Murray & Tomas & Anor - [2011] FamCAFC 81

FAMILY COURT OF AUSTRALIA

MURRAY & TOMAS AND ANOR

[2011] FamCAFC 81

FAMILY LAW - APPEAL – Whether the trial Judge erred in refusing to recuse himself from further hearing of proceedings between the parties – Whether there would be a perception of an absence of impartiality on the part of the trial Judge, if he was to hear further proceedings between the parties – Whether there was a nexus between the lack of impartiality and the issues requiring determination in the future – Held that there was an error of principle on the part of the trial Judge in not recusing himself in the circumstances, and/or that the refusal, if this Court did not intervene, would be likely to cause a substantial injustice to the mother – Appeal allowed.

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; (2011) 85 ALJR 348
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644
Rutherford and Rutherford (1991) FLC 92-255

Family Law Act 1975 (Cth)

APPELLANT:

Ms Murray

1ST RESPONDENT:

Ms Tomas

2ND RESPONDENT:

Mr Tomas

FILE NUMBER:

PAC

1187

2009

APPEAL NUMBER(S):	EA	22	of	2011 &
EA	130	of	2010

DATE DELIVERED:

15 March 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Ainslie-Wallace & Johnston JJ

HEARING DATE:

15 March 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE(S):

14 December 2010 &

2 June 2010

LOWER COURT MNC:

[2010] FamCA 437

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Conte-Mills

SOLICITOR FOR THE APPELLANT:

Neagle Lawyers

COUNSEL FOR THE 1ST RESPONDENT:

Mr Weaver

SOLICITOR FOR THE 1ST RESPONDENT:

Selective Lawyers

COUNSEL FOR THE 2ND RESPONDENT:

Mr Weaver

SOLICITOR FOR THE 2ND RESPONDENT:

Selective Lawyers

Orders in Appeal No. EA 22 of 2011

That, the time for filing of the Appellant’s Notice of Appeal against Order 2 of the Orders of Justice Benjamin made on 14 December 2010 be extended to 4 pm on 2 March 2011.
That the Appellant’s Draft Notice of Appeal dated 2 March 2011 is deemed to have been filed within time.
That the appeal against Order 2 of the Orders of Justice Benjamin made on 14 December 2010 be allowed.
That Order 2 of the Orders of Justice Benjamin made on 14 December 2010 be set aside.
That Justice Benjamin be recused from further hearing proceedings between the parties to this appeal.
That the Court grants to the Appellant mother a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the application and appeal.
That the Court grants to the respondents costs certificates pursuant to the provisions of s 6 of the

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: Murray & Tomas & Anor [2011] FamCAFC 81
Case: [2011] FamCAFC 81
Decision Date: 15 March 2011

CaseChat Overview and Summary

In the Family Court of Australia, Ms. Murray appealed against the decision of Benjamin J, made on 14 December 2010, which declined to recuse himself from further proceedings between her and the respondents, Ms. Tomas and Mr. Tomas. The dispute involved parenting proceedings concerning a child born in June 2007. The respondents, who have Samoan and New Zealand citizenship, were the adoptive parents of the child until April 2009, after which the child had been in the full-time care of the respondents. Ms. Murray sought the return of the child to her care, intending to take the child to Samoa to live with her husband, herself, and the child's numerous siblings.

The legal issues before the court were whether there was an error of principle on the part of the trial judge in not recusing himself, and/or whether the refusal, if not intervened by the court, would be likely to cause a substantial injustice to the mother. The court found that the trial judge's judgment on 2 June 2010 contained several passages indicating a clear view about the credit of the mother's evidence and her concerns about the welfare of the child. The court concluded that there was an error of principle on the part of the trial judge in not recusing himself in the circumstances and/or that the refusal would be likely to cause a substantial injustice to the mother. Therefore, the appeal was allowed.

The court set aside Order 2 of the orders of Justice Benjamin made on 14 December 2010, and Justice Benjamin was recused from further hearing proceedings between the parties. The court granted the appellant a costs certificate and the respondents costs certificates, both pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The final hearing of the proceedings was fixed for trial before a judge in the Parramatta Registry with all possible expedition. The parties were granted liberty to apply for further directions, by telephone, on 72 hours notice, and a Family Report was prepared to address the usual matters and any other matters considered appropriate.

Orders