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By Nicola Berkovic
The Family Court Chief Justice is at odds with two of his colleagues as to whether a judge and barrister who met for drinks and coffee and exchanged “numerous” text messages while a case was under way was grounds for ordering a retrial of a protracted family law dispute.
Family Court Chief Justice Will Alstergren said the contact between the pair should never have occurred — it was “protracted, premeditated and contrary to the ethical obligations each individual owed to the court” — and meant the judge’s decision should be set aside. However, two Family Court appeal judges, Steven Strickland and Judy Ryan, who formed the majority in the case, threw out an appeal based on the conduct.
The majority judges found the extensive contact between Family Court of Western Australia judge John Walters and Perth-based barrister Gillian Anderson would not cause a reasonable person to fear the judge might have been biased in his handling of the case.
The case has prompted fresh calls for the creation of a federal judicial commission to handle complaints about judges, similar to that which exists in NSW.
Law Council of Australia president Pauline Wright said a strengthening Australia’s systems of integrity, accountability and anti-corruption was critical.
“Any allegation of lack of competency, serious misconduct or corruption in the federal judiciary should be dealt with in a stand-alone federal judicial commission,” she said.
The Perth-based real estate agent who lost the appeal, known as “Mr Charisteas”, said he believed an independent body was also needed in WA to handle complaints about the conduct and capacity of state judges.
The appeal decision is the latest chapter in a legal dispute involving Mr Charisteas, now in his 60s, and his former wife, which has dragged on for about 15 years. The couple separated in 2005 after more than 20 years’ marriage.
Ms Anderson, who represented the wife, revealed she met Justice Walters for drinks or coffee about four times, spoke to him on the phone about five times and exchanged “numerous” text messages with him during a 23-month period while he presided over the case.
Chief Justice Alstergren, in his dissenting judgment, said it was incumbent on judges and barristers to disclose any contact that could raise a reasonable concern of apprehended bias.
No timely disclosures were made in this case, he said.
“Even when the private meetings and exchanges between counsel for the wife and the judge did come to light, the disclosures made by counsel for the wife … were, with respect, hardly candid.”
It was “striking” that Ms Anderson had not sought to explain the content of the communications, instead merely asserting they “did not concern the substance of the Charisteas case”.
“One obvious question left unanswered is; if not the “substance” of the case, what precisely was said about it?” Chief Justice Alstergren said.
In a letter to Mr Charisteas’s lawyers, Ms Anderson said she had known the judge socially and professionally for years and they had never been involved in an intimate relationship.
Justices Strickland and Ryan said a “hypothetical observer” would have accepted Ms Anderson’s assertion the pair did not discuss the substance of the case, and would have been aware of their ethical obligations.
This would have alleviated any concerns the case would not be dealt with impartially.
Mr Charisteas was blocked from appealing on the ground that Justice Walters, who retired three days after delivering his decision, was unfit to preside over the case.
Justice Walters applied for early access to his judicial pension while the case was under way on the ground that he was incapable of continuing because of permanent disability or infirmity.
Mr Charisteas claimed in court documents that during the trial, Justice Walters’s behaviour was observed to be “erratic, irascible, interventionist, rude and demeaning” and “dismissive of arguments and submissions before they had been fully developed”.
The Charisteas family’s net property pool was initially worth about $12m according to the primary judge, but had dwindled to about $2.5m.
About $3.7m was spent on legal fees — before the latest appeal.
Justice Walters’s 2018 ruling was a blow to Mr Charisteas. He found that Mr Charisteas, whose complex financial affairs were intermingled with those of his parents, had engaged in a “stratagem” to try to stop the wife making a claim on trust assets, a claim he strongly denied.
Mr Charisteas told The Australian he now had “nothing left” after working all his life and had been suffering from depression. His business had been hit by the coronavirus and he was $1.2m in debt.
The case highlights the crippling delays many family law litigants face. The appeal judges took 16 months to deliver their decision, while Justice Walters took 17 months to write his decision.
This is despite a goal that 75 per cent of all Family Court judgments are delivered within three months.