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Acheson & Begbie

Acheson & Begbie

Case [2023] FedCFamC1F 704 22 August 2023

Appeal

Jurisdiction

Abuse of Process

Admissibility of Evidence

Expert Evidence

Judicial Review

Natural Justice & Procedural Fairness

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Acheson & Begbie [2023] FedCFamC1F 704

File number(s): NCC 3670 of 2019

Judgment of: CHRISTIE J

Date of judgment: 22 August 2023

Catchwords: FAMILY LAW – APPLICATION FOR DISQUALIFICATION – Where an oral application for disqualification is made during contested final parenting proceedings – Whether the bench failed to intervene in cross-examination – Where the applicant made concessions to the questions asserted to be improper – Where questions asserted to be improper were not objected to by the applicant’s counsel – Where the questions put to the applicant were not themselves improper – Whether questions from the bench to the applicant were an impermissible foray into the contested proceedings – Where the questions asked from the bench relate to clarifying evidence and/or redirecting the witness – Where questions from the bench were neither excessive nor unfair – Body language of judge – Whether body language indicated a view of the applicant or their counsel – Where perceived eye-roll in context would not result in a fair-minded lay observer to apprehend bias from the bench – Re-examination – Whether ruling in respect of permissibility of questions in re-examination was improper – Where rulings on legal points adverse to the applicant are natural elements of adversarial litigation and do not without more connote bias – Whether counsel for the applicant was treated differently from other counsel at the bar table – Absent evidentiary basis for submission – Where the applicant does not establish substantial grounds for disqualification – Application dismissed.

Legislation: Evidence Act 1995 (Cth) ss 39, 41

Cases cited:
Australian Securities & Investments Commission v Rich [2005] NSWSC 1015

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Galea v Galea (1990) 19 NSWLR 263

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Meadis & Meadis (2020) 62 Fam LR 78; [2020] FamCAFC 301

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Scott & Munayallan [2022] FedCFamC1A 44

Strahan & Strahan (Disqualification) (2009) FLC 93-414; [2009] FamCAFC 204

Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30

Division: Division 1 First Instance

Number of paragraphs: 64

Date of hearing: 18 July 2023

Place: Sydney

Counsel for the Applicant: Ms Edwards

Solicitor for the Applicant: Genuine Legal

Counsel for the Respondent: Mr Harper

Solicitor for the Respondent: Kennedy & Cooke Lawyers

Counsel for the Independent Children's Lawyer: Mr Scarlett

Solicitor for the Independent Children's Lawyer: Venus & Smart
ORDERS

NCC 3670 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ACHESON

Applicant

AND:
MS BEGBIE
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

22 AUGUST 2023

THE COURT ORDERS THAT:
1.The oral application of the applicant made 18 July…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Acheson & Begbie

Details

AGLC: Acheson & Begbie [2023] FedCFamC1F 704
Case: [2023] FedCFamC1F 704
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dismissed an application for disqualification made by Mr Acheson during contested final parenting proceedings. The applicant's counsel sought the adjournment of the matter to prepare an application for disqualification and later made an oral application for the judge to recuse herself. The basis of the application was that the applicant had formed the view that the judge had developed a position adverse to his interests in the litigation. The application was dismissed and the judge found that there were no substantial grounds for disqualification.The court considered whether the application was made in reliance upon an assertion of apprehended bias, actual bias or prejudgment. The court found that the case advanced on behalf of the father appeared to be one of apprehended bias. The court considered whether there were matters which might impact on the judge's decision and found that the applicant had raised the following issues: (a) whether the judge should have intervened in the cross-examination conducted on behalf of the respondent; (b) whether the judge's questions to the applicant were an impermissible foray into the proceedings; (c) whether the judge's body language indicated a view of the applicant or his counsel; (d) whether a ruling in respect of the permissibility of questions in re-examination was improper; and (e) whether counsel for the applicant was treated differently from the other counsel at the bar table.The court found that the cross-examination was not improper and that the applicant's counsel did not object to the questions. The court found that the questions put by the judge to the witness were appropriate and not excessive or unfair. The court found that the perceived eye-roll in context would not result in a fair-minded lay observer apprehending bias from the bench. The court found that rulings on legal points adverse to the applicant were natural elements of adversarial litigation and did not without more connote bias. The court found that all interactions with each of the barristers were undertaken professionally and courteously and that there was no evidentiary basis for the submission that counsel for the applicant was treated differently. The court found that the applicant had not established substantial grounds for disqualification and dismissed the application.

Orders