Delaney and Mills

[2008] FamCA 753

FAMILY COURT OF AUSTRALIA

DELANEY & MILLS [2008] FamCA 753

FAMILY LAW – COURTS AND JUDGES – Disqualification – Where litigant has prior dealings with judge – Notwithstanding parties desire that judge hears case this would be inappropriate and on court’s own motion judge disqualifies self - Where applicant seriously fails to comply with trial directions – Procedural fairness - Hearing adjourned – Applications for costs certificate refused – Application for costs refused

Family Law Act 1975 (Cth) Div 12A
Family Law Rules 2004
Federal Proceedings Costs Act 1981 ss 10, 3

Johnson & Johnson (2000) 201 CLR 488
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Bienstein  (2003) FLC 93-124

APPLICANT: MS DELANEY

RESPONDENT: MR MILLS

FILE NUMBER: NCC 857 of 2007

DATE DELIVERED: 6 August 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATES: 6 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick

SOLICITOR FOR THE APPLICANT: Richardson Legal

RESPONDENT: In person

Orders

1. I disqualify myself from further hearing these proceedings.

2. That the applicant's application for a Certificate pursuant to the Federal Proceedings Costs Act 1981 is dismissed.

3. That the applicant's application for costs against the respondent is dismissed.

4. I give the parties leave to approach the List Clerk for the allocation of three trial days.

5. I give the parties and independent children's lawyer leave to issue subpoena on matters relevant to the issues in the proceeding;

6. The parties shall file and serve any updating affidavit no later than eight weeks prior to the commencement of the hearing.

7. By consent I give the independent children's lawyer leave to provide photocopy documents produced under subpoena by Ms A to the expert.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTE

FILE NUMBER:  (P)NCC857 of 2006

MS DELANEY

Applicant

And

MR MILLS

Respondent

REASONS FOR JUDGMENT

Introduction 

1. These reasons were delivered orally.

2. Listed for hearing before me today is the final hearing of Div 12A parenting case. The matter is listed for three days. The parties and Independent Children Lawyer say all documents have been filed and the case is ready to proceed. Earlier this morning I expressed concern about readiness issues and whether, even although all parties and the Independent Children’s Lawyer say they are content that I hear the case, for reasons which follow I am satisfied I should not.

3. The directions for this final stage hearing were made on 7 May 2008 and are set out below.

   1.That this matter be listed for final hearing before me for 3 days commencing 10.00 am on 6 August 2008.

   2.That the parties file and serve all affidavit material upon which they propose to rely by 4.00 pm on 4 July 2008.

   3.That the parties shall serve upon each other a List of Objections by 4.00 pm on 16 July 2008.

   4.That the parties shall respond to any objections by 4.00 pm on 28 July 2008.

   5.By 4.00 pm on 1 August 2008 the parties and Independent Children’s Lawyer shall each file a Case Outline which identifies the following:

   (a)­List of documents relied upon;

   (b)List of authorities;

   (c)Chronology;

   (d)Objections conceded and those requiring ruling.

1. It is common ground the applicant failed to comply with direction 2, namely that the parties file and serve all material upon which they propose to rely by 4.00 pm on 4 July 2008.

2. The applicant's primary trial affidavit, which is somewhere between one and two inches thick, was sent by ordinary prepaid post under cover of a letter of 28 July 2008 to an address where the respondent resides, but not to his address for service.  Earlier documents have been correctly served.  It is conceded that service of the trial affidavit is not proper service in accordance with the Family Law Rules 2004. The situation, in summary, is that the affidavit was filed contrary to directions, and in a strict sense, never served.  The reality is that the respondent received this large document two days prior to the commencement of the hearing and has been able to file an affidavit in reply to it. 

3. It is the applicant's contention that the Court would not be overly concerned by her failure to comply with the directions, and as the respondent has provided material in reply, the Court would accept the case should proceed notwithstanding her non-compliance. 

4. With these submissions I do not agree.  This is a difficult case concerning the future of two children.  To expect a party, represented or not, to come to terms with a document of such magnitude and then present a case in answer to it, properly considered within 48 hours of its receipt, needs only to be stated to appreciate its unfairness.  Notwithstanding that the respondent has made real attempts to come to terms with this affidavit, the reality is the Court would have to be gravely concerned that the respondent, having done his best to deal with the matters in the affidavit, does not actually find himself in the position where he was able to properly address the case the applicant presents.  It is one thing to prepare an affidavit in reply, it is quite another to prepare cross-examination.  Although the respondent initially maintained he is ready to proceed, as the readiness and possible prejudice discussion continued, on a number of occasions he raised concerns that the applicant’s late filing was unfair to him.  He pointed out that in order to reply he had worked through the night and had only had the chance to read the document once. 

5. In these circumstances, in spite of the applicant's contention that the three days allocated to this case could have been used, and the case was not in jeopardy of being adjourned, the reality is that I would fall into error if I forced the respondent to proceed with this hearing.

6. The next issue is whether or not I should hear this case. 

7. When the matter came before me on the first day of a Div 12A hearing I thought from my reading of the questionnaires that I had had prior dealings with the respondent. I raised my concerns and the nature of those dealings, albeit I did not mention that the respondent had conferred with my legal practitioner husband. I specifically mentioned that I had previously met the respondent and he had discussed personal issues with me at my parent’s home. I made no mention of his consultation with my husband because at that stage I was either unaware of it or had forgotten. The respondent was confident that I was mistaken and as I thought it likely his recollection was likely to be clearer than mine, I accepted his position. Later in the proceedings, following the release of the family report, I again reflected that here was information in this case to which I thought I was privy and which I believed came from the respondent.

8. At my request Registrar Dodson telephoned the respondent and spoke to him about my concerns that I had had prior dealings with him.  It was reported back to me by Registrar Dodson, and it appears plain from statements from the Bar table this morning, that the respondent repeated his earlier assertion that he had never met me and had no knowledge of the matters to which I referred. 

9. Attached to the applicant’s trial affidavit is an email dated 29 March 2007 from the respondent to the applicant.  In this email the respondent refers to a conference he has had on the issues in this case with my lawyer husband.  When I read this I realised that my notion that I had had prior dealings with the respondent was correct. 

10. This morning, for the first time, the respondent acknowledged our prior contact.  He concedes this involves him having dealings with my parents, conferring with my lawyer husband about this case and a conversation with me at my parents' home in which he spoke to me of personal matters potentially relevant to these proceedings.  Given the extent of the contact it is a little surprising that only when faced with his 29 March 2007 email that the respondent remembered our dealings. 

11. However one looks at it, my prior contact with the respondent makes it manifestly inappropriate for me to determine this case.  Whether one looks at the High Court's decision in Johnson & Johnson (2000) 201 CLR 488 where the court cited with approval the following statement in Livesey v New South Wales Bar Association(1983) 151 CLR 288 at 293-294:

    That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.

12. Similarly, the High Court’s more recent discussion in Bienstein (2003) FLC 93-124 where it held that a judge ought not to hear a case where, for reasons of apprehended bias, a party may be concerned about a judges personal relationship with another party to the proceedings.

13. On any application of the relevant principle, I am strongly satisfied that I must disqualify myself.  Indeed, it is to avoid this very situation that on the first occasion this matter was before me I raised the issue. 

14. As a consequence of these findings and the hearing not proceeding, I am asked by the applicant to either order the respondent to pay her costs, or pursuant to s 10 Federal Proceedings Costs Act 1981 issue a certificate the effect of which is that the Attorney-General would authorise payment under that Act for her costs thrown away.

15. I incorporate into these reasons s 10 of the Federal Proceedings Costs Act.

16. By subsection (2) if the Court is satisfied that it:

    Otherwise becomes unable to continue with, or to give judgment in the proceedings, the Court may on the application of a party to the proceedings grant to that party a costs certificate.

17. A costs certificate would also be available to the Independent Children's Lawyer even though they are not a party.

18. Subsection (3) however, is to the effect that a costs certificate should not be given where the new hearing is necessary because of the neglect, default, or improper act of any party to the proceeding.  The new hearing is necessary for two reasons: the applicant's default in terms of the directions for trial made 7 May 2008.  Secondly, the respondent's failure to turn his mind as carefully as the situation required of him concerning the matters raised by me and Registrar Dodson vis a vis my prior dealings with him.

19. As a consequence of these two matters I am satisfied that the new hearing is attributable to the parties' actions in a way s 3(b) of the Federal Proceedings Costs Act 1981 says disentitles them to a certificate. 

20. In relation to the applicant's application for costs against the respondent, I am not satisfied that there are any circumstances here which entitle her to costs against him.  The applicant is no less responsible for these proceedings failing to proceed than the respondent. 

21. For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: …

Date:  1 September 2008