Is it above board for a well known judge who is a relative of one of the parties in a final custody hearing to sit in court and talk to the ICL during breaks ? I would have thought that's inappropriate in that it's a deliberate attempt to influence the court and put subtle, if not blatant pressure on the ICL and even the judge, both of whom appeared to change their attitude following the relative's attendance.
Dear ruoktoday,
The answer is likely no.
The legal test is this situation 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 [emphasis added]”: Johnson v Johnson (2000) 201 CLR 488.
The focus is not on the “well known judge” who from what you are saying is not acting in the capacity of a judge to the matter but a spectator and relative to a party. The focus is would this affect ICL in an unreasonable manner, either by appearance or by fact. This is quite hard to prove and your statement “appeared to change their attitude” is insufficient to overcome this, given this ”well known judge” does not appear to have access to ICL. A comparison can be made if a hollywood movie star or the Archbishop of NSW comes in to support one of the party - their mere presence as a spectator is unlikely to be enough.
Also, if there was concern for bias and this was not raised earlier in the case, it is possible the right to challenge may be waived, although if there is evidence this could be a ground to make an appeal.
Good luck!
-Nighthleyn
The answer is likely no.
The legal test is this situation 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 [emphasis added]”: Johnson v Johnson (2000) 201 CLR 488.
The focus is not on the “well known judge” who from what you are saying is not acting in the capacity of a judge to the matter but a spectator and relative to a party. The focus is would this affect ICL in an unreasonable manner, either by appearance or by fact. This is quite hard to prove and your statement “appeared to change their attitude” is insufficient to overcome this, given this ”well known judge” does not appear to have access to ICL. A comparison can be made if a hollywood movie star or the Archbishop of NSW comes in to support one of the party - their mere presence as a spectator is unlikely to be enough.
Also, if there was concern for bias and this was not raised earlier in the case, it is possible the right to challenge may be waived, although if there is evidence this could be a ground to make an appeal.
Good luck!
-Nighthleyn
If you do not want the judge on your case, make a formal application to have the judge recuse themselves.
That way if the judgement goes against you, then you have a chance at an appeal on the grounds of bias.
There is another High Court case: Charisteas v Charisteas [2021] HCA 29 that confirms the test quoted above and clarifies part of test, though I haven't studied the case and offer no comment on its applicability to your matter.
I also agree that if you do not object, and it is shown you had a chance to object and did not, then you may be conceding your rights to one ground of appeal.
That way if the judgement goes against you, then you have a chance at an appeal on the grounds of bias.
There is another High Court case: Charisteas v Charisteas [2021] HCA 29 that confirms the test quoted above and clarifies part of test, though I haven't studied the case and offer no comment on its applicability to your matter.
I also agree that if you do not object, and it is shown you had a chance to object and did not, then you may be conceding your rights to one ground of appeal.
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Thanks Nighthleyn.. One point needs clarification though I think. You say " this ”well known judge” does not appear to have access to ICL." I do mention in my post that the judge spoke with the ICL during breaks. I possibly should have also mentioned these were one on one conversations. So whether that counts as "access" I don't know , but i would have thought the potential for undue influence was there at least .
HI Rod Thanks. but I was referring to a judge who was not hearing the case but sitting in the gallery in support of a relative and talking to the ICL during breaks. Not only would the hearing judge and even the iCL have probably recognized that judge , that judge also spoke one on one to the ICL (at least, not sure about the hearing judge). i would have thought this was a bit suspect and could possibly be seen an intentional attempt to sway the court.
You may be correct, and you should ask the judge hearing your matter if they know the judge in the gallery and suggest to them the gallery judge not involve themselves in your matter and not attend the court.
You can also advise the court a complaint about the gallery judge will be made to the chief justice if the judge appears again or otherwise 'interferes in your case'.
You can also advise the court a complaint about the gallery judge will be made to the chief justice if the judge appears again or otherwise 'interferes in your case'.
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