Batey-Elton & Elton

[2010] FamCAFC 79

FAMILY COURT OF AUSTRALIA

BATEY-ELTON & ELTON [2010] FamCAFC 79

FAMILY LAW - APPEAL – DISQUALIFICATION – Whether the wife was denied natural justice or procedural fairness – Where the wife’s disqualification application required prompt determination – Procedural fairness afforded to the wife – No merit to grounds – Whether the trial Judge was actually biased or created a reasonable apprehension of bias – Where no particulars of actual bias were advanced – Actual or apprehended bias by the trial Judge not established.

FAMILY LAW - APPEAL – APPLICATION FOR LEAVE TO APPEAL – Injunction restraining non-practitioner from accompanying wife to inspect documents – Whether the trial Judge erred by failing to provide adequate reasons – Where the basis on which the order was made was not able to be discerned – Appealable error established – Injunction restraining non-practitioner from being present in court during proceedings between the husband and the wife – The Court has such powers as are incidental and necessary to the exercise of its jurisdiction – Where order made by the trial Judge pursuant to such power – Where non-practitioner’s conduct disruptive, disrespectful and inappropriate – Where the trial Judge’s reasons for excluding from the courtroom soundly based – Whether the wife was denied procedural fairness or natural justice – No merit to complaints – Application for leave to appeal granted – Appeal in respect of Order 12 of the orders of 15 February 2010 allowed – Balance of appeal dismissed.

FAMILY LAW - APPEAL – APPLICATION TO ADJOURN APPEAL – Where there was a considerable period of time from the filing of the appeals for the wife to prepare submissions – Where transcript was provided and appeal books prepared by the Court – Where any prejudice to the wife overcome by order permitting the filing of further written submissions in relation to her analysis of the transcript – Application dismissed.

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – Application for non-practitioner to appear on behalf of the appellant wife – Where issue has been the subject of determination by previous, separately constituted, Full Courts – The role of, and limitations placed on, persons acting as a McKenzie Friend as explained by Lindenmayer J in Watson & Watson (2002) FLC 93-094 considered – Applicable principles set out by Stein JA in Damjanovic v Maley (2002) 55 NSWLR 149 followed – Duties imposed on members of the legal profession in their capacity of officers of the Court of particular relevance – Non-practitioner permitted to act as McKenzie Friend but not granted right of audience.

FAMILY LAW - APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the wife sought to adduce tape recording of joint interview with the family report writer – Where the circumstances in which the recording was made or its authenticity not known – Where the extract of the family report contained in the trial Judge’s reasons based on the report writer’s observations of the manner and conduct of the wife and…