Wold & Kleppir (No. 4)

[2009] FamCA 247

FAMILY COURT OF AUSTRALIA

WOLD & KLEPPIR (NO. 4)

[2009] FamCA 247

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment of trial – Husband had unsuccessfully attempted to review the court file – No prejudice as court documents were already in his possession – May not hide behind non-compliance with court orders – Adjournment only in exceptional circumstances – Application dismissed

FAMILY LAW – COURTS AND JUDGES – Disqualification due to bias – Finding as to Husband’s credibility prior to trial – Mason J in Re JRL; Ex Parte CJL (1986) 161 CLR 342 followed – Preference for some evidence is not indicative of the treatment of all evidence – Application dismissed

APPLICANT: Ms Wold

RESPONDENT: Mr Kleppir

FILE NUMBER: BRC 3211 of 2008

DATE DELIVERED: 25 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 25 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Fisher, Solicitor of Neumann & Turnour Lawyers appeared for the Applicant Wife

COUNSEL FOR THE RESPONDENT: Mr Supranowicz of Counsel appeared by direct brief for the Respondent Husband

Orders

No orders taken out.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC3211 of 2008

MS WOLD

Applicant

And

MR KLEPPIR

Respondent

REASONS FOR JUDGMENT

1. I propose to deal with the issue of bias first.  Counsel appears for the respondent husband on today’s date.  In paragraphs 10, 11 and 12 he raises for the first time, the day of the trial, the issue of bias.  In paragraph 11:

   “11.It is my submission that where issues of credibility are decided before the actual trial of a matter then the presiding Judge should disqualify him or herself from trial on the grounds of perceived bias.

   12.Your Honour appeared to pre-judge the issue but the Imam gave evidence when submissions were requested from both parties on the issue when all evidence had not in fact been presented at that particular time.”

2. The view that I take is calling for submissions in the circumstances that did not amount to bias.  The transcript of the proceedings of 16 July when the Imam gave evidence, at page 5 of the transcript:

   “Now, I am told the Imam is available today.  I will take his evidence.  You don’t need your client.  You can cross-examine now on your instructions.  The matter has been alive as an issue for some months.  In the event that you need specific instructions on a specific aspect I will stand down and your client can be telephoned.  Presumably he can answer the telephone.  In the event that you feel prejudiced by your client’s absence the matter can be re-litigated or re-enlivened at a subsequent hearing so I won’t be making a final determination today but I do want to work out the parameters of this.”

3. Subsequently at page 33 of the transcript, having heard the cross-examination of the Imam and the issues arising from that cross-examination, I said:

   “I am directing that there be written submissions made on the issue of the validity of the marriage within 21 days of today’s date to be lodged with the Registrar of the Court.”

4. And I said:

   “The matter is set down for trial in October.  At that time I will take further evidence if required on the issue of the validity of the marriage, the nature of the ceremony and such like.”

5. So I don’t see that there was any pre-judgment or grounds for bias in the fact that I requested submissions.  The legal representative for the wife has referred to the observations of Mason J as he then was in Re JRL; Ex Parte CJL (1986) 161 CLR 342:

   “It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.  There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to other parties.  But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities, or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.”

6. I have re-read the judgment I delivered on 6 February this year on the determination of the validity of the marriage.  I clearly preferred the evidence of the Imam over the evidence of the respondent.  The respondent’s position was equivocal.  He first said the Imam did not perform a ceremony of marriage in September 2002, and then he pleaded in the alternative. 

   “If you accept the Imam’s evidence that he did perform a ceremony of marriage I was mistaken as to the true nature of the ceremony and did not consent to being married at that time.”

7. For the reasons that I gave on 6 February this year I found the husband did consent to being married in September 2002.

8. A litigant’s evidence may not be accepted on one issue but may be accepted on another.  I did not make a finding that I would never accept his evidence under any circumstances.  No particulars of the judgement of 6 February 2009 were referred to by counsel on today’s date when raising the issue of bias.  I would have expected to have my attention drawn to those particular passages to illustrate some bias.  The mere fact that I have not adopted a litigant’s evidence on a certain point is not grounds for bias of any kind. 

9. I note that there has been no indication that a claim of bias would be made at any time on the numerous occasions this matter has been mentioned from 6 February up until the present.  I decline the application to disqualify myself.

10. I turn to the issue of the adjournment.  I note that it appears that after I gave a direction on Friday that the Court staff allow the father to inspect the Court file it appears that the Court staff directed him to another section of the Court, the subpoenas and documents section, and he could make enquiries from that section.  That is material that has been given to me by the case co-ordinator in this matter.  I would have been minded to grant an adjournment but for this fact, that there is nothing on the Court file that the husband could possibly have read that he does not already have at home.  I accept that Ms Fairhurst gave every single document that has been filed in this matter, put it in a bundle and sent it down to Emerson Lawyers.  I accept Mr Billimoria’s evidence that he gave that entire bundle of documents, about 900 pages, to the husband. 

11. One might seriously question why a litigant coming to Court, albeit to apply for an adjournment, but knowing that there is a possibility the adjournment application may not be successful, would leave all those documents at home.  These are the very documents that he could have inspected on the Court file that it wasn’t made available, but there is no prejudice to him because he had the very documents at home over the weekend. 

12. He refers to his own failure to provide disclosure and to fully comply with the directions made on earlier dates in this matter.  I accept the force of the submission by the legal representative for the applicant that one cannot hide behind one’s own non-compliance with Court directions. 

13. There was an offer.  I accept Mr Billimoria that he had a conversation with the father, the respondent, and the respondent’s present counsel on Friday morning and there was an agreement that there would be a conference on the afternoon of 24 March at 5.00 pm at that office.  That conference did not take place and no explanation has been forthcoming as to why it did not take place. 

14. Apart from those issues, the grounds raised are the same as on Friday.  There have been no fresh developments.  It would be quite inconsistent for me to grant the adjournment on today’s date when the adjournment was refused on Friday.  I propose to dismiss the application for an adjournment.

15. The rules provide that I can only grant an adjournment in exceptional circumstances.  I do not find exceptional circumstances established.  It is said that if an adjournment is granted for a couple of months the respondent would be able to get the file from Mr Madsen.  Why the file has not been obtained from Mr Madsen between 18 February and the present time is not satisfactorily explained when it is asserted that if the respondent is given another eight weeks he will be able to obtain that file.

16. Most importantly it has not been explained what there is in Mr Madsen’s file that is so unique, so critical.  If I had had any degree of particularity I may have been persuaded but nothing is forthcoming.  No statements from Mr Madsen, no statements from the respondent.  The view that I take is nothing is going to change by granting an adjournment and in the circumstances the application for an adjournment is dismissed.  We will proceed.

17. I will reserve the costs of today.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  25 March 2009