Stephens and Stephens (No 2) - [2010] FamCA 553

FAMILY COURT OF AUSTRALIA

STEPHENS & STEPHENS (NO. 2)

[2010] FamCA 553

FAMILY LAW – PRACTICE AND PROCEDURE – Disqualification – application by the husband seeking disqualification of the judge on the ground of actual bias or reasonable apprehension of bias – where the husband had previously brought an application in similar terms seeking the judge’s disqualification – where the husband had not established actual or apprehended bias and the application was dismissed – where nothing new is raised by the husband in support of his current application – application summarily dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – husband granted an extension of time to file his written submissions with respect to outstanding costs issues

FAMILY LAW – COSTS – oral application by the wife seeking costs – costs reserved

Family Law Rules 2004 (Cth) r 24.10

Blair v Curran (1939) 62 CLR 464
Kemeny v Kemeny (1998) FLC 92-806
RJ & AJ [2005] FamCA 1075

APPLICANT:

Mr Stephens

RESPONDENT:

Ms Stephens

FILE NUMBER:

MLF

2487

2002

DATE DELIVERED:

21 June 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickand J

HEARING DATE:

21 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Grobtuch

SOLICITOR FOR THE RESPONDENT:

Kennedy Wisewoulds

Orders

That paragraphs 1, 2, 3, 4 and 6 of the Application in a Case filed by the husband on 26 May 2010 be dismissed.
That the time for the husband to file and serve written submissions in response to the written submissions filed by the wife on 29 April 2010 be extended to close of business on 12 July 2010.
That the Application in a Case filed by the husband on 26 May 2010 be removed from the active pending cases list.
That the oral application of the wife for costs against the husband of and incidental to the Application in a Case filed by the husband on 26 May 2010 be reserved.
In relation to the said application for costs the wife file and serve any written submissions in support within seven [7] days of the date hereof and the husband file and serve any written submissions in response within twenty-one [21] days of the date hereof.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLF 2847 of 2002

MR STEPHENS

Applicant

And

MS STEPHENS

Respondent

EX TEMPORE REASONS

This is an application filed by the husband on 26 May 2010. The orders sought, in summary, are that firstly I disqualify myself on the grounds of either reasonable apprehension of bias or actual bias, secondly a declaration that a fair-minded lay observer would have a reasonable apprehension of a possibility of bias by me, and thirdly, a declaration that I have not acted reasonably or honestly in refusing to disqualify myself. In relation to another issue, the application also seeks an order that…

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 Stephens and Stephens (No 2)

Details

AGLC: Stephens and Stephens (No 2) [2010] FamCA 553
Case: [2010] FamCA 553
Decision Date: 21 June 2010

CaseChat Overview and Summary

In *Stephens and Stephens (No 2)*, the husband applied to Strickland J for the disqualification of the judge on the grounds of actual bias or a reasonable apprehension of bias. This application followed a previous, unsuccessful application by the husband seeking the same relief.

The primary legal issue before the court was whether the husband had established actual bias or a reasonable apprehension of bias on the part of the judge. A secondary issue concerned the husband's entitlement to an extension of time to file written submissions regarding outstanding costs issues.

Strickland J reasoned that the husband's current application for disqualification raised no new grounds or evidence not previously considered and dismissed. Consequently, the application was summarily dismissed. The judge also granted the husband an extension of time to file his written submissions concerning the costs issues.

The court ordered the dismissal of specific paragraphs of the husband's application filed on 26 May 2010, removed that application from the active pending cases list, and reserved the wife's oral application for costs. Directions were given for the filing of written submissions in relation to the reserved costs application.

Orders

Orders of the court

That paragraphs 1, 2, 3, 4 and 6 of the Application in a Case filed by the husband on 26 May 2010 be dismissed.

That the time for the husband to file and serve written submissions in response to the written submissions filed by the wife on 29 April 2010 be extended to close of business on 12 July 2010.

That the Application in a Case filed by the husband on 26 May 2010 be removed from the active pending cases list.

That the oral application of the wife for costs against the husband of and incidental to the Application in a Case filed by the husband on 26 May 2010 be reserved.

In relation to the said application for costs the wife file and serve any written submissions in support within seven [7] days of the date hereof and the husband file and serve any written submissions in response within twenty-one [21] days of the date hereof.

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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