M and M (No.2)

[2003] FMCAfam 102

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & M (No. 2) [2003] FMCAfam 102

FAMILY LAW – Courts and judges – functus officio – bias – reasonable apprehension of bias – application that federal magistrate who determined s.79 application be disqualified from hearing subsequent s.79A application between the same parties – s.117C offer filed in s.79 proceedings disclosed before s.79A application heard – application refused.

Family Law Act 1975, ss.79A, 117, 117C,(1),(3), 117(2), 4(1)(ca),(f)
Federal Magistrates Act 1999, s.39(3), (4)

Dogramaci (2000) Fam CA 1668

R v Watson; Ex Parte Armstrong (1976) 136 CLR 248
Johnson [2000] HCA 48
JRL; Ex parte CJL (1986) 161 CLR 342
Milham and Stanford (2001) FLC 93-073
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453
Ipoppolo v Conti (1987) FLC 91-852
Prowse (1995) FLC 92-557

Applicant: K M

Respondent: G M

File No: SYM295 of 2002

Delivered on: 2 April 2003

Delivered at: Parramatta

Hearing Date: 21 March 2003

Judgment of: Ryan FM

REPRESENTATION

Counsel for the Applicant: Ms M. Bridger

Solicitors for the Applicant: Kells The Lawyers

Counsel for the Respondent: Mr N. McPherson

Solicitors for the Respondent: Kerrie Johnson & Associates

ORDERS

1. That the husband’s application filed 4 March 2003 is dismissed.

2. That the question of the costs of the application is listed for argument on 7 April 2003.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

SYM295 of 2002

K M

Applicant

And

G M

Respondent

REASONS FOR JUDGMENT

1. This is an application by K M (“the husband”) that I disqualify myself from hearing these proceedings.  His application was filed on 5 March 2003 and heard on 21 March 2003.

2. G M (“the wife”) sought that his application be dismissed.  Although the argument at hearing focused on the disqualification application, Mr M’s application sought the following:

   ·That a costs order made on 19 February 2003 be stayed.

   ·That I disqualify myself.

   ·That the proceedings be transferred to the Family Court of Australia at Sydney.

   ·That all previous directions be vacated.

Background

1. On 11 March 2002 G M filed an application for the adjustment of property interests pursuant to s.79 of the Family Law Act 1975. Those proceedings were started in the Family Court at Sydney.  K M sought orders different to those proposed by the wife and after pre-trial mediation processes failed to resolve the dispute, the proceedings were transferred from the Family Court at Sydney to the Federal Magistrates Court at Wollongong.

2. The proceedings were called on for final hearing on 28 and

   
   

   29 November 2002.  Both parties appeared and were represented by counsel throughout the hearing.  During the course of the hearing the parties compromised some of the contentious issues, including the value of particular assets and liabilities as at the date of hearing.  For example, they agreed that the wife’s savings amounted to $12,000.  At the end of the wife’s case the husband’s counsel made an application that I disqualify myself from further hearing the matter because of apprehended bias.  It was said…