Forster & Forster (No. 2)
[2012] FamCAFC 143
•28 August 2012
FAMILY COURT OF AUSTRALIA
| FORSTER & FORSTER (NO. 2) | [2012] FamCAFC 143 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks to tender an application in an appeal and affidavit in support at the outset of the hearing – where no objection is taken to the tendering of those documents – where there is no basis for making any of the orders sought in the application – application dismissed. |
| Family Law Rules 2004 (Cth) |
| APPLICANT: | Mr Forster |
| RESPONDENT: | Ms Forster |
| FILE NUMBER: | ADC | 3359 | of | 2007 |
| APPEAL NUMBERS: | SOA SOA | 44 & 46 60 | of of | 2010 2012 |
| DATE DELIVERED: | 28 August 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 28 August 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 16 March 2009 23 April 2010 |
| LOWER COURT MNC: | NA – consent orders [2010] FMCAfam 395 [2011] FMCAfam 1310 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | The applicant appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mrs West |
| SOLICITOR FOR THE RESPONDENT: | Catherine Hicks & Co Lawyers |
Orders
The Application in an Appeal tendered by the Applicant to this Court today be dismissed in its entirety.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster (No. 2) 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
File Number: ADC 3359 of 2007
| Mr Forster |
Applicant
And
| Ms Forster |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
When this matter was called on today Mr Forster tendered an Application in an Appeal. There was no objection taken to the court receiving that application by either Mrs West or Ms Lewis. I thank them for that because of course it is not appropriate to seek to proceed on an application by simply handing it up at the start of a hearing, when neither copies of the application nor prior notice of the proposed application has been provided to the other side.
In the application Mr Forster seeks the following orders:
1.That the Honourable Judge Strickland be disqualified from determining the appeals in the case.
2.That leave of Court is granted to file the proposed Notice of Appeal for 23 April 2010 (final property order) and 16 March 2009 (parenting Order) and the appeal are allowed.
3.If the Honourable Judge Strickland see no reason for disqualification that a stay of proceeding is granted pending an appeal.
4.That the proposed Notice of Appeal be allowed to be filed
Mr Forster has also handed up an affidavit in support of the application together with a document entitled “AMENDED PROPOSED SUBSTANTIAL ISSUES TO INCLUDE IN NOTICE OF APPEAL”.
In relation to the application seeking my disqualification that issue is addressed in paragraphs 15 through to 19 of the affidavit. Mr Forster in paragraph 15 for example alleges that I have “in the past made various prejudicial comments, particularly in September 2010”, and he says in paragraph 16 “I do believe that the Honourable Judge Strickland harbour (sic) apprehended bias and cannot be impartial in deciding further issues in his (sic) case”. Significantly though
Mr Forster deposes in paragraph 17 that “Absent the transcripts of the hearings … it is extremely difficult for (him) to present and demonstrate apprehended bias”.
I invited Mr Forster to make any further submissions to me in support of this application, but as I have indicated to him, he is perfectly correct in what he says in his affidavit namely, that without specifically identifying what I might have said in previous hearings, it is not just difficult, it is impossible for him to demonstrate apprehended bias on my part. Mr Forster has indicated that he has had difficulty in obtaining the transcript. As I have said to him though that is not a matter that I can sort out for him today. Although I cannot understand why he has not been able to get the transcript, he makes no application to me today about that.
Thus there is no basis that Mr Forster has been able to set out in his affidavit or otherwise as to why I should disqualify myself. As I have said, and I repeat, as far as I am concerned there is nothing that I have done or said in any hearing in this case which would raise the spectre of apprehended bias and/or, and using the words that Mr Forster does in paragraph 16, the spectre that I “cannot be impartial in deciding further issues in his (sic) case”.
For those reasons I propose to dismiss paragraph 1 of the Application in an Appeal tendered today.
I now turn to the other orders sought in the application.
The next order sought is that leave be granted to file a proposed Notice of Appeal. To repeat, Mr Forster has attached to his affidavit a five page document headed “AMENDED PROPOSED SUBSTANTIAL ISSUES TO INCLUDE IN NOTICE OF APPEAL”.
I have indicated to Mr Forster that that is not in an appropriate form and it makes it extremely difficult for me to consider the application. As I understand it what Mr Forster is attempting to do is to set out what he would put in a properly drawn amended Notice of Appeal if he had leave to file such an amended Notice of Appeal.
However, he does not need leave to amend the draft Notices of Appeal. The position is he has filed draft Notices of Appeal already in the context of seeking extensions of time to file those Notices. Thus at any time whilst waiting for those applications to be determined Mr Forster can put before the Court amended draft Notices.
Therefore I propose to dismiss paragraph 2 of the Application in an Appeal tendered today.
With the third order sought, Mr Forster seeks a stay of the proceedings pending an appeal. However, I do not know to what he is referring, and there is absolutely nothing in his Affidavit which provides any support for this application.
Thus I invited Mr Forster to address me further as to this order. He indicated that it is an application to stay these proceedings to enable him to file an application seeking the special leave of the High Court of Australia to appeal against the order that I have just made refusing his application that I disqualify myself.
Mrs West on behalf of the respondent opposes that application and Ms Lewis does not wish to be heard.
As far as I am concerned there has been no basis or justification put to me as to why I should grant such a stay. As I said in my reasons in dismissing the application that I disqualify myself, I have taken Mr Forster’s own submission, namely, that he is not in a position to demonstrate to me why I should disqualify myself. Thus, in my view there would be no basis on which special leave to appeal would be granted by the High Court of Australia in those circumstances, and I propose to dismiss paragraph 3 of the Application in an Appeal tendered today.
With the fourth order sought I propose to dismiss that as well because that is in my view the same as paragraph 2. I have explained that to Mr Forster but I will explain it again. The current state of this matter is that Mr Forster has before the court applications seeking extensions of time to file Notices of Appeal against orders made by Federal Magistrate Lindsay. He is perfectly able at any time, without me granting any leave, to amend those Notices of Appeal on which he wishes to proceed if he achieves an extension of time.
Having addressed each of the orders sought in the application I propose to dismiss in its entirety the Application in an Appeal tendered by the Applicant to this court today.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
28 August 2012.
Associate:
Date: 6 September 2012
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