Sawer and Hugh (Disqualification) - [2010] FamCA 373

FAMILY COURT OF AUSTRALIA

SAWER & HUGH (DISQUALIFICATION)

[2010] FamCA 373

FAMILY LAW – COURTS AND JUDGES – Application for disqualification of judicial officer – apprehended bias

Family Law Act 1975 (Cth) ss 43, 44, 70NBA, 117
Family Law Rules 2004, r.9.05.

Coleman & Hindle and Ors (Disqualification) [2010] FamCAFC 29 (Unreported, 5 March 2010)
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Johnson v Johnson (No 1) (Bias Issue) [1999] FamCA 369; (2000) FLC 93-039
Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072
Strahan and Strahan [2009] FamCAFC 204
In the Marriage of Kohn (1977) 30 FLR 175
LAC and TRF and LKL [2005] Fam CA 158
Brown & Brown (1998) FLC 92-822
C and C [2006] FamCA 258
Doyle & Lombardi and Anor (Costs) [2009] FamCAFC 201
Oxenham & Oxenham [2009] FamCAFC 167

APPLICANT:

Mr Sawer

RESPONDENT:

Ms Hugh

INDEPENDENT CHILDREN’S LAWYER:

David Walker & Co

FILE NUMBER:

LNC

511

2008

DATE DELIVERED:

17 May 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

12 May 2010

REPRESENTATION

APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Lewis

SOLICITOR FOR THE RESPONDENT:

Temple-Smith Partners

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

David Walker & Co

Orders

That the father’s application in a case filed 29 April 2010 be and is hereby dismissed.
That the father pay the mother’s costs of and incidental to the said application, fixed in the sum of $928 and to be paid by 16 July 2010.
That the father pay the costs of the Independent Children’s Lawyer of and incidental to the said application, fixed in the sum of $1,600 and payment to be made by 16 July 2010.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: LNC 511 of 2008

MR SAWER

Applicant

And

MS HUGH

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

By application filed 29 April 2010, the father seeks inter alia my disqualification from further hearing or determination of proceedings.
The substantive proceedings in this matter concern the children J, born in May 1996 (“J”), and the twins, E and H (“the twins”), born in January 1999. The twins reside with the mother pursuant to orders of the Court. J ran away from the mother’s home in the middle of last year and lives with the father. Currently there are no orders about parental responsibility of J or with whom he should live.
There are parallel applications pending. First, the paternal grandparents seek orders against the mother that they spend time with the twins. Whilst the twins are with them, they will spend time with the father and J. Second, in the context of contravention proceedings brought by the mother against the father, the mother seeks…

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 Sawer and Hugh (Disqualification)

Details

AGLC: Sawer and Hugh (Disqualification) [2010] FamCA 373
Case: [2010] FamCA 373
Decision Date: 17 May 2010

CaseChat Overview and Summary

In the matter of *Sawer and Hugh (Disqualification)*, Bennett J considered an application brought by the father. The precise nature of the dispute is not detailed, but the orders indicate it concerned family law proceedings initiated on 29 April 2010.

The central legal issue before the court was whether the father's application should be granted. The court was required to determine the merits of the father's application and, consequently, the appropriate orders regarding costs.

Bennett J dismissed the father's application. In consequence, the court ordered that the father pay the mother's costs of the application, fixed at $928, and the costs of the Independent Children's Lawyer, fixed at $1,600. Both cost orders were to be paid by 16 July 2010.

Orders

Orders of the court

That the father’s application in a case filed 29 April 2010 be and is hereby dismissed.

That the father pay the mother’s costs of and incidental to the said application, fixed in the sum of $928 and to be paid by 16 July 2010.

That the father pay the costs of the Independent Children’s Lawyer of and incidental to the said application, fixed in the sum of $1,600 and payment to be made by 16 July 2010.

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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