Tedja and Sony (No 2) - [2014] FamCAFC 111

FAMILY COURT OF AUSTRALIA

TEDJA & SONY (NO. 2)

[2014] FamCAFC 111

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks that the appeal judge disqualify himself – where the respondent opposes the application – where the test of apprehended bias is not satisfied – application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – TRANSCRIPT – where the applicant seeks that the court pay the cost of transcript of the hearing before the Federal Circuit Court judge – where such an order is made on very rare occasions – where the applicant is now employed – where it is apparent that the applicant can afford to pay for the transcript – where there is no basis for the application to succeed – application dismissed.

Family Law Act 1975 (Cth) – ss 94AAA (3)

Family Law Rules 2004 (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342

APPLICANT:

Mr Tedja

RESPONDENT:

Ms Sony

FILE NUMBER:

MLC

7099

2012

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

23 June 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

23 June 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

28 January 2014

LOWER COURT MNC:

[2014] FCCA 275

REPRESENTATION

THE APPLICANT:	In Person by telephone
COUNSEL FOR THE RESPONDENT:	Ms Matthews

SOLICITOR FOR THE RESPONDENT:

Women’s Legal Services Victoria

Orders

The application in an appeal filed on 9 May 2014 be dismissed.
The application in an appeal filed on 19 May 2014 be dismissed.
The respondent serve her summary of argument filed on 12 June 2014 upon

Mr Tedja via his email address […].

IT IS NOTED THAT

The respondent does not seek an order for costs in relation to either application that has been dismissed today.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tedja & Sony has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 12 of 2014
File Number: MLC 7099 of 2012

Mr Tedja

Applicant

And

Ms Sony

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

The first application before the court today is an application in an appeal filed by Mr Tedja (“the applicant”) on 9 May 2014 in which in effect he seeks an order that I be disqualified from hearing the substantive matter that is before the court, and also from any future hearing that may be before the court.
There is an affidavit filed in support of that application and I will return to it later in these reasons.
Ms Sony (“the respondent”) although having not filed any documents, has indicated through her counsel today that she opposes the order that is sought.
To put the application into context, the substantive…

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 Tedja and Sony (No 2)

Details

AGLC: Tedja and Sony (No 2) [2014] FamCAFC 111
Case: [2014] FamCAFC 111
Decision Date

CaseChat Overview and Summary

The appeal in Tedja and Sony (No 2) was heard by Strickland J in the Family Court of Australia. Mr Tedja sought an order disqualifying the judge from hearing the appeal against a divorce order made by the Federal Circuit Court. Mr Tedja also sought an order that the court pay the cost of the transcript of the hearing before the Federal Circuit Court. Ms Sony opposed both applications.

The court was required to determine whether the test of apprehended bias was satisfied and whether the court should order the payment of the transcript costs.

The court found that the test of apprehended bias was not satisfied. The court noted that the application was based on an earlier application heard by the judge, and the applicant was confusing the judge with the Federal Circuit Court judge. The court also found that the applicant could afford to pay for the transcript. The court dismissed both applications. The respondent was ordered to serve the summary of argument on the applicant.

Orders