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CANBERRA, Australia (AP) –
Australia’s highest court on Wednesday overturned a decision by a family court judge who had not said he had discussions over coffee with a lawyer involved in the case.
The five High Court justices unanimously agreed that the 2018 ruling should be overturned due to the “apprehended bias” of Judge John Walters.
Following the model case, the Australian Independent Law Reform Commission is to report to the federal government within two months on the adequacy of laws dealing with judicial impartiality.
The case involved a family court property settlement that divided assets between a Perth real estate agent and his ex-wife, who under Australian law cannot be identified.
Walters ruled in favor of the wife, who was represented by lawyer Gillian Anderson. Court documents show that the husband’s lawyer later wrote a letter to Anderson raising “gossip” in Perth legal circles about a personal relationship between Anderson and the judge.
Anderson replied by letter two weeks later that she had met Walters for coffee or a drink on several occasions, and that they spoke on the phone and texted in the two years leading up to her judgment.
She said the relationship was not intimate and that she had not discussed the “merits of the case” with the judge, according to court documents.
Walters, who retired three days after making his ruling, had issued orders in the case as early as 2015 and denied the husband’s request to recuse himself while hearings were ongoing.
The husband appealed Walters’ decision on the grounds of apprehended bias. But the Full Family Court Chamber denied him a new trial in a 2-1 decision. Two judges ruled that an observer would be “willing to tolerate” private communication between a judge and a lawyer, while the dissenting judge ruled that the communication should not have taken place and should have been disclosed.
The High Court ruled that once a case is about to begin, there should be no communication or association between a judge and either party except in “the most exceptional cases”. There were no exceptional circumstances in this case, the judges said.
“An impartial lay observer might reasonably fear that the trial judge is not bringing an impartial spirit to the resolution of the issues that His Honor must decide,” the High Court concluded.
The case will be sent back to family court for a new judge to rule.
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