment. However, to succeed in such a claim far more has to be shown for example that the trial Judge accepted the evidence of one party and rejected the evidence of the other party, or that the trial Judge made a finding the complaining party does not like, or does not accept”.

In the second case of Bowcott & Welling [2016] FamCAFC 144 the mother appealed against the Orders of His Honour Judge Myers. The appellant was of the view that Judge Myers was biased because of comments made by His Honour at the start of the hearing. Referring to the Amended Response filed by the mother, His Honour made the observation that the Affidavit filed by the mother seemed “incongruent” with the Orders she sought. The appellant mother’s claim was therefore that Judge Myers had prejudged her matter and was biased.

The Full Court disagreed with the appellant mother and stated at paragraph 33: “the allegations the mother made were grave, and were arguably difficult to reconcile with the orders being sought. However, this does not suggest his Honour necessarily thought the mother’s evidence was not to be believed”.

The appellant mother also considered that His Honour’s interruption of the cross examination of the father was excessive and/or inappropriate and demonstrated bias.

The Full Court again dismissed this argument at paragraph 44 stating: “while we doubt the wisdom of his Honour intervening in the way he did, we are not persuaded that his conduct would cause the observer to apprehend that he had formed a view about the way in which the matter ought to be decided”.

In the third case of Pencious & Searle [2016] FamCAFC 150 the husband alleged bias on the part of Her Honour Chief Justice Bryant in circumstances where he had made a written complaint to the Chief Justice concerning the conduct of an officer of the Family Court. At the time of the appeal before the Chief Justice that complaint had not yet been resolved.  He asserted that Chief Justice was aware of the complaint and that a fair minded, reasonable observer may apprehend that the Chief Justice could not bring an impartial and unprejudiced mind to the appeal proceedings.

At paragraph 40, in dismissing the appeal, the Chief Justice stated: “There is no basis for the husband to claim that, because he has made a complaint which has not been investigated or determined and that the existence of the complaint is known to me, a fair minded, lay observer might reasonably apprehend that I may not bring an impartial and unprejudiced mind to the resolution of the appeal that I am required with two other judges to decide, both of whom are equally aware of the complaint. Even if the husband had identified adequately that my knowledge of his complaint was relevant, he has not articulated a logical connection between my knowledge of his complaint and the fear of deviation from the course of deciding the case on its merits.”

What lesson we can learn from these decisions?

Judges are appointed to be impartial and independent. In performing their duties it may be appropriate for a judicial officer to take a negative view of one or both of the parties to the litigation.  Such a negative view can be perceived by litigants to amount to bias however in reality this is rarely the case.

It is the role of the Judge to hear evidence and legal argument in order to deliver judgment. Because of the subject matter of family law cases this usually involves the judicial officer making a finding about the character or conduct of a person. In some cases, such findings can be highly critical. Because the issues at stake are personal and often relate to deeply held beliefs, negative findings often cause offence to one or more parties to the litigation.

In the face of criticism it can be a normal human reaction to blame someone else for the problem. In the cases referred to above, the appellants considered that they did not, or would not, receive a fair hearing because of an apprehended bias. These views may have been honestly held however what is required is to demonstrate that views of bias are reasonably held.

If, like most people, you have an aversion to a judicial officer scrutinising the most intimate details your performance as a mother, a wife, a father, a husband, or a partner. If it makes you feel uncomfortable to imagine a judicial officer, in the conduct of their duty, finding that you have failed in your role, or finding that your conduct has been less than ideal, then the moral to this story is this:

While you have the chance, and before the decision is taken from you, seek assistance from a lawyer and make every effort to resolve your matter without the assistance of the Court. The Court is highly evolved and adept at making findings and delivering judgments. Taking offence to a finding or disagreeing with a judgment may be common, but these are not grounds for a successful appeal.

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