M and M (No.2)

Case [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…

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Details
AGLC
M and M (No.2) [2003] FMCAfam 102
Case
[2003] FMCAfam 102
Decision Date

CaseChat Overview and Summary

The parties involved in this case are a husband and wife, who were before the Family Court of Australia. The dispute centred around the husband's application filed on 4 March 2003, which he sought to dismiss. The court was tasked with determining the appropriate legal issues related to this application.

The primary legal issue before the court was whether the husband's application should be dismissed. Additionally, the court needed to decide the matter of costs associated with the application, which was to be argued on 7 April 2003. The court considered the circumstances and merits of the husband's application, as well as the relevant legal principles and precedents.

In its reasoning, the court found that the husband's application should be dismissed. The court determined that the husband's application did not meet the necessary legal standards, and thus, it was not in the best interests of the parties or the court to proceed with it. Furthermore, the court ordered that the question of the costs of the application be listed for argument on 7 April 2003, to allow both parties to present their arguments and for the court to make an informed decision on the matter of costs.

The final orders of the court were that the husband's application filed on 4 March 2003 was dismissed, and that the question of the costs of the application be listed for argument on 7 April 2003. This decision ensured that the court's resources were used efficiently and that both parties had an opportunity to present their arguments regarding the costs associated with the application.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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