Elton and Batey-Elton (No. 2)

[2008] FamCA 562

FAMILY COURT OF AUSTRALIA

ELTON & BATEY-ELTON (NO. 2) [2008] FamCA 562

FAMILY LAW – COURTS AND JUDGES – BIAS – Application by wife to have trial Judge and ICL discharged – No evidence – Dismissed
FAMILY LAW – COSTS – Ordered on an indemnity basis

APPLICANT: Ms Batey-Elton

RESPONDENT: Mr Elton

FILE NUMBER: TVF 2250 of 2004

DATE DELIVERED: 20 June 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 20 June 2008

REPRESENTATION

THE APPLICANT: Applicant appears on her own behalf

COUNSEL FOR THE RESPONDENT: Mr Page SC

SOLICITOR FOR THE RESPONDENT: R Madsen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Miss Hawdon, Forest Glen Lawyers

Orders

1. That paragraphs 1, 2 and 3 of the Orders sought by the Wife in her Application in a Case filed 13 June 2008 be dismissed.

1. That the Wife pay the costs of counsel for the Husband and of the Independent Children’s Lawyer in relation to today’s hearing on an indemnity basis.

1. That payment of such costs referred to in paragraph 2 hereof be stayed pending the hearing of the trial in November 2008.

1. That paragraphs 4 – 8 of the Orders sought by the Wife in her Application in a Case filed 13 June 2008 be adjourned to the trial in November 2008.

1. That the Wife have liberty to list the orders sought in paragraph 4 hereof for further hearing before Justice Jordan upon the giving of fourteen (14) days notice by the Wife to the solicitor for the Husband and the Independent Children’s Lawyer.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVF2250 of 2004

MS BATEY-ELTON

Applicant

And

MR ELTON

Respondent

REASONS FOR JUDGMENT

ex tempore

1. The matters before the Court today are included in the wife's application filed on 13 June 2008 where she seeks orders including the following orders:

   1)Justice Jordan excuse himself from further hearing of this matter for reason of clear, on the record or alternatively, apprehended bias;

   2)The remainder of this application be remitted for urgent directions and listing to another judge and case managing judge who has not previously excused him or herself from further hearing the matter or displayed bias in this matter, specifically Justices Bell or O'Reilly; and

   3)The Independent Children's Lawyer is discharged.

   There are other applications included in the Application in a Case filed on 13 June 2008. 

2. In my capacity as the trial Judge, the application was recently referred to me and, having regard to the serious nature of the applications appearing in pars 1 to 3 and the fact that this matter is listed for a final hearing in the not too distant future, and the wife's own reference for the need for urgency in the application itself, I listed the matter on short notice to accommodate the wife and the matter thus came before me today.  I directed that the remainder of the applications be listed for mention only today.

3. The wife appears without legal representation and that has been the subject of much comment in a number of applications in the past and a number of endeavours to address that state of affairs, at this stage without success.

4. At the commencement of the proceedings, Mr Page, who appears on behalf of the husband, contended that the application should be summarily dismissed because of the lack of any evidence to support the applications and the Independent Children's Lawyer, Ms Hawdon, also made submissions to similar effect.  The wife sought an adjournment to enable her to place further evidence before the Court and I refused that application, as will appear on the record.

5. As part of that process, I have allowed the wife to hand to me an outline of argument, which I should admit in these proceedings as Exhibit 1, given that reference has been made to it, and reference to the record will also describe the limited basis upon which that document was received. 

   EXHIBIT #1  OUTLINE OF ARGUMENT 

6. In it, reference is made to a number of aspects of the history of this matter and there has been no explanation why that type of detail, to the extent that it may have been relevant, was not or could not have been included in the wife's affidavit in support, which is the only evidence properly before me.  The outline appears to contain the type of evidence upon which the wife would seek to rely had it been incorporated in the material filed in support of her applications.

7. Even making allowances for the wife's lack of legal representation, the reality is that the wife has been applicant and respondent in multiple applications, many of which she has filed herself without the benefit of legal representation.  Those applications have necessarily been accompanied by affidavits.  For some reason, in this matter, the wife's affidavit in support of her application contains nothing but bald assertions which are largely a replication of the terms of the applications which appear in pars 1, 2 and 3.

8. It could be construed that, after the bald assertions which appear in pars 1, 2 and 3 of the wife's affidavit, there is some effort to demonstrate some asserted incompetence on my part, but there is not contained in the body of the affidavit any particulars, grounds or evidence upon which one could base an argument, much less a finding, of actual or apprehended bias.  The document in support is an eight paragraph affidavit and I gather the first three paragraphs are intended to deal with the first three paragraphs of the application.

9. As I say, I have had regard to the totality of the affidavit and, despite many invitations to the wife to point to relevant evidence, she herself was unable to point to any evidence contained in her affidavit which would support her case of bias.  Her affidavit is similarly simply silent on any alleged impropriety on the part of the Independent Children's Lawyer.

10. In the circumstances, I find that the applicant has failed to make out any case in support of pars 1 to 3 of her application and I must, in those circumstances, dismiss those applications.

    RECORDED  :  NOT TRANSCRIBED

11. Given that this is an out of the ordinary application in the sense that it is not part of the ordinary course of a litigation process, albeit one that the wife was entirely entitled to bring, it is an application which causes the parties to be before the Court on an extra occasion and, given that the wife was unsuccessful and given my finding that the application was bound to fail on the face of the affidavit evidence filed in support, I take the view that the attendance of the Independent Children's Lawyer and counsel for the husband has been determined to be entirely unnecessary and that an order for indemnity costs is, therefore, appropriate. 

12. I do, at the same time, respect the concessions made by the wife in that regard and, secondly, the acknowledgement by counsel for the husband and the Independent Children's Lawyer that it would be inappropriate to seek to press for payment of those costs pending the trial.

    ORDERS DELIVERED

13. The only thing I need to deal with is pars 4 to 8, in terms of when they be dealt with.  I need to, in that regard, at least apprise the wife, in light of her lack of legal representation, that I take the view that the matters set out in pars 4 to 8 are either matters that have been previously the subject of applications, deliberations and determinations, are the subject of argument in pending appeals or, alternatively, they are ill-conceived matters beyond the jurisdiction of the Court, for example par 7, an order directed at a principal of a college. 

    RECORDED  :  NOT TRANSCRIBED

14. Therefore, I propose to adjourn the remainder of the applications to the trial.  I give liberty to the wife to list those applications for further hearing before me upon the giving of 14 days notice by the wife to the solicitors for the husband and the Independent Children's Lawyer.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: