Family Court disqualifies Magistrate due to perception of bias

The Full Court of the Family Court, in a case called Nadkarni and Nadkarni, has recently ordered that a matter not be before Federal Magistrate Harman, due to perceptions of bias, and set out guidelines for judges as to disqualification.

The wife successfully appealed the refusal by the Federal Magistrate to disqualify himself. His Honour stated, in refusing the application:

Ido make clear that there was most certainly a personal andintimate relationshipbetween [the wife’s] lawyer and myself, as well as the businessrelationship. That terminated in 2006. That is a matter, it would seem, ofgreat interest to the legal profession of Parramatta ... 

It seems surprising that  Federal Magistrate Harman did not excuse himself in light of the history:

• There hadbeen a great deal of acrimony between  Federal Magistrate Harman and thewife’s solicitor following the wife’ssolicitor leaving the legalpractice in which they had both worked;
• FederalMagistrate Harman had  complained about the wife’s solicitor to the Legal Services Commission and the NSW Law Society
• In 2009, about a year prior to his appointment,Federal Magistrate Harman forwarded an "extraordinary" email denigrating the wife's solicitor to 17legal practitioners  and alleging an extra-marital affair between them;
• In 2010  Federal Magistrate Harman made certain remarks in another matterabout the wife’s solicitor upon the litigantadvising the court that sheintended to instruct the wife’s solicitor;
• In a separate matter in 2010 FederalMagistrate Harman had indicated that he would refer anypractitioner who renewed an application for disqualification for disciplinaryinvestigation;
• In November 2010 his Honour “rushed” to deliver an ex-tempore judgmentin circumstances where the matter was notlisted for hearing and did not permitthe parties to participate in the hearing.

The Full Court stated:

This is one of the extreme cases where, as a result of the circumstances of theassociationbetween the Federal Magistrate and the wife’ssolicitor, the Federal Magistrate might not bring an impartial andunprejudiced mind to the resolution of the question he is requiredto decide.

Wewould add that once it is accepted that a subsisting marriage, or other ongoingintimate relationship or association between ajudicial officer and a lawyer isa disqualifying factor, it must also be accepted that once a marriage or similarrelationship orassociation has broken down, that disqualifying factor mustremain, at least for a reasonable period. This must be so because oftheacrimony that so often follows such a breakdown, as a lay observer would wellunderstand.

Whatis a reasonable period for disqualification following the cessation of anintimate relationship will be determined on a caseby case basis and havingregard to the perceptions of the hypothetical lay observer. In this case theuncomplimentary email sentby the Federal Magistrate only 15 months earlierclearly fell within the time-frame in which a relationship, albeit one ofhostility,not closeness, existed.