Marino & Bello

Case [2020] FamCAFC 314

FAMILY COURT OF AUSTRALIA

MARINO & BELLO AND ANOR [2020] FamCAFC 314
FAMILY LAW – APPEAL – PARENTING – RECUSAL – SUMMARY DISMISSAL – Apprehended bias – Procedural fairness – Error of law – Recusal order plainly wrong – Where the respondents concede the appeals – Appeals allowed – No order as to costs.
Family Law Act 1975 (Cth)
Bretton & Bondai [2013] FamCAFC 168
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Lindon v Commonwealth of Australia(No 2) (1996) 136 ALR 251; [1996] HCA 14
Marino & Bello & Anor [2020] FCCA 1727
Marino & Bello & Anor (No.2) [2020] FCCA 2203
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
APPELLANT: Mr Marino
FIRST RESPONDENT: Mr Bello
SECOND RESPONDENT: Ms Bello
FILE NUMBER: PAC 437 of 2020
FIRST APPEAL NUMBER: EAA 106 of 2020
SECOND APPEAL NUMBER: EAA 136 of 2020
DATE DELIVERED: 11 December 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney (via video link)
JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ
HEARING DATE: 6 November 2020
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE:  26 June 2020; and
15 September 2020
LOWER COURT MNC: [2020] FCCA 1727; and
[2020] FCCA 2203

REPRESENTATION

APPELLANT: Litigant in person
COUNSEL FOR THE FIRST AND SECOND RESPONDENTS: Ms Dart
SOLICITOR FOR THE FIRST AND SECOND  RESPONDENTS: Rowlandson & Co Solicitors

Orders made on 6 November 2020

  1. Leave be granted to the appellant to rely on his Submissions in Reply dated 4 November 2020.

  2. Leave be granted to the first and second respondents to rely on their Amended Summary of Argument received by the Court on 5 November 2020 and Amended Schedule of Costs received by the Court on 5 November 2020.

  3. The appeals EAA 106 of 2020 & EAA 136 of 2020 be allowed.

  4. The orders of the primary judge made on 26 June 2020 and 15 September 2020 be set aside.

  5. By no later than 4 December 2020 at 4.00 pm the appellant is to file and serve a Summary of Argument of no more than five (5) pages as to the point of his standing to bring proceedings.

  6. By no later than 18 December 2020 at 4.00 pm the first and second respondents are to file and serve a Summary of Argument in response of no more than five (5) pages.

It is further ordered on 11 December 2020

  1. The Application in an Appeal to adduce further evidence filed on 28 October 2020 is dismissed.

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

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AGLC
Marino & Bello [2020] FamCAFC 314
Case
[2020] FamCAFC 314
Decision Date

CaseChat Overview and Summary

In the appeal, the appellant sought orders in relation to the parenting of his child with the first respondent. The second respondent, the child's mother, was also a party to the appeal. The Family Court had dismissed the appeal and made orders regarding costs. The appellant appealed to the Full Court of the Family Court. The respondents cross-appealed. The issues on appeal included the standing of the appellant to bring the proceedings, whether the primary judge should have recused himself, and whether there were errors of law or procedural unfairness in the dismissal of the appeal. The court considered whether the primary judge should have recused himself and whether the appeals were properly dismissed. The court found that the primary judge should have recused himself and that the appeals should not have been dismissed. The court found that the primary judge ought to have recused himself because there was an apprehended bias. The court found that the primary judge's refusal to recuse himself was plainly wrong. The court found that the appeals should not have been dismissed because the primary judge did not have jurisdiction to dismiss them on the basis of the appellant's standing to bring the proceedings. The appeals were allowed and the orders of the primary judge were set aside. The court ordered that the appellant and respondents file and serve Summaries of Argument on the issue of the appellant's standing to bring the proceedings. The application to adduce further evidence was dismissed.

Orders

Orders of the court

Orders made on 6 November 2020

1. Leave be granted to the appellant to rely on his Submissions in Reply dated 4 November 2020.

2. Leave be granted to the first and second respondents to rely on their Amended Summary of Argument received by the Court on 5 November 2020 and Amended Schedule of Costs received by the Court on 5 November 2020.

3. The appeals EAA 106 of 2020 & EAA 136 of 2020 be allowed.

4. The orders of the primary judge made on 26 June 2020 and 15 September 2020 be set aside.

5. By no later than 4 December 2020 at 4.00 pm the appellant is to file and serve a Summary of Argument of no more than five (5) pages as to the point of his standing to bring proceedings.

6. By no later than 18 December 2020 at 4.00 pm the first and second respondents are to file and serve a Summary of Argument in response of no more than five (5) pages.

It is further ordered on 11 December 2020

7. The Application in an Appeal to adduce further evidence filed on 28 October 2020 is dismissed.

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 Marino & Bello and Anor 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).

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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