Eccheli & Eccheli (No 4)

[2025] FedCFamC1F 274

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Eccheli & Eccheli (No 4) [2025] FedCFamC1F 274

File number:	SYC 1191 of 2024
Judgment of:	SCHONELL J
Date of judgment:	29 April 2025
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband makes an oral application for recusal alleging apprehended bias and actual bias – Where the husband’s solicitor contends she was bullied by the Court and seeks an adjournment to procure a sound recording of proceedings – Where the wife opposes the oral application for recusal and seeks costs against the husband for wastage – Where the Court permits the indulgence of an adjournment of the proceedings to procure the sound recording – Application adjourned for five days and determination for costs to be stood over to the next occasion.
Division:	Division 1 First Instance
Number of paragraphs:	9
Date of hearing:	29 April 2025
Place:	Sydney
Solicitor for the Applicant:	Ms Burrows, Zali Burrows Lawyers
Counsel for the Respondent:	Mr Dura SC
Solicitor for the Respondent:	Watts McCray

ORDERS

SYC 1191 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ECCHELI

Applicant

AND:

MS ECCHELI

Respondent

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	29 APRIL 2025

THE COURT ORDERS THAT:

1.Leave is granted to the husband to make an oral application for recusal.

2.Leave is granted to the husband to make an oral application for an adjournment to obtain a sound recording of the transcript of these proceedings dated 4 April 2025 (“the sound recording”).

3.The wife’s application for costs thrown away today is reserved to the next occasion.

4.The interim hearing is adjourned to 10.00 am on Thursday, 8 May 2025.

5.I give such approvals as are necessary for the provision of the sound recording to the solicitors for the husband and solicitors for the wife only.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eccheli & Eccheli has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

SCHONELL J:

1. There is listed before the Court today the parties’ competing applications for interlocutory relief.  In the case of the husband, it is contained in an application that appears to have been sealed on 24 April 2025, albeit that the husband’s solicitor indicated that there was also one dated 17 April 2025, but it seems that it contains the same orders. The wife is seeking orders contained in her Response to an Application filed on 11 March 2025.

2. By way of background to those applications, on 16 April 2025 I heard an application for a stay of orders that had been made on 4 April 2025 and delivered reasons for judgment this morning in relation to that stay dismissing the husband’s stay. Consequent upon that, the husband’s solicitor made an oral application for recusal.

3. The grounds contend both apprehended and actual bias and in broad terms contend that I had demonstrated bias:

   ·By refusing a stay;

   ·In allowing the wife to rely upon documents that were served out of time but not permitting the same to the husband;

   ·That for the reasons set out in the Notice of Appeal at Grounds 6 and 7;

   ·That I did not read properly a Costs Notice;

   ·That in a judgment delivered by me on 12 April 2024 I demonstrated apprehended bias in not believing the evidence of the husband;

   ·That at an appearance on 4 April 2025 I bullied the husband’s solicitor; and

   ·That the reasons for judgment delivered 29 April 2025 of themselves demonstrate apprehended bias in that by paragraph 6 of those reasons I acted as an advocate for the wife and by paragraph 33 of those reasons  I misinterpreted the husband’s Financial Statement such that I took his evidence in a negative light.

4. These contentions as advanced by the husband’s solicitor are said to give rise to an apprehension of bias or actual bias.

5. The husband’s solicitor then sought to rely upon the tone expressed by me towards her on 4 April 2025 and, in relying on tone, made an application for an adjournment of these proceedings. She indicated in the course of her submissions that she would need five days to obtain the sound recording and would therefore be ready to determine the application on 8 May 2025.

6. When enquiries were made of her as to what her position was in relation to the costs wasted as of today, she initially opposed an order for costs. The husband’s senior counsel indicated that costs of today are calculated in the sum of $17,890 inclusive of GST and he sought an order for costs to be payable within 28 days.

7. The husband’s solicitor says that the amount sought is excessive. Upon reviewing the wife’s Costs Memorandum I am not satisfied that $17,890 is truly the costs of today given that the amount for the solicitors involves preparation and attendance at court. In those circumstances I am not satisfied that I am in a position to make today an order for costs.

8. I will, however, grant the indulgence as sought by the husband’s solicitor. I am not satisfied that I have been given an adequate explanation as to why these matters, which are said to relate back to 4 April 2025, were not before the Court today but, nevertheless, will give the husband at this stage the benefit of the doubt and will adjourn these proceedings for hearing on 8 May 2025. If the sound recording is not ready on that day, then the matter will nevertheless still proceed.

9. I give such approvals as are necessary for the provision of the sound recording to the solicitors for the husband and the solicitors for the wife.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell.

Associate:

Dated:       2 May 2025