CIMORELLI & WENLACK

[2020] FamCA 615

FAMILY COURT OF AUSTRALIA

CIMORELLI & WENLACK [2020] FamCA 615

FAMILY LAW – COURTS AND JUDGES – Apprehension of bias – Waiver – Where the mother contends that the cumulative effect of comments made at several court events and the general management of the proceedings would cause a reasonable person to fear deviation from the course of determining the parties’ parenting dispute on its merits – Where the mother also contends prejudgment of substantive matters in the parenting dispute – Application of the two-step test in disqualification applications on the ground of apprehended bias – Consideration of any actual bias – Application dismissed.

Family Law Act 1975 (Cth)

Bulow & Bulow [2020] FamCAFC 120
Cimorelli & Wenlack [2020] FamCAFC 58
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Johnson & Johnson [2000] HCA 48; 201 CLR 488
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
Tong & Niem [2020] FamCAFC 27
Watson & Watson (2002) FLC 93-094; 28 Fam LR 481
Wenlack & Cimorelli [2019] FamCA 755
Wenlack & Cimorelli (No. 2) [2019] FamCA 790
Wenlack & Cimorelli (No. 4) [2019] FamCA 854

APPLICANT: Ms Cimorelli

RESPONDENT: Mr Wenlack 

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Sydney

FILE NUMBER: SYC 2881 of 2013

DATE DELIVERED: 27 July 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 17 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Friedlander

SOLICITOR FOR THE APPLICANT:

SOLICITOR FOR THE RESPONDENT: Self represented litigant

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Sydney

Orders

1. The mother’s application that I recuse myself from further hearing the matter is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cimorelli & Wenlack has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 2881  of 2013

Ms Cimorelli

Applicant

And

Mr Wenlack  

Respondent

REASONS FOR JUDGMENT

Introduction

1. Since April 2019 the parties have been engaged in a second set of proceedings concerning the parenting of their three children.

2. On 20 November 2019 I delivered judgment[1] (“the November 2019 judgment”) after conducting a hearing on 1 November 2019 concerning the children’s interim arrangements pending final hearing.

   [1]Wenlack & Cimorelli (No, 4) [2019] FamCA 854.

3. On the same date the November 2019 judgment was delivered the mother filed an application that I recuse myself from further hearing the matter. It…