HALSTEAD & LEES AND ANOR - [2020] FamCA 187

FAMILY COURT OF AUSTRALIA

HALSTEAD & LEES AND ANOR

[2020] FamCA 187

FAMILY LAW – COURTS AND JUDGES – DISQUALIFICATION APPLICATION – Apprehended bias – Objective test – Waiver of objection – Where orders were made permitting the mother to travel overseas with the children – Where the mother did not travel with the children on the first occasion orders were made – Where the mother travelled with the children on the second occasion orders were made – Where the mother has since failed to return the children to the jurisdiction – Where the application was made after the mother breached the orders – Where the father argues a hypothetical fair minded observer might now reasonably apprehend that judicial conduct will not be impartial and that matters will not be decided on merit – Apprehended bias not established – Application dismissed

Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
Dunwell & Dunwell [2011] FamCAFC 2
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Kwan v Kang [2003] NSWCA 336
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128

APPLICANT:

Mr Halstead

1st RESPONDENT:

Ms Lees

2nd RESPONDENT:

Ms Halstead

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

4768

2017

DATE DELIVERED:

28 February 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

13 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lindsay

SOLICITOR FOR THE APPLICANT:

Angela Ferdinandy

COUNSEL FOR THE 1st RESPONDENT:

No appearance

SOLICITOR FOR THE 1st RESPONDENT:

Litigant in Person

COUNSEL FOR THE 2nd RESPONDENT:

Ms Lewis

SOLICITOR FOR THE 2nd RESPONDENT:

Douglas Hoskins Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

That paragraph 1 of the father’s Application in a Case filed 28 January 2020 and the paternal grandmother’s oral Application for disqualification made on 13 February 2020 be dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Halstead & Lees has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4768 of 2017

Mr Halstead

Applicant

And

Ms Lees

1^st Respondent

And

Ms Halstead
2^nd Respondent

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HALSTEAD & LEES AND ANOR

Details

AGLC: HALSTEAD & LEES AND ANOR [2020] FamCA 187
Case: [2020] FamCA 187
Decision Date: 28 February 2020

CaseChat Overview and Summary

In the matter of *Halstead & Lees and Anor*, Berman J of the Federal Circuit Court of Australia considered an application by the father and a paternal grandmother seeking the disqualification of the mother from exercising parental responsibility. The precise nature of the dispute, beyond the request for disqualification, is not detailed in the provided text.

The central legal issue before the Court was whether the mother should be disqualified from exercising parental responsibility, as sought by the father and the paternal grandmother. This required the Court to assess the grounds upon which such a drastic measure could be justified under Australian family law.

Berman J dismissed both the father's application filed on 28 January 2020 and the paternal grandmother's oral application made on 13 February 2020. The reasons for this dismissal are not provided in the excerpt. The Court ordered that both applications be dismissed.

Orders

Orders of the court

That paragraph 1 of the father’s Application in a Case filed 28 January 2020 and the paternal grandmother’s oral Application for disqualification made on 13 February 2020 be dismissed.

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.