Family Court of Australia

BATEY-ELTON & ELTON (review)	[2010] FamCAFC 71	

FAMILY LAW - APPEAL – Application for review of a registrar’s decision – Where the registrar refused to file a Notice of Appeal – Trial judge made no orders in relation to the wife’s disqualification application – No decree or decision as defined by the Family Law Act 1975 (Cth) from which to appeal – Matter is now heard by a different judge – Where the orders sought in the appeal include requiring a retired judge deliver judgment – Application dismissed.	

Family Law Act 1975 (Cth)	

Appellant:	Ms Batey-Elton	

Respondent:	Mr Elton	

File Number:	TVF	2250		of	2004	

Appeal Number:	NA	18		of	2010	

Date Delivered:	23 March 2010	

Place Delivered:	Brisbane	

Place Heard:	Brisbane	

Judgment of:	May J	

Hearing date:	23 March 2010	

Decision date:	2 February 2010	

REPRESENTATION

SOLICITOR FOR THE Appellant:	Ms Batey-Elton appeared in person	

COUNSEL FOR THE RESPONDENT:	Mr Page SC	

SOLICITOR FOR THE RESPONDENT:	Rod Madsen Solicitor	

Orders
(1)	The application filed 12 February 2010 is dismissed.
(2)	There is no order as to costs.

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

IN THE APPELLATE JURISDICTION OF THE Family Court of Australia 
at Brisbane	

Appeal Number: NA 18 of 2010
File Number: TVF 2250 of 2004

Ms Batey-Elton 	
Appellant

And
Mr Elton 	
Respondent

EX TEMPORE
REASONS FOR JUDGMENT
1.	I have before me an application for a review of a decision made by Registrar Spink on 2 February 2010 in the Northern Appeals Registry of the Family Court of Australia. On that day, Registrar Spink refused to file a Notice of Appeal on behalf of Ms Batey-Elton, to whom I will refer in this judgment as the appellant wife. There are a number of other appeals filed by Ms Batey-Elton with which the Full Court is yet to deal.
2.	In the application filed on 12 February 2010, the appellant wife seeks a number of orders, including:
•	a declaration that:
o	Registrar Spink should have filed the Notice of Appeal and supporting affidavit sworn 27 January 2010 and he must do so now;
o	the registrar’s decision should have been put in writing to the appellant and accompanied by reasons;
•	in the alternative, leave to file the appeal out of time; and
•	leave to adduce “further or other evidence”.
3.	Attached to the application is a copy of the Notice of Appeal which Registrar Spink refused to file. The orders sought in that appeal ask in essence that Justice Jordan (who is now retired) do a number of things including deliver a judgment and disqualify himself from hearing the matter. Also attached is a letter sent by the applicant to Registrar Green dated 26 August 2009, and a number of letters addressed to Justice Jordan and his associate between the period of 24 June and 6 August 2009.
Decision of the registrar
4.	Registrar Spink sent a letter to the appellant wife on 19 February 2010. Of relevance to the application before me is the following extract, in which Registrar Spink explains the reasons for his decision as follows:
Given that I gave you in person the reasons why I refused to file your Notice of Appeal, I thought that I should put in writing the reasons, for the assistance of both the Court and the Respondent. The reasons for refusing to file the Notice of Appeal were:
1.	In Part C, you did not disclose the date of the Order appealed;
2.	In discussions with you it seemed that the order complained about was made on 29 June 2009 and a copy of this order was annexed to the Notice. This being the case, the Notice of Appeal is out of time and you need leave to file it out of time.
3.	You mentioned something about Mandamus. Putting aside the question of the appropriateness of seeking such an order, the writ would not lie given that the Honourable Brian Jordan no longer holds a judicial commission..
4.	The Notice of Appeal was not accompanied by the prescribed fee or an application for waiver. This obviously could have been remedied.
Background
5.	In an affidavit filed 30 April 2009 the appellant wife asked that Justice Jordan “do remove himself from further hearing my case, or, alternatively, that another Justice or justices make that order”. The basis of this application, it seems, is that the appellant wife is of the view that the judge had demonstrated bias, being actual or apprehended bias. Within the affidavit the appellant complained that Justice Jordan had made orders providing for a timetable working towards a trial despite the fact that there was “nothing to commend the husband’s attempt to have [her] s 79A application dismissed”. It was also said by her that the husband had failed to provide proper discovery and that the judge should have made proper orders to allow for her legal funding. 
6.	This was the second application of the appellant wife that the judge disqualify himself. A previous application by her was dismissed by his Honour and although the appellant wife appealed from that decision, the appeal was never heard on the merits because the appellant wife did not comply with directions made by the Appeals Registrar and the Full Court. 
7.	It is conceded correctly by Mr Page SC that the judge did not deal directly with the application for disqualification contained in the affidavit, in that he did not dismiss the appellant wife’s application or accede to it. Rather his Honour on 29 June 2009 made orders including directions for the trial and adjourned the application filed by the husband for summary dismissal of the appellant wife’s application pending what was said to be the High Court’s determination of proceedings pending. It is submitted by the appellant wife that his Honour should not have made directions in view of her application that he disqualify himself and that he should have dealt with that application first.
8.	It can be seen from the notations of his Honour that he was mindful of the chronology and the circumstances in which these orders were made. The relevant parts of the notations are as follows:
3	a.	The Wife had earlier applied to the Court to have His Honour Justice Jordan disqualified as the Trial Judge on the grounds of bias.
	b.	That application was dismissed.
	c.	The Wife appealed against that decision.
	d.	The Full Court dismissed the Wife’s appeal.
4	At the hearing of the Husband’s summary dismissal application, the Wife informed the Court that she had lodged an appeal to the High Court against the Full Court’s decision and requested an adjournment of the hearing of the Husband’s summary dismissal application pending the determination of that appeal.
5	On 17 June 2009, the Court determined that it should not proceed on that day to hear the Husband’s summary dismissal application.
…
9	The Court indicated that, notwithstanding the fact that the Wife had been unsuccessful in her application to have His Honour Justice Jordan disqualified and unsuccessful in her appeal to the Full Court, in order to move the children’s case forward in an agreed fashion, every effort would be made to secure a Judge other than His Honour Justice Jordan to hear the children’s matter.
…
11	Efforts to secure the allocation of another Judge to hear and determine the case are continuing.
12	His Honour Justice Jordan has, in the circumstances, determined that the matter should be allocated fixed dates for final hearing with a view of having the case heard by another Judge if available but, in the event that is not possible, the case should proceed before him.
13	In reaching that decision, His Honour Justice Jordan took account of the following matters:
	a.	That the Wife would continue to be opposed to His Honour Justice Jordan hearing the trial.
	b.	The Wife has pending before the High Court her appeal in relation to such matters.
	c.	The fact that the Wife’s primary application and her appeal to the Full Court were dismissed.
	d.	A consideration of the merits of any appeal to the High Court and the limited prospects of success in relation thereto.
	e.	The interests of the child in having the matter determined expeditiously.
14	His Honour Justice Jordan determined that the overriding consideration was the interests of the child and decided that that aspect of the case should be heard without further delay.
15	a.	At the hearing on 17 June 2009, His Honour Justice Jordan 
	indicated that he proposed to make directions for the trial 
	and the Wife sought and was granted an extension of seven 
            (7) days to make submissions in relation to such directions.
	b.	The Wife has provided some proposed directions which have been considered by the Court.
	c. 	The Wife included in her proposed trial directions matters which were not trial directions but applications relating to counselling, an injunction requiring the Husband to do certain things, directions to school authorities and medical practitioners and yet further orders in relation to disqualification.

	d.	With the exception of the last-mentioned matter, the issues identified in 15 c. hereof are matters for the final hearing and not matters appropriately the subject of trial directions.
9.	Justice Cronin is now dealing with this matter and it is from various interlocutory orders made by him that the appellant wife has appealed. It is intended that the hearing of those appeals take place on 12 April 2010.
The Family Law Act 1975 (Cth) (“the Act”)
10.	Section 94(1AA) of the Act provides:
An appeal lies to a Full Court of the Family Court from a decree or decision of a Judge exercising original or appellate jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
11.	Section 94(2) provides:
Upon such an appeal, the Full Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re‑hearing, on such terms and conditions, if any, as it considers appropriate.
12.	An immediate question raised by this application, upon which submissions were made by both the appellant wife and Mr Page SC, is whether there was a decree or decision of the judge. Certainly there was no order other than those to which reference has already been made. Section 4 of the Act, being the definition section, provides that:
decree means decree, judgment or order and includes:
(a) an order dismissing an application; or
(b) a refusal to make a decree or order.
13.	It is apparent in the circumstances of this case that neither occurred. A question properly raised by the appellant wife is that in the circumstances of the judge making no order in relation to her application that he disqualify himself, what position, especially for a litigant in person, can be taken. It was submitted by Mr Page SC that the appellant wife could have sought to relist the matter. In my view that may be an unrealistic expectation, especially for a litigant in person and in view of the orders made by Justice Jordan.
14.	At least in this case an answer may have been that the appellant wife should have filed a Notice of Appeal from the orders made by his Honour to which I have referred, the grounds being that her application for disqualification should have been dealt with first. However, this was not a step taken by the appellant wife, a not inexperienced litigant in this court. Instead, she has now waited until an attempt to file the Notice of Appeal was made on 27 January this year, some six months out of time. 
15.	As will later be mentioned, there are no merits in the appeal proposed to be filed and consequently leave out of time should not be granted.
16.	It is appreciated that the appellant wife is concerned that as a result of this order a series of directions were put in place culminating in the trial being listed before Cronin J. However, as Mr Page SC correctly submitted there has been no injustice to the appellant wife in Justice Jordan not disqualifying himself on that occasion. First, the judge arranged for another judge to hear the matter. Secondly, before Cronin J there have been further arguments in relation to disclosure by the husband and subpoenaed material and, third, subpoenaed material has been provided for inspection by the appellant. 
17.	Further orders were made by Cronin J on 15 February 2010 for inspection and giving the appellant wife the opportunity to ask questions of the husband.
Conclusion
18.	As correctly identified by the registrar, the Notice of Appeal which the appellant wife purported to file did not list the date of the order appealed against. There was no order or decree as defined in the Act. In the affidavit filed in support of the review application, the appellant wife explained her position as follows:
I had issues in my appeal which should be heard by the Full Court; …they related to the failure of Justice Jordan to render judgment after hearing my application months before that he disqualify himself from further hearing my case and subsequent orders he had made which intolerably exacerbated the ongoing denial of Procedural Fairness I had endured and totally prejudiced the hearing of my pending Section 79A application.
19.	It is clear, therefore, that the appellant wife is in fact attempting to appeal against the “absence of any order setting out a decision” from her application heard on 29 June 2009.
20.	It is plain that even if the deficiencies of the document could be overcome and leave be given out of time, the appeal has no merit. There cannot be an appeal in the absence of an order or decree.
Costs
21.	Mr Madsen, the solicitor for the respondent husband in this matter, applied for costs. In essence, he points to the reality that the application has been unsuccessful. Significantly, he explains that an email was sent to the appellant wife on about 19 March 2010 which noted that the appeal was incompetent, referred to the relevant part of the Act and gave notice that an application would be made for costs. 
22.	In the usual course of things, those two matters would be compelling and an order for costs would be made. However, the appellant wife tells me that she is impecunious and that she has no capacity to pay costs. 
23.	It is also said by her that the reason she attempted to file this Notice of Appeal was that the trial judge failed to make an order in relation to her application. I have some sympathy with that part of the submission, although it must be said that action could have been taken by her much earlier.
24.	I do not intend, on this occasion, to exercise the discretion to make an order as to costs. However, I would like to make it extremely plain that this is in the rather unusual circumstances of this application for review. I would not want it thought by the appellant wife that should she fail in her appeals that a similar result may result with respect to costs. The considerations in relation to the two appeals are likely to be very different.
25.	I would also add that even though special arrangements have been made for the appeals to be heard as soon as possible, in the event that the appeals are not allowed, about which I cannot say one way or the other at the moment, it should not be assumed that the hearing before Cronin J will be delayed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date:  8 April 2010