Cassell & Kolar (No 2) - [2022] FedCFamC1F 984

Federal Circuit and Family Court of Australia
(DIVISION 1)
Cassell & Kolar (No 2) [2022] FedCFamC1F 984

File number(s): MLC 4879 of 2019

Judgment of: STRUM J

Date of judgment: 18 November 2022

Catchwords: FAMILY LAW – COURTS AND JUDGES – Disqualification – Recusal application on the basis of apprehended bias – Where there is no basis for apprehended bias – Application dismissed.

Legislation:
Evidence Act 1995 (Cth), s 41

Family Law Act1975 (Cth)

Federal Circuit and Family Court of Australia, Family Law Case Management – Central Practice Direction, 1 September 2021 para 5.22

Cases cited:
Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

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

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

Rilak & Tsocas [2017] FamCA 757

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

Tsocas & Rilak(No 4) [2022] FedCFamC1F 296

Division: Division 1 First Instance

Number of paragraphs: 27

Date of hearing: 18 November 2022

Place: Melbourne

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Ms Dellidis

Solicitor for the Respondent: Hargreaves Family Lawyers

Counsel for the Independent Children’s Lawyer: Mr James

Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid
ORDERS

MLC 4879 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CASSELL

Applicant

AND:
MR KOLAR

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

STRUM J

DATE OF ORDER:

18 November 2022

THE COURT ORDERS THAT:
1.The part-heard trial be relisted before the Honourable Justice Strum to resume at 10.00am on 17 – 21 April 2023 and on 26-28 April 2023 (if necessary).
2.All subpoena objections be listed for hearing at 10.00am on 31 January 2023 before a Senior Judicial Registrar.
3.The Applicant mother have leave to make an oral application this day.
4.The Applicant mother’s oral application made this day that the Honourable Justice Strum recuse himself for apprehended bias be dismissed.
5.The Applicant mother seek leave from the court prior to making any further interim parenting applications.
6.Pursuant to rule 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court certifies that it was reasonable to engage counsel.
7.Costs of the Mother and Father be reserved.

AND IT IS REQUESTED THAT:
8.In the circumstances of this case, Victoria Legal Aid re-appoint a new lawyer as soon as practicable (and substantially more than four weeks prior to the resumed trial, if possible) on behalf of the Applicant mother in these proceedings, pursuant to paragraph 7 of the Orders made on 18 January 2022, under the s.102NA cross examine scheme.

AND THE COURT NOTES THAT:
A.The Respondent Father and the Independent Children’s Lawyer are excused from the subpoena objection hearing.
B.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of consequences that may follow if a person contravenes these…

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 Cassell & Kolar (No 2)

Details

AGLC: Cassell & Kolar (No 2) [2022] FedCFamC1F 984
Case: [2022] FedCFamC1F 984
Decision Date

CaseChat Overview and Summary

Cassell & Kolar is a family law matter that involves parenting arrangements and property settlement concerning a child born in 2018. The trial began on 29 August 2022, before Strum J, but was adjourned after the applicant's legal counsel withdrew from the case. The applicant, represented by legal aid, sought to disqualify the judge on the basis of apprehended bias. The respondent argued that the application was misconceived and an abuse of process. The court considered whether there was any basis for a reasonable apprehension of bias, drawing on the principles set out in the High Court's decision in Johnson v Johnson. Strum J held that the applicant had failed to articulate any matter that might lead to a reasonable apprehension of bias. The court dismissed the application and made orders for the continuation of the trial.

The court also addressed the applicant's suggestion that the trial should be aborted and start afresh. Strum J held that there was no basis for this suggestion and that the trial would resume in April 2023. The court further clarified that the applicant was required to obtain leave from the court before making any further interim parenting applications. Finally, the court noted that Victoria Legal Aid would need to re-appoint new legal representation for the applicant before the resumed trial.

Orders