Hooper and Hooper

[2008] FamCA 567

FAMILY COURT OF AUSTRALIA

HOOPER & HOOPER [2008] FamCA 567

FAMLY LAW – COURTS AND JUDGES – Disqualification application - Refused

APPLICANT: Mr Hooper

RESPONDENT: Ms Hooper

FILE NUMBER: SYC 3182 of 2007

DATE DELIVERED: 4 June 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 4 June 2008

REPRESENTATION

FOR THE APPLICANT: In person

COUNSEL FOR RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: Mr Lamont

Orders

1. That the husband’s application in a case file on 11 June 2008 is hereby dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hooper & Hooper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYG  3182  2007

MR HOOPER

Applicant

And

MS HOOPER 

Respondent

REASONS FOR JUDGMENT

‘Ex Tempore’

1. In these proceedings the husband has sought that I disqualify myself.  I should do so if I come to the conclusion that a fair‑minded person present at the hearing when the matters that he relies upon occurred could reasonably have suspected that I had pre-judged the matter.  The husband relies upon three assertions of fact to support his application for disqualification.  The first is that, in relation to the financial questionnaire that he had filled in for the purposes of the hearing, I said I would take no notice of it.  The second is that he said that I would not permit his counsel to make all the submissions he wished to make and that I interrupted this counsel.  The third reason that he puts forward to support disqualification is that his counsel attempted to rely upon written submissions which I refused to permit him to rely upon.

2. In relation to the questionnaire, the rules simply fail to provide for such documents.  The case was one where each party was seeking to obtain orders for the preparation of the matter so that it could proceed to hearing.  The major issue between the parties relates to their assets, the wife saying that the husband has assets that the husband denies that he has; the wife also saying that the husband's assets that he admits to having are worth more than he is prepared to accept they are worth. 

3. In those circumstances, each of the parties had already filed ‑ although they were somewhat out of date because they had been sworn approximately a year earlier ‑ statements of financial circumstances.  The husband complains that instead of relying upon that statement, as I did, to have some small understanding – and that is all I needed for the proceedings that were before me, which were for nothing more than directions ‑ I should have relied upon his questionnaire.  The problem with the questionnaire is that it is not evidence; it did not comply with the rules; it was, in its form, confusing because the way in which the husband listed his assets made it difficult for me to understand what they are, as these questionnaires always allow people to do, and people usually take the opportunity provided by them to do it. 

4. But in a case where the parties are hotly in dispute about the value of the husband's interests in businesses, the appropriate thing to do is to order a valuer.  When it comes to reliance on evidence regarding the amount of property a person has, it is more appropriate to rely upon sworn evidence rather than an unsworn document, despite the fact that, for some reason that I still do not understand, the Court requires people to fill these documents in when the swearing of a financial statement is likely to provide a much more accurate indication of the real circumstances of the parties, despite the fact that it also has faults in that respect.

5. In this particular instance, what was being asked for was for valuations to be obtained.  The case could not progress without them.  The Court cannot determine the issues necessary without knowing the value of the parties' property.  It was necessary for the purpose of proceeding any further in the matter to have the property valued where the parties cannot agree on the values, and they could not.  In those circumstances, each party said they were having difficulty in affording or, in the husband's case, he said he could not afford, the cost of the valuations.  The reality was that a parties owned a house and they had said in their statements of financial circumstances ‑ although the values were a little out of date ‑ that the house was worth at least $1.4 million. 

6. In addition to that, the husband had sworn in that statement of financial circumstances that he had a net income of approximately $2000 per week, although all of that income was going on mortgage payments and, in fact, he was losing money on a weekly basis because of his other living costs.  The wife's income was much smaller.  I cannot quite recall what it was, but I think I would not be far from the truth if I thought it was approximately $790 per week gross.  In those circumstances, the parties had a choice ‑ they could either raise their shares of the cost of valuation of the assets, or they could agree on valuations, or they could sell the assets.  If it was necessary to pay for the valuation of business assets and neither could raise money by way of borrowing, it may have been appropriate, and was appropriate, to sell the house.  I note that now, just recently, that is precisely what the husband seeks to do.  He could have done it then.  He could have made an application for the sale of the house that would have been dealt with then, but he failed to do that.  But, in any event, that was not before me. 

7. The only matter that was before me was the question of valuation of the business and the house and the fact that the wife, if I recall, opposed the sale of the house, and still does.  In those circumstances, I made an order which was the one that the husband complains about for the valuation by Mr P as a single expert to value any trust and/or commercial property that either party claims was part of the pool of property between them.  It is to be noted that I did not make a specific order about who was to pay for that valuation.  How the husband says that I was unfair to him because I failed to read the questionnaire and then realise that he could not afford to pay for the application for the valuer in all of those circumstances is something I have difficulty understanding.  I do not regard my rejection of the questionnaire and reliance upon the statement of financial circumstances as likely to, in itself, lead to a fair‑minded onlooker thinking that I had been prejudiced in the procedural orders I made on the day.  The other order I made on that day was strangely that the wife's solicitor be entitled to have an estate agent view the property.  That was something, if I recall, the wife was claiming the husband had not permitted to date.

8. The second reason that the husband replies upon is that I interrupted Mr Batey.  I did, and often.  That is my style, and I do not apologise for it.  I like to know the answers to questions that arise in my mind and I ask barristers those questions.  If I think I have heard enough on a submission, I take the view that I should tell barristers.  But I do not prevent them from ultimately saying precisely what they wish to say.  On this occasion, I did not do so, and Mr Batey did not suggest that I did so, so far as I can recall.  Mr Batey had ample opportunity to address me, and it would be virtually unimaginable that a barrister of his seniority would not press the point on the spot if he was of the view that he had not been able to say all that he could.  I am of the view that a reasonably minded bystander would not think that any of my interruptions to Mr Batey or even my suggestions, if I made them, that I had heard enough on a particular point would cause anybody to think that I was prejudiced in that I pre-judged a matter.  To stop a barrister when he is making an address on a particular point may mean that I tentatively have a view, but it does not mean that I have made up my mind.  I think that a bystander watching proceedings would readily understand that.

9. As for the arguments that Mr Batey sought in written form to put before me, the first is that my recollection is that he clearly told me they were not his submissions; they had been drafted by somebody else.  It is inappropriate and improper, in fact, in my view, for the Court to allow two different people to make submissions on the one application or the one point in any application or the one argument in any application, unless there are unusual circumstances, for the one party.  Each party is entitled to be represented by one person, and Mr Batey was that representative.  It is even less appropriate of Court to accept submissions made by somebody who is not appearing for the person.  Mr Batey, like every other barrister, must take responsibility for his submissions.  To try to rely upon somebody else's without taking that responsibility is entirely inappropriate and is not a practice this Court should ever entertain, except in the most unusual circumstances, circumstances which did not exist here.

10. Not only that, it is my entitlement to refuse to accept written submissions.  The parties were represented by counsel, at least the husband was represented by counsel and the wife by a solicitor advocate.  In those circumstances, I was entitled to hear their oral submissions.  I am not obliged to accept written submissions.  A written submission means that I cannot make, amongst other things, a decision on the spot, that I have to go away and start thinking about the submissions and addressing those.  Where oral submissions can be made, I can immediately sum them up and make a decision on them, and I was not prepared to accept written submissions, particularly written submissions that were not the responsibility of counsel appearing for the party.  On an ordinary bystander understanding those points, I am quite confident that that bystander would see that the rejection of those written submissions was not any act of prejudgment.

11. I am also of the view that all three submissions together or any two of those combined would not give the husband any reason to succeed in his application that I disqualify myself.  Each of the reasons is insufficient in itself, and in my view, each reason in any combination with the other reasons or another reason is also insufficient to ground a successful application for disqualification.  I refuse the husband's application.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

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