Fowles & Fowles

Case [2021] FamCA 368


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

R v T, WA (2014) 118 SASR 382

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
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…

Continue reading Fowles & Fowles

Sign in free to access the full text

Details
AGLC
Fowles & Fowles [2021] FamCA 368
Case
[2021] FamCA 368
Decision Date

CaseChat Overview and Summary

In the matter of MLC 8587 of 2015, Ms Fowles was the applicant and Mr Fowles was the respondent. The dispute before Bennett J concerned an application by the husband for the judge to recuse herself from hearing the proceeding due to apprehended bias.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Looking at the interventions relied upon individually and cumulatively with a comprehensive appreciation of the behaviour of the husband and contribution of counsel for both parties, I am not satisfied that there is a reasonable possibility that a fair-minded observer might reasonably conclude that I might not bring an impartial mind to the resolution of the case before me. CONCLUSION For the above reasons, I refuse the husband’s application and do not recuse myself.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.