Reisner & Reisner

[2010] FamCA 473

FAMILY COURT OF AUSTRALIA

REISNER & REISNER [2010] FamCA 473

FAMILY LAW – COURTS AND JUDGES – Perceived bias – Disqualification

APPLICANT: Ms Reisner

RESPONDENT: Mr Reisner

INDEPENDENT CHILDREN’S LAWYER Ms O’Neill, Solicitors

FILE NUMBER: BRC 1065 of 2007

DATE DELIVERED: 28 April 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 22 April 2010 to 23 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hogan of Counsel appearing for the Applicant Wife

SOLICITORS FOR THE APPLICANT: Barry & Nilsson, Solicitors

COUNSEL FOR THE RESPONDENT:

The Respondent Father appearing in person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Brasch of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Office of Queensland

Orders

1. The further hearing of this matter is adjourned for listing before such other Judge of this Honourable Court as may be appointed by the Deputy Chief Justice. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1065 of 2007

MS REISNER

Applicant

And

MR REISNER

Respondent

REASONS FOR JUDGMENT

1. I’ve heard the submissions in this matter.  I am tempted to make a number of observations but have concluded that so far as the discussions with Mr Y are concerned, discretion is the better part of valour.  I will be acceding to the application for me to step aside.

2. I am not accepting of paragraph 12 of the written submissions by Counsel for the Independent Children’s Lawyer.  So in stepping aside, I do not want it to be interpreted, as it is in paragraph 12(ii), that a one-off instance of abuse would be okay.  I certainly never intended that.  Where there was a one-off incident of low level abuse it would be unlikely for a Court to order no contact whatsoever at any time.  It is much more likely, because it is at the lesser end of the scale, to lead to an instance where there would be supervised time.

3. I also do not have any fixed view on a person’s being able to make observations on a person’s reaction as to how that may be interpreted.  It is a matter where there is, I would have thought, some indications in the evidence on that aspect but it was going to be a matter of submissions and consideration of the expert reports.

4. I’ve spoken to the Deputy Chief Justice about arranging for an interstate Judge to hear this matter.  I am unable to receive any firm assurance about that but the matter will be taken in hand.

5. I make inquiry whether any consideration has been given as to how this matter should proceed.  If a Judge is made available, would the parties agree for that Judicial Officer to hear it on the papers together with submissions thereafter, if, of course, the Judge was prepared to do it on that basis, or is it simply a case of one of the parties saying, “We’ll have to start all over again?”

6. Registrar Coutts is the registrar in this matter.  Will the parties discuss this and communicate to her your views on this aspect?  If the matter is to start again, please advise her how long you believe the matter will take, and if it is to be done in some abbreviated fashion so that evidence of the witnesses can stand as it is, again, an estimate of how long it is likely to take.  So with those comments, I’ll adjourn the Court.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  28 April 2010