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Manuel & Pinner (No 2)

Manuel & Pinner (No 2)

Case [2022] FedCFamC2F 640 13 May 2022

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Manuel & Pinner (No 2) [2022] FedCFamC2F 640

File number(s): CAC 1658 of 2013

Judgment of: JUDGE W J NEVILLE

Date of judgment: 12 May 2022

Catchwords: FAMILY LAW – Recusal of Judge – alleged contempt of other party’s solicitor – grounds for recusal of Judge are not made out – grounds for contempt are not made out – non-compliance with Orders - Application dismissed – procedural Orders made regarding costs in the light of multiple existing costs Applications to be heard at final hearing in May 2022

Legislation:
Evidence Act 1995 (Cth), ss 140, 141

Family Law Act1975 (Cth), ss 102NA, 112AP

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Rule 2.01 (and the Schedule to it); Rule 5.04, Part 10.6

Cases cited:
DAI v DAA (2005) 191 FLR 360; 33 Fam LR 1

Antoun v The Queen (2006) 80 ALJR 497

Australasian Meat Industry Employee’s Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98

Bande v Cade (2012) 45 Fam LR 376

Beckert v Beckert (2021) 64 Fam LR 218

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438

Isbester v Knox City Council (2015) 255 CLR 135

Johnson v Johnson (2000) 201 CLR 488

LGM v CAM (2006) 200 FLR 360; 35 Fam LR 124

Lim v Zong [2001] FamCAFC 165

Manual & Pinner [2021] FedCFamC2F 468

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Naparus & Frankham (No.3) [2021] FamCAFC 150

Nichles, In the matter of an application for leave to issue or file [2022] HCATrans 95 (13 May 2022)

Re JRL; Ex parte CJL (1986) 161 CLR 342

Smits v Roach (2006) 205 CLR 423

Tate & Tate (No.3) (2003) FLC 93-138

Vakauta v Kelly (1989) 167 CLR 568

Witham v Holloway (1995) 183 CLR 525

Division: Division 2 Family Law

Number of paragraphs: 74

Date of Hearing 2 May 2022

Place: Canberra

Lawyer for the Applicant Self-represented

Lawyer for the Respondent Farrar Gesini Dunn

Independent Children’s Lawyer Robinson + McGuinness
ORDERS

CAC 1302 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MANUEL
Applicant

AND:
MS PINNER
Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

12 MAY 2022

THE COURT NOTES THAT:
A.The Applicant did not attend the Judgment Delivery; and
B.If the Applicant does not attend the Final Hearing, and continues his recent practices of non-compliance with Court Rules, directions and Orders of the Court, the matter may proceed on an undefended basis; accordingly,

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The Application in a Proceeding, filed 11^th April 2022, be dismissed.
2.The Respondent’s costs of, an incidental to, the Application in a Proceeding be paid by the Applicant, with details to be finalised at the Final Hearing.

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 Manuel & Pinner (No 2)

Details

AGLC: Manuel & Pinner (No 2) [2022] FedCFamC2F 640
Case: [2022] FedCFamC2F 640
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) considered the case of Manuel v Pinner, concerning a father's application for a contempt finding against the mother's solicitor and for the judge to recuse himself. The father, Manuel, sought these orders on the grounds that the solicitor had allegedly lied to the court and that the judge had shown bias. The court dismissed the father's application, finding that the father's claims were unsubstantiated and did not meet the required standard of proof for contempt. Furthermore, the court determined that the father's allegations of bias against the judge were not supported by any objective evidence, and thus did not meet the test for apprehended bias. The court highlighted the father's recent conduct, which included repeated insults, protests, and non-compliance with court rules and directions, as counter-productive and detrimental to the proceedings and to the best interests of the child. The court emphasized the importance of civility, advocacy, and compliance with court processes and rules in family law matters.

Orders