The High Court has rejected a father’s application to set aside an order in a long-running family law case, finding that the circumstances did not create a reasonable apprehension that he had been denied an impartial hearing.
The father challenged an order made by Mr Justice Henry Abbott on 28 February 2013, which substantially affirmed a Circuit Court decision granting the children’s mother custody of their youngest child, identified in the judgment as Edward. The High Court proceedings before Mr Justice Keane concerned two applications: the challenge on bias grounds and a separate request to amend or supplement Abbott J.’s judgment.
The bias claim concerned an earlier contact between the mother and a political representative. Abbott J.’s later judgment said the representative had sought an inquiry through a Circuit Court judge about whether Edward had been placed in his father’s primary care. Abbott J. considered the inquiry improper and said he had rebuffed it. The High Court found that this exchange occurred between an order in July 2010 and reasons delivered in July 2011, before the Circuit Court proceedings that led to the February 2013 appeal.
Applying the objective test for bias, Keane J. concluded that a reasonable person could not have a reasonable apprehension that the father had received an unfair hearing. The court also rejected his argument that he had no meaningful chance to raise the issue. Transcripts showed that the appeal hearing continued for a full day on 28 February, more than two weeks after the matter was raised in court on 13 February, and that the father had an opportunity to make submissions.
The judge further held that the father had waived any objection by proceeding without raising it before the appeal concluded. A later argument based on Abbott J.’s past public association with the political representative also failed: the judge found it did not establish objective bias and could have been investigated before the hearing ended.
The father also asked the court to find that the mother had breached the in camera rule. The judgment records that she acknowledged meeting the political representative and apologised, while denying that she asked for intervention. Keane J. said he would not rule on the issue because it had been raised and addressed during the appeal, and the court was functus officio on that point.
On the second application, Keane J. made no order on the father’s requests to amend or supplement Abbott J.’s judgment. He said he had not heard the appeal and could not entertain those requests. Whether Abbott J. would consider them was for Abbott J. to decide.