Stephens and Stephens (No 2) - [2010] FamCA 553

FAMILY COURT OF AUSTRALIA

STEPHENS & STEPHENS (NO. 2)

[2010] FamCA 553

FAMILY LAW – PRACTICE AND PROCEDURE – Disqualification – application by the husband seeking disqualification of the judge on the ground of actual bias or reasonable apprehension of bias – where the husband had previously brought an application in similar terms seeking the judge’s disqualification – where the husband had not established actual or apprehended bias and the application was dismissed – where nothing new is raised by the husband in support of his current application – application summarily dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – husband granted an extension of time to file his written submissions with respect to outstanding costs issues

FAMILY LAW – COSTS – oral application by the wife seeking costs – costs reserved

Family Law Rules 2004 (Cth) r 24.10

Blair v Curran (1939) 62 CLR 464
Kemeny v Kemeny (1998) FLC 92-806
RJ & AJ [2005] FamCA 1075

APPLICANT:

Mr Stephens

RESPONDENT:

Ms Stephens

FILE NUMBER:

MLF

2487

2002

DATE DELIVERED:

21 June 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickand J

HEARING DATE:

21 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Grobtuch

SOLICITOR FOR THE RESPONDENT:

Kennedy Wisewoulds

Orders

That paragraphs 1, 2, 3, 4 and 6 of the Application in a Case filed by the husband on 26 May 2010 be dismissed.
That the time for the husband to file and serve written submissions in response to the written submissions filed by the wife on 29 April 2010 be extended to close of business on 12 July 2010.
That the Application in a Case filed by the husband on 26 May 2010 be removed from the active pending cases list.
That the oral application of the wife for costs against the husband of and incidental to the Application in a Case filed by the husband on 26 May 2010 be reserved.
In relation to the said application for costs the wife file and serve any written submissions in support within seven [7] days of the date hereof and the husband file and serve any written submissions in response within twenty-one [21] days of the date hereof.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLF 2847 of 2002

MR STEPHENS

Applicant

And

MS STEPHENS

Respondent

EX TEMPORE REASONS

This is an application filed by the husband on 26 May 2010. The orders sought, in summary, are that firstly I disqualify myself on the grounds of either reasonable apprehension of bias or actual bias, secondly a declaration that a fair-minded lay observer would have a reasonable apprehension of a possibility of bias by me, and thirdly, a declaration that I have not acted reasonably or honestly in refusing to disqualify myself. In relation to another issue, the application also seeks an order that the applicant, that is the husband, need not comply with paragraph 2 of orders made on 10 March 2010 until 45 days after the determination of this application.
The application is supported by an affidavit filed on the same date, an affidavit of some eight paragraphs with a number of annexures. Those annexures comprise extracts from the judgments of members of the High Court in relation to this matter, copies of a previous application and a supporting affidavit which I will mention further in a moment, filed by the husband on 29 April 2009, copies of pages of an affidavit filed by the husband on 31 May 2005, copies of pages of the wife’s affidavit filed on 15 June 2005, and pages of the transcript of the wife’s cross examination on 2 August 2005.
Now, in the application filed by the husband on 29 April 2009 he sought orders that I disqualify myself from hearing or judging any proceeding in which the husband is a party on the ground of actual or reasonable apprehension of bias, and that I not sit in any such proceedings. There was a supporting affidavit, as I say, filed at the same time, and there was a response to that application filed by the wife on 13 May 2009. A hearing duly took place when I heard submissions from both parties, and on 10 March 2010 I delivered reasons for judgment and made an order dismissing the application. In those reasons for judgment I found that the husband had not established either actual bias or a reasonable apprehension of bias on my part, and that there was no basis for disqualifying myself. I observe though, that prior to making those findings I found that the applicant, the husband, had waived his right to object and to seek my disqualification, but I proceeded to address the issues that the husband was agitating in relation to disqualification out of abundant caution.
As can be seen, the application that has now been filed and that is before me today, is an application not in precisely the same terms, but seeks the same result, namely that I disqualify myself on the grounds of either reasonable apprehension of bias or actual bias. I am somewhat bemused though by paragraph 2 of the application. It seeks a declaration, but in reality it is nothing more than the finding that would lead to the order for disqualification. Thus it is otiose in my view.
I am also bemused by paragraph 3. That smacks of what might be sought in an appeal from the orders that I made on 10 March 2010. However, this is not an appeal and I do not propose to trouble myself with that paragraph.
I note that the annexures to the affidavit are all documents which predate the previous application and my orders made on 10 March 2010. There is also nothing in the affidavit that explains why those documents are annexed and/or elaborates on how they are to be used.
In these circumstances the issue that I raised with the husband initially was on what basis did he suggest that this application that he had now filed could proceed. The husband indicated that he had some submissions written out and he wanted to read them onto the transcript, and I allowed him to proceed. It readily became apparent though that those submissions did not address the question that I asked and I attempted to bring the husband to that point, but he insisted on reading out his prepared submissions. He complained that I had interrupted him and he said that the submissions would reveal the answer to my question.
I listened patiently to the submissions and I can say that as far as I am concerned, those submissions did not address the relevant issue here. I then heard from counsel for the wife who has made, in effect, an oral application that the application that is before me today be dismissed.
Ms Grobtuch submitted that this is an application which cannot proceed because it is a repetition of the previous application; it relies on the same factual material, the husband has repeated the same submissions. In short she says it is not open to the husband to bring this application given that I have already determined his application previously filed seeking my disqualification.
I agree with that submission absent any submission by the husband as to the basis for making this further application. Indeed, in my view, this was an application which should not have been received by this court. However, as I understand it, the docket Registrar was not available at the time that the application was filed and it was received by the court and listed before me. In any event, that is past. It has now been filed, and it is now before me.
I find that this is an application which should be dismissed summarily whether that is on the basis of res judicata (eg see Kemeny v Kemeny (1998) FLC 92-806 at 85,085; RJ & AJ [2005] FamCA 1075), or issue estoppel (eg see Blair v Curran (1939) 62 CLR 464), or whether as rule 24.10 of the Family Law Rules provides, namely it is an abuse of process, frivolous, scandalous or vexatious.
Now, whatever the basis for it, the fact of the matter is that there is nothing new raised by the husband in the application or the supporting affidavit which would justify this application being allowed to proceed. As I have said, the affidavit annexes material but that is material that predated the previous application. It is material to which the husband referred, either specifically or generally, both in his affidavit in support of the previous application and in his submissions made at the hearing of that application. The only new issue is, of course, that since the previous application was filed, I have heard and determined that and delivered reasons for judgment.
The husband in his submissions did say that looking at the three sets of reasons - and they being my reasons of November 2005, June 2006 and March 2010 in combination, and separately, that indicates that I am biased. However, the husband did not refer to anything specific in my reasons of 10 March 2010 which would indicate bias.
I then come to paragraph 5 which seeks an order that the applicant need not comply with order number 2 of the order as to costs made on 10 March 2010 until 45 days after the determination of this application. Now, the order provided for the husband to file his submissions 45 days after the wife filed hers. The wife filed her submissions on 29 April 2010 and thus the husband is now out of time. The husband seeks a further 45 days, but Ms Grobtuch opposes that and says it can be done within seven days. Her reason for that is that the husband has had the wife’s submission for some time now and there is nothing in the material which justifies any extension of time beyond a nominal period of seven days.
For my part, I am anxious to finalise this matter. The husband has had ample time to prepare and file his submissions. However, I am prepared to allow him a reasonable time from today to complete those submissions and I propose to allow him a further 21 days.
I now have an application by the wife seeking an order for costs against the husband of and incidental to the application that I have heard today. Unfortunately, I am not in a position to deal discretely with those costs today because of time constraints, and in my view it is better to deal with all costs issues at the one time and of course there are outstanding costs issues in this case. Thus I propose to reserve the question of the wife’s costs of and incidental to the application of the husband filed on 26 May 2010.

I certify that the preceding 16 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 21 June 2010.

Associate