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Lawyers for a Perth man say the contact between John Walters and Gillian Anderson strikes at the foundation of the justice system

File photo of the high court in Canberra
The high court is hearing an appeal by a Perth real estate agent after details about the relationship between the judge and a barrister in his family court case were discovered. Photograph: Lukas Coch/AAP

Nino BucciFri 23 Apr 2021 03.30 AEST

The behaviour of a judge and barrister who failed to declare their relationship before appearing in the same trial and continued private contact while the case was being heard strikes at the foundation of the justice system, according to a submission made to the high court.

The court is hearing an appeal by a Perth real estate agent against a decision by the full family court not to grant him a retrial after details about the relationship between key players in the case were discovered.

The agent, known by the courts as Mr Charisteas, has been involved in family law proceedings against his former wife for almost 15 years. About $4m has been spent on legal fees.

Mr Charisteas filed his submissions in the high court case last week.

In the submissions, Mr Charisteas says that despite a recusal application having previously been made against family court of Western Australia judge John Walters, he had failed to declare a relationship with barrister Gillian Anderson, who represented Mrs Charisteas.

On 22 March 2016, the Charisteas’ trial was listed before Walters.

From this time, until 12 February 2018, when Walters delivered his decision in the case, the judge and Anderson met for a drink or coffee about four times, exchanged numerous text messages, and spoke on the phone on at least five occasions, according to her evidence. Walters retired three days after handing down the Charisteas decision, which favoured Mrs Charisteas.

Anderson disclosed the relationship after lawyers for Mr Charisteas asked her about gossip in Perth legal circles.

She denied the relationship was intimate, and said that she had not discussed the “substance” of the case with Walters.

“On any view, the trial Judge and Counsel failed to observe well-established/well-known ‘strictures against private communication’ which are fundamental to our system of justice which requires not only that justice be done, but that it is seen to be done,” lawyers for Mr Charisteas say in their high court submissions.

“This conduct is the anthesis [sic] of what the judicial system requires in a democratic society: it strikes at its very foundation.”A decades-long crisis: the battle to fix Australia’s ‘broken’ family law systemRead more

Family court judges Steven Strickland and Judy Ryan ruled last July that a hypothetical observer would have been “willing to tolerate” some private communication between a judge and a lawyer, and that this observer would have accepted it was unrelated to the proceedings even if the details of the communication weren’t disclosed.

By implication and without any suggestion to the contrary, they said, this observer would accept that the judge and barrister “adhered to the professional restraint against private representations”.

But Will Alstergren, the chief justice of the family court, wrote in a dissenting opinion that the contact between the judge and the lawyer should never have occurred, and once it did it should have been disclosed.

“The contact was not accidental, and nothing akin to the sort of permissible contact that may occur at a Bar or Law Society function.

“The contact here was protracted, premeditated and contrary to the ethical obligations each individual owed to the court … at the very least, during the trial and whilst judgment is reserved, judges are required to remain isolated from friends and colleagues with whom they have had a close professional and/or personal association.

“Such ‘inconvenience’ pales into insignificance when the cost of the alternative is the prospect of diminished public confidence in the administration of justice.”

Mr Charisteas submitted to the high court that the majority judges minimised the conduct, and did so by inferring matters which were not stated during the appeal.

The respondent submissions are due next month, with the case expected to be heard later this year.

The Australian Law Reform Commission is reviewing the laws in relation to judicial impartiality as a result of the case.

Its inquiry will examine whether the law about actual or apprehended bias relating to judicial decision-making “is appropriate and sufficient to maintain public confidence in the administration of justice” and whether it provides clarity to decision-makers, the legal profession and the community.

The commission is expected to release a consultation paper and call for submissions later this month.