FAMILY LAW – APPEAL – DISQUALIFICATION – Appeal against dismissal of recusal application – Apprehended bias – Procedural fairness – Whether appellant denied a fair trial due to the primary judge granting an adjournment of proceedings to the respondent and dismissing the oral application for adjournment of the appellant – Prolongation of proceedings and causing prejudice – Consideration of two-step process in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Appeal dismissed.
FAMILY LAW – APPEAL – VEXATIOUS PROCEEDINGS – Appeal against order made pursuant s 102QB(2)(b) of the Act, prohibiting the husband from instituting proceedings under the Act without first obtaining leave to commence those proceedings – Appeal against vexatious proceedings order allowed in part – Orders too broad – Orders varied – Appeal otherwise dismissed.
FAMILY LAW – APPEAL – LEAVE TO APPEAL – Orders prohibiting institution of proceedings did not exclude an appeal – Leave required to “start” a proceeding by filing a Notice of Appeal – Application for leave to file Notice of Appeal granted nunc pro tunc.
FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Affidavit to form part of appeal book admitted – Application to adduce letter not relevant to subject matter of the appeal – Application dismissed.
FAMILY LAW – APPEAL – COSTS – Where the appeal is largely or wholly unsuccessful – Costs fixed in the sum of $19,000 ordered in favour of the wife.
Explanatory Memorandum to the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 Family Law Act 1975 (Cth) ss 4, 117, 118, 102Q, 102QB, 102QD, 102QE, 102QG Family Law Rules 2004 (Cth) r 19.18 Federal Court of Australia Act 1976 (Cth) s 4
[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 & Searle
Sign in free to access the full text
Details
AGLC
Pencious & Searle [2017] FamCAFC 210
Case
[2017] FamCAFC 210
Decision Date
CaseChat Overview and Summary
The case of Pencious & Searle involved an appeal against several orders made by a primary judge in family law proceedings. The husband, [Mr Pencious], appealed against various orders including the dismissal of a recusal application, an order prohibiting him from instituting further proceedings without leave, and orders regarding the costs of the appeal. The wife, [Ms Searle], responded to the appeal. The primary issues before the court were whether the husband had been denied a fair trial due to procedural errors, whether the orders prohibiting him from instituting further proceedings were too broad, whether leave was required to file a Notice of Appeal, and whether additional evidence could be adduced in the appeal. The court also needed to determine the appropriate costs order given the largely unsuccessful nature of the appeal.
The court held that the husband had not been denied a fair trial, as the procedural errors did not cause him prejudice. Regarding the orders prohibiting further proceedings, the court found that the orders were too broad and varied them to specify that leave was required to institute proceedings against the wife, her immediate family, or her legal advisors. The court also granted the husband leave to file a Notice of Appeal nunc pro tunc. The application to adduce further evidence was dismissed as the evidence was not relevant to the subject matter of the appeal. Finally, the court ordered the husband to pay the wife’s costs of the appeal, fixed in the sum of $19,000, to be paid from the funds held in trust by Tasiopoulos Lambros & Co and Altona Legal.
The court dismissed the appeal against the dismissal of the recusal application and the orders regarding procedural fairness. The appeal against the order prohibiting further proceedings was allowed in part, with the orders varied to be more specific. The husband was granted leave to file a Notice of Appeal nunc pro tunc. The application to adduce further evidence was dismissed. The court’s orders included the inclusion of the husband’s affidavit filed on 1 April 2015 in the appeal books and the dismissal of the husband’s application to adduce further evidence filed on 26 May 2016, save for the aforementioned affidavit. The costs order was subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
Save for the husband’s affidavit filed 1 April 2015, included as part of the appeal books, the husband’s application to adduce further evidence filed 26 May 2016 is dismissed.
2.
Appeal SOA 70 of 2015 is dismissed.
3.
The husband have leave to file a Notice of Appeal nunc pro tunc in appeal SOA 21 of 2016 seeking the orders of Macmillan J made on 7 March 2016 be set aside.
4.
Appeal SOA 21 of 2016 is allowed in part.
5.
Order 1 of the orders made on 7 March 2016 is varied to provide that:
Pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) the husband, [Mr Pencious], be prohibited from instituting proceedings involving the wife, [Ms Searle], her immediate family or her legal advisors both past and present in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act.
6.
Appeal SOA 21 of 2016 is otherwise dismissed.
7.
The husband pay the wife’s costs of and incidental to the appeals, fixed in the sum of $19,000 to be paid from the funds held in trust by Tasiopoulos Lambros & Co and Altona Legal.
Note: The form of the order is subject to the entry of the order in the Court’s records.