Procedural Fairness in Family Law Matters

According to the Australian Law Reform Commission procedural fairness means acting fairly in administrative decision making. It relates to the fairness of the procedure under which a decision is made, and not the fairness in a substantive sense of that decision.

The Rule Against Bias
The rule against bias means that the decision maker must not be biased in a way that prevents them from making an objective and impartial decision. A decision maker must be free of actual bias as well as any apprehension of bias.
Whether a decision maker is biased is to be determined by the standards of a hypothetical fair-minded lay observer who is informed of the circumstances.

Fair process vs fair outcome
Procedural fairness means a fair hearing, not a fair outcome. Procedural fairness can be found to be have been afforded even where the decision was not fair. Conversely, there can be a failure of procedural fairness even where the decision eventually made was fair, if the process followed to arrive at it was unfair. This means that a decision that is ‘right’ may still be overturned on the basis that it was made contrary to the requirements of procedural fairness.
Judicial review of administrative decisions in concerned with the decision-making process and not with the decision.
Former High Court Chief Justice Murray Gleeson once wrote, ‘Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.’

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