Pencious and Searle (No 3) - [2015] FamCA 1217

FAMILY COURT OF AUSTRALIA

PENCIOUS & SEARLE (NO. 3)

[2015] FamCA 1217

FAMILY LAW – COURTS AND JUDGES – Disqualification for bias – application by the husband that the trial judge is biased, or that there is an appearance of bias due to the trial judge acceding to an application by the wife for an adjournment of her application and refusing an application for adjournment of the husband’s application – where the husband has failed to identify anything said or done by the trial judge that might indicate that she has decided the proceedings on anything other than its factual or legal merits – interim orders made refusing the husband’s application.

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the husband to strike out the wife’s written submissions on the basis that it was filed in accordance with court orders but was served one day late – no prejudice to the husband in accepting the submissions – where prejudice would be caused to the Court if the submissions were not accepted – husband’s application refused.

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the husband to strike out the wife’s affidavit on the grounds of relevance – where the wife’s affidavit makes no reference to the husband – wife’s affidavit struck out.

Family Law Act 1975 (Cth)

Ebner v the Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507

APPLICANT:

Mr Pencious

RESPONDENT:

Ms Searle

FILE NUMBER:

MLC

11069

2008

DATE DELIVERED:

8 October 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

8 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wood

SOLICITOR FOR THE APPLICANT:

Tasiopoulos Lambros & Co

THE RESPONDENT:

In person

Orders

IT IS ORDERED THAT

The husband’s oral application seeking that the Honourable Justice Macmillan be disqualified be dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11069 of 2008

Mr Pencious

Applicant

And

Ms Searle

Respondent

REASONS FOR JUDGMENT

The matter listed for hearing before me is the wife’s application in a case filed 24 April 2015 seeking what is, in effect, a vexatious proceedings order restraining the husband from filing any application or document in either this Court or the Federal Circuit Court without having first obtained an order permitting him to do so.
The hearing of the matter commenced on 5 May 2015, was adjourned part heard for further hearing on 22 May 2015 and was thereafter adjourned part heard for hearing on 20 August 2015. At the hearing on 5 May 2015, the wife applied to have the subpoena issued by the husband requiring her to produce the letter dated 15 October 2010 sent by her then solicitors, Adrian…

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.

Continue reading Pencious and Searle (No 3)

Details

AGLC: Pencious and Searle (No 3) [2015] FamCA 1217
Case: [2015] FamCA 1217
Decision Date: 8 October 2015

CaseChat Overview and Summary

In the matter of *Pencious and Searle (No 3)*, the husband applied to the Federal Circuit and Family Court of Australia for the disqualification of the trial judge, Macmillan J, on the grounds of bias or apprehended bias. The husband contended that the judge’s decisions to grant the wife an adjournment of her application while refusing an adjournment of his application demonstrated such bias. Additionally, the husband sought to strike out the wife's written submissions for late service and her affidavit for irrelevance.

The primary legal issue before the court was whether the trial judge had exhibited bias or apprehended bias in her management of the proceedings, specifically concerning the granting and refusal of adjournment applications. A secondary issue concerned the husband's applications to strike out the wife's submissions and affidavit, which raised questions of procedural fairness and the relevance of evidence in family law proceedings.

Macmillan J dismissed the husband's application for disqualification, finding that he had failed to identify any specific action or statement by the judge that indicated a decision based on anything other than the factual and legal merits of the case. The judge reasoned that the management of adjournment requests, in itself, did not demonstrate bias. Furthermore, the husband's application to strike out the wife's written submissions was refused, as the court found no prejudice to the husband from the one-day delay in service, and that refusing the submissions would cause prejudice to the court. However, the wife's affidavit was struck out as it contained no reference to the husband, rendering it irrelevant to the proceedings.

The court ordered that the husband’s oral application seeking the disqualification of Justice Macmillan be dismissed.

Orders

Orders of the court

IT IS ORDERED THAT

The husband’s oral application seeking that the Honourable Justice Macmillan be disqualified be dismissed.

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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