Elspeth & Peter (Disqualification No. 2)

[2007] FamCA 762

FAMILY COURT OF AUSTRALIA

ELSPETH & PETER (DISQUALIFICATION NO. 2) [2007] FamCA 762

FAMILY LAW - Courts and Judges – Disqualification – Bias - application for disqualification on grounds of perceived bias – order made.

APPLICANT: Elspeth

RESPONDENT: Peter

FILE NUMBER: HBC 748 of 2007

DATE DELIVERED: 30 July 2007

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 20 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Murray

SOLICITOR FOR THE APPLICANT: Roger Murray & Associates

COUNSEL FOR THE RESPONDENT: Mr McGuire

SOLICITOR FOR THE RESPONDENT: Temple-Smith Partners

Orders

1. That I disqualify myself from further hearing these proceedings.

2. That the costs of the application for disqualification be reserved.

3. That the contravention applications filed 31 May 2007 and 15 June 2007 and  application in a case filed 13 July 2007 be adjourned for hearing at Hobart on a date to be fixed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Benjamin delivered this day will for all publication and reporting purposes be referred to as Elspeth & Peter (Disqualification no 2).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 748  of 2007

Elspeth

Applicant

And

Peter

Respondent

REASONS FOR JUDGMENT

1. Elspeth (“the mother”) seeks an order that I be disqualified from hearing applications filed by Peter (“the father”) on

   
   

   31 May 2007 and 15 June 2007 alleging that the mother has contravened orders made by this Court.

2. The mother’s application in a case also sought other orders, pursuant to which the application has been adjourned pending determination of the disqualification application.

Background

1. The mother and father were married in May 1977 and separated in February 2003.  There are eight children of the marriage, three of whom remain under the age of eighteen years, namely L who turns seventeen in December 2007, J who is aged thirteen years and C who turns nine in December 2007 (“the children”).

2. The mother and father were both members of the Exclusive Brethren faith until early 2003 when the father ceased to be a member of that faith.  The father commenced proceedings for parenting orders in December 2004 and after a lengthy hearing before me in October and November 2006, reasons were delivered and final orders were made on 21 December 2006.  Those orders provided that the parties have equal shared parental responsibility for the children and that the children live most of the time with the mother and spend time with the father.

3. On 14 January 2007 the father endeavoured to spend time with the children pursuant to the orders made by me on 21 December 2006. He claimed that on that day the wife contravened those orders.  

4. A contravention application was filed by the father and it was initially listed before me on 19 February 2007.  On that day, counsel for the mother made an oral application that I disqualify myself from hearing the contravention application.  After argument I determined that I ought not be disqualified from hearing that application…