Anders & Damus (No 4) - [2024] FedCFamC2F 156

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Anders & Damus (No 4) [2024] FedCFamC2F 156

File number(s): ADC 4751 of 2022

Judgment of: JUDGE BROWN

Date of judgment: 8 February 2024

Catchwords: FAMILY LAW – Parenting – ex tempore reasons for an application made for recusal on the basis of apprehended bias and joinder of the parties’ current partners – where the application was filed at lunch time on the day of the resumption of part heard trial – where the test is well established by law – where the test is not satisfied – application dismissed

Legislation:
Family Law Act 1975 (Cth) Div 12A, Part VII, s 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 175

Judiciary Act 1903 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 3.08

Cases cited:
Damjanovic v Maley [2002] NSWCA 230

Groundwater v Territory Insurance Office (2004) 183 FLR 437

Johnson v Johnson [2000] HCA 48

Laws v Australian Broadcasting Tribunal [1990] HCA 31

Woodside Energy Limited v Australian Workers Union [2022] FCA 1391

Division: Division 2 Family Law

Number of paragraphs: 82

Date of hearing: 8 February 2024

Place: Adelaide

Counsel for the Applicant: Mrs Read

Solicitor for the Applicant: Phoenix Family Law

Solicitor for the Respondent: Appeared in person

Counsel for the Independent Children's Lawyer: Ms James

Solicitor for the Independent Children's Lawyer: Legal Services Commission
ORDERS

ADC 4751 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ANDERS

Applicant

AND:
MS DAMUS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

8 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 7 February 2024 is hereby dismissed.
2.Costs reserved.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPORE
JUDGE BROWN:

The reasons for judgment in this matter were delivered orally following the interim hearing between the parties concerned. The reasons have been corrected to remove errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
Today, I have to deal with an application which is brought by Ms Damus which was filed yesterday lunchtime, I think, which was 7…

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 Anders & Damus (No 4)

Details

AGLC: Anders & Damus (No 4) [2024] FedCFamC2F 156
Case: [2024] FedCFamC2F 156
Decision Date: 8 February 2024

CaseChat Overview and Summary

The matter of Anders v Damus came before Judge Brown of the Federal Circuit and Family Court of Australia, Division 2, on 8 February 2024. The applicant, Ms Anders, sought to recuse the judge on the basis of apprehended bias. The matter involved ongoing parenting proceedings between Ms Anders and Ms Damus. Ms Anders filed an application for recusal at lunchtime on the day of the resumption of a part-heard trial. She contended that the judge had exhibited bias, which necessitated his recusal from the case.

The court was required to determine whether the judge should be recused due to apprehended bias. Ms Anders’ application for recusal was evaluated against the established legal test, which requires a showing that a fair-minded observer, having considered the facts, might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions arising in the case. The court considered the evidence presented by Ms Anders and found that the application did not satisfy the criteria for recusal. Judge Brown concluded that there was no basis to find that the judge was biased or that a fair-minded observer would apprehend bias.

Consequently, the court dismissed the application for recusal. The court reserved the matter of costs for further consideration. This decision underscored the rigorous standard required to successfully seek recusal on the basis of apprehended bias, particularly in a high-stakes family law matter. The dismissal of the application meant that the proceedings could continue before Judge Brown without further interruption.

Orders

Orders of the court

ADC 4751 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ANDERS

Applicant

AND:

MS DAMUS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

8 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed 7 February 2024 is hereby dismissed.

2. Costs reserved.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	ADC 4751 of 2022
Judgment of:	JUDGE BROWN
Date of judgment:	8 February 2024
Catchwords:	FAMILY LAW – Parenting – ex tempore reasons for an application made for recusal on the basis of apprehended bias and joinder of the parties’ current partners – where the application was filed at lunch time on the day of the resumption of part heard trial – where the test is well established by law – where the test is not satisfied – application dismissed
Legislation:	Family Law Act 1975 (Cth) Div 12A, Part VII, s 102NA Federal Circuit and Family Court of Australia Act 2021 (Cth) s 175 Judiciary Act 1903 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 3.08
Cases cited:	Damjanovic v Maley [2002] NSWCA 230 Groundwater v Territory Insurance Office (2004) 183 FLR 437 Johnson v Johnson [2000] HCA 48 Laws v Australian Broadcasting Tribunal [1990] HCA 31 Woodside Energy Limited v Australian Workers Union [2022] FCA 1391
Division:	Division 2 Family Law
Number of paragraphs:	82
Date of hearing:	8 February 2024
Place:	Adelaide
Counsel for the Applicant:	Mrs Read
Solicitor for the Applicant:	Phoenix Family Law
Solicitor for the Respondent:	Appeared in person
Counsel for the Independent Children's Lawyer:	Ms James
Solicitor for the Independent Children's Lawyer:	Legal Services Commission

ADC 4751 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS ANDERS Applicant
AND:	MS DAMUS Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	8 FEBRUARY 2024