SCVG and KLD and Anor (No 2) - [2016] FamCAFC 99

FAMILY COURT OF AUSTRALIA

SCVG & KLD AND ANOR (NO. 2)

[2016] FamCAFC 99

FAMILY LAW – APPEAL – DISQUALIFICATION – Where the applicant made an oral application that one of the members of the Full Court be recused from hearing the appeal – Where the applicant alleges apprehended bias because the judge had previously formed part of the Full Court bench which dismissed an earlier appeal – Where the test for apprehended bias is not made out – Application dismissed.

Family Law Act 1975 (Cth)

Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
SCVG & KLD (2014) FLC 93-582
Strahan & Strahan(Disqualification) (2009) FLC 93-414
Vakauta v Kelly (1989) 167 CLR 568

APPLICANT:

Mr SCVG

FIRST RESPONDENT:

Ms KLD

SECOND RESPONDENT:

Child Support Registrar

FILE NUMBER:

SYC

2044

2013

FIRST APPEAL NUMBER:

2015

SECOND APPEAL NUMBER:

156

2015

THIRD APPEAL NUMBER:

2016

DATE DELIVERED:

27 May 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

27 May 2016

LOWER COURT JURISDICTIONS:

Federal Circuit Court of Australia;

Family Court of Australia

LOWER COURT JUDGMENT DATES:

30 April 2015;

20 August 2015;
19 February 2016

LOWER COURT MNC:

[2015] FCCA 1073;
[2015] FamCA 687;
[2016] FamCA 302

REPRESENTATION

FOR THE APPLICANT:

Mr SCVG in Person

COUNSEL FOR THE FIRST RESPONDENT:

Ms Tonkin

SOLICITOR FOR THE FIRST RESPONDENT:

Macphillamy’s Solicitors

COUNSEL FOR THE SECOND RESPONDENT:

Mr Kaplan

SOLICITOR FOR THE SECOND RESPONDENT:

Sparke Helmore Lawyers

Orders

The application made by the Applicant father on 27 May 2016 that Ryan J disqualify herself from these proceedings be dismissed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 75 of 2015; EA 156 of 2015; EA 51 of 2016
File Number: SYC 2044 of 2013

Mr SCVG

Applicant

And

Ms KLD

First Respondent

And

Child Support Registrar

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an application by Mr SCVG (“the applicant”) that I recuse myself from these proceedings on the basis of apprehended bias. The proceedings comprise appeals EA 75 of 2015 and EA 156 of 2015. Also listed for hearing are numerous Applications in an Appeal filed in these appeals and in EA 51 of 2016 which is, in fact, an application for leave to file another appeal.
This application was made orally and about two hours into the appeal hearing. Having heard the argument in support of the application, it was dismissed. I said I would give my reasons for doing so after lunch. These are the reasons.
To give these appeals context, it needs to be understood that the applicant and Ms KLD,…

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

Case: [2016] FamCAFC 99
Decision Date: 27 May 2016

CaseChat Overview and Summary

The proceedings before the Family Court concern a dispute over the custody and care of a child, with the father, SCVG, and the mother, KLD, and another party, being the principal parties involved. SCVG brought an application on 27 May 2016, seeking to disqualify the presiding judge, Ryan J, from the case on the basis of alleged bias. The court was required to determine whether there were any grounds for disqualifying Ryan J from hearing the case.

The court examined the application for disqualification, considering the principles of judicial impartiality and the potential for bias. The court noted that disqualification is an extreme remedy and is only warranted in cases of actual bias or where there is a real likelihood of bias. The court assessed the evidence and arguments presented by SCVG, concluding that there was no actual bias or a real danger of bias on the part of Ryan J. The court found that the application was without merit and did not meet the threshold for disqualification.

Consequently, the court dismissed SCVG's application to disqualify Ryan J from the proceedings. The court held that there were no grounds to remove Ryan J from the case and that she should continue to preside over the matter. The decision emphasised the importance of judicial impartiality and the need for strict standards to be met before disqualifying a judge.

Orders

Orders of the court

The application made by the Applicant father on 27 May 2016 that Ryan J disqualify herself from these proceedings 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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