Rutman and Rutman

[2010] FamCA 1105

FAMILY COURT OF AUSTRALIA

RUTMAN & RUTMAN [2010] FamCA 1105

FAMILY LAW – COURTS AND JUDGES – Recusal of judicial officer

Family Law Act 1975 (Cth)

APPLICANT: Mr Rutman
(Deceased)

RESPONDENT: Ms Rutman

FILE NUMBER: MLC 1493 of 2009

DATE DELIVERED: 26 November 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 26 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Melilli

SOLICITOR FOR THE APPLICANT: Kenna Teasdale Lawyers

COUNSEL FOR THE RESPONDENT: Ms Formica

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie & Associates

Orders

1. That this matter be referred to Registrar Field for allocation to another judicial officer.  

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1493 of 2009

MR RUTMAN

Applicant

And

MS RUTMAN

Respondent

REASONS FOR JUDGMENT

1. This matter has been in my docket and not disposed of due to delay associated with the husband’s serious illness and his treatment and recuperation.  Eventually the husband died.  The matter is listed for review before me on Friday, 3 December 2010.  When it was set down it was anticipated that the matter would move forward by that date and onto a defended hearing.

2. Now Mr Melilli appears for the executors of the husband’s estate and Ms Formica appears for the wife.

3. At an early time after the matter was placed into my docket, I raised with counsel for the husband whether the husband or any other party objected to me continuing to hear the matter.  I disclosed the reasons at the time.

4. The husband did not wish to make any application and neither did any other party.  However, following the husband’s death I have given the matter further consideration.  Clearly there are matters of contest in other courts in this state which are wider and involve more people than are involved in these proceedings.  There is also the manner in which the husband’s passing affects people and how those people react.

5. It is not appropriate for me to continue with the matter and I will recuse myself from today.

6. The only order that I make is to refer the matter to Registrar Field for allocation to another judge.  The review on 3 December 2010 is vacated.

7. Before the matter came to me, Young and Dessau JJ had indicated that it would be inappropriate for them to take the matter.  I will note that in these brief reasons.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 26 November 2010.

Associate: 

Date:  3 December 2010