Legal Research
Cases
Sheldon and Weir (No 2)

Sheldon and Weir (No 2)

Case [2010] FamCA 449 3 June 2010

Type to search within this case.

FAMILY COURT OF AUSTRALIA

SHELDON & WEIR (NO 2)

[2010] FamCA 449

FAMILY LAW – COURTS AND JUDGES – Disqualification – Application for disqualification of judge on ground of apprehended bias – Where remarks complained of provided information disclosed by judge - Prudent judicial practice of disclosure of any possible interests, statements, associations, relationships discussed – Where applicant gave consent to composition of the Court – Consideration of the test in Ebner v Official Trustee in Bankruptcy - Waiver of right to object - Application for disqualification dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004

Australian Securities and Investment Commission v Reid [2005] FCA 1274
Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43
Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577
Goode and Goode (2006) FLC 93-286
Ebner v Official Trustee (2000) 205 CLR 337
In the Marriage of H (2003) 30 Fam LR 264
Johnson v Johnson (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421
MRR v GR (2010) FLC 93-424
Smits v Roach [2006] 227 CLR 423
Strahan & Strahan (Disqualification) (2009) FLC 93-414
Vakauta v Kelly (1989) 167 CLR 568
Penfold v Penfold (1980) FLC 98-800

APPLICANT:

Mr Sheldon

RESPONDENT:

Ms Weir

FILE NUMBER:

(P)NCC

3259

2009

DATE DELIVERED:

3 June 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATE:

15 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Graham

SOLICITOR FOR THE APPLICANT:

Slade Manwaring

COUNSEL FOR THE RESPONDENT:

Mr Duane

SOLICITOR FOR THE RESPONDENT:

Burke Elphick & Mead

Orders

That the Application in a Case filed by the applicant on 23 March 2010 is dismissed.
That within three months the applicant pay to the respondent for reimbursement to Legal Aid New South Wales costs in the sum of EIGHT HUNDRED DOLLARS ($800) for this application.
In the event the applicant fails to fully pay the amount ordered above, interest on the amount outstanding will be due as calculated in accordance with the Family Law Rules 2004.

IT IS NOTED that publication of this judgment under the pseudonym Sheldon & Weir is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC3259 of 2009

MR SHELDON

Applicant

And

MS WEIR

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by Mr Sheldon (“the applicant”) that I disqualify myself from further involvement in these proceedings. In the event that no other judge is available to determine the seven day hearing due to commence on 5 July 2010, directions are sought for a new trial.
The application is based upon an assertion that there is an apprehension of bias on my part. Specifically, the applicant contends that by reason of remarks I made during the first day of this Div 12A parenting proceedings, a fair minded lay observer might reasonably apprehend that I will…

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 Sheldon and Weir (No 2)

Details

AGLC: Sheldon and Weir (No 2) [2010] FamCA 449
Case: [2010] FamCA 449
Decision Date: 3 June 2010

CaseChat Overview and Summary

In *Sheldon and Weir (No 2)*, Justice Ryan of the Family Court of Australia considered an application for the disqualification of a judge on the grounds of apprehended bias. The applicant sought to have the judge recuse themselves from proceedings.

The central legal issue before the Court was whether the judge’s conduct gave rise to a reasonable apprehension of bias. This involved an examination of remarks made by the judge, which the applicant contended demonstrated bias. The Court was required to apply the established test for apprehended bias, considering whether a fair-minded lay observer, informed of all the relevant circumstances, would apprehend that the judge might not bring an impartial mind to the issues the judge was to decide.

Justice Ryan applied the principles established in *Ebner v Official Trustee in Bankruptcy*, focusing on the objective test for apprehended bias. The Court noted that the remarks complained of were made in the context of a prudent judicial practice of disclosing any potential interests, statements, associations, or relationships. Crucially, the applicant had previously given consent to the composition of the Court, which the Court considered as a waiver of any right to object on the grounds of apprehended bias that arose from the disclosed information.

Consequently, the Court dismissed the application for disqualification. The applicant was ordered to pay the respondent $800 for costs, with interest to accrue on any outstanding amount in accordance with the *Family Law Rules 2004*.

Orders

Orders of the court

That the Application in a Case filed by the applicant on 23 March 2010 is dismissed.

That within three months the applicant pay to the respondent for reimbursement to Legal Aid New South Wales costs in the sum of EIGHT HUNDRED DOLLARS ($800) for this application.

In the event the applicant fails to fully pay the amount ordered above, interest on the amount outstanding will be due as calculated in accordance with the Family Law Rules 2004.

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.

Citations

AGLC Citation

Sheldon and Weir (No 2) [2010] FamCA 449

Most Recent Citation

ROWE & HELBIG [2012] FMCAfam 607

Cases citing this decision · 2 of 2 shown

Thompson & Berg
[2014] FamCAFC 73 Para 6

…In Sheldon & Weir (No.2) [2010] FamCA 449 at [39] Ryan J explained that Vakauta v Kelly (1989) 167 CLR 568 put beyond doubt that a litigant who was aware of circumstances which would give rise to an objection to the constitution of the court but who failed to object is taken to have waived his or her right to do so…
ROWE & HELBIG
[2012] FMCAfam 607 Para 1

…More recently this issue was discussed by Ryan J. in Sheldon & Weir (No 2) [2010] FamCA 449 commencing at [23]: 23. In Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 the High Court determined a series of appeals which concerned allegations of bias by the then Minister for Immigration & Mu…

View all 2 citing cases →

Cases cited in this decision · 12 of 12 shown

Bakarich v Commonwealth Bank of Australia
[2010] NSWCA 43 Para 7

…on that the fair-minded lay observer would have knowledge of the actual circumstances of the case. See also Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43. In Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Callinan J at par 177 said: It is axiomatic that the per…
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd
[2006] HCA 55 Para 7

…he case. See also Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43. In Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577 Callinan J at par 177 said: It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly…
Smits v Roach
[2006] HCA 36 Para 5

…losure by a judge to the litigants and legal practitioners of any possible potentially disqualifying interest or association. In Smits v Roach [2006] 227 CLR 423 Kirby J explained that such an approach: 102. … promotes transparency in the judicial process. It relieves the parties of inquiring into, or otherwis…
Australian Securities and Investment Commission v Reid
[2005] FCA 1274 Para 1

…In a similar vein Lander J in Australian Securities and Investment Commission v Reid [2005] FCA 1274 reviewed authorities concerned with the level of knowledge and characteristics imputed to the fair minded lay observer. After he completed his review Lander J at par 110 described such a person as one: “ … who is r…
Shehu v Minister for Immigration and Multicultural Affairs
[2002] FCA 35 Para 2

…In Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 the High Court determined a series of appeals which concerned allegations of bias by the then Minister for Immigration & Multicultural Affairs. In the course of their deliberations their Honours described what is meant by bias in the judicia…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 1

…to disqualify himself or herself is to be found in paragraphs 6 and part of par 8 in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee (2000) 205 CLR 337. Ebner and the apprehension of bias principle was recently the matter of consideration by the Full Court of the Family Court in Strahan &…
Johnson v Johnson
[2000] HCA 48 Para 1

…upon the context in which it is employed. However, it provides a convenient frame of reference. 4. In the earlier decision of Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492–493: 10. The disposition of this appeal depends upon the a…
Minister for Immigration v Jia
[2000] HCATrans 162 Para 2

…In Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 the High Court determined a series of appeals which concerned allegations of bias by the then Minister for Immigration & Multicultural Affairs. In the course of their deliberations their Honours described what is meant by bias in the judicial and administrative setting. Hayne J, with…
Laws v Australian Broadcasting Tribunal
[1990] HCA 31 Para 7

…l of knowledge imputed to the hypothetical fair minded lay observer. This would include, as was made plain in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 per Mason CJ and Brennan J, the imputation that the fair-minded lay observer would have knowledge of the actual circumstances of the case. See also B…
Vakauta v Kelly
[1989] HCA 44 Para 2

…ussion about the apprehension of bias principle would be incomplete without reference being made to waiver and prudent disclosure. In Vakauta v Kelly (1989) 167 CLR 568 it was put beyond doubt that a litigant who was aware of circumstances which would give rise to an objection to the constitution of the court but who…
Re JRL; Ex parte CJL
[1986] HCA 39 Para 1

…accede too readily to suggestions of appearance of bias. This point was firmly made by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342. Given the importance of the proposition, and the fact that Strickland J cited it in his reasons, we propose to set out what Mason J said at 352: ‘It seems that the acceptance by…
Penfold v Penfold
[1980] HCA 4 Para 1

…r s 118 was relevant. Section 117(2) requires a finding of justifying circumstances as an essential preliminary to the making of an order for costs ( Penfold v Penfold (1980) FLC 98-800).…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
1 mention (from Para 25)
Family Law Rules 2004 (Cth)
1 mention (from Para 3)