It is a cornerstone principle of the administration of justice that Judges are fair and impartial. Thankfully, allegations of bias are not common (and it is rare for them to be proved). However, there are always outliers as the case of Charisteas in the Family Court of WA demonstrates.
Some history
Family law property proceedings were commenced in 2006. There were a litany of applications, hearings, orders and appeals. However, cutting a long story short:
2011
Orders dividing property were made (these were set aside by a Full Court)
August 2016
A two week hearing of the property case was heard
September 2016
the first recusal application (based on things the Judge said during the trial) was made and refused. An appeal was dismissed by the Full Court;
12 February 2018
Walters J delivers his judgment in the property matter
15 February 2018
Walters J retires (3 days after judgment)
12 March 2018
An appeal was lodged (of course it was)
Some (true) gossip
Now this is where it gets interesting. On 8 May 2018, the husband’s solicitor wrote to the Wife’s barrister raising with her that there was “gossip” that she and the judge engaged outside of court in a manner inconsistent with her obligations and those of the judge.
The barrister’s response ultimately led to professional misconduct proceedings Legal Services and Complaints Committee and Anderson [2023] VR 60 which resulted in a reprimand, a fine and a 9 month suspension.
There was a finding that: during the period that Justice Walters was seised of the proceedings and while the respondent was counsel for the applicant wife in the proceedings, the respondent and Justice Walters maintained a close personal relationship characterised by or involving personally close or familiar association in which they: (i) engaged in extensive private SMS and WhatsApp communications, had private telephone calls, met privately, and briefly kissed [!!!!!!].
Relationships – impartial
Although it is almost inevitable that sometimes there will be personal relationships between judges and lawyers, the words of McInerney J in the 1972 case of R v Magistrates’ Court at Lilydale; Ex parte Ciccone remain relevant today:
“The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way…. the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”
So what happened to …
The barrister’s response led the husband’s solicitors to file an amended appeal including an apprehension of bias ground.
The Full Court dismissed the appeal. Special leave was sought and in October 2021 the High Court found that the Full Court’s reasoning erroneous and the lack of disclosure of the relationship to be “troubling”. They also set aside the property orders made in 2011 and remitted the matter for rehearing.
Just what the parties wanted (back to where they were over a decade ago)! – I haven’t checked on the current progress of the case
Creative commons acknowledgment for the photograph.