Recusal application dismissed

Recusal application dismissed

Nimmo & Bush

  1. This is an application for recusal by the applicant of the Court on the grounds of conduct which was identified as follows:-
  2. First, when the matter was first called, the Court was informed that the parties were seeking to explore resolution. The Court, in those circumstances, engaged in identifying for the parties the benefit of a consensual resolution and encouraged the parties to try and reach a conclusion which they agreed to.
  3. The Court identified a number of difficulties, including some problems with the expert report by the consultant which made no reference to the psychiatrist’s report annexed to the husband’s affidavit albeit it was said that the consultant had read the psychiatrist’s file notes. The mental health of the respondent was identified in the consultant’s report as an issue and the psychiatrist’s opinion and observations were not addressed by the consultant.
  4. The Court also made reference to the fact that the consultant, in relation to a particular incident, had failed to consider the possibility of provocation in relation to that incident. The Court also identified steps that might be taken for the parties in resolving the matter to ensure progression of the husband’s contact and relationship with the child if the child continued to live with the mother which the Court identified had been the position for the last three years.
  5. The Court identified that a resolution that included something along the current lines might be one that took into account a changeover at the grandmother’s house rather than at the third party independent location which was at the cost and expense of the applicant husband. The Court identified reasons in the best interests of the child as to why the parties should try and resolve the matter.
  6. That conduct is not conduct that has a logical basis upon which a reasonable person would conclude that the Court would determine the contested matter otherwise than in accordance with its merits. The further conduct identified was after an hour, the Court came back in having foreshadowed to the parties the Court would return within an hour, and the Court was informed the matter still had not been resolved.
  7. The Court made further observation in relation to the possible resolution of the matter and how the parties might address the issues of whether the mother was required to continue to reside with her grandmother as well as issues in relation to Christmas holidays and alternate times in that regard and increasing times as the child grows older.
  8. In the course of having encouraged the parties on the second occasion to explore resolution, Mr Alexander of Counsel rose to his feet to identify that an alleged criminal assault in the State Court was of considerable concern to his client.
  9. The Court responded by indicating that the Court was not impressed by that submission and that this Court’s powers, not the State court’s powers, will determine the relationship of the parties and child. There is no logical connection between the conduct identified and a reason why a reasonable person would consider that the Court would not determine the contested matter otherwise than on its merits.
  10. Further, a fair minded lay observer would be reasonably informed. That means the fair minded lay observer would be aware of the object and principles identified in s.60B of Part VII of the Act and of the paramount consideration imposed upon the Court by s.60CA and s.60CC of the Act.
  11. The fair minded lay observer would be aware of the general scheme of Division 6 of Part VII and the re-statement of the statutory duty imposed on the Court as to paramount consideration in s.65AA of the Act, the power under s.65D of the Act to make parenting orders, the mandatory considerations under s.65 DAA of the Act including s.65DA(7) of the Act and the duty of the Court under s.65DA of the Act.
  12. Accordingly, a fair minded lay observer would take into account the positive statutory duty imposed upon the Court in parenting matters to determine the best interests of the child. That positive duty requires a more active role by the Court than ordinary adversarial litigation, including the statutory considerations under s.60CC(3)(l) of the Act to try and bring an end to ongoing disputes in relation to the child.
  13. The fair minded lay observer would be aware that in family matters the Court generally will familiarise itself with the Court file prior to hearing and the Court would still remain impartial and retain a mind reasonably open to persuasion. The fair minded lay observer would be aware that in family parenting matters, the Court has a role to try and de-escalate the dispute and to actively encourage consensual resolutions by the parties. The fair minded lay observer would be aware that any proposed consensual resolution by the parties is one in which the Court still has a power to exercise in determining whether the consent orders are appropriate and in that regard, the Court must still give paramount consideration to the best interests of the child.
  14. I am not satisfied that the conduct identified is conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the merits.
  15. The application for recusal is dismissed.


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