West and White
[2011] FamCAFC 101
•28 April 2011
FAMILY COURT OF AUSTRALIA
| WEST & WHITE | [2011] FamCAFC 101 |
| FAMILY LAW - APPEAL – Application for leave to extend time to appeal – Respondent wife requested recusal of single Judge hearing the application by reason of an asserted reasonable apprehension of a lack of impartiality – Whilst not accepting that anything in the judgment referred to by the wife gives rise to a reasonable apprehension of a lack of impartiality, as no prejudice to either party arises from so doing, the Judge acceded to the application in the broader interests of justice. |
| British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; (2011) 85 ALJR 348 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644 |
| Family Law Act 1975 (Cth) s 118 |
| APPELLANT: | Mr West |
| RESPONDENT: | Ms White |
| FILE NUMBER: | NCC | 3 | of | 2007 |
| APPEAL NUMBER: | EAA | 45 | of | 2011 |
| DATE DELIVERED: | 28 April 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 28 April 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 November 2010 |
| LOWER COURT MNC: |
REPRESENTATION
| REPRESENTATION FOR THE APPELLANT: | Self represented |
| SOLICITOR FOR THE RESPONDENT: | Mr Fox, Attwaters Solicitors |
Orders
That the application of the appellant father filed on 14 April 2011 be referred to another member of the Appeal Division.
That the costs of this application be reserved.
IT IS NOTED that publication of this judgment under the pseudonym West & White is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth). This judgment was previously published under the pseudonym Glanton & Holden.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EAA 45 of 2011
File Number: NCC 3 of 2007
| Mr West |
Appellant
And
| Ms White |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application to extend time to appeal against orders made by Cleary J in chambers on 19 November 2010. At that time, her Honour dismissed an application by Mr West (“the husband”) for an order under s 118 of the Family Law Act1975 (Cth) (“the Act”) permitting the husband to commence proceedings which he has described as “contempt” against his former wife, Ms White (“the wife”).
As is not in doubt, the reason why the husband sought an order from Cleary J under s 118 to commence “contempt” proceedings against the wife was that in its judgment of 8 April 2010 the Full Court, constituted by me sitting as a single Judge, dismissed the Notice of Appeal filed by the husband on 11 December 2009 against a decision by Coakes FM of 25 August 2009 dismissing an application for contempt brought by the husband against the wife.
In paragraph 34 of the Full Court’s judgment of 8 April 2010 the Court referred to the reality that, if accepted, the husband’s affidavit evidence in chief in support of the contempt application which he prosecuted unsuccessfully before Coakes FM would be capable of establishing a breach of Order 8 at the prima facie level. As the reasons for judgment of 8 April 2010 reveal, it was in fact Order 7(a) which the husband relied upon in support of his contempt application before Coakes FM.
It is not in doubt that, seizing upon paragraph 34 of the Court’s Judgment of 8 April 2010, the husband regrouped and sought to prosecute his former wife for contempt of the property settlement Orders which were made by consent before Cohen J during the course of the rehearing of proceedings which in turn was ordered by the Full Court as a consequence of allowing an appeal against Orders made some years earlier by Mullane J.
Counsel for the wife has opposed my hearing the present application on the basis that I expressed in paragraph 34 of my previous judgment some views about the prospect of success of the proposed application of the husband.
As suggested to the wife’s Counsel, if granted, at an appeal level, this application probably stretches the boundaries of recusal to some extent. The Court struggles to see how, when it is read and understood, anything in paragraph 34, or elsewhere in the Court’s previous Judgment, would convey to a reasonable observer, or give rise to a reasonable apprehension of, a lack of impartiality in determining this matter on its merits. That is particularly so when one has regard to the second limb of the test which the High Court articulated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644 and which was followed in British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; (2011) 85 ALJR 348.
However, given that there is no appeal against the outcome of the present application other than by way of application for special leave to the High Court, and as no prejudice to either party arises from doing so, the Court considers the broader interests of justice to be better served by acceding to this application. The Court will accordingly order that the application of the husband filed 14 April 2011 be referred to another member of the Appeal Division.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 28 April 2011.
Associate:
Date: 09.05.11
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