Further recusal application dismissed
REASONS FOR JUDGMENT
- This is a further oral application for recusal made by Mr Alexander on behalf of the applicant. The conduct identified by Mr Alexander are the questions asked by the Court of the applicant in the witness box in circumstances where the respondent is unrepresented.
- The questions raised by the Court were questions to explore the issues with the husband. The further conduct identified is the conduct in relation to asking questions of the applicant’s partner. The questions were again to explore the issues.
- In the course of cross-examination of the respondent, Counsel for the applicant asked a question as to what orders the respondent sought. The respondent identified that she sought whatever was in the best interests of the child. The question was put again and the respondent did not respond.
- The Court then asked questions as to what it was that the respondent mother wished. The asking of those questions were intended to identify the issues. A reasonable person would not regard the conduct identified as a logical basis upon which the Court would not determine the matter otherwise than on its merits.
- A fair-minded lay observer would be aware that the respondent is a party who is unrepresented and would be aware of the general scheme under the Act and in particular ss.60CA, 60CC, 65AA, 65DA and 65DAA of the Act.
- The fair-minded lay observer would be aware that the Court has a positive statutory duty to determine what is in the best interests of the child. The fair-minded lay observer would be aware that the Court has a right to ask questions given the said mandatory statutory duty. The fair minded lay observer would be aware that the asking of questions by the Court is not conduct that means that the Court does not have an open mind reasonably capable of persuasion or that the Court will not determine the matter other than impartially.
- The said conduct is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Court might not determine the matter with an independent, impartial and fair mind.
- The further oral application for recusal is dismissed.