Acheson & Begbie

Case [2023] FedCFamC1A 240


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 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.

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 TEMPORE

STRUM J:

  1. The applicant seeks…

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Acheson & Begbie [2023] FedCFamC1A 240
Case
[2023] FedCFamC1A 240
Decision Date

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia, Appellate Division, involved an application for recusal by the father, Mr Acheson, against one of the primary judges in an appeal concerning a family law dispute. The application was made under section 121 of the Family Law Act 1975 (Cth), which restricts the publication of identifying information in family law proceedings. The father sought the recusal of one of the judges on the grounds of apprehended bias, applying the established test from Ebner v Official Trustee in Bankruptcy, Johnson v Johnson, and QYFM v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs.

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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