McMillan & McMillan (No 3) - [2020] FamCAFC 256

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

2015

APPEAL NUMBER:

NOA

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…

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: [2020] FamCAFC 256
Decision Date: 16 October 2020

CaseChat Overview and Summary

McMillan & McMillan (No 3) involved an appeal against the primary judge’s refusal to recuse himself and his decision to order costs. The husband argued that the primary judge should have recused himself due to perceived bias, and that the order for costs was unjust. The wife opposed the appeal, arguing that there was no valid basis for recusal and that the costs order was appropriate. The Family Court of Australia was tasked with determining whether the primary judge’s decisions were correct and if the appeal had merit.

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

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.

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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