Tothill and Crowther (No 2) - [2019] FamCA 276

FAMILY COURT OF AUSTRALIA

TOTHILL & CROWTHER (NO. 2)

[2019] FamCA 276

FAMILY LAW – COURTS AND JUDGES – Recusal application – Disqualification – Apprehension of Bias – Application of the two-step test in disqualification applications on the ground of apprehended bias – Interim parenting decision – Application dismissed.

Family Law Act 1975 (Cth) s 60CC(2) and (3)

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Johnson v Johnson [2001] CLR 488; 201 CLR 488
Strahan & Strahan (Disqualification) [2009] FamCAFC 204
SS & AH [2010] FamCAFC 13
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342.

APPLICANT:

Mr Tothill

RESPONDENT:

Ms Crowther

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

4457

2013

DATE DELIVERED:

3 May 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta/Adelaide

JUDGMENT OF:

Hannam J

HEARING DATE:

16 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

SOLICITOR FOR THE APPLICANT:

Bartel & Hall

COUNSEL FOR THE RESPONDENT:

Mr Bowler

SOLICITOR FOR THE RESPONDENT:

Clelands Lawyers Adelaide Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

The mother’s application that I recuse myself from further hearing in the matter is dismissed.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: ADC 4457 of 2013

Mr Tothill

Applicant

And

Ms Crowther

Respondent

REASONS FOR JUDGMENT

Introduction

In the course of a protracted and fragmented hearing in relation to the interim parenting arrangements for the parties’ only child an application is made by the mother that I recuse myself from further hearing. The father seeks that this application be dismissed and the Independent Children’s Lawyer (“ICL”) does not take a position in relation to it.

Background

Parenting proceedings between the parties which have been ongoing for many years relate to their only child, a little girl who is now eight (“the child”).
In short the parties had a brief relationship from about January 2010 but had separated later that year around two months before the child was born.
The father commenced parenting proceedings in November 2013 in the Federal Circuit Court initially seeking orders that he spend time with the child who was then two as it had been problematic for arrangements to be made for that to occur until this time.
In June 2015 the proceedings were transferred from the Federal Circuit Court to this court. 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 Tothill and Crowther (No 2)

Details

AGLC: Tothill and Crowther (No 2) [2019] FamCA 276
Case: [2019] FamCA 276
Decision Date: 3 May 2019

CaseChat Overview and Summary

In *Tothill and Crowther (No 2)*, the mother applied for the Honourable Justice Hannam to recuse himself from further hearing an interim parenting matter. The application was based on an apprehension of bias.

The central legal issue before the court was whether there was a reasonable apprehension of bias on the part of the judge, requiring his disqualification from the proceedings. This involved the application of the well-established two-step test for determining apprehended bias in judicial decision-making.

Justice Hannam applied the two-step test, which requires the court to first identify the facts and circumstances that might give rise to the apprehension of bias, and then determine whether a fair-minded and informed observer, having considered those facts and circumstances, would conclude that the judge was not impartial. After considering the evidence and submissions, the judge found that the mother had not established a sufficient basis to warrant recusal.

Consequently, the mother’s application that Justice Hannam recuse himself from further hearing the matter was dismissed.

Orders

Orders of the court

The mother’s application that I recuse myself from further hearing in the matter is dismissed.

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

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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