Bligh & Trott Custody Appeal: Lessons on Bias, Counsel Competence, and Security Costs

Bligh & Trott [2023] FedCFamC1A 95 (7 June 2023)

The case of Bligh & Trott involves an appeal from Mr. Bligh against orders made in family court concerning the custody and care of the couple's child. The appeal addresses several grounds including alleged incompetence of counsel, bias of the primary judge, and failure to adjourn the hearing.

Facts:

The primary issues involved in this case relate to the custody and care of a child born to Mr. Bligh and Ms. Trott. In February, orders were made by consent for the child to live with the respondent (Ms. Trott) and for her to have sole parental responsibility for him. In April, further orders were made that Mr. Bligh should have no contact with the child or Ms. Trott, and that Ms. Trott was permitted to change the child's name.

Issue: The primary issue in this case is the appellant's application to review the judicial registrar’s decision for security costs and his subsequent dismissal of the appeal. The appellant contends that the primary judge erred by not adjourning the hearing and that there was incompetence of counsel. Furthermore, he alleges bias on the part of the primary judge.

Rule: The relevant legislation, regulations, and rules involved in this decision are as follows:

Family Law Act 1975 (Cth) ss 68B,117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3, rr 12.02, 13.36
The cited cases include Frazier & Valdez (2016), Maddax & Danner [2016], Minister for Immigration and Multicultural Affairs v Jia Legeng (2001), OP v TP (2002), Reid v Commercial Club (Albury) Ltd [2014], and TKWJ v The Queen (2002).

Application: The court applied the relevant legislation, regulations, rules, and case law to evaluate the appellant's claim. It was determined that a challenge to orders based on incompetence of counsel is not an independent ground of appeal and it must be demonstrated that such incompetence led to a miscarriage of justice or an unfair trial. The court ruled out allegations of bias noting that it requires proof that a judge’s mind was committed to a conclusion incapable of alteration.

In terms of security costs, s 117 of the Family Law Act gives the court power to make such orders taking into account factors identified in s 117(2A) of the Act and r 12.02 of the Rules. The respondent's poor financial position was considered as well as previous instances where the appellant failed to pay costs.

The court also observed that the appellant lives overseas and it would be near impossible for the respondent to enforce a costs order. The court concluded that the interests of justice favour making the order for security for costs.

Conclusion: The court dismissed the application for review, finding no reason to vary the orders of the appeal judicial registrar. The appellant was ordered to pay the respondent’s costs, fixed in the sum of $1,709.65 within 28 days.

Take Home Lessons Learned: This case underscores several lessons. Firstly, allegations of bias or incompetence of counsel are serious and require substantial proof. Secondly, when considering an application for security costs, courts will consider a range of factors including financial circumstances and the likely ability to enforce a costs order. Lastly, it serves as a reminder that filing an appeal should be done on solid grounds with a clear understanding of what can be achieved through the appeal process.
Details of Parties:

Mr. Bligh is the appellant in this case who had his application for review dismissed by the court. He was represented by a barrister and solicitor for part of his original hearing but acted for himself during later stages. Ms. Trott is the respondent who has been granted sole custody and parental responsibility for their child through previous court orders. She was represented by Evans Brandon Family Lawyers in this case. The Independent Children's Lawyer (ICL), also involved in this case, supported Ms. Trott's application for security costs against Mr. Bligh.