Calder and Poca (No. 2)

[2008] FamCA 800

FAMILY COURT OF AUSTRALIA

CALDER & POCA (NO. 2) [2008] FamCA 800

FAMILY LAW - COURTS AND JUDGES - Disqualification

APPLICANT: Mr Poca

RESPONDENT: Ms Calder

FILE NUMBER: WOC 167 of 2007

DATE DELIVERED: 15 September 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 15 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Ms Morris

Orders

1. I hereby disqualify myself from further involvement in these proceedings.

2. I will adjourn the return of subpoena which is currently listed at 10.30 am before Registrar George to the next convenient day before a registrar after 25 September 2008.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 167  of 2007

MR POCA

Applicant

And

MS CALDER

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. In these proceedings the husband has applied for me to disqualify myself.  The application arises out of a judgment I made on an application by the wife for payment to her of a lump sum which I granted on 14 May 2008.  There are a number of grounds in the application.  All except one, in my view, could not be regarded as a ground for disqualification because the matters that are relied upon by the husband were really findings by me which were made on the objective facts without any weighing of credit or anything of that nature.  In fact, the Court in my view could not have come to any other finding because the objective facts were unchallenged.

2. However, I found that in relation to the husband's claim that he was paid only $900 a week net that because he was in charge of a business which had sales of $35 million per annum in recent financial years and the business had had a net profit there was enough to warrant a higher wage for the husband.  This was so particularly in view of the fact that he had failed to provide any financial information whatsoever about the service company which employed him.  The information he provided was limited to the company which he managed and, with the wife, owned. I held that this claimed income was both deceptive and a dishonest artifice for the purpose of making it appear, among other things, that he could not afford to pay the lump sum spousal maintenance that the wife was seeking. 

3. I think that, with the evolution of the manner in which Judges now manage cases and the relative necessity of interim applications being heard before the Judge who will hear the final proceedings, there is a loosening of the restraints on findings by Judges in interim proceedings which would warrant the necessity for the Judge to disqualify himself on the grounds that a reasonable and objective bystander would regard the Judge as unable to bring an objective mind to the final decision. Nevertheless, I think that, in this particular instance, because I used the word “dishonest”, in conjunction with “artifice” in circumstances where as I think Mr Kearney correctly argues, there may have been a reason why he was paid so little, and although nothing I said suggested otherwise than that, that as what I said really related to the husband's attempt to rely upon such a low wage to resist spousal maintenance.  I should disqualify myself.  I shall do so.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date: