FAMILY COURT OF AUSTRALIA
Fowles & Fowles [2021] FamCA 368
File number(s): MLC 8587 of 2015 Judgment of: BENNETT J Date of judgment: 9 June 2021 Catchwords: FAMILY LAW – COURTS AND JUDGES – Disqualification – where party alleges apprehended bias based on constraint on husband’s liberty, length of cross examination and intervention in cross examination - application made during long and protracted hearing – application dismissed Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Cases cited: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Finch and Finch (2020) FLC 93-949
Galea v Galea (1990) 19 NSWLR 263
Fowles & Fowles (No. 2) [2019] FamCA 1027
Fowles & Fowles [2019] FamCA 1011
Johnson v Johnson (2000) 201 CLR 488
Livesey v NSW Bar Association (1983) 151 CLR 288
Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42
Michel v The Queen [2010] 1 WLR 879
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128
Number of paragraphs: [201] Date of written submissions: Husband’s written submissions dated 29 October 2020;
Wife’s written submissions dated 9 November 2020;
Husband’s written submissions in reply dated 13 November 2020.Date of hearing: 28 October 2020 Place: Melbourne Counsel for the Applicant: Mr Sheales Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr North SC Solicitor for the Respondent: Taussig Cherrie Fildes Family Lawyers ORDERS
MLC 8587 of 2015 BETWEEN: MS FOWLES
ApplicantAND: MR FOWLES
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
THE COURT ORDERS THAT:
1.I grant leave for the husband to make an oral application that I recuse myself from hearing any further aspect of this proceeding.
2.The parties’ submissions in respect of the husband’s application be marked as exhibits and remain on the court file.
3.I dismiss the husband’s application with the effect that I remain seized of the matter for final determination.
4.Subject to any further or other order made by me, this matter be set down for further hearing on the following dates:
(a)31 August to 3 September 2021;
(b)6 to 8 September 2021 –
in the expectation that the matter will conclude within that time.
5.Any party wishing to make an application for costs of or incidental to the husband’s application, do so within 30 days and, regardless of the basis upon which costs are sought to be calculated, support such application with a memorandum of costs drawn in accordance with Schedule 3 to the Family Law Rules 2004. Upon an application being filed, my Associate will inform the parties of a timetable for filing submissions as to costs.
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…
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CaseChat Overview and Summary
The legal issues before the court were whether the judge's interventions during the cross-examination of the husband, the length of that cross-examination, and the constraint on the husband's liberty, when considered individually and cumulatively, gave rise to a reasonable apprehension of bias. The court was required to determine if a fair-minded observer might reasonably conclude that the judge could not bring an impartial mind to the resolution of the case.
Bennett J considered the interventions in the context of the entire hearing and the conduct of both parties and their counsel. Her Honour was not satisfied that there was a reasonable possibility that a fair-minded observer would apprehend bias. Consequently, the husband's application for recusal was dismissed, and Bennett J remained seized of the matter for final determination. The matter was subsequently adjourned for further hearing dates in late August and early September 2021.
Orders
Orders of the court
MLC 8587 of 2015
BETWEEN:
MS FOWLES
Applicant
AND:
MR FOWLES
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
THE COURT ORDERS THAT:
1. I grant leave for the husband to make an oral application that I recuse myself from hearing any further aspect of this proceeding.
2. The parties’ submissions in respect of the husband’s application be marked as exhibits and remain on the court file.
3. I dismiss the husband’s application with the effect that I remain seized of the matter for final determination.
4. Subject to any further or other order made by me, this matter be set down for further hearing on the following dates:
(a) 31 August to 3 September 2021;
(b) 6 to 8 September 2021 –
in the expectation that the matter will conclude within that time.
5. Any party wishing to make an application for costs of or incidental to the husband’s application, do so within 30 days and, regardless of the basis upon which costs are sought to be calculated, support such application with a memorandum of costs drawn in accordance with Schedule 3 to the Family Law Rules 2004. Upon an application being filed, my Associate will inform the parties of a timetable for filing submissions as to costs.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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