Gade and Jabbar (No.20)

[2019] FCCA 865

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.20) [2019] FCCA 865

Catchwords:
FAMILY LAW – Application for recusal filed by the wife following the husband filing an application for enforcement of property orders – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR GADE

Respondent: MS JABBAR

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 2 April 2019

Date of Last Submission: 2 April 2019

Delivered at: Newcastle

Delivered on: 2 April 2019

REPRESENTATION

Solicitors for the Applicant: NLS Law

The Respondent: In person

ORDERS

1. The application in a case filed on 27 March 2019 is dismissed.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The matter is adjourned to a date and time to be advised for delivery of a decision in relation to the application in a case filed on 1 March 2019.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.20) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2265 of 2015

MR GADE

Applicant

And

MS JABBAR

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. I have an application before me filed by Mr Gade seeking to enforce some orders that were made some considerable time ago. Dr Jabbar has met that application by filing an application that I should disqualify myself from hearing the enforcement application.

3. I have been involved in this matter for a considerable period of time, since August 2015. It is sometimes said that Judges don’t choose their cases and litigants cannot choose their Judges. I got this case and I have dealt with it since 2015.

4. Dr Jabbar has appealed numerous of my interim decisions. She appealed my final decision. Her appeals in relation to my interim decisions were unsuccessful.

5. I note Dr Jabbar is leaving the courtroom. Her appeal in relation to my final decision was also unsuccessful. The final decision involved both parenting and property orders and the time has now come when the property orders need to be enforced.

6. Dr Jabbar in my view, and I have read her affidavit, has not pointed to any reason why I am not likely to bring an unprejudiced mind to determining Dr Gade’s application.

7. The fact that decisions are made in a case which are adverse to one party does not, as I think Aldridge J pointed out in one of Dr Jabbar’s appeals, indicate that there is likely to be prejudgment or prejudice or that a Judge should disqualify themselves from further hearing the matter. It would be particularly troubling if a Judge was disqualified from hearing an application to enforce an order they had made simply because they had made the order in the first place and that there may be some perception that they were likely to enforce it, particularly when it was unsuccessfully challenged on appeal.

8. I do not accept that this can or should create a ground for disqualifying the Judge who made the order from hearing the enforcement application. Indeed the business of this Court would be likely to grind to a halt if people were allowed to run that kind of argument successfully. I am going to dismiss Dr Jabbar’s application in a case for me to disqualify myself.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:     5 April 2019