Saller and Danell (No 3)

[2017] FamCA 795

FAMILY COURT OF AUSTRALIA

SALLER & DANELL (NO. 3) [2017] FamCA 795

FAMILY LAW – PROPERTY – application for adjournment – application to vary previous final orders – whether Court should extend time for wife to file application pursuant to rule 11.03 of the Family Law Rules 2004 (Cth) – whether wife has complied with final orders – recusal.

Family Law Rules 2004 (Cth) r 11.02, 11.03

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Saller & Danell (No. 2) (2017) FamCA 712

APPLICANT: Mr Saller

RESPONDENT: Ms Danell

FILE NUMBER: SYC 575 of 2015

DATE DELIVERED: 15 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 15 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Long

SOLICITOR FOR THE APPLICANT: Clinch Long Woodbridge Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

THE COURT ORDERS THAT:

1. The proceedings are referred to the Judicial Services Team Leader for the allocation of a further hearing date before a different Judge of this Court on a date to be advised to the parties in due course.

2. I DIRECT that within 14 days of the date of these orders the wife file and serve such application as she deems necessary together with any supporting affidavits upon which she intends to rely.

3. I DIRECT that within 28 days of the date of these orders the husband file and serve a response to the wife’s application together with any supporting affidavits upon which he intends to rely.

4. The parties’ costs of today are reserved. 

5. I recuse myself from further hearing of this matter.

AND THE COURT NOTES THAT:

A. The wife has placed on the record that, subject to leave being granted, she intends to cross-examine the husband at the next hearing.

B. The parties are in agreement that Johnston J not be allocated to the hearing of this matter. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saller & Danell (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 575 of 2015

Mr Saller

Applicant

And

Ms Danell

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter has been adjourned from 22 August 2017. On that day two issues arose. Those issues were, firstly, whether today’s proceeding should be adjourned and, secondly, whether an application by the de facto wife (“the wife”) to vary orders that I made on 16 March 2017 should proceed and, specifically, whether, pursuant to rule 11.03 of the Family Court Rules 2004 (Cth) (“the Rules”), the Court should extend the time for the wife to file that application in circumstances where she had not complied with the time limit set out in orders that I previously made on 28 July 2017. In that matter, I determined that I should not give relief from the effect of rule 11.02 of the Rules, which provides that the taking of a course of action after the time provided in a procedural order has no effect.

2. I declined to grant relief under rule 11.03 for the reasons set out in my ex tempore reasons for judgment handed down on 22 August 2017.[1]

   [1] Saller & Danell (No. 2) (2017) FamCA 712.

3. Those reasons included the potential prejudice to the de facto husband (“the husband”) in having sufficient time to meet a case, concerning proposed variation of orders, by today’s hearing.

4. An additional reason for not extending the time for filing the application for variation was because I accepted the argument, by senior counsel for the husband, that the consideration of such an application for variation may have required me to recuse myself, as such an application would potentially require findings in respect to the credit of the parties. This was in circumstances where, in my reasons for judgment dated 16 March 2017, I made findings that could reasonably be construed as reflecting on the husband’s credit. This had the potential to cause further delay in the event of the matter being re-assigned to another judge.

5. Having rejected the wife’s application to extend time for filing an application to vary the orders that I made on 16 March 2017, I set the matter down today on the basis that the matter was to deal with two issues which were, firstly, whether the wife had complied with order 13 of the orders I made on 16 March 2017 within three months of the date of the decision and, secondly, if not, what orders should be made by way of a procedural nature to give effect to order 17 of the orders made on 16 March 2017.

6. In terms of the matters that are before the Court today, the wife contends that she has complied with order 13 of the orders made on 16 March 2017, and that, in any event, the Court has power, whether by rules or inherent jurisdiction, to prevent an order of the Court being frustrated by the mala fides of a party, in this case, she contends, by the husband.

7. Senior counsel for the wife foreshadowed the wife’s intention, subject to leave of the Court, to apply to cross-examine the husband with a view to establishing her case concerning alleged mala fides on his part.

8. In those circumstances, I raised with senior counsel for the wife the concerns that have previously been expressed by senior counsel for the husband about my dealing with an issue that potentially involves a finding of credit in light of the findings set out in my reasons for judgment dated 16 March 2017.

9. Having obtained instructions on that matter, senior counsel for the wife respectfully contends that it would be inappropriate for me to continue to hear and determine this issue.

10. In Ebner v Official Trustee in Bankruptcy (“Ebner”),[2] the High Court held that apprehended bias occurs where a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

    [2] [2000] HCA 63; 205 CLR 337 at [6].

11. The principle in Ebner reflects the fundamental importance of the principle that a court or tribunal determining the rights of parties should be and be seen to be independent and impartial. 

12. Having regard to the matters that have been appropriately and professionally raised by Counsel appearing for the parties in this matter, I am satisfied that the request made for me to recuse myself is well-founded. I therefore recuse myself from further hearing of this matter.

13. Each party has indicated that it would, nonetheless, be appropriate for me to make further procedural directions for the orderly conduct of this aspect of the proceedings. Accordingly I make the directions as recorded in the orders accompanying this decision.

14. I will make a notation that the wife has placed on record that she intends to apply for leave to cross-examine the husband at the further hearing of this matter, which application will be determined by the presiding judge at that time.

15. I will make a further notation the parties are in agreement that Johnson J not be the allocated judge. 

16. For all these reasons I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 15 September 2017.

Associate: 

Date:  9 October 2017