FAMILY COURT OF AUSTRALIA
| HAYES & EDDINGTON (NO 2) | [2014] FamCA 244 |
FAMILY LAW – DISQUALIFICATION – where the applicant seeks that judge disqualify himself – where the respondent opposes the application – where the test of apprehended bias is not satisfied – application dismissed
| Evidence Act 1995 (Cth) ss 131, 135 |
Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group [2000] HCA 63; (2000) 205 CLR 337.
| APPLICANT: | Ms Hayes |
| RESPONDENT: | Mr Eddington |
| FILE NUMBER: | MLC | 2949 | of | 2012 |
| DATE DELIVERED: | 25 March 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 25 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr St John SC |
| SOLICITOR FOR THE APPLICANT: | C E Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bartfeld QC |
| SOLICITOR FOR THE RESPONDENT: | Glezer Lanteri & Associates |
Orders
The oral application made on behalf of the applicant on 25 March 2014 that Benjamin J disqualify himself from the further hearing of the applications in these proceedings be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hayes & Eddington (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2949 of 2012
| Ms Hayes |
Applicant
And
| Mr Eddington) |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This morning Senior Counsel for Ms Hayes (“the applicant’) made an oral application on her behalf that I disqualify myself from the further hearing of these proceeding on the basis of perceived bias. That application was made following ex tempore reasons I had delivered yesterday afternoon in regard to the question of admissibility of an affidavit of the applicant which sought to be relied upon by the applicant. For the purpose of these reasons, it is of some value to me to reflect on the proceedings, and where they are at the present time.
In April 2012 the applicant commenced proceedings in this Court seeking unspecified orders for property and maintenance arising out of a relationship, she asserted was a de facto relationship, between herself and the late Mr Eddington (“the deceased respondent”).
The deceased respondent, at that time, was unwell and in November 2012 the applicant filed an amended initiating application, in which she again sought unspecified property orders and unspecified spousal, or partner, maintenance. In addition she sought a declaration that a de facto relationship existed between herself and the deceased respondent between early 1998 through to about June 2012. Directions were made for the parties to file affidavit material, and a number of affidavits were filed by the applicant, including those of hers on 1 November 2012 and 12 February 2013. Sadly, in February 2013, the deceased respondent passed away.
In May of 2013 an application was made by Mr E and Ms F (the executors of the Estate of the deceased respondent) to be substituted for the deceased respondent as parties to these proceedings.…
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- Case
- [2014] FamCA 244
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the test for apprehended bias was satisfied, thereby requiring the judge's disqualification.
Benjamin J applied the established test for apprehended bias, which requires the court to consider whether a fair-minded lay observer, having considered the facts, would apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is to decide. His Honour found that the test was not satisfied on the facts before him.
Consequently, the oral application made on behalf of the applicant for Benjamin J to disqualify himself from the further hearing of the applications in these proceedings was dismissed.
Orders
Orders of the court
1. The oral application made on behalf of the applicant on 25 March 2014 that Benjamin J disqualify himself from the further hearing of the applications in these proceedings be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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