Shee and Hale (No 2) - [2020] FamCA 494

FAMILY COURT OF AUSTRALIA

SHEE & HALE (NO. 2)

[2020 ] FamCA 494

FAMILY LAW – PRACTICE AND PROCEDURE – RECUSAL – where the Applicant seeks the trial Judge recuse himself except as regards issues of costs arising from the Applications already determined – where the trial Judge has made findings and delivered Reasons on the issues of whether and for how long a de facto relationship existed between the parties –where the Reasons delivered do not indicate an actual or apprehended lack of impartiality – where the trial Judge is not satisfied that the Reasons delivered give rise to a basis for recusal

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR COSTS – where the Applicant seeks that the issues of costs arising from the interlocutory Applications already determined be deferred until the finalisation of the substantive proceedings – where the Respondent opposes the Application – where the Applicant is unable to comply with directions for filing of submissions as to costs due to the impact of travel restrictions – where the Applicant is granted an extension of time for the Applicant to file submissions as to costs

Family Law Act 1975 ss 90RD, 44(6)

Shee & Hale [2020] FamCA 84
Re Renaud Ex parte CJL (1986) 60 ALJR 528
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Ebner and Isbester v Knox City Council (2015) 89 ALJR 609
British American Tobaco Australia Services Limited v Laurie and Ors (2011) 242 CLR 283

APPLICANT:

Ms Shee

RESPONDENT:

Mr Hale

FILE NUMBER:

SYC

2311

2017

DATE DELIVERED:

19 June 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

10 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr N Wahhab,

York Law Family Law Specialists

COUNSEL FOR THE RESPONDENT:

Mr T Kirk QC

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

Orders

That the Application for recusal be dismissed.
That the directions for the filing of costs submissions made 2 April 2020 are varied as follows:
(a) Order 2 is extended to 17 August 2020; and
(b) Order 3 is extended to 31 August 2020.
The determination of the issue of costs arising from the hearing conducted on

5 & 6 July and 8 & 9 October 2019, be reserved for determination after the determination of the pending Application under s 44(6) of the Family Law Act 1975.
That the parties costs of the Application in a Case filed 19 May 2020 are reserved.
That these proceedings be listed for Case Management Hearing at 9.30am on

7 July 2020.
That all parties have leave to appear by telephone on 7 July 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:
(a)They shall each telephone … (within Australia only) (toll free) by 9.25am on 7 July 2020;
(b) They shall each then enter the pass code …; and
(c)Hold the line until the Court is ready to connect and proceed with the matter.

Note: The form of the order is subject to…

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 Shee and Hale (No 2)

Details

AGLC: Shee and Hale (No 2) [2020] FamCA 494
Case: [2020] FamCA 494
Decision Date: 19 June 2020

CaseChat Overview and Summary

In *Shee and Hale (No 2)*, Baumann J of the Family Court of Australia considered an application by the Applicant for the trial judge to recuse himself from further proceedings, save for issues of costs. The dispute arose after the trial judge had already made findings and delivered reasons concerning the existence and duration of a de facto relationship between the parties. The Applicant also sought to defer the determination of costs arising from interlocutory applications already decided.

The primary legal issue before the court was whether the reasons delivered by the trial judge in relation to the de facto relationship gave rise to an actual or apprehended lack of impartiality, thereby necessitating recusal. A secondary issue concerned the timing of the determination of costs for interlocutory applications, particularly in light of the Applicant's inability to comply with filing directions due to travel restrictions.

Baumann J dismissed the application for recusal, finding that the delivered reasons did not indicate an actual or apprehended lack of impartiality and that the judge was not satisfied that a basis for recusal had been established. Regarding the costs submissions, the court granted the Applicant an extension of time to file submissions due to the impact of travel restrictions. The determination of costs arising from specific previous hearings was reserved for after the determination of a pending application under s 44(6) of the *Family Law Act 1975*, and the parties' costs of a further application were also reserved. The proceedings were subsequently listed for a case management hearing, with provision for parties to appear by telephone.

Orders

Orders of the court

That the Application for recusal be dismissed.

That the directions for the filing of costs submissions made 2 April 2020 are varied as follows:

(a) Order 2 is extended to 17 August 2020; and

(b) Order 3 is extended to 31 August 2020.

The determination of the issue of costs arising from the hearing conducted on

5 & 6 July and 8 & 9 October 2019, be reserved for determination after the determination of the pending Application under s 44(6) of the Family Law Act 1975.

That the parties costs of the Application in a Case filed 19 May 2020 are reserved.

That these proceedings be listed for Case Management Hearing at 9.30am on

7 July 2020.

That all parties have leave to appear by telephone on 7 July 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:

(a) They shall each telephone … (within Australia only) (toll free) by 9.25am on 7 July 2020;

(b) They shall each then enter the pass code …; and

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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