FAMILY COURT OF AUSTRALIA
| ADACOT & SOWLE | [2020] FamCAFC 215 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Excessive judicial intervention amounting to an unfair trial – Judicial bullying – Abuse of judicial position – Apprehended bias – Waiver – Appeal allowed – Orders set aside – Matter remitted – Costs certificates ordered. |
| Family Law Act 1975 (Cth) ss 69ZM, 69ZN, 97 Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| APPELLANT: | Mr Adacot |
| RESPONDENT: | Ms Sowle |
| FILE NUMBER: | BRC | 13196 | of | 2018 |
| APPEAL NUMBER: | NOA | 97 | of | 2019 |
| DATE DELIVERED: | 28 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane (via video link) |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Watts JJ |
| HEARING DATE: | 4 June 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 September 2019 |
| LOWER COURT MNC: | [2019] FCCA 3524 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page QC |
| SOLICITOR FOR THE APPELLANT: | Michael Dwyer Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Baston |
| SOLICITOR FOR THE RESPONDENT: | MCH Family Law |
Orders
The appeal be allowed.
The orders made on 26 September 2019 be set aside.
The proceedings be remitted to the Federal Circuit Court for rehearing by a judge other than Judge Andrew.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the…
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- AGLC
- ADACOT & SOWLE [2020] FamCAFC 215
- Case
- [2020] FamCAFC 215
- Decision Date
CaseChat Overview and Summary
The Court meticulously examined the conduct of the judge, highlighting instances of alleged judicial bullying and excessive intervention. It was noted that the judge's comments and directives appeared to influence the proceedings in a manner that could be perceived as unfair to the appellant. The Court found that these actions amounted to an abuse of the judicial position and created a reasonable apprehension of bias. Consequently, the Court concluded that the appellant's right to a fair trial had been compromised, leading to the decision to allow the appeal. The Court determined that the orders made by the lower court should be set aside, and the matter should be remitted for rehearing by a different judge.
In light of the findings, the Court allowed the appeal and set aside the orders made by the lower court. The proceedings were remitted to the Federal Circuit Court for rehearing by a judge other than Judge Andrew. The Court also issued costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth), recognising the financial burden incurred during the appeal and the rehearing process. These certificates would enable the parties to seek reimbursement from the Attorney-General for the costs associated with the appeal and the rehearing of the proceedings. The form of the order was subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
The appeal be allowed.
2.
The orders made on 26 September 2019 be set aside.
3.
The proceedings be remitted to the Federal Circuit Court for rehearing by a judge other than Judge Andrew.
4.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to this appeal.
5.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the cost incurred by her in relation to this appeal.
6.
The Court grants to the appellant and the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of the costs incurred by them in relation to the rehearing of these proceedings.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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