JUDD & PRYOR - [2020] FamCA 782

FAMILY COURT OF AUSTRALIA

JUDD & PRYOR

[2020] FamCA 782

FAMILY LAW – COURTS AND JUDGES – Disqualification – Application by the father to disqualify a judge on the ground of apprehended bias – Where the father alleges a judge’s expressed views in other parenting proceedings in which he was involved gives rise to apprehended bias in the current proceedings – Where principles in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 are applied – Where the only application currently requiring consideration is the mother’s interlocutory application for outright dismissal of the father’s substantive parenting application, in respect of which there is no need to make a finding about the reliability of the father’s evidence – Application for disqualification is dismissed – Application made by the mother for summary relief is relisted for hearing after expiration of the appeal limitation period.

Family Law Act 1975 (Cth) Pts VII, XIB, ss 45A(2), 94(1AA)

Dautry & Wemple (2018) FLC 93-876
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Jardine & Sackville [2020] FamCA 346
Johnson v Johnson (2000) 201 CLR 488
Moorcroft & Moorcroft (2018) FLC 93-881
Pryor & Judd [2016] FamCA 820
Pryor & Judd [2017] FamCA 55
Rice and Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
Spencer v Commonwealth of Australia (2010) 241 CLR 118

APPLICANT:

Mr Judd

RESPONDENT:

Ms Pryor

FILE NUMBER:

NCC

3004

2014

DATE DELIVERED:

18 September 2020

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle (via telephone)

JUDGMENT OF:

Austin J

HEARING DATE:

18 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

Orders

The Application in a Case filed by the applicant father on 12 August 2020 is dismissed.
The proceedings are listed before Austin J at 9.30 am on Monday 26 October 2020 for hearing of the respondent mother’s application for the summary relief set out in her Amended Response filed on 26 July 2020.

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 Judd & Pryor 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 NEWCASTLE

FILE NUMBER: NCC 3004 of 2014

Mr Judd

Applicant

And

Ms Pryor

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Background

In September 2016, Cleary J made final parenting orders between the applicant father and the respondent mother under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of their only child – a son who…

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.

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Details

AGLC: JUDD & PRYOR [2020] FamCA 782
Case: [2020] FamCA 782
Decision Date: 18 September 2020

CaseChat Overview and Summary

The applicant father sought to have proceedings dismissed, while the respondent mother sought summary relief. The matter came before Austin J in the Family Court of Australia.

The central legal issue was whether the father's application for dismissal of the proceedings should be granted. This required the court to consider the appropriate course of action given the mother's application for summary relief.

Austin J dismissed the father's application. The court then listed the proceedings for a hearing of the mother's application for summary relief, indicating that the father's attempt to have the matter dismissed was unsuccessful and that the mother's claim would proceed to be heard.

Orders

Orders of the court

The Application in a Case filed by the applicant father on 12 August 2020 is dismissed.

The proceedings are listed before Austin J at 9.30 am on Monday 26 October 2020 for hearing of the respondent mother’s application for the summary relief set out in her Amended Response filed on 26 July 2020.

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

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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