FAMILY COURT OF AUSTRALIA
| MCMILLAN & MCMILLAN (NO. 3) | [2020] FamCAFC 256 |
| FAMILY LAW – APPEAL – RECUSAL APPLICATION – COSTS – Appeal against the primary judge’s refusal to recuse himself and in making an order for costs – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Where the appellant husband uses the grounds of appeal as a vehicle to make broad, unspecified and unsupported criticisms of the primary judge, respondent wife and her legal representatives – No error in the primary judge’s exercise of discretion – No error of fact or law established – Appeal dismissed – Husband to pay the wife’s costs of this appeal in a fixed sum. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Adjourn proceedings – Challenge to the completeness of documents in the Appeal Book – Orders sought by the husband cannot be made by the Full Court – Adduce further evidence – Documents sent by the husband on the afternoon before the appeal hearing – Documents not relevant to the appeal – Leave refused. |
| Family Law Act 1975 (Cth) ss 80, 94(2A), 97, 117 Family Law Rules (Cth) Sch 3, r 22.20 |
| Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 |
| APPELLANT: | Mr McMillan |
| RESPONDENT: | Ms McMillan |
| FILE NUMBER: | CSC | 355 | of | 2015 |
| APPEAL NUMBER: | NOA | 1 | of | 2020 |
| DATE DELIVERED: | 16 October 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane (via video link) |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Ryan JJ |
| HEARING DATE: | 25 September 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 December 2019 |
| LOWER COURT MNC: | [2019] FamCA 928 |
REPRESENTATION
| THE APPELLANT: | Litigant in person |
| SOLICITOR ADVOCATE FOR THE RESPONDENT: | Mr Lago |
| SOLICITOR FOR THE RESPONDENT: | WGC Lawyers |
Orders
The Application in an Appeal seeking to adduce further evidence filed on 7 September 2020 be dismissed.
Leave to file two Applications in an Appeal dated 24 September 2020 be refused.
The appeal against the orders of a judge of the Family Court made on
5 December 2019 be dismissed.
The husband pay the wife’s costs of the appeal fixed in the sum of $3,898.23 within forty-two (42) days of the date of this order.
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. 3) 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 1 of 2020
File Number: CSC 355 of 2015
| Mr… |
Keep reading for free
Create a free CaseChat account to read McMillan & McMillan (No 3) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2020] FamCAFC 256
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether there was any error in the primary judge’s refusal to recuse himself and in making the order for costs. The court also had to consider whether the husband’s application to adduce further evidence and to adjourn the proceedings were valid. The court needed to determine whether any of these decisions constituted an error of fact or law.
The court found that the husband's grounds for appeal were broad, unspecified, and unsupported criticisms of the primary judge, the wife, and her legal representatives. There was no evidence of bias in the primary judge’s handling of the case, and thus no error was found in his refusal to recuse himself. Additionally, the court found that the order for costs was appropriate, given the husband’s conduct throughout the proceedings. The court also ruled that the husband’s application to adduce further evidence and to adjourn the proceedings was untimely and irrelevant, and thus dismissed those applications.
The court dismissed the appeal, upheld the primary judge’s decisions, and ordered the husband to pay the wife’s costs of the appeal. The specific amount of $3,898.23 was to be paid within forty-two days. The court refused to consider the husband’s application to adduce further evidence and to adjourn the proceedings, as these applications were deemed to be without merit and untimely.
Orders
Orders of the court
1.
The Application in an Appeal seeking to adduce further evidence filed on 7 September 2020 be dismissed.
2.
Leave to file two Applications in an Appeal dated 24 September 2020 be refused.
3.
The appeal against the orders of a judge of the Family Court made on
5 December 2019 be dismissed.
4.
The husband pay the wife’s costs of the appeal fixed in the sum of $3,898.23 within forty-two (42) days of the date of this order.
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
Full text does not contain this section.