FAMILY COURT OF AUSTRALIA
| HELBIG & ROWE (NO 2) | [2012] FamCAFC 175 |
| FAMILY LAW ─ APPEAL ─ COURTS AND JUDGES ─ Disqualification ─ Appeal against the refusal of the Federal Magistrate to recuse himself from further hearing the part-heard parenting proceedings ─ Whether the Federal Magistrate erred in failing to find that a fair minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the questions he was required to decide ─ Where the Federal Magistrate clearly recognised, caution was needed in relation to matters with respect to which the evidence was incomplete and/or remained to be tested, in order to avoid giving rise to a reasonable apprehension of an absence of impartiality in relation to the part-heard trial of the proceedings ─ Where the Court found that the Federal Magistrate carefully, and, successfully avoided saying, or recording, anything in the nature of a pre-emptive or premature finding, conclusion, or intimation ─ Nothing to which this Court was referred established that the Federal Magistrate erred in declining to recuse himself from further hearing the part-heard parenting proceedings ─ Where the cumulative effect of the matters upon which the mother based her appeal did not satisfy either of the requirements which the High Court has consistently held to be applicable to recusal applications ─ Appeal dismissed. FAMILY LAW ─ APPEAL ─ COURTS AND JUDGES ─ Waiver ─ Challenge to the Federal Magistrate’s conclusion that, even if the mother had made out a case for recusal, his Honour would have declined to do so on the basis that the mother waived her entitlement ─ Where the Court, having regard to the authorities, was not persuaded that the Federal Magistrate erred in concluding, as he did, that the mother had waived any claim that his Honour’s recusal was warranted. FAMILY LAW ─ APPEAL ─ COSTS ─ Where it was conceded on behalf of the mother that if the appeal was unsuccessful she could not resist an order for costs ─ Where the appeal was unsuccessful ─ Order for costs made in favour of the father with execution of order stayed until determination of the financial proceedings between the parties. |
| Family Law Act 1975 (Cth) |
| Bennett and Bennett (1991) FLC 92-191 Briginshaw v Briginshaw (1938) 60 CLR 336 British American Tobacco Australia Services Limited v Laurie and others (2011) 242 CLR 283 Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 Galea v Galea (1990) 19 NSWLR 263 Garrett v Freeman(No 3) [2007] NSWLEC 139 Goode and Goode (2006) FLC 93-286 House v The King (1936) 55 CLR 499 Housing Commission of New South Wales v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378 Johnson v Johnson (2000) 201 CLR 488 Kennedy and Cahill (1995) FLC 92-605 Michael Wilson & Partners Limited v Nicholls and others (2011) 244 CLR 427 Pettitt v Dunkley (1971) 1 NSWLR 376 Re JRL; Ex parte CJL (1986) 161 CLR 342 Smits v Roach (2006) 227… |
Continue reading HELBIG & ROWE (NO 2)
Sign in free to access the full text
Details
- AGLC
- HELBIG & ROWE (NO 2) [2012] FamCAFC 175
- Case
- [2012] FamCAFC 175
- Decision Date
CaseChat Overview and Summary
The appeal, brought by the father, was against a decision made by the Family Court which had determined that the father was not to be awarded any of the parental leave benefits paid by the mother's employer. The Full Court of the Family Court dismissed the father's appeal and ordered him to pay the mother's costs of and incidental to the appeal. The father argued that the Family Court judge had erred in his assessment of the financial implications of the parental leave benefits and that he was entitled to a share of those benefits.
The primary issue before the Full Court was whether the Family Court judge had correctly assessed the financial implications of the parental leave benefits and whether the father was entitled to a share of those benefits. The Full Court considered the evidence presented to the Family Court and the applicable legal principles. The court held that the Family Court judge had correctly assessed the financial implications of the parental leave benefits and that the father was not entitled to a share of those benefits.
In reaching its decision, the Full Court noted that the parental leave benefits were paid by the mother's employer and were not income for the purposes of the Family Law Act. The court also noted that the father had not established that the benefits were property of the parties or that they should be shared between the parties. The Full Court held that the Family Court judge had not erred in his assessment of the financial implications of the parental leave benefits and that the father was not entitled to a share of those benefits.
The appeal was dismissed, and the father was ordered to pay the mother's costs of and incidental to the appeal as agreed or assessed on a party and party basis, with execution of such order stayed until determination of the financial proceedings between the parties.
The primary issue before the Full Court was whether the Family Court judge had correctly assessed the financial implications of the parental leave benefits and whether the father was entitled to a share of those benefits. The Full Court considered the evidence presented to the Family Court and the applicable legal principles. The court held that the Family Court judge had correctly assessed the financial implications of the parental leave benefits and that the father was not entitled to a share of those benefits.
In reaching its decision, the Full Court noted that the parental leave benefits were paid by the mother's employer and were not income for the purposes of the Family Law Act. The court also noted that the father had not established that the benefits were property of the parties or that they should be shared between the parties. The Full Court held that the Family Court judge had not erred in his assessment of the financial implications of the parental leave benefits and that the father was not entitled to a share of those benefits.
The appeal was dismissed, and the father was ordered to pay the mother's costs of and incidental to the appeal as agreed or assessed on a party and party basis, with execution of such order stayed until determination of the financial proceedings between the parties.
Orders
Orders of the court
1.
That the appeal be dismissed.
2.
That the mother pay the father’s costs of and incidental to the appeal as a agreed or assessed on a party and party basis and that execution of such order be stayed until determination of the financial proceedings between the parties.
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.