FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Acheson & Begbie [2023] FedCFamC1A 240
Appeal from: Acheson & Begbie [2023] FedCFamC1F 704
Acheson & Begbie [2023] FedCFamC1F 705
Appeal number: NAA 264 of 2023 File number: NCC 3670 of 2019 Judgment of: HARTNETT, RIETHMULLER AND STRUM JJ Date of judgment: 5 December 2023 Catchwords: FAMILY LAW – APPEAL – RECUSAL APPLICATION – Application made for recusal on the basis of apprehended bias – Where the applicant father filed an Amended Application in an Appeal on 29 November 2023 seeking the recusal of one of the primary judges comprising the Full Court – Where the relevant test is well established by Ebner v Official Trustee in Bankruptcy [2000] HCA 63, Johnson v Johnson [2000] HCA 48 and QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2023] HCA 15 – Where the test is not satisfied – Application dismissed. Cases cited: Acheson & Begbie [2023] FedCFamC1F 704
AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236; [2011] VSCA 425
Cassell & Kolar (No 6) [2023] FedCFamC1F 764
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15
Number of paragraphs: 30 Date of hearing: 5 December 2023 Place: Sydney Solicitor for the Applicant: Mr Parisi Counsel for the Respondent: Mr Duane Solicitor for the Respondent: Kennedy & Cooke Solicitor for the Independent Children's Lawyer: Venus & Smart ORDERS
NAA 264 of 2023
NCC 3670 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ACHESON
Applicant
AND: MS BEGBIE
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HARTNETT, RIETHMULLER AND STRUM JJ
DATE OF ORDER:
5 DECEMBER 2023
THE COURT ORDERS THAT:
1.Order 4 as sought in the Applicant’s Amended Application in an Appeal filed 29 November 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Acheson & Begbie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORESTRUM J:
The applicant seeks…
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- Acheson & Begbie [2023] FedCFamC1A 240
- Case
- [2023] FedCFamC1A 240
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CaseChat Overview and Summary
The court was required to determine whether the father had satisfied the legal criteria for the judge's recusal. The applicable test, as elucidated in the cited cases, requires the father to demonstrate a reasonable apprehension of bias that would lead a fair-minded lay observer to conclude that the judge might not bring an impartial mind to the resolution of the appeal. This involves considering whether there is a real likelihood of bias on the part of the judge, not merely a possibility.
Upon reviewing the father's application, the court found that the evidence did not meet the threshold for a reasonable apprehension of bias. The reasoning provided by the father did not establish a real likelihood of bias sufficient to warrant the recusal of the judge. Consequently, the court dismissed the application for recusal. The dismissal was based on the court's conclusion that the father had not demonstrated that the judge was biased or likely to be biased in the adjudication of the appeal.
The court made an order dismissing the application for recusal, with specific reference to the father's Amended Application in an Appeal filed on 29 November 2023. This order is final and subject to any minor typographical or grammatical corrections as per the relevant Federal Circuit and Family Court of Australia Rules.
Orders
Orders of the court
NAA 264 of 2023
NCC 3670 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR ACHESON
Applicant
AND:
MS BEGBIE
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HARTNETT, RIETHMULLER AND STRUM JJ
DATE OF ORDER:
5 DECEMBER 2023
THE COURT ORDERS THAT:
1. Order 4 as sought in the Applicant’s Amended Application in an Appeal filed 29 November 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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