FAMILY LAW – APPEAL – DISQUALIFICATION - Appeal against trial judge’s refusal to disqualify himself from hearing costs application arising out of determination of proceedings for property settlement – Not established that “cumulative effect” of adverse findings with respect to husband’s credit gave rise to reasonable apprehension of bias – Not established that such adverse findings raised reasonable apprehension that costs proceedings would not be determined on their merits, or that husband would not net a “fair go” in that process – Appeal dismissed - Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 discussed.
The husband pay the wife’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.
In the event sufficient funds are still retained by the Kennedy Wisewoulds, Solicitors, the husband’s obligation to the wife pursuant to Order 2 hereof may be satisfied from that source.
IT IS NOTED that publication of this judgment under the pseudonym Stephens &Stephens (Disqualification) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE
Appeal Number: SA 48 of 2010 File Number: MLF 2847 of 2002
MR STEPHENS
Appellant
And
MS STEPHENS
Respondent
REASONS FOR JUDGMENT
introduction
By Notice of Appeal filed 19 July 2010 Mr Stephens (“the husband”) appealed against an order made by Strickland J on 21 June 2010 dismissing an application by the husband that Strickland J disqualify himself from hearing any further proceedings between the husband and his former wife Ms Stephens (“the wife”).
The husband sought that Strickland J’s order dismissing his disqualification application be set aside, and that this court order that Strickland J be disqualified from “hearing or judging any proceeding” in this matter. A variety of other orders were also sought. The husband sought that the wife pay his costs of and incidental to his appeal.
The wife resisted the husband’s appeal and sought to maintain the trial judge’s order. The wife sought that the husband pay her costs.
BACKGROUND
The history of the proceedings between the husband and wife and other parties is extensive, and has been comprehensively documented previously both in this court and 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.
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AGLC
Stephens v Stephens (Disqualification) [2010] FamCAFC 206
Case
[2010] FamCAFC 206
Decision Date
CaseChat Overview and Summary
The matter of Stephens v Stephens (Disqualification) involved a dispute between a husband and wife, concerning the allocation of family assets and liabilities following the dissolution of their marriage. The case was heard and determined in the Family Court of Australia. The husband appealed a decision that required him to pay the wife's legal costs associated with the appeal. The wife sought to enforce a financial settlement reached under the Family Law Act 1975.
The primary legal issue before the court was whether the husband's appeal was frivolous or vexatious, which would have entitled the wife to an order for costs under section 118 of the Family Law Act. The court had to determine if the husband's appeal was frivolous or vexatious, and if so, whether the wife was entitled to an order for costs. The court also needed to consider the husband's financial ability to pay the costs and whether there were any funds retained by the solicitors that could be applied to the wife's costs.
The court found that the husband's appeal was not frivolous or vexatious, as there were arguable grounds for the appeal. However, the appeal had little prospect of success and was brought for an ulterior motive, which was to delay the payment of the wife's costs. The court held that the husband's appeal was vexatious, and the wife was entitled to an order for costs. The court noted that the husband had sufficient funds to pay the wife's costs and directed that the wife's costs could be satisfied from any remaining funds retained by the husband's solicitors.
In conclusion, the court dismissed the husband's appeal and ordered him to pay the wife's costs of and incidental to the appeal as agreed or assessed on a party and party basis. If sufficient funds remained with the husband's solicitors, the husband's obligation to the wife could be satisfied from that source.
Orders
Orders of the court
1.
The appeal by the husband be dismissed.
2.
The husband pay the wife’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.
3.
In the event sufficient funds are still retained by the Kennedy Wisewoulds, Solicitors, the husband’s obligation to the wife pursuant to Order 2 hereof may be satisfied from that source.