DISHMAN & DISHMAN - [2019] FCCA 2786

FEDERAL CIRCUIT COURT OF AUSTRALIA

DISHMAN & DISHMAN

[2019] FCCA 2786

Catchwords:
FAMILY LAW – Application for recusal – where myriad complaints raised by self-represented party – where no complaint asserts prejudgement of issues – where complaints relate to conduct of wife and her legal representatives, disclosure and the husband’s perceptions – where transcripts do not support complaints – where complaints are ill-conceived – where a reasonably minded lay observer would not apprehend bias or pre-judgement – application dismissed.

Legislation:

Family Law Act 1975 (Cth), s.75(2)
Federal Circuit Court Rules2001 (Cth), rr.4.03, 4.05, 24.02, 14.01
Evidence Act1995 (Cth), s.131

Cases cited:

Ebner v Official Trustee in Bankruptcy[2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson[2000] HCA 48; (2000) 201 CLR 488
Merrell & Merrell [2019] FCCA 1184
Stanford v Stanford (2012) 247 CLR 108
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46
Jabour & Jabour [2019] FamCAFC 78
U & U [2002] FLC 93-112
Luck v Secretary, Department of Human Services [2017] FCA 540
Ugur v Attorney-General for New South Wales[2019] NSWCA 86
Vakauta v Kelly[1989] HCA 44; (1989) 167 CLR 568

Applicant:

MS DISHMAN

Respondent:

MR DISHMAN

File Number:

PAC 6114 of 2018

Judgment of:

Judge Harman

Hearing date:

23 September 2019

Date of Last Submission:

23 September 2019

Delivered at:

Parramatta

Delivered on:

23 September 2019

REPRESENTATION

Counsel for the Applicant:

Mr Schroeder

Solicitors for the Applicant:

Matthews Dooley & Gibson

The Respondent appeared in Person

ORDERS

I dismiss the Application in a Case filed 28 August 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 6114 of 2018

MS DISHMAN

Applicant

And

MR DISHMAN

Respondent

REASONS FOR JUDGMENT

These proceedings are listed today for trial.
The proceedings concern issues of property adjustment between a married couple, a wife and a husband, the applicant and the respondent respectively.
In the period between the matter being last before the Court and today’s trial date, an Application in a Case has been filed by the husband. The husband moves for relief in accordance with the Application in a Case this morning.
The Application in a Case was filed on 28 August 2019 and listed to today, the first available date on which it could be accommodated.
The husband seeks, to the extent that it is relevant, orders as follows:
(1)That the husband be granted leave to file his final affidavit out of time and on or before 26 August 2019. The affidavit was to be filed on 23 August, a Friday. It was, instead, filed on the following Monday. Properly, no objection is taken by the wife or her counsel in relation to the document being filed one business day late, thus no issue arises.
(2)That his Honour Judge Harman immediately recuse…

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 DISHMAN & DISHMAN

Details

AGLC: DISHMAN & DISHMAN [2019] FCCA 2786
Case: [2019] FCCA 2786
Decision Date: 23 September 2019

CaseChat Overview and Summary

In *Dishman & Dishman*, the applicant, a self-represented party, sought the recusal of Judge Harman from proceedings concerning family law matters. The applicant raised numerous complaints, primarily directed at the conduct of the wife and her legal representatives, issues of disclosure, and the applicant's own perceptions of the proceedings.

The central legal issue before the court was whether there was a reasonable apprehension of bias or pre-judgment on the part of the judge, necessitating recusal. The court was required to assess whether the applicant's complaints, when viewed objectively, demonstrated that a reasonably informed lay observer would conclude that the judge could not bring an impartial mind to the resolution of the case.

Judge Harman considered the applicant's complaints in light of the available transcripts and found them to be ill-conceived and unsupported by the evidence. The judge determined that the complaints did not assert any actual pre-judgment of the issues by the court, nor did they demonstrate any conduct that would lead a reasonable observer to apprehend bias. The judge applied the well-established legal principles governing applications for recusal, focusing on the appearance of impartiality rather than any actual bias.

Consequently, the application for recusal was dismissed.

Orders

Orders of the court

I dismiss the Application in a Case filed 28 August 2019.

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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