Edhouse & Edhouse (No 2)

Case [2024] FedCFamC1A 111

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Edhouse & Edhouse (No 2) [2024] FedCFamC1A 111

Appeal from: Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102
Appeal number: NAA 50 of 2024
File number: SYC 4161 of 2021
Judgment of: ALSTERGREN CJ, TREE & RIETHMULLER JJ
Date of judgment: 12 July 2024
Catchwords: FAMILY LAW – APPEAL – Leave to appeal – Where the appellant alleges bias on behalf of the primary judge – Consideration of test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where no apprehended bias is shown – Leave to appeal refused – Appeal dismissed
Legislation:

Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) s 69ZN

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28, 67

Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

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

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

Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102

House v The King (1936) 55 CLR 499; [1936] HCA 40

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

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

Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Number of paragraphs: 42
Date of hearing: 17 June 2024
Place: Heard in Sydney, delivered in Cairns  
Counsel for the Applicant: Ms Kennedy
Solicitor for the Applicant: Lander & Rogers
The Respondent: Did not participate – Submitting Notice filed 26 April 2024
The Independent Children’s Lawyer: Did not participate – Submitting Notice filed 10 March 2024

ORDERS

NAA 50 of 2024
SYC 4161 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS EDHOUSE

Applicant
AND:

MR EDHOUSE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALSTERGREN CJ, TREE & RIETHMULLER JJ

DATE OF ORDER:

12 JULY 2024

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused.

2.Appeal NAA 50 of 2024 be 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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Edhouse & Edhouse (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALSTERGREN CJ, TREE & RIETHMULLER JJ:

INTRODUCTION

  1. The applicant mother seeks leave to appeal against a decision by the primary judge declining to recuse herself from further hearings in the…

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AGLC
Edhouse & Edhouse (No 2) [2024] FedCFamC1A 111
Case
[2024] FedCFamC1A 111
Decision Date

CaseChat Overview and Summary

The appeal in Edhouse & Edhouse (No 2) was brought by Ms Edhouse, the applicant, against Mr Edhouse, the respondent, concerning the parenting arrangements for their five-year-old child. The appeal arose from a series of court orders regarding the child's living arrangements and the requirement for the applicant to provide medical reports, which she failed to do. The proceedings were heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the applicant, Ms Edhouse, had perjured herself in relation to her medical conditions and whether this constituted sufficient doubt to warrant reconsideration of the primary judge's decision. The court also had to determine if the primary judge exhibited any bias that would warrant an appeal. The respondent argued that the applicant had fabricated medical records and affidavits to avoid scrutiny over her mental health and ability to care for the child.

The court examined the evidence and found that there was no apprehended bias on the part of the primary judge. The court held that the applicant had indeed perjured herself, as evidenced by the lack of verifiable medical records and the oncologist’s affidavit stating that there were no records of treating the applicant. The court concluded that the primary judge's decision was sound and that there was no substantial injustice in dismissing the appeal. Consequently, the application for leave to appeal was refused, and the appeal was dismissed.

The court's final order was that the application for leave to appeal be refused and that the appeal be dismissed. The decision underscored the importance of truthfulness in court proceedings, especially in matters involving the care of children.

Orders

Orders of the court

NAA 50 of 2024

SYC 4161 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS EDHOUSE

Applicant

AND:

MR EDHOUSE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALSTERGREN CJ, TREE & RIETHMULLER JJ

DATE OF ORDER:

12 JULY 2024

THE COURT ORDERS THAT:

1. The application for leave to appeal be refused.

2. Appeal NAA 50 of 2024 be 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).

Background

Background to the litigation

The respondent and Independent Children’s Lawyer each filed Submitting Notices with respect to the appeal.BACKGROUND The proceedings from which this appeal arises concern the parenting arrangements for the parties’ five year old child. On 22 September 2021, Austin J made interim orders for the applicant to have sole parental responsibility of the child, who would live with the applicant and spend two nights each week with the respondent father. A Family Report was obtained by the parties on 14 January 2022. On 28 April 2023, the parties entered into consent orders for a mediation to be completed by 19 July 2023. Orders were also made for the applicant to file reports by her treating general practitioner and treating specialist as she had disclosed to the respondent that she had been diagnosed with cancer and had undergone treatment. On 19 July 2023, the matter was listed before the primary judge for a case management hearing; however, the applicant did not attend. The applicant’s solicitor at the time advised that she had been unable to contact the applicant since around 30 June 2023, and that the mediation that had been planned for 18 July 2023 did not proceed. Further, the applicant had not filed reports from her medical practitioners concerning her alleged cancer diagnosis or treatment. The hearing was adjourned to 28 July 2023, with a notation on the order that the Court would consider issuing a warrant for the applicant’s arrest if she failed to attend on the next occasion. On 28 July 2023, the applicant’s solicitor appeared, although they had filed a Notice of Ceasing to Act on 24 July 2023. The solicitor advised that the applicant had failed to attend on the last occasion as a result of an admission to hospital (described as “Pneumonia – Community acquired” in a document purporting to be from the hospital). No reports concerning the applicant’s cancer claims were filed, despite the earlier orders, nor an affidavit attesting to the applicant’s discharge summary from the recent hospitalisation. As a result, on 28 July 2023 the primary judge made orders that (in summary) provided the following:(a)That the applicant’s solicitors file and serve a Notice of Address for Service;(b)That there be an extension of time for the applicant to obtain and file the reports from her treating specialist and General Practitioner;(c)Leave for the respondent to issue subpoenas to five different medical facilities/specialists in relation to the applicant’s medical treatment; and(d)That the applicant file and serve a copy of the Discharge Summary dated [mid] 2023. On 23 August 2023, the respondent filed an urgent Application in a Proceeding seeking orders for the child to live with him and have only supervised time with the applicant. The substantive concerns of the respondent were outlined by the primary judge at [33]. In summary, the respondent was concerned about the applicant’s “physical and/or mental health and her capacity to care for [the child]” as no material was produced containing any records of the applicant having received cancer treatment or the applicant having been admitted to hospital for pneumonia in answer to the subpoenas issued by the respondent. The respondent had also acquired an affidavit by the oncologist named by the applicant stating that there were no records of treating a patient with the applicant’s name or date of birth, and that seven letters purporting to be from the oncologist appeared to be fakes. The issues arise in the context of the applicant having “a history of mental health issues including threats of suicide in January 2020, November 2020 and January 2021. … [and] was also scheduled under the Mental Health Act by Police on one occasion [i]n [early] 2021” (Respondent’s affidavit filed 23 August 2023, paragraph 48).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no merit to this aspect of the ground of appeal.CONCLUSION Returning to the question of whether leave to appeal should be granted, the applicant has not shown that the decision is attended by sufficient doubt to warrant its reconsideration. Moreover, even if the primary judge had formed a view that the applicant had perjured herself, we would not be satisfied that there is any substantial injustice, as it transpires that the applicant had in fact perjured herself, something that would be uncontroversial before any judge hearing the trial. The application for leave to appeal must be refused and the appeal dismissed.

Ratio Decidendi

Legal Principle Established

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