Elton and Batey-Elton

[2007] FamCA 221

FAMILY COURT OF AUSTRALIA

ELTON & BATEY-ELTON [2007] FamCA 221

FAMILY LAW – CHILDREN AND PROPERTY – Apprehended bias – Trial Judge disqualified herself

Federal Proceedings (Costs) Act 1981 – s 10(2)

APPLICANT: Mr Elton

RESPONDENT: Ms Batey-Elton

INTERVENER: The Official Trustee in Bankruptcy

INDEPENDENT CHILDREN’S LAWYER: Ms K Hawdon

FILE NUMBER: TVF 2250 of 2004

DATE DELIVERED: 23 February 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATES: 16 and 22 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page of Senior Counsel

SOLICITOR FOR THE APPLICANT: Mr Madsen, Rod Madsen Solicitors

SOLICITOR FOR THE RESPONDENT: Ms Lowe of Loel & Lillas, Solicitors

SOLICITOR FOR THE INTERVENOR: Mr Murphy of Tresscox Lawyers

INDEPENDENT CHILDREN’S

LAWYER’S COUNSEL:

Mr McGregor of Counsel

INDEPENDENT CHILDREN’S 

LAWYER:

Ms Hawdon of Forest Glen Lawyers

ORDERS

IT IS DECLARED

1. The Honourable Justice O’Reilly stand aside in these proceedings.

AND IT IS ORDERED

1. The order of the Honourable Justice May made on 20 June 2006 appointing the Honourable Justice O’Reilly as the Judicial Case Manager is discharged.

1. The direction made in the child proceedings (part heard) on 8 December 2006 (as amended on 11 December 2006) that they be listed as a part heard matter at 10am on 24 and 25 May 2007 is discharged, and the directions hearing as to any updating material to be relied upon in the child proceedings (part heard) on 23 March 2007 is vacated.

1. Any applications pursuant to s 10(2) of the Federal Proceedings (Costs) Act 1981 in relation to the hearing dates 4-7 December 2006 in the child proceedings rendered abortive be listed at 9.30am on Monday 5 March 2007.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVF 2250 of 2004

Mr Elton

Applicant

And

Ms Batey-Elton

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. The husband has filed an application that I stand aside from this matter on the basis of apprehended bias.  I have carefully considered the husband's material, the written submissions provided by Mr Page of Senior Counsel for the husband, the written and oral submissions provided by the wife, who represented herself, and the transcript.

2. The wife does not support the husband's application.

3. The independent children's lawyer, properly, has taken a neutral position.

4. I accept the submission of Mr Page SC that a reasonable observer would have imputed the views in par 27 of his written submission, or similar views, as ones held, and that the circumstances are such as to fit the principles in Johnson and Johnson (2000) 201 CLR 488 at pars 11-14 and Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at pars 6-8.

5. In those circumstances, I will stand aside.

6. The event which caused my judicial indignation and thus in this particular case "crossing the line" is set out at T9/32-36 and T37/30-50, leading to the words and imputations at T38/1-41/30.

7. Basically, Mr Page had tendered in the child proceedings an affidavit of the husband's brother relating only to the parties' property proceedings, which caused me for the first time to learn of the claimed existence of a trust.  Mr Page's reasons for tendering this inappropriate affidavit in the child proceedings (not originally included in his list of material notified to the Court as material to be relied upon) are known only to him, but provoked the following response by me on the following day (T37/30-50).

   HER HONOUR:  Mr Page, I am a little perplexed as to why you have read - relied on the affidavit of [the husband’s brother].  Would you tell me, please, what is the relevance of that affidavit in these child proceedings?

   …

   MR PAGE:  Your Honour, can I interrupt you?  Can I withdraw the affidavit?

8. Then followed, as I have said, the words and imputations which I accept have the effect of disqualification.

9. The imputed views include that:

   (a)It was possible that the trust was a recent invention

   (b)There were some sinister actions of the husband in the history of the matter

   (c)The husband either had or possibly had a record of breaching a restraining order made on 28 September 2005 by the Honourable Paul de Jersey, Chief Justice of Queensland (in relation to which there are contempt proceedings in the Supreme Court of Queensland)

   (d)The husband had wrongfully disposed of funds acquired by him

   (e)It was likely the husband would further dispose of or encumber assets.

10. Mr Page SC contended that the taint of the apprehended bias allegation touched not only the parties’ property proceedings, but also the child proceedings in relation to the suitability of the husband as the custodial parent of the parties’ children.

11. It is relevant to mention, in this context, that throughout the history of my judicial management of the matter, great pains have been taken to ensure that the issues in the child proceedings and in the property proceedings should be kept separate.  For example, in late 2006 certain contravention proceedings by the wife against the husband relating to property matters were not heard by me, but by another Judge, to ensure that result.

12. Having reached the conclusion that I should stand aside, it is not necessary that I deal with or determine any of the other grounds raised by the husband, which seem to me to be unlikely individually, cumulatively or collectively to have caused me to stand aside.  I will however refer to one of the matters, because of the significance given to it by Mr Page SC.

13. That matter (par 39 of Mr Page SC’s written submissions) is that the husband "heard one of the most serious allegations of unprofessional conduct levelled against his representative".  As the transcript shows, in the child proceedings Mr Page sought at the trial to tender into evidence a document on the basis of an express representation by him to me as the trial Judge that the document, described as the “if agreement”, contained a specific clause similar to one in consent child orders made on 10 September 2004.  That representation was untrue.  The argument leading up to the misrepresentation, which commenced with an objection by Mr Curran of Counsel, for the wife, is at T202/45-205/12.  See in particular at T203/5-40; 204/35ff and 205/10-12.  Then, the following exchange occurred (T205/12-36):

    HER HONOUR:  All right, just – Mr Page, we can cut through this very quickly if you say the “if agreement” contains a similar clause.  Does it?

    MR PAGE:  It does.

    HER HONOUR:  Very well.  I am satisfied as to relevance, please bring [the wife] back in.

    [The wife], recalled      [10.56 am]

    CROSS-EXAMINATION BY MR PAGE, continuing

    MR PAGE:  [Mrs Batey-Elton], I would ask you to have a look at this please.  That is a document which – is a copy of a document which bears your signature? ---Yes.

    Thank you.  And that in fact is what you referred to in your affidavit, and I referred to you before, is the “if agreement” that you and [the husband] entered into in 2002?---Yes.

    Yes, I tender that document

    HER HONOUR:  Exhibit 4.

14. After accepting the document for tender, based upon Mr Page's representation, I read the document and then said (T206/10-50, which needs no explanation or embellishment):

    HER HONOUR:  Mr Page, when I asked you to demonstrate relevance, you said that there was a clause in the "if agreement" the same as the clause in the consent orders dated 10 September 2004 in relation to [the child].  Well, we know the terms of the clause.  But, that is not true, is it, because there is no such a clause in this exhibit 4?

    MR PAGE:  I didn't intend to say that they were the same clause, but it was the same expression.

    HER HONOUR:  Which expression?  Which clause?

    MR PAGE:  The last line.

    HER HONOUR:  The last line says:

    If the above took place, custody of [the child] to be agreed upon. 

    It says nothing, Mr Page, as you represented to me, about [the child] having the right at the end of school term to state where she lives.  I have been misled.

    MR PAGE:  I apologise.

    HER HONOUR:  Exhibit 4.  Continue your cross-examination please.

    MR PAGE:  Thank you.  When you gave evidence before Carmody J on 2 November 2006 you were cross-examined weren't you?

    HER HONOUR:  I have been seriously misled.

    MR PAGE:  I have apologised.

    HER HONOUR:  Not good enough, Mr Page.  You are Senior Counsel at the top of the profession in this State, and you have misled me in open Court in a serious trial.   I regard that as extremely serious.  Please continue your cross-examination.

    MR PAGE:  Would your Honour stand down for a moment, please, I will have to consider whether I should continue.

15. The wife, who has a psychiatric condition and is unable to represent herself (see Dr R’s report dated 6 November 2006, par 9.4), has been required to appear for herself on the husband's application (based on Dr R's report she has Legal Aid for the child component of the proceedings).

16. The wife urged that the husband's application that I stand aside is baseless and merely “a gambit to delay the Court and disguise his non disclosure in the pending property proceedings” (which, it was agreed initially, would not be heard until after the child proceedings, consistently with Dr R's report, par 9.6, that the property and custody disputes “need to be [dis]entangled and dealt with separately”) and thus to delay the inevitable "judgment day".  The wife described the husband's conduct, thus, as an application which is an abuse of process.

17. The wife submitted that the husband's application is "outrageously founded" and referred to my duty not to stand aside too readily, citing Antoun v The Queen [2006] HCA 2 (8 February 2006), in particular at pars 31, 32 and 34.

18. The wife’s written submissions, it appears, were prepared for her by her partner, Mr B.

19. I have carefully considered the position and all relevant statements in the authorities, including as to my duty not to stand aside if that can be avoided.  Regrettably, however, as I have said, in this particular case the line was crossed.

20. These will be the orders. 

    It is declared:

(1)        The Honourable Justice O'Reilly stand aside in these proceedings.

And it is ordered:

(2)The order of the Honourable Justice May made on 20 June 2006 appointing the Honourable Justice O'Reilly as the Judicial Case Manager is discharged.

(3)The direction made in the child proceedings (part-heard) on 8 December 2006 (as amended on 11 December 2006) that they be listed as a part heard matter at 10 am on 24 and 25 May 2007 is discharged, and the directions hearing as to any updating material to be relied upon in the child proceedings (part heard) on 23 March 2007 is vacated.

1. I will add a notation that the trial dates allocated to the property proceedings 19-23 March 2007 at this stage are not vacated.

2. I would add that I have no doubt as to my ability to determine these proceedings, as I determine all proceedings, according to my judicial oath.  However, unfortunately that is not the law and my duty is to apply the law to the facts, which I have done.

3. I am authorised by the Honourable Justice Carmody, the Regional Coordinating Judge (Queensland), to convey that during the next few days he will appoint a new Judicial Case Manager of these proceedings.  The parties will be notified as soon as the Honourable Justice Carmody has made that appointment, and that Judge will then take over, plainly enough, the management of the proceedings.

4. In the meantime, the directions which I made in the property proceedings on 13 December 2006 stand, and the trial dates allocated to the property proceedings, 19-23 March 2007 stand.  However, it may be, although this is solely a matter for the Honourable Justice Carmody and whoever is the new Judicial Case Manager, that the dates 19-23 March will now be allocated to the fresh commencement of the child proceedings and the determination of those proceedings in those five days, with the property proceedings being allocated later dates.

5. As I have said, however, that is entirely a matter now for others, not me, and I simply draw that to the parties' attention, to bear in mind, until they are notified as to what will happen next.

6. I will bring to the attention of the Honourable Justice Carmody, and the new Judicial Case Manager, that the wife has an application in the property proceedings for a Hogan order which will need to be listed for hearing.

7. Pursuant to section 10(2) of the Federal Proceedings (Costs) Act 1981 if any party should apply for a costs certificate, I am able to grant such certificate in respect of the proceedings as described in section 10(4) of that Act.

8. It seems to me that all parties to the child proceedings are entitled to apply for such a certificate, but only in relation to the costs of the attendance of solicitors and Counsel in the child proceedings on the four days, 4-7 December 2006, as they are the only proceedings "rendered abortive" by reason of my inability now to complete those child proceedings.

9. In particular, subject always to hearing from the parties, it seems to me, from my perspective as the former Judicial Case Manager of the proceedings, and in that capacity, that it may be likely that:

(1)The only costs thrown away are those relating to the attendance of solicitors and Counsel on the four hearing dates in the child proceedings 4-7 December 2006.

(2)There are no costs thrown away in the property proceedings.

(3)In the child proceedings the parties already have prepared their principal affidavits and those of their witnesses, the costs of which, plainly enough, are not thrown away, and it would always have been incumbent on the parties in any event to prepare and file updating material for the planned resumption of the child proceedings on 24 and 25 May 2007, which dates are now vacated.

1. There may be other considerations, however, and my observation is not intended to fetter the discretion of whoever may be charged with the task of assessing the costs.

2. I note that pursuant to section 14 of the Act, costs certificates are not to be granted to certain persons, including the Commonwealth or a State.  I do not know whether Legal Aid Queensland does or does not come under that umbrella of exclusion. 

3. As section 10(2) of the Act provides, however, that my power to grant a costs certificate is only triggered upon the application of a party, I will need to hear any such applications, which I will do at 9.30 am on 5 March 2007, and I will indicate that if any party to the child proceedings who qualifies for a certificate so applies, I will be willing to grant a costs certificate.

4. To save the parties further costs, as I am able pursuant to section 12 of the Act, I will grant the certificates either on that date, or later in Chambers.

5. I pronounce the orders which I have made, and I publish my reasons. 

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ELTON & BATEY-ELTON