DOBEY & SHEY (No.2)

[2018] FCCA 3900

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOBEY & SHEY (No.2) [2018] FCCA 3900

Catchwords:
FAMILY LAW – Disqualification application – application not granted.

Applicant: MR DOBEY

Respondent: MS SHEY

File Number: SYC 2915 of 2018

Judgment of: Judge Henderson

Hearing date: 16 November 2018

Date of Last Submission: 16 November 2018

Delivered at: Sydney

Delivered on: 16 November 2018

REPRESENTATION

Counsel for the Applicant: Ms Bridger

Solicitors for the Applicant: Jo-Anna F S Moy Solicitor

Counsel for the Respondent: Ms Christie SC

Solicitors for the Respondent: Doolan Callaghan Family Lawyers

ORDERS

1. The Husband’s Application for disqualification is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2915 of 2018

MR DOBEY

Applicant

And

MS SHEY

Respondent

REASONS FOR JUDGMENT

1. An application has been made that I disqualify myself in these proceedings for comments I made at the commencement, as I always do in interim hearings, about my having read the material I had read at that time, which did not include the husband’s updating affidavit or the large volume of exhibits he has tendered. The comment was that this was a lay down misere given the husband has always paid for his family which was apparent from the material read being also the wife’s material.

2. An application has been made that and submissions that, for the lay observer, this would say to them I prejudged or in some way would not bring an impartial mind to the dispute. The difficulty I have with this application is as follows: this is an interim application; it is done on the papers, and I read the papers that were available to me, which did not include what the husband has currently filed.

3. It is, in fact, the husband’s case that he has always paid the costs of his family. That is simply the reality; that is what he has done. He has been the primary income earner. So there was nothing wrong with me making that statement, because that is, in fact, the reality. The question of whether he can now continue to pay, certainly, is a fact in issue and that is raised by him squarely in his exhibited material which I read after I made those comments. These are matters that Ms Bridger will make in her submission to me that, perhaps, now he no longer has that capacity which he has had in the past, to pay for his family, something he has always done.

4. The second issue is that the wife simply has not worked in any, if I could use the terms, ‘meaningful sense’ during the marriage and the husband says that as well in his material. That is simply the facts.

5. They had two children, carried out a traditional role in their relationship and the husband clearly has been the primary income earner and the wife has clearly done the bulk of the parenting; of homemaking. There is no criticism it is a mere fact and statement of what went on.

6. This is not a final hearing. It is an interim hearing. Consistent with case management principles, I must make these comments, so the parties know where I am coming from, that they can address before me what I see the issues in the matter are, which is clearly in this case the husband’s ongoing continued capacity to pay, as he now puts in his material.

7. As Ms Christie said, I have heard this matter before. I have already made orders. It is in my docket. I am familiar with it. I have knowledge of it and, for those reasons, I do not see that the lay observer would apprehend, on a reasonable basis, that I had prejudged the matter. I was merely stating what the facts of the matter as I had then read them simply were and how I would conduct the hearing before me.

8. The application is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 9 January 2019