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Court of Appeal rejects decision to withdraw findings in domestic violence case

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The Court of Appeal has reinstated findings in a domestic violence case which had been set aside in the lower courts over concerns that an earlier judge had been biased.

The Family Court hearing in question was held earlier this year. A District Judge had considered allegations made by a woman who had separated from her partner. She claimed her husband had been violent towards her and two other women.

She and her ex-partner had lived together for 12 years. Their children lived with her but had scheduled time with their father following a court ruling in 2017. The mother first made claims he had been violent towards her and a later girlfriend around this time but she did not pursue them.

The following year the father pleaded guilty to assaulting another girlfriend and received a four-and-a-half-month prison sentence suspended for 18 months. A restraining order meant he was forbidden from approaching the woman for four whole years.

A few months later, the father back to court and asked the authorities to enforce the order allowing him to see his children because contact had stopped. The mother responded by alleging that he:

“…had engaged in a pattern of abusive, violent and aggressive behaviour within his personal relationships and that he had behaved in this way towards her and towards [the two later girlfriends] in 2017/18.”

The case eventually came before a District Judge in February this year for a “fact finding” hearing – one in which a court considers the evidence for disputed allegations and rules on what is most likely to have occurred. The mother submitted nine incidents, some involving the other two women even though they did not take part in the hearing. Previously taken statements were used instead, along with evidence from witnesses.

Following a three-day hearing, the Judge issued a lengthy judgement in which she described the mother was a “straightforward and honest witness” and ruled that six of the nine incidents had indeed occurred. Unsurprisingly, these included the assault which had incurred the father’s prison sentence: an ugly incident in which he had forced his way into the woman’s home and attacked her in front of her daughter.

The Judge ruled that an additional hearing should take place to consider further evidence and the welfare of the couple’s children, but this was delayed twice. The father applied for contact with his children in the meantime and also wanted a rehearing concerning one of the findings of fact, concerning another assault. He strongly denied this, attributing the claim to the fact that the woman with a personality disorder.

It then came to light that the earlier judge ‘recused’ herself, meaning she had withdrawn from the case due to a potential conflict of interest.

The father’s application was then sent to a new judge. Noting that the earlier judge had uncovered “family connection” to one of the former couple, he ruled that the possibility of bias meant the earlier hearing would have to be held again.

When the mother subsequently inquired why the judge had recused herself, she received a fuller explanation: she had discovered that her son was on the same hockey team as the mother and that they were connected on social media. She had only found this out after the fact-finding hearing.

The mother appealed the new ruling. Her legal team argued that the decision to set aside the fact-finding hearing had been wrong in law and that she had been unable to argue her case because she had not been given a full explanation for the recusal.

The Court of Appeal ruled in her favour, saying the decision to set aside the findings had been “wrong and unfair”. Neither the mother or father had known why the Judge withdrew, the Court explained, so they had been unable to properly make their cases. In addition, the Judge had applied the law incorrectly, attaching too much weight to the possibility an observer might believe justice had not been done. Instead, the correct question to ask had been whether an observer might believe the Judge had indeed been biased.

The findings of fact were therefore restored, and progress towards a final hearing on the welfare of the children resumed. The Court of Appeal also dismissed the father’s attempt to dispute the assault finding on the grounds that had not presented any substantial new evidence.

Read the full ruling here.

Image by David Mulder via Flickr (Creative Commons)


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