Recent Articles tagged federal magistrates court from LexMonitor

Family Court disqualifies Magistrate due to perception of bias

spage@harringtonfamilylawyers.com (Stephen Page) — Sun, 21 Aug 2011 03:05:16 GMT

The Full Court of the Family Court, in a case called Nadkarni and Nadkarni, has recently ordered that a matter not be before Federal Magistrate Harman, due to perceptions of bias, and set out guidelines for judges as to disqualification.

The wife successfully appealed the refusal by the Federal Magistrate to disqualify himself. His Honour stated, in refusing the application:

Ido make clear that there was most certainly a personal andintimate relationshipbetween [the wife’s] lawyer and myself, as well as the businessrelationship. That terminated in 2006. That is a matter, it would seem, ofgreat interest to the legal profession of Parramatta ...

It seems surprising that Federal Magistrate Harman did not excuse himself in light of the history:

There hadbeen a great deal of acrimony between Federal Magistrate Harman and thewife’s solicitor following the wife’ssolicitor leaving the legalpractice in which they had both worked;
FederalMagistrate Harman had complained about the wife’s solicitor to the Legal Services Commission and the NSW Law Society
In 2009, about a year prior to his appointment,Federal Magistrate Harman forwarded an "extraordinary" email denigrating the wife's solicitor to 17legal practitioners and alleging an extra-marital affair between them;
In 2010 Federal Magistrate Harman made certain remarks in another matterabout the wife’s solicitor upon the litigantadvising the court that sheintended to instruct the wife’s solicitor;
In a separate matter in 2010 FederalMagistrate Harman had indicated that he would refer anypractitioner who renewed an application for disqualification for disciplinaryinvestigation;
In November 2010 his Honour “rushed” to deliver an ex-tempore judgmentin circumstances where the matter was notlisted for hearing and did not permitthe parties to participate in the hearing.

The Full Court stated:

This is one of the extreme cases where, as a result of the circumstances of theassociationbetween the Federal Magistrate and the wife’ssolicitor, the Federal Magistrate might not bring an impartial andunprejudiced mind to the resolution of the question he is requiredto decide.

Wewould add that once it is accepted that a subsisting marriage, or other ongoingintimate relationship or association between ajudicial officer and a lawyer isa disqualifying factor, it must also be accepted that once a marriage or similarrelationship orassociation has broken down, that disqualifying factor mustremain, at least for a reasonable period. This must be so because oftheacrimony that so often follows such a breakdown, as a lay observer would wellunderstand.

Whatis a reasonable period for disqualification following the cessation of anintimate relationship will be determined on a caseby case basis and havingregard to the perceptions of the hypothetical lay observer. In this case theuncomplimentary email sentby the Federal Magistrate only 15 months earlierclearly fell within the time-frame in which a relationship, albeit one ofhostility,not closeness, existed.

Federal Magistrates Court: lesbian co-mother is a parent

spage@harringtonfamilylawyers.com (Stephen Page) — Fri, 25 Feb 2011 20:32:50 GMT

The Federal Magistrates Court recently decided, in a still unreported case, that a lesbian co-mother was a "parent" within the meaning of the Family Law Act. The case, in which I was the independent children's lawyer, concerned the welfare of a young boy. Each of the mother and co-mother sought that he live with her. Ultimately Federal Magistrate Purdon-Sully found that it was in the best

Family Court: lesbian co-mother is a parent

spage@harringtonfamilylawyers.com (Stephen Page) — Fri, 25 Feb 2011 19:54:37 GMT

The Family Court recently decided that two lesbian co-mothers were "parents" within the meaning of the Family Law Act. It did so in the context of a case where a lesbian couple had had two children: one each. One woman had a child by a known donor. The other woman by an anonymous donor. The woman who had the child by the anonymous donor sought to relocate the child interstate. She was ultimately

$400,000 waste because the judge did not deliver reasons

spage@harringtonfamilylawyers.com (Stephen Page) — Wed, 08 Sep 2010 07:50:46 GMT

Parties who had spent over $400,000 in legal costs in a recent Federal Magistrates Court case were forced to go back for more because the Federal Magistrate did not deliver reasons at the end of a trial. That is the conclusion drawn by Justice May of the Family Court, sitting as the Full Court, in the recent Family Court case of Dahler and Thor when her Honour ordered that the matter be retried and that a certificate issue for the mother, father and independent children's lawyer for their legal costs.

The problem came about because there had been a 10 day trial about parenting issues when then Federal Magistrate Wilson announced some preliminary reasons, but would publish written reasons later on. Federal Magistrate Wilson retired from the bench without ever delivering those final reasons. The taxpayer through Legal Aid Queensland spent over $28,000 in legal costs. The mother had provided a mortgage over her home in favour of her lawyers and had incurred over $170,000 in legal costs. The father incurred over $205,000.

The certificates, payable by the Commonwealth Attorney-General, are worth about $4,000 to each of the parties.

The independent children's lawyer submitted:

It is a travesty of circumstances that the parties now face the prospect of a further hearing after having expended huge financial resources and energies in a 10 day trial which does not produce a proper result.

Dandenong project to improve collaboration

spage@harringtonfamilylawyers.com (Stephen Page) — Thu, 08 Jul 2010 11:56:58 GMT

Ministerial media release:

Attorney-General, Robert McClelland, today launched a new pilot project aimed at improving collaboration in the family law system.

The ‘Dandenong Project’ establishes new case management powers for the Federal Magistrates Court to actively manage all matters filed at Dandenong Registry. It also features a ‘triage’ process to establish up front the issues in dispute and whether a matter is suitable for dispute resolution.

The Project also aims to assist self-represented litigants by working closely with community legal assistance providers to ensure sufficient information and support is provided.

“To get the help they need separating families often need both legal and non legal advice and support. By bringing together a range of professionals, the Project will ensure that people get the advice and support they require,” Mr McClelland said.

The Project involves the Federal Magistrates Court and the Victorian Family Law Pathways Network assisted by Victoria Legal Aid, the Peninsula Community Centre, local providers of family relationship services and students from Monash University Family Law Assistance program.

These organisations will provide information, referrals and links to a broad range of community services to help families address a wide range of complex needs.

“The Court has worked very closely with local legal practitioners and community agencies to develop this project and we are looking forward to implementing the initiatives,” Chief Federal Magistrate, John Pascoe said.

The Dandenong pilot will run until the end of December 2010, following which the Project will be evaluated for possible roll-out in other locations.

Federal Magistrates Court case: example of how the court deals with allegations of domestic violence

spage@harringtonfamilylawyers.com (Stephen Page) — Mon, 18 Aug 2008 20:30:00 GMT

In the recent Federal Magistrates Court case ofBergin and Grove, the court dealt on an interim basis with allegations by the mother that the father had been emotionally and verbally abusive. The father denied the allegations, saying that any anger by him was dealt with "appropriately and respectfully". The mother also sought that Shared care Federal Magistrate Brown held: The concept of

Federal Magistrates Court case: children's case: what not to do

spage@harringtonfamilylawyers.com (Stephen Page) — Thu, 14 Aug 2008 20:30:01 GMT

In the recent Federal Magistrates Court case of Grant and Terry, the father, Mr Terry, sought a shared care arrangement. However, he seemingly did all he could to demonstrate why it shouldn't happen: - The Federal Magistrate's views reflected in part those of the family report writer: the best chance for a shared care arrangement being successful is in circumstances where the parties are able

Federal Magistrates Court case: relocation Darwin to Cairns

spage@harringtonfamilylawyers.com (Stephen Page) — Thu, 14 Aug 2008 20:30:01 GMT

The 2006 amendments have thrown up some interesting changes to how people litigate, as illustrated in the recent Federal Magistrates Court case of Price and Barnett. The parties lived in Darwin. When they separated, the mother moved to Cairns where her family lived, but following the start of the then court proceedings, quickly moved back to Darwin. Consent orders were entered into, providing

Federal Magistrates Court case: relocation principles

spage@harringtonfamilylawyers.com (Stephen Page) — Thu, 07 Aug 2008 20:30:11 GMT

In the recent Federal Magistrates Court case of Robson and Johns, Federal Magistrate Coakes in an interim decision, allowed a mother who had moved unilaterally from the NSW Central Coast to near Port Macquarie to remain there. The court summarised some principles about relocation cases (with the citations removed): Case law before the introduction of the Family Law Amendment (Shared Parental

Family Court case: was father gay?

spage@harringtonfamilylawyers.com (Stephen Page) — Tue, 05 Aug 2008 20:30:01 GMT

In the recent Family Court case of Craven & Crawford-Craven, Justice Warnick, sitting as the Full Court, had to consider the question of the father saying that he was unfairly branded by the trial judge as a homosexual. The father had sought equal time to the parties' child G, which was rejected by the trial judge, finding that the child should spend more time with the mother. What was apparent

Federal Magistrate Court case - money tied up in a loan account

spage@harringtonfamilylawyers.com (Stephen Page) — Fri, 25 Jul 2008 20:04:16 GMT

In the recent Federal Magistrate Court case of Baxter and Warren, Federal Magistrate Howard awarded the wife 20% of the property when the parties had been together for just over 3 years, but when it was clear that she had significant ongoing health problems. Out of a pool of about $290,000, about $280,000 was held by the husband in a loan account in a discretionary trust- which he did not

Federal Magistrate Court case - what to do when an Independent Children's Lawyer is not chosen

spage@harringtonfamilylawyers.com (Stephen Page) — Wed, 23 Jul 2008 20:30:00 GMT

The recent Federal Magistrate Court case of Lancet and Lancet is a good illustration of what can go wrong in the process of appointment of an independent children's lawyer, and the limited means of how to fix it. The father had been arrested by police for chasing the mother whilst armed with an axe. Despite the best efforts of neighbours to restrain him, he managed to break free a number of

Federal Court: Federal Magistrates Court CAN order lump sum costs

spage@harringtonfamilylawyers.com (Stephen Page) — Tue, 22 Jul 2008 21:30:01 GMT

Whenever costs are ordered in the Federal Magistrates Court, the most common way in which they are ordered is by way of a lump sum- for example: "The respondent pay to the applicant the sum of $1000 costs." The Federal Court in Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd had to decide whether or not the Federal Magistrates Court had the power to make lump sum costs orders. The good

Federal Magistrates Court case- relocating grandparents

spage@harringtonfamilylawyers.com (Stephen Page) — Tue, 22 Jul 2008 20:30:01 GMT

In the recent Federal Magistrates Court case of Richards and Howard, the court had to consider what principles applied when children were in the care of their grandparents, the latter making an application to the court for urgent orders allowing them to move from the Canberra area to central Queensland. There were circumstances of urgency in the move, as one of the sons of the grandparents was

Federal Magistrates Court case: injuncting the boat

spage@harringtonfamilylawyers.com (Stephen Page) — Mon, 21 Jul 2008 20:30:01 GMT

In the recent Federal Magistrates Court case of Deakin and Parry, Federal Magistrate Burnett had to consider what to do with a ship, the Z, which the husband had previously falsely claimed to authorities had been sunk for which he had been fined $4000. His Honour said: It seems, when one has regard to those matters, that there is a real basis for concern on the part of the wife that the husband

Federal Magistrate Court case - cutting the deal is by BFA or order only

spage@harringtonfamilylawyers.com (Stephen Page) — Sun, 20 Jul 2008 20:30:01 GMT

A recent Federal Magistrates Court case, Resch and Resch, is a good illustration of how, aside from death, there are only two ways to finally conclude a deal about property settlement under the Family Law Act: a binding financial agreement or consent orders. The husband and wife attended mediation and reached agreement as to the terms of a binding financial agreement and consent orders. The wife

Federal Magistrates Court case: principles of Mareva orders

spage@harringtonfamilylawyers.com (Stephen Page) — Sat, 19 Jul 2008 11:01:49 GMT

The Federal Magistrates Court in Sheehan and Sheehan had to consider the question of whether a bank account, of the husband and his new wife, which the former wife had found out about in the course of the proceedings, could be frozen. Federal Magistrate Neville did not draw any adverse inferences against the husband, even though there seemed to be over $200,000 in that account and he had not

Opinion piece about impact of delays in the Family Law Courts

spage@harringtonfamilylawyers.com (Stephen Page) — Wed, 16 Jul 2008 20:30:00 GMT

Sydney family lawyer Les Stubbs gave his opinion earlier this year in the Sydney Morning Herald about delays in the Family Court, and the impact on parties and their children. Most tellingly, Mr Stubbs made this pointed observation: But at the very least, we should try to make [the court process] easy and quick. But we don't. Instead it can be very, very difficult. This happens because - as

Two jailed for Contempt of Federal Magistrates Court

spage@harringtonfamilylawyers.com (Stephen Page) — Mon, 14 Jul 2008 20:30:01 GMT

The Federal Magistrates Court descended into farce last week , resulting in the jailing of a member of the public gallery who had sworn a contemptuous affidavit, and a self-represented litigant, who was in custody from Wednesday lunchtime. Surprisingly, the case was not about family law, which comprises the bulk of the work of that court, but to do with a costs order arising from an

Family Court, Federal Magistrates Court fees go up

spage@harringtonfamilylawyers.com (Stephen Page) — Sun, 13 Jul 2008 20:30:01 GMT

As happens on 1 July each year, the Federal Government has increased the fees payable to the Government in both the Family Court of Australia and the Federal Magistrates Court of Australia: Family Court of Australia Fees from 1 July 2008 $682 Application for divorce $682 Application for Nullity $682 Application for declaration as to validity $155 Application for final orders $155 Response