Eccheli & Eccheli (No 6)

Case [2025] FedCFamC1F 325

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Eccheli & Eccheli (No 6) [2025] FedCFamC1F 325

File number: SYC 1191 of 2024
Judgment of: SCHONELL J
Date of judgment: 16 May 2025 
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for recusal on the grounds of actual bias, apprehended bias, and denial of procedural fairness – Where the husband makes an oral application for recusal arising from a dismissal of a stay of proceedings and a series of interlocutory hearings – Where the husband’s solicitor contends that she was bullied by the Court – Where the husband does not establish any basis for recusal – Application for recusal dismissed .
Legislation:

Family Law Act 1975 (Cth) Pt VIII, s 77

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.06(4)(b), 6.18, 6.22(3)(b)

Cases cited:

Barton v Walker [1979] 2 NSWLR 740

Bienstein v Bienstein (2003) FLC 93-124; [2003] HCA 7

Concrete Pty Ltd v Parramatta & Developments (2006) 229 CLR 577; [2006] HCA 55

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Eccheli & Eccheli [2024] FedCFamC1F 234

Eccheli & Eccheli (No 3) [2025] FedCFamC1F 267

Finch & Finch (2020) FLC 93-949; [2020] FamCAFC 60

Galea v Galea (1990) 19 NSWLR 263

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

Johnson v Johnson (2000) 201 CLR 48; [2000] HCA 48

Kartinyeri v Commonwealth (1998) 156 ALR 300; [1998] HCA 52

Kingston & Field (No 2) (2020) FLC 93-986; [2020] FamCAFC 235

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17

Michael Wilson and Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Reid v Commercial Club (Albury) Ltd [2014] NS7WCA 98

Rouvinetis v Knoll [2013] NSWCA 24

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Division: Division 1 First Instance
Number of paragraphs: 109
Date of hearing: 29 April 2025, 8 May 2025, 14 May 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:

16 MAY 2025

THE COURT ORDERS THAT:

1.The husband’s oral application for recusal made 29 April 2025 is dismissed.

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…

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Details
AGLC
Eccheli & Eccheli (No 6) [2025] FedCFamC1F 325
Case
[2025] FedCFamC1F 325
Decision Date

CaseChat Overview and Summary

In the case of Eccheli & Eccheli (No 6), the husband made an oral application for the judge to recuse themselves from the proceedings, citing grounds of actual bias, apprehended bias, and denial of procedural fairness. The dispute arose from the husband's dissatisfaction with the dismissal of a stay of proceedings and several interlocutory hearings. The husband's solicitor claimed that she had been bullied by the Court. The legal issues before the Court were whether the judge's conduct warranted recusal based on the grounds of bias and procedural unfairness.

The Court examined the husband's assertions of bias and procedural unfairness, considering the requirements to establish actual bias, apprehended bias, and denial of procedural fairness. The Court noted that the husband's solicitor made a series of assertions without engaging with the necessary legal tests or demonstrating how the judge's conduct might lead a fair-minded lay observer to apprehend bias. The Court found that the husband did not meet the strict requirements to establish actual bias or apprehended bias, nor did he demonstrate that he was denied procedural fairness. The Court concluded that the husband's complaints did not establish that the judge might not bring an impartial mind to the determination of the issues.

The Court dismissed the husband's application for recusal. The judge found that the husband's claims were unfounded and did not meet the necessary legal standards. The Court emphasised that the making of adverse determinations alone does not establish bias or procedural unfairness. Consequently, the judge's oral application for recusal was dismissed.

The Court made an order dismissing the husband's application for recusal made on 29 April 2025. This order is final and subject to entry in the Court’s records. The form of the order may be subject to minor review to correct typographical or grammatical errors, or to record any variation to the order as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

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:

16 MAY 2025

THE COURT ORDERS THAT:

1. The husband’s oral application for recusal made 29 April 2025 is dismissed.

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.

Background

Background to the litigation

Following delivery of judgment, the husband’s solicitor made an oral application that I recuse myself from further hearing the proceedings on the grounds of bias. Given the breadth of the contentions as the foundation for the recusal involved both assertions of actual and apprehended bias, it is important to provide some historical context.BACKGROUND The husband commenced proceedings pursuant to Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) on 21 February 2024. The matter first came before this Court on 6 March 2024 when I made orders for the wife to file her Response to the husband’s Initiating Application and affidavits in response to the husband’s interlocutory relief and listed the hearing of those applications on 2 April 2024. On 2 April 2024, I heard the competing applications. The wife sought amongst other relief spousal and adult child maintenance, the payment of outgoings on a property at Suburb E and to retain the proceeds of sale of three properties. The husband for his part sought amongst other relief to retain the proceeds of sale of all three properties. The parties were agreed the wife would remain in occupation of the property at Suburb E while the husband would have occupation of a property in Queensland pending its sale. On 12 April 2024, the Court delivered reasons for judgment as recorded in Eccheli & Eccheli [2024] FedCFamC1F 234. Neither party was entirely successful. In summary, the wife’s application for periodic spousal and adult child maintenance was refused, the wife retained the proceeds of sale of two properties estimated to be approximately $1,084,000 while the husband received the proceeds of sale of one of them estimated to be $974,000 and was ordered to pay the outgoings and mortgage payments on the Suburb E property occupied by the wife. The matter next came before me on 7 June 2024. On that day, I made orders by consent for disclosure, the appointment of expert real estate valuers, and for a single expert to undertake a valuation of various corporate entities with a future listing date of 6 December 2024. On 2 December 2024, the husband filed an Application in a Proceeding seeking various interlocutory orders. On 6 December 2024, I made orders by consent for the appointment of a particular person to undertake valuations of real estate in both New South Wales and Queensland, the process by which the identity of a mediator could be confirmed, and orders in relation to the transfer of registration of motor vehicles. I also made an order for the wife to file and serve a Response to the husband’s Application in a Proceeding. The matter next came before me on 14 March 2025. On that occasion, the husband’s solicitor advised that the husband had recently changed legal representatives. The matter was stood down and the parties prepared an agreed timetable for the hearing of the outstanding interim applications. Orders were subsequently made by consent listing the then outstanding interlocutory applications for an interim hearing to take place on 4 April 2025. Relevant to aspects of the application for recusal, the orders provided for the husband to file and serve his application and affidavits by 21 March 2025.

Evidence

Evidence Before The Court

They represent background to the issues in the hearing and refer to the evidence of the wife and the husband. The fair-minded lay observer knows about the background to the litigation and the husband fails to establish why they might reasonably apprehend (given the knowledge they have) that I might not bring an impartial and unprejudiced mind to the resolution of the interlocutory issues.At [33] of the reasons for judgment delivered 29 April 2025 the Court misinterpreted the husband’s Financial Statement and took the husband’s evidence into account in a negative light. The assertion that I misinterpreted the husband’s Financial Statement and took his evidence into account in a negative light fails to identify how or in what way it was misinterpreted or taken into account in a negative way. The fact of interpretation in a particular way even adverse to the case advanced by the husband does not demonstrate prejudgment.DISPOSITION The husband’s solicitor’s submissions amounted at best to a series of assertions that were said to constitute actual bias, apprehension of bias or a denial of procedural fairness. There was no attempt to engage with either of the steps in Ebner nor was there any engagement in any way with the question of reasonableness, nor an attempt to meet the strict requirements necessary to establish actual bias, or to engage with the matters said to establish a denial of procedural fairness. As to the assertions of apprehended bias the Full Court observed in Kingston & Field (No 2) (2020) FLC 93-986 apposite to the assertions here:20.The assertion of apprehended bias remains a bare and unfounded allegation until the connection between the primary judge’s conduct and the possibility of departure from the judicial duty of impartiality is clearly articulated. The making of an adverse determination does not establish actual or apprehended bias nor a denial of procedural fairness. I am not satisfied either singularly or cumulatively the asserted complaints establish that a fair-minded lay observer might apprehend that I might not bring an impartial mind to the determination of the issues before the Court nor do they establish that the husband was denied procedural fairness or that the hearing was unfair. The husband’s oral application that I recuse myself is dismissed.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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