ELDRED & ELDRED

[2014] FamCA 890

FAMILY COURT OF AUSTRALIA

ELDRED & ELDRED [2014] FamCA 890

FAMILY LAW – COURTS AND JUDGES – Oral application for recusal – application dismissed.

APPLICANT: Ms Eldred

RESPONDENT: Mr Eldred

INTERVENER:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10616 of 2012

DATE DELIVERED: 23 May 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St John QC

SOLICITOR FOR THE APPLICANT: Tolhurst Druce & Emmerson

COUNSEL FOR THE RESPONDENT: Mr A Robinson

SOLICITOR FOR THE RESPONDENT: Clancy & Triado

Orders

1.I dismiss the husband’s application that I recuse myself from further hearing these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eldred & Eldred 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

FILE NUMBER:

Ms Eldred

Applicant       

And

Mr Eldred

Respondent

REASONS FOR JUDGMENT

ex tempore

Introduction

1. At the commencement of the third day of the final hearing of proceedings between the respondent husband and the applicant wife for parenting orders, final alteration of property interests, spousal maintenance and child support, the husband makes an oral application that I recuse myself from further hearing these proceedings by virtue of a reasonable apprehension of bias.

1. The contention by counsel for the husband is that on the second day of the hearing[1], during his cross-examination of the single expert witness valuer, Mr GG, there was a discussion between us in which I raised various matters (detailed below) which, he contends, injected into the wife’s case arguments or matters hitherto not relied upon by her or expressed or identified as issues on her behalf and otherwise not available to the wife on the evidence upon which she relies.

   [1] Tuesday, 21 May 2014.

2. It is further contended that my conduct could, in the context of this case, be reasonably apprehended to be assisting the wife’s case to the extent that a fair minded lay observer might reasonably apprehend that I would not bring an impartial and unprejudiced mind to the determination of the case.

3. I took some time to retrieve the relevant audio recording of the proceedings and then decided to adjourn the proceedings to today. These reasons are necessarily composed without access to official transcript.

background

1. I will set out some history about the parties and the proceedings to provide some context to the matters which counsel for the husband contends give rise to a reasonable apprehension of bias.

2. Each party relies upon and has filed a case outline document(s) in relation to all issues before the court, namely, parenting arrangements, final alteration of property interests, spousal maintenance and child support. The details referred to below are from the parties’ case outlines and/or their affidavit evidence. The below statements are not findings of fact by me nor the conclusions to which I will come after having had the benefit of evidence which is tested and submissions. I…