McMillan and McMillan (No 2) - [2017] FamCA 1102

FAMILY COURT OF AUSTRALIA

MCMILLAN & MCMILLAN (NO. 2)

[2017] FamCA 1102

FAMILY LAW – COSTS – Where wife seeks husband pay her costs to be taxed – Where husband’s application for recusal was wholly unsuccessful and misconceived – Where husband ordered to pay wife’s costs to be taxed.

Family Law Act 1975 (Cth) ss 70NFB, 117, 117AA, 117AC, 118
Family Law Rules 2004 (Cth) rr 19.08,19.18

McMillan & McMillan [2017] FamCA 773
McMillan & McMillan [2016] FamCA 287

APPLICANT:

Mr McMillan

RESPONDENT:

Ms McMillan

FILE NUMBER:

CSC

355

2015

DATE DELIVERED:

22 December 2017

PLACE DELIVERED:

In Chambers

PLACE HEARD:

In Chambers

JUDGMENT OF:

Tree J

HEARING DATE:

Last submission filed 14 June 2017

REPRESENTATION

THE APPLICANT:

In person

SOLICITORS FOR THE RESPONDENT:

Williams Graham Carman

Orders

That the husband pay the costs of and incidental to his application that Tree J recuse himself from dealing with the husband’s Application filed 12 September 2016.
That otherwise the wife’s Application in a Case filed 7 November 2016 be 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 McMillan & McMillan (No 2) 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: CSC355/2015

Mr McMillan

Applicant

And

Ms McMillan

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 25 October 2016 I dismissed an application by Mr McMillan (“the husband”) that I recuse myself from hearing his application filed 12 September 2016. By Application in a Case filed 7 November 2016, Ms McMillan (“the wife”) sought an order that the husband pay her costs of and incidental to that application, to be taxed.
On 24 May 2017, I made directions for the filing of material in relation to the wife’s application for costs, and directed that upon the wife filing any material in reply, my decision in relation to her application stand reserved. This is my decision in relation to the wife’s application for costs.

BACKGROUND FACTS

This matter has a most tortuous history, but in essence, the wife has been seeking to recover from the husband some ancient costs orders. She has sought to do that by issuing enforcement warrants from time to time, which have then been applied to be set aside or stayed by the husband. He has now twice been successful in doing so, on the basis that the amounts claimed were wrong. Further detail in relation to the history can be obtained from my most recent reasons in McMillan & McMillan [2017] FamCA 773 and my earlier reasons in

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

Case: [2017] FamCA 1102
Decision Date: 22 December 2017

CaseChat Overview and Summary

In *McMillan and McMillan (No 2)*, Tree J of the Family Court of Australia considered an application by the husband for the judge to recuse himself from proceedings, and a separate application by the wife filed in November 2016.

The primary legal issue before the court was whether the husband had established sufficient grounds for Tree J to recuse himself from hearing the matter. A secondary issue concerned the merits of the wife's application filed in November 2016.

Tree J dismissed the husband's application for recusal, finding no apprehended bias. The judge reasoned that the husband had not demonstrated any objective basis for a reasonable apprehension that the judge would not bring an impartial mind to the resolution of the questions the judge was required to decide. The wife's application was also dismissed.

Consequently, the husband was ordered to pay the costs of and incidental to his application for recusal, and the wife's application in a Case filed 7 November 2016 was otherwise dismissed.

Orders

Orders of the court

That the husband pay the costs of and incidental to his application that Tree J recuse himself from dealing with the husband’s Application filed 12 September 2016.

That otherwise the wife’s Application in a Case filed 7 November 2016 be dismissed.

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

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Ratio Decidendi

Legal Principle Established

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