WALTER & WALTER

[2014] FCCA 1973

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALTER & WALTER [2014] FCCA 1973

Catchwords:
FAMILY LAW – Parenting – application to discharge earlier final parenting orders – competing applications as to whether the matter should be determined by the trial judge who heard the earlier proceedings and made various findings – decision by trial judge to recuse herself.

Rice and Asplund (1979) FLC 90 -725

Applicant: MS WALTER

Respondent: MR WALTER

File Number: MLC 6449 of 2010

Judgment of: Judge Hartnett

Hearing date: 18 August 2014

Orders made: 18 August 2014

Delivered at: Melbourne

Delivered on: 28 August 2014

REPRESENTATION

Senior Counsel for the Applicant: Mr Dickson

Solicitors for the Applicant: Taussig Cherrie Fildes

Counsel for the Respondent: Mr Strum

Solicitors for the Respondent: Susan Snyder

ORDERS MADE 18 AUGUST 2014

1. All extant applications are referred to Judge Burchardt, the co-ordinating Judge, for listing before a judge other than Judge Hartnett for a half day hearing as soon as is practicable.

2. The costs be reserved, including costs for Senior Counsel.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6449 of 2010

MS WALTER

Applicant

And

MR WALTER

Respondent

REASONS FOR JUDGMENT

1. These are reasons, briefly delivered, in respect of my determination to transfer these proceedings to the co-ordinating Judge in this Registry for listing before a Judge other than myself. Such transfer was sought by the wife in the proceedings.

2. The history of proceedings between these parties is as contained in what is referred to as a ‘Box File’ in the Registry of this Court. After a hearing which occupied some seven or part thereof days before me, with written submissions following, I made Orders and delivered Reasons on 6 June 2012. The parties at that time included an Independent Children’s Lawyer. The Orders made were both parenting and property orders.  The matter was contested throughout and the orders made, extensive.

3. In respect of the parenting orders, the proceedings concerned the parties’ three daughters [X] born [omitted] 2000, [Y] born [omitted] 2002 and [Z] born [omitted] 2004.  The girls were then aged 12, 10 and 7 years respectively and are now 14, 12 and 10 years respectively. The Orders made were final Orders. They provided for the children to live with the husband and spend time with the wife for reasons as set out in the Judgment delivered.[1] In the Judgment, I made various findings about both parties evidence, including in paragraph 12 of the Reasons that the wife had made “… an unfair and untrue claim which minimises and trivialises the husband’s input…”

   [1] Walter & Walter [2012] FMCAfam 434.

4. Following the making of final Orders in the proceedings and on 14 June 2014, the wife filed a Notice of Appeal. That appeal was against the totality of the parenting and property orders made. It included, amongst its grounds, allegations of bias, actual and apprehended by me. A stay application instituted by the wife followed, which by consent stayed two of the property orders made, but which otherwise was dismissed. Orders were made on 26 July 2012. The reasons for the refusal of the stay were set out in Judgment delivered on 27 July 2012.[2]

   [2] Walter & Walter [2012] FMCAfam762.

5. The wife discontinued the appeal by Notice filed on 16 April 2013. On 26 April 2013, the wife filed an Application in a Case returnable on 3 May 2013. Interveners also made application. The proceedings related to the distribution of funds as ordered by me on 6 June 2012. On 1 May 2013, the wife made further application to the Court as to overseas travel for the children. Those matters were dealt with by Judge O’Sullivan on 3 May 2013, and by me on 29 May 2013, the proceedings having been adjourned by Judge O’Sullivan to my list. On 29 May 2013, Senior Counsel for the wife submitted to the effect that the wife was concerned as to my continued hearing of proceedings between the parties. However the matter proceeded without further objection, partially because consent orders were proposed and further because the order sought by the wife required immediate judicial determination. At that point were concluded, the proceedings in this Court.

6. Less than two years following the making of the final orders, the wife issued an Application for Parenting Orders in the Family Court of Australia and on 29 April 2014. She sought a discharge of the earlier final orders, sole parental responsibility and for the parties’ three daughters to live with her. The husband responded seeking dismissal of the application and a transfer of proceedings to this Court and specifically my docket.  On 13 June 2014, Registrar Mestrovic transferred the proceedings in the manner sought by the husband.  The wife filed an Application for Review of the Registrar’s Decision and that matter proceeded before Justice Cronin on 2 July 2014.  On 15 July 2014, Justice Cronin made Orders transferring the proceedings to this Court. Such transfer was to the Court only and otherwise the Application in a Case to Review the Registrar’s Decision was dismissed. Subsequently, a costs order was made against the wife. Justice Cronin noted in paragraph 28 of his Reasons that if the matter was listed before me, the wife intended to make an application that I recuse myself.

7. On 18 August 2014, the wife made such application. The husband pressed on with his application that I hear the matter as he foreshadowed a Rice and Asplund[3] application.

   [3] Rice and Asplund (1979) FLC 90 -725.

8. I determined to refer this matter to the co-ordinating Judge of this Registry for hearing by such Judge as he shall determine, other than myself. There are many Judges in this Registry, and none of them have (save obviously myself) to my knowledge, made adverse findings of credit against either of the parties. Where there is a situation where one party urges a Judge to hear their proceedings, and the other equally urges the same Judge not to, there is perhaps a sense that justice will be seen to be done, by a Judge independent of the earlier proceedings, determining the matter. This is not a position I readily accede to. However, the application before the Court by the wife now seeks to revisit my earlier determination – not through the appeal process, but rather by agitating a changed circumstance. Given the history of this matter, that application should be determined by another Judge.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 28 August 2014