SCVG and KLD (No 3) - [2015] FamCA 858

FAMILY COURT OF AUSTRALIA

SCVG & KLD (NO 3)

[2015] FamCA 858

FAMILY LAW – Stay application combined with an application for disqualification on the grounds of bias – Application for recusal refused but stay granted on conditions – Appeal is in relation to a costs judgment only.

Family Law Act 1975 (Cth)

Aldridge & Keaton (Costs) [2010] FamCAFC 78
Browne & Green [2002] FamCA 791 FLC 93-115
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Jackson & Balen (2009) FamCAFC 13,
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
Johnson v Johnson (2000) 201 CLR 458
Prantage & Prantage [2013] FamCAFC 105
Re JRL; Ex parte CJL (1986) 161 CLR 342

APPLICANT:

Mr SCVG

RESPONDENT:

Ms KLD

FILE NUMBER:

SYC

4380

2008

DATE DELIVERED:

15 October 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

13 October 2015

REPRESENTATION

THE APPLICANT:

In Person

SOLICITOR FOR THE RESPONDENT:

Mr Macphillamy, Macphillamy’s

Orders

That the oral application by Mr SCVG for recusal is refused.
That the payment by the applicant of any costs determined pursuant to paragraphs 1 and 2 of the orders made on 20 August 2015 is stayed pending the final determination by the Full Court of the Family Court of Australia arising out of the Notice of Appeal filed on 15 September 2015.
That the applicant and the respondent forthwith complete all other requirements of paragraphs 1 and 2 of the orders made on 20 August 2015.
That subject to any order by a judge of the Full Court of the Family Court of Australia to the contrary, the appeal against the order made on 20 August 2015 is to be consolidated with the applicant’s appeal against the orders of Judge Scarlett made in the Federal Circuit Court of Australia and currently pending before the Full Court of the Family Court of Australia.
That the foregoing order forthwith be brought to the attention of the relevant registrars and administrative personnel of the Appeal Division of the Sydney Registry of the Family Court of Australia.
That the application in a case filed on 28 September 2015 by the applicant is otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SYC 4380 of 2008

Mr SCVG

Applicant

And

MS KLD

Respondent

REASONS FOR JUDGMENT

For my convenience, I shall refer to the parties in these reasons as Mr SCVG and Ms KLD respectively as indeed I did in the more recent costs judgment.
On 19 August 2015, I made an order in favour of Ms KLD that Mr SCVG pay a portion of her legal costs arising from a substantive parenting dispute I concluded in February 2015.
On 15 September 2015, Mr SCVG filed a notice of appeal…

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: [2015] FamCA 858
Decision Date: 15 October 2015

CaseChat Overview and Summary

In the matter of SCVG and KLD (No 3), Cronin J of the Family Court of Australia considered an oral application for recusal made by Mr SCVG. The dispute involved ongoing proceedings and appeals concerning orders made on 20 August 2015, and a separate appeal against orders made by Judge Scarlett in the Federal Circuit Court.

The primary legal issues before the court were whether Mr SCVG's application for recusal should be granted, and the appropriate directions regarding the ongoing appeals and associated costs. The court was also required to determine the disposition of a further application filed by Mr SCVG on 28 September 2015.

Cronin J refused the oral application for recusal. The court ordered a stay on the payment of costs previously determined pending the final determination of the Full Court of the Family Court of Australia concerning an appeal filed on 15 September 2015. The applicant and respondent were directed to complete other outstanding requirements from the 20 August 2015 orders. Furthermore, subject to any contrary order from a judge of the Full Court, the appeal against the 20 August 2015 order was to be consolidated with the applicant's appeal against Judge Scarlett's orders. The court also directed that these orders be brought to the attention of relevant registry personnel, and otherwise dismissed the application filed by the applicant on 28 September 2015.

Orders

Orders of the court

That the oral application by Mr SCVG for recusal is refused.

That the payment by the applicant of any costs determined pursuant to paragraphs 1 and 2 of the orders made on 20 August 2015 is stayed pending the final determination by the Full Court of the Family Court of Australia arising out of the Notice of Appeal filed on 15 September 2015.

That the applicant and the respondent forthwith complete all other requirements of paragraphs 1 and 2 of the orders made on 20 August 2015.

That subject to any order by a judge of the Full Court of the Family Court of Australia to the contrary, the appeal against the order made on 20 August 2015 is to be consolidated with the applicant’s appeal against the orders of Judge Scarlett made in the Federal Circuit Court of Australia and currently pending before the Full Court of the Family Court of Australia.

That the foregoing order forthwith be brought to the attention of the relevant registrars and administrative personnel of the Appeal Division of the Sydney Registry of the Family Court of Australia.

That the application in a case filed on 28 September 2015 by the applicant is otherwise 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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