Reece and Leverhalle - [2010] FamCA 276

FAMILY COURT OF AUSTRALIA

REECE & LEVERHALLE

[2010] FamCA 276

FAMILY LAW – COURTS AND JUDGES – Application for the appointment of an interstate judge because local solicitor is a party – Matter adjourned to open court for comprehensive argument

Family Law Act 1975 (Cth)

Ebner v Official Trustee (2000) 205 CLR 337
R v Watson; exparte Armstrong (1976) 136 CLR 248
Strahan & Strahan [2009] FamCAFC 204
Webb v R (1994) 181 CLR 41

APPLICANT:

Mr Reece

RESPONDENT:

Ms Leverhalle

FILE NUMBER:

MLC

6510

2008

DATE DELIVERED:

14 April 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT:

WESTMINSTER LAWYERS

SOLICITOR FOR THE RESPONDENT:

GILLIAN COOTE FAMILY LAW

Orders

That the application for the appointment of an interstate judge and the determination of any priority be adjourned to open court for hearing at 2.15pm on 22 April 2010 before me.
That each party file any written argument upon which they intend to rely by midday on 21 April 2010 and such argument be exchanged at that time.

IT IS NOTED that publication of this judgment under the pseudonym Reece & Leverhalle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6510 of 2008

MR REECE

Applicant

And

MS LEVERHALLE

Respondent

REASONS FOR JUDGMENT

On 15 March 2010 both parties consented to orders being made by Senior Registrar FitzGibbon in the following terms:
That applications of all parties are adjourned to a date to be fixed before the Honourable Justice Cronin to allocate an interstate judge to hear the matter and/or to determine whether to expedite the final hearing.
The process by which that was to be determined was on written submissions.
The wife filed her written submission which said very little.
On 12 April 2010, the husband filed his summary of argument in which he submitted that I should not determine the wife’s application for an expedited trial notwithstanding the order of the senior registrar to which I have referred.
The wife’s submission was that she consented to an interstate judge hearing the matter and otherwise sought an expedited hearing of her application to relocate internationally.
In his submission, the husband raised a preliminary point. He said that it was inappropriate for a Melbourne-based judge to be involved in a matter involving a practitioner who practised in the Court on a regular and frequent basis. He added that the matter involved disclosure of personal information about the husband’s private life.
The submission then went on to make reference to the fact that the husband had briefed a number of judges including myself prior to appointment.
Having set that ground, the husband submitted that I should not determine the wife’s application for an expedited trial and that the matter should be referred to an interstate judge to undertake that task as well.
No legal basis was submitted for…

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 Reece and Leverhalle

Details

AGLC: Reece and Leverhalle [2010] FamCA 276
Case: [2010] FamCA 276
Decision Date: 14 April 2010

CaseChat Overview and Summary

The Honourable Justice Cronin considered an application concerning the potential disqualification of an interstate judge. The specific nature of the dispute and the parties involved, beyond the reference to "Reece and Leverhalle," are not detailed in the provided text.

The central legal issue before the court was whether the appearance of bias would disqualify the interstate judge from hearing the matter. This involved considering established categories of disqualification, specifically disqualification by association and disqualification by extraneous information.

Justice Cronin referred to the principles articulated by Deane J in *Webb v R* regarding disqualification by association, which arises from relationships or experiences with interested parties. He also noted Deane J's comments on disqualification by extraneous information, where knowledge of prejudicial but inadmissible facts creates an apprehension of bias. The court applied a two-step process, endorsed by the Full Court in *Strahan and Strahan*, requiring identification of the matters giving rise to apprehended bias and then assessing the logical connection between those matters and a potential deviation from deciding the case on its merits. The court emphasised the judicial duty to sit and not to accede too readily to suggestions of bias.

Consequently, the court ordered that the application for the appointment of the interstate judge and the determination of any priority be adjourned to open court for hearing. The parties were also directed to file and exchange written arguments by a specified date prior to the hearing.

Orders

Orders of the court

That the application for the appointment of an interstate judge and the determination of any priority be adjourned to open court for hearing at 2.15pm on 22 April 2010 before me.

That each party file any written argument upon which they intend to rely by midday on 21 April 2010 and such argument be exchanged at that time.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

One of the categories of disqualification for the appearance of bias includes disqualification by association. That was described by Deane J in Webb v R (1994) 181 CLR 41 at 74 as:Where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.Another such category is the disqualification by extraneous information. Deane J referred to this category as overlapping the disqualification by association and said it consisted of cases where:Knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias. In Strahan and Strahan [2009] FamCAFC 204, the Full Court endorsed the principle in Ebner (op cit) that there was a two step process to be used in applying the test for disqualification on the ground of bias. Their Honours said that the first step was the identification of the matters that gave rise to the apprehended bias. The second step required consideration of the “logical connection” between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits. Their Honours stressed that in applying the two step process, it had to be kept firmly in mind that judges have a duty to sit and not accede too readily to suggestions of the appearance of bias. In those circumstances, this matter should be determined in open court and I propose to so order and for the parties to file outlines of argument in relation to the interstate judge issue.

Ratio Decidendi

Legal Principle Established

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