Randolph and Rankin

[2012] FMCAfam 989

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RANDOLPH & RANKIN [2012] FMCAfam 989

FAMILY LAW – Disqualification application – relevant tests – utility of ‘preliminary view’ offered by the Court – application doomed to fail but still pressed – distinction between procedural orders and orders in relation to substantive issues between the parties – proper appreciation of limited court resources in relation to allocation of dates for hearing and access to family consultants and reports.

Antoun v The Queen (2006) 224 ALR 51
AON Risk Services Australia Ltd  v Australian National University (2009) 239 CLR 175
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Re JRL; Ex parte CJL (1986) 161 CLR 342
Marsden v Winch (2010) 42 Fam LR 1
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Nadkarni & Nadkarni [2011] FamCAFC 160
Vakauta v Kelly (1989) 167 CLR 56
Vasser v Taylor-Black (2008) 37 Fam LR 256

Applicant: MR RANDOLPH

Respondent: MS RANKIN

File Number: CAC 276 of 2012

Judgment of: Neville FM

Hearing date: 6 September 2012

Date of Last Submission: 6 September 2012

Delivered at: Canberra

Delivered on: 6 September 2012

REPRESENTATION

Counsel for the Applicant: Mr Stenhouse

Solicitors for the Applicant: Armstrong Legal

Counsel for the Respondent: Self represented

ORDERS

1. The oral Application for disqualification made on 4 September 2012 be dismissed.

2. The matter be transferred to the docket of Federal Magistrate Brewster.

3. The matter be adjourned for directions before Federal Magistrate Brewster on 9 October 2012 at 10:00am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 276 of 2012

MR RANDOLPH

Applicant

And

MS RANKIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. By definition, family law proceedings – and especially those involving children – are tragic.  Ultimately, it becomes a question of degree, as well as the limitations of language, to assess properly and describe accurately, the nature and extent of the tragedy – real or perceived, substantive or procedural.

2. Indeed, the lament – usually and necessarily unspoken – that attends family law litigation can be heightened, or sometimes lessened, by how a particular case is conducted.  Having proper regard to the limited resources of a busy court as to available hearing dates and access to family consultants (to name just two), an efficiently run case will usually get parties out of the legal system sooner.

3. In making judgments about the case-management of a case, courts of course cannot, and usually do not, know how much the conduct of a case is dependent on specific instructions from the client, especially one who refuses steadfastly to heed the advice of legal advisers, or whether there have been choices (for better or for worse) made by those legal advisers, to which the client simply accedes.

4. In this…