SCVG & KLD

[2016] FamCAFC 22

FAMILY COURT OF AUSTRALIA

SCVG & KLD [2016] FamCAFC 22

FAMILY LAW – APPEAL – DISQUALIFICATION – Where the applicant made an oral application that the presiding judge disqualify herself from hearing the during the applications in an appeal – Where the applicant alleges apprehended bias because the judge had previously presided on a Full Court which dismissed an appeal– Where the test for apprehended bias is not made out – Application dismissed.

Judiciary Act 1903 (Cth) s 35A

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337Morris v R (1987) 163 CLR 454
Vakauta v Kelly (1989) 167 CLR 568

APPLICANT: SCVG

RESPONDENT: KLD

FILE NUMBER: SYC 4380 of 2008

FIRST APPEAL NUMBER: EA 107 of 2013

SECOND APPEAL NUMBER: EA 174 of 2015

DATE DELIVERED: 24 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 3 November 2015

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 27 February 2015

LOWER COURT MNC: [2015] FamCA 110

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Messner

SOLICITOR FOR THE RESPONDENT: MacPhillamy’s Lawyers

Orders

1. The application for disqualification is dismissed.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Numbers:  EA 107 of 2013; EA 174 of 2015
File Number: SYC 4380 of 2008

SCVG

Applicant          

and

KLD

Respondent

REASONS FOR JUDGMENT

1. SCVG (“the applicant”) seeks an extension of time in which to file a Notice of Appeal against parenting orders made by Cronin J on 27 February 2015.  He further seeks an extension of time in which to seek a review of a costs assessment order made by a Registrar on 9 October 2014.

2. Both applications were listed for hearing together.  During the argument on the applications, the applicant sought that I disqualify myself.  He had prepared submissions on the point.

3. The basis of his application is thus taken from his oral and written submissions.

Background

1. On 4 July 2013 Faulks DCJ made interim parenting orders in proceedings between the applicant and KLD (“the respondent”).  The applicant appealed those orders and the appeal was heard by a Full Court of which I was the presiding judge.  The appeal was dismissed on 25 March 2014 and the applicant ordered to pay the respondent’s costs of the appeal, such costs to be agreed or assessed.

2. The applicant was represented on the appeal by senior counsel.

3. The applicant sought Special Leave to appeal from the determination of the Full Court.  That leave was refused by the High Court of Australia.

4. The first basis for the application is that the conduct of the Full Court hearing the appeal against the orders of Faulks DCJ gave rise to apprehended bias.

5. It was contended that during the appeal, the judges “…did not give my counsel a…