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Pitman & Hynes

Pitman & Hynes

Case [2021] FamCA 300 19 April 2021

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FAMILY COURT OF AUSTRALIA

PITMAN & HYNES

[2021] FamCA 300

FAMILY LAW – COURTS AND JUDGES – Recusal application on the basis of 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 – Application dismissed.

FAMILYLAW – PRACTICE AND PROCEDURE – Application for an adjournment – Where the applicant filed a Notice of Constitutional Matter pursuant to s 78B of the Judiciary Act 1903 (Cth) – Whether the Judge made violated the judicial oath by continuing to engage with representation of the father which was granted by way of s 102NA of the Family Law Act 1975 (Cth) – Where the notice does not “really and substantially” raise a matter under the Constitution or involving its interpretation – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s decision – Purported Application contempt – Where mother sought review of a decision of a Registrar to reject for filing a document purporting to alleged contempt of the Court by the father – Where mother sought variation to parenting orders – Where clearly inappropriate process used by the mother – Where mother purported to apply under s 112AP of the Act, rather than Division 13A of Part VII – Application for review dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder of children as parties to proceedings – Where mother alleges children are necessary parties – Where the mother made no submission in support of her application – Where mother filed and served no evidence in support of her application – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of orders – Where the mother makes no submission in support of her application – Where mother filed and served no evidence in support of her application – Where no basis for a stay disclosed by evidence or argument – application dismissed.

Constitution

Family Law Act1975 (Cth) ss 26, 69C, 100B, 102NA, 112AP

Judiciary Act 1903 (Cth) s 78B

Family Law Rules 2004 (Cth) r 6.02

ACCC v CG Berbatis Holdings Pty Limited

Australian Securities and Investment Commission v White (Fed C of A, Drummond J, 16 July 1998, unreported)

Doughty-Cowell v Kyriazis [2018] VSCA 216

Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337

Johnson v Johnson (2000) CLR 488; 174 ALR 655

Nagel & Clay [2020] FamCA 326

Narain v Parnell (1986) 9 FCR 479

Nikolic v MGIC [1999] FCA 849

Re An Application by Public Service Association (NSW); Re Industrial Union of Employees (Commissioned Police Officers) Award (1947) 75 CLR 430

The Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Valdez & Fraser [2017] FamCAFC at 18

Xuarez & Vitela [2017] FamCAFC 139

APPLICANT:

Ms Pitman

RESPONDENT:

Mr Hynes

INTERVENOR:

Ms O’Donnell

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

WOC

772

2011

DATE DELIVERED:

19 April 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

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: Pitman & Hynes [2021] FamCA 300
Case: [2021] FamCA 300
Decision Date

CaseChat Overview and Summary

In *Pitman & Hynes* [2021] FamCA 300, the Family Court of Australia considered multiple applications filed by the Applicant Mother. These included an application for the presiding judge, Harper J, to recuse himself on grounds of apprehended bias, an application to adjourn proceedings based on a Notice of Constitutional Matter, a review of a Registrar's decision to reject a contempt application, an application to join the children as parties, and an application for a stay of orders. The proceedings involved two children, X and Y, and were described as long and acrimonious.

The primary legal issues before the Court were whether a reasonable apprehension of bias existed, thereby requiring the judge's recusal, and whether the filing of a Notice of Constitutional Matter pursuant to s 78B of the *Judiciary Act 1903* (Cth) necessitated an adjournment of the proceedings. The Court was also required to determine the merits of the other interlocutory applications brought by the mother, including the review of the Registrar's decision, the joinder of the children, and the application for a stay of orders.

Harper J dismissed the application for recusal, finding that a fair-minded lay observer would not reasonably apprehend that he might not bring an impartial mind to the resolution of the questions before him. His Honour explained that the mother's assertions of judicial misconduct and incapacity were based on a misapprehension of the Court's role in relation to the funding of legal representation under s 102NA of the *Family Law Act 1975* (Cth). The judge also refused the application for an adjournment based on the Notice of Constitutional Matter, holding that it did not "really and substantially" raise a matter arising under the Constitution or involving its interpretation, and that the mother's contentions were without merit and bordered on vexatious. The remaining applications brought by the mother were also dismissed, with the Court noting the inappropriate processes used and the lack of evidence or submissions in support.

Orders