Durante and Seggio and Ors
[2012] FMCAfam 1169
•31 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DURANTE & SEGGIO & ORS | [2012] FMCAfam 1169 |
| FAMILY LAW – Property proceedings – application by husband for Federal Magistrate to disqualify herself – application unsuccessful on grounds stated – Federal Magistrate directed another Federal Magistrate as determined by the co-ordinating Federal Magistrate to hear the matter on the basis of findings made in the earlier reasons delivered on 3 February 2011. |
| Applicant: | MS DURANTE |
| First Respondent: | MR SEGGIO |
| Second Respondent: | MR R SEGGIO |
| Third Respondent: | MS BISSI |
| Fourth Respondent: | STATE TRUSTEES LIMITED |
| File Number: | MLC 1121 of 2010 |
| Judgment of: | Hartnett FM |
| Hearing date: | 24 October 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Grigg |
| Solicitors for the Applicant: | Perry Weston Lawyers |
| The First Respondent: | In person |
| Counsel for the Second Respondent: | Mr Wood |
| Solicitors for the Second Respondent: | Evans Ellis Law |
| Counsel for the Third Respondent: | Mr Woods |
| Solicitors for the Third Respondent: | Evans Ellis Law |
| Solicitors for the Fourth Respondent: | State Trustees Limited Legal Branch |
THE COURT ORDERS THAT:
The application of the husband that Federal Magistrate Hartnett disqualify herself from further hearing the proceedings on the grounds as stated by him on 24 October 2012 is dismissed.
IT IS DIRECTED THAT:
These proceedings be referred to the co-ordinating Federal Magistrate for listing for a final hearing with such expedition as can be afforded (being of one day duration) before a Federal Magistrate other than Federal Magistrate Hartnett.
IT IS NOTED that publication of this judgment under the pseudonym Durante & Seggio & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 1121 of 2010
| MS DURANTE |
Applicant
And
| MR SEGGIO |
First Respondent
| MR R SEGGIO |
Second Respondent
| MS BISSI |
Third Respondent
| STATE TRUSTEES LIMITED |
Fourth Respondent
REASONS FOR JUDGMENT
This matter was listed for final hearing on 24 October 2012. The proceedings commenced in February 2010. The Court is mindful of the significant time period that has elapsed in bringing this matter to final hearing. In that period and forming part of various proceedings, the husband sought leave to appeal against order number 5 of the orders made by me on 3 February 2011, together with other orders. That appeal was heard by Strickland J on the 8 June 2011 sitting in the Appellate jurisdiction of the Family Court of Australia. The orders made on appeal were as follows:
“(1) To the extent that it is necessary, leave is granted to the applicant husband to appeal against Order 5 made by Federal Magistrate Hartnett on 3 February 2011.
(2) The appeal be dismissed.
(3) The husband pay to the wife the costs of and incidental to the appeal fixed in the sum of $2,000.”The husband then sought special leave to appeal against the orders of Strickland J in the High Court. On 15 August 2012, the husband was unsuccessful in that application.
Each of the parties was aware that the matter was listed on 24 October 2012 for final hearing. The fourth named respondent did not appear and will accept the judgment of the Court. The second and third respondents were represented by their solicitor, Mr Woods, who indicated that they wished to be excused from further attendance and that they would abide by any order of the Court. Neither the husband nor Counsel for the wife objected to the withdrawal from the proceedings of the lawyer acting on behalf of the second and third named respondents. Mr Woods tendered, without objection, correspondence from State Trustees Limited to Evan Ellis Lawyers dated 2 April 2012 which confirmed that the estate of Ms J Seggio, the deceased mother of the husband, is currently valued at approximately $214,000 and that assuming the net residue is to be divided into three equal shares and after payment of the costs and disbursements of State Trustees Limited of $56,000 up until and inclusive of 26 March 2012, there left to be received by the husband the sum of $71,300 from the estate of his late mother. This sum will now be further diminished.
The matter was stood down during the course of the morning for negotiations to be had. When the matter commenced in the afternoon, the husband made an oral application to the Court that I disqualify myself. The stated grounds were:
1.that Mr Weston, the Solicitor for the wife, incited the husband to commit perjury by assuring the husband that I would take no action in respect of him doing so. The husband asserted that Mr Weston and I had some agreement reached outside the court room; and
2.that on 6 May 2010, I said, as recorded in a transcript of the proceedings (only some limited part of which was handed up to me), and of the wife:
“Well, she’s attending.”
My comment in respect of this second ground followed a discussion between the husband, Counsel for the wife and the Bench as to the parties engaging in a process of dispute resolution before returning to Court. The husband indicated that he had attended the first session and that the process would take approximately eight weeks. Both parties concurred that the process was “ongoing”. The husband remarked that his wife had to attend dispute resolution. In response to that and following both parties indication the process was ongoing over a period of time both then and into the future, I indicated to him the following:
“Well, she is attending. If there comes a point where she says, “I’m not attending any longer,” she doesn’t have to. All right. If for reasons of it’s fruitless or it’s harassing or any number of other reasons, either party can cease attending, and they can come to court and seek an order, and you’re currently in the process, and hopefully the process will be able to be completed, but it may reach a resolution and it may not. It may go for eight weeks, and it may not. But on 2 August we will be here in court, and I’ll hear about it. Thank you.”
As it subsequently transpired, the wife did not attend dispute resolution and the matter proceeded on the adjourned date.
In respect of the first ground of the application, being Mr Weston’s alleged representations to the husband, the factual basis for same was said to be contained in correspondence received by the husband from Perry Weston dated 19 October 2012 which was tendered in evidence by the husband and without objection by the wife, and which relevantly said in part the following:
“We understand you have indicated some concern that should any Consent Orders signed by you indicate that you in fact have funds to pay to our client, that this would conflict with the sworn evidence you have given to the Court and may cause the Court to take action against you. That is not the case. All negotiations are on a without prejudice basis, and if we are able to settle the matter, her Honour will in our view be more than happy to make Orders finalising this matter. The source of the funds to pay out our client is a matter for you. Our client’s instructions are to settle the matter on the basis set out in our letter of Monday or alternatively as set out herein. If you prepared (sic) to sign the Consent Orders on either of those basis, we will be urging the Court to make the Order and have no doubt the Court will do so.”
I do not propose to accede to the application of the husband on the grounds as formulated by him. They are totally without merit. The evidence put before the Court by the husband does not raise, let alone establish, any agreement between Mr Weston and myself. The evidence also does not establish that Mr Weston has incited the husband to commit perjury. That claim is without foundation and is slanderous. The second ground articulated also raises no basis on which I should disqualify myself. The husband’s application on the grounds stated by him is grossly misconceived and fails.
Of concern to me, however, is that the husband makes an application that I disqualify myself because he perceives that he will not obtain a fair trial before me. That perception is not an accurate one. However, it would be a travesty of justice for the wife to again be put through the appeal process, unmeritorious though it might be, by the husband in respect of this issue. I suggested to the husband on the hearing of this matter that he had sought my disqualification from hearing the proceedings at an earlier point in time. He denied this. To the contrary, I refer to paragraph 2 of the reasons for judgment of Strickland J of 24 February 2012 where he notes that the husband sought, amongst other orders, that the proceedings be heard by a different Federal Magistrate. No such order was made. However, I am mindful that I have produced reasons in the matter delivered on 3 February 2011 wherein it might be said that I have made credit findings against the husband. To avoid further litigation and uncertainty, and in an effort to bring finality to these proceedings I have determined to seek that this matter be heard by another Federal Magistrate.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 31 October 2012
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