FAMILY COURT OF AUSTRALIA
| SELLERS & BURNS | [2019] FamCAFC 111 |
| FAMILY LAW – APPEAL – PROCEDURAL – DISQUALIFICATION – Where the husband appeals from the primary judge’s refusal to recuse himself from further proceedings between the husband and wife – Consideration of the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) – Whether a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the question to be decided – Where the primary judge made comments during the enforcement application reflective of a formed opinion – Where it is contended that the primary judge’s response to the application to recuse himself was sarcastic – Whether directions made by the primary judge in response to the request for adjournment were dismissive and intimidating –Where the comments leading to the adjournment being granted raised the required apprehension – Error established – Where an injunction granted to restrain the husband’s solicitor and all employees of that firm was in excess of the injunction sought – Whether this gives rise to an apprehension of bias adverse to the husband –No error made out – Whether the primary judge erred in the application of the two step test in Ebner – Where the primary judge erred in isolating the matters complained of as opposed to the cumulative effect – Where error is established in relation to step one – Consideration of the logical connection – Where no error established in this part – Whether his Honour, in restricting his attention to the enforcement application, prevented a consideration of the effect on the fair-minded lay observer in relation to all hearings involving the parties – Where his Honour erred in his approach to determining the issue of recusal – Error established – Orders set aside – Primary judge disqualified from hearing further proceedings between the parties. FAMILY LAW – APPEAL – COSTS – Costs certificates sought and granted. |
| Family Law Act 1975 (Cth) s 94(2) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 |
| APPELLANT: | Mr Sellers |
| RESPONDENT: | Ms Burns |
| FILE NUMBER: | PAC | 5854 | of | 2016 |
| APPEAL NUMBER: | EA | 118 | of | 2018 |
| DATE DELIVERED: | 28 June 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Alstergren CJ, Ainslie-Wallace & Kent… |
Continue reading SELLERS & BURNS
Sign in free to access the full text
- AGLC
- SELLERS & BURNS [2019] FamCAFC 111
- Case
- [2019] FamCAFC 111
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the primary judge's conduct met the threshold for recusal as established in Ebner v Official Trustee in Bankruptcy. The court considered whether a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the question to be decided. The court also examined whether the primary judge erred in his application of the two-step test in Ebner by isolating the matters complained of instead of considering their cumulative effect. Furthermore, the court considered whether the primary judge's error in restricting his attention to the enforcement application prevented a consideration of the effect on the fair-minded lay observer in relation to all hearings involving the parties.
The court found that the primary judge's comments and conduct established an error in the recusal process. The court noted that the primary judge's response to the application to recuse himself was indeed perceived as sarcastic, and his directions in response to the adjournment request were dismissive and intimidating. The court concluded that the primary judge's approach to determining the issue of recusal was erroneous, as he failed to consider the cumulative effect of the matters complained of. The court set aside the orders made by the primary judge and disqualified him from hearing any further application in the proceedings. The court also granted costs certificates to both parties, allowing the Attorney-General to authorise payments to cover the costs incurred in relation to the appeal.
Orders
Orders of the court
1.
The appeal against the orders of Foster J made on 15 August 2018 is allowed.
2.
That Foster J be disqualified from hearing any further application in the proceedings PAC 5854 of 2016.
3.
There be no order as to costs.
4.
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
5.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.