Legal Research
Cases
CLEWER & CLEWER

CLEWER & CLEWER

Case [2019] FCCA 725 12 February 2019

Type to search within this case.

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLEWER & CLEWER

[2019] FCCA 725

Catchwords:
FAMILY LAW –Application for recusal.

Legislation:

Family Law Act 1975 (Cth), ss.79A, 117(1)

Federal Circuit Court Rules

Cases cited:

Wise & Wise [2004] VSCA 88

Galea v Galea (1990) 19 NSWLR 263
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Simic & Norton [2017] FamCA 1007
Aon Risk Services v ANU (2009) 239 CLR 175
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
John Richard Bryant v Hawkesbury Community Radio Communication Co-operative Society Limited [2014] NSWSC 848

Applicant:

MS CLEWER

Respondent:

MR CLEWER

File Number:

PAC 2725 of 2017

Judgment of:

Judge Harman

Hearing date:

12 February 2019

Date of Last Submission:

12 February 2019

Delivered at:

Parramatta

Delivered on:

12 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr J Grew

Solicitors for the Applicant:

Coleman Greig Lawyers

Solicitors for the Respondent:

Mr G Penhall, Penhall & Co Lawyers

ORDERS

Pursuant to section 117B(2) of the Family Law Act 1975 no interest shall be payable by the wife to the husband with respect to the above payment.
Each party shall pay their own costs of an incidental to these proceedings.
Pursuant to section 114 of the Family Law Act 1975 the parties and each of them shall be and are hereby restrained from taking any step with respect to proceedings SYG537/2018 before the Federal Circuit Court Sydney save and except for the purpose of discontinuing those proceedings or providing such other advice to the Court as may be necessary to allow the proceedings to be discontinued or dismissed without any Order for costs in favour of or against either party.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
THE COURT NOTES that the wife has now paid to the husband the sum of $100,000 that was required to be paid pursuant to Orders made 20 September 2017 and as varied 31 October 2018.

IT IS NOTED that publication of this judgment under the pseudonym Clewer & Clewer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2725 of 2017

MS CLEWER

Applicant

And

MR CLEWER

Respondent

REASONS FOR JUDGMENT

These proceedings come before the court today for the fourth occasion.
The controversy between the parties which has caused today’s listing is, in essence, founded in compliance with, enforcement of or variation of a primary order made by this court on 20 September 2017.
It is important to consider the history of the proceedings, which I will do shortly. However, before being in a position to determine that which was listed for hearing today, there is now to be determined an application for recusal. That must be dealt with first.
The facts of the case are relevant to all issues.
The original proceedings between these parties were commenced by an Application Initiating…

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 CLEWER & CLEWER

Details

AGLC: Clewer and Clewer [2019] FCCA 725
Case: [2019] FCCA 725
Decision Date: 12 February 2019

CaseChat Overview and Summary

In *Clewer & Clewer*, the wife sought the recusal of Judge Harman from proceedings concerning property settlement and related matters. The dispute arose in the context of ongoing litigation between the parties, including separate proceedings in the Federal Circuit Court.

The primary legal issue before the court was whether there were grounds for the judge to recuse himself based on apprehended bias. This involved an assessment of whether a reasonable and informed person, knowing the facts, would apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is to decide.

Judge Harman considered the wife's submissions regarding her apprehension of bias, which were largely based on previous judicial findings and the perceived tone of certain communications. The judge ultimately concluded that the wife had not established a sufficient basis for recusal, finding that no reasonable apprehension of bias existed. The court then proceeded to make orders addressing the financial and procedural aspects of the case, including the payment of a sum by the wife to the husband, the payment of costs, and the discontinuance of related proceedings in the Federal Circuit Court.

Orders

Orders of the court

Pursuant to section 117B(2) of the Family Law Act 1975 no interest shall be payable by the wife to the husband with respect to the above payment.

Each party shall pay their own costs of an incidental to these proceedings.

Pursuant to section 114 of the Family Law Act 1975 the parties and each of them shall be and are hereby restrained from taking any step with respect to proceedings SYG537/2018 before the Federal Circuit Court Sydney save and except for the purpose of discontinuing those proceedings or providing such other advice to the Court as may be necessary to allow the proceedings to be discontinued or dismissed without any Order for costs in favour of or against either party.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

THE COURT NOTES that the wife has now paid to the husband the sum of $100,000 that was required to be paid pursuant to Orders made 20 September 2017 and as varied 31 October 2018.

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.

Actions

Citations

Clewer and Clewer [2019] FCCA 725

Most Recent Citation

Keaty & Swann [2023] FedCFamC1F 178

Cases Citing This Decision

Keaty & Swann [2023] FedCFamC1F 178
Citation 1 (Para 4)

…rrect. I also take the view that the arbitrator followed the legislative pathway correctly and made correct findings of fact in arriving at the conclusions that were anterior to the percentage division. In my view, the arbitrator’s discretion did not miscarry. QUESTION D The precise form of question posed by the wife…
Sykes v Minister for Mines and Energy and Queensland Gas Company Limited [2008] QLAC 201
Citation 2 (Para 5)

…9 NSWLR 263 at 279. "In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would no…
R v Sinanovic [2000] NSWCCA 396
Citation 3

…QB 67 at 71. 43 In that the obvious inspiration of the irritation was generally the Appellant, his Honour’s comments were calculated to have the effect of denigrating the points, such as they were, which the Appellant was seeking to make. That being so, one cannot ignore the possibility of the jury gaining the impres…
Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288
Citation 4

…n which Kirby ACJ said (at 281) that a judge’s interventions might indicate that a fair trial had been denied because the judge had “closed his or her mind to further persuasion, moved into counsel’s shoes and ‘into the perils of self-persuasion’”. As well as intervention, however, Mr Kekatos said that errors in findi…
Partridge v Building Disputes Tribunal [1999] NSWSC 810
Citation 5

…notes of an endeavour to be even-handed. For instance at the conclusion of the notes for 27 October 1997 (p 10 of the typescript) the following appears: “I said we really need to stop now. [the plaintiff] needs to sit down and reflect on the claim and may be put it in some order. Perhaps [the plaintiffs’ witness] will…

See all citing cases →

Cases Cited

Simic & Norton [2017] FamCA 1007
Citation 1 (Para 31)

…The above comment is informed by that which fell from Benjamin J in Simic & Norton [2017] FamCA 1007 , and having regard to what has actually occurred in these proceedings.…
Galea v Galea [2015] NSWCCA 215
Citation 2 (Para 28)

…Similar comments were made by Kirby ACJ, as he then was, in Galea v Galea (1990) 19 NSWLR 263 at 279. His Honour, perhaps, went even further by acknowledging and investing judges with humanity. His Honour indicated that: A judgment of the loss of impartiality and neutrality would not be made from a short and emotional…
Bryant v Hawkesbury Radio Communication Co-operative Society Limited [2014] NSWSC 848
Citation 3

…tegic Management and Marketing Pty Ltd (2013) 250 CLR 303 John Richard Bryant v Hawkesbury Community Radio Communication Co-operative Society Limited [2014] NSWSC 848…
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46
Citation 4

…FamCA 1007 Aon Risk Services v ANU (2009) 239 CLR 175 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 John Richard Bryant v Hawkesbury Community Radio Communication Co-operative Society Limited [2014] NSWSC 848…
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Citation 5

…ea v Galea (1990) 19 NSWLR 263 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 Simic & Norton [2017] FamCA 1007 Aon Risk Services v ANU (2009) 239 CLR 175 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 John Richard Bryant v Hawkesbury C…
R v Wise [2004] VSCA 88
Citation 6 (Para 27)

…I am conscious of comments made by Eames AJ in Wise [2004] VSCA 88 at 14: It is inevitable that a judge having read the depositions for a plea, as is appropriate in preparation, will have formed some tentative opinion about the case. In my view the fair minded observer would understand that that might be so and w…
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Citation 7

…Cases cited: Wise & Wise [2004] VSCA 88 Galea v Galea (1990) 19 NSWLR 263 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 Simic & Norton [2017] FamCA 1007 Aon Risk Services v ANU (2009) 239 CLR 175 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250…
Ebner v The Official Trustee in Bankruptcy [2000] HCA 637
Citation 8

…Cases cited: Wise & Wise [2004] VSCA 88 Galea v Galea (1990) 19 NSWLR 263 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 Simic & Norton [2017] FamCA 1007 Aon Risk Services v ANU (2009) 239 CLR 175 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 John Richard Bryant v…

Legislation Cited

Family Law Act 1975 (Cth) 117(1), 79A
3 mentions (from Para 1)
Federal Circuit Court Rules 2001 (Cth)
1 mention (from Para 13)