Changing your Magistrate or Judge

Family Lawyers in Perth are often consulted by parties in family law proceedings who feel that their matter would have been determined differently had they been allocated a different magistrate or judge. There is no general procedure that allows a person to pick and choose who handles their case. Of course, practically speaking, if parties were allowed to change their decision makers every time they felt hard done by the Court could not function. It is not workable or just to allow a party to pick and choose who decides their matter. The Court usually adopts the idea that it is more efficient for the parties and the court that one person deals with one matter from start to finish.

However, it is possible, in limited circumstances, to make an application that the decision maker should disqualify him or herself from further hearing of the proceedings and to ask for the matter to be referred to another decision maker. This application can be made where there is either actual or apprehended bias.

 Apprehended bias means that the decision maker made up his or her mind before hearing the case and was not open to persuasion. The application is made to and decided by the decision maker in question. A finding of apprehended bias will not be made lightly. It requires a high level of improper conduct. It is regarded as a very serious allegation that should not be made in the absence of clear evidence. The test is if a fair-minded person might reasonably think that the decision maker might not bring an impartial mind to the case. There must be substantial, clear evidence that the decision maker had prejudged the case and was not open to any persuasion.

 The conduct of the decision maker in the proceedings is relevant e.g. did they constantly interrupt or make statements to indicate that they had made up their mind already? However, all the circumstances of the case are relevant. It is not enough that the decision maker has a tendency or predisposition to decide a certain way. Equally, just because it may be easier to persuade one person of a something than it is to persuade another does not mean that there is apprehended bias. The decision maker must have a completely ‘closed’ mind to the facts of the matter.

From a practical point of view, it is usually not a good idea to make such an allegation if there is not clear evidence. The Courts do not generally look favorably on parties that make such serious allegations without sufficient evidence to support them.

Proceedings in the Family Court necessarily involve an exercise of discretion. Just because one decision maker may decide differently to another does not mean that one is right and the other is wrong. There is no way to guarantee that your proposals will be granted. The most important thing to do is to ensure that you present the decision maker with all the relevant facts that support your argument. A family lawyer in Perth can provide you with advice to ensure that your best case is put forward.

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