Ostap & Sidak

Case [2024] FedCFamC1A 74

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Ostap & Sidak [2024] FedCFamC1A 74

Appeal from: Ostap & Sidak [2023] FedCFamC2F 1575
Appeal number: NAA 352 of 2023
File number: ADC 4458 of 2021
Judgment of: ALDRIDGE J
Date of judgment: 7 May 2024
Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Proposed appeal from primary judge’s refusal to disqualify himself and discharge the Independent Children’s Lawyer (“ICL”) – Leave to appeal is required – Where the applicant did not identify any matter the primary judge failed to have regard to in the recusal application – Primary judge’s “intimation” was insufficient to constitute apprehended bias – Primary judge properly dismissed the application for the removal of the ICL – Appeal has no merit – No basis for grant of leave to appeal.
Legislation:

Family Law Act 1975 (Cth) s 60CA and s 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26 and s 28

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02

Cases cited:

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Paco & Racina [2014] FamCAFC 195

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 50
Date of hearing: 9 April 2024
Place: Sydney (via video link)
The Applicant: Self-represented litigant
Solicitor for the Respondent: Stevens Law (submitting notice filed)
Counsel for the Independent Children’s Lawyer: Mr Roberts
Solicitor for the Independent Children’s Lawyer: Legal Services Commission of South Australia

ORDERS

NAA 352 of 2023
ADC 4458 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS OSTAP

Applicant
AND:

MR SIDAK

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

7 MAY 2024

THE COURT ORDERS THAT:

1.Leave to appeal in appeal NAA 352 of 2023 is refused.

2.The Notice of Appeal filed 20 December 2023 is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under…

Continue reading Ostap & Sidak

Sign in free to access the full text

Details
AGLC
Ostap & Sidak [2024] FedCFamC1A 74
Case
[2024] FedCFamC1A 74
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, in its appellate division, heard an application for leave to appeal from a decision involving family law issues. The applicant, Ms Ostap, sought to appeal the primary judge's decision to deny her application for the judge to recuse himself and to discharge the Independent Children's Lawyer (ICL). The respondent, Mr Sidak, sought to uphold the primary judge's decision.

The legal issues before the court were whether the primary judge should have recused himself due to apprehended bias and whether he properly dismissed the application to remove the ICL. The court needed to assess if the applicant had identified any errors made by the primary judge in the recusal application and whether the primary judge's "intimation" constituted apprehended bias. Additionally, the court needed to determine if the primary judge correctly dismissed the application to remove the ICL.

In its reasoning, the court found that Ms Ostap had not identified any matter that the primary judge failed to consider in the recusal application. Furthermore, the court held that the primary judge's "intimation" did not constitute apprehended bias, and the judge properly dismissed the application to remove the ICL. The court concluded that the appeal had no merit and found no basis for granting leave to appeal. Consequently, the application for leave to appeal was refused, and the notice of appeal was dismissed.

Orders

Orders of the court

NAA 352 of 2023

ADC 4458 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS OSTAP

Applicant

AND:

MR SIDAK

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

7 MAY 2024

THE COURT ORDERS THAT:

1. Leave to appeal in appeal NAA 352 of 2023 is refused.

2. The Notice of Appeal filed 20 December 2023 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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.