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Spargo & Spargo

Spargo & Spargo

Case [2025] FedCFamC2F 133 27 February 2025

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Spargo & Spargo [2025] FedCFamC2F 133

File number(s): BRC 14042 of 2023

Judgment of: JUDGE BERTONE

Date of judgment: 27 February 2025

Catchwords: FAMILY LAW – Parenting – Recusal application by the Father – Where proceedings are part-heard – Where the Mother and Father have both been cross-examined in the first tranche of the proceedings – Where the trial was adjourned part-heard to enable a psychiatric assessment and new family report – Where the Father delayed bringing recusal application by more than 3 months – Where Father claims excessive judicial intervention and lack of procedural fairness – Application dismissed

Legislation:
Family Law Act 1975 (Cth) div 12A

Evidence Act 1995 (Cth) ss 26, 41, 135 & 136

Australian Solicitors Conduct Rules r 17

Cases cited:
Baghti & Baghti and Ors [2015] FamCAFC 71

Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55

Cusack & Cusack(No 3) [2024] FedCFamC1A 93

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63

Edinger & Duy [2023] FedCFamC1A 194

Gin v Hing (No 4) [2024] FedCFamC1A 247

Huda & Huda & Latham [2018] FamCAFC 85

Johnson v Johnson [2000] HCA 48

Re JRL; Ex parte CJL [1986] HCA 39

Vakauta v Kelly [1989] HCA 44

Whisprun Pty Ltd & Dixon [2003] HCA 48

Division: Division 2 Family Law

Number of paragraphs: 187

Date of last submission/s: 7 February 2025

Date of hearing: 7 February 2025

Place: Brisbane

Counsel for the Applicant: Mr S Casey

Solicitor for the Applicant: Beck Law

Counsel for the Respondent: Mr S Cooper

Solicitor for the Respondent: Farrawell Family Law

Solicitor for the Independent Children's Lawyer: Mr J Parker - Parker Family Law
ORDERS

BRC 14042 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SPARGO

Applicant

AND:
MS SPARGO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BERTONE

DATE OF ORDER:

27 FEBRUARY 2025

THE COURT ORDERS:
1.The Father’s Application in a Proceeding filed 29 January 2025 is dismissed.
2.The costs of the Mother and the Independent Children’s Lawyer are reserved to the final hearing.
3.The matter remains listed for final hearing on 13 and 14 March 2025.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the

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 Spargo & Spargo

Details

AGLC: Spargo & Spargo [2025] FedCFamC2F 133
Case: [2025] FedCFamC2F 133
Decision Date: 27 February 2025

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Spargo, the father, sought the recusal of the presiding judge in a parenting case involving his child with Ms Spargo, the mother. The matter had been part-heard, with both parents cross-examined, and was adjourned for a psychiatric assessment and new family report. Mr Spargo's application for recusal, filed more than three months after the proceedings began, was dismissed by Judge Bertone on 27 February 2025. The father alleged excessive judicial intervention and a lack of procedural fairness. The court found that Mr Spargo's application was made inordinately late, and the grounds for recusal were not substantiated. Consequently, the recusal application was dismissed, and the case was scheduled for a final hearing on 13 and 14 March 2025. The court reserved the costs of the mother and the Independent Children’s Lawyer to the final hearing.

Orders

Orders of the court

BRC 14042 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR SPARGO

Applicant

AND:

MS SPARGO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BERTONE

DATE OF ORDER:

27 FEBRUARY 2025

THE COURT ORDERS:

1. The Father’s Application in a Proceeding filed 29 January 2025 is dismissed.

2. The costs of the Mother and the Independent Children’s Lawyer are reserved to the final hearing.

3. The matter remains listed for final hearing on 13 and 14 March 2025.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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Citations

Spargo & Spargo [2025] FedCFamC2F 133

Most Recent Citation

Spargo & Spargo [2025] FedCFamC1A 174

Cases Citing This Decision

Spargo & Spargo [2025] FedCFamC1A 174
Citation 1

…FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) APPELLATE JURISDICTION Spargo & Spargo [2025] FedCFamC1A 174 Appeal from: Spargo & Spargo [2025] FedCFamC2F 133 Appeal number: NAA 83 of 2025 File number: BRC 14042 of 2023 Judgment of: STRUM J Date of judgment: 25 September 2025 Catchwords: FAMILY LAW – APPEAL…

See all citing cases →

Cases Cited

Gin & Hing (No 4) [2024] FedCFamC1A 247
Citation 1 (Para 26)

…on v Johnson (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“ Ebner ”) at [8]). [2] Gin v Hing (No 4) [2024] FedCFamC1A 247. [3] Ibid.…
Cusack & Cusack (No 3) [2024] FedCFamC1A 93
Citation 2 (Para 2)

…instances of mild exasperation aside, the transcript shows the interventions were reasonable and proportionate.” [7] Cusack & Cusack (No 3) [2024] FedCFamC1A 93. THE FATHER’S APPLICATION…
Edinger & Duy [2023] FedCFamC1A 194
Citation 3 (Para 20)

…an impartial and unprejudiced mind.[9] I am entitled to ask clarifying questions.[10] [8] Huda & Huda & Latham [2018] FamCAFC 85. [9] Edinger & Duy [2023] FedCFamC1A 194 citing with approval Kirby A-CJ Galea v Galea (1990) 19 NSWLR 263. [10] Cusack & Cusack (No 3) [2024] FedCFamC1A 93…
Huda & Huda and Laham [2018] FamCAFC 85
Citation 4 (Para 20)

…judge must ensure the appearance of an impartial and unprejudiced mind.[9] I am entitled to ask clarifying questions.[10] [8] Huda & Huda & Latham [2018] FamCAFC 85. [9] Edinger & Duy [2023] FedCFamC1A 194 citing with approval Kirby A-CJ Galea v Galea (1990) 19 NSWLR 263. [10] Cusack & Cusack (No 3) [2024] FedCFamC…
Baghti & Baghti [2015] FamCAFC 71
Citation 5 (Para 16)

…ut forward by a party, and I do not propose to address every submission made. [1] [1] Whisprun Pty Ltd & Dixon [2003] HCA 48; Baghti & Baghti and Ors [2015] FamCAFC 71.…
McMillan and McMillan (No.1) [2013] FCCA 1399
Citation 6 (Para 2)

…e proposed orders, as is common and permissible (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd at [111]–[112]; Antoun v The Queen (2006) 224 ALR 51 at [27]; Johnson v Johnson (2000) 201 CLR 488 at 493 and 504–505). The husband was not importuned. Occasional instances of mild exasperation aside, the tra…
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55
Citation 7 (Para 1)

…are permitted to make full submissions does not manifest partiality or bias.” [6] Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55.…
Antoun v The Queen [2006] HCA 2
Citation 8 (Para 2)

…the evidence and the proposed orders, as is common and permissible (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd at [111]–[112]; Antoun v The Queen (2006) 224 ALR 51 at [27]; Johnson v Johnson (2000) 201 CLR 488 at 493 and 504–505). The husband was not importuned. Occasional instances of mild exasperation asi…
Whisprun Pty Ltd v Dixon [2003] HCA 48
Citation 9 (Para 16)

…red to mention every fact or argument put forward by a party, and I do not propose to address every submission made. [1] [1] Whisprun Pty Ltd & Dixon [2003] HCA 48; Baghti & Baghti and Ors [2015] FamCAFC 71.…
Minister for Immigration And Multicultural Affairs v Jia Legeng [2001] HCA 17
Citation 10 (Para 26)

…r has acted with a sufficient degree of partisanship or hostility towards one party ( Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [36], [72]–[73], [111], [185]–[187]). [25]An apprehension of bias moves the focus from the subjective state of mind of the decision-maker to the p…
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Citation 11 (Para 26)

…on between the matter and the feared deviation from the course of deciding the case on its merits ( Johnson v Johnson (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“ Ebner ”) at [8]). [2] Gin v Hing (No 4) [2024] FedCFamC1A 247. [3] Ibid.…
Johnson v Johnson [2000] HCA 48
Citation 12 (Para 26)

…iculate the logical connection between the matter and the feared deviation from the course of deciding the case on its merits ( Johnson v Johnson (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“ Ebner ”) at [8]). [2] Gin v Hing (No 4) [2024] FedCFamC1A 247. [3] Ibid.…
Vakauta v Kelly [1989] HCA 44
Citation 13 (Para 45)

…le to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing…” [31] Vakauta v Kelly [1989] HCA 44 at paragraph 5…
Re JRL; Ex parte CJL [1986] HCA 39
Citation 14 (Para 47)

…on of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour” [33] Re JRL; Ex parte CJL [1986] HCA 39 per Mason J at paragraph 5…

Legislation Cited

Evidence Act 1995 (Cth) 135, 26, 41
4 mentions (from Para 21)
Family Law Act 1975 (Cth)
1 mention
Federal Proceedings (Costs) Act 1981 (Cth)
1 mention (from Para 3)

File number(s):	BRC 14042 of 2023
Judgment of:	JUDGE BERTONE
Date of judgment:	27 February 2025
Catchwords:	FAMILY LAW – Parenting – Recusal application by the Father – Where proceedings are part-heard – Where the Mother and Father have both been cross-examined in the first tranche of the proceedings – Where the trial was adjourned part-heard to enable a psychiatric assessment and new family report – Where the Father delayed bringing recusal application by more than 3 months – Where Father claims excessive judicial intervention and lack of procedural fairness – Application dismissed
Legislation:	Family Law Act 1975 (Cth) div 12A Evidence Act 1995 (Cth) ss 26, 41, 135 & 136 Australian Solicitors Conduct Rules r 17
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55 Cusack & Cusack(No 3) [2024] FedCFamC1A 93 Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 Edinger & Duy [2023] FedCFamC1A 194 Gin v Hing (No 4) [2024] FedCFamC1A 247 Huda & Huda & Latham [2018] FamCAFC 85 Johnson v Johnson [2000] HCA 48 Re JRL; Ex parte CJL [1986] HCA 39 Vakauta v Kelly [1989] HCA 44 Whisprun Pty Ltd & Dixon [2003] HCA 48
Division:	Division 2 Family Law
Number of paragraphs:	187
Date of last submission/s:	7 February 2025
Date of hearing:	7 February 2025
Place:	Brisbane
Counsel for the Applicant:	Mr S Casey
Solicitor for the Applicant:	Beck Law
Counsel for the Respondent:	Mr S Cooper
Solicitor for the Respondent:	Farrawell Family Law
Solicitor for the Independent Children's Lawyer:	Mr J Parker - Parker Family Law

BRC 14042 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR SPARGO Applicant
AND:	MS SPARGO Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BERTONE
DATE OF ORDER:	27 FEBRUARY 2025