Hayes and Eddington (No 2)

FAMILY COURT OF AUSTRALIA

HAYES & EDDINGTON (NO 2) [2014] FamCA 244

FAMILY LAW – DISQUALIFICATION – where the applicant seeks that judge disqualify himself – where the respondent opposes the application – where the test of apprehended bias is not satisfied – application dismissed

Evidence Act 1995 (Cth) ss 131, 135

Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group [2000] HCA 63; (2000) 205 CLR 337.

APPLICANT: Ms Hayes

RESPONDENT: Mr Eddington

FILE NUMBER: MLC 2949 of 2012

DATE DELIVERED: 25 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Benjamin J

HEARING DATE: 25 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St John SC

SOLICITOR FOR THE APPLICANT: C E Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bartfeld QC

SOLICITOR FOR THE RESPONDENT: Glezer Lanteri & Associates

Orders

1. The oral application made on behalf of the applicant on 25 March 2014 that Benjamin J disqualify himself from the further hearing of the applications in these proceedings be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hayes & Eddington  (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 2949 of 2012

Ms Hayes

Applicant

And

Mr Eddington)

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This morning Senior Counsel for Ms Hayes (“the applicant’) made an oral application on her behalf that I disqualify myself from the further hearing of these proceeding on the basis of perceived bias.  That application was made following ex tempore reasons I had delivered yesterday afternoon in regard to the question of admissibility of an affidavit of the applicant which sought to be relied upon by the applicant.  For the purpose of these reasons, it is of some value to me to reflect on the proceedings, and where they are at the present time. 

2. In April 2012 the applicant commenced proceedings in this Court seeking unspecified orders for property and maintenance arising out of a relationship, she asserted was a de facto relationship, between herself and the late Mr Eddington (“the deceased respondent”).

3. The deceased respondent, at that time, was unwell and in November 2012 the applicant filed an amended initiating application, in which she again sought unspecified property orders and unspecified spousal, or partner, maintenance.  In addition she sought a declaration that a de facto relationship existed between herself and the deceased respondent between early 1998 through to about June 2012.  Directions were made for the parties to file affidavit material, and a number of affidavits were filed by the applicant, including those of hers on 1 November 2012 and 12 February 2013.  Sadly, in February 2013, the deceased respondent passed away.

4. In May of 2013 an application was made by Mr E and Ms F (the executors of the Estate of the deceased respondent) to be substituted for the deceased respondent as parties to these proceedings.…