Iphostrou and Iphostrou and Ors (No 2) - [2011] FamCA 84

FAMILY COURT OF AUSTRALIA

IPHOSTROU & IPHOSTROU AND ORS (NO. 2)

[2011] FamCA 84

FAMILY LAW – COURTS AND JUDGES – Recusal – application dismissed

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

British American Tobacco Services Limited v Laurie [2011] HCA 2
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gould & Gould unreported 29 June 2004 per Fogarty, Kay & Renaud JJ discussed In the Marriage of Farnell (1996) FLC 92-681)
Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-014
Livesey and the New South Wales Bar Association (1983) 151 CLR 288
McDonald (O’Ryan J, unreported 8 October 2001)
Re JRL; Ex Parte CJL (1986) 161 CLR 342

APPLICANT:

Ms Iphostrou

RESPONDENT:

Mr Iphostrou

2^ND RESPONDENT:

P Iphostrou

3^RD RESPONDENT:

J Iphostrou

OTHER PARTIES

Corporate entities

FILE NUMBER:

MLC

8731

2009

DATE DELIVERED:

21 FEBRUARY 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

15 FEBRUARY 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR BURNSIDE QC WITH MR EDMUNDS

SOLICITOR FOR THE APPLICANT:

HALLETT WEST

THE RESPONDENT:

IN PERSON

COUNSEL FOR THE 2^ND AND 3^RD

RESPONDENTS AND THE CORPORATE

ENTITIES:

MR DENTON SC WITH MS DJOHAN

Orders

That the application filed 11 February 2011 is dismissed.
That the husband’s oral application for recusal of Justice Cronin made 11 February 2011 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Iphostrou & Iphostrou and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8731 of 2009

MS IPHOSTROU

Applicant

And

MR IPHOSTROU

Respondent

And

P AND J IPHOSTROU
2^ndand 3^rd Respondents

And

CORPORATE ENTITIES
Other Parties

REASONS FOR JUDGMENT

The husband and a number of respondents to these financial proceedings have sought an order that I recuse myself from further hearing the proceedings.
The husband did not file such an application but the other respondents did. For convenience, I shall refer to those respondents as the corporate respondents. The husband said that he joined in the submissions of the corporate respondents although his stated position was that I should not hear his case because I had made a decision against him.
Before turning to the recusal issue, it is instructive to consider the law specifically concerning apprehended, as distinct from actual, bias. The assertion of at least the corporate respondents is that the bias takes the form of prejudgment.
The test to be applied is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
The applicable principles can be seen in Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-014 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. In Johnson, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said that the test was an…

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 Iphostrou and Iphostrou and Ors (No 2)

Details

AGLC: Iphostrou and Iphostrou and Ors (No 2) [2011] FamCA 84
Case: [2011] FamCA 84
Decision Date: 21 FEBRUARY 2011

CaseChat Overview and Summary

The application before the court concerned an application filed on 11 February 2011. The parties involved were Iphostrou and Iphostrou and Ors (No 2). The specific nature of the dispute is not detailed in the provided text, beyond the fact that an application was made and subsequently dismissed. The decision was made by Justice Cronin.

The primary legal issue before the court was the determination of the application filed on 11 February 2011. Additionally, the court was required to consider and rule upon an oral application made by the husband on the same date for the recusal of Justice Cronin.

Justice Cronin dismissed the application filed on 11 February 2011. Furthermore, the husband's oral application for the recusal of Justice Cronin was also dismissed. No further reasoning or legal principles applied are discernible from the provided text.

Orders

Orders of the court

That the application filed 11 February 2011 is dismissed.

That the husband’s oral application for recusal of Justice Cronin made 11 February 2011 is dismissed.

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

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Ratio Decidendi

Legal Principle Established

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