BENDER & BENDER

[2012] FamCA 696

FAMILY COURT OF AUSTRALIA

BENDER & BENDER [2012] FamCA 696

FAMILY LAW – PROPERTY – oral application made by husband at final hearing for judge to disqualify himself due to alleged conflict of interest – application dismissed

Family Law Act 1975 (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

APPLICANT: Ms Bender

RESPONDENT: Mr Bender

FILE NUMBER: SYC 816 of 2011

DATE DELIVERED: 16 August 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 16 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maddox

SOLICITOR FOR THE APPLICANT: Marsdens Law Group

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. Leave granted the husband to make an oral application that I disqualify myself.

2. The husband’s oral application that I disqualify myself is dismissed.

3. Leave granted to the husband to make an oral application for an adjournment.

4. The husband’s adjournment application is dismissed primarily on the basis that the matter will not conclude today and will be continued to be adjourned part heard.

5. This matter be adjourned part heard to 9am on 13 September 2012.

6. Neither party file any further documents without my leave.

7. As soon as practicable, the solicitor for the wife forward a copy of the valuation of Mr M dated 23 July 2012 to Mr V.

8. Mr M and Mr V are to convene a conference as soon as practicable pursuant to rule 15.69(3) Family Law Rules and prepare a joint statement pursuant to rule 15.69(3)(e) Family Law Rules specifying the matters in respect of which they have identified issues upon which they are agreed and in respect of which they have identified issues where they are not agreed and to identify the reasons for the disagreement on any issue.

9. Mr M and Mr V forward to the solicitor for the wife as soon as is practicable their joint statement and the solicitor for the wife as soon as practicable thereafter text to the husband on his mobile telephone number a message that a copy of the joint statement is ready for collection from the reception desk at Marsdens Campbelltown.

10. The solicitor for the wife forward to my associate a copy of the joint statement.

11. In the event there are issues identified by the two valuers in the joint statement in respect of which there is a disagreement they are both to attend court at 9am on 13 September 2012 for the purposes of giving concurrent evidence.

12. The Docket Registrar request Watts McCray to produce to the Docket Registrar their file where they acted for Mr and Ms Bender in relation to their grandson J.

A further direction made in chambers

1. The husband prepare a list of written questions that he wishes to put to the wife on the next occasion (with the intention that the questioning of the wife not exceed a period of one hour on the next occasion). I noted on 27 June 2012 (notation 6) the husband conceded that contributions of the parties were equal apart from the last 15 years and if that is so, then the husband should concentrate on that period of time in relation to him establishing some case of inequality of contribution.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bender & Bender has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 816 of 2011

Ms Bender

Applicant

And

Mr Bender

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The husband in this matter made an application at the commencement of the hearing that I disqualify myself. The evidence that he has given is that approximately six years ago he had contact with the firm Watts McCray for the purpose of instructing a lawyer to act in proceedings involving his grandson. He asserted that that contact was with me. 

2. I indicated to the husband that my date of appointment was April 2005, so it was highly unlikely that I was the person with whom he had contact. Further, I informed the husband that I did not remember the husband as a client of mine whilst I was in practice.

3. There have been a number of procedural events where the husband has appeared before me including events on 16 February, 26 April, 14 June and 27 June 2012. The husband has not raised this matter on any of those occasions before me. This delay in bringing the application may have been fatal even if there had been some foundation for the application.

4. Applying the usual principles (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337), I find that there is no evidence presented by the husband which would provide a proper basis for the application that I disqualify myself from hearing this matter and I will continue the hearing.

I certify that the preceding four (4) paragraph is a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 16 August 2012.

Associate: 

Date:  21 August 2012