Medlon and Medlon (No 3) - [2013] FamCAFC 115

FAMILY COURT OF AUSTRALIA

MEDLON & MEDLON (NO. 3)

[2013] FamCAFC 115

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – where the wife seeks that the appeal judge disqualify himself – where the husband opposes the application – where the test of apprehended bias is not satisfied – application dismissed.

FAMILY LAW – APPEAL – ORAL APPLICATION FOR COSTS – where the husband seeks his costs of and incidental to the wife’s application – where the wife seeks leave to file an updated Financial Statement – application adjourned.

Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd [1999] SASC 249
Johnson v Johnson (2000) 201 CLR 488
Michael Wilson & Partners Ltd v Nicholls (2011) 282 ALR 685
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342

APPLICANT:

Ms Medlon

RESPONDENT:

Mr Medlon

FILE NUMBER:

ADC

491

2010

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

31 July 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:	31 July 2013
LOWER COURT JURISDICTION:	Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 October 2012

LOWER COURT MNC:

[2012] FMCAfam 1479

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Nelson QC

SOLICITOR FOR THE RESPONDENT:

Moore Law

Orders

Paragraph 1 of the application filed by the wife on 5 July 2013 be dismissed.
Paragraphs 2 to 8 inclusive of the application filed by the wife on 5 July 2013 be adjourned to 10:30am on Monday 12 August 2013.
The oral application for costs made on behalf of the husband be adjourned for further consideration to 10:30am on Monday 12 August 2013.
On or before the close of business on Friday 9 August 2013 the wife file and serve a financial statement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Medlon & Medlon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 88 of 2012
File Number: ADC 491 of 2010

Ms Medlon

Applicant

And

Mr Medlon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The application before the court today is the application in an appeal filed by Ms Medlon (“the wife”) on 5 July 2013. It is supported by an affidavit filed on the same date.
The first order sought in that application is in effect that I be disqualified from hearing the proceedings due to an appearance of bias. When this matter was last before the court, namely, on 19 July 2013, it was agreed that that aspect of the application had to be dealt with first before anything else was heard. The opportunity was then taken to utilise the listing that had previously been arranged for today, to hear…

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: [2013] FamCAFC 115
Decision Date: 31 July 2013

CaseChat Overview and Summary

In the matter of Medlon and Medlon, the wife filed an application to disqualify the appeal judge on the basis of apprehended bias, which was opposed by the husband. The wife also sought leave to file an updated Financial Statement, while the husband sought his costs of and incidental to the wife’s application. The court was tasked with determining whether the test for apprehended bias was satisfied and whether the wife should be granted leave to file an updated Financial Statement, as well as whether the husband was entitled to his costs.

The court found that the test for apprehended bias was not satisfied, as the wife had not provided sufficient evidence to support her claim that the judge had an apprehended bias against her. The court also adjourned the wife’s application for leave to file an updated Financial Statement and the husband’s oral application for costs to a later date to allow for further consideration.

The court dismissed the wife’s application to disqualify the judge, finding that the test for apprehended bias was not met. The court also adjourned the wife’s application for leave to file an updated Financial Statement and the husband’s oral application for costs to a later date. The wife was ordered to file and serve a financial statement by a specified date.

No further orders were made by the court.

Orders

Orders of the court

Paragraph 1 of the application filed by the wife on 5 July 2013 be dismissed.

Paragraphs 2 to 8 inclusive of the application filed by the wife on 5 July 2013 be adjourned to 10:30am on Monday 12 August 2013.

The oral application for costs made on behalf of the husband be adjourned for further consideration to 10:30am on Monday 12 August 2013.

On or before the close of business on Friday 9 August 2013 the wife file and serve a financial statement.

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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