Strahan & Strahan (Disqualification)

Case [2009] FamCAFC 204


FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (DISQUALIFICATION) [2009] FamCAFC 204

FAMILY LAW - APPEAL – COURTS AND JUDGES – DISQUALIFICATION – Whether the judge should have disqualified himself because of apprehended bias – Where the wife had been employed by the judge in 1981 when he was a practising solicitor – Where that employment was terminated for unsatisfactory performance – Where it was accepted that the judge had no memory of the wife’s former employment – Where the wife’s evidence as to her former employment was unchallenged – Where the wife intended to introduce evidence during property settlement proceedings that she assisted the husband in developing a successful business – Consideration of the test in Ebner v Official Trustee in Bankruptcy –  Appeal allowed

FAMILY LAW - APPEAL – COURTS AND JUDGES – DISQUALIFICATION AND DISCRETION – Whether a decision to disqualify is a matter of discretion – Whether the wife must show an error of the kind found in House v The King – Where the judge must apply the governing principles to the facts without any latitude of individual choice – Held such decisions are not discretionary

FAMILY LAW - APPEAL – COURTS AND JUDGES – DISQUALIFICATION AND WAIVER – Whether the wife had waived her right to seek the disqualification of the judge – Where considerable time passed between when the wife first expressed concerns and when she made her application – Where the wife’s uncontested evidence was that she was unaware of her rights regarding this issue – Where the wife provided an adequate explanation for the delay – Such delay not fatal to the wife’s appeal

FAMILY LAW - COSTS – Where the appeal has been successful – Where an order for cost certificates would be inappropriate considering the parties’ wealth, the amount they have spent on litigation and the extent to which public resources have been made available to them in providing a forum for their dispute – No order as to costs between the husband and the wife – Where the husband and the wife bear equally the costs of the Independent Children’s Lawyer on an increased scale

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
High Court Rules 2004
Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041
McGillivray v Mitchell (1998) FLC 92-818
Re JRL; Ex Parte CJL (1986) 161 CLR 342
Russo v Russo [1953] VLR 57
Smits v Roach (2006) 227 CLR 423
Vakauta v Kelly (1988) 13 NSWLR 502
Vakauta v Kelly (1989) 167 CLR 568
APPELLANT: Ms Strahan
RESPONDENT: Mr Strahan
INDEPENDENT…

Continue reading Strahan & Strahan (Disqualification)

Sign in free to access the full text

Details
AGLC
Strahan & Strahan (Disqualification) [2009] FamCAFC 204
Case
[2009] FamCAFC 204
Decision Date

CaseChat Overview and Summary

The appeal before the court involved a dispute between a husband and wife concerning family law matters, specifically the disqualification of a judge presiding over the case. The wife sought the disqualification of Justice Strickland, who had previously employed her in 1981 while he was a practising solicitor. The wife's employment was terminated due to unsatisfactory performance, and she intended to introduce evidence during the property settlement proceedings that she assisted the husband in developing a successful business. The court was required to decide whether Justice Strickland should have disqualified himself due to apprehended bias, whether the decision to disqualify was discretionary, and whether the wife had waived her right to seek disqualification.

The court considered the test for disqualification set out in Ebner v Official Trustee in Bankruptcy, concluding that decisions regarding disqualification are not discretionary but require the judge to apply governing principles to the facts without any latitude of individual choice. The court found that the wife had not waived her right to seek disqualification, despite the considerable time that passed between when she first expressed concerns and when she made her application. The wife provided an adequate explanation for the delay, and the court accepted that she was unaware of her rights regarding this issue. The court found that the wife had established a real likelihood of bias on the part of Justice Strickland, and thus the appeal was allowed, and the matter was to be listed before a different judge.

The court also considered the issue of costs, noting that the appeal had been successful, and an order for cost certificates would be inappropriate considering the parties' wealth, the amount they had spent on litigation, and the extent to which public resources had been made available to them in providing a forum for their dispute. The court made no order as to costs between the husband and the wife but ordered that they bear equally the costs of the Independent Children's Lawyer, such costs to be calculated pursuant to the Legal Services Commission of South Australia scale plus 25 per cent.

Orders

Orders of the court

1.

The appeal be allowed.

2.

The hearing of all matters in these proceedings be listed before a judge other than the Honourable Justice Strickland.

3.

There is no order as to costs of the appeal in the case of the husband and the wife.

4.

The husband and the wife meet equally the costs of the Independent Children’s Lawyer, such costs to be calculated pursuant to the Legal Services Commission of South Australia scale plus 25 per cent.

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.