Woman's bid to change judge rejected

A woman has failed in a bid to remove a judge from continuing to hear her custody case as the High Court found that any "discomfort, dislike or concern" against the judge was groundless.

The woman argued that the district judge due to hear her custody battle with her former husband should recuse herself since the judge had previously issued a protection order for her eldest girl against her, made unflattering remarks and would have a preconceived notion of her character.

"Even if the district judge had found grounds to grant a personal protection order (PPO) against (her) that does not mean that a reasonable suspicion of bias would necessarily be established if she hears the subsequent ancillary matters pertaining to the children of the marriage," said Judicial Commissioner Aedit Abdullah.

He added in judgment grounds issued on Monday, that "a fair-minded reasonable observer or member of the public would accept that a judge would carry out judicial duties conscientiously, and would not readily or easily slip in thinking, by letting previous adverse findings against (the woman) close his or her mind in subsequent proceedings".

The couple, who married in 2001, cannot be named. They have three children and split in 2013 on the husband's application.

He applied in 2014 for the protection order for their eldest teen daughter against her, which the district judge granted after a trial.

Following the divorce, the woman then applied to the judge to recuse herself from hearing the ancillary matters, which the judge declined.

The woman then appealed to the High Court, raising various circumstances to support her case.

Her lawyers Bachoo Mohan Singh and Alwyn Kok argued that the PPO decision had labelled her "an abusive mother and liar", and the judge's findings discredited the woman as a person and made her appear unworthy in the eyes of the daughter.

They added that a "reasonable or fair-minded and informed member of the public" would reasonably suspect the judge would have an unconscious bias if she were to now hear the ancillary matters, but made clear that there was no claim of "actual bias" but "apparent bias".

The former husband's lawyers Yap Teong Liang and Tan Hui Qing countered, among other things, that the judge's adverse findings were based on the evidence and they were "objective, fair and considered, backed by detailed reasons.".

Judicial Commissioner Aedit found no apparent bias had arisen, noting the judge "may have been robust" in her remarks but that did not suggest anything hostile or untoward.

The judge used her words based on the evidence and there was nothing in her findings that showed "such intemperate language that a reasonable perception of bias would have been gendered", he said.

"The rule against apparent bias is not meant to be a check against language used - assessment of evidence and conclusions on credibility need to be weighed against what was adduced," he added.

The judge made clear the mere fact that a judge had previously made adverse comments or findings is "on its own, not sufficient for a recusal application to succeed".

He referred to the docket system gaining traction, which means the same judge will hear issues on different applications involving the same case till it is concluded.

He explained that prior findings in the interim applications will not debar the docket judge from continuing unless there is evidence of some out-of-the-ordinary remark or conduct.

This article was first published on Dec 24, 2016.
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