Batey-Elton and Elton - [2010] FamCA 266

FAMILY COURT OF AUSTRALIA

BATEY-ELTON & ELTON

[2010] FamCA 266

FAMILY LAW – COURTS AND JUDGES – Application for disqualification on ground of bias

Family Law Act 1975 (Cth)

Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337
EL & ML and DM (2003) FamCA 1449
Johnson & Johnson (2000) 201 CLR 488
In JRL; ex parte CJL (1986) 161 CLR 342

APPLICANT:

Ms Batey-Elton

RESPONDENT:

Mr Elton

FILE NUMBER:

TVF

2250

2004

DATE DELIVERED:

11 February 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Cronin J

HEARING DATE:

11 February 2010

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr G. Page SC

SOLICITOR FOR THE RESPONDENT:

Rod Madsen

Orders

That paragraph 2 of the orders sought by the wife in her application in a case filed 10 February 2010 is dismissed.
That the husband’s costs of this day are reserved.
That the balance of the wife’s application in a case and the trial itself be adjourned to 10.00am on 15 February 2010.

IT IS DIRECTED

That the Listings Coordinator convey to the wife the above orders by telephone this day and if unsuccessful by telephone contact, by any means she may have available to her.

IT IS NOTED that publication of this judgment under the pseudonym Batey-Elton & Elton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVF 2250 of 2004

MS BATEY-ELTON

Applicant

And

MR ELTON

Respondent

REASONS FOR JUDGMENT

These reasons concern an application by Ms Batey-Elton that I disqualify myself. The applicant, Ms Batey-Elton, to whom I shall refer in these reasons as the wife, has had a longstanding application under s 79A of the Family Law Act 1975 (Cth) (“the Act”). In the period since the application was filed the wife has been a bankrupt. The husband, Mr Elton, not only disputes the application under s 79A, but has also had on foot for a long time an application for summary dismissal of the wife’s application.
On 21 October 2009, Jordan J, upon hearing Mr Page of Senior Counsel for the husband and the wife in person, made specific orders for a final hearing to occur. Those orders provide that the s 79A application and the husband’s application for summary dismissal, together with three particular paragraphs of an application filed by the wife on 30 April 2009 be listed for final hearing for three days in the fortnight commencing 8 February 2010, but not before Thursday 11 February 2010.
This matter was listed before me today. The exact reasons for its listing is a matter of some conjecture. On one view it was to be listed for mention, and on another view it was listed for final hearing.
The wife has left the court, indicating that she objects to me hearing her application.
On 10 February, which is yesterday, the wife filed an application in a case. That application sought a number of orders in terms which…

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.

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Details

Case: [2010] FamCA 266
Decision Date: 11 February 2010

CaseChat Overview and Summary

In the matter of *Batey-Elton and Elton*, heard before Cronin J, the wife sought certain orders in an application filed on 10 February 2010. The husband's costs of the day were reserved, and the balance of the wife's application, along with the trial, was adjourned to 15 February 2010.

The primary legal issue before the court was the determination of the wife's application, specifically concerning paragraph 2 of the orders she sought. The court was required to decide whether to grant or dismiss this particular relief.

Cronin J dismissed paragraph 2 of the wife's application. The court directed that the Listings Coordinator communicate these orders to the wife by telephone, and if unsuccessful, by any other available means. The remaining aspects of the wife's application and the trial were adjourned.

Orders

Orders of the court

That paragraph 2 of the orders sought by the wife in her application in a case filed 10 February 2010 is dismissed.

That the husband’s costs of this day are reserved.

That the balance of the wife’s application in a case and the trial itself be adjourned to 10.00am on 15 February 2010.

IT IS DIRECTED

That the Listings Coordinator convey to the wife the above orders by telephone this day and if unsuccessful by telephone contact, by any means she may have available to her.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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