High Court of Australia
HIGH COURT OF AUSTRALIA
McHUGH, KIRBY AND CALLINAN JJ
HELEN BIENSTEIN APPELLANT
AND
SIMON BIENSTEIN RESPONDENT
Bienstein v Bienstein
[2003] HCA 7
13 February 2003
M140/2000
ORDER
Purported appeal struck out as incompetent.
Representation:
No appearance for the appellant
The respondent did not participate
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Bienstein v Bienstein
Practice and procedure – High Court – Removal of proceedings – Proceedings for adult child maintenance in Family Court – Whether a cause pending in a federal court – Whether matter arises under the Constitution or involves its interpretation.
Practice and procedure – High Court – Appeal from decision of a single Justice – Whether leave to appeal is required – Whether order to refuse removal of proceedings is final or interlocutory.
Courts and judges – Bias – Application for disqualification of a Justice – Whether reasonable apprehension of bias – Justice had practised professionally in city where proceedings originated – No imputed bias.
Judiciary Act 1903 (Cth, ss 34, 40.
Family Law Act 1975 (Cth), s 118.
1. McHUGH, KIRBY AND CALLINAN JJ. This is a purported appeal from an order of Hayne J made on 1 December 2000 dismissing an application for removal of proceedings pending in the Family Court under s 40(1) of the Judiciary Act 1903 (Cth). The parties to the "appeal" are wife and husband for the purpose of the Family Law Act 1975 (Cth). They have been involved in various proceedings in the Family Court that arose out of a claim for maintenance in respect of a child of the marriage who is a disabled adult. The purported appeal is brought by the wife who claims to appeal as of right[1].
Statement of the case
1. Under s 40(1) of the Judiciary Act, Mrs Bienstein applied to remove into this Court proceedings pending in the Family Court on the ground that they arose under the Constitution or involved its interpretation. The Family Court proceedings that she sought to remove were:
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