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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CaseChat Overview and Summary
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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