MEDLON & MEDLON - [2014] FamCAFC 163

FAMILY COURT OF AUSTRALIA

MEDLON & MEDLON

[2014] FamCAFC 163

FAMILY LAW – APPEALS – Costs – Circumstances justifying an order – Appeal against a Costs Order – Where an application in an appeal was before a judge but it could not proceed because of an allegation of conflict of interest – Where the party was self-represented but was a practising solicitor – Where the application was withdrawn and then reinstated – Where the appellant sought to issue subpoenas – Where a costs order was awarded against the party who raised the conflict of interest – Appeal dismissed.

FAMILY LAW – APPEALS – Apprehended bias – Whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide – Identification of the matters said to give rise to the apprehended bias – Consideration of a logical connection between the matters identified and the possibility of a deviation from the course of deciding the case on its merits – Where the test is objective – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent made application for costs, including the cost of preparing appeal books – Where the appellant was wholly unsuccessful – Where the conduct of the appellant is a relevant factor – Where the appeal was doomed to fail – Where the grounds of appeal raised irrelevant issues – Where the summary of argument did not address the grounds of appeal in the costs appeal – Where the summary of argument included irrelevant, insulting and scandalous comments – Application allowed – The appellant to pay the costs of the respondent in a sum fixed by the court.

Family Law Act 1975 (Cth)
Family Law Rules 2004

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041
Re JRL; Ex parte CJL (1986) 161 CLR 342

APPELLANT:

Ms Medlon

RESPONDENT:

Mr Medlon

FILE NUMBER:

ADC

491

2010

FIRST APPEAL NUMBER:	SOA	50	of	2013
SECOND APPEAL NUMBER:	SOA	60	of	2013

DATE DELIVERED:

1 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Adelaide

JUDGMENT OF:

May, Ainslie-Wallace & Aldridge JJ

HEARING DATE:

1 July 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

31 July 2013 & 9 September 2013

LOWER COURT MNC:

[2013] FamCAFC 115 & [2013] FamCAFC 137

REPRESENTATION:

THE APPELLANT:

Ms Medlon (in person by video link)

COUNSEL FOR THE RESPONDENT:

Mr Grant

SOLICITOR FOR THE RESPONDENT:

Boylan Lawyers

Orders

Appeal SOA 50 of 2013 being the appeal against the order of Strickland J of

31 July 2013 be dismissed.
Appeal SOA 60 of 2013 being the appeal against the order of Strickland J of

9 September 2013 be dismissed.
The wife pay within 28 days the husband’s costs of and incidental to preparing the appeal books, to be fixed in the sum of $1,247.
The wife pay the husband’s costs of…

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

AGLC: MEDLON & MEDLON [2014] FamCAFC 163
Case: [2014] FamCAFC 163
Decision Date: 1 September 2014

CaseChat Overview and Summary

The matter before the court was an appeal against two orders, one concerning costs and the other concerning apprehended bias, in a family law case. The appellant, who was the husband and a practising solicitor, self-represented himself in the proceedings. The respondent, who was the wife, sought costs in relation to the preparation of appeal books and the appeal itself. The husband appealed against the costs order and the order concerning apprehended bias, arguing that the judge had been biased and that the costs were not justified.

The court had to decide whether the judge's alleged conflict of interest justified the costs order and whether the wife's apprehension of bias was well founded. Regarding the costs order, the court considered whether the husband's conduct warranted an order for costs. The court held that the husband's appeal was doomed to fail and that the grounds of appeal raised irrelevant issues. The court also found that the husband's conduct in the appeal was such that a costs order was warranted. In relation to the apprehended bias, the court held that there was no logical connection between the matters identified by the husband and the possibility of a deviation from the course of deciding the case on its merits.

The appeal was dismissed, and the husband was ordered to pay the wife's costs in relation to the appeal books and the appeal itself. The court found that the husband's appeal was wholly without merit and that his conduct in the appeal was such that a costs order was warranted. The court also held that the wife's apprehension of bias was not well founded. The wife was ordered to pay the husband's costs of and incidental to preparing the appeal books, to be fixed in the sum of $1,247, and the husband's costs of and incidental to the appeals, fixed in the sum of $5,000.

Orders

Orders of the court

Appeal SOA 50 of 2013 being the appeal against the order of Strickland J of

31 July 2013 be dismissed.

Appeal SOA 60 of 2013 being the appeal against the order of Strickland J of

9 September 2013 be dismissed.

The wife pay within 28 days the husband’s costs of and incidental to preparing the appeal books, to be fixed in the sum of $1,247.

The wife pay the husband’s costs of and incidental to the appeals, fixed in the sum of $5,000.

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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