Whitehill & Talaska (No 4)

Case [2025] FedCFamC2F 325

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Whitehill & Talaska (No 4) [2025] FedCFamC2F 325  

File number(s): MLC 3002 of 2024
Judgment of: JUDGE O'SHANNESSY
Date of judgment: 18 March 2025
Catchwords:  FAMILY LAW – Application for costs in a parenting case – Judge’s duty and power to control the proceedings – Two applications for recusal – Actual bias and apprehended bias alleged – Both applications dismissed and reasons reserved – Decision delivered the day after the end of the trial, Christmas Eve, with costs and reasons for dismissal of recusal applications reserved – These are those reasons.  
Legislation:

Evidence Act 1995 ss 11 & 26

Family Law Act 1975 (Cth) ss 65DAAA, 69ZN, 69ZQ, 69ZX & 117
Cases cited:

Acheson & Begbie (No 2) (2024) FLC 94-176

Lennon & Sanil (2020) FLC 93-962

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 

Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342

Riddler & Riddler(No 2) [2024] FedCFamC2F 751

Whitehill & Talaska [2024] FedCFamC2F 768

Woodside Energy Limited v Australian workers Union [2022] FCA 1391 
Division: Division 2 Family Law
Number of paragraphs: 119
Date of hearing: 22 November 2024, 20 & 23 December 2024
Place: Melbourne
Counsel for the Applicant: Ms Swann
Solicitor for the Applicant: Saunders Family & Estate Lawyers
Counsel for the Respondent: Mr Willee
Solicitor for the Respondent: M C Lawyers & Associates
Table of Corrections
1 April 2025 In paragraph 15, at the quote of paragraph 105, the word “not” has been inserted between the words “do” and “regard”.

ORDERS

MLC 3002 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MS WHITEHILL

Applicant
AND:

MR TALASKA

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

18 MARCH 2025

THE COURT ORDERS THAT:

1.The oral application of the Father, Mr Talaska, for costs of the proceedings up to and including the hearing on 22 November 2024 be and is dismissed.

2.The reserved reasons for the dismissal, on 24 December 2024, of two applications for recusal of the sitting Judge be and are published to the parties.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Amended pursuant to r 10.14(b) of the

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AGLC
Whitehill & Talaska (No 4) [2025] FedCFamC2F 325
Case
[2025] FedCFamC2F 325
Decision Date

CaseChat Overview and Summary

In this case, Ms Whitehill and Mr Talaska were engaged in a protracted parenting dispute, which reached the Federal Circuit and Family Court of Australia. The matter involved two significant applications: one from Mr Talaska for costs of the proceedings, and two separate applications for the recusal of the presiding Judge, O'Shannessy. Both the costs application and the recusal applications were dismissed by the Court, with reasons reserved until a later date. The Court delivered its reasons on 18 March 2025, following a trial that concluded on 22 November 2024. The reasons for the dismissal of the recusal applications were published on 24 December 2024, Christmas Eve.

The legal issues that the Court had to address included the Judge's discretion in controlling the proceedings and the standard of proof required for establishing actual or apprehended bias in a Judge. The Court examined Mr Talaska's applications for recusal under the framework established by the Family Law Act 1975 (Cth) and relevant case law. The Court found that Mr Talaska did not meet the stringent criteria for demonstrating actual or apprehended bias, and therefore both applications were dismissed. The Judge provided detailed reasons for this conclusion, focusing on the evidence presented and the legal standards applicable.

Judge O'Shannessy meticulously reviewed the conduct of the proceedings, the submissions made by both parties, and the applicable legal principles. The Judge concluded that the applications for recusal were without merit, as there was no evidence of bias on the part of the presiding Judge. The Judge also considered the timing of the decision, opting to release the reasons for the dismissal of the recusal applications on Christmas Eve, a date that was strategically chosen to allow the parties time to review the reasons before the new year. The Court's decision was clear and reasoned, affirming the Judge's authority and the procedural integrity of the proceedings.

The Court ordered that Mr Talaska's application for costs be dismissed, and the reasons for the dismissal of the recusal applications be published. These orders reflected the Court's findings on the legal issues and the Judge's role in managing the proceedings. The decision underscored the importance of adhering to legal standards in family law cases and the high threshold for demonstrating bias against a Judge.

Orders

Orders of the court

MLC 3002 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS WHITEHILL

Applicant

AND:

MR TALASKA

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

18 MARCH 2025

THE COURT ORDERS THAT:

1. The oral application of the Father, Mr Talaska, for costs of the proceedings up to and including the hearing on 22 November 2024 be and is dismissed.

2. The reserved reasons for the dismissal, on 24 December 2024, of two applications for recusal of the sitting Judge be and are published to the parties.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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