BULOW & BULOW (No.2) - [2019] FCCA 2251

FEDERAL CIRCUIT COURT OF AUSTRALIA

BULOW & BULOW (No.2)

[2019] FCCA 2251

Catchwords:
FAMILY LAW – Application for recusal – apprehended bias – application for transfer to Family Court – where matter remitted for re-trial by Full Court – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.79 and 79(2)(iv)

Commonwealth Evidence Act 1995 (Cth)

Cases cited:

Bulow v Bulow [2019] FamCAFC 3

Australian National Industries Ltd v Spedley Securities Ltd (in Liq) & Ors (1992) 26 NSWLR 411
Sellers v Burns [2019] FamCAFC 113
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Royal Guardian Mortgage Management Pty Ltd v Nguyen & Anor (2016) 332 ALR 128

Applicant:

MS BULOW

Respondent:

MR BULOW

File Number:

ADC 1674 of 2014

Judgment of:

Judge Heffernan

Hearing date:

2 July 2019

Date of Last Submission:

2 July 2019

Delivered at:

Adelaide

Delivered on:

29 July 2019

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

Paragraphs 1, 2, 3, 5, 6 and 7 of the Application in Case filed by the husband on 28 June 2019 are dismissed.
The proceedings are adjourned to 22 October 2019 at 3.15pm for callover and possible trial listing NOTING the parties are required to personally attend on this day UPON FURTHER NOTING it is requested that counsel properly instructed for trial attend and in the event they are not available, the file principal attend.
The wife’s Application in a Case filed 11 April 2019 which seeks to limit the scope of the trial and the husband’s response and submissions is adjourned for interim hearing on 22 October 2019 at 3.15pm for half hour.

IT IS NOTED that publication of this judgment under the pseudonym is Bulow & Bulow (No.2) approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1674 of 2014

MS BULOW

Applicant

And

MR BULOW

Respondent

REASONS FOR JUDGMENT

(Reasons Settled from Transcript)

Introduction

This matter proceeded before me as an interim argument on an Application in a Case filed by the husband, Mr Bulow. That application sought a number of orders. The first is that I recuse myself from the rehearing of this matter that was ordered by the Full Court in its appeal judgment, to which I will refer later. Secondly, that this matter be transferred to the Family Court. Thirdly, that pursuant to s.79(2)(iv) of the Family Law Act 1975 (Cth) (‘the Act’) a full re-hearing occur before another judge. That is particularised as being within the scope of order 6. I will make a comment about that in a moment.
Fourthly, that the two Applications in a Case filed by the wife on 18 December 2017 and 11 April 2019 be dismissed. I have indicated that I will not deal with those applications at this time. Fifthly, that the “case filed ADC1674/2014 be wholly dismissed if order 6 issued by the Full Court of the Family Court on 18 January 2019 … is not fully enacted to…

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 BULOW & BULOW (No.2)

Details

AGLC: Bulow and Bulow (No.2) [2019] FCCA 2251
Case: [2019] FCCA 2251
Decision Date: 29 July 2019

CaseChat Overview and Summary

This matter concerned an application for recusal of the judge and an application for transfer of proceedings to the Family Court, brought by the husband. The proceedings had previously been remitted for a re-trial by the Full Court.

The primary legal issue before Judge Heffernan was whether there was an apprehension of bias on the part of the judge, necessitating recusal, and whether the matter should be transferred to the Family Court.

Judge Heffernan dismissed the husband's application for recusal and transfer. The reasoning for this decision is not detailed in the provided text, but the outcome indicates that the judge found no basis for the apprehended bias or the transfer application.

Consequently, the husband's application was dismissed. The proceedings were adjourned for a callover and potential trial listing, with specific requirements for the attendance of the parties and their legal representatives. The wife's application to limit the scope of the trial was also adjourned for an interim hearing.

Orders

Orders of the court

Paragraphs 1, 2, 3, 5, 6 and 7 of the Application in Case filed by the husband on 28 June 2019 are dismissed.

The proceedings are adjourned to 22 October 2019 at 3.15pm for callover and possible trial listing NOTING the parties are required to personally attend on this day UPON FURTHER NOTING it is requested that counsel properly instructed for trial attend and in the event they are not available, the file principal attend.

The wife’s Application in a Case filed 11 April 2019 which seeks to limit the scope of the trial and the husband’s response and submissions is adjourned for interim hearing on 22 October 2019 at 3.15pm for half hour.

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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