McMillan and McMillan - [2019] FamCA 928

FAMILY COURT OF AUSTRALIA

MCMILLAN & MCMILLAN

[2019] FamCA 928

FAMILY LAW – RECUSAL – Where the applicant seeks that his Honour recuse himself from hearing any further matters between the parties – Where the test in Johnson v Johnson (2000) 201 CLR 488 applied – Where the court is not satisfied that by permitting the matter to proceed, a fair minded lay observer would reasonably apprehend that his Honour was not bringing an impartial mind to bear in adjudicating the issues arising from the respondent’s enforcement warrant – Where the court is not satisfied that any of the allegations demonstrate a proper basis for his Honour to recuse himself – Application in a Case dismissed – Order for the applicant to pay the respondent’s costs as assessed on a party/party basis.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
McMillan & McMillan [2016] FamCA 387
McMillan & McMillan (No 2) [2016] FamCA 894

APPLICANT:

Mr McMillan

RESPONDENT:

Ms McMillan

FILE NUMBER:

CSC

355

2015

DATE DELIVERED:

5 December 2019

PLACE DELIVERED:

Townsville

PLACE HEARD:

In Chambers

JUDGMENT OF:

Tree J

HEARING DATE:

30 September 2019

REPRESENTATION

THE APPLICANT:

In Person

SOLICITORS FOR THE APPLICANT:

WGC Lawyers

Orders

The applicant’s Application in a Case filed 3 September 2019 is dismissed.
The applicant pay the respondent’s cost of and incidental to his Application in a Case filed 3 September 2019, as assessed on a party/party basis.

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 McMillan & McMillan 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 CAIRNS

FILE NUMBER: CSC 355 of 2015

MR McMILLAN

Applicant

And

MS McMILLAN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Application in a Case filed 3 September 2019, Mr McMillan (“the applicant”) seeks that I “stand down from hearing any further matters between the parties in these matters.” By her Response also filed 3 September 2019, Ms McMillan (“the respondent”) seeks that the Application in a Case be dismissed, and an order that the applicant pay her costs of and incidental to his application. On 20 August 2019 I made orders for a timetable for the filing of material and written submissions, at the conclusion of which the decision would stand reserved. This is that decision and the reasons for it.

BACKGROUND

The background to these proceedings is, to say the least, tortured. I have traversed their extensive history in earlier reasons,…

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 McMillan and McMillan

Details

AGLC: McMillan and McMillan [2019] FamCA 928
Case: [2019] FamCA 928
Decision Date: 5 December 2019

CaseChat Overview and Summary

The applicant, McMillan, sought orders against the respondent, also McMillan, in a proceeding before Tree J. The nature of the dispute is not detailed in the provided text, but it concerned an Application in a Case filed by the applicant on 3 September 2019.

The central legal issue before the court was whether the applicant's Application in a Case filed on 3 September 2019 should be granted. The court was required to determine the merits of this application and make a determination regarding the costs associated with the proceedings.

Tree J dismissed the applicant's Application in a Case filed on 3 September 2019. Consequently, the court ordered that the applicant pay the respondent's costs of and incidental to that application, to be assessed on a party/party basis.

Orders

Orders of the court

The applicant’s Application in a Case filed 3 September 2019 is dismissed.

The applicant pay the respondent’s cost of and incidental to his Application in a Case filed 3 September 2019, as assessed on a party/party basis.

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

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

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