Forster and Forster (No 2) - [2013] FamCAFC 92

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO. 2)

[2013] FamCAFC 92

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – where the husband seeks that Strickland J disqualify himself from hearing any costs applications – where there is no basis for making the order sought – application dismissed.
FAMILY LAW – APPEAL – ORAL APPLICATION – ADJOURNMENT – where the husband seeks that the wife’s oral costs applications be adjourned until after all appeals on foot have been heard and determined – where there is no basis for such an order to be made – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Forster

RESPONDENT:

Ms Forster

FILE NUMBER:

ADC

3359

2007

APPEAL NUMBERS:	SOA	44 & 46	of	2010
SOA	60	of	2012

DATE DELIVERED:

6 June 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

EX TEMPORE JUDGMENT OF:

Strickland J

HEARING DATE:

6 June 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 November 2012

LOWER COURT MNC:

[2012] FamCA 1028

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATES:

16 March 2009

23 April 2010
6 December 2011

LOWER COURT MNC:

NA – consent orders
[2010] FMCAfam 395
[2011] FMCAfam 1310

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mrs West

SOLICITOR FOR THE RESPONDENT:

Catherine Hicks & Co Lawyers

Orders

Paragraph 4 of the application in an appeal filed by the husband on 15 March 2013 seeking that the Honourable Justice Strickland be disqualified from hearing any costs applications be dismissed.
The oral application made by the husband today for an adjournment of the wife’s applications for costs be dismissed.
Judgment in relation to the wife’s applications for costs is reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Numbers: SOA 44 & 46 of 2010; SOA 60 of 2012
File Number: ADC 3359 of 2007

MR FORSTER

Applicant

And

MS FORSTER

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The first matter for me to deal with today is an application by Mr Forster that I be disqualified from hearing the wife’s applications for costs. As I have identified, that application is in fact contained in two applications filed by
Mr Forster; first, an application in a case filed on 14 March 2013 in file number ADC 3359 of 2007, and an application in an appeal filed by Mr Forster on
15 March 2013 in appeal numbers SOA 44 of 2010 and SOA 46 of 2010.
I dealt with the other orders ought in those applications on 20 March 2013 and I dismissed those applications. In respect of the applications that I be disqualified however, I adjourned that matter to today, given that it only related to the hearing of the costs applications and Mrs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Forster and Forster (No 2)

Details

AGLC: Forster and Forster (No 2) [2013] FamCAFC 92
Case: [2013] FamCAFC 92
Decision Date

CaseChat Overview and Summary

The case of Forster and Forster (No 2) involved an appeal by Mr Forster against various judgments and orders made by the Family Court of Australia and the Federal Magistrates Court. The central issue before the court was the handling of Mr Forster's applications seeking the disqualification of Justice Strickland from hearing any costs applications and the adjournment of the wife's oral costs applications. Mr Forster, appearing in person, argued that Justice Strickland should be disqualified due to alleged prejudicial remarks made during previous hearings. He also sought an adjournment of the wife's costs applications until all ongoing appeals were concluded. Mrs West, representing the wife, opposed both applications.

Justice Strickland dismissed both applications. In dismissing the disqualification application, Justice Strickland highlighted that Mr Forster had previously failed to provide any transcripts with the alleged prejudicial remarks, and he had again failed to do so in the current applications. Despite obtaining the relevant transcripts, Mr Forster had not identified any prejudicial statements that would justify disqualification. Additionally, the affidavits submitted in support of the disqualification application did not provide any valid grounds for disqualification. As for the adjournment application, Justice Strickland found that the threat of an appeal against any costs order did not provide a basis for delaying the wife's costs applications.

The court concluded that there was no valid basis for either application and, therefore, dismissed them. Judgment on the wife's applications for costs was reserved, and the appeal from the earlier orders remained pending.

Orders