Case Note: Judicial Interference

Summary of Facts: whether excessive judicial interference amounted to an unfair trial and whether there was judicial bullying in a parenting trial

Adacot & Sowle [2020] FamCAFC 215

In this case, there was a trial conducted for a parenting matter by a QC for the father and a barrister for the mother. A decision was made by Judge Andrew in relation to this matter however the father appealed the decision on the basis that there was an unfair trial due to the Judge's conduct towards his representation.

The Family Court ultimately allowed the appeal and remitted the proceedings to the Federal Circuit Court to be heard by another Judge. The Family Court consider transcripts from the trial and determined that it must be considered both what was said by the Judge and his demeanour when saying those things and so the recordings were considered by the Court.

The Court outlined the particular words used and discussions had to support their decision. Some interesting comments were noted as follows:

• When the QC advised that he had made a mistake in relation to advising the court of a filing date, the Judge determined that it was an 'untruth' rather than a mistake.
• The Judge then continued to refer to this comment to note that other submissions made by the QC were inaccurate.
• When the QC proceed to make submissions, reading information into the record, the Judge commented 'take it that I can read English'.
• The Judge commented 'Because you've just made a mess of that request that I asked of you. This is pathetic' and 'This is absolute garbage."

The Judge continued to interrupt submissions made by the QC in a similar vein. Ultimately, the QC excused himself from the proceedings and the solicitor took over carriage of the trial.

To the solicitor, the Judge made similar comments to the solicitor going so far as question him at length in relation to using the word 'just'. When the solicitor began a sentence with 'I just', the Judge asked multiple times for him to explain what the word 'just' meant. He continued to state 'there's a cognition issue somewhere here, and it's not on this side of the bench'.

The Family Court finally ruled that 'the primary judge failed to afford the father a fair trial and the apprehension of bias dictates that the appeal be allowed (at p. 120).

The Lesson To Learn: it is important that each person is given a fair trial, and in addition, the appearance of a fair trial. Understanding what might amount to judicial bias and prejudice is necessary in ensuring that a fair trial is conducted.

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