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 | of | 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 |
| 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 West, counsel for the wife, was not in a position to proceed with the wife’s costs applications at that time and they were also adjourned to today.
Mr Forster has indicated that he still wishes to proceed with those applications. They are opposed by the wife.
I invited Mr Forster to make submissions to me in support of the applications and he alleged that during a number of hearings in 2010 I made what he describes as “prejudicial remarks”. He has raised this issue before in previous applications that I be disqualified, and those applications have been dismissed because Mr Forster has not been in a position to refer me to the transcripts of the hearings allegedly containing the alleged prejudicial remarks. Because
Mr Forster has not been able to establish a basis for me to disqualify myself, I have had no alternative but to dismiss those applications. As will also be apparent from the reasons for judgment that I have delivered in relation to those earlier applications, I have indicated that for my part I do not consider that I have said anything at all in any hearing when Mr Forster has appeared before me, which would be a basis for me to disqualify myself. For example, I refer to my reasons for judgment delivered on 15 January 2013 in relation to the then application that I disqualify myself.In any event, Mr Forster says today that although he has now obtained the relevant transcripts, they do not contain the alleged prejudicial remarks, and he wants an investigation into that. He wants to listen to the audio tape and he says he has made an application to that effect. There is no such application before me, but it may be that that is an application that turns up at some later stage, and if it does, and if it is before me, I will deal with it.
The difficulty for Mr Forster, as I have confirmed with him today, is that he is still not in a position to present to me transcript containing alleged prejudicial statements which he says should lead me to disqualify myself. Logically then I have no alternative but to dismiss the applications that are now before me.
I enquired of Mr Forster as to on what possible basis given that background that he could hope to succeed on these applications. Unfortunately, although I asked that question on two occasions, the answers given by Mr Forster did not address the questions, and I am none the wiser as to on the basis he hopes to succeed.
The other matter which Mrs West has commented on, and which is also highly relevant to these applications, is that in the affidavits filed in support of the applications which I have identified, there is absolutely nothing set out in those affidavits which could possibly lead me to disqualify myself. The high point appears for example, in paragraphs 18 and 22 of the affidavit filed by
Mr Forster on 14 March 2013. There he says this:18.Throughout these proceedings, there has been a miscarriage of justice, the miscarriage of justice that differentiate [sic], racism and prejudices, and unaccountability.
…
22.Finally and respectfully, the application to Stay the order of
31 January 2013 should be heard absent a hearing since I cannot foresee his Honour continuation of well established racism, biases and prejudices.Those paragraphs are also repeated in the affidavit filed by Mr Forster on
15 March 2013. They are the high point, if they can be described as such, to support any application to disqualify myself, and as is apparent, they are completely inadequate for that purpose.For those reasons the applications will be dismissed.
I now have before me an oral application by Mr Forster to adjourn the hearing of the costs applications of the wife. As he as described it in his written submission at paragraph 32 “Any cost application should be adjourned pending the disposition and/or finalization of Application for Special Leave to Appeal and Notices of Appeals are finalized”.
I have had some difficulty in understanding the submissions that Mr Forster makes in support of that application. I have just recorded for the transcript what I understand from Mr Forster’s written submission and oral submission to be the basis of the adjournment and that is, he seeks an adjournment because he has a number of appeals on foot, he is proposing to appeal any costs order that I make, if I make one, and thus this costs application should be delayed until after all the appeals are heard and determined.
For my part what Mr Forster has said provides no basis for an adjournment of the costs applications.
To repeat, Mr Forster has forcefully put to me that he will appeal any decision I make. That is his right of course, but whether an appeal is successful or not is an entirely different question. However, the threat of an appeal against any order for costs I might make has no affect whatsoever on me, and does not limit me or restrict me in dealing with the application itself.
I propose to proceed with the wife’s application for costs, and I propose to dismiss the application for an adjournment made by Mr Forster.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
6 June 2013.
Associate:
Date: 11 June 2013
0
0
0