QLD Evidence of Bias - Can I Request a Change of Judge?

Discussion in 'Family Law Forum' started by Cairns123, 4 February 2018.

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  1. Cairns123

    Cairns123 Well-Known Member

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    Has anyone tried? Anyone been successful? Or is it an old boys club and just makes things worse?

    There is obvious bias, rulings are made before we even enter the court room and no evidence has been heard.

    Two Duty Lawyers advised for an adjournment due to very late evidence being discovered. The judge said in the court room that it was already decided, had not even sat down from saying who I was.

    The evidence was irrefutable and I had it in triplicate. I had only found out the night before and worked through the night. But the judge had already decided.

    The children's health and safety are greatly at risk.

    This is the third time. I am considering a formal complaint, and requesting a change of judge.

    Can it be done?
     
  2. Rod

    Rod Lawyer
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    Yes. Not easy, but is possible.

    Your lawyer needs to make a request to have the judge excuse themself and provide the reasons why. I can imagine some lawyers being concerned about doing this as they repeatedly get up in front of the same judge and don't like to have them too offside on the next case.
     
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  3. Cairns123

    Cairns123 Well-Known Member

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    Thanks, I am self-represented. I will consider it further as the last thing I want to do is make it worse and its pretty bad already.
     
  4. Rod

    Rod Lawyer
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    Yep. You'll need to do some reading on how to have judges removed. I don't have any references easily at hand. Maybe get a lawyer just for that part.

    Keep in mind if you let it go too long you may be deemed to have waived your right to protest.
     
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  5. Cairns123

    Cairns123 Well-Known Member

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  6. AllForHer

    AllForHer Well-Known Member

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    To answer your question, you can file an application to have the judge recuse himself from hearing your case, but the only grounds on which you can do so are bias, either actual or apprehended.

    In proving that the judge should recuse on grounds of actual bias, you need to prove the judge's state of mind is closed, such that he/she won't be swayed by the evidence.

    In apprehended bias, the test is 'whether 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'.

    I've read many applications for judges to recuse themselves, but I've only seen one actually succeed, and that was because the judge had a conflict of interest such that a reasonable person would have difficulty believing they could come to the Courtroom with an impartial and unprejudiced mind.

    In my view and based only what you've said so far, this doesn't sound like a case of bias - there's no extant relationship that would make the judge biased toward the other party, no monetary gain to be had by the judge in presiding over the matter, no conflict of interest.

    If you think the judge has made an error - such as misunderstood the rule of the law or not followed due process - then you can appeal the decision, with probably a higher likelihood of success than asking the judge to recuse himself.

    However, the grounds for appeal are also more complex than simply disagreeing with the way the judge is handling the case. It requires you to prove an error of either fact or law.

    Something you should understand as a self-represented litigant is that evidence is not tested in interim hearings, and it does not become 'irrefutable' until it has been tested. The other party also has a right to respond to all evidence, so to uncover evidence the night before a hearing and expect the judge to act on it without question is folly - the other party has not been given sufficient time to respond, nor has that evidence been tested.
     
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  7. Cairns123

    Cairns123 Well-Known Member

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    Thankyou for your comprehensive answer and help.

    I have taken it on board and will prepare for trial accordingly. Re the last hearing, There was 3 days only to prepare; the whole thing was a folly to use your eloquent term.

    Anyway gone now, onward to the next drama that gets thrown at me, hopefully with more than 3 days prep

    Again my thanks .
     
  8. Migz

    Migz Well-Known Member

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    Hi Cairns123, how did you go with removing the Judge? Can offer up any tips or paperwork to follow?

    Cheers
     
  9. Cali

    Cali Active Member

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    If I have had a Judge openly discriminate against me in court and give a personal opinion that is biased and goes against all the facts presented, which is clearly biased, can I have him recuse himself and what forms do I lodge? (Federal family court Brisbane).
     
  10. Cali

    Cali Active Member

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    Sorry forgot to add: I have made an official complaint to the federal chief magistrate as well about this judge.
     
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