Steele and Galloway (No 4)

[2011] FamCA 1017

FAMILY COURT OF AUSTRALIA

STEELE & GALLOWAY (NO 4) [2011] FamCA 1017

FAMILY LAW – CHILDREN - Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT: Ms Steele

RESPONDENT: Mr Galloway

FILE NUMBER: SYC 6615 of 2007

DATE DELIVERED: 22 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 22 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr de Robillard

SOLICITOR FOR THE RESPONDENT: Mr Holmes

Orders

1. Pursuant to the slip rule Orders 9(e) and 9(f) of the Orders dated 8 July 2011 are amended as follows:

   9(e)from 2.00 pm on Christmas Day to 5.00 pm on Boxing Day in 2012

   9(f)from 4.00 pm on New Year's Eve in 2012 to 4.00 pm on New Year's Day in 2013.

2. Leave is granted to the mother to make an oral application for an order that Justice Fowler be disqualified on the ground of apprehended bias from hearing any further application in the case.

3. Leave is granted to the father to make an oral application for an adjournment.

4. The father's oral application for an adjournment is granted.

5. The mother's oral application for disqualification is adjourned to 16 January 2012.

6. A formal application is to be filed by the mother accompanied by any affidavits upon which she wishes to rely setting forth the evidence in chief of any witness upon whose evidence she wishes to rely.

7. At the time of filing the affidavits the mother’s solicitor is to file a written submission as to the matters he intends to raise in support of his application and the basis upon which he says the orders should be granted.

8. To that submission the father will be obliged to file a Response no later than four days thereafter and the mother will have a right of reply during a period of 48 hours thereafter.

IT IS NOTED that publication of this judgment under the pseudonym Steele & Galloway has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6615  of 2007

Ms Steele

Applicant

And

Mr Galloway

Respondent

REASONS FOR JUDGMENT

1. There has been brought before the Court an application by the mother in these proceedings.  The application which was filed sought orders that:

   … an urgent review [take place] before Christmas in relation to the Application filed on 20 December 2011 looked at by Registrar George, Application listed 16 January 2012 when already before Justice Fowler at 10.00 am.

   That application sought a stay of orders made by me in this matter on 8 July 2011 and I had already refused such a stay.

2. It appeared in dialogue in arguendo with Mr de Robillard for the mother that what the mother was seeking was some variation at that stage of the orders that had previously been made.  On that day I adjourned the matter for that application to be dealt with to 16 January 2012, allocating it the first available day at that time that I had and the mother was to file an application of variation if she was so advised by 4.00 pm on 22 December 2011.

3. The application further asks for relief in the following terms, that:

   The Orders made by the Honourable Justice Fowler on 8 July 2011 are relating to access at Christmas 2011:-

   9(e) from 2.00 pm on Christmas Day to 5.00 pm on Boxing Day in 2011; and

   (f) from 4.00 pm on New Years Eve in 2011 to 4.00 pm on New Years Day in 2012.

4. It is clear in my view that there is a slip in relation to the description of the access to be provided under the relevant order and that the access that should be provided, consistent with the balance of the judgment and the balance of the orders made, should commence in 2012 at Christmas under that provision.  It is so because the access so provided was not to take place until after the expiration of 28 days from the production of a report which was to be ordered eight months after the judgment was delivered and after there had been a period of supervised contact between the child and the mother.  That eight months could not expire prior to December 2011 and accordingly it is clear that an error has been made and under the slip rule I propose to amend the provision in 9(e) from “2011” to “2012” and in 9(f) where first appearing the figure “2011” should be “2012”.  This will then make sense of the Orders and be consistent with the intention of the Court in relation to the question of supervision and in relation to the question of time spent by the child with the mother.

5. The Court is informed this morning that the mother has applied to the High Court for a writ of prohibition seeking that I be prohibited from hearing the matter and apparently a Registrar of this Court also be prohibited from being involved in the case.  It is in the nature of a recusal application but by way of writ of prohibition.  The matter is I understand currently being considered by the Registrar.

6. Coupled with that, the mother makes an application to me today orally for an order that I recuse myself.  Mr Holmes who appears for the father is caught by surprise in relation to the application.  It appears the application is made on the basis of apprehended bias.

7. Mr Holmes seeks an adjournment to a date so that he can properly prepare for the application, particularly in circumstances where apparently the mother relies on conversations with a professional colleague of Mr Holmes outside the Court, to which Mr Holmes was not a party and where there is no evidence from that person presently before the Court as to that conversation.

8. In the total circumstances of this case, I will allow an oral application to be made for an order that I be disqualified from hearing the case on the ground of apprehended bias.

9. I will grant Mr Holmes’ application for adjournment.  The matter will be listed before me on 16 January 2012.

RECORDED:  NOT TRANSCRIBED

1. I direct that a formal application be filed by the mother accompanied by any affidavits upon which she wishes to rely setting forth the evidence in chief of any witness upon whose evidence she wishes to rely.

2. I direct that at the time of filing the affidavits the mother’s solicitor file a written submission as to the matters he intends to raise in support of his application and the basis upon which he says the orders should be granted.

3. To that submission the father will be obliged to file a Response no later than four days thereafter and the mother will have a right of reply during a period of 48 hours thereafter.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 22 December 2011.

Associate:  M. Rankin

Date:  13 January 2012