FAMILY COURT OF AUSTRALIA
| DICKENS & DICKENS (NO. 3) | [2019] FamCAFC 202 |
| FAMILY LAW – APPEAL – RECUSAL – Where the appellant made an oral application that her Honour recuse herself from hearing this appeal on the basis of apprehended bias – Where the appellant relies on her Honour hearing previous appeals and applications in this matter and contends that her Honour did not consider complaints made by the father –Where the test for apprehended bias is not made out – Application dismissed. |
| Dickens & Levine; Dickens & Dickens [2017] FamCAFC 24 Dickens & Dickens [2019] FamCAFC 150 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 |
| APPELLANT: | Mr Dickens |
| RESPONDENT: | Ms Dickens |
| INDEPENDENT CHILDREN’S LAWYER: | Moylan Family Lawyers |
| FILE NUMBER: | SYC | 739 | of | 2010 |
| APPEAL NUMBER: | EAA | 10 | of | 2019 |
| DATE DELIVERED: | 7 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 23 September 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 December 2018 |
| LOWER COURT MNC: | [2018] FamCA 1109 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Messner |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Moylan Family Lawyers |
Order made 23 September 2019
The appellant father’s oral application made on 23 September 2019 for the recusal of Justice Ainslie-Wallace be 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 Dickens & Dickens (No. 3) 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 10 of 2019
File Number: SYC 739 of 2010
| Mr Dickens |
Appellant
And
| Ms Dickens |
Respondent
And
| The Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 3 September 2019 in the course of hearing an application to review a decision of the Appeal Registrar (“Registrar”), the appellant made an oral application that I recuse myself from hearing his review of the Registrar’s decision. The basis for that application was that I had on 14 April 2015 dismissed his application for an extension of time in which to appeal orders made by Rees J and Johnston J and on 21 February 2017 I was a member of a Full Court bench which dismissed an appeal brought by the appellant against orders of Johnston J.
The appellant argued that having dismissed the application and the…
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- Dickens & Dickens (No. 3) [2019] FamCAFC 202
- Case
- [2019] FamCAFC 202
- Decision Date
CaseChat Overview and Summary
The court considered the well-established test for apprehended bias, which requires that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. The court found that the appellant's claims did not meet the threshold for recusal. The court observed that the judge had been a member of a Full Court bench that unanimously dismissed the appellant's previous appeals, and that the comments made in relation to the Independent Children's Lawyer related to the submission made by the appellant, not the individual or their conduct. The court concluded that a fair-minded reasonable observer, understanding the context of the applications decided by the judge and the Full Court, would not apprehend that the judge would fail to bring an impartial mind to the issue to be determined in the present appeal.
In light of the above, the court dismissed the appellant's application for the recusal of Justice Ainslie-Wallace. The court certified that the reasons for judgment accurately reflected its decision. The final orders were that the appellant's oral application made on 23 September 2019 for the recusal of Justice Ainslie-Wallace be dismissed.
Orders
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Evidence
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