McMillan and McMillan (No 2)

FAMILY COURT OF AUSTRALIA

MCMILLAN & MCMILLAN (NO 2) [2016] FamCA 894

FAMILY LAW – PRACTICE AND PROCEDURE – where an application for the Judge to recuse himself is dismissed – where there is no reasonable basis for the Judge to recuse himself

Ebner v Official Trustee and Bankruptcy (2000) 205 CLR 337
Johnson & Johnson (2000) 201 CLR 488

APPLICANT: Mr McMillan

RESPONDENT:	Ms McMillan
FILE NUMBER:	CSC	355	of		2015

DATE DELIVERED: 25 October 2016

PLACE DELIVERED: In Chambers

PLACE HEARD: In Chambers

JUDGMENT OF: Tree J

HEARING DATE: Last submission 5 October 2016

REPRESENTATION

THE APPLICANT: In person

SOLICITORS FOR THE RESPONDENT: Williams Graham Carman Solicitors

Orders

1. The application that Tree J recuse himself from hearing the husband’s application filed 12 September 2016 is dismissed.

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).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: CSC355/2015

Mr McMillan

Applicant

And

Ms McMillan

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 16 June 2016 Ms McMillan (“the wife”) filed an Enforcement Warrant seeking to recover certain amounts ordered to be paid to her by Mr McMillan (“the husband”) under several costs orders.  On 12 September 2016, the husband applied to dismiss or stay the Enforcement Warrant, however in material filed with that application, foreshadowed that he intended to seek that I recuse myself from any dealing with his application.  On 21 September 2016, when the husband’s application first came before me, I ordered a timetable for the parties to put on any material or submissions in support of their positions, and reserved the matter for decision in chambers.  This is that decision and my reasons for it.

BACKGROUND FACTS

1. Between at least 1998 and 2008, the husband and wife were engaged in long and acrimonious litigation in this court, including at least one appeal.  In the process the wife became the beneficiary of a number of costs orders against the husband, the first of which was made on 25 September 1998 by Barry J, and the last on 5 June 2008 by Benjamin J.  I traversed the background to those orders in earlier reasons which I gave in these proceedings being McMillan & McMillan [2016] FamCA 387 (“first reasons”) at [4] and [13]-[21]. I adopt that discussion in these reasons.

2. On 15 June 2015 the wife filed an Enforcement Warrant in relation to both principal and interest allegedly due under those costs orders.  By Application in a Case filed 14 September 2015, the husband, amongst other things, sought an order that the Enforcement Warrant be dismissed, struck out or stayed.  He sought similar relief in a further Application in a Case on 9 November 2015. 

3. It appears as though both applications first came on before me on 11 November 2015, when they were listed for hearing on 8 February 2016.

4. In the first reasons…