Xuarez and Vitela

[2017] FamCA 1009

FAMILY COURT OF AUSTRALIA

XUAREZ & VITELA [2017] FamCA 1009

FAMILY LAW – Interim applications filed by the applicant – application for the presiding judge to disqualify herself – application dismissed – application for leave to attend at final hearing by telephone – application dismissed.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
APPLICANT:	Mr Xuarez

RESPONDENT: Ms Vitela

FILE NUMBER: BRC 7312 of 2017

DATE DELIVERED: 27 November 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 27 November 2017

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Bertone

SOLICITOR FOR THE RESPONDENT: Sarah Cleeland Family Lawyers

Orders:

1. That the Application in a Case filed by the applicant on 23 October 2017 be dismissed.

2. That the Application in a Case filed by the applicant on 16 November 2017 for leave to attend the final hearing on 30 November 2017 by telephone be dismissed.

3. That this matter remain listed for final hearing at 10.00am on 30 November 2017.

4. That the two remaining Applications in a Case filed by the applicant on 16 November 2017 be adjourned to the final hearing of this matter on 30 November 2017.

NOTATION:

A.It is noted that the telephone link between the applicant and the Court was disconnected during the course of the hearing (after the applicant had made submissions in relation to his Application in a Case filed 23 October 2017) and the Court attempted to call the applicant three times, however the applicant was unable to be reached.

B.It is further noted that the personal appearance of both parties is required at the final hearing on 30 November 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7312 of 2007

MR XUAREZ

Applicant

And

MS VITELA

Respondent

EX TEMPORE REASONS FOR JUDGMENT

recusal application

1. The applicant in this matter filed an application on 23 October 2017 that I recuse myself from these proceedings on the grounds of apprehended bias.

2. The law relating to an application that a judge disqualify herself or himself is well known.[1]  The test is whether a fair minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the case.  It is an objective test.  The mere fact that a party considers the judge to be biased or has prejudged an issue is not itself sufficient. 

   [1] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, in particular at 344 to 349

3. There are two steps to be addressed in such an application.  The first requires the applicant to identify what it is said might lead me to decide a case other than on its legal and factual merits.  The second step requires the applicant to articulate the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. 

4. In support of this application, the applicant relies upon an affidavit filed by him on 23 October 2017.  There is nothing in that affidavit which would cause an objective mind to come to the conclusion that I may not bring an impartial and unprejudiced mind to the resolution of the case.  I propose, therefore, to dismiss that application.

5. I should also place on record that at some point during the delivery of my judgment on the recusal application, the telephone connection between the Court and the applicant was lost.  I do not know whether that is because the applicant disconnected the telephone or it was lost for some other reason.  There were then three unsuccessful attempts to contact the applicant by telephone. Given the applicant’s history of withdrawing from hearings, including before me on 29 September 2017, and the fact that the final hearing is listed to commence on 30 November 2017, I nevertheless continued to deal with his application to attend at the final hearing by telephone.

The applicant’s history of withdrawing from hearings

1. Paragraph 4 of the reasons of the Full Court delivered in this matter on 10 November 2017 record that on 27 October 2015 during a compliance hearing before Registrar Stoneham, the applicant hung up on the Registrar.  On that occasion the Registrar called the applicant back and he informed the Court that he did not wish to participate further in the hearing. 

2. Further, in a hearing dealing with an application in an appeal that was before the Full Court on 17 July 2017, the Court noted that the applicant also walked out of the hearing before the primary judge.  This was in circumstances where it was made clear that the applicant understood that the hearing would continue in his absence. 

3. I note that when the applicant was asked to make submissions in relation to the appeal including his application for leave to appeal he declined and walked out of the hearing.  Before he departed he was informed that even if he failed to remain and prosecute the appeal the hearing would continue and his appeal and application for leave would be determined in his absence.

4. In the hearing before me on 29 September 2017 the applicant was informed that if he left the court room the hearing would continue in his absence.

Application to appear at the final hearing by telephone

1. There is an application filed on 16 November 2017 that the applicant be able to attend the trial of these proceedings on 30 November 2017 by telephone. That hearing relates to competing applications for a vexatious proceedings order or that a party be declared a vexatious litigant. 

2. There is nothing in the applicant’s supporting affidavit which would justify such an order. 

3. The applicant confirmed on 29 September 2017 that he understands English very well but, as he does speak quite quickly at times, he considered that an interpreter may be required to translate for him if there was difficulty making himself understood. Accordingly, on each occasion that he has appeared at Court, the Court has arranged an interpreter to assist him and indeed the Court if there were difficulties understanding him. 

4. Ms Bertone, counsel for the respondent mother, opposes the application that the applicant attend the trial by telephone.  She has indicated that she may wish to cross-examine the applicant in the prosecution of the application made on behalf of her client. 

5. In my determination, in the absence of any reason proffered for any difficulty or prejudice to the applicant in attending personally at the hearing when he has previously attended hearings in person and the proposal to cross-examine the applicant and his difficulties or the Court’s difficulties in relation to understanding him, I propose to dismiss the application for him to appear by telephone at the trial on 30 November 2017. 

6. I otherwise adjourn the two remaining applications filed by the applicant on 16 November 2017 to the final hearing.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 27 November 2017.

Associate: 

Date:  11 December 2017.