Valdez & Frazier (No 2)
[2016] FamCAFC 55
•15 April 2016
FAMILY COURT OF AUSTRALIA
| VALDEZ & FRAZIER (NO. 2) | [2016] FamCAFC 55 |
| FAMILY LAW – APPLICATION – DISQUALIFY – Where the test is not satisfied – Where disagreement with a decision is no basis for disqualification – Application dismissed. FAMILY LAW – APPLICATION – COSTS – Where the respondent filed her submissions seeking costs late and in the wrong jurisdiction – Where there is no application for an extension of time – Where no regard can be had to those submissions – Order for costs made on basis of application alone. |
| Family Law Act 1975 (Cth) – s 4AB, 117(2) and 117(2A) |
| Carra & Schulz [2012] FMCAfam 930 |
| APPLICANT: | Mr Valdez |
| RESPONDENT: | Ms Frazier |
| FILE NUMBER: | SYC | 2226 | of | 2013 |
| APPEAL NUMBERS: | EA EA | 111 114 | of of | 2014 2014 |
| DATE DELIVERED: | 15 April 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | In Chambers – by written submissions |
| JUDGMENT OF: | Strickland J |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 23 July 2014 24 July 2014 |
| LOWER COURT MNCS: | [2014] FCCA 1917 [2014] FCCA 1918 [2014] FCCA 1639 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Longworth |
| SOLICITORS FOR THE RESPONDENT: | Swaab Attorneys |
It is ordered that:
The further application that the Honourable Justice Strickland be disqualified be dismissed.
The father pay the costs of the mother of and incidental to paragraph 6 of the application in an appeal filed by the father on 27 July 2015 as amended on 4 August 2015, such costs to be assessed on a party/party basis in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazier (No. 2) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 111 of 2014; EA 114 of 2014
File Number: SYC 2226 of 2013
| Mr Valdez |
Applicant
And
| Ms Frazier |
Respondent
REASONS FOR JUDGMENT
Introduction
On 28 October 2015 I made orders dismissing Mr Valdez’s (“the father’s”) application that I disqualify myself, and providing for written submissions to be filed in relation to Ms Frazier’s (“the mother’s”) application for costs.
On 29 October 2015 the Full Court made orders for written submissions to be filed in relation to all but paragraph 6 (which sought my disqualification as referred to above) of the application in an appeal filed by the father on 27 July 2015. That application primarily seeks that the hearing of the father’s appeals in this matter be reopened, and will be determined by the Full Court.
On 4 November 2015 the father filed his written submissions. In those submissions the father alleged that the reasons that I delivered on 28 October 2015 “occasion instances of actual bias”, but if he is wrong about that, they exhibit an apprehension of bias. The father then seeks an “order” that I “recuse” myself from these proceedings “on the basis of actual bias evident in [my] reasons for judgement [sic] 28 October 2015”.
I had serious doubts about whether the father could make the initial application for disqualification, yet I proceeded to determine the same. Similarly, I have serious doubts about whether it is open to the father to pursue the issue of my disqualification as he now has, and more importantly, whether there is the need to address his claim at all. However, in the interests of allowing this matter to move forward in an orderly fashion, I will address his further “application” in these brief reasons.
Discussion
There is no basis demonstrated in the father’s written submissions for me to disqualify myself for actual or apprehended bias.
It seems that the primary issue raised by the father is my comment about s 4AB of the Family Law Act 1975 (Cth) (“the Act”) as amended in my reasons for judgment delivered on 28 October 2015 when challenging the father’s criticism of one aspect of my 2012 paper. The father suggests that my comment is wrong, and he cites the decision by Federal Magistrate Hughes (as her Honour then was) in Carra & Schulz [2012] FMCAfam 930 in support of that. However, in fact, that decision entirely supports the comment I made, namely that family violence is not defined in s 4AB as “preventing a child from maintaining contact with their parent”. Thus, again there is no foundation for the complaint made by the father.
A claim of actual bias requires clear and direct proof that the judicial officer approached the issues for decision with a closed mind, or had prejudged the matter, such that his or her views were incapable of alteration by the evidence or the submissions in the case. Here, all the father can point to as demonstrating actual bias are my reasons for decision, and although he has attempted to do so, he has not made out that claim.
As to the father’s default position of apprehended bias, bearing in mind the principles set out in extenso in my previous reasons for judgment, nothing expressed by the father satisfies the relevant test for determining whether I should disqualify myself.
The father is clearly unhappy with my decision, and does not accept it. However, that is not a basis for disqualification. Accordingly, the further “application” that I disqualify myself must be dismissed.
The application by the mother seeking an order for costs
The mother filed her written submissions in relation to costs on 20 November 2015, namely nine days later than the 14 days allowed in the order, and served those submissions on 23 November 2015, another three days later. Further, the mother did not file the submissions with the Appeal Registrar, but filed them with the Federal Circuit Court of Australia through the Commonwealth Portal.
In these circumstances the father says that I can have no regard to the mother’s submissions, and her application for costs should be dismissed.
There is no application by the mother seeking an extension of time to file her written submissions, and there is nothing that can be treated as seeking an extension. All that happened was that without any explanation for the failure to comply with the order of 28 October 2015, the mother “filed” her submissions in the wrong court, namely the Federal Circuit Court of Australia, by way of the Commonwealth Portal, and then on 23 November 2015 incorrectly sent an email to my associate at “Federal Circuit Court of Australia” attaching an electronic copy of the submissions. Importantly, there was nothing in that email which would explain the failure to comply with the order.
In these circumstances I refuse to receive the submissions. However, it does not necessarily follow that the application for costs must be dismissed. I still have to determine whether an order for costs should be made as sought, albeit in the absence of submissions in support of the application.
The order sought in the mother’s response is “[t]hat the father pay the mother’s costs on an indemnity basis and in the alternative on a party/party basis.”
First, I have to determine whether there should be an order for costs. In that regard the application that I disqualify myself has been wholly unsuccessful, and thus there is a circumstance that would justify an order for costs. That is a consequence of ss 117(2) and (2A) of the Act as amended, and does not require any submissions from the mother. Further, the father’s submissions do not address this issue. Thus, there should be an order for costs.
The next question is how should those costs be calculated, namely on an indemnity basis or a party/party basis. Given that there are no submissions of the mother that I can have regard to, it has not been demonstrated to me that there are exceptional circumstances which would justify indemnity costs. Thus, the ordinary rule as to costs should prevail, namely the costs should be paid on a party/party basis, and that is what I propose to order.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 15 April 2016.
Associate:
Date: 15 April 2016
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