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High Court, in custody proceedings involving a 12 year old boy, rejects the father's application to set aside earlier orders of Abbott J on grounds of objective bias, finding, inter alia, that: (i) a reasonable person could not have a reasonable apprehension that the father did not receive a fair hearing; and (ii) the father was not deprived of the opportunity to allege bias in front of Abbott J and, by failing to raise it at that point, waived his right to do so now.
Appellant ("father") and respondent ("mother") involved in family proceedings for over a decade - parties received decree of judicial separation in 2003 and divorce in 2009 - since then, there have been multiple hearings relating to the custody and welfare of their three children - most recent applications relate to youngest child "Edward" - instant motions relate to earlier orders and judgment of Abbott J, which affirmed Circuit Court's decision to grant custody of Edward to mother - Father seeks: (i) to set aside orders made by Abbott J on the ground of bias; and (ii) to amend terms of the judgment delivered by Abbott J in July 2013 - whether reasonable person would have reasonable apprehension that father did not receive fair hearing - claim of bias based on an approach by an unnamed Circuit Court judge to Abbott J in 2011 inquiring as to status of custody proceedings - Abbott J rebuffed approach, which he described as improper - brought approach to attention of parties on second day of hearing in 2013 - issue of objective bias not raised by father at this point or on subsequent final day - following judgment in July 2013, father brought application seeking to set aside February 2013 orders - Abbott J recused himself from hearing bias issue - matter now comes before Keane J - Keane J rejects claim of objective bias - also rejects father's claim that he was not permitted to advance point of objective bias before Abbott J - Keane J also refuses to make extensive amendments sought in respect of Abbott J's judgment - unwilling to do so in light of the fact that Abbott J heard the matter - suggests that Abbott J might take seisin of the case again - this however is a matter for Abbott J, and he is not prepared to make an order in this regard.
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