Grange and Grange and Ors

[2015] FamCA 972

FAMILY COURT OF AUSTRALIA

GRANGE & GRANGE & ORS [2015] FamCA 972

FAMILY LAW – PRACTICE AND PROCEDURE – Husband’s application for the trial judge to recuse himself due to alleged bias - Allegation of bias based on the trial judge previously granting the wife’s application for joinder of second and third respondents – Where another judge dismissed the husband’s application for joinder of various parties and that decision was upheld by the Full Court – Principles for joinder of necessary parties – Where it was necessary to join the second and third respondents due to the nature of the orders sought against them which would, if granted, affect their legal rights – Husband’s application dismissed.

Family Law Rules 2004 (Cth)

APPLICANT: Ms Grange

FIRST RESPONDENT: Mr Grange

SECOND RESPONDENT: Ms A Grange

THIRD RESPONDENT: Ms B Grange

FILE NUMBER: ROC 580 of 2011

DATE DELIVERED: 4 November 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 4 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Shoebridge

SOLICITOR FOR THE APPLICANT: Madden Solicitors

FOR THE FIRST RESPONDENT: In person

FOR THE SECOND RESPONDENT: In person

FOR THE THIRD RESPONDENT: No appearance

Orders

it is ordered that:

1. The Husband’s Application in a Case filed on 2 November 2015 seeking the Honourable Justice Kent recuse himself from hearing the trial of these proceedings is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 580 of 2011

Ms Grange

Applicant

And

Mr Grange

First Respondent

And

Ms A Grange

Second Respondent

And

Ms B Grange

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in a Case filed on 2 November 2015, supported by an affidavit also filed on that date, the first respondent to these proceedings, Mr Grange, applies for an order that I recuse myself from hearing the trial which is set down to commence today for three days. 

2. As the first respondent is not legally represented, I sought clarification at the outset of the hearing today of the basis for his application that I recuse myself.  The relevant history, at least relevant to this application, is that at an earlier point in this litigation, I made orders for the joinder to the proceedings of the second respondent, the daughter of the applicant and the first respondent, and also the third respondent, who is Mr Grange’s mother. 

3. The basis for the order for joinder of those parties was governed by the orders being sought by the applicant in these proceedings.  The wife in these proceedings, as applicant, seeks some orders which, inter alia, would impact upon the rights of each of the second respondent and the third respondent respectively if such orders were made.  It is obviously essential to concepts and principles of natural justice and procedural fairness that a party who might be affected by orders made by a court have the opportunity to be heard with respect to those orders. 

4. The Family Law Rules 2004 (Cth) reflect those principles in requiring necessary parties to be joined to proceedings. “Necessary parties” includes any party who might be adversely affected by an order sought if that order were to be made. Mr Grange contends that unfairness lies in the feature that whilst the second respondent and the third respondent are joined to the proceedings, other parties whom he historically has sought to have joined to the proceedings are not parties.

5. His application for their joinder was rejected in the first instance by Forrest J.  The basis of that rejection was, in summary, that Mr Grange had pursued proceedings in the Supreme Court seeking orders affecting particularly the interests of his daughter, Ms H, and her ownership of a particular property.  Mr Grange had sought the declaration of a trust with respect to that property.  The Supreme Court adjudicated upon that claim and rejected it. 

6. It was with respect to that adjudication that Forrest J determined that those parties ought not be joined to these proceedings given that the claim had been adjudicated by the Supreme Court. 

7. Mr Grange appealed from that decision to the Full Court of this Court and the Full Court affirmed on appeal the decision of Forrest J. 

8. I have, in the course of argument, attempted to explain to Mr Grange the difference between the need to join parties because of relief sought in the proceedings and any determination by the Court as to the merit of the claim underlying the orders sought. 

9. That is, in terms of joinder, the Court concerns itself only with the orders that are sought by a party and who might be affected by the making of those orders rather than considering any underlying merits to the claim.  Plainly, there is a difference here in that a court has adjudicated upon the claim of trust mounted by Mr Grange, that is, the Supreme Court has adjudicated upon that claim, but no court has adjudicated upon the claims advanced by the wife in these proceedings with respect to the interests of the second and third respondents.

10. It may be highly relevant to the determination of the claims in these proceedings as to what occurred in the Supreme Court and the determination made by that court, but none of this suggests that any reasonable lay observer could reasonably apprehend that I have demonstrated any bias or that I would not bring an impartial judgment to the claims to now be determined as advanced by the wife simply because I previously ordered the joinder of those parties.  Mr Grange suggested in argument that I, at an earlier opportunity, suggested that the other parties should be parties, but I do not accept the accuracy of that submission. 

11. For these reasons, the Application in a Case filed by Mr Grange on 2 November 2015 is dismissed. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 4 November 2015.

Associate:

Date:  9 November 2015